Verisk Analytics v. AccuLynx: Sorry, you actually DO have to comply with that Second Request

On August 7, 2026, the Delaware Court of Chancery (the Court) ordered Verisk Analytics, Inc., to continue pursuing Federal Trade Commission (FTC) clearance of its $2.35 billion acquisition of AccuLynx.com even though Verisk had purported to terminate the deal seven months earlier. In determining that Verisk’s termination was invalid and ordering specific performance of the merger agreement’s regulatory efforts clause, the Court has effectively consigned Verisk to compliance with a full-blown Second Request, a process that typically costs tens of millions of dollars and takes many months to complete. 

Verisk, a data analytics and technology provider to the insurance industry, reached an agreement on July 29, 2025, to acquire AccuLynx, a provider of business management software for roofing contractors, for $2.35 billion. At approximately the same time, Verisk was negotiating with a competitor of AccuLynx, ServiceTitan, to provide an integration with Verisk’s software. Six days after the merger agreement with AccuLynx was signed, a Verisk representative emailed his counterpart at ServiceTitan indicating that Verisk was ceasing negotiations, expressly attributing this change in direction to the recently announced AccuLynx deal. 

Notably, there was no “hell or high water” language in the regulatory efforts clause; the merger agreement required only “commercially reasonable efforts” to obtain FTC clearance. The parties filed Hart-Scott-Rodino (HSR), anticipating a routine 30-day review, but the FTC learned of the aborted negotiations from ServiceTitan, prompting a more in-depth investigation. The FTC repeatedly asked Verisk about how the transaction with AccuLynx would impact its future incentives to integrate its software with competitors of AccuLynx, as well as its recent history of terminating any such integration negotiations. Verisk’s outside antitrust counsel was unaware of the failed process with ServiceTitan until shortly before the FTC indicated it would be issuing a Second Request. 

Verisk made an initial attempt to resolve the FTC’s concerns via a limited response to the Second Request. After the FTC conveyed that it would require full compliance, however, Verisk informed AccuLynx that it was terminating the deal. Verisk sought a declaratory judgment from the Court of Chancery that its termination was valid; AccuLynx counterclaimed for specific performance.

“Willful conduct” doesn’t have to be aimed at tanking a deal

The Court’s decision that the termination was invalid turned on the merger agreement’s termination provision, which prohibited a party from terminating if its own “willful conduct” was the “primary cause” of the failure of a closing condition, in this case obtaining the FTC’s clearance of the transaction. Even though it did not find that Verisk intentionally upended the HSR review process, the Court  concluded that Verisk’s email terminating the negotiations with ServiceTitan was both willful and the primary cause of the issuance of the Second Request. According to the Court, “willful conduct” required only that an act be voluntary and intentional, not wrongful or malicious.

The first court order compelling Second Request compliance?

As far as we are aware, Verisk v. AccuLynx is the first decision in which a court has ordered specific performance requiring a buyer to use commercially reasonable efforts to obtain HSR clearance when doing so almost inevitably means complying with a Second Request. While Verisk has already provided some responses to the Second Request and may still be able to negotiate further modifications to its scope, full compliance typically involves document productions from several dozen custodians, extensive data productions from internal CRMs and other databases, and detailed interrogatory responses. Under normal circumstances, when a merger agreement only requires commercially reasonable efforts (versus containing a “hell or high water” provision), a party can decide that the FTC’s demand for full compliance is unreasonable and abandon the deal. Thanks to the Court, that option is no longer available to Verisk. Unless Verisk can provide a quick remedy offer that satisfies the FTC, it has no choice but to expend millions more dollars and many more months of effort. 

Commercially reasonable efforts ≠ obligatory Second Request compliance 

It is important to note that the Court did not hold that a “commercially reasonable efforts” covenant, standing alone, obligates a buyer to comply with a Second Request. In fact, the Court went out of its way to acknowledge that Verisk had undertaken extensive efforts to engage with the FTC’s concerns up to the point of deciding to terminate. The critical hook here was the termination provision’s “willful conduct” as “primary cause” language. 

Key takeaways

1. For the business: If you are engaged in active negotiations with competitors of an acquisition target, you should coordinate with antitrust counsel before deciding to terminate, pause, or materially alter those negotiations. What feels like a routine business decision can inadvertently create fodder for antitrust agencies reviewing the transaction, prompting more extensive investigations and delaying closing. 
    
2. For M&A counsel: “Willful conduct” is not the same as “willful breach.” As used in this termination provision, it required only that the act be voluntary — not that it be wrongful or in bad faith. Coupled with a “primary cause” standard (rather than “but for” causation), this creates a relatively low bar for challenging a buyer’s decision to terminate. Buyer’s counsel should negotiate for “but for” causation language, which would require the seller to show that the buyer’s conduct was the sole reason the closing condition failed. Seller’s counsel, conversely, should seek “primary cause” or even “contributing cause” language to preserve maximum leverage. In either case, both sides should think carefully about whether “willful conduct” is the right framing, or whether “willful breach” — which connotes intentional violation of a contractual obligation — better reflects the parties’ intent.
    
3. For antitrust counsel: Verisk presents a cautionary tale about the information gap between client and counsel. The FTC repeatedly asked Verisk if it had terminated discussions with any AccuLynx competitor; outside counsel, unaware of the ServiceTitan situation, repeatedly said no. Merging parties can be unfamiliar with or even exasperated by the antitrust process, such that they do not connect the dots between agency questions and their day-to-day operations; it is incumbent upon antitrust counsel to ask the right questions to ensure that they understand the full picture when engaging with competition authorities.