ANALYSIS: In M&A Deals the Pandemic Is the New ‘Ordinary Course’

The pandemic is the new normal in M&A contract drafting. Five months in, references to Covid-19 are being woven into covenants regarding the “ordinary course of business.” Other pandemic-related drafting trends include the continued presence of MAE carve-outs and other backward- and forward-looking provisions such as representations and warranties and post-closing covenants that are qualified by references to the pandemic.

These provisions show that businesses involved in deals have now established pandemic operating standards and expect to face pandemic-related challenges well after their deals close.

Pandemic Business Is Ordinary Business

Based on Bloomberg Law’s transactional precedent database, which contains ...