Emory Corporate Governance and Accountability Review


Merger and acquisition deals are complex multi-party transactions that may require years, millions of dollars, and large teams of accountants, bankers, and lawyers to close. Unfortunately, many of these transactions never reach that stage. In an effort to understand these multifaceted deals, Adrian Szycowski analyzes one of the many factors in a M&A deal. Using state statutes, case opinions, law journal articles, law firm client alerts, and other sources, Szycowski examines the interplay of jurisdictional default rules with common contract provisions found in every M&A deal. After setting a brief foundation of mergers and acquisitions, Szycowski reviews how Delaware, New York, and California approach and treat sandbagging, waiver of jury trial, and non-compete provisions. He also puts forward several alternative theories to help explain the discrepancy in the approaches of the aforementioned jurisdictions. Ultimately, Szycowski finds that Delaware and New York are generally pro-buyer jurisdictions while California is pro-seller/pro-worker.