IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IAC SEARCH, LLC, ) ) Plaintiff, ) ) v. ) C.A. No. 11774-CB ) CONVERSANT LLC (f/k/a ) VALUECLICK, INC.), ) ) Defendant. )
MEMORANDUM OPINION
Date Submitted: September 20, 2016 Date Decided: November 30, 2016
Robert S. Saunders, Ronald N. Brown, III, and Matthew P. Majarian of SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, Wilmington, Delaware; Attorneys for Plaintiff.
Matthew E. Fischer, Timothy R. Dudderar, Christopher N. Kelly, and Andrew H. Sauder of POTTER ANDERSON & CORROON LLP, Wilmington, Delaware; Attorneys for Defendant.
BOUCHARD, C. In January 2014, IAC Search, LLC paid $90 million to purchase six
subsidiaries of ValueClick, Inc. The terms of the transaction are set forth in a
Stock and Asset Purchase Agreement dated December 8, 2013 (the “Agreement”).
In this action, IAC asserts that ValueClick fraudulently induced IAC to
overpay for one of the subsidiaries (Investopedia) by providing IAC with false
information concerning Investopedia’s ad sales during the due diligence process.
Although the Agreement contains express representations concerning certain
financial results and traffic metrics for Investopedia, IAC’s grievance is not based
on those representations but is premised instead on other information IAC received
during due diligence that the parties chose not to incorporate into an express
contractual representation. Apart from its fraud claim, IAC asserts that ValueClick
breached various provisions of the Agreement relating to the other subsidiaries it
acquired.
ValueClick has moved to dismiss all but one of IAC’s claims for failure to
state a claim for relief. For the reasons explained below, I conclude that most of
IAC’s contract claims state claims for relief, but that IAC’s fraud claim does not.
The most significant claim at issue is the fraud claim, which offers IAC the
prospect of seeking damages beyond the indemnification cap in the Agreement.
Resolution of that claim turns on application of this Court’s precedents addressing
anti-reliance clauses in purchase agreements. Applying those precedents, I find
1 that certain provisions of the Agreement add up to a clear disclaimer of reliance on
extra-contractual statements that bars IAC’s claim for fraud.
I. BACKGROUND
The facts in this opinion are drawn from the Amended Verified Complaint
(“Complaint”) and documents incorporated therein. 1
A. The Parties
Plaintiff IAC Search, LLC (“IAC”) is a subsidiary of IAC/InterActiveCorp,
a publically traded media and internet conglomerate that specializes in the areas of
search and applications, online dating, media, and e-commerce. IAC is a Delaware
limited liability company with its principal offices in New York, New York.
Defendant ValueClick, Inc. (“ValueClick”), which is now known as
Conversant LLC, is a Delaware corporation headquartered in Plano, Texas. It
offers digital advertising and marketing services to advertisers.
1 The incorporated documents, all of which are referenced or quoted in whole or in part in the Complaint, are attached as exhibits to the Transmittal Affidavit of Andrew H. Sauder (“Sauder Aff.”) that was submitted in support of ValueClick’s motion to dismiss. See Winshall v. Viacom Int’l, Inc., 76 A.3d 808, 818 (Del. 2013) (citations omitted) (“a plaintiff may not reference certain documents outside the complaint and at the same time prevent the court from considering those documents’ actual terms” in connection with a motion to dismiss).
2 B. Components of the Transferred Group’s Revenue Data
Under the Agreement, IAC purchased the stock of six subsidiaries of
ValueClick: ValueClick, AB, a Swedish company; ValueClick Brands, Inc., a
Delaware corporation; Pricerunner Denmark Aps, a Danish company;
Investopedia, LLC, a Delaware limited liability company (“Investopedia”);
ValueClick Korea, Inc., a California corporation; and Value Click Canada, Inc., a
Canadian corporation (the “Transaction”). These six entities are referred to in the
Agreement and herein as the “Transferred Group.”2
The Transferred Group’s websites generate revenue by selling and placing
internet advertisements mainly in the form of “display ads” shown to users
browsing a particular website. The $90 million transaction price allegedly was
driven largely by the future revenue streams expected from the Transferred
Group’s display ad revenues.
Two metrics are used to calculate a website’s total display ad revenue: (1)
the number of “display ad impressions” and (2) the cost charged for them. A
display ad impression is an advertisement shown to a particular webpage visitor.
