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Share A January acquisition deal between medical technology provider Hillrom and cardiac monitoring device maker Bardy Diagnostics has landed in rocky waters, with Hillrom looking to back out of the purchase and Bardy filing a legal complaint to keep things moving forward. According to press releases from Hillrom, the company was caught off guard on January 29 when Novitas Solutions, a Medicare Administrative Contractor (MAC), published reimbursement rates for relevant CPT codes that were well below its expectations. Hillrom said the rate reduction meets the criteria of a "Company Materi...

COVID-19’s Impact on M&A Transactions and Material Adverse Effect Clauses The COVID-19 pandemic has given rise to many M&A-related disputes. By some estimates, over 3,000 commercial cases were filed in U.S. federal courts alone as a result of the COVID-19 crisis. This figure does not account for numerous COVID-related disputes that were filed in U.S. state courts. Given that many transactions involving Latin American parties incorporate New York law or are based on provisions developed under New York law, these decisions may be of particular interest to companies doing business in Latin Ame...

In re Nine West LBO Sec. Litig., No. 20 MD. 2941 (S.D.N.Y. Dec. 4, 2020) Summary In 2014, Sycamore Partners Management LP (Sycamore) acquired The Jones Group (Jones) in a leveraged buyout. The merger provided for five different components: (1) Jones would merge with a Sycamore affiliate and become “Nine West Holdings” (Nine West); (2) Sycamore would contribute at least US$395 million in equity to Nine West; (3) Nine West would increase its debt from US$1 billion to US$1.2 billion; (4) Jones shareholders would receive US$15 per share; and (5) two high-end brands, along with another busines...

In the recent case of Travelport Ltd v Wex Inc [2020] EWHC 2670 (Comm) (the “Travelport Case”), the High Courts of England considered the construction of a material adverse effect clause (“MAE Clause”) in which a party sought to invoke the provision as a result of the effects of the COVID-19 pandemic. Given the prevalence and importance of MAE Clauses in many commercial contracts such as facility agreements and acquisition agreements, we explore in this article the issues that the UK Courts considered when determining the construction of this MAE Clause in the context of a global pan...

Material Adverse Effect clauses The importance of a textual analysis of the contractual language in ascertaining the meaning and effect of Material Adverse Effect (MAE) clauses was emphasised in WEX entered into a share purchase agreement with Travelport to acquire two companies that provided virtual credit and payment services to the travel payments market. Under the MAE clause, conditions resulting from a pandemic could only be taken into account if they had a disproportionate effect on the target companies as compared to other participants in the industries in which the target companies o...