Discover how a hidden “goods in transit” accounting error triggered a post-closing fraud lawsuit for a lower middle market seller in the FeraDyne Outdoors v. Reaser case. This post analyzes the dangers of relying on informal email assurances and historical…
Monthly Archives: November 2025
The “Freight-In” Blind Spot: You Can’t Fix What You Don’t Diagnose
Posted in Problems with financials Tagged with: accounting dispute resolution, accrued expenses, asset purchase agreement, Breach of contract, Business Valuation, Delaware Superior Court, distribution business sale, EBITDA definition, entire agreement clause, FeraDyne Outdoors v. Reaser, freight-in costs, GAAP compliance in M&A, goods in transit accounting, integration clause, inventory liability, legal risk management tool, lower middle market M&A, M&A Due Diligence, M&A fraud allegations, manufacturing M&A, post-closing litigation, pre-closing risk management, private equity buyer, purchase price dispute, quality of earnings, seller representation, specific accounting principles, targeted financial review, unrecorded liabilities, working capital adjustment
The “Reply All” Trap: How a Simple Email Habit Can Destroy Your Confidentiality
Discover how a simple email habit—copying your investment banker or accountant on legal correspondence—can unintentionally destroy attorney-client privilege in lower middle market M&A transactions. This post analyzes the 2025 ruling in GMO Gamecenter USA, Inc. v. Whinstone US, Corp. to…
Posted in attorney client privilege, Kovel doctrine - translator exception Tagged with: attorney work product, business email protocols, communication protocols, deal confidentiality, deal team communications, GMO Gamecenter USA Inc. v. Whinstone US Corp., investment banker confidentiality, Kovel doctrine, Kovel letter, legal discovery in M&A, lower middle market M&A, M&A attorney-client privilege, M&A due diligence mistakes, Mergers and Acquisitions, pre-closing risk management, private company sales, privileged communications, protecting deal strategy, SDNY 2025, seller advisors, seller legal risks, Southern District of New York cases, third-party waiver, translator exception, waiver of privilege
The “Family Circle” Trap: Why Copying Your Children on Deal Emails Can Destroy Attorney-Client Privilege
Explore critical legal insights for lower middle market business sellers regarding the preservation of attorney-client privilege during M&A transactions. This content examines the specific legal risks of including non-essential family members, board observers, and junior management on sensitive deal communications,…
Posted in attorney client privilege, Privilege Access Protocol Tagged with: attorney-client privilege waiver, avoiding M&A mistakes, board observer privilege risks, corporate privilege, discovery risks in M&A, family business M&A, legal risk management tools, lower middle market business sale, M&A attorney-client privilege, M&A deal team protocol, M&A discovery disputes, need to know standard, New York M&A law, pre-closing risk management, private equity diligence, privilege access protocol, protecting deal strategy, protecting negotiation strategy, seller counsel best practices, seller legal advice, selling a private company, sensitive deal communications, US Bank v. DISH DBS Corporation, waiver of privilege by third party
When M&A Disputes Go Public: The Lesson of Broad Delaware Choice-of-Law Clauses
Avoid costly post-closing legal battles! This post breaks down the pivotal Delaware Court of Chancery ruling, Cytotheryx, which confirmed that a broadly worded Delaware choice-of-law clause in a merger agreement applies not just to contract disputes, but also to related…
Posted in boilerplate provisions, choice of law provision, scope Tagged with: APA, asset purchase agreement, Choice of Law Clause, contract drafting, Contractarian Law, Cytotheryx v. Castle Creek, Deal Counsel, Defamation, Delaware Choice-of-Law, Delaware Court of Chancery, fraud claims, Governing Law Provision, Innocent Construction Rule, litigation risk, lower middle market, M&A, M&A legal, M&A Risk Management, merger agreement, Mergers and Acquisitions, Misrepresentation, Post-Closing Dispute, Predictability in M&A, Private Equity, private target, seller side M&A, SPA, stock purchase agreement, Strategic buyer, tort claims
When an Integration Clause Alone Can Block an M&A Extracontractual Fraud Claim
Explore the powerful, yet specific, defense offered by an Integration Clause in M&A disputes. This analysis of a recent Delaware Court of Chancery decision, Park7 Student Housing v. PR III, shows how a clear Integration Clause can protect lower middle…
Posted in anti-reliance clause, extra-contractual fraud, fraud in business sale, integration clause Tagged with: Acquisition Agreement, anti-reliance clause, asset purchase agreement, closing conditions, contract defenses, contractual language, deal protection, Delaware Court of Chancery, equity purchase agreement, extracontractual fraud, Fraudulent inducement, integration clause, legal risk management, LLC equity acquisition, lower middle market M&A, M&A contracts, M&A litigation, membership interest purchase agreement, Park7 Student Housing, private target acquisition, seller side risk management, stock purchase agreement, unit purchase agreement
M&A Delaware Forum Clause Enforced Against California Public Policy Challenge
Protect your M&A deal from forum shopping. This legal analysis of Anzu Partners v. OmegaX shows how lower middle market sellers can use a Delaware exclusive forum clause to defeat post-closing litigation filed in California, even when the buyer claims…
Posted in against public policy, boilerplate provisions, choice of law provision, forum selection clause, problems with forum selection clauses Tagged with: acquisition agreement boilerplate, Anzu Partners v. OmegaX, California Blue Sky Law, California public policy, Choice of law, Delaware Court of Chancery, Delaware forum selection clause, exclusive jurisdiction, jurisdictional 'what ifs', jury trial waiver, legal drafting, lower middle market M&A, M&A advisors, M&A Disputes, M&A legal risk management, M&A litigation, merger agreement, New Castle County, pre-closing legal tool, private target acquisition, seller side risk management, statutory claims, stock purchase agreement, tort claims
Buyer Beware: How a Missing Anti-Reliance Clause Can Lead to Six Years of Earnout Litigation
Protect your M&A deal: A missing anti-reliance clause cost a buyer six years of litigation in a Delaware earnout dispute. Learn how lower middle market buyers can use this critical pre-closing legal tool to bar seller’s extracontractual fraud claims and…
Posted in anti-reliance clause, problems with earnouts Tagged with: Acquisition Agreement, anti-reliance clause, asset purchase agreement, business law, buyer protection, Camaisa v. Pharmaceutical Research Associates, cloud technology M&A, Court of Chancery, Delaware law, earnout dispute, earnout negotiation, extracontractual fraud, legal advisors, legal due diligence, lower middle market M&A, M&A legal risk, M&A litigation, merger agreement, pre-closing risk management, private target business, seller representations, stock purchase agreement
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