M&A Stories January 23, 2026 One Question Does your merger agreement default to Delaware law, or does it utilize New York law to ensure a buyer must meet the more rigorous “clear and convincing” evidence standard before successfully asserting a…
Monthly Archives: January 2026
M&A Stories: How Choice of Law is Critical to a Seller in Post-Closing Disputes
Posted in choice of law provision Tagged with: Burden of proof for common law fraud in New York M&A, Choice of law, Delaware preponderance of the evidence fraud burden, Fraud Standard of Proof, High degree of probability fraud standard NY, Indemnification caps, lower middle market M&A, M&A litigation, New York clear and convincing evidence standard for fraud, New York vs. Delaware fraud evidentiary threshold, Post-closing disputes, Purchase Agreement Defense, seller risk management, specific performance
Making Your M&A Forum Selection Clause Mandatory and Broad in Scope
M&A Stories January 22, 2026 One Question: is your current forum selection clause mandatory and apply to lawsuits for fraud and other relationship-based claims? A recent New Jersey court decision involving a business sale and a property lease shows why…
Posted in broad or narrow scope of forum selection clause, mandatory vs. permissive, problems with forum selection clauses Tagged with: APA, asset purchase agreement, Choice of Forum, commercial litigation, Deal Points, dispute resolution, Entity Acquisition, exclusive jurisdiction, Forum selection clause, jurisdiction, legal drafting, LLC Interest Purchase, M&A, Mandatory vs Permissive, merger agreement, Middle Market M&A, Scope of Claims, Seller Advisory, SPA, stock purchase agreement, tort claims, transaction documents, Varda Chocolatier Incorporated v. Shamban, Venue Dispute, Venue Selection
Closing the M&A Deal: Why Sellers Must Link Price Reductions to a Final Post-Closing Release
M&A Stories January 21, 2026 One Question When you grant a price credit during a business sale to resolve a buyer’s skepticism about asset values, does your purchase agreement explicitly define that credit as a final settlement and release of…
Posted in Negotiated Pre-closing price concessions and releases Tagged with: asset purchase agreement, asset sale, Business Sale, Business Valuation, buyer risk, contract drafting, Deal Finality, due diligence, exit strategy, Inventory Dispute, legal risk management, Litigation Prevention, lower middle market, M&A, Negotiated Price Concession, post-closing litigation, Private Target Deals, Risk Allocation, Seller Protection, Settlement and Release
Ensuring Your Right to Participate in Selling Your Product to Reach Your Earnout
M&A Stories January 16, 2026 One Question Does your agreement specifically list what the buyer must do to support your business to reach your earnout, or does it only prohibit them from taking steps to intentionally lower your payments? When…
Posted in buyer covenant to provide seller access to promote seller products post-closing, problems with earnouts Tagged with: Affirmative Covenants, Breach of contract, Business Sale, contingent consideration, deal structure, earnout, Healthcare Technology, lower middle market, M&A litigation, Mergers and Acquisitions, negative covenants, Performance Requirements, post closing covenants, Private Equity, Quarum v. Mitchell International Inc, Revenue Targets, Seller Protection, software as a service, stock purchase agreement, Transactional Risk
The Price of Specificity: A Delaware Contractarian Reminder for Seller Earnouts
M&A Stories January 15, 2026 One Question If the specific “all-or-nothing” earnout milestone you named in your contract (like a 510(k) filing) becomes impossible or more expensive, does your buyer have the right to walk away from the project entirely…
Posted in defining earnout milestone by business goal, earnouts based upon fda/ec milestones, problems with earnouts Tagged with: 510(k) premarket notification, contingent consideration, contractarianism, contractual condition precedent, de novo classification, earnout dispute, implied covenant of good faith and fair dealing, Johnson & Johnson v. Fortis Advisors LLC, milestone achievement
Managing Information Access During Earnout Disputes
M&A Stories January 14, 2026 One Question Does your agreement explicitly state that the deadline for your objection notice only begins once the buyer has delivered all requested supporting data, rather than just the summary report? The buyer, a large…
Posted in getting buyer to provide earnout calculation supporting data, problems with earnouts Tagged with: Accounting Arbitrator, Delaware Federal District Court, earnout, EBITDA, Information Gate, Information Rights, lower middle market, M&A litigation, Markdutchco 1 BV v. Zeta Interactive Corp, Objection Notice, Post-closing disputes, Purchase Price Allocation, working capital adjustments
Payout Denied: Why This Seller’s Earnout Claim Failed at the Dismissal Phase
M&A Stories January 11, 2026 One Question If a buyer with multiple subsidiaries moves your legacy customers and star salespeople to a different branch of their company, does your earnout contract contain the specific “if/then” rules required to prove a…
Posted in Cross-Selling Earnout Credit, Key Employee Retention Requirement, problems with earnouts, robust objective buyer earnout covenants Tagged with: asset purchase agreement, Collab9 LLC v. En Pointe Technologies Sales LLC, Continuity of Business, Delaware law, Earnout disputes, key employee retention, Motion to Dismiss, Personnel Quarantine, Post-closing integration, Revenue Mapping, seller risk management, strategic buyers, Subsidiary Revenue Shifting, Target Business Unit
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