IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
ONLINE HEALTHNOW, INC. and )
BERTELSMANN, INC., )
)
Plaintiffs, )
)
v. ) C.A. No. 2020-0654-JRS
)
CIP OCL INVESTMENTS, LLC, )
CIP CAPITAL FUND, L.P., JUSTIN )
LIPTON, KEVIN FORMICA, PATRICK )
SHEAHAN, and TODD WILSON, )
)
Defendants. )
MEMORANDUM OPINION
Date Submitted: April 15, 2021
Date Decided: August 12, 2021
Philip Trainer, Jr., Esquire and Marie M. Degnan, Esquire of Ashby & Geddes,
Wilmington, Delaware and Andrew Zimmitti, Esquire and Joshua Drian, Esquire of
Manatt, Phelps & Phillips, LLP, Washington, DC, Attorneys for Plaintiffs Online
HealthNow, Inc. and Bertelsmann, Inc.
Rudolf Koch, Esquire, Travis S. Hunter, Esquire and Matthew D. Perri, Esquire of
Richards, Layton & Finger, P.A., Wilmington, Delaware; Jeffrey B. Korn, Esquire
and Vanessa C. Richardson, Esquire of Willkie Farr & Gallagher LLP, New York,
New York; and Alexander L. Cheney, Esquire of Willkie Farr & Gallagher LLP,
San Francisco, California, Attorneys for Defendants CIP OCL Investments, LLC,
CIP Capital Fund, L.P., Justin Lipton, Kevin Formica, Patrick Sheahan and
Todd Wilson.
SLIGHTS, Vice Chancellor
In a scene from the classic film Butch Cassidy and the Sundance Kid, the
scofflaw protagonists are frustrated in their attempts to gain entry into a cash-filled
train car as they attempt to rob it.1 In his frustration, Butch resorts to a heavy dose
of dynamite, apparently too heavy. On detonation, the entire train car, and its
contents, are blown to bits. As the ash from incinerated currency rains down,
Sundance turns to Butch and asks sarcastically, “Think you used enough dynamite
there, Butch?”
The issue addressed in this opinion is whether, in the context of an acquisition
agreement, Delaware courts should enforce broad contractual limitations on the right
of contracting parties to bring post-closing claims that are so potent they effectively
eviscerate all claims, including those that allege the contract itself is an instrument
of fraud. In other words, can parties to a contract, by their agreement, detonate all
bona fide contractual fraud claims (discovered or undiscovered) with the stroke of
their pens at the closing table.2
1
BUTCH CASSIDY AND THE SUNDANCE KID (Campanile Productions, Newman-Forman
Co. 1969).
2
In this opinion, I use the term “contractual fraud” to describe a statement made in the
contract itself that is known by the party or parties making it to be false and on which the
other party to the contract relies to its detriment. See ChyronHego Corp. v. Wright,
2018 WL 3642132, at *1 (Del. Ch. July 31, 2018) (contrasting “extra-contractual fraud”—
claims based on knowingly false representations made outside of the contract—with
“contractual fraud”—claims based on knowingly false representations made in the
contract).
1
Plaintiffs, Online HealthNow, Inc. (“OHN”) and Bertelsmann, Inc.
(“Bertelsmann” or the “Buyer”), bring fraud and related claims against Defendants,
CIP Capital Fund, L.P. (“CIP Capital”), its holding company CIP OCL Investments,
LLC (“CIP OCL” or the “Seller”) and its beneficial owners and agents, arising from
representations and warranties within a Stock Purchase Agreement (“SPA”) that
allegedly were known to be false when made.3 Defendants have moved to dismiss
under Chancery Rule 12(b)(6) on the ground that the SPA itself makes clear that
Plaintiffs agreed the claims they seek to prosecute were eradicated upon closing.
In general terms, a seller can contractually seek to modify its exposure to a
post-closing fraud claim by bargaining for limits on: (1) “what” information the
buyer is relying upon, (2) “when” the buyer may bring a claim, (3) “who” among
the sellers may be held liable and “who” among the buyers may pursue a claim, and
(4) “how much” the buyer may recover if it proves its claim. 4 In his seminal
decision, ABRY Partners V, L.P. v. F & W Acquisition LLC, 5 then-Vice Chancellor
Strine addressed the “What” limit, and held that parties to a contract may
3
D.I. 16 (Pls.’ Am. Verified Compl.) (“Compl.”) Ex. 1 (Stock Purchase Agreement)
(“SPA”).
4
See Fridrikh V. Shrayber & Morgan J. Hanson, Anti-Reliance Clauses and Other
Contractual Fraud Limitations Under Delaware Law, 25 Widener L. Rev. 23, 26–27
(2019) [hereinafter Shrayber & Hansen, Anti-Reliance Clauses] (laying out the “what,”
“when,” “who,” and “how much” framework for contractual limits on contractual fraud).
5
891 A.2d 1032 (Del. Ch. 2006).
2
contractually disclaim reliance on extra-contractual statements whether true or false,
but a seller may not contractually limit its liability for making knowingly false
6
statements within the contract itself. ABRY Partners also addressed the
“How Much” limit, and held that contractual caps for indemnification claims will
not cap the recovery for contractual fraud.7
The parties here agree that ABRY Partners addressed the “What” and
“How Much” limits as just described. They disagree, however, on whether ABRY
Partners delineates the extent to which parties may set “When” and “Who” limits
on the right to prosecute a contractual fraud claim post-closing. While the SPA
contains remarkably robust survival, anti-reliance and non-recourse provisions that
appear to atomize Plaintiffs’ claims across all of the recognized planes of contractual
limitations, invoking ABRY Partners and its progeny, Plaintiffs maintain these
provisions are unenforceable as a matter of Delaware law and public policy.
In Counts I–IV, Plaintiffs seek to hold all Defendants liable for their knowing
participation in making false representations and warranties in the SPA with respect
to OnCourse Learning Corporation’s (“OCL”) “sales and use tax liability” and its
“valid accounts receivable” for the purpose of inducing Plaintiffs to execute
6
Id. at 1062–63.
7
Id. at 1064.
3
the SPA. Count V seeks a declaratory judgment that clarifies the procedure to be
followed in the event the parties dispute post-closing working capital adjustments.
Defendants’ motion to dismiss is straightforward, predicated on the
bargained-for provisions in the SPA that expressly limit the parties against whom
Plaintiffs may assert post-closing claims and the time in which such claims may be
brought. As to Count V, Defendants maintain there is no actual controversy that
would justify declaratory relief because the SPA makes clear that all post-closing
disputes regarding working capital adjustments are to be submitted to a nationally
recognized accounting firm with experience in such matters, as specified in the SPA.
For reasons explained below, Defendants’ motion to dismiss must be denied.
Under Delaware law, a party cannot invoke provisions of a contract it knew to be an
instrument of fraud as a means to avoid a claim grounded in that very same
contractual fraud. Stated more vividly, while contractual limitations on liability are
effective when used in measured doses, the Court cannot sit idly by at the pleading
stage while a party alleged to have lied in a contract uses that same contract to
detonate the counter-party’s contractual fraud claim. That’s too much dynamite.
As for the declaratory judgment count, because the working capital dispute is
entangled with Plaintiffs’ fraud claim, it cannot be said, as a matter of law, that
Plaintiffs must submit their dispute to the accountant now before the fraud claim is
adjudicated. Accordingly, the declaratory judgment claim also survives dismissal.
4
I. BACKGROUND
The facts are drawn from the pleadings, documents incorporated into the
pleadings by reference and matters of which the Court may take judicial notice.8
In all cases where the Court decides a motion to dismiss under Chancery
Rule 12(b)(6), but especially in cases involving allegations of fraud, it is important
to emphasize that in the recitation of facts that follows, as it must, the Court has
accepted all well-pled allegations in the Complaint as true.9
A. Parties
Plaintiff, OHN, is a Florida corporation with its principal place of business in
North Carolina. 10 Plaintiff, Bertelsmann, is a Delaware corporation with its
principal place of business in New York, New York.11
Defendant, CIP OCL, the Seller as identified in the SPA, is a Delaware limited
liability company. 12 Until November 1, 2018, CIP OCL owned all of the issued and
outstanding shares of CIP OCL Holdings, Inc. (“OCL Holdings” or the “Company”),
subsidiaries of which included CIP OCL Acquisition, Inc. (“OCL Acquisition”)
8
Vanderbilt Income & Growth Assocs., L.L.C. v. Arvida/JMB Managers, Inc., 691 A.2d
609, 612–13 (Del. 1996).
9
Id. at 612.
10
Compl. ¶ 14.
11
Compl. ¶ 15.
12
Compl. ¶ 16.
5
and OCL. OCL provides continuing education programs to millions of adult
professionals, mainly in the United States. 13
Defendant, CIP Capital, is a Delaware limited partnership with its principal
place of business in New York, New York. 14 CIP Capital is a private equity fund
that, at all relevant times, directly owned (in part) and controlled CIP OCL.15
Defendant, Justin Lipton, is CIP Capital’s co-managing partner and a former
director of CIP OCL. 16 He represented CIP Capital and was the face of the Seller
during the negotiations of the SPA and eventual sale of OCL Holdings.17 Lipton
signed the SPA and all amendments thereto on behalf of the Seller as its “Authorized
Person.”18
13
Compl. ¶ 24.
14
Compl. ¶ 17.
15
Id.
16
Compl. ¶ 18.
17
Id.
18
Id.
6
Defendant, Kevin Formica, is a Vice President at CIP Capital. 19 He also
represented CIP Capital and was instrumental in the Seller’s efforts leading to the
sale of OCL Holdings. 20
Defendant, Patrick Sheahan, was the sole director of OCL until closing on
November 1, 2018, and was the President and Chief Executive Officer of OCL until
November 15, 2018.21 Sheahan also had an equity interest in the Seller through a
management equity program and thereby benefited directly from the sale of
OCL Holdings to Bertelsmann. 22
Defendant, Todd Wilson, was the Chief Financial Officer of OCL until
November 15, 2018 (together with Lipton, Formica and Sheahan, the “Individual
Defendants”). 23 Wilson also had an equity interest in the Seller through a
management equity program and, therefore, directly benefited from the sale of OCL
to Bertelsmann.24
19
Compl. ¶ 19.
20
Id.
21
Compl. ¶ 20.
22
Id.
23
Compl. ¶ 21.
24
Id.
7
B. CIP Capital Explores a Sale of OCL Holdings and Its Subsidiaries
During the summer of 2018, CIP Capital initiated a process to sell
OCL Holdings, 25 which owned OCL Acquisition and OCL Acquisition’s wholly-
owned subsidiary, OCL. 26 In this regard, CIP Capital retained a financial advising
and consulting firm, Harris Williams & Company (“Harris Williams”) to act as its
advisor, agent and representative in connection with the planned sale. 27 Once
engaged, Harris Williams and CIP Capital formed a “working group” to manage
various aspects of the marketing and sale of OCL Holdings (the “CIP Working
Group”).28 The CIP Working Group was comprised, in part, of representatives from
Harris Williams, CIP Capital (Lipton and Formica) and OCL (Sheahan and
Wilson).29
Suitors interested in acquiring OCL Holdings directed all communications to
Harris Williams, who then relayed those communications to the CIP Working Group
(and, in particular, to the Individual Defendants).30 Questions regarding OCL’s day-
25
Compl. ¶ 33.
