Robert Malionek

February 05, 2021 | New York Law Journal

A series of lawsuits in 2020 related to COVID-19's effect on purchase or merger agreements have raised key questions about whether the pandemic caused a Material Adverse Effect (MAE) that excused buyers' obligation to close, and whether targets breached ordinary course covenants in their pandemic responses.

By Robert Malionek and Elizabeth Sahner

8 minute read

March 05, 2019 | New York Law Journal

While parties to large purchase or merger transactions typically include material adverse effect (MAE) clauses in their agreements, there is little in the law for what establishes a “material adverse effect.” Parties to such transactions can find some guidance from the recent decision in 'Akorn v. Fresenius Kabi AG', which marked the first Delaware state court case to uphold a buyer's right to terminate a merger agreement on the basis of an MAE.

By Robert Malionek and Jon Weichselbaum

8 minute read

August 22, 2008 | New York Law Journal

Robert Malionek, a partner at Latham & Watkins, and Joseph Salama, an associate of the firm, write that perhaps the Second Circuit will make a more direct pronouncement on the "collective conduct" theory in a case that presents it more squarely - where, unlike in Dynex, a plaintiff actually pleads scienter sufficiently as to an individual other than one alleged to have made the misstatements. If such a case does come along, all signs point in favor of the defendant prevailing.

By Robert Malionek and Joseph Salama

16 minute read