Daniel Ilan is a partner at Cleary Gottlieb Steen & Hamilton LLP. This post is based on a Cleary Gottlieb publication by Mr. Ilan, Jane Rosen, Emmanuel Ronco, and Natascha Gerlach. This post relates to a recent Cleary Gottlieb publication, Privacy in M&A Transactions: Pre Closing Liabilities, available on the Forum on here.
One aspect of mergers and acquisitions that is receiving growing attention is the relevance of privacy issues [1] under U.S. and European Union (“EU”) laws as well as the laws of a growing number of other jurisdictions. [2] This two-part blog post discusses the principal M&A-related privacy risks and highlights certain “traps” that are often overlooked. In Part 1, we discussed risks associated with a target’s pre-closing privacy-related liabilities and considered ways to mitigate these risks through adequate diligence and privacy-related representations in M&A agreements. In this Part 2, we discuss the risks associated with transferring or disclosing personally-identifiable information (“personal data”) of an M&A target (or a seller) to a purchaser (or prospective purchaser) and those associated with the purchaser’s post-acquisition use of such personal data.