Great Hill Clauses: Private M&A Meets Solicitor-Client Privilege

Overview and Key Takeaways

Deal terms in private M&A are constantly evolving. An example is the "Great Hill clause", the subject of the recent ruling in Ellis Packaging¹ and one of the new deal points featured in the 2025 ABA Canadian Private Target M&A Deal Point Study (the ABA Study).² Ellis Packaging is now the third Canadian decision on Great Hill clauses, and so is notable for both M&A lawyers and commercial litigators.

The term Great Hill clause, which derives its name from a 2013 Delaware ruling,³ addresses post-closing control over pre-closing privileged communications between the target and legal counsel. Specifically, the clause limits the ability of the buyer, in connection with a post-closing claim, to rely on pre-closing privileged communications between the target and legal counsel.