The number of display ad impressions measures the number of times an
advertisement was shown to browsers. The cost-per-mille (“CPM”) is the amount
2 See Am. Compl. ¶¶ 19-21; Sauder Aff. Ex. 1 (“Agreement”) at 1.
3 of advertising revenue generated for every 1,000 display ad impressions. A
website’s total display advertising revenue is calculated by multiplying the number
of ad impressions by the CPM, and then dividing the product by 1,000.
In the ordinary course, advertisers purchase ad space on a website directly
from the website’s owner. These are known as premium ads. A website often
cannot sell all of its available ad space. The unsold space, known as “remnant”
inventory, is sold through third-party advertising networks that facilitate the last-
second auction of remnant ads to advertisers bidding in real time. Advertisers
generally pay less for remnant ads than they do for premium ads and thus the CPM
for remnant ads is generally lower than for premium ads. The higher the
percentage of low-earning remnant ads versus high-earning premium ads as a share
of a website’s total ad impressions, the lower the total ad revenue will be. If a
website sees the same amount of traffic, but its owner sells more of its inventory
directly as premium advertising, total revenue will be higher than if the inventory
is sold as remnant ads.
C. The Alleged Investopedia Fraud
IAC alleges that ValueClick falsified performance metrics regarding
Investopedia’s remnant ad revenue. According to IAC, ValueClick made these
misrepresentations during the due diligence process in documents placed in the
4 electronic data room and in statements ValueClick made in response to IAC’s
diligence requests in a system known as the “Diligence Tracker.”
More specifically, IAC alleges that ValueClick overstated the volume of
Investopedia’s remnant display ad impressions and understated its remnant CPM.
This had the effect of giving IAC the mistaken impression that Investopedia was
generating unusually low earnings per view compared to what IAC had achieved
for similar businesses. IAC asserts that it was fraudulently induced into purchasing
Investopedia with the illusion of a major opportunity to increase future revenue
flows by bringing Investopedia’s performance in line with that of IAC’s other
websites. Unlike IAC’s other claims, this claim is not subject to the $8 million
indemnity cap in the Agreement, which excludes damages for fraud. 3
D. The Alleged Misrepresentations Concerning the Third Party
Before the Transaction, the Transferred Group allegedly used email
marketing to drive traffic to websites employing the advertising services of a third
party (the “Third Party”). These marketing emails contain an advertisement that,
when clicked on, directs users to those websites. The terms and conditions
governing the use of the Third Party’s advertising services are set forth in an
agreement between one of the companies in the Transferred Group (ValueClick
3 See Agreement § 8.5(b)(i) (exempting from aggregate indemnity cap damages for fraud, intentional misrepresentation or intentional breach by ValueClick).
5 Brands, Inc.) and the Third Party (the “Third Party Contract”). According to IAC,
ValueClick’s use of email marketing violated the Third Party Contract and its
associated policies, which, in turn, caused ValueClick to breach a representation in
Section 3.27 of the Agreement.
In support of this claim, IAC points to two e-mails between ValueClick and
the Third Party dated December 6 and 17, 2013. In the December 6 email, a
representative of the Third Party notified ValueClick that the Third Party is “very
concerned” about “seeing [a] high volume of referral traffic campaigns going to
[ValueClick] sites for specific keywords, when there is a limited amount of search
results for that keyword,” and that “there have been advertiser complaints about
misleading email marketing campaigns that drive users to one of [ValueClick’s]
sites.” 4
The same representative followed up on December 17, stating in an e-mail
that the issues regarding misleading keywords had not been resolved and that the
Third Party’s traffic quality team is—
—still seeing campaigns going to landing pages where the articles offered aren’t answering the user’s original question (and therefore being deemed ‘irrelevant.’). It seems like the content being created is contextually relevant, but if there is a specific string of keywords that
