Explore a recent M&A case highlighting the importance of meticulous contract negotiation and the legal intricacies surrounding fraud and concealment in asset purchase agreements.
M&A Stories
February 04, 2019
In the world of Mergers and Acquisitions, a recent case shed light on the importance of understanding the fine print. A seller in the pharmaceutical industry had divested one of its product lines to a buyer, as outlined in an asset purchase agreement.
At the time of the sale, a class action lawsuit loomed in California, linked to a product within the transferred line. The agreement placed the responsibility for any future liability on the buyer. However, when the class action suit concluded, the buyer refused to uphold this commitment, leading to a legal battle in a Delaware federal district court.
The buyer claimed that, prior to the sale, the seller had misrepresented the settlement offer made by the class action plaintiffs. Furthermore, they alleged that the seller concealed significant “store allowance fees” imposed by a customer in negotiations. These actions were seen as fraudulent and intentional concealment, adding complexity to the case. Additionally, a breach of the asset purchase agreement was alleged, pertaining to undisclosed liabilities at the closing, which violated the net working capital purchase price adjustment provision.
The seller’s attempt to dismiss the buyer’s tort-based claims for fraud and concealment was rejected by the court. They argued that these claims were essentially disguised breaches of the asset purchase agreement and therefore not valid under Delaware law.
The court disagreed on two key points. Firstly, it asserted that the damages in the fraud and concealment tort claims were distinct from those in the breach of the asset purchase agreement. Secondly, it established that Delaware law itself imposed a duty on the seller to avoid fraud or concealment in such transactions.
The seller’s claims that the asset purchase agreement’s terms, such as “as-is where-is” and disclaimers of warranties, should protect them were also dismissed, as the agreement reserved the buyer’s rights in the case of fraud.
Lastly, the seller argued that the economic loss doctrine should limit the buyer’s claims to damages related to the asset purchase agreement. The court, however, rejected this, recognizing exceptions for cases of fraudulent inducement and intentional concealment.
In summary, this case highlights the significance of meticulous contract negotiation in M&A deals. What may seem like boilerplate language can make a critical difference when unforeseen issues arise.
Case Reference:
Perrigo Company v. International Vitamin Company, No. 1:17-CV-01778., United States District Court, D. Delaware, (January 28, 2019).
By John McCauley: I help people start, grow, buy and sell their businesses.
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