26
Compl. ¶ 26.
27
Compl. ¶ 33.
28
Compl. ¶ 34.
29
Id.
30
Compl. ¶ 35.
8
to-day operations or procedures were directed principally to either Sheahan or
Wilson (or another officer or employee of OCL) who would then respond directly
to the inquiry.31
Lipton and Formica instructed the CIP Working Group regarding what
information should populate the separate due diligence data rooms for potential
bidders, including what information to include regarding OCL’s tax obligations and
liabilities. 32 On July 29, 2018, Formica directed Wilson to provide potential bidders
with skewed financial results and projections for 2018 in order to support OCL’s
inflated EBITDA forecast. 33
C. OCL’s Accumulation of Tax and Related Liabilities
Between 2014 and 2018, OCL sold many of its educational service products
through its website using an eCommerce software platform called Magento. 34
OCL assigned, or should have assigned, each product listed for sale in Magento a
specific “SKU,” or “stock keeping unit,” for inventory tracking purposes. 35 Each of
those SKUs should have been mapped to a sales tax code and uploaded to OCL’s
31
Id.
32
Compl. ¶ 37.
33
Compl. ¶ 38.
34
Compl. ¶ 42.
35
Compl. ¶ 43.
9
sales and use tax reporting software called Avalara. 36 With a properly assigned
SKU, Avalara could determine the state in which the customer was located along
with the corresponding tax code mapping table, whether state sales or use tax should
be applied to the sale transaction and, if so, at what rate. 37 The sales or use tax
amount would then be added to the customer’s invoice through Magento or any other
sales platform used, and OCL would collect the sales and use taxes paid by the
customer upon checkout online or by traditional invoice.38
Avalara’s “AvaTax” system also provided a wide range of product “codes”
that OCL would select for each of its products to categorize them by type (e.g., live
class, course material, etc.). 39 Each “code” would enable Avalara to determine at
customer checkout whether the product sold, as identified by SKU, was subject to
the customer state’s sales and use tax and, if so, at what rate. 40 The efficacy of this
system depended upon proper inputs; if OCL failed properly to map out and code its
product offerings by product type in Avalara, SKUs could be mapped to an incorrect
36
Compl. ¶¶ 3, 43.
37
Compl. ¶ 43.
38
Id.
39
Compl. ¶ 45.
40
Id.
10
code, or none at all, resulting in the failure to collect applicable sales and use taxes
from the customer upon checkout.41
As early as June 2015, OCL discovered that it was not using Avalara properly
(the “Avalara Issue”), including by failing to: (1) connect AvaTax to the online sales
platforms of entire subsidiaries and product lines of OCL; (2) track inventory by
improperly assigning SKUs to thousands of products sold by OCL, which was not
charging sales tax to the purchaser of the products, regardless of applicable tax laws;
and (3) properly code products with SKUs in the Avalara system for purposes of
identifying and collecting applicable state sales and use taxes from its customers.42
These miscues resulted in significant state sales and use taxes that were not collected
and/or remitted over a period of several years. 43 On June 8, 2018, as the sale process
was underway, Wilson informed Sheahan that OCL would retain an outside
accounting firm, Thompson Tax, to investigate the Avalara Issue. 44
Of the roughly 9,000 SKUs eligible for processing in Avalara, only 400 or so
were assigned a code in AvaTax that would allow the software to compute and
41
Id.
42
Compl. ¶ 46.
43
Compl. ¶ 47.
44
Compl. ¶¶ 47, 50.
11
collect applicable sales and use tax.45 This failure caused a significant portion of
OCL’s revenue streams to be free of taxation. 46 Indeed, despite gross revenues of
over $300 million between 2014 and June 2018, OCL had remitted only about
$168,000 in sales and use taxes to state taxing authorities—substantially less than
the amount OCL should have expected to pay for the sales of its products during that
time. 47 Harris Williams advised the CIP Working Group (including Formica and
Wilson) of the magnitude of the Avalara Issue by email on August 14, 2018, only
days before the SPA was signed. 48
D. Defendants’ Inconsistent Disclosures Across Bidders
On July 16, 2018, after reviewing the documents and other information
assembled in the universal data room by Harris Williams, Formica instructed Harris
Williams that only certain categories of data should be included in particular data
rooms made available to particular bidders, including Bertelsmann. 49 In keeping
with the practice of disclosing information to some bidders but not others, on or
about August 15, 2018, the CIP Working Group provided “another bidder” with
45
Compl. ¶ 48.
46
Id.
47
Compl. ¶ 49.
48
Id.
49
Compl. ¶ 51.
12
information concerning the scope and severity of the Avalara Issue and OCL’s
estimated sales and use tax liability. 50 With this information in hand, the other
bidder informed the CIP Working Group, including Lipton, Formica, Sheahan and
Wilson, that it estimated OCL’s sales and use tax liability exposure to be in the range
of $8–9 million. 51 Consequently, as a condition to pursuing the acquisition further,
the other bidder required either a substantial one-year escrow of at least $15 million
for OCL’s sales and use tax liability, or a reduction in the purchase price based on
Thompson Tax’s final analysis of the full scope of OCL’s sales and use tax liability
in the pre-closing period. 52 Lipton ultimately rejected this proposal. 53
E. Bertelsmann Executes the SPA
Bertelsmann emerged as the successful bidder and executed the SPA on
August 20, 2018, in advance of the closing on November 1, 2018. 54 Under the SPA,
Bertelsmann purchased all of the outstanding shares of OCL Holdings from
50
Compl. ¶ 54. The identity of the “other bidder” is not disclosed in the Complaint.
51
Compl. ¶ 55.
52
Compl. ¶ 56.
53
Id.
54
Compl. ¶ 1. Under an Assignment and Assumption Agreement dated September 10,
2018, Plaintiff OHN assigned to Bertelsmann Professional Learning LLC all of its rights,
benefits and obligations under, and all of its interests in, the SPA. Plaintiff Bertelsmann is
the successor by merger to Bertelsmann Professional Learning LLC. Compl. at 3 n.1.
13
CIP OCL. 55 As is typical in stock purchase agreements between sophisticated
parties, both OCL Holdings and CIP OCL made certain representations and
warranties in Articles III and IV of the SPA, respectively. 56 Relevant here, the
Company represented in Section 3.11(a) of the SPA that all tax returns had been
“duly and timely” filed and were “true, complete and correct in all material
respects.” 57 In Section 3.5, it represented that it had no undisclosed liabilities.58
And finally, in Section 3.6, it represented that there were no material changes to the
Company or its subsidiaries’ accounting policies and practices with respect to
“collections of accounts receivable.”59
Bertelsmann represented, in turn, that it was “provided adequate access to the
properties, premises and records of the Company and each Company Subsidiary for
the purpose of [its] review” and that it did not rely on “any representation or warranty
by, or information from, the Seller, the Company,” or anyone else, “whether oral or
written, express or implied, . . . except for the representations and warranties
specifically and expressly set forth in Article III and Article IV” (the “anti-reliance”
55
Compl. ¶ 1.
56
SPA art. III, IV.
57
Id. § 3.11(a).
58
Id. § 3.5.
59
Id. § 3.6(g).
14
clause). 60 This language was reiterated in Section 5.10. 61 Bertelsmann also agreed
that there were no other representations or warranties other than those expressly
made in Articles III and IV of the SPA. 62
As is also typical in agreements of this sort, the SPA contains provisions that
purport to limit the parties’ liability for legal claims arising out of the agreement.
In Section 10.1 (the “survival clause”), the parties agreed that all representations and
warranties in the agreement “terminate effective as of the Closing and shall not
survive the Closing for any purpose, and thereafter there shall be no liability on the
part of” any party involved in the sale. 63 Section 11.16 (the “non-recourse
provision”) further provides that: the SPA may only be enforced against “the Parties
and their respective successors and permitted assigns”; claims arising out of the SPA
may only be asserted against “the Persons that are expressly identified as Parties and
60
Id. § 5.7.
61
Id. § 5.10 (“[T]he transactions contemplated hereby by Buyer are not done in reliance
upon any representation or warranty by, or information from, the Seller, the Company, any
Company Subsidiary or any of their respective Affiliates, employees or representatives or
any other Person, whether oral or written, express or implied . . . except for the
representations and warranties specifically and expressly set forth in Article III and Article
IV . . . .”).
62
Id. § 3.20 (“[N]one of the Company, any Company Subsidiary, Seller or any other Person
makes or has made any representations or warranties whatsoever, express or implied, as to
the Company, any Company Subsidiary, Seller or the transactions contemplated hereby
beyond those expressly given by Seller in Articles III and IV . . . .”).
63
Id. § 10.1.
15
their respective successors and permitted assigns”; and “no officer, director, partner,
manager, equityholder, employee or Affiliate of any Party . . . will have any liability
or obligation with respect to [the SPA] or with respect to any claim or cause of action
(whether in contract, tort or otherwise)” arising out of or related to the SPA
“(including a representation or warranty made in connection with [the SPA] or as an
inducement to enter into [the SPA]).”64
In the event of a post-closing dispute concerning the closing price, Section 2.4
sets forth a detailed process for post-closing adjustments to the estimated purchase
price (the “Estimated Purchase Price”).65 In this regard, the parties agreed to both a
“Base Purchase Price” of $525 million and a mechanism to adjust the Base Purchase
Price after Closing based on a mutual determination that certain components of the
Company’s financials, and primarily its “Working Capital,” should be adjusted.66
In other words, the parties agreed that the “Final Purchase Price” would be
determined by making a Working Capital adjustment to the Base Purchase Price
after Closing.67
64
Id. § 11.16.
65
Compl. ¶ 11.
66
SPA § 2.2.
67
See id. §§ 2.2, 2.4.
16
The SPA defines Working Capital as “Current Assets minus Current
Liabilities,” and Current Liabilities is defined to expressly exclude tax liabilities.68
The provision provides that the parties are to negotiate their disputes regarding the
calculation of various items that comprise the purchase price in good faith,69 but if
the parties cannot reach an agreement, then they “shall jointly” submit their claims
to an independent accounting firm (the “Accounting Firm”) to settle the dispute on
the final purchase price and its respective items.70 According to the SPA, the parties
agreed to the Working Capital adjustment—and the procedures for having Working
Capital disputes resolved by an Accounting Firm—in the following three-step
sequence.
First, at least four business days prior to the Closing Date, Seller must deliver
to the Buyer an “Estimated Closing Statement.” 71 That statement must include,
inter alia, “an estimated balance sheet of the Company . . . prepared in good faith by
the Company, together with a good faith estimate of” certain amounts pertaining to
the finances of the Company, including “the amount of Working Capital as of the
68
Id. § 1.1 (defining “Current Liabilities” to “exclude any items constituting Indebtedness,
Debt-Like Items, Transaction Expenses or Tax liabilities”).
