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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, May 10, 2023

  • 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 webinar will examine sandbagging issues in M&A, including different approaches counsel can take in acquisition agreements, and how Delaware and New York courts have addressed sandbagging when deal documents are silent on the issue. The panel will also discuss sandbagging in the context of R&W insurance policies and any related indemnities in acquisition agreements.

Faculty

Sarah McLean
Partner
Willkie Farr & Gallagher, LLP

Ms. McLean is a leading private equity lawyer with over 20 years of experience advising private equity funds and management teams on sophisticated and high-profile deals across the energy sector. Her practice focuses on private equity transactions, particularly portfolio company investments, acquisitions and divestitures of assets and companies, and joint ventures. Ms. McLean has been recognized as a leading dealmaker and influential woman in the energy sector. In 2023, she was recognized by The Deal as a “Top Women in Dealmaking” for Private Equity. She also serves on the Private Equity Editorial Advisory Board for Law360.

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Bryan M. Westhoff
Shareholder
Polsinelli

Mr. Westhoff is a creative, business-minded litigator with substantial experience handling a wide variety of complex domestic and international commercial law cases, arbitrations, and government investigations. He has successfully handled matters of all sizes, including multiple “bet the company” cases with more than $1 billion in potential exposure. Mr. Westhoff’s primary area of practice include pre- and post-closing M&A disputes, securities cases and investigations, and other financial litigation. He has defended public corporations and Boards against individual and class action shareholder proxy, disclosure, and process claims. He regularly represents private equity companies in deal litigation, including post-closing indemnification and fraud claims, working capital disputes, and earn-out cases. Mr. Westhoff has represented and advised individuals and companies in SEC investigations related to the sale of securities, disclosures, and accounting/audit issues. He is the co-chair of the firm’s M&A Litigation and Class Action working groups. 

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Description

The practice of sandbagging has become common in M&A. Deal counsel have three options they can pursue in acquisition agreements: a buyer-friendly pro-sandbagging clause; a seller-friendly anti-sandbagging clause; or no provision, in which event the parties defer to the default rule of the state whose law governs the agreement.

A pro-sandbagging clause permits a buyer to seek recovery for breach of a representation or warranty even if the buyer knew or should have known that the representation or warranty was false. An anti-sandbagging clause prohibits a buyer from seeking recovery in such a circumstance. Deal parties also may draft pro-sandbagging language that applies to specifically negotiated indemnities, particularly when such risks are excluded under a representation and warranty insurance policy.

The parties also can remain silent about sandbagging, an approach that is increasingly common. Where an acquisition agreement is silent, a court will apply the default rule in the jurisdiction that provides the law governing the agreement. New York and Delaware generally permit sandbagging, but the case law is varied in the analysis of the issue.

Listen as our authoritative panel analyses the different approaches that can be taken to sandbagging in M&A documents and the interpretations of sandbagging under New York and Delaware law.

Outline

  1. Sandbagging defined
  2. Strategies to address sandbagging in deal documents
    1. Pro-sandbagging provisions
    2. Anti-sandbagging provisions
    3. Silence
  3. Interpreting applicable state law: N.Y. and Deleware
  4. Interplay with reps and warranties insurance

Benefits

The panel will review these and other critical issues:

  • What are the rationales for including pro-sandbagging or anti-sandbagging provisions in an acquisition agreement?
  • How can sandbagging provisions be tailored for indemnity provisions and reps and warranty insurance?
  • How do New York and Delaware state laws address sandbagging when an acquisition agreement is silent on the issue?