Extracontractual Fraud Claims Are Like Zombies

Law360, New York ( March 9, 2016, 10:42 AM EST) -- Ken Adams, a contract drafting guru with a well-read blog,[1] recently noted, in the Law Society Gazette,[2] that contract drafting is a function both of knowing what to say, as well as knowing how to say it. While that may sound simple, it's not. Good contract drafting is an acquired skill, requiring training, practice and constant vigilance in staying current with the reported decisions of the courts that might be called upon to interpret the agreements you draft. A recent example of a case that falls into the category of reported decisions meriting a contract drafter's attention is the Feb. 23, 2016, Delaware Court of Chancery decision in FdG Logistics LLC v. A&R Logistics Holdings Inc.[3] This case once again reminds the private equity deal world of just how potent post-closing fraud claims can be in eviscerating the bargained-for caps on indemnification contained within the purchase and sale agreement....

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