The US District Court of Delaware spotlights the importance of antitrust risk-shifting provisions in merger agreements in the pharmaceutical sector (Akorn / Fresenius)

As counsel involved in negotiating mergers, acquisitions, or other transactions know, provisions that allocate antitrust risk between buyer and seller, or between joint venture (JV) partners, are a common feature of merger and JV agreements. Such provisions are increasingly important in today’s aggressive antitrust environment across the globe. They can vary greatly in detail and substance. For transactions that pose little or no antitrust risk, these provisions may require only that the parties work cooperatively to obtain clearance from the relevant antitrust authorities, or they may place all risk on the buyer, which perceives such provision as not much of a “give” if there is no real antitrust risk. For transactions that pose a greater antitrust risk, the agreement may set out each

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Authors

  • Baker Botts (Washington)
  • Baker Botts (Brussels)
  • Baker Botts (Washington)

Quotation

Stephen Weissman, Catriona Hatton, John M. Taladay, The US District Court of Delaware spotlights the importance of antitrust risk-shifting provisions in merger agreements in the pharmaceutical sector (Akorn / Fresenius), 1 October 2018, e-Competitions October 2018, Art. N° 95017

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