The Harvard Law School Forum on Corporate Governance https://corpgov.law.harvard.edu The leading online blog in the fields of corporate governance and financial regulation. Wed, 13 May 2026 20:44:43 +0000 en-US hourly 1 https://wordpress.org/?v=6.5.8 https://corpgov.law.harvard.edu/wp-content/uploads/2024/02/cropped-photography-4-e1706898544564-1-32x32.png The Art of Indemnifying Attorneys’ Fees for M&A Disputes – The Harvard Law School Forum on Corporate Governance https://corpgov.law.harvard.edu 32 32 The Art of Indemnifying Attorneys’ Fees for M&A Disputes https://corpgov.law.harvard.edu/2026/02/15/the-art-of-indemnifying-attorneys-fees-for-ma-disputes/?utm_source=rss&utm_medium=rss&utm_campaign=the-art-of-indemnifying-attorneys-fees-for-ma-disputes https://corpgov.law.harvard.edu/2026/02/15/the-art-of-indemnifying-attorneys-fees-for-ma-disputes/#respond Sun, 15 Feb 2026 12:30:03 +0000 https://corpgov.law.harvard.edu/?p=179193?d=20260213165750EST Posted by Frank Favia, Jonathan Dhanawade, and Andrew Stanger, Mayer Brown, on Sunday, February 15, 2026
Editor's Note:

Frank Favia and Jonathan Dhanawade are Partners, and Andrew Stanger is Knowledge Counsel at Mayer Brown. This post is based on their Mayer Brown memorandum, and is part of the Delaware law series; links to other posts in the series are available here.

Buyers in M&A transactions often assume that they will be able to recover reasonable attorneys’ fees in connection with a successful indemnification claim if the purchase agreement generally includes attorneys’ fees in the definition of indemnifiable losses. However, buyers may be surprised to learn that Delaware law presumes that attorneys’ fees incurred by a buyer in pursuing an indemnification claim against a seller (often referred to as a “first-party” claim) are not recoverable unless the purchase agreement includes a “clear and unequivocal articulation” of the parties’ intent to require fee shifting.

This Legal Update examines two recent Delaware opinions that illustrate this legal principle. It also discusses drafting nuances for parties that wish to include attorneys’ fees for first-party claims among indemnifiable losses.

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