69
Id. § 2.4(a).
70
Id. § 3.4(b)(ii).
71
Id. § 2.2.
17
Closing Balance Sheet Date” and the “Estimated Purchase Price” resulting from that
calculation.72 At Closing, the Buyer, among other things, must pay to the Seller the
Estimated Purchase Price (subject to certain conditions). 73
Second, within 90 days after the Closing Date, the Buyer must deliver to the
Seller a “Closing Statement.”74 That statement must include the Buyer’s “good faith
determination” of certain components of the Company’s finances, including the
Company’s actual Working Capital, as well as the supporting material used to
prepare the Closing Statement.75
The SPA provides that the Estimated Closing Statement and the Closing
Statement are required to be “calculated in accordance with the Accounting
Principles,” which is defined to mean “GAAP and the accounting principles,
policies, procedures, practices, applications and methodologies consistently applied
in preparing the Financial Statements.” 76 In the event of any discrepancy with
72
Id.
73
Id. § 2.3.
74
Id. § 2.4.
75
Id.
76
Id. § 1.1.
18
GAAP, then “the accounting principles . . . applied in preparing the Financial
Statements shall take precedence.”77
Third, Seller can either accept the amount Buyer included in the Closing
Statement (thereby finalizing the Final Purchase Price through adjusting the Base
Purchase Price by the undisputed “final” amounts in the Closing Statement) or
dispute the amounts in the Closing Statement. 78 If Buyer elects to dispute the
Closing Statement, then Buyer and Seller shall first negotiate in good faith to resolve
any disputed items before submitting remaining disputed items to a mutually agreed-
upon independent Accounting Firm for resolution.79
In the final provision relevant here, Section 11.3 (the “savings clause”), the
parties agreed that, “[u]pon determination” that any provision in the SPA is unlawful
or against public policy, the parties agree that “all other provisions of this
Agreement . . . shall nevertheless remain in full force and effect.” 80 The savings
clause also contemplated that the parties would negotiate to reform any illegal
77
Id.
78
Id. §§ 2.4(b)(i), 2.4 (b)(iii) & (d).
79
Id. § 2.4(b)(iii).
80
Id. § 11.3.
19
provision to comply with the law while maintaining the original intent of the
provision.81
F. Bertelsmann’s Post-Signing Due Diligence
Before closing, Bertelsmann and other potential bidders were conducting due
diligence into all phases of OCL’s operations, including its sales and use tax policies
and procedures and any potential liability to state tax authorities. 82 This due
diligence period extended through the execution of the SPA on August 20, 2018, and
through closing on November 1, 2018.83 In the course of Bertelsmann’s diligence,
no information concerning Thompson Tax, its ongoing sales and use tax analysis, or
any of its work product as provided to OCL in the course of its investigation of the
Avalara Issue was included among the data room materials or otherwise disclosed
to Bertelsmann prior to closing.84
After closing, on January 29, 2019, Bertelsmann sent to CIP OCL its Closing
Statement with supporting documentation, prepared in accordance with Section 2.4
of the SPA, setting forth Bertelsmann’s determination of the: (i) Closing Cash,
(ii) Closing Indebtedness, (iii) Closing Transaction Expenses, (iv) Closing Debt-
81
Id.
82
Compl. ¶ 53.
83
Id.
84
Compl. ¶ 52.
20
Like Items, and (v) Closing Working Capital. 85 According to the Closing Statement,
Buyers were owed $17,680,000 from CIP OCL under Section 2.4 of the SPA for
adjustments to the closing price. 86 At this time, however, Bertelsmann had not yet
discovered the existence, much less the extent, of Defendants’ alleged fraud, and
believed the parties were negotiating in good faith over errors in the closing
calculation.87
CIP OCL responded by claiming that Bertelsmann’s January 29 letter did not
constitute a proper Closing Statement under the SPA because it failed to include
“reasonable supporting or underlying documentation used in the preparation
thereof,” as required by the SPA. 88 On February 8, Bertelsmann provided additional
information and documentation supporting its calculations, and explained that it had
identified: (1) irregularities in OCL’s accounts receivable, (2) incorrect recognition
of revenue, (3) failure to include variable compensation payments as current
liabilities and (4) failure to comply with tax laws. 89
85
Compl. ¶ 76; id. Ex. 2.
86
Compl. ¶ 11.
87
Compl. ¶ 88.
88
Compl. ¶ 77.
89
Compl. ¶¶ 79–88.
21
On February 18, CIP OCL advised Bertelsmann that, because the issues
Bertelsmann had identified regarding accounts receivable, deferred revenue and
variable compensation payments calculations were irrelevant to Working Capital
under the SPA, CIP OCL “will not engage in any discussion or negotiation around
any adjustments related thereto.”90 CIP OCL did agree to review one discrete issue
(the estimate to actual differences calculation), but threatened litigation if
Bertelsmann continued to pursue its working capital adjustment claim
(as delineated) under the SPA.91
In response, Bertelsmann proposed that the parties agree upon which issues
should be submitted to the Accounting Firm and which should be excluded and
reserved for resolution in accordance with the SPA’s forum selection clause. 92
CIP OCL initially agreed, and Bertelsmann drafted a stipulation noting which issues
were properly before the Accounting Firm and which should be litigated in court.93
Upon receipt of the draft stipulation, however, CIP OCL took the position that the
entire dispute should be presented to the Accounting Firm. 94
90
Compl. ¶ 89.
91
Id.
92
Compl. ¶ 94.
93
Compl. ¶ 95.
94
Id.
22
Once Bertelsmann discovered the full extent of Defendants’ fraudulent
scheme through its post-closing investigation of OCL’s records, it realized that the
Accounting Firm could not resolve the majority of its post-closing claims. 95
Specifically, Bertelsmann’s review of OCL’s internal communications and books
and records led to its discovery of Defendants’ misrepresentations in the SPA, and
Bertelsmann concluded OCL’s financial and accounting irregularities were not the
product of mere negligence or sloppy bookkeeping, but rather resulted from
Defendants’ intentional misrepresentations.96 While Defendants maintain that all of
Bertelsmann’s claims in the Closing Statement should be submitted to the
Accounting Firm before being litigated, Bertelsmann’s position in this litigation is
that Buyer’s claims related to fraudulent inducement cannot be adjudicated by the
Accounting Firm under the SPA or applicable Delaware law. 97
G. Procedural History
Bertelsmann filed its original complaint in the Superior Court on July 2,
98
2019. Following the Superior Court’s May 28, 2020 decision granting
Defendants’ motion to transfer the case to Chancery under 10 Del. C. § 1902, on
95
Compl. ¶¶ 88, 96.
96
Id.
97
Compl. ¶ 100.
98
Compl. ¶ 96.
23
99
August 6, 2020, Plaintiffs filed their Verified Complaint in this Court.
On September 14, 2020, Defendants filed their motion to dismiss the Verified
Complaint.100
On October 5, 2020, Defendants’ counsel sent a letter to Plaintiffs’ counsel
expressing the position that the parties’ entire dispute should be submitted to the
Accounting Firm, including Plaintiffs’ fraudulent inducement claim.101 Plaintiffs
informed Defendants by letter dated October 12, 2020, that because the Buyer’s
fraudulent inducement and related claims cannot be adjudicated by the Accounting
Firm, the Buyer does not seek to submit the “entire” dispute over the Closing
Statement to the Accounting Firm, but rather only those components of the Closing
Statement that are not part of Plaintiffs’ fraudulent inducement and related claims.102
On October 14, 2020, Plaintiffs filed their Verified Amended Complaint
(the “Complaint”), which is the operative pleading. 103 The Complaint comprises
five Counts. Count I asserts fraud in the inducement against CIP OCL and
CIP Capital based on the allegedly false representations provided by CIP OCL to
99
Compl. ¶ 97.
100
Id.
101
Compl. ¶ 98.
102
Compl. ¶ 100.
103
D.I. 16.
24
induce Bertelsmann into closing the SPA.104 Count II asserts a claim for aiding and
abetting that fraud against the Individual Defendants. 105 Count III asserts a claim
for civil conspiracy relating to the fraud against all Defendants. 106 Count IV asserts
a claim for unjust enrichment against CIP OCL, CIP Capital, Sheahan and Wilson
as a basis to seek disgorgement of ill-gotten profits. 107 And Count V seeks a
declaratory judgment against CIP OCL concerning which components of
Bertelsmann’s claim for adjustments to the Estimated Purchase Price must be
submitted to the Accounting Firm for resolution under the SPA.108 Defendants have
moved to dismiss all Counts under Chancery Rule 12(b)(6) and, after briefing and
oral argument, the matter was submitted for decision on April 15, 2021. 109
104
Compl. ¶¶ 104–17.
105
Compl. ¶¶ 118–25.
106
Compl. ¶¶ 126–33.
107
Compl. ¶¶ 134–40.
108
Compl. ¶¶ 141–44.
109
D.I. 23 (Defs.’ Opening Br. in Supp. of Their Mot. to Dismiss the Verified First Am.
Compl.) (“DOB”); D.I. 29 (Pls.’ Answering Br. in Opp’n to Defs.’ Mot. to Dismiss)
(“PAB”); D.I. 33 (Defs.’ Reply Br. in Supp. of Their Mot. to Dismiss the Verified First
Am. Compl.) (“DRB”); D.I. 45 (Tr. of Apr. 15, 2021, Oral Arg. on Defs.’ Mot. to Dismiss)
(“Oral Arg. Tr.”).
25
II. ANALYSIS
Chancery Rule 12(b)(6) requires dismissal of a complaint when the plaintiff
is unable to state a legally viable claim under “any reasonably conceivable set of
circumstances susceptible of proof” based on the complaint’s well-pled facts. 110
While the court need not accept a complaint’s conclusory allegations, or “every
strained interpretation of the allegations proposed by plaintiff,” 111 it “must accept as
true all well-pled allegations in the complaint and draw all reasonable inferences
from those facts in plaintiff’s favor.”112
A. Count I – Fraudulent Inducement through Contractual Fraud
In Count I, Plaintiffs allege that several representations and warranties within
the SPA were knowingly false when made in order fraudulently to induce
Bertelsmann into executing the SPA and consummating its acquisition of
OCL Holdings. 113 In this regard, Section 5.7 of the SPA makes clear that
Bertelsmann relied on the representations made by CIP OCL in Article III of the
SPA. 114 There, the Company represented that all taxes due and payable by the
110
In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 168 (Del. 2006).
111
Id.
112
In re Rouse Props., Inc., 2018 WL 1226015, at *10 (Del. Ch. Mar. 9, 2018).
113
Compl. ¶¶ 57–58.
