Antitrust Risk-Shifting Provisions in Merger Agreements After the Financial Collapse

Antitrust Source, April 2009

9 Pages Posted: 1 May 2009

Date Written: April 2009


The global financial crisis has drastically altered the market for corporate acquisitions. With many potential buyers unable to secure funding, potential sellers now have significantly fewer options than in the past. Others have observed that merger agreements have therefore shifted from generally favoring sellers to favoring buyers.

Whether the recent trend toward buyer-friendly merger covenants has also affected antitrust risk-shifting provisions has not yet been examined. We surveyed the 30 largest largest merger agreements from 2007 and 2008 to identify any patterns or trends in antitrust risk-shifting terms and to see if merging parties have found new ways to apportion antitrust risk in the current deal environment. This sampling provides the first attempt to quantify the effect of the economic downturn on merging parties' assessment of antitrust risk.

Keywords: antitrust, merger covenants, merger enforcement, financial downturn

JEL Classification: K21, L41

Suggested Citation

Yingling, Kevin and Tucker, Darren S., Antitrust Risk-Shifting Provisions in Merger Agreements After the Financial Collapse (April 2009). Antitrust Source, April 2009. Available at SSRN:

Kevin Yingling

Google Inc. ( email )

1101 New York Ave., NW
Second Floor
Washington, DC 20005
United States

Darren S. Tucker (Contact Author)

Vinson & Elkins LLP ( email )

2200 Pennsylvania Ave NW
Washington, DC 20037
United States

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