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Facilitator Guide

Sandbagging

What’s covered

  • Pro- and anti-sandbagging provisions
  • Enforcement by the courts
  • Pro- and anti-sandbagging jurisdictions
  • Buyer and seller perspectives
  • 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/sandbagging/attendee

Prepare Yourself

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

  • still frame from Sandbagging

    Course

    Sandbagging

    An explanation of sandbagging in private M&A deals, including a discussion on pro and anti-sandbagging provisions and how different courts and jurisdictions handle the issue. Features interviews with ABA M&A Committee members Nate Cartmell from Pillsbury LLP and Lisa Hedrick from Hirschler Fleischer PC.

  • still frame from Sandbagging: Buyer and Seller Perspectives

    Course

    Sandbagging: Buyer and Seller Perspectives

    A discussion on buyer and seller perspectives regarding the issue of sandbagging. Features ABA M&A Committee members Nate Cartmell from Pillsbury LLP and Lisa Hedrick from Hirschler Fleischer PC.

  • still frame from Sandbagging: Sample Provisions

    Course

    Sandbagging: Sample Provisions

    A look at typical sandbagging provisions, including pro-sandbagging and anti-sandbagging provisions. Also includes drafting tips and perspectives from ABA M&A Committee members Nate Cartmell from Pillsbury LLP and Lisa Hedrick from Hirschler Fleischer PC.

  • Icon of a document

    Exercise

    PDF

During the session

Part 1: Knowledge Check

Ask attendees these questions to ensure they understand the topic:

  • What is “sandbagging” in the context of an M&A deal?
  • What’s the purpose of a pro-sandbagging provision? An anti-sandbagging provision?
  • What explains the difference between pro-sandbagging jurisdictions and anti-sandbagging jurisdictions?
  • How do buyers and sellers typically view this issue?
  • How might a buyer respond if a seller pushes back against including a pro-sandbagging provision in an agreement?
  • Why are so many deals silent on this issue?
  • What impact, if any, does rep and warranty insurance have on the issue of sandbagging?

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.