114
SPA § 5.7
26
Company and the Company Subsidiaries have been fully and timely paid
(Section 3.11), each of the Company’s financial statements were duly prepared and
true, correct and complete in all material respects (Section 3.4), and that the
Company had no undisclosed liabilities (Section 3.5).115
To state a claim for fraudulent inducement, a plaintiff must well plead
“(1) a false statement or misrepresentation; (2) that the defendant knew was false or
made with reckless indifference to the truth; (3) the statement induced the plaintiff
to enter the agreement; (4) the plaintiff’s reliance was reasonable; and
(5) the plaintiff was injured as a result.” 116 Chancery Rule 9(b) requires that,
“[i]n all averments of fraud or mistake, the circumstances constituting fraud or
mistake shall be stated with particularity.”117 The relevant circumstances include
“the time, place, and contents of the false representations; the facts misrepresented;
the identity of the person(s) making the misrepresentation; and what that person(s)
gained from making the misrepresentation.” 118 “Essentially, to satisfy that
[particularity] requirement, the plaintiff must allege circumstances sufficient to
115
See id. §§ 3.11, 3.4, 3.5.
116
ITW Glob. Invs. Inc v. Am. Indus. P’rs Cap. Fund IV, L.P., 2017 WL 1040711
(Del. Super. Ct. Mar. 6, 2017) (internal quotations omitted).
117
Del. Ch. Ct. R. 9(b).
118
Trenwick Am. Litig. Tr. v. Ernst & Young LLP, 906 A.2d 168, 207–08 (Del. Ch. 2006)
(Strine, V.C.), aff’d sub nom. Trenwick Am. Litig. Tr. v. Billet, 931 A.2d 438 (Del. 2007).
27
fairly apprise the defendant of the basis for the claim.”119 Though Chancery Rule
9(b) requires that the circumstances of fraud be pled with particularity, “[m]alice,
intent, knowledge and other condition of mind of a person may be averred
generally.”120
Defendants seek dismissal of Count I on two principal grounds. First,
Defendants argue Plaintiffs have failed to satisfy Rule 9(b)’s particularity
requirements. Second, Defendants maintain that even if the fraud claim is pled with
particularity, Plaintiffs agreed to limits in the SPA that preclude the prosecution of
fraud claims against certain of the Defendants at any time, and preclude the
prosecution of any fraud claim, whether extra-contractual or contractual, after the
transaction closed. I address both arguments in turn.
Count I is Pled with Sufficient Particularity
“When a party sues based on a written representation in a contract . . . it is
relatively easy to plead a particularized claim of fraud.” 121 “This is because the
plaintiff can readily identify who made what representations where and when,
119
H-M Wexford LLC v. Encorp, Inc., 832 A.2d 129, 145 (Del. Ch. 2003).
120
Del. Ch. Ct. R. 9(b).
121
Agspring Holdco, LLC v. NGP X US Hldgs., L.P., 2020 WL 4355555, at *13 (Del. Ch.
July 30, 2020) (internal quotations omitted).
28
because the specific representations appear in the contract.” 122 Plaintiffs have
identified the specific false representations contained in the SPA, including when
the SPA was signed and how Defendants induced Bertelsmann to accept a
significantly overinflated price in reliance upon these false representations.123
“Having pointed to the representations, the [Plaintiffs] need only allege facts
sufficient to support a reasonable inference that the representations were knowingly
false.”124 As noted, knowledge may be averred generally, meaning Plaintiffs “need
only point to factual allegations making it reasonably conceivable that the
defendants charged with fraud knew the statement was false.” 125 Plaintiffs easily
meet this standard.
The Complaint alleges that the Individual Defendants were all members of the
CIP Working Group: Formica and Lipton were representatives for CIP Capital,
while Sheahan and Wilson were acting on behalf of OCL.126 The Complaint further
122
Id. (internal quotations omitted).
123
Compl. ¶¶ 51–61, 64–71.
124
Prairie Cap. III, L.P. v. Double E Hldg. Corp., 132 A.3d 35, 62 (Del. Ch. 2015).
125
Kainos Evolve, Inc. v. InTouch Techs., Inc., 2019 WL 7373796, at *4 (Del. Ch. Dec. 31,
2019).
126
Compl. ¶ 34. Another bidder is alleged to have expressly “informed the CIP Working
Group, including Defendants Lipton, Formica, Sheahan and Wilson, that it estimated
OCL’s sales and use tax liability exposure to be in the range of $8 to $9 million,” and then
demanded “a substantial one-year escrow of at least $15 million for OCL’s sales and use
29
alleges that the CIP Working Group’s financial advisor initially informed Formica
and Lipton of the Avalara Issue and then advised all CIP Working Group members
of the scope of the problem.127 Moreover, as members of the CIP Working Group,
Formica and Lipton “routinely participated in OCL’s annual, monthly and special
board meetings, monitored and reviewed OCL’s financial performance, and
routinely discussed matters relating to OCL’s financial performance and related
matters with [ ] Sheahan, Wilson, and other officers and employees of OCL.”128
Indeed, Sheahan and Wilson are alleged to have “direct[ed] finance staff to depart
from OCL’s standard accounting practices and refrain from writing off uncollectible
accounts receivable in the period prior to the execution of the SPA” to inflate the
Company’s EBITDA.129 They also repeatedly attempted to solve the Avalara Issue,
to no avail.130 These allegations suffice to allow a reasonable inference that all of
the Individual Defendants knew of the SPA’s misrepresentations. 131 Because
tax liability as a condition of its bid for OCL,” which Lipton ultimately rejected.
Compl. ¶¶ 55–56.
127
Compl. ¶ 36, 48–49. Formica and Wilson are also alleged to have discussed with
another bidder for OCL issues relating to OCL’s SKU assignment. Compl. ¶ 54.
128
Compl. ¶ 30.
129
Compl. ¶¶ 7–9, 64–71.
130
Compl. ¶¶ 47, 50.
131
See Prairie Cap., 132 A.2d at 64–65 (denying motion to dismiss individual defendants
where “the Prairie Capital Directors oversaw the sale process as part of the working group,”
“actively participated in the creation and approval of the information that was distributed
30
knowledge of the wrongdoing by officers or directors can be imputed to the
corporation,132 Plaintiffs well plead particularized allegations of knowledge against
CIP Capital and OCL. 133
The Contract Does Not Bar the Fraud Claim as a Matter of Law
Defendants’ showcase argument in support of their motion to dismiss
Plaintiffs’ fraud claim is that the SPA expressly dissembles the claim through at least
two bargained-for limits. First, Defendants contend that the survival clause
expressly provides that the representations and warranties terminate upon closing,
and therefore any claim (including a fraud claim) arising from those reps and
warranties was extinguished when the deal closed. Second, even if the Court finds
to buyers,” and “were ‘actively and closely involved in choreographing discussions with
potential acquirers,’” including “information that should be posted to the Data Room and
disseminated”); Agspring, 2020 WL 4355555, at *17–18 (denying entity’s motion to
dismiss fraud claim based on allegations of its members/managers’ control of the entity,
their attendance at board meetings and regular receipt of information (including financial
information) relating to the alleged fraud, their being closely involved in the sales process,
their understanding of the importance of EBITDA to the deal, and their “constantly
communicat[ing]” with the sales team during the sales process, and pushing “to close the
deal,” all of which were “far more than sufficient to support a reasonable inference that
NGP (the entity) was in a position to know when it signed the MIPCA the knowable reality
underlying the falsity of the representations”).
132
NAMA Hldgs., LLC v. Related WMC LLC, 2014 WL 6436647, at *27 (Del. Ch. Nov. 17,
2014) (“Delaware courts consistently have imputed to a corporation the knowledge of an
officer or director of the corporation when acting on its behalf.” (quoting B.A.S.S. Gp., LLC
v. Coastal Supply Co., 2009 WL 1743730, at *7 n.72 (Del. Ch. June 19, 2009))).
133
Compl. ¶¶ 18–21; 28–32; 34–38; 47–52; 54–57. I mention CIP Capital Fund and
CIP OCL because Plaintiffs’ allegations of fraud are directed only to those two parties.
Compl. ¶¶ 104–17.
31
the limitations clause does not bar Plaintiffs’ fraud claim altogether, Defendants
argue the SPA’s anti-reliance and non-recourse provisions work together to bar
Plaintiffs’ fraud claim against CIP Capital. In response, Plaintiffs maintain that
where, as here, a plaintiff alleges a seller made fraudulent representations within a
contract with the seller’s affiliates’ knowing participation, Delaware law will not
countenance the seller’s or its affiliates’ attempt to escape the consequences of their
fraud by pointing to other provisions within the same fraudulently-procured contract
that purport to limit the seller’s liability.
In apparent recognition of its importance to the outcome of the dismissal bid,
the parties devote substantial energy to their respective explications de texte of the
seminal ABRY Partners. Because I agree that ABRY Partners, by extension, is
dispositive here, I provide my own explication de texte of the decision before turning
to its specific application to the SPA and Plaintiffs’ fraud claim.
a. ABRY Partners and its Progeny
In ABRY Partners, then-Vice Chancellor Strine used a motion to dismiss fraud
claims brought by a displeased buyer seeking to rescind a stock purchase agreement
as a palette from which to paint a multi-layered landscape depicting sustainable and
unsustainable post-closing breach of contract and fraud claims.134 The plaintiff in
134
ABRY P’rs, 891 A.2d 1032.
32
the case alleged that the management for both the private equity seller and the to-be-
sold portfolio company worked together to manipulate the portfolio company’s
financial statements in order fraudulently to induce the buyer into purchasing the
company at an inflated price.135 The alleged fraud comprised both extra-contractual
misrepresentations and knowingly false contractual reps and warranties that
mischaracterized the true state of the portfolio company’s business.
The defendants’ motion to dismiss was grounded in the plain terms of the
stock purchase agreement memorializing the parties’ bargain, which contained broad
anti-reliance, limited remedy and limitation of liability provisions that defendants
argued foreclosed the buyer’s claims. 136 Like Defendants here, the defendants in
ABRY Partners appealed to the court’s contractarian instincts and urged the court to
hold the plaintiffs to their bargain, which carefully limited the warranties made by
the private equity seller and distinguished them from the separate warranties made
by the portfolio company itself.137 The contract also explicitly precluded the buyer
from suing the seller for fraud in court, confining the buyer to the “sole and exclusive
135
Id. at 1038.
136
Id. at 1064.
137
Id. at 1034, 1042–43.
33
remed[y]” of asserting a claim for indemnity in arbitration with damages capped
at 4% of the purchase price. 138
The court found the agreement’s terms plainly barred the rescission claim, but
held that the “strong American tradition of freedom of contracts”—which is as
robust in Delaware as anywhere—must give way to Delaware’s venerable public
policy against fraud, rooted fundamentally in “the societal consensus that lying is
wrong.” 139 In doing so, the court endeavored to place both laudable interests—
respect for freedom of contract and the law’s abhorrence of fraud—on a double-pan
balance in an effort to calibrate Delaware law regarding the viability of claims of
fraud in the face of express contractual limitations on post-closing liability.
On one pan, the court placed evidence of the long tradition of both common
law and equity judges giving due respect to private ordering and the carefully
negotiated ways in which parties allocate risk within a contract. 140 This tradition is
particularly rich in cases where sophisticated parties have made informed judgments
about the risk they should bear in their contract and the due diligence they undertake,
138
Id. at 1035, 1044.
