January 10, 2020 Introduction Acquisition documents often have a forum selection clause. And like any provision ambiguity can invite a dispute if litigation breaks out after the closing. The deal The seller was a manufacturing company located in Butler County,…
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Fraud Carve-Out in APA’s Exclusive Remedy Provision Saves Buyer’s Employee Non-Solicitation Claim
Introduction Most acquisition agreements provide that the agreement’s indemnification provisions are the exclusive remedy for a contractual breach. However, it is also common to exclude fraud claims from this excusive remedy provision. The deal This deal involved the acquisition of…
9th Circuit Holds APA’s Delaware Forum Selection Clause Contravened Strong Idaho Public Policy
Introduction Many buyers and sellers in M&A transactions like Delaware courts to handle their disputes because of the reputation for competence. Thus, it is common to see a Delaware forum selection clause in M&A agreements. Some parties to a deal…
Bootstrapping Doctrine No Bar to Business Buyer’s Fraud Claim
Introduction A buyer of a closely held business often has limited recourse against a seller if the deal turns out bad. Even if fraud is involved, the buyer must run the gauntlet of indemnification cap, survival period, exclusive remedy, non-reliance,…
Posted in bootstrapping doctrine, exclusive remedy, fraud carveout, fraud in business sale, non-reliance clause Tagged with: bootstrapping doctrine
Franchisee’s Fight with Franchisor Costs It a Sale of its Franchise
Introduction This is a story of a broken deal: a sale of a restaurant franchise that did not happen because of a dispute with the franchisor. The deal The case here involved a franchise for seven Tim Hortons restaurants located…
Business Seller Can’t Break Delaware Forum Selection Clause
Introduction This case demonstrates how hard it is for a party to an M&A agreement to get out of the forum selection clause. The deal The buyer was a Georgia based Delaware company providing nationwide accounts receivable and revenue cycle…
Posted in forum selection clause Tagged with: connections to forum, enforcing forum selection clause, public policy interest of forum state
APA Integration Provision and Exclusive Remedy Clause Bars Seller Claim
Introduction A seller of a mortgage service business could not sue its asset buyer in tort for negligent misrepresentation. The deal The seller was a Denver based company that was formed after the 2008 financial crisis to assess and verify…
Posted in earn out, economic loss doctrine, exclusive remedy, integration clause Tagged with: asset purchase agreement, entire agreement, promise not representation
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