The 'Failing Firm' Defense: Pointers From A Blocked Deal

By Danyll Foix (July 19, 2017, 5:08 PM EDT) -- In an opinion unsealed last week, a Delaware federal judge ruled that the terms in an acquisition agreement precluded the parties from relying on the "failing firm" defense to save their deal from being blocked by antitrust enforcers. This opinion not only confirms that exclusive negotiation, or "no talk," terms in transactions can thwart antitrust defenses, but also illustrates how parties may implement these terms without creating antitrust problems....

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