Delaware Supreme Court held that Abry's prohibition on sellers from excluding seller liability for fraud under the acquisition agreement only applies to intentional fraud.
The courts issued a historic volume of opinions, orders, and transcript decisions that provide valuable guidance regarding issues highlighted in this GT Update, including potential liability of board advisors, officers, and buyers in M&A.
The courts issued a historic volume of opinions, orders, and transcript decisions that provide valuable guidance regarding issues highlighted in this GT Update, including potential liability of board advisors, officers, and buyers in M&A.
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By now we should all be well-schooled in the various types and sources of fraud claims, as well as the dangers of undefined fraud carve-outs to the sell-side in an M&A transaction governed by Delaware law. But a recent decision by the Delaware Supreme Court,
Express Scripts, Inc. v. Bracket Holdings Corp., 2021 WL 752744 (Del. Feb. 23, 2021), provides an opportunity to reaffirm that prior schooling and ensure, for the sell-side, that fraud carve-outs only encompass deliberate lying by the seller itself respecting the negotiated contractual representations set forth in the written acquisition agreement.
The Delaware Supreme Court, sitting en banc, unanimously held that a trial court committed reversible error by instructing a jury that a seller of a business could be liable for fraud through.