139
Id. at 1036, 1059.
140
Id. at 1061–62.
34
in recognition that these parties are able to price factors such as contractual limits on
liability into the purchase price.141
On the other pan, the court placed evidence of our law’s strong and storied
intolerance of fraud. 142 In this regard, the court pointed to longstanding decisional
law and scholarly commentary as authority for the proposition that “[a contractual]
term exempting a party from tort liability for harm caused intentionally or recklessly
is unenforceable on grounds of public policy.” 143 As the Second Circuit explained
in Turkish v. Kasenetz,144 “the rationale behind the doctrine—to prevent parties from
shielding themselves from liability from their own fraud by inserting a clause into
the very contract that was procured by the fraud—applies equally to the limitation
of liability and to the exclusion of liability.” 145 According to ABRY Partners, “[t]his
sort of reasoning draws in no small measure from the nostrum fraus omnia
corrumpit—fraud vitiates everything it touches.” 146
141
Id. at 1061. Indeed, the court observed that Delaware judges should be reluctant to be
more restrictive of freedom of contract than our General Assembly has been, pointing to
statutes that allow alternative entities (typically associated with more sophisticated parties)
to eliminate fiduciary duties by contract. Id. at 1063–64.
142
Id. at 1059.
143
Id. (assembling authority and quoting Restatement (Second) of Contracts § 195 (1981)).
144
27 F.3d 23 (2d Cir.1994).
145
Id. at 28.
146
ABRY P’rs, 891 A.2d at 1059.
35
Having accounted for both competing interests, the court in ABRY Partners
struck the balance thusly: where a plaintiff seeks to hold a defendant liable for
alleged lies made outside the contract, a party’s clear contractual promise
disclaiming reliance on such extra-contractual statements will bar that claim. 147
As the court explained, “[c]ontractually binding, written representations of fact
ought to be the most reliable of representations, and a law intolerant of fraud should
abhor parties that make such representations knowing they are false.” 148 In other
words, where a party states in writing that he did not rely on representations only
later to come to the court with a fraudulent inducement claim where he alleges, “but
[I] did rely on those other representations,” that party reveals himself as a liar in his
own right and so has no basis to claim harm from fraud.149
Similarly, the court held that a seller could allocate the risk of intentional lies
by other parties to the buyer, so long as it did not know of the lies. 150 This, the court
147
Id. at 1057–58.
148
Id. at 1057 (emphasis added).
149
Id. at 1057–58.
150
Id. at 1062–63. I use the word “know” because, in discussing the seller’s ability to
insulate itself from the statement of others, the court was careful to state that it would be
“legitimate for the Seller to create exculpatory distance between itself and the Company”
where it allocated the risk of intentional lies to the Company’s managers and the seller did
not “kn[o]w that the Company’s contractual representations and warranties were
false . . . .” Id. at 1062–64. Indeed, the court expressly recognized that “[t]he Seller
[in ABRY Partners] did not necessarily possess the same information as the managers of
the Company” and yet denied the seller’s motion to dismiss, describing the burden of proof
36
reasoned, properly “respect[ed] the ability of sophisticated businesses, such as the
Buyer and Seller, to make their own judgments about the risk they should bear and
the due diligence they undertake, recognizing that such parties are able to price
factors such as limits on liability.”151
Where, however, an agreement purports to limit liability for a lie made within
the contract itself, and parties know of the lie, such parties cannot skirt liability
through contractual limits within the very contract they procured by fraud. 152
Practically, the court reasoned, “there is little support for the notion that it is efficient
to exculpate parties when they lie about the material facts on which a contract is
premised,” and unlike negligent or even reckless misrepresentations, a seller who
knows of the lies cannot disclaim liability out of ignorance. 153 Stated differently,
“there is a moral difference between a lie and an unintentional misrepresentation of
fact,” and the fraus omnia corrumpit strain of cases demonstrate “that courts [] find
it distasteful to enforce contracts excusing liars for responsibility for the harm their
lies caused.”154 With this in mind, the court held:
on the buyer as requiring that they show the seller’s “knowledge of falsity.” Id. at 1063–
64.
151
Id. at 1061–62.
152
Id. at 1063.
153
Id. at 1062.
154
Id.
37
To the extent that the Stock Purchase Agreement purports to limit the
Seller's exposure for its own conscious participation in the
communication of lies to the Buyer, it is invalid under the public policy
of this State. That is, I find that the public policy of this State will not
permit the Seller to insulate itself from the possibility that the sale
would be rescinded if the Buyer can show either: 1) that the Seller knew
that the Company's contractual representations and warranties were
false; or 2) that the Seller itself lied to the Buyer about a contractual
representation and warranty. This will require the Buyer to prove that
the Seller acted with an illicit state of mind, in the sense that the Seller
knew that the representation was false and either communicated it to
the Buyer directly itself or knew that the Company had.155
If, however, the buyer can only demonstrate that “the Company’s managers
intentionally misrepresented facts to the Buyer without knowledge of falsity by the
Seller, then the Buyer cannot obtain rescission or damages, but must proceed with
an Indemnity Claim subject to the Indemnity Fund’s liability cap.”156 While the
court noted that its ruling left a “residual double liar problem” unaddressed, it
ultimately viewed that concern to be “far less compelling” in the context of
contractual fraud because fraud within the contract presents “no evidentiary
155
Id. at 1064. I note that, while the court’s statement in ABRY Partners that “the public
policy of this State will not permit the Seller to insulate itself from the possibility that the
sale would be rescinded” if the Buyer alleges “that the Seller knew that the Company's
contractual representations and warranties were false,” courts have applied its rationale to
claims for damages and rescission alike. See Prairie Cap., 132 A.3d at 60–65.
156
ABRY P’rs, 891 A.2d at 1064.
38
uncertainty over whether the allegedly false representations were made, only over
whether they were materially false and whether the seller knew them to be false.”157
ABRY Partners’ thorough and thoughtful treatment of post-closing fraud
claims is now engrained in Delaware’s common law. 158 Courts have applied its
holding to find that clear anti-reliance clauses undercut the element of reliance when
a plaintiff’s fraud claims rest on extra-contractual statements.159 Conversely, courts
have pointed to ABRY Partners when rejecting a seller’s effort to employ contractual
limits to defeat a buyer’s contractual fraud claim. 160 And our courts have endorsed
ABRY Partners’ holding that a “seller can be liable for the false contractual
representations of ‘the company’ if the buyer adequately pleads the seller’s
157
Id. at 1064 n.85. The “double liar problem” arises when the buyer promises not to sue
for rescission even if the seller “lied about . . . the accuracy of a contractual representation,”
and then sues on the contractual fraud nevertheless. Id.
158
RAA Mgmt., LLC v. Savage Sports Hldgs., Inc., 45 A.3d 107, 118–19 (Del. 2012)
(“ABRY Partners accurately states Delaware law. . . .”); EMSI Acquisition, Inc. v.
Contrarian Funds, LLC, 2017 WL 1732369, at *8 (Del. Ch. May 3, 2017)
(“ABRY provides a solid framework within which to analyze the arguments of buyers and
sellers who seek to exploit the risk allocation provisions of their transactional agreements,
bargained-for on a clear day but deployed in the midst of post-closing controversy.”).
159
See, e.g., Pilot Air Freight, LLC v. Manna Freight Sys., Inc., 2020 WL 5588671, at *21
(Del. Ch. Sept. 18, 2020) (“ABRY offers the following guidance: do not disavow reliance
on extra-contractual statements unless you mean it.”).
160
See, e.g., ChyronHego, 2018 WL 3642132, at *8 (applying ABRY Partners and holding
that contractual anti-reliance language does not defeat a claim for contractual fraud);
Aveanna Healthcare, LLC v. Epic/Freedom, LLC, 2021 WL 3235739, at *16 (Del. Super.
Ct. July 29, 2021) (same).
39
knowledge of the company’s misrepresentations.”161 In Prairie Capital III L.P. v.
Double E Holding Corp., for example, Vice Chancellor Laster allowed a contractual
fraud claim against a private equity fund and its managers to survive a motion to
dismiss even though they did not make the allegedly fraudulent contractual
misrepresentations on behalf of the target company. 162 The court reasoned that,
“[a]lthough under the terms of the stock purchase agreement only the company made
the representations, the scope of a claim for contractual fraud [sweeps] more
broadly[]” to cover those who knew that such representations were false. 163
As Vice Chancellor Laster explained, “[f]lesh and blood humans also can be held
161
Id.; see also Prairie Cap., 132 A.3d at 61 (holding individual defendants “Fortin and
Vancura can be held liable for fraudulent contractual representations made by the Company
because the Counterclaim sufficiently alleges that they knew that the representations were
false.”); LVI Gp. Invs., LLC v. NCM Gp. Hldgs., LLC, 2018 WL 1559936, at *13 (Del. Ch.
Mar. 28, 2018) (“As the EPP Defendants point out, the representations and warranties in
the agreement were made by NCM, not the Individual Defendants. But that is not fatal to
LVI’s fraud claims. The question is whether LVI has pleaded facts suggesting that the
falsity of the financial statements ‘was knowable and that the defendants[s] w[ere] in a
position to know it.’”).
162
132 A.3d at 66–67. Indeed, the buyer’s complaint lacked any allegations that the
venture equity fund directly represented anything to the buyer, instead pleading that it
worked behind the scenes to coordinate the flow of information. Id. at 45.
163
Id. at 59–61; see also Restatement (Second) of Torts § 533 (1977) (explaining a non-
speaking party is accountable “if the misrepresentation, although not made directly to the
other, is made to a third person and the maker intends or has reason to expect that its terms
will be repeated or its substance communicated to the other, and that it will influence his
conduct in the transaction.”); id. cmt. d (“If the misrepresentation is made for the purpose
of having it communicated, the maker is subject to liability”).
40
accountable for statements that they cause an artificial person, like a corporation, to
make.”164
Defendants argue that ABRY Partners only addressed contractual limitations
on reliance and knowledge; neither it nor its progeny address the impact of clear
non-recourse and survival clauses like those in the SPA.165 While Plaintiffs do not
flag it, a review of the docket in ABRY Partners reveals that, in fact, the agreement
at issue there did contain a non-recourse provision that defendants pointed out on
brief limited the liability of a subset of defendants named in the plaintiff’s
complaint. 166 The court in ABRY Partners appears not to have discussed that
164
Id. at 59.
165
DRB at 5–6, 16.
166
ABRY P’rs, C.A. No. 1756-VCS, D.I. 15 (Tab 3, Part 4), § 11.10 (“Notwithstanding
anything that may be expressed or implied in this Agreement, the Acquiror agrees and
acknowledge that no recourse under this Agreement or any documents or instruments
delivered in connection with this Agreement shall be had against any current or future
director, officer, employee, general or limited partner of member of the Selling Stockholder
or of any Affiliate or assignee thereof . . . . it being expressly agreed and acknowledged
that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred
by any current or future officer, agent or employee of the Selling Stockholder . . . for any
obligation of the Selling Stockholder or of any Affiliate or assignee thereof . . . ”); id. at 1
(“‘Affiliate’ means a Person that directly or indirectly, through one or more intermediaries,
Controls, is controlled by, or is under common control with, the first mentioned Person),
id. at 3 (“‘Control’ (including the terms ‘controlled by’ and ‘under common control with’)
means the possession, directly or indirectly or as trustee or executor, of the power to direct
or cause the direction of the management or policies of a Person, whether through the
ownership of stock or as trustee or executor, by contract or credit arrangement or
otherwise.”); ABRY P’rs, D.I. 26 (Defs.’ Opening Br. in Supp. of Mot. to Dismiss Am.
