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While the solar module market continues to experience the shipping and inflation issues that are impacting many industries, the U.S. Department of Commerce (DOC) and the U.S. Customs and Border Protection (CBP) have taken action in the past week, which is expected to help alleviate two of the biggest obstacles that have been facing the industry and have a positive impact on solar project development in the coming year.
Continue Reading Feds Take Action to Alleviate Supply Chain Issues Impacting Solar Industry

In most M&A transactions, material adverse effects (MAE) clauses, are utilized in representations and warranties and closing conditions as a risk allocation tool and to narrow diligence issues. MAEs are rarely expected to be operative or used by one party to terminate a merger or acquisition agreement. One former colleague, an experienced M&A attorney, routinely waved away MAEs as largely irrelevant, saying, “I’ve never seen Bigfoot, and I’ve never seen an MAE,” emphasizing that we should save our dry powder for more important negotiated points.

However, the Delaware Court of Chancery recently found Bigfoot. In Akorn, Inc. v. Fresenius Kabi AG, C.A. No. 2018-0300-JTL (Del. Ch. Oct. 1, 2018), the Court held for the first time that a buyer properly terminated an acquisition agreement on the basis of an MAE and refused the seller’s request for specific performance of the merger agreement. In a one-page ruling on December 7, 2018, the Delaware Supreme Court affirmed the lower Court’s Akorn decision. In this article, we describe the background of Akorn, analyze the Court’s decision and provide some key takeaways for negotiating future M&A transactions under Delaware law.


Continue Reading Spotting Bigfoot: The Mythical MAE