My New Article “Merger Agreements Are Poorly Drafted,” in Corporate Counsel Now

Remember the ACC Docket, published by the Association of Corporate Counsel? Well, it has morphed into Corporate Counsel Now. They’ve just published my article Merger Agreements Are Poorly Drafted. It’s here.

The spicy thing about this article is that it’s not just an article. Instead, it’s also a portal to my analysis of the merger agreement providing for Union Pacific’s acquisition of Norfolk Southern, one of the biggest deals of 2025. The article serves as an introduction to that analysis. The article describes the source of the shortcomings on display in the merger agreement and how to fix them. It then summarizes the nature of the shortcomings.

I’ve done this sort of critique sporadically over the years, but the Norfolk Southern analysis and the related article represent my most ambitious project of that sort, in three respects:

• By making it easier for readers to connect my comments to the related contract text, the annotated extracts make my analysis more accessible. That in turn has allowed me to add more comments, with more detail, than otherwise would have been the case.
• Given the magnitude of the Norfolk Southern deal and given the law firm that did the drafting, my analysis might get more attention than if I had critiqued, again, some big-company commercial contract.
• Because the article is being published by one of the big legal trade groups, instead of on my blog, it will reach more readers.

Here’s what sticks in my mind about my analysis: Regarding clarity and layout, the sheer mass of comments. Regarding my redraft of a subsection, how different it is from the original, while saying the same thing. Regarding structure, the fundamental omissions and misconceptions on display in the bringdown condition. And regarding boilerplate, my markup of the section addressing governing law and jurisdiction.

I’d be pleased to hear what you all think.