Compl.) at 22, 30 (Defendants arguing the No Recourse provision insulates them from
liability for the seller’s fraudulent misrepresentations); ABRY P’rs, D.I. 30 (Defs.’ Reply
Br. in Supp. of Mot. to Dismiss Am. Compl.) at 1 (“[A]ll claims against the Providence
41
provision directly in its decision, but its holding implicitly rejected the argument that
a non-recourse provision will operate to insulate a third-party from liability when
that party facilitated the target’s lies.167 In a footnote, then-Vice Chancellor Strine
explained that he thought “it both more efficient and fair only to override a
contractual limitation on liability when that limitation would exonerate an actual liar
or someone complicit in a lie.”168 This observation comports with other expressions
of Delaware law on the subject.169
Defendants [are] barred by the No Recourse Provision”), at 36 (“[T]he ‘No Recourse’
provision in Section 11.10 of the SPA [ ] extinguishes any liability and claims [against the
Providence Defendants] . . . .”).
167
See ABRY P’rs, 891 A.2d at 1064 (denying motion to dismiss named third parties).
168
Id. at 1063 n.82.
169
See, e.g., Shenandoah Life Ins. Co. v. Valero Energy Corp., 1988 WL 63491, at *9
(Del. Ch. June 21, 1988) (analyzing indenture provision and holding that, “[w]hen the
action is for breach of contract and not for fraud in the inducement of the investment,
provisions of this kind [non-recourse] are effective to limit any liability that may be found
to the issuer.” (emphasis added)); Surf’s Up Legacy P’rs, LLC v. Virgin Fest, LLC, 2021
WL 117036, at *11 (Del. Super. Ct. Jan. 13, 2021) (observing that the parties “could not
have contracted” through a non-recourse provision to allow “the Managers[] [to] escape
from fraud claims” because “Delaware courts refuse to enforce contracts purporting to
condone—or at least insulate—intentional fraud.”); LaSalle Nat’l Bank v. Perelman, 141
F. Supp. 2d 451, 461 (D. Del. 2001) (“[T]he Chancery Court generally held that no recourse
provisions are limited to contract claims . . . .”); Geyer v. Ingersoll Publ’ns Co., 621 A.2d
784, 793 (Del. Ch. 1992) (“[T]he no recourse provision does not bar equitable claims.”);
Mabon, Nugent & Co. v. Tex. Am. Energy Corp., 1988 WL 5492, at *3 (Del. Ch. Jan. 27,
1988) (“Plaintiffs’ remaining claims are not contractual and, therefore, the restrictions in
the Indenture[’s non-recourse clause] do not apply.”). While Defendants attempt to
distinguish Shenandoah and Mabon because they addressed non-recourse provisions in the
specific context of indentures and debentures, that distinction was recently and
persuasively rejected by Judge Wallace. See Surf’s Up, 2021 WL 117036, at *11 n.143
(responding to seller’s argument that caselaw involving debt instruments and indenture
42
As for the SPA’s survival clause, ABRY Partners appears to have anticipated
Defendants’ argument that such clauses can shut down a contractual fraud claim
when it quoted with approval comments to a Model Agreement and Plan of Merger
Reorganization sponsored by the ABA’ Mergers and Acquisitions Committee,
advising that, “even in the context of a public company merger, irrespective of a
contractual provision stating that representations and warranties do not survive
closing, such a provision would not normally preclude post-closing fraud claims by
one party against former officers and directors of the other party.” 170 The court went
on to observe that a general rule prohibiting sellers from invoking contractual limits,
like survival clauses, “to exculpate a seller for lies about contractual representations
of fact” eliminates “evidentiary uncertainty over whether the allegedly false
agreements was distinguishable by noting that Delaware courts are “indifferent to parties’
labels for their transactions when a disclaimer of intentional fraud is concerned.”
(citing Airborne Health, Inc. v. Squid Soap, LP, 984 A.2d 126, 136–37 (Del. Ch. 2009)
(Laster, V.C.) (“Because of Delaware’s strong public policy against intentional fraud, a
knowingly false contractual representation can form the basis for a fraud claim, regardless
of the degree to which the agreement purports to disclaim or eliminate tort remedies.”)).
170
ABRY P’rs, 891 A.2d at 1063 n.85; see also Will Pugh, Getting What You Bargained
for: Avoiding Legal Uncertainty in Survival Clauses for a Seller’s Representations and
Warranties in M&A Purchase Agreements, 12 J. Bus., Entrepreneurship & L. 1, 29–30
(2019) (acknowledging that, while contractual limitations on liability, like survival clauses,
serve laudable goals, those goals are less compelling in instances where a buyer is induced
to contract by fraud within the contract); see also Shrayber & Hansen, Anti-Reliance
Clauses, at 39–40 (analyzing ABRY Partners and including “narrow time limitations”
as among the restrictions it allowed buyers to bypass in certain circumstances).
43
representations were made” and focuses the dispute on whether “they were
materially false and whether the seller knew them to be false.”171
The only other Delaware case that appears to have addressed the reach of a
survival clause in the wake of ABRY Partners is Sterling Network Exchange, LLC
v. Digital Phoenix Van Buren, LLC, 172 where the defendant asserted several
counterclaims, including fraud, based on “various representations of fact” in a
“Property Purchase Agreement” and an “SNS Agreement.”173 The plaintiff moved
to dismiss those counterclaims in part because they were untimely under the
shortened limitations periods in those agreements, which in one instance limited the
survival of representations and warranties to six months after closing, and in the
other limited the survival of representations and warranties to one year after closing
and required the buyer to contest errors in the closing price within 60 days. 174
In opposing the motion, the defendant argued that, under ABRY Partners,
contractually shortened limitations periods cannot be enforced where fraud is
alleged.175
171
ABRY P’rs, 891 A.2d at 1063 n.85.
172
2008 WL 2582920 (Del. Super. Ct. Mar. 28, 2008).
173
DOB, Ex. F (Sterling, C.A. No. 07C-08-050, Defs.’ Answer and Countercls.) ¶ 208.
174
Sterling, 2008 WL 2582920, at *3, *5 n.30.
175
Id. at *5.
44
While Sterling appeared to acknowledge that a survival clause fell within
ABRY Partners’ ambit of “contractual limitations on a party’s ability to bring a fraud
claim,” it distinguished ABRY Partners on the ground that “the contract at issue in
[ABRY Partners], in contrast to this one, failed to provide a reasonable period of
opportunity to unearth possible misrepresentations.” 176 With that distinction in
mind, the court dismissed as untimely the defendant’s counterclaims (including the
fraud claim) to the extent they were based on contractual provisions that were subject
to agreed-upon limitations periods.177
Though not entirely clear from the decision, I gather Sterling derived its
“reasonableness” standard from the general statement of Delaware law that “parties
may contractually agree to a period of limitations shorter than that provided for by
statute, so long as this shortened period is reasonable.” 178 Thus, while Sterling
176
Id. (emphasis added).
177
Id. at *5–6.
178
ENI Hldgs., LLC v. KBR Gp. Hldgs., LLC, 2013 WL 6186326, at *7 (Del. Ch. Nov. 27,
2013) (citing GRT, 2011 WL 2682898, at *6; Smith v. Mattia, 2010 WL 412030 (Del. Ch.
Feb. 1, 2010) (“It is well-established in Delaware that, in the absence of [an] express
statutory provision to the contrary, a statute of limitations does not proscribe the imposition
of a shorter limitations period by contract.” (internal quotation marks omitted)); see also
Shaw v. Aetna Life Ins. Co., 395 A.2d 384, 386–87 (Del. Super. Ct. Nov. 6, 1978)
(explaining that parties can shorten, but not lengthen, the statute of limitations period
because statutes of limitations “proceed on the principle[] that it is to the interest of the
public to discourage the litigation of old or stale demands; and are designed . . . to afford a
security against the prosecution of the claims where, from lapse of time, the evidence
becomes stale.” (internal quotations and citations omitted)).
45
appears to acknowledge that ABRY Partners’ rationale applies to survival clauses, it
apparently did not view ABRY Partners as foreclosing the application of survival
clauses to fraud claims as a matter of law on public policy grounds. This stands in
contrast to this court’s observation in GRT, Inc. v. Marathon GTF Technology, Ltd.
that, “[u]nless fraud is present, a court will generally enforce the clear expression
of the parties[’] intent with respect to whether or not the representations and
warranties will survive the closing.”179 Not likely a coincidence, GRT was decided
by the same judge who decided ABRY Partners—then-Chancellor Strine.
Moreover, while Sterling distinguished ABRY Partners on the ground that the
contract in ABRY Partners “failed to provide a reasonable period of opportunity to
unearth possible misrepresentations,” 180 the court in ABRY Partners did not discuss
the survival period for representations and warranties beyond its reference in dicta
to the ABA M&A Committee commentary. Indeed, a review of the contract at issue
in ABRY Partners reveals the limitations period for representations and warranties
was “the twenty-one (21) month anniversary of the Closing Date”—which was
longer than the six-month period prescribed by Sterling’s survival clause. 181
179
GRT, 2011 WL 2682898, at *13 n.68 (quoting Lou R. Kling & Eileen T. Nugent, 2
Negotiated Acquisitions of Companies, Subsidiaries and Divisions (2011) § 15.02[2] n.31)
(emphasis added) (“Kling & Nugent”).
180
2008 WL 2582920, at *5.
181
ABRY P’rs, C.A. No. 1756-VCS, D.I. 15 (Tab 3, part 4) § 9.8.
46
Nevertheless, the court expressed its view that a survival clause would not defeat an
otherwise well-pled contractual fraud claim. 182 The upshot is that the basis for
Sterling’s rationale is questionable, and a reflexive application of a “reasonableness”
standard to survival clauses in the context of contractual fraud is likely not
warranted.
*****
It seems inevitable that, as a trial judge on a commercial court in Delaware,
the time will come to confront ABRY Partners and offer a take on its meaning and
scope. Having now offered my two cents on those subjects, I move on to apply its
holdings to the contractual fraud claims at issue here.
b. The SPA’s Survival Clause Does Not Bar the Fraud Claim
Defendants’ premiere contractual argument is that Section 10.1 of the SPA
shortens the limitations period for claims based on allegedly false representations
and warranties, and unambiguously provides that such claims expire upon Closing
(November 1, 2018). Specifically, the SPA’s survival clause provides in relevant
part:
the Parties, intending to modify any applicable statute of limitations,
agree that (a) the representations and warranties in this Agreement and
in any Ancillary Document shall terminate effective as of the Closing
and shall not survive the Closing for any purpose, and thereafter there
182
ABRY P’rs, 891 A.2d at 1064 n.85.
