News & Analysis as of

Breach of Contract › Sandbagging › Representations and Warranties

Morris James LLP

Court of Chancery Endorses Default Pro-Sandbagging Stance in Representation and Warranty Litigation

Morris James LLP on

In the M&A context, the term “sandbagging” refers to one party asserting a claim based on a representation made in connection with the transaction despite knowing or having had reason to know pre-closing that the...more

Whiteford

Indemnity Clauses, Claims & Controversies

Whiteford on

Indemnification is a key component in virtually every M&A deal, serving as a detailed and nuanced contractual risk allocation device between the Buyer and Seller. Though drafted in a two-way fashion, indemnity operates in the...more

Robson & Robson, P.C.

Sellers Beware: Sandbaggers Welcomed In Pennsylvania & Delaware

Robson & Robson, P.C. on

Image a home buyer finally finds their dream house. There’s just one problem. During their home inspection, they discover the foundation is cracked. But they buy the house anyway, fully aware of the issues with the...more

Gray Reed

Delaware: A Confirmed Pro-Sandbagging Jurisdiction

Gray Reed on

In an opinion of significance to M&A Practitioners, the Delaware Court of Chancery recently made it clear that Delaware law allows a buyer in an acquisition to “sandbag” a seller if the acquisition agreement allows for...more

McGuireWoods LLP

Chancery Court Affirms Delaware’s Status as “Pro-Sandbagging” Jurisdiction

McGuireWoods LLP on

In a March 9, 2022, opinion, the Delaware Chancery Court examined a seller’s argument that the buyer in an asset purchase agreement was prohibited from asserting claims for contractual breach of representations in the...more

Jones Day

Delaware Court Holds That Delaware "Should Be a Pro-Sandbagging Jurisdiction"

Jones Day on

On March 9, 2022, the Delaware Court of Chancery issued a post-trial decision in Arwood v. AW Site Services, LLC, subsequently amended on March 24, 2022. The plaintiff, John Arwood, had spent decades building a waste...more

Bilzin Sumberg

Delaware Court Upholds “Sandbagging,” But Policy Concerns Linger

Bilzin Sumberg on

It’s a situation that, at least theoretically, could happen many times every business day, all across the country, given how often businesses choose to have Delaware law apply to their contracts. A party (the seller or...more

Goodwin

Delaware Law Allows Buyers to “Sandbag” Sellers

Goodwin on

A recent decision out of the Delaware Court of Chancery in John D. Arwood et al. v. AW Site Services, LLC, sheds significant light on whether a party to a contract governed by Delaware law may “sandbag” its counter party: as...more

Goulston & Storrs PC

The Sandbagging Conundrum Explained

Goulston & Storrs PC on

There is perhaps no more consistently vexing problem for transactional attorneys on opposite sides than figuring out a fair contractual resolution for “sandbagging” issues....more

Fenwick & West LLP

Akorn v. Fresenius: Important Practical Lessons from First-Ever Material Adverse Effect

Fenwick & West LLP on

On October 1, in Akorn v. Fresenius Kabi, the Delaware Court of Chancery for the first time found that a material adverse effect — or MAE — had occurred in a merger transaction, which, combined with other breaches of the...more

Miles & Stockbridge P.C.

Merger and Purchase Agreements Governed by Maryland Law: "Sandbagging"

Miles & Stockbridge P.C. on

Merger and purchase agreements involving Maryland corporations and REITs may be governed by Maryland law. For lawyers accustomed to agreements governed by Delaware or New York law, we are frequently asked to describe key...more

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