4 Sauder Aff. Ex. 3.
6 hone in on a specific area, I want to make sure the answer to the user’s question is provided in the organic results articles.5
The representative offered an example of a keyword search that directed users to
an irrelevant site:
[I]f a user searches ‘What is the value of old coins’, a candofinance ad shows up that says ‘Old Coins Value – Search Online for Value & Worth of Old Coins’. The articles that it leads to all give the user information about selling the coins, but none of them actually help them determine what the value or worth of the old coin is (some highlight that knowing the value is important, but not how the [sic] determine the value). So the user’s original question is never answered with the content. 6
The representative then appeared to suggest that the use of email marketing was
not permitted under the Third Party’s policies:
3) Email – When reviewing the policies closer and the specific language around referral traffic, I found that referral traffic needs to be from an ad on a site, and that email marketing wouldn’t be included within potential referral traffic sources. If you could please work with your teams to make sure that referral traffic that is driving searches with [Service 1] calls on your sites are from ads on sites, that would be appreciated. 7
On January 3, 2013, one week before the Transaction closed, ValueClick
provided IAC with a declaration of Steve Neufer, then President of ValueClick, in
which he stated that “[a]t all times during the term of the [Third Party Contract], I 5 Sauder Aff. Ex. 4. 6 Id. 7 Id.
7 believe that [ValueClick] acted in good faith and complied with the requirements 8 of the [Third Party Contract].” Neufer further declared that it was his
understanding that the Third Party Contract “contemplated the use of email
traffic,” an understanding “informed by the parties’ course of conduct.”9 A copy
of the December 17 email was attached to the Neufer declaration, which
characterized that email as a “shift in [the Third Party’s] policy and course of
dealing with [ValueClick].” 10 The December 6 email was not discussed in or
attached to the Neufer declaration.
On January 9, 2014, the day before the Transaction closed, Neufer emailed a
representative of the Third Party indicating that he had directed ValueClick
personnel to “continue [the] status quo on email traffic” and suggesting that
ValueClick was prepared to “wind down” its use of e-mail marketing:
Thanks for the call today. While you guys continue to work this through, I have asked our folks to continue status quo on email traffic (with an emphasis on no increase in volume) until I receive either a schedule for an orderly wind down or notice of a hard stop from the Policy Team. Let me know if you have any concerns with this approach.11
8 Sauder Aff. Ex. 5 ¶ 3. 9 Id. ¶¶ 4-5. 10 Id. ¶ 9. 11 Sauder Aff. Ex. 6.
8 Section 7.3(a) of the Agreement obligated ValueClick to provide to IAC in
connection with the closing of the Transaction a certificate, signed by a duly
authorized officer of ValueClick, affirming that the representations in Section 3.27
of the Agreement “shall be true and correct in all respects, both when made and as
of the Closing Date.” ValueClick did not satisfy this requirement. Instead, the
officer’s certificate it provided to IAC, which was signed by ValueClick’s Chief
Financial Officer (the “Officer’s Certificate”), carved out Section 3.27 from the
representations to which it affirmed compliance. 12 In essence, the Officer’s
Certificate repeated the substance of the Neufer declaration, i.e., that ValueClick
believed “email marketing was permitted under [the Third Party Contract] as of the
date of the Agreement,” and that the December 17 e-mail “indicates that [the Third
Party] is changing its policy with respect to email traffic.” 13
E. The Alleged Misrepresentations Concerning Financial Statements
IAC alleges that certain financial statements ValueClick provided to IAC
were misstated because they failed to accurately reflect several transactions that
materially altered the financial position of the Transferred Group. The Complaint
identifies three such transactions, which are discussed below. IAC asserts that
12 Sauder Aff. Ex. 1. 13 Id. ¶ 4.
9 ValueClick never disclosed any of these transactions to IAC, or the errors and
omissions in accounting for them.
F. Procedural Posture
IAC filed this action on December 7, 2015, and amended its complaint on
February 29, 2016. The Complaint contains seven claims, one for fraud and six for
breach of the Agreement. On March 15, 2016, ValueClick moved to dismiss all of
these claims, except Count II, under Court of Chancery Rules 9(b) and 12(b)(6).
II. ANALYSIS
When considering a motion to dismiss under Court of Chancery Rule
12(b)(6), the Court “should accept all well-pleaded factual allegations in the
Complaint as true, accept even vague allegations in the Complaint as ‘well
pleaded’ if they provide the defendant notice of the claim, draw all reasonable
inferences in favor of the plaintiff, and deny the motion unless the plaintiff could
not recover under any reasonably conceivable set of circumstances susceptible of
proof.” 14 Under Court of Chancery Rule 9(b), fraud must be “pled with
particularity. Malice, intent, knowledge and other condition of mind of a person
may be averred generally.” 15
14 Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 536 (Del. 2011). 15 Del. Ch. Ct. R. 9.
