Facilitator Guide

Sandbagging

Facilitator Guide

Sandbagging

Topic: M&A Provisions
Duration: 1 hr
Format: Remote or in person

What’s covered

Pro- and anti-sandbagging provisions
Enforcement by the courts
Pro- and anti-sandbagging jurisdictions
Buyer and seller perspectives
Sample provisions

Before the session

Prepare the Attendees

Send the attendees an invitation for the session. Include this link, which has the videos and exercise they’ll need to prepare.

https://www.hotshotlegal.com/trainings/sandbagging/attendee

Prepare Yourself

Watch the videos and read the exercise so you’re familiar with the Hotshot material.

Course

Sandbagging

An explanation of sandbagging in private M&A deals, including a discussion on pro and anti-sandbagging provisions and how different courts and jurisdictions handle the issue. Features interviews with ABA M&A Committee members Nate Cartmell from Pillsbury LLP and Lisa Hedrick from Hirschler Fleischer PC.
Course

Sandbagging: Buyer and Seller Perspectives

A discussion on buyer and seller perspectives regarding the issue of sandbagging. Features ABA M&A Committee members Nate Cartmell from Pillsbury LLP and Lisa Hedrick from Hirschler Fleischer PC.
Course

Sandbagging: Sample Provisions

A look at typical sandbagging provisions, including pro-sandbagging and anti-sandbagging provisions. Also includes drafting tips and perspectives from ABA M&A Committee members Nate Cartmell from Pillsbury LLP and Lisa Hedrick from Hirschler Fleischer PC.
Exercise
PDF

During the session

Part 1: Knowledge Check

Ask attendees these questions to ensure they understand the topic:

What is “sandbagging” in the context of an M&A deal?
What’s the purpose of a pro-sandbagging provision? An anti-sandbagging provision?
What explains the difference between pro-sandbagging jurisdictions and anti-sandbagging jurisdictions?
How do buyers and sellers typically view this issue?
How might a buyer respond if a seller pushes back against including a pro-sandbagging provision in an agreement?
Why are so many deals silent on this issue?
What impact, if any, does rep and warranty insurance have on the issue of sandbagging?

Part 2: Group Exercise

Lead a group discussion based on the exercise. To encourage collaboration, divide the attendees into groups to discuss the exercise, then have a representative from each group summarize their views to the larger group. Call on people to share their thoughts and ask others to respond.

Tip for remote sessions: use your web conferencing system’s breakout room feature to divide people into groups.

Part 3: War Stories and Firm Specifics

Share your own experiences and guidance, including:

Anecdotes and war stories (e.g., about a near-disaster or a tough negotiation)
General practice tips (dos and don’ts)
Firm-specific guidance and practices

After the session

To continue their learning, attendees can check out related courses in Hotshot’s M&A Provisions topic.

About Hotshot

Hotshot helps lawyers develop their legal, business, and technology skills through short videos, quizzes, and summaries, and we help law firms and law schools plan and deliver engaging training programs. Our customers include Am Law 200 firms, top law schools, and regional and international firms.