basis for a fraud claim in Delaware

2025Trust v. Ernst & Young, L.L.P., 906 A.2d 168, 209 (Del. Ch. 2006) (explaining “statements of expectation or opinion about the future of the company and the hoped for results of business strategies” are “generally not actionable” for fraud claims); Solow v. Aspect Res., LLC, 2004 WL 2694916 , at *3 (Del. Ch. Oct. 19, 2004) (concluding statements praising a party’s “skill, experience, and resources . . . cannot form the basis for a fraud claim.”). 24 March 28 Call.

2018The fact that actual performance falls short of forecasted performance “does not buttress a fraud claim.”120 Moreover, Buyers fail to “set forth particularized facts regarding the precise estimates in question [and] the circumstances suggesting they were unsound from the inception . . . .” 121 The alleged representations about management’s abilities and future performance are similarly insufficient; such representations “are mere puffery and cannot form the basis for a fraud claim.”122 Even if Buyers had pled sufficient facts to satisfy the remaining fraud elements, they have failed to plead f

2021See, e.g., Airborne Health, Inc. v. Squid Soap, LP, 984 A.2d 126, 136-37 (Del. Ch. 2009) (“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.” (citation omitted)). 144 KAABOO & Managers Op. Br. 15-17 (omitting discussion of the parenthetical language in § 7.15). 145 See Sonitrol Holding Co. v. Marceau Invs., 607 A.2d 1177, 1183 (Del. 1992) (“[A] contract should be interpreted in such a way as to no

2021Corp. 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 b

2021Bus., 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 t

2021Ch. 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.

2021Lo70s argues that its statements about its workforce are non-actionable puffery. “[A] company’s optimistic statements praising its own ‘skills, experience, and resources’ are ‘mere puffery and cannot form the basis for a fraud claim.’”118 Kubient alleges that Lo70s made false representations that they had an experienced salesforce and had a team of expert media planners, buyers and sellers.119 Lo70s also represented that their sales team could maximize revenue from Kubient’s existing customers “due to Lo70s’ unique market sophistication.”120 These are the kind of “vague statements that a comme

2006Corp. v. Pharmacia Corp., 788 A.2d 544, 554 (Del.Ch.2001) (explaining that predictions about the future and mere opinions cannot give rise to actionable common law fraud); see also Consol.

2024Corp., 2008 WL 5352063 , at *8 (Del. Ch. Dec. 23, 2008) (holding statements to be “mere pun and puffery” where defendant “promised that with his expertise and management he would expand the mail business” and that the existing “postal business and the Fleet were just a ‘postage stamp of [what the defendant could] orchestrate this mail business to be’”); Lazard Debt Recovery GP, LLC. v. Weinstock, 864 A.2d 955, 971 (Del. Ch. 2004) (holding statements in which party touted its “ideal work environment” and “unique resources” to be “at best enthusiastic puffery that no rational prospective investo

2022Del. 2001); Geyer v. Ingersoll Publications Co., 621 A.2d 784, 793 (Del.

2022Super.); LaSalle Nat. 11 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.”13 Delaware law disregards “non-recourse clauses where the parties purportedly insulated by those clauses were complicit in contractual fraud.”14 “The speaker who makes a false representation is, of course, accountable for it.”15 “‘[A] corporate officer can be held personally liable for the torts he commits and cannot shield himself behind a corporatio

2021See, e.g., Airborne Health, Inc. v. Squid Soap, LP, 984 A.2d 126, 136-37 (Del. Ch. 2009) (“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.” (citation omitted)). 144 KAABOO & Managers Op. Br. 15-17 (omitting discussion of the parenthetical language in § 7.15). 145 See Sonitrol Holding Co. v. Marceau Invs., 607 A.2d 1177, 1183 (Del. 1992) (“[A] contract should be interpreted in such a way as to no

2021Corp. 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 b