More “positive” news for K&E, this time from the New York Times:
https://www.nytimes.com/2020/04/29/business/victorias-secret-sycamore-coronavirus.html
April 29, 2020
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The Victoria’s Secret Contract That Anticipated a Pandemic
“But Sycamore faces unusually daunting odds, thanks to clever drafting by L Brands’ lawyers at Davis Polk & Wardwell. In the acquisition agreement, the lawyers carved out specific exceptions to those acts of God, including a pandemic. That meant that even if a pandemic struck, Sycamore would be legally obligated to complete the deal.
[…]
By all accounts, the L Brands-Sycamore contract was the product of hard-fought negotiations, but there’s no evidence that Sycamore’s lawyers at Kirkland & Ellis pushed back against the pandemic language. Should they have?
[…]
“It’s hard for Sycamore to argue they should be excused from the deal,” said Gail Weinstein, a partner at Fried Frank who has written about “material adverse event” clauses in contracts. “The pandemic was at the forefront of everyone’s minds. Even before that, it was public knowledge that a pandemic was likely to happen sometime.”
[…]
“Mr. Elson noted, “I’d say Davis Polk really earned its fee.””
[…]
“A spokesman for Kirkland & Ellis declined to comment, as did a spokeswoman for L Brands.”
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COMMENT:
Kirkland sure knew the pandemic was on its way given the fast pace at which it started to fire people.