Canadian M&A Perspectives Private and Public Mergers & Acquisitions | Private Equity

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Sandbagging in Good Faith: How Bhasin v Hrynew Can Impact Indemnification for Known Breaches

Posted in Contractual Matters, Strategy

In the context of a merger or acquisition, a vendor may unknowingly make untrue representations about the target business. “Sandbagging” occurs when a buyer discovers such misrepresentations prior to closing and seeks to enforce indemnity provisions after closing.  The success of such claims will depend on the following:

  • The Terms of the M&A Agreement. If the parties expressly agree that the buyer’s knowledge will (or will not) bar post-closing indemnification, Canadian courts will consider, and likely respect, the parties’ intentions.
  • The Common Law. In Bhasin v Hrynew (“Bhasin”), the Supreme Court of Canada articulated a general duty of
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