Private Company Acquisitions: Negotiating and Navigating the Fraud Exception

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

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

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Conducted on Wednesday, February 15, 2023

Recorded event now available

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Course Materials

This CLE course will examine the game-changing role the fraud exception could play in private target M&A agreements, focusing 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.

In particular, for private equity and venture capital sellers, 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 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 the 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?


Deibert, Edward
Edward A. Deibert

Partner, Co-Head of M&A Practice
Arnold & Porter

Mr. Deibert has broad experience representing companies, private equity firms, venture capital funds, investment banks...  |  Read More

McLean, Sarah
Sarah McLean

Shearman & Sterling

Ms. McLean is a partner in the firm’s Mergers & Acquisitions Practice. Her practice focuses on private equity...  |  Read More

Stark, Lisa
Lisa R. Stark

K&L Gates

Ms. Stark has nearly 15 years of corporate experience in mergers and acquisitions, strategic investments, initial...  |  Read More

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