Representations and Warranties

News & Analysis as of

What’s Happening in Delaware M&A – Summer 2016

This update provides a summary of recent Delaware caselaw and statutory developments concerning mergers and acquisitions, including new cases regarding appraisal rights, fraud claims and fiduciary duty and deal process...more

New York Appellate Court Reverse Lower Court, Allows RMBS Action to Proceed Against Morgan Stanley

On August 11, 2016, the First Department of the Appellate Division of the Supreme Court of the State of New York reversed the lower court, allowing RMBS Trustee U.S. Bank to proceed with claims against Morgan Stanley in...more

New York Intermediate Appellate Court Holds that Accrual Provision Does Not Save RMBS Trustee’s Time-Barred Putback Claim

On August 11, 2016, the First Department of the Appellate Division of the Supreme Court of the State of New York affirmed dismissal of an action brought by Deutsche Bank National Trust Company, as RMBS Trustee, against...more

Lessons from LinkedIn: Privacy and Data Security Representations in the M&A Context

Microsoft’s blockbuster acquisition of LinkedIn earlier this month—a deal where concerns for privacy and data security loomed large—provides a glimpse into the growing trend of including separate privacy and data security...more

The Ropes Recap: Mergers & Acquisition Law News - First Quarter 2016

NEWS FROM THE COURTS - Court of Chancery Applies Entire Fairness Standard to Commercial Arrangement with Controlling Stockholder - In a recent opinion, Vice Chancellor Laster of the Delaware Court of Chancery held...more

By the Way, What About the Post-Closing Credit Enhancement?

As counsel to seller, you have finally resolved the final language for the representations and warranties made by the seller in a purchase and sale agreement (“PSA”) for a significant commercial real estate asset. You have...more

Private equity in Italy: market and regulatory overview

How do private equity funds typically obtain their funding? Private equity funds continued to have a diverse investor base in 2015. Although with a significant decrease from the 2014 figure of 68%, about 48% of the...more

Do Kanye’s Words Speak Louder than Tidal’s TOS?

A Chicago law firm has challenged Jay-Z and Kanye West, filing a class action complaint for violations of the California Business & Professions Code, fraudulent inducement and unjust enrichment in the Northern District of...more

New York Supreme Court Dismisses ACE Action Re-Asserting Repurchase Claims against DB Structured Products

On March 29, 2016, Justice Marcy Friedman of the New York Supreme Court rejected the trustee’s attempt to renew previously dismissed claims in ACE Securities v. DB Structured Products, Inc. As we previously reported, the...more

Florida Court Says it’s Not Fraud When Misrepresentations are Made During Settlement Negotiations

When settling a case, litigators are naturally focused on avoiding “Round 2” of the litigation for their clients. Toward this goal, lawyers avoid drafting settlement agreements that include any sort of representations or...more

To PPM or not to PPM that is the Question for many Start-Ups

Many start-up companies know they want to raise angel capital, but do not know how to proceed. They really want to know: “do I need a 50 page Private Placement Memorandum to raise money?” The answer is: “It depends, but...more

Court Of Chancery Explains Advancement Rights Of Seller Representative

This is an interesting advancement case as it applies the usual test of whether the former directors have been sued “by reason of the fact” they were directors in the context of suit against former owners’ representative for...more

March 2016 Securities & Structured Finance Litigation Update

Quinn Emanuel Obtains Significant RMBS Sampling Ruling. Quinn Emanuel recently won a significant ruling permitting the use of statistical sampling to prove liability and damages on loan repurchase claims brought by the...more

Taxing The Deal: State And Local Tax Issues In Telecom M&A Transactions

The acquisition of a telecommunications service provider or a cloud-based service provider raises unique state and local tax issues that do not arise in connection with the acquisition of other businesses. Telecom and...more

Protection for statements made outside the four corners of an agreement

A lot gets said by a lot of different people when selling a business. This is largely unavoidable in a full, negotiated sales process, as owners, management, investment bankers, employees, accountants, lawyers and others all...more

Cyber Risks and Insurance in the Marine Industry

The first wireless radio equipment was used aboard Lightship 70 in 1899. Over the next 115 years, the use of technology in the maritime domain has driven rapid change in the United States Coast Guard’s operating environment —...more

Delaware Law Updates - FdG Logistics LLC v. A&R Logistics Holdings, Inc., C.A. No. 9706-CB (Del. Ch. Feb. 23, 2016)

Anti-reliance disclaimer by buyer in M&A transaction: Delaware law enforces clauses which identify the specific information on which a party has relied and foreclose reliance on other information - Upon the consummation...more

Drafting Matters: Non-Reliance Provisions Barring Extra-Contractual Fraud Claims Effective in Delaware Only if Drafted as a Clear...

It is not unexpected for there to be requirements in consumer contracts that clear formulations of waivers are necessary before a consumer can be deprived of rights. However, under Delaware law similar formality and clarity...more

Anti-Reliance Disclaimers in Delaware – Why Skillful Drafting Matters

In FdG, the Delaware Court of Chancery held that a Buyer’s fraud claim based on extra-contractual representations will not be barred unless the anti-reliance disclaimer is drafted as an unambiguous affirmative expression by...more

Using representations and warranties insurance in global M&A deals: 8 questions and answers

Negotiation over representations and warranties (R&W) and related indemnification provisions has always been particularly burdensome in M&A transactions, since buyers and sellers have naturally opposite incentives. Sellers...more

Survival Periods Versus Limitation Periods: Which Prevails? NOV Enerflow ULC v Enerflow Industries Inc.

The recent Court of Queen's Bench of Alberta decision in NOV Enerflow ULC v Enerflow Industries Inc. (the NOV Decision) considered survival periods of representations and warranties in commercial contracts and the interplay...more

Structured Thoughts: News for the financial services community, Volume 7, Issue 2

Is There a Standard Form of Rule 144A Representation Letter? - My file of Rule 144A representation letters has been growing fatter, and I‘m not sure why. I would have hoped that by now there would be just one great...more

The Shale Play Today: First Quarter 2016

The Best Protection - Safeguards in Purchasing Distressed Oil and Gas Assets - In the current environment of depressed prices for oil, natural gas and related liquids, oil and gas wells, leases and properties are coming...more

Fannie And Freddie – Newly Implemented Independent Dispute Resolution

On February 2, 2016, Freddie Mac and Fannie Mae took another step towards helping sellers of loans manage risk more effectively, and in turn, strengthen the home lending system. Through concurrently released...more

The Best of Intentions: Letters of Intent in the Sale of a Business

The sale of a business often takes several months and generates huge amounts of paperwork. The process culminates in a purchase agreement typically exceeding fifty single-spaced pages full of dense wording....more

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