In almost any merger or acquisition, the acquiring company insists on “conduct of business” covenants to ensure that the target company maintains the value of its assets before closing. Imagine that in the middle of negotiating an important acquisition agreement, your antitrust counsel suddenly opines that certain routine conduct-of-business covenants are no longer permissible.
This is precisely what is happening as some counsel overreact to the Department of Justice’s recent gun-jumping lawsuit against Qualcomm Inc. In-house counsel need to be skeptical of such overly cautious gun-jumping advice, which can jeopardize the success of corporate transactions.
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