Even the most promising joint business ventures can fall apart. If they do, parties that once saw each other as partners can quickly find themselves as adversaries. To that end, the term “broken deals” is intentionally broad – designed to capture not just failed mergers but also other types of disputes that can arise from a transaction. Even completed transactions can lead to serious litigation risk from dissatisfied stakeholders. Fund managers need to watch carefully for those risks and guard against them in any transaction they undertake. In this first article in a two-part series, MoloLamken LLP attorneys Justin M. Ellis and Caleb Hayes‑Deats survey different types of claims that can arise after broken deals and provide practical lessons for fund managers from caselaw, including those arising from material adverse changes or material adverse effects; misrepresentation claims; or breaches of non-disclosure agreements. The second article
will examine risks associated with deals falling apart due to a breach of fiduciary duties; situations involving distressed companies; and where parties are charged with aiding and abetting conduct in connection with a broken deal. For coverage of allocating fees resulting from broken deals, see “Primer on Deal‑by‑Deal Funds: Balancing Deal Uncertainty Against Attractive Carry Opportunities (Part Three of Three)
” (Mar. 3, 2020); and “SEC Enforcement Action Involving ‘Broken Deal’ Expenses Emphasizes the Importance of Proper Allocation and Disclosure
” (Jul. 9, 2015).