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ABRY Partners V v. F&W Acquisition
Delaware Court of Chancery
2006 Del.Ch. LEXIS 28 (2006)
ABRY Partners V, L.P. (buyer) (plaintiff), a sophisticated private-equity firm, agreed to purchase F&W Publications (company) from F&W Acquisition LLC and its owner, another sophisticated private-equity firm (sellers) (defendants). The purchase contract clearly stipulated that (1) the buyer relied on no information other than statements made in the agreement itself, (2) both the company and the sellers warranted the accuracy of those contractual statements, (3) the sellers would indemnify the buyer up to a limit of $20 million for any loss due to any misrepresentation of facts or breach of warranties contained in the contract, and (4) the parties specifically bargained for the indemnification clause and its cap and reflected that bargaining in the purchase price. After completing the purchase, the buyer found what it claimed to be evidence that the sellers materially misrepresented the poor state of the company’s finances and distribution system. The buyer filed suit in the Delaware Court of Chancery, accusing the sellers of fraud, swearing that its damages significantly exceeded the $20 million indemnification cap, and seeking to rescind the purchase contract or, in the alternative, to be fully indemnified for its damages. The sellers moved to dismiss the buyer’s petition in its entirety.
Rule of Law
Holding and Reasoning (Strine, J.)
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