10 A. The Agreement Bars IAC’s Fraud Claim
In Count I of its Complaint, IAC asserts that ValueClick fraudulently
induced IAC to overpay for Investopedia by providing IAC with false data relating
to Investopedia’s remnant ad sales. IAC does not challenge the accuracy of any of
the financial disclosures concerning Investopedia set forth in Schedule 3.7(a) of the
Agreement, or any of the traffic metrics for Investopedia set forth in Schedule 3.23
of the Agreement, both of which are the subject of express contractual
representations. 16 IAC’s fraud claim is premised instead on the accuracy of
information concerning Investopedia provided to IAC during due diligence that the
parties chose not to incorporate into an express representation or warranty in the
Agreement.
ValueClick argues that the Agreement, which is governed by Delaware 17 law, prohibits IAC from asserting a claim for fraud based on alleged
representations made to IAC during due diligence that are not expressly included
16 See Agreement § 3.7(a) (making various representations concerning the financial statements attached as Schedule 3.7(a)); § 3.23 (representing the accuracy and completeness of, among other things, traffic metrics set forth in Schedule 3.23). 17 Agreement § 10.8.
11 in a representation or warranty in the Agreement. 18 Three provisions of the
Agreement are relevant to this analysis: Sections 3.31, 4.7, and 10.6.
In Section 3.31 of the Agreement, ValueClick as the “Seller” disclaimed
making any extra-contractual representations:
Neither the Seller nor any of its Affiliates or Representatives is making any representation or warranty of any kind or nature whatsoever, oral or written, express or implied (including but not limited to, any relating to financial condition, results of operations, assets or liabilities of the Transferred Group), except as expressly set forth in this Article III, as modified by the Disclosure Schedules, and the Seller hereby disclaims any such other representations and warranties.
In Section 4.7 of the Agreement, IAC as the “Buyer” acknowledged that
ValueClick was not making any representation concerning information provided
during due diligence unless such information was included in an express
representation and warranty in the Agreement:
The Buyer is a sophisticated purchaser and has made its own independent investigation, review and analysis regarding the Transferred Group and the transactions contemplated hereby, which investigation, review and analysis were conducted by the Buyer together with expert advisors, including legal counsel, that it has engaged for such purpose. The Buyer acknowledges that neither the Seller nor any of its Affiliates or Representatives is making, directly or indirectly, any representation or warranty with respect
18 ValueClick also asserts that IAC failed to plead fraud with particularity and that the damages it suffered as a result of ValueClick’s fraud are speculative. I do not reach these issues because the provisions of the Agreement that add up to an anti-reliance disclaimer are dispositive of IAC’s fraud claim.
12 to any data rooms, management presentations, due diligence discussions, estimates, projections or forecasts involving the Transferred Group, including, without limitation, as contained in the Confidential Information Packet dated August 2013 and any other projections provided to Buyer, unless any such information is expressly included in a representation or warranty contained in Article III. Nothing in this Section 4.7 is intended to modify or limit any of the representations or warranties of the Seller set forth in Article III.19
I refer to this provision as the “Buyer’s Acknowledgement Clause.”
Finally, Section 10.6 of the Agreement contains a standard integration clause
defining the universe of writings that make up the parties’ agreement by which
IAC acquired the Transferred Group from ValueClick:
This Agreement (including the Exhibits and Schedules hereto), the Ancillary Agreements and the Confidentiality Agreement constitute the entire understanding and agreement, and supersede all prior written agreements, arrangements, communications and understandings and all prior and contemporaneous oral agreements, arrangements, communications and understandings between the parties with respect to the subject matter hereof and thereof.
