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“Sandbagging” refers to when a buyer makes a post-closing indemnification claim for breaches or inaccuracies of the seller's representations, warranties, or other obligations, even though the buyer knew of the breach prior to closing. Parties can choose to explicitly include a “pro-sandbagging” or “anti-sandbagging” provision, or, as a middle ground, remain silent on sandbagging in the transaction documents.
In a survey of 162 private target transactions filed between January 1, 2023 and March 31, 2023:
This indicates a trend toward silence in definitive agreements, with a 6% decrease in pro-sandbagging provisions, 2% decrease in anti-sandbagging provisions, and an 8% increase in silent agreements in comparison to the same period in 2022.
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