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Delaware Declares That Deliberate Fraud Is Indeed Something Completely Different Than Reckless Fraud

Glenn D. West — Tue, 16 Mar 2021 14:03:37 +0000

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 […]

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The Limits of Liability Limitation Provisions: Nonrecourse Clause, Like Exclusive Remedies Provision, May Be Subject to Delaware Public Policy Exception

Glenn D. West — Mon, 25 Jan 2021 16:36:35 +0000

There are few things more fundamental to the sell-side private equity deal practice than, to the maximum extent possible, (1) establishing a contractual cap on post-closing liability for breaches of reps and warranties made by the target company or the selling stockholders and (2) contractually exonerating/releasing the selling entity’s human agents and nonparty affiliates from […]

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Weil’s Q3 2016 Quarterly Private Equity Update: Preparing for Exits – Key Issues for Sponsors Across the U.S., Europe and Asia

Christopher R. Machera — Wed, 09 Nov 2016 17:56:21 +0000

Weil’s Global Private Equity Update provides updates on current topics and trends in global private equity. This issue provides a comparison of some of the interesting trends and issues related to sponsor exits across the U.S., Europe and Asia. View Weil’s Q3 2016 Global Private Equity Update.

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Club Deals Redux

Christopher R. Machera — Mon, 31 Oct 2016 13:12:03 +0000

On the eve of the financial crisis, private equity sponsors were increasingly participating in club deals. Many mega-deals at that time necessitated equity checks in the billions of dollars, and the only way that most private equity sponsors could write those checks was to team up with other sponsors. The club deal was a hallmark […]

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Exiting Through an IPO: Key Pre-Investment Considerations

Christopher R. Machera — Tue, 26 Jul 2016 18:32:10 +0000

Over the last several years, private equity sponsors have increasingly been looking to the public markets to exit portfolio company investments. Although there is nothing new about sponsors exiting through an initial public offering, stockholders agreements entered into by sponsors at the time of the original investment have not always anticipated properly the various nuances […]

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Private Equity Sellers Must View “Fraud Carve-outs” with a Gimlet-Eye

Glenn D. West — Wed, 16 Mar 2016 13:00:29 +0000

In a March 3, 2016 post to Weil’s Private Equity Insights blog, it was suggested that the means of eliminating the specter of extra-contractual fraud claims is similar to the purported means of neutralizing a fictional zombie; both require a specialized weapon, skillfully wielded to deliver a decisive blow to exactly the right spot. If […]

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Exclusive Remedy Provisions, Fraud Carve-outs, and Personal Liability for Sell-Side Private Equity Professionals

Glenn D. West — Tue, 01 Dec 2015 22:32:46 +0000

A recent Delaware Court of Chancery decision involving the sale of a business by one private equity firm to another, Prairie Capital III, LP v. Double E Holding Corp., provides another opportunity to remind private equity sellers of the potential for dissatisfied buyers to use fraud claims (even if unfounded) to attempt to gut the […]

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R&W Insurance, Part II: Pros and Cons for Sellers

Private Equity Alert — Thu, 28 May 2015 15:15:59 +0000

The key advantage of R&W insurance to sellers is limiting (or eliminating) their post-closing liability for breaches of reps and warranties made in the acquisition agreement.

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