M&A transactions rarely fail in negotiation. They fail in post-closing. We litigate earn-out fights, indemnification claims, purchase-price adjustments, breaches of representations and warranties, and material-adverse-change disputes for buyers, sellers, and the sponsors cleaning up after the deal.
Mergers and acquisitions close on a written agreement, but the agreement's most heavily negotiated mechanics, earn-outs, escrows, indemnification caps, working-capital adjustments, are precisely the provisions where the parties did not fully agree. They deferred the fight. When performance, financial results, or post-closing diligence diverge from what each side expected, that deferred fight becomes litigation.
These disputes are decided on two things: a clause-by-clause reading of the operative purchase agreement, and command of the financial record underneath it. We approach each matter as a transactional autopsy, reconstructing what the agreement actually requires, what the numbers actually show, and which forum the dispute belongs in, and we prepare every matter for trial in the Eighth Judicial District Business Court so that any resolution reflects the real strength of the claim.
Post-closing disputes do not all belong in court. Depending on how the purchase agreement is drafted, a dispute may be routed to an independent accountant (commonly for working-capital and closing-balance-sheet questions), to an arbitrator, or to a court of general jurisdiction. Forum selection is itself a contract-construction question, and it is litigated before the merits. Getting it wrong, or conceding it without analysis, can surrender the procedural advantages the agreement was drafted to provide.
An earn-out defers part of the purchase price and ties it to the target's post-closing performance: typically revenue, EBITDA, or a product or milestone metric. The structural problem is that the buyer usually controls the business during the measurement period. Sellers allege the buyer suppressed the metric through accounting choices, overhead allocations, deferred investment, or operating decisions that served the buyer's interest in not paying. The governing language is the efforts clause: whether the buyer owed "commercially reasonable efforts," "best efforts," or no affirmative obligation at all to run the business toward the earn-out. Proving or defending an earn-out claim is a forensic-accounting exercise, reconstructing normalized results across the measurement period and identifying every adjustment that moved the number.
Indemnification provisions allocate post-closing risk between buyer and seller. When a buyer discovers a problem after closing, an undisclosed liability, an inaccurate financial statement, a compliance failure, the indemnification claim is the contractual remedy. The litigation turns on the mechanics: the survival period during which a claim can be brought, the basket or deductible that a claim must clear, the cap that limits total recovery, the notice requirements, and whether representation-and-warranty insurance stands behind the seller and how that insurer coordinates with the defense.
In a post-closing dispute, the agreement is not background. It is the battlefield. The case is won by whoever reads the operative clauses most precisely.
Most deals adjust the purchase price after closing to reconcile the target's actual working capital against an agreed target: a true-up that ensures the buyer received the business it paid for. Disputes arise over the closing balance sheet itself: whether items were calculated in accordance with the agreed accounting principles, whether the historical accounting methods were applied consistently, and whether particular items belong in the calculation at all. These disputes are frequently routed to an independent accountant whose review is narrowly scoped to the items actually in dispute, which makes framing the dispute correctly a strategic decision in itself.
The representations and warranties in a purchase agreement are the seller's sworn picture of the business: its financial statements, contracts, litigation exposure, compliance posture, and assets. When that picture proves inaccurate, the buyer has a breach claim, ordinarily channeled through the indemnification provisions and subject to their survival, basket, and cap limits. Where the inaccuracy was knowing and material, the buyer may also pursue a fraud theory that can reach beyond the negotiated indemnification limits, which is why anti-reliance and integration language, and whether it forecloses a fraud claim, becomes a central battleground.
A material-adverse-change or material-adverse-effect clause allocates the risk of a serious deterioration in the target's business. Most often the dispute arises before closing, when a buyer invokes the clause to walk away from or renegotiate a signed deal after a post-signing event. The analysis asks whether the deterioration is durationally significant rather than a short-term blip, whether it is disproportionate to the buyer's industry, and whether it falls within a negotiated exception. These are demanding standards, and the record built around the durational and industry-impact questions is what determines whether a buyer can credibly refuse to close.
We act for strategic and private-equity buyers enforcing the protections they negotiated, for sellers and founders defending the consideration they were promised, and for the general counsel and corporate-development teams managing the fallout of a transaction that looked complete at signing. Each engagement begins with a clause-by-clause read of the operative agreement, a forum-allocation analysis, and an exposure map across the survival, basket, and cap provisions.
The operative agreement and the financial record will decide the outcome. Schedule a confidential consultation to have both read with precision.
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