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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Commercial Law

Date & Time
  • event Date

    Wednesday, March 19, 2025

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$347.00
CLE
ALL

This CLE course will guide deal counsel pursuing or defending against post-closing indemnification claims alleging breaches of representations, warranties, and covenants contained in M&A purchase agreements, whether relating to issues identified by the buyer or as a result of third-party claims. The panel will discuss practical tips for evaluating how to formulate an indemnification claim, the process for pursuing and defending claims, and procedural and substantive strategies for buyers and sellers embroiled in indemnification disputes.

Faculty

Elisa P. McEnroe
Partner
Morgan, Lewis & Bockius LLP

Ms. McEnroe litigates commercial contract disputes and indemnification issues that arise from matters involving business competition, fraud, and mergers and acquisitions. She works extensively on M&A post-closing indemnification claims and disputes. She also counsels both large and small clients in an effort to develop and implement risk management strategies.

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Patrick Reagin
Partner
Holland & Knight LLP

Mr. Reagin focuses on complex business and commercial disputes, and he is a go-to lawyer in the firm for high-profile and significant exposure matters. He has particular experience representing purchasers and sellers in post-closing M&A disputes and claims relating to earnouts, purchase price adjustments and for breaches of representations and warranties and indemnity, including litigating these issues in the courts of Delaware. Mr. Reagin regularly publishes on matters involving D&O liability, including updates on leading decisions from the Delaware Court of Chancery and other significant fora contributing to the development of D&O and securities law. In his broader commercial practice, Mr. Reagin has handled numerous disputes on behalf of companies, their officers and directors in connection with business tort, fraud, contract, fiduciary duty, restrictive covenant, trade secret, unfair competition, Lanham Act, antitrust and civil RICO claims in courts around the country and in international arbitrations.

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Description

Post-closing indemnification claims are common in M&A transactions involving acquisitions of privately held companies. For buyers, they can be a crucial way to recoup value lost due to seller misrepresentations concerning the acquired business. For sellers, they can result in exposure to millions of dollars in liabilities after the acquisition has closed. When a buyer becomes aware of a seller's alleged breach of the purchase agreement's representations, warranties, or covenants, the buyer may pursue an indemnification claim against the seller for the indemnifiable losses it suffered on the terms and conditions contained in the purchase agreement.

When evaluating whether to pursue an indemnification claim, buyers and their counsel must understand how the claim process works, as well as common challenges buyers face in evaluating potential bases for indemnification claims, preparing the claim notice, and resolving the claim. Similarly, sellers and their counsel must develop strategies for responding to indemnification claims, including arguing for the applicability of deductibles, caps, materiality, and material adverse effect thresholds, time limits to bring claims, limitations on indemnifiable damages, anti-sandbagging provisions, and more.

Listen as our authoritative panel discusses key legal considerations and strategies for buyers, sellers, and their counsel for asserting or defending against post-closing indemnification claims in M&A transactions.

Outline

  1. Buyer considerations in evaluating how to formulate an indemnification claim
  2. Navigating the indemnification claim process
  3. Strategies for asserting or defending claims: buyer and seller perspectives
    1. Procedural
    2. Substantive

Benefits

The panel will review these and other key issues:

  • What are some common bases for post-closing indemnification claims in M&A transactions?
  • What are some considerations and best practices for buyers pursuing indemnification claims?
  • What are some strategies for sellers to most effectively defend against indemnification claims?