Whether a purported disclaimer of extra-contractual representations may
shield a seller from fraud claims is the subject of a considerable body of case law
in this Court. Writing as a Vice Chancellor, Chief Justice Strine explained in Abry
Partners V, L.P. v. F & W Acquisition LLC that “murky integration clauses, or
standard integration clauses without explicit anti-reliance representations, will not
19 Agreement § 4.7 (emphasis added).
13 relieve a party of its oral and extra-contractual fraudulent representations.” 20
Continuing, he explained that to bar such claims:
The integration clause must contain language that can be said to add up to a clear anti-reliance clause by which the plaintiff has contractually promised that it did not rely upon statements outside the contract’s four corners in deciding to sign the contract. This approach achieves a sensible balance between fairness and equity—parties can protect themselves against unfounded fraud claims through explicit anti-reliance language. If parties fail to include unambiguous anti- reliance language, they will not be able to escape responsibility for their own fraudulent representations made outside of the agreement’s four corners.21
The Abry decision attempted to balance the law’s natural abhorrence of fraud and
the “strong American tradition of freedom of contract, [a] tradition [that] is
especially strong in our State, which prides itself on having commercial laws that
are efficient.”22
Last year, in Prairie Capital III, L.P. v. Double E Holding Corp., Vice
Chancellor Laster explained that “Delaware law does not require magic words” to
disclaim reliance, and that the specific language of an agreement may vary but still
“add up to a clear anti-reliance clause.”23 The Vice Chancellor went on to find that
20 891 A.2d 1032, 1059 (Del. Ch. 2006). 21 Id. (citations omitted). 22 Id. at 1059-60. 23 132 A.3d 35, 51 (Del. Ch. 2015).
14 the combination of a standard integration clause and a clause representing
“affirmatively” what information a buyer relied on, as opposed to one “framed
negatively,” barred fraud claims based on extra-contractual statements. 24
More recently, based on a review of Abry and this Court’s later decisions in
Prairie Capital and Anvil Holding Corp., 25 I explained in FdG Logistics LLC v.
A&R Holdings, Inc. that, in order to bar fraud claims, a disclaimer of reliance
“must come from the point of view of the aggrieved party,” meaning that it must
come from the buyer who is asserting the fraud claim. 26 An assertion from the
seller “of what it was and was not representing and warranting” is not sufficient
given the law’s abhorrence of fraud. 27
Here, the critical language in the Agreement that comes from the perspective
of the buyer is the Buyer’s Acknowledgement Clause in Section 4.7. In that
provision, IAC expressly acknowledged that ValueClick was not “making, directly
or indirectly, any representation or warranty” with respect to any information it
24 Id. 25 Anvil Holding Corp. v. Iron Acquisition Co., Inc., 2013 WL 2249655, at *8 (Del. Ch. May 17, 2013) (finding that a standard integration clause and a disclaimer from the seller did not “reflect a clear promise by the Buyer that it was not relying on statements made to it outside of the Agreement to make its decision to enter into the Agreement”). 26 131 A.3d 842, 860 (Del. Ch. 2016). 27 Id.
15 received in due diligence “unless such information is expressly included in a
representation and warranty” in the Agreement. Significantly, this provision is
substantively identical to the “critical provision” that the Court in Abry found to
“define what information the Buyer relied upon in deciding to execute the
Agreement.” 28 The Abry provision stated, in relevant part, that:
Acquiror acknowledges and agrees that neither the Company nor the Selling Stockholder has made any representation or warranty, express or implied, as to the Company or any Company Subsidiary or as to the accuracy or completeness of any information regarding the Company or any Company Subsidiary furnished or made available to Acquiror and its representatives except as expressly set forth in this Agreement. 29
Similar to the above provision from Abry, the Buyer’s Acknowledgement Clause
here defines in precise terms from IAC’s perspective as the buyer the universe of
information on which IAC relied and did not rely when it entered into the
Agreement through IAC’s express acknowledgement that ValueClick was making
no representation about information provided during due diligence, except as
28 891 A.2d at 1041. 29 Id. In a footnote argument, IAC attempts to distinguish the provision in Abry on the theory that it operates “retrospectively as a promise that neither seller ‘had made any representation or warranty’ in the due diligence process” while the clause at issue here “is written in the present tense.” Pl’s Ans. Br. at 29-30 n.9. This argument is meritless. By its plain terms, the Buyer’s Acknowledgement Clause operates retrospectively by encompassing due diligence materials (including “any data rooms, management presentations, due diligence discussions, estimates, projections or forecasts involving the Transferred Group”) that necessarily were provided to IAC before it signed the Agreement.
