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Facilitator Guide

Claims 'If True'

What’s covered

  • An explanation of the claims “if true” concept 
  • The implications if an agreement does or does not contain “if true” language 
  • Buyer and seller perspectives
  • Where in an agreement to locate “if true” language
  • Sample provisions

Before the session

Prepare the Attendees

Send the attendees an invitation for the session. Include this link, which has the videos and exercise they’ll need to prepare.

https://www.hotshotlegal.com/discussions/claims-if-true/attendee

Prepare Yourself

Watch the videos and read the exercise so you’re familiar with the Hotshot material.

  • still frame from Claims 'If True'

    Course

    Claims 'If True'

    An explanation of the claims “if true” concept in private M&A deals, including an analysis of the implications to the parties if an acquisition agreement does or does not contain this concept. Features interviews with ABA M&A Committee members Joanna Lin from McDermott Will & Emery LLP and Jessica Pearlman from K&L Gates.

  • still frame from Claims 'If True': Buyer and Seller Perspectives

    Course

    Claims 'If True': Buyer and Seller Perspectives

    A look at buyer and seller perspectives regarding claims “if true” language in acquisition agreements. Features interviews with ABA M&A Committee members Jessica Pearlman from K&L Gates and Joanna Lin from McDermott Will & Emery LLP.

  • still frame from Claims 'If True': Drafting

    Course

    Claims 'If True': Drafting

    A look at how and where claims “if true” language appears in acquisition agreements, including sample provisions. Features drafting tips and perspectives from ABA M&A Committee members Joanna Lin from McDermott Will & Emery LLP and Jessica Pearlman from K&L Gates.

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    Exercise

    PDF

During the session

Part 1: Knowledge Check

Ask attendees these questions to ensure they understand the topic:

  • What’s the “claims if true” concept?
  • If an agreement includes claims “if true” language, what’s the impact on the parties if there’s a successful third-party claim based on a breach of a rep or warranty? An unsuccessful third-party claim? A claim that’s settled?
  • How do buyers and sellers typically view this issue? 
  • Where in a merger or acquisition agreement can the “claims if true” concept be found?

Part 2: Group Exercise

Lead a group discussion based on the exercise. To encourage collaboration, divide the attendees into groups to discuss the exercise, then have a representative from each group summarize their views to the larger group. Call on people to share their thoughts and ask others to respond.

Tip for remote sessions: use your web conferencing system’s breakout room feature to divide people into groups.

Part 3: War Stories and Firm Specifics

Share your own experiences and guidance, including:

  • Anecdotes and war stories (e.g., about a near-disaster or a tough negotiation)
  • General practice tips (dos and don’ts)
  • Firm-specific guidance and practices

After the session

To continue their learning, attendees can check out related courses in Hotshot’s M&A Provisions topic.