47
shall be no liability on the part of, nor shall any claim be made by, any
Party or any of their respective Affiliates in respect thereof . . . . 183
Defendants argue that a survival clause does not purport to limit a buyer’s claim to
a remedy (as in ABRY Partners), but rather limits the time in which that remedy may
be pursued. As support, and not surprisingly, Defendants cite Sterling where, as
noted, the court held that parties may agree contractually to shorten the limitations
period for fraud claims without violating Delaware public policy, provided there is
a reasonable opportunity to discover the potential misrepresentations.184
Plaintiffs respond that the SPA’s survival clause is invalid under ABRY
Partners as a de facto limitation of liability for contractual fraud. While Plaintiffs
183
SPA § 10.1. I note that Plaintiffs did not argue that the SPA’s Survival Clause did not
expressly cover fraud claims, so I do not address that issue here. Emerald P’rs v. Berlin,
726 A.2d 1215, 1224 (Del. 1999) (“Issues not briefed are deemed waived.”). Nor is there
any dispute that Section 10.1 is a valid survival clause that effectively shortens the statute
of limitations on covered claims, including breach of warranty claims.
184
2008 WL 2582920, at *5. Defendants also cite Roma Landmark Theaters, LLC v.
Cohen Exhibition Co. for the proposition that Delaware courts do not ignore a contract’s
limitation of fraud claims, but the relevant analysis in Roma concluded that the buyer’s
claim for extra-contractual fraud failed because the buyer disclaimed reliance on the
representation at issue through an anti-reliance clause, not a survival clause. 2020 WL
5816759, at *16 (Del. Ch. Sept. 30, 2020). Here, unlike Roma, Bertelsmann expressly
stated that it was relying on the fraudulent misrepresentations. SPA § 5.7; see also ABRY
P’rs, 891 A.2d at 1063 n.85 (citing authority for the proposition that, “irrespective of a
contractual provision stating that the representations and warranties do not survive the
closing, such a provision would not normally preclude post-closing fraud claims by one
party against former officers and directors of the other party”); Surf’s Up, 2021 WL
117036, at *11 (stating that the parties “could not have contracted” out liability for fraud
that would allow “the Managers[] [to] escape from fraud claims” because “Delaware courts
refuse to enforce contracts purporting to condone—or at least insulate—intentional
fraud.”).
48
do not argue Sterling was wrongly decided, they argue it is distinguishable here
because they well plead they were not provided a reasonable period to unearth
possible misrepresentations given the relevant information was not in the data room
and the fraud related to the accounts receivable and sales and use tax liability did not
surface until well after closing.185
For reasons already explained, I am reticent to endorse the rationale adopted
in Sterling. Even assuming (without deciding) that Sterling provides the correct
standard to apply to a survival clause in the context of a contractual fraud claim, an
inquiry into reasonableness is inherently fact-intensive and generally “not
appropriate for resolution on the pleadings.” 186 One would expect this to be
185
Compl. ¶ 52 (“No information concerning Thompson tax . . . was included among the
Data Room materials or otherwise disclosed to Bertelsmann prior to closing.”), ¶ 57
(“With respect to Bertelsmann, upon information and belief, the only other remaining
serious bidder for OCL Holdings, the CIP Working Group chose not to disclose the critical
information related to OCL’s sales and use tax liability that it had learned, whether through
the Data Room or otherwise. To the contrary, the CIP Working Group . . . made clear and
unambiguous representations and warranties disclaiming the existence of any outstanding
liability for sales and use taxes, which the CIP Working Group knew were false”), ¶ 66
(“OCL therefore maintained on its accounts receivable ledger multiple customer accounts
receivable that Defendants knew were in fact bad debt but that should have been written
off . . . .”), ¶¶ 80–86 (explaining that “after the Closing, Bertelsmann had discovered
various accounting irregularities in OCL’s books and records and errors in the Schedules
to the SPA,” including the critical false statements with respect to Defendants’ tax
liability), ¶ 96 (“Once Bertelsmann learned that the Defendants had committed fraud by
concealing from, and misrepresenting to Bertelsmann OCL’s significant sales and use tax
liabilities in the SPA, it determined that such claims could not be brought before the
Accounting Firm and filed its original complaint in the Superior Court on July 2, 2019.”).
186
In re Cadira Gp. Hldgs., LLC Litig., 2021 WL 2912479, at *10 (Del. Ch. July 12, 2021);
see also Edinburgh Hldgs., Inc. v. Educ. Affiliates, Inc., 2018 WL 2727542, at *14
(Del. Ch. June 6, 2018) (declining to resolve on the pleadings “[t]he question of whether
49
particularly true where the court is asked to assess the “reasonableness” of a
plaintiff’s inability to uncover a fraud designed to induce their consummation of an
agreement—a tort which, by definition, includes an element of deception.
Defendants nevertheless urge the Court to find Bertelsmann’s 73-day
diligence a “reasonable” period under Sterling to discover fraud for two primary
reasons. First, in Section 5.7, Bertelsmann represented that it had full access to all
information.187 That same provision, however, states that the allegedly fraudulent
representations within the agreement are accurate and complete, and that
Bertelsmann relied on those representations.188 Moreover, Plaintiffs affirmatively
plead that the CIP Working Group actively chose to withhold tax information from
Bertelsmann’s data room, and then purposefully inserted false representations into
the SPA regarding these same tax liabilities in order to throw Bertelsmann off the
scent. 189 Plaintiffs were entitled to perform diligence under the assumption that
ASPE’s post-closing management conducted the ASPE Business Unit ‘in a reasonable
manner consistent with its past practices’” (citing Victaulic Co. v. Tieman, 499 F.3d 227,
227 (3d Cir. 2007) (“Because reasonableness is a fact-intensive inquiry, we hold that it
should not have been determined on the pleadings.”)); Chapter 7 Tr. Constantino Flores v.
Strauss Water Ltd., 2016 WL 5243950, at *1 (Del. Ch. Sept. 22, 2016) (holding that “fact
intensive” inquiries are “not appropriate for disposition on a motion to dismiss”).
187
SPA § 5.7.
188
Id.
189
Compl. ¶¶ 37, 57–58. I note that Plaintiffs allege Defendants actively discussed the
Avalara Issue with another potential bidder, and it is inferable from the pleadings that the
50
representations of fact would, at the very least, not be intentionally falsified. For that
reason, Section 5.7 does not render “reasonable” the 73-day period during which
Bertelsmann conducted diligence.
Second, Defendants point to Section 11.3, where Bertelsmann represented that
“[u]pon such determination that any provision of this Agreement (or portion thereof)
is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the Parties[.]”190
Defendants argue in a footnote that this savings clause renders Plaintiffs’ contractual
fraud claims invalid as a matter of law because, under Sterling, a six-month post-
closing discovery period was ample opportunity to discover the fraud as a matter of
public policy, but Plaintiffs waited eight months after closing to bring their claims.191
As an initial matter, I reiterate my skepticism that Sterling is an accurate
expression of Delaware law. Even if the holding there is sound, however, the
“reasonableness” of delay would, by definition, be nuanced and ultimately require a
fact intensive inquiry.192 In this case, “reasonableness” would require an assessment
Sellers maintained separate, selectively populated data rooms for each potential bidder.
Compl. ¶¶ 37, 52–57.
190
SPA § 11.3.
191
DOB at 36 n.7.
192
Black’s Law Dictionary, Reasonable (11th ed. 2019) (“Fair, proper, or moderate under
the circumstances” (emphasis added)).
51
of the complexity of the alleged fraud and the efforts made to secret it.193 The court
in Sterling was not confronted with similar facts (e.g., fraud relating to a tax issue),
so its conclusion with respect to timing cannot be reflexively applied here to
determine on the pleadings that Plaintiffs’ delay was unreasonable as a matter of law
(or contract).194
Based on the weight of authority, and Delaware’s public policy, I am satisfied
that the SPA’s survival clause cannot, and does not, defeat Plaintiffs’ contractual
fraud claims. To be clear, the clause serves its purpose—there can be no post-
closing claim for breach of a warranty that did not survive closing. But the Sellers
cannot invoke a clause in a contract allegedly procured by fraud to eviscerate a claim
193
As noted, Plaintiffs well plead that they had no knowledge of the misrepresentations
prior to Closing, alleging that Defendants intentionally withheld such information to induce
Plaintiffs into purchasing CIP OCL at an inflated price. Compl. ¶¶ 37, 42–61, 104–17.
While Defendants highlight the fact that another bidder was able to identify the Avalara
Issue during the course of its diligence, again, it appears from the pleadings that
Bertelsmann was provided a separate data room comprised of different information. See
Compl. ¶ 37 (“Lipton and Formica directed the CIP Working Group as to what data to
include or not include in the separate due diligence data rooms for potential bidders of OCL
Holdings, including data relating to OCL’s tax obligations and liabilities.”). Though
Plaintiffs discovered accounting errors soon after closing, the Complaint alleges the Buyers
did not uncover the fraud relating to those errors until well after closing. Compl. ¶¶ 88,
96. Giving all reasonable inferences to Plaintiffs, I cannot say as a matter of law that
Plaintiffs’ delay was unreasonable.
194
Though Defendants did not brief it, I also cannot say as a matter of law that Section 11.3
obligated Plaintiffs to plead that they made an effort to “negotiate in good faith” to modify
the SPA, as if the SPA’s savings clause operated as a condition precedent to a lawsuit.
Section 11.3 leaves ambiguous whether the “determination” triggering a party’s obligation
to begin negotiations to modify invalid contractual provisions must be made by a court or
a party to the SPA. See SPA § 11.3.
52
that the contract itself is an instrument of fraud. That is not, and cannot be,
countenanced by Delaware law.
c. The SPA’s Nonrecourse Provision Does Not Bar Plaintiffs’
Contractual Fraud Claim
Even if the Court does not credit their argument on the SPA’s survival clause,
Defendants contend that CIP Capital (and any other Defendant other than CIP OCL,
for that matter) cannot be held liable for CIP OCL’s contractual representations
under the SPA’s non-recourse and anti-reliance clauses.195 Plaintiffs respond that it
expressly relied on the allegedly fraudulent misrepresentations made by CIP OCL,
and ABRY Partners does not permit CIP Capital to take cover behind a non-recourse
provision if it knowingly participated in the alleged contractual fraud.196
As noted, in ABRY Partners, the court denied the defendants’ motion to
dismiss notwithstanding the presence of a non-recourse provision because the selling
stockholder was effectively a special investment vehicle controlled by a private
equity firm, and the contractual reps and warranties made by the seller necessarily
flowed back to the private equity firm. 197 Commentators and courts have generally
195
SPA § 11.16.
196
Id. § 5.7 (providing Buyer did not rely “upon any representation or warranty by, or
information from,” Defendants, “except for the representations and warranties specifically
and expressly set forth in Article III and Article IV.”).
