Our antitrust practice is pleased to present a new report addressing the prevalence of risk-shifting provisions in merger agreements. As antitrust agencies continue to galvanize enforcement efforts, such provisions have emerged as a critical counterbalance to increased regulatory scrutiny. The firm, working with NERA Economic Consulting, examined over 700 merger agreements from 2004-2019 to construct an empirical analysis of the prevalence of efforts clauses, divestiture and litigation requirements, break-up and reverse break-up fees, and termination date provisions. This analysis serves as a benchmark that can help inform optimal transaction-specific negotiating strategies and protect against aggressive counterparties.

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