MAC LITIGATION IN DELAWARE COURTS
MAC clauses are risk allocation provisions commonly included in M&A agreements. Taking into account that MAC clauses may be misused by opportunistic buyers, the Delaware Court of Chancery’s restrictive approach towards MAC clauses does not appear without merits. However, these clauses serve important purposes in the M&A arena. The Court of Chancery has resorted to a handful of substantive and procedural mechanisms which ultimately limit the buyer’s ability to walk away from a deal that is no longer sound. As a consequence, the Court of Chancery may be disregarding the spirit and rationale of MAC clauses, as well as the parties’ shared intention. A too strict and narrow interpretation of MAC clauses may have an undesirable chilling effect on the M&A activity.