16 otherwise provided in an express representation in the Agreement. As the Court
explained in Prairie Capital, it is not necessary that such a provision be “framed
negatively” in terms of what the buyer did not rely on; it is sufficient if the contract
states affirmatively what the buyer did rely on. The Buyer’s Acknowledgement
Clause here, like the similar provision in Abry, does that.30
As IAC notes, Section 7.8 of the agreement in Abry contained an additional
clause not present in the Buyer’s Acknowledgement Clause, in which the buyer
further acknowledged that the seller would not be liable to the buyer for
misstatements made during due diligence:
… neither the Company nor the Selling Stockholder shall have or be subject to any liability to Acquiror or any other person resulting from the distribution to Acquiror, or Acquiror’s use of or reliance on, any such information or any information, documents or material made available to Acquiror in any “data rooms,” “virtual data rooms,” management presentations or in any other form in expectation of, or in connection with the transactions contemplated hereby. 31
Although this “release” clause reinforces the limiting effect of the
acknowledgement provision in the Abry agreement, and its absence here makes 30 During oral argument, IAC suggested that an earlier draft of the Agreement contained a negative disclaimer from the buyer that was removed from the final document. See Tr. at 59 (Sept. 20, 2016). Apart from the fact that a negative disclaimer is not essential to bar fraud claims for extra-contractual statements, as discussed above, this point was not included in IAC’s Complaint or its brief, and thus any argument based on it is waived. See Emerald Partners v. Berlin, 726 A.2d 1215, 1224 (Del. 1999) (“Issues not briefed are deemed waived.”). 31 891 A.2d at 1041.
17 this case a closer call than Abry, the combined effect of the Buyer’s
Acknowledgement Clause and the integration clause in Section 10.6 of the
Agreement nonetheless add up in my opinion to a clear anti-reliance clause to bar
fraud claims based on extra-contractual statements made during due diligence.
That is because the integration clause defines the universe of writings reflecting the
terms of IAC’s agreement to purchase the Transferred Group, and the Buyer’s
Acknowledgement Clause explains in clear terms from the perspective of the buyer
the universe of due diligence information on which IAC did and did not rely when
it entered into the Agreement.
It is a basic axiom of contract law that every provision of a contract should
be interpreted to have a purpose. 32 Recognizing that its interpretation of the
Agreement must adhere to this fundamental principle, IAC argues that the Buyer’s
Acknowledgement Clause “at most . . . means that IAC may not sue ValueClick
for breach of contract, or seek contractual indemnification, on account of
ValueClick’s fraud relating to the Investopedia remnant ad metrics.”33 I disagree.
32 See, e.g., Salamone v. Gorman, 106 A.3d 354, 368 (Del. 2014) (citations omitted) (“When interpreting a contract, this Court will . . . constru[e] the agreement as a whole and giv[e] effect to all its provisions.”); Norton v. K-Sea Transp. Partners L.P., 67 A.3d 354, 360 (Del. 2013) (same); Zimmerman v. Crothall, 62 A.3d 676, 691 (Del. Ch. 2013) (“Courts also attempt to give meaning and effect to each word in a contract, assuming that the parties would not include superfluous verbiage in their agreement.”). 33 Pl’s Ans. Br. at 29.
18 The integration clause in the Agreement already bars contract claims based
on “all prior written agreements” not listed in Section 10.6 as well as “all prior and
contemporaneous oral agreements,” 34 and Sections 8.2 and 8.7 of the Agreement
already exclude fraud as a ground for indemnification from the seller. 35 IAC’s
theory would render the Buyer’s Acknowledgement Clause duplicative of these
provisions, contrary to basic principles of contract construction. 36 The Buyer’s
Acknowledgement Clause, moreover, does not distinguish between fraud and
breach of contract. If the plain language of the Buyer’s Acknowledgement Clause
eliminates, as IAC concedes it does, ValueClick’s liability for breach of contract
arising from extra-contractual misstatements, and does not specify particular
categories of liability that are exempted by its operation, it stands to reason that it
would eliminate all forms of liability for those misstatements.
