March 5, 2019

M&A Negotiation: Is There A First Drafter Advantage?

Lawyers love to control the pen – and we all think that being in charge of drafting a deal’s documentation will provide our clients with an advantage over the other side in deal negotiations.  But is that really true?  Over on his website, UCLA’s Stephen Bainbridge recently flagged a new study that sheds some light on this topic.  Here’s the abstract:

Does the party that provides the first draft of a merger agreement get better terms as a result? There is considerable lore among transactional lawyers on this question, yet it has never been examined empirically. In this Article, we develop a novel dataset of drafting practices in large M&A transactions involving U.S. public-company targets. We find, first, that acquirers and sellers prepare the first draft of the merger agreement with roughly equal frequency, contrary to the conventional wisdom that acquirers virtually always draft first.

Second, we find that there is little or no advantage to providing the first draft with respect to the most monetizable merger agreement terms, such as merger breakup fees. Third, and notwithstanding, we do find an association between drafting first and a more favorable outcome for terms that are harder to monetize, more complex, and that tend to be negotiated exclusively by counsel, such as the material adverse change (MAC) clause. These findings are consistent with the view that the negotiation process generates frictions and agency costs, which can affect the final deal terms and result in a limited first-drafter advantage.

The article is 84 pages long. If you don’t feel you can muscle through that but still want some more details on the study, the authors recently summarized their article over on the HLS Governance Blog.

John Jenkins