Mar. 10, 2017
Just say no
Protecting buyers from unintended consequences of reliance disclaimers in M&A transactions.
Timothy A. Miller
Valle Makoff LLPPhone: 650-966-5113
Email: tmiller@vallemakoff.com
Timothy A. Miller founded the Silicon Valley office of Valle Makoff LLP after 14 years as a litigation partner at Skadden, Arps, Slate, Meagher & Flom LLP. Mr. Miller is licensed in California and routinely advises buyers and sellers regarding the drafting and litigation of provisions related to post-closing disputes in M&A transactions, including contract claims for indemnification or extra-contractual claims for fraud. His practice is focused on commercial, fiduciary and securities litigation, claims of trade secret misappropriation, unfair and anti-competitive business practices and business and investment fraud
Reliance disclaimers in M&A agreements generally provide that the parties relied solely upon the representations expressly stated in the agreement. Delaware and New York courts enforce these disclaimers to avoid a perceived "double fraud": the alleged extra-contractual fraud of the seller and the fraud of the buyer in falsely representing in the acquisition agreement that it did not rely on extra-contractual representations.
Buyers increasingly demand fraud carve-outs, which general...
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