34 See,e.g., Addy v. Piedmonte, 2009 WL 707641, at *9 (Del. Ch. Mar. 18, 2009) (“Clauses indicating that the contract is an expression of the parties’ final intentions generally create a presumption of integration.”); Rhodes v. Silkroad Equity, LLC, 2007 WL 2058736, at *7 (Del. Ch. July 11, 2007) (dismissing breach of oral obligation claim because “nothing is alleged in the Complaint to suggest that the integration clause does not properly bar certain oral commitments the Defendants made prior to execution of the Acquisition Agreement”). 35 See Agreement § 8.2 (enumerating grounds for indemnification from seller), § 8.7 (excluding claims for fraud from “exclusive remedy” of indemnification). 36 See, e.g., Zimmerman, 62 A.3d at 691 (courts assume that parties would not include “superfluous verbiage” in an agreement).
19 Finally, it bears remembering that as much as this Court’s jurisprudence is
informed by a strong public policy against fraud, it also is informed by the equally
important policy of respecting freedom of contract. IAC, a multi-billion dollar
internet company, affirmatively represented that it is a “sophisticated purchaser”
that had made its “own independent investigation” concerning the Transferred
Group with the assistance of “expert advisors” before entering into the
Agreement. 37 IAC procured for itself in the Agreement express representations
concerning the accuracy of certain Investopedia financial information and traffic
metrics, about which it brings no claim. And, as explained above, IAC agreed to
language in the Agreement that defines what information it did and did not rely on
when it executed the Agreement. To permit IAC to now assert a fraud claim
against ValueClick, based on Investopedia data provided during due diligence but
never made the subject of an express representation in the Agreement, would, to
borrow Chief Justice Strine’s words, “excuse a lie made by [IAC] in writing” that
ValueClick made no such extra-contractual representations.38 For this reason, and
the others explained above, Count I is dismissed for failure to state a claim for
relief.
37 Agreement § 4.7. 38 Abry, 891 A.2d at 1058.
20 B. The Third Party Claims 39
The Complaint includes three claims for breach of contract concerning
ValueClick’s use of email marketing to drive traffic to advertising services
provided by the Third Party. Two of these claims (Counts III and IV) are asserted
under Section 3.27 of the Agreement. The third claim (Count VI) is asserted under
Section 5.1(i) of the Agreement.
In Section 3.27 of the Agreement, ValueClick as the “Seller” made the
following representations:
Since May 15, 2013 and through the Closing Date, Seller has, and all members of the Transferred Group have, complied in all material respects with (i) the terms and conditions of all contracts listed on Schedule 5.15 of the Disclosure Schedules, and (ii) the general business-related policies and procedures governing the business relationship between the party listed on Schedule 3.27(ii) of the Disclosure Schedules or its subsidiaries and their contractual counterparts.
The Third Party Contract is the only one listed on Schedule 5.15 and the Third
Party is the only one listed on Schedule 3.27(ii). Thus, Section 3.27 of the
Agreement is only relevant to ensuring ValueClick’s compliance with the Third
Party Contract and the business-related policies of the Third Party during the
specified period. 39 The Third Party Contract is governed by California law. Sauder Aff. Ex. 2 (“Third Party Contract”) § 17.5. The parties did not present any argument in their briefs based on California contract law, and relied instead on principles of Delaware contract law when addressing the sufficiency of claims based on the Third Party Contract. Accordingly, I do the same for purposes of this decision.
21 “In order to survive a motion to dismiss for failure to state a breach of
contract claim, the plaintiff must demonstrate: first, the existence of the contract,
whether express or implied; second, the breach of an obligation imposed by that
contract; and third, the resultant damage to the plaintiff.” 40 “Proof of [alleged]
damages and of their certainty need not be offered in the complaint in order to state
a claim.” 41
IAC has satisfied the first and third elements for Counts III, IV, and VI. It
has pled the existence of the Agreement as the basis for each of these claims, and it
has sufficiently alleged “resultant damage” on the theory that IAC overpaid to
acquire the Transferred Group due to ValueClick’s alleged breach of the
representations it made in Section 3.27 and the covenant it undertook in Section
5.1(i). The sufficiency of the Complaint’s allegations with respect to the second
element—the alleged breach of an obligation imposed by the Agreement—is
considered below for each of IAC’s asserted claims concerning the Third Party.
40 VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d 606, 612 (Del. 2003). 41 Anglo Am. Sec. Fund, L.P. v. S.R. Global Int’l Fund, L.P., 829 A.2d 143, 156 (Del. Ch. 2003).