197
See ABRY P’rs, 891 A.2d at 1037, 1040–41 (“That meant that the Seller had an intense
interest in its value and in keeping with that, the Seller had assigned key personnel . . . to
monitor the performance of the Company and interact with the Company's management
53
understood Delaware law to disregard non-recourse clauses where the parties
purportedly insulated by those clauses were complicit in contractual fraud. 198 Thus,
while Section 11.16 of the SPA purports to limit liability for claims arising out of
the SPA, “the scope of a claim for contractual fraud [sweeps] more broadly.”199
during the sale. But that did not necessarily mean that the Seller knew the Company in the
same intimate manner that the Company's managers did. The managers had no prior
affiliation with the Seller, and like any other private equity firm, the Seller was as much a
monitor of, as a partner with, the Company's management.”).
198
See, e.g., Shenandoah, 1988 WL 63491, at *9 (analyzing indenture provision and
holding that, “[w]hen the action is for breach of contract and not for fraud in the inducement
of the investment, provisions of this kind [non-recourse] are effective to limit any liability
that may be found to the issuer.” (emphasis added)); Surf’s Up, 2021 WL 117036, at *11
(stating that the parties “could not have contracted” out liability for fraud that would allow
“the Managers[] [to] escape from fraud claims” because “Delaware courts refuse to enforce
contracts purporting to condone—or at least insulate—intentional fraud.”); LaSalle Nat’l
Bank, 141 F. Supp. 2d at 461 (“[T]he Chancery Court generally held that no recourse
provisions are limited to contract claims . . . .”); Geyer, 621 A.2d at 793 (“[T]he no recourse
provision does not bar equitable claims.”); Mabon, 1988 WL 5492, at *3 (“Plaintiffs’
remaining claims are not contractual and, therefore, the restrictions in the Indenture[’s no
recourse clause] do not apply.”); Kling & Nugent § 15.02[2] n.31 (“Unless fraud is present,
a court will generally enforce the clear expression of the parties’ intent”). Defendants’
cited cases to the contrary are readily distinguishable. See Simons v. Cogan, 549 A.2d 300,
305 (Del. 1988) (enforcing “no recourse” provision in the context of a breach of contract
claim, not a fraud claim); Great Lakes Chem. Corp. v. Pharmacia Corp., 788 A.2d 544,
553–54 (Del. Ch. 2001) (enforcing contractual disclaimers barring fraud claims based on
extra-contractual representations); Harland Clarke Hldgs. Corp. v. Milken, 646 F. App’x
223, 225 (3d Cir. 2016) (addressing only whether a non-recourse clause covered certain
parties).
199
Prairie Cap., 132 A.3d at 60; see also Airborne Health, 984 A.2d at 136–37 (“Because
of Delaware’s strong public policy against intentional fraud, a knowingly false contractual
representation can form the basis for a fraud claim, regardless of the degree to which the
agreement purports to disclaim or eliminate tort remedies.”)
54
Defendants counter this caselaw by highlighting the court’s statement in
ABRY Partners that, “it [is] difficult to fathom how it would be immoral for the
Seller and Buyer to allocate the risk of intentional lies by the Company’s managers
to the Buyer.” 200 But that observation was made in the context of the court’s
contemplation of a seller who did not have knowledge of the misrepresentations at
issue. 201 It did not abridge ABRY Partners’ central holding, namely “that the public
policy of this State will not permit the Seller to insulate itself from [liability or] the
possibility that the sale would be rescinded if the Buyer can show . . . that the Seller
knew that the Company’s contractual representations and warranties were false.”202
Because Plaintiff has well pled that CIP Capital did, in fact, know of and facilitate
the fraudulent misrepresentations in the SPA through its participation in the
CIP Working Group, CIP Capital cannot invoke the non-recourse provision to avoid
liability under ABRY Partners and its progeny.
B. Counts II–IV
Plaintiffs bring claims of aiding and abetting (Count II) against the Individual
Defendants, civil conspiracy (Count III) against all Defendants, and unjust
200
DRB at 18 (quoting ABRY P’rs, 891 A.2d at 1054).
201
ABRY P’rs, 891 A.2d at 1062–63.
202
Id. at 1064.
55
enrichment (Count IV) against CIP OCL, CIP Capital, Sheahan and Wilson. 203
Defendants’ only argument in support of its bid for dismissal of any of these Counts
is that the SPA bars Plaintiffs’ predicate claim for fraud. 204 Having now rejected
that argument, for reasons explained, Defendants’ motion to dismiss Counts II–IV
must be denied. 205
C. Count V
Plaintiffs seek a declaratory judgment on the scope of the Accounting Firm’s
authority under Section 2.4 of the SPA.206 In response, Defendants maintain the
Court does not have subject matter jurisdiction over this claim because no actual
controversy exists. 207 Under Chancery Rule 12(b)(1), the Court must dismiss a
claim where it lacks subject matter jurisdiction. 208 And “[t]he burden is on the
plaintiff to demonstrate that subject matter jurisdiction exists.” 209
203
Compl. ¶¶ 118–32.
204
DOB at 44.
205
Emerald P’rs, 726 A.2d at 1224 (“Issues not briefed are deemed waived.”).
206
Compl. ¶ 144.
207
Energy P’rs, Ltd. v. Stone Energy Corp., 2006 WL 2947483, at *6 (Del. Ch. Oct. 11,
2006); 10 Del. C. § 6502 (setting out the statutory standard for declaratory judgment).
208
Shahin v. City of Dover, 2018 WL 4635730, at *4 (Del. Ch. Sept. 26, 2018).
209
Id. at *3. When adjudicating a challenge to its subject matter jurisdiction, “the Court
need not accept the plaintiff’s factual allegations as true and is free to consider facts not
alleged in the complaint.” Id.
56
According to Plaintiffs, the following aspects of Bertelsmann’s post-closing
claims fall within the scope of the declaratory judgment sought in Count V:
Item Adjustment
Cash reconciliation $117,832
Accounts receivable, net, estimate to $1,396,525
actual difference
Inventory, estimate to actual difference $199,894
Inventory, account clean-up $31,487
Accounts payable, estimate to actual $597,663
difference
Deferred revenue, estimate to actual $479,188
difference
Deferred revenue, correction for $1,090,894
improper accounting
Other accrued expenses, estimate to $734,001
actual difference
Other accrued expenses, sales bonus $1,606,883 210
correction
Plaintiffs submit that:
• The “estimate to actual differences,” the “account clean-up,” the “deferred
revenue correction” and the “sales bonus correction” components of the
Closing Statement should be resolved by the Accounting Firm;211 and
• The remaining components—the sales tax correction and the accounts
receivable allowance correction—are beyond the scope of the Accounting
Firm’s authority because they are the basis of Plaintiffs’ fraud claims and
accountants cannot resolve fraud claims. 212
210
Compl. ¶ 79.
211
PAB at 60; Compl. ¶ 144.
212
Compl. ¶ 144; PAB at 56–57.
57
For their part, Defendants agree with the first point—that the SPA requires
the parties to submit their disputes over the “estimate to actual differences,” the
“account cleanup,” the “deferred revenue correction” and the “sales bonus
correction” components of the Closing Statement to the Accounting Firm for
resolution.213 Defendants also agree that the Accounting Firm should not resolve
the sales tax correction component of the Closing Statement, for the reason that tax
liabilities are expressly excluded from the definition of “Working Capital” subject
to review by the Accounting Firm. 214 And Defendants agree that the Accounting
Firm does not have the authority to resolve claims of fraud. 215
Where the parties disagree is whether disputes relating to accounts receivable
should be submitted to the Accounting Firm and the sequencing by which the various
claims should be resolved. Defendants maintain the SPA requires the Buyer and
Seller to submit their dispute over the “Accounts Receivable Allowance Correction”
to the Accounting Firm to determine whether the purchase price should be
adjusted.216 According to Defendants, that is a pure accounting issue that Plaintiffs
213
DOB at 22–23; DRB at 32.
214
DOB at 12 (citing SPA § 1.1 (defining “Current Liabilities” to “exclude any items
constituting Indebtedness, Debt-Like Items, Transaction Expenses or Tax liabilities”)).
215
DRB at 29.
216
Id.
58
do not contend the Accounting Firm lacks the authority or expertise to resolve.
Plaintiffs disagree and argue that aspects of the accounts receivable issue are laced
with contractual fraud.
Because both parties agree that claims for fraud fall outside the Accounting
Firm’s purview under Section 2.4, but disagree on the scope of those fraud claims,
a ripe controversy exists over the scope of Plaintiffs’ fraud claims. That dispute
cannot be outsourced to the Accounting Firm until this Court finally adjudicates the
scope of the contractual fraud (if any).217 That is the proper sequencing. For that
reason, Defendants’ motion to dismiss Count V is denied.
217
Compl. ¶¶ 96, 100–03; Ray Beyond Corp. v. Trimaran Fund Mgmt., L.L.C.,
2019 WL 366614, at *6–7 (Del. Ch. Jan. 29, 2019) (explaining an accountant’s authority
is limited “to discrete factual issues within an independent accountant’s expertise” and it
“lack[s] authority to consider legal issues—breaches of representations and warranties
regarding the target’s historical accounting practice—when calculating the price
adjustment.”); Chi. Bridge & Iron Co. N.V. v. Westinghouse Elec. Co. LLC, 166 A.3d 912,
930 (Del. 2017) (“[I]t is important to recognize the limited role of the adjudicator, here an
auditor (called the Independent Auditor in the Purchase Agreement), that Chicago Bridge
and Westinghouse selected.”); see also id. at 930 n.75 (“[I]ssues related to potential
misrepresentations made by a seller ‘are not generally viewed as the kind of disputes that
would be resolved by the person charged with ‘truing up’ the books.”). Defendants invoke
the doctrine of quasi-estoppel as support for dismissal of Count V based on the premise
that Plaintiffs have changed positions on what to submit to the Accounting Firm.
DOB at 47. But the doctrine of quasi-estoppel is subject to a “high” standard and will be
controlling only “when it would be unconscionable to allow a person to maintain a position
inconsistent with one to which he acquiesced, or from which he accepted a benefit.”
Simon-Mills II, LLC v. Kan Am USA XVI Ltd. P’ship, 2017 WL 1191061, at *35 (Del. Ch.
Mar. 30, 2017) (citation and internal quotation marks omitted). As pled, Plaintiffs’ change
of position is not “unconscionable,” as Bertelsmann came gradually to realize that what at
first it believed to be good faith errors were in fact the products of fraud. Compl. ¶¶ 94–
95, 100–01; see also Pivotal Payments Direct Corp. v. Planet Payment, Inc.,
2020 WL 7028597, at *4 (Del. Super. Ct. Nov. 30, 2020) (holding quasi-estoppel did not
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III. CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is DENIED on all
Counts.
IT IS SO ORDERED.
apply where defendant initially asserted that the issues underlying plaintiff’s claims were
“[m]inor [p]roblems that [defendant] was fixing,” and later asserted those same issues were
clear evidence of defendant’s inability to provide services to plaintiff, thus putting plaintiff
on notice of their claims).
60