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‘Coronavirus Risk’ Enters M&A Lexicon

Published: June 22nd, 2020
Uncertainty posed by the pandemic is reshaping negotiations, upending timelines, altering strategies and killing transactions.

As the pandemic delays closings, lengthens antitrust reviews and derails mergers, dealmakers must grapple with an unforeseen variable that overhangs every transaction: coronavirus risk.

The medical crisis suddenly permeates each nuance of the investment process, from negotiation to consummation, forcing legal counsel to adjust to a new normal defined by uncertainty.

In interviews with The Deal, attorneys in New York and Washington described a merger landscape recalibrated by an unpredictable pathogen and ensuing economic volatility.

“The virus is affecting every phase of the deal process, and pretty much every page of the acquisition agreement,” said Paul Schnell, a mergers and acquisitions partner at Skadden, Arps, Slate, Meagher & Flom LLP.

“You have to think through each of these stages with a coronavirus lens,” he said.

In Washington, the Department of Justice and Federal Trade Commission have sent mixed signals. They’re operational and won’t relax standards, but they also acknowledge resources are strained due to telework.

“Most antitrust lawyers and companies who have pending transactions that have not yet been filed are cautiously proceeding, understanding that the DOJ and the FTC are going to be asking for more time and likely be slower to review,” said Neely Agin, partner at Winston & Strawn LLP.

She warned of the potential for “backlog” triggered by investments that encounter delays.

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