M&A Litigation

Elsberg Baker & Maruri’s partners have extensive experience and wide recognition for handling disputes arising from complex multi-billion-dollar M&A transactions for a range of clients including major public companies, investment funds, institutional and individual investors, individual officers and directors, startups, investment banks and other financial advisors.

We specialize in helping our clients achieve their business objectives in connection with their M&A deals, whether through litigation or otherwise. Our partners are highly experienced with enjoining contested transactions, terminating failed transactions pre-closing, ensuring that transactions are consummated, and protecting our clients when disputes arise post-closing. We also regularly represent investment banks and other financial advisors in M&A matters, including in matters to collect fees on M&A transactions. As a litigation-only firm, Elsberg Baker & Maruri is also adept at working with deal counsel and in-house counsel to devise strategies amidst potentially contentious deal discussions—and our partners are regularly brought in to advise clients on how to comply with ordinary course covenants between signing and closing and to best position themselves for potential litigation.  

We have extensive experience practicing and going to trial in the Delaware Court of Chancery, where many complex M&A disputes are litigated, and have obtained significant trial victories in M&A trials there including in highly expedited proceedings.

Our partners’ extensive M&A litigation experience includes:

  • Won a trial victory in the Delaware Court of Chancery in KCake v. Snow Phipps, a busted-deal case in which private equity buyer Kohlberg & Co. sought to terminate its $600 million agreement to purchase a cake decorating business from private equity seller Snow Phipps. Following a nine-day trial, the Court compelled Kohlberg & Co. to close the deal despite the lapse of its financing, ruling that Kohlberg had caused the failure of its financing and could not use that basis to excuse it from closing. This precedent-setting case established new law on the prevention doctrine.
  • Won an appellate victory for Express Scripts and United BioSource Corp. in an $80 million dispute involving the sale of a healthcare business, establishing leading precedent on intent requirement for fraud carve-outs in merger agreements. The matter settled confidentially.
  • Won a trial victory after one-week bench trial in Delaware Court of Chancery in the first COVID-era busted deal case in which the client sought to walk away from a $6 billion deal.  In addition to being released from deal, the client obtained full recovery of its $600 million+ deposit and was awarded its full attorneys’ fees and costs.  Affirmed on appeal by the Delaware Supreme Court in an opinion setting the precedent on ordinary course covenants in deal documents. 
  • Represented Elon Musk in the highly-publicized action brought by Twitter Inc. in the Delaware Court of Chancery seeking to specifically enforce Musk’s agreement to purchase the company. Musk counterclaimed, asserting numerous claims including, fraud, breaches of the representations and warranties in the purchase agreement, and the failure of certain covenants. Following significant pre-trial proceedings, the parties settled on the eve of trial.
  • Represented a SPAC, seeking specific performance of a merger agreement and damages, in connection with a $2.6 billion deal to take public the top casino in the Philippines. After an expedited trial in which the court found that specific performance was impracticable given, among other things, the foreign nature of the transaction, the matter settled confidentially.
  • Represented a private equity firm in connection with protecting its contractual rights to compel the sale of a $400 million portfolio company.
  • Represented various private equity funds and sponsors in connection with pre-litigation disputes involving merger agreements and potential pre-closing disputes, assisting clients to avoid pitfalls that could otherwise derail the transaction or lead to adverse litigation outcomes.
  • Represented a leading private equity fund and its portfolio company in connection with enforcing terms of a $1 billion deal where the buyer sought to renegotiate deal terms and threatened to walk from the deal. The deal closed successfully.
  • Represented several leading venture capital funds against WeWork, Adam Neumann, and Artie Minson for alleged fraud in connection with an M&A transaction. Matter settled on confidential terms.
  • Represented a major insurance company in connection with a dispute around the sale of a subsidiary and insurance broker practices. The matter settled confidentially.
  • Represented the co-founder of Collage.com in connection with a post-closing M&A dispute involving claims for violations of blue-sky state securities law based on extra-contractual representations concerning post-closing employment and strategy. The matter settled confidentially.
  • Represented a leading hospital system in connection with post-acquisition earn-out, purchase price, and set-off disputes in connection with a $1 billion transaction.