Negotiating and Navigating the Fraud Exception in Private Company Acquisitions

Key Considerations For Drafting a Fraud Exception to an M&A Contractual Indemnification Provision

Recording of a 90-minute premium CLE webinar with Q&A

Conducted on Wednesday, January 8, 2020

Recorded event now available

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Program Materials

This CLE webinar will examine the game-changing role the fraud exception could play in private target M&A agreements, with a focus on contouring limitations on indemnification and other remedies based on fraud claims.


Could one party's optimism be another party's fraud? High profile busted deals remind us that, when fraud looms, all bets are off on those otherwise carefully crafted contractual provisions so typical in M&A deals.

For private equity and venture capital sellers in particular, thoughtful limitations on liability could make the difference between a "good deal" and a "not-worth-it deal." For buyers, it could mean the difference between being a "visionary CEO"--or a "hapless CEO."

Our panel of seasoned M&A attorneys, with a healthy dose of reality from a Delaware litigator's perspective, will illustrate the role of the fraud exception in private company acquisitions, highlighting negotiation and drafting strategies to help you deftly put the genie back into the 11th-hour bottle.

Listen as our panel discusses critical considerations when drafting a fraud exception to an indemnification provision, strategies that can be implemented for seller or buyer when negotiating the fraud exception, and ways to juggle competing interests of multiple selling stockholders (e.g., lead vs. coattail investors).



  1. What is a fraud exception and who cares?
  2. Recent case law impacting fraud remedies in M&A
  3. Practical negotiation strategies


The panel will review these and other highly relevant issues:

  • What strategies can limit (for the seller) or preserve (for the buyer) the fraud remedy's "Sword of Damocles"?
  • What critical considerations should counsel contemplate when drafting a fraud exception to an indemnification provision?


Chu, Wilson
Wilson Chu

McDermott Will & Emery

Mr. Chu’s practice focuses on M&A, joint ventures, and other strategic transactions, as well as, related...  |  Read More

Hidalgo, P. Gregory
P. Gregory Hidalgo

Katten Muchin Rosenman

As a transactional and securities lawyer, Mr. Hidalgo counsels and provides innovative and client-centered...  |  Read More

Pearlman, Jessica
Jessica C. Pearlman

K&L Gates

Ms. Pearlman represents companies in various corporate, securities and finance matters, with an emphasis on...  |  Read More

Srinivas M. Raju

Richards Layton & Finger

Mr. Raju focuses his practice on corporate advisory, corporate governance, transactional, and complex litigation...  |  Read More

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