Post-Acquisition Disputes + Advisory

Cooley’s cross-disciplinary team of litigators, M&A attorneys, and industry and regulatory practitioners has a long history of solving complex issues at the intersection of law, commerce and innovation – precisely where M&A disputes arise. We represent buyers, sellers, underwriters and other parties and understand the unique considerations that give rise to disputes at all stages of the deal process.

During pre-closing negotiations, our litigators provide perspective and support by reviewing letters of intent and consulting on purchase agreements. After closing, we negotiate favorable outcomes in disputes involving earnouts, purchase price adjustments, holdback releases, escrows and indemnification. If litigation or arbitration becomes necessary, we stand ready to develop customized, strategic and cost-effective approaches – and have achieved impressive results.

Areas of Practice

Pre-Closing Consulting

• We leverage our experience litigating post-acquisition disputes to craft effective letters of intent and purchase agreements
• Always on top of the latest developments in the law, including in Delaware and England, and – given the breadth of our M&A practice – we have real-time knowledge of industry trends

Earnout and Milestone Disputes

• Well-versed in the creative, evolving and often complex ways in which earnouts and milestones can be structured
• Regularly defend buyers and aggressively pursue claims on behalf of sellers throughout the negotiation process

Purchase Price Adjustments

• Considerate of the issues and tensions that can arise during the purchase price adjustment process
• Achieve favorable outcomes by leveraging our internal knowledge, as well as that of trusted accounting professionals

Indemnification, Escrow and Holdback Claims

• Work diligently with buyers to develop, notice and negotiate winning indemnification claims – and with sellers to defend against them
• At every step of the way, our teams of industry and regulatory practitioners (in the tax, communications, healthcare, employment, FDA, FCPA, cyber/data/privacy, intellectual property and real estate sectors, among others) provide support and analysis based on decades of practical experience

Representations and Warranties Insurance

• Pre-closing, our insurance practitioners negotiate favorable representations and warranties insurance policies
• Post-closing, our team works with you to maximize coverage

Representative Matters

• Obtained a $30 million victory for selling shareholders in a pharmaceutical company, enforcing milestone payment obligations against the acquirer
• Represented a pharmaceutical company in litigation related to its acquisition by another pharmaceutical company
• Represented a PE-backed software company in litigation in the US District Court for the District of Massachusetts over alleged breaches of representations, warranties and fraud
• Achieved a favorable settlement of 14 indemnity claims for a telecommunications company, including issues of international tax and cross-border litigation
• Represented a food safety software company in a post-acquisition dispute alleging fraud in an asset purchase deal
• Obtained a decisive victory for a PE-backed manufacturer of vibration testing equipment in a claim for breach of representations and warranties before the American Arbitration Association following a six-day hearing
• Secured the dismissal of an earnout dispute for a medical device company at summary judgement and secured a multimillion-dollar fee award
• Obtained voluntary dismissal while representing an electronics manufacturing company in litigation related to the company’s merger
• Obtained a favorable settlement for selling shareholders in a milestone payment dispute relating to antibody technologies