United States: Significant 2021 Decisions Affecting Private Company M&A

Express Scripts, Inc. v. Bracket Holdings Corp., 248 A.3d 824 (Del. Feb. 23, 2021)

Summary

Delaware Supreme Court held that Abry’s prohibition on sellers from excluding seller liability for fraud under the acquisition agreement only applies to intentional fraud; under Delaware law, fraud based on recklessness can be excluded. Background Express Scripts involved an appeal from an $82.1 million jury award to an affiliate of a private equity fund (buyer) against sellers of businesses acquired by buyer for fraudulently inflating revenue and working capital of one of the acquired businesses. The fraud claim was based on […]

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