22 1. Count III Fails to State a Claim for Breach of Section 3.27 of the Agreement with respect to ValueClick’s Compliance with Section 2.2(a) of the Third Party Contract.
In Count III, IAC asserts that ValueClick breached the representation it
made in Section 3.27 of the Agreement because “ValueClick used email marketing
to drive traffic to the Third Party’s advertising services despite that doing so was
not permitted by the Third Party Contract.” 42 The Complaint identifies only one
provision of the Third Party Contract that ValueClick allegedly breached in this
respect: Section 2.2(a). 43
Section 2.2(a) of the Third Party Contract states that, “[a]fter the launch of
any [Advertising Services], for the remainder of the Term, [the Third Party] will
make available and [ValueClick] will implement and maintain each of the
[Advertising Services] on each of the Sites and Approved Client Applications.”
Section 2.2(a) does not mention email marketing, and IAC has not offered any
explanation how the plain language of this provision, which appears only to
allocate post-launch responsibilities between the Third Party and ValueClick, was
breached by virtue of ValueClick’s alleged use of email marketing.44 Nor does the
42 Pls’ Ans. Br. at 42 (citing Am. Compl. ¶¶ 82-90). 43 Am. Compl. ¶ 84. 44 Indeed, IAC admitted it could not point to any language in the Third Party Contract that prohibits e-mail marketing. Tr. at 102 (Sept. 20, 2016).
23 Complaint allege that ValueClick otherwise failed to “implement and maintain”
the advertising services it promised to perform under Section 2.2(a). Accordingly,
Count III fails to state a claim for breach of Section 3.27 of the Agreement relating
to ValueClick’s compliance with Section 2.2(a) of the Third Party Contract.
2. Count IV States a Claim for Breach of Section 3.27 of the Agreement with respect to ValueClick’s Compliance with the Third Party’s Policies.
In Count IV, IAC asserts that ValueClick violated “Third Party policies, as
specifically prohibited by the Third Party Contract.” 45 IAC advances two theories
by which ValueClick allegedly breached the representations it made in Section
3.27 concerning the Transferred Group’s compliance with the Third Party’s
policies.
The first theory follows from ValueClick’s representation in Section 3.27(i)
that all members of the Transferred Group complied during the relevant period in
all material respects with the terms and conditions of the Third Party Contract. In
that regard, the Complaint alleges that ValueClick and the Transferred Group
breached Section 2.3 of the Third Party Contract, which required them “to adhere
to the Third Party’s policies barring keyword abuse.” 46
45 Pls’ Ans. Br. at 42 (citing Compl. ¶¶ 91-95). 46 Am. Compl. ¶ 92. Section 2.3 of the Third Party Contract required ValueClick to “use Referral Sources to drive traffic to Results Pages . . . subject to the conditions in Exhibit
24 The second theory follows from ValueClick’s representation in Section
3.27(ii) that all members of the Transferred Group complied during the relevant
period in all material respects with “the general business-related policies and
procedures governing” their business relationship with the Third Party. Relatedly,
Section 2.2(c) of the Third Party Contract required ValueClick Brands, Inc. to
implement and maintain the Advertising Services in accordance with the Third
Party’s “Branding” and “Program” Guidelines.
The same factual allegations underlie both theories. IAC alleges that
ValueClick violated the Third Party’s policies by using “keywords to trigger
results pages that were not consistent with, or relevant to or accurately descriptive
of the Referral Sources or Search Queries . . . used to acquire the traffic.”47 It also
alleges that ValueClick “hosted landing pages containing content that was
insufficiently relevant or of no relevance at all to a particular Referral Source or
Search Query, and purchased certain keywords without the licenses or approvals
required to do so,” also in violation of the Third Party’s policies. 48
C” of the Third Party Contract. Exhibit C, in turn, required that “[e]ach Referral Source” satisfy certain conditions “as reasonably determined” by the Third Party. Third Party Contract at 15. 47 Am. Compl. ¶ 92. 48 Id. ¶ 93.
25 As further evidence that ValueClick violated the Third Party’s policies, the
Complaint references the December 6, 2013 and December 17, 2013 emails,
discussed previously, which fall within the period relevant to Section 3.27, i.e.,
between May 15, 2013 and the closing of the Transaction on January 10, 2014.
The December 6 email noted “concerning patterns around keyword and landing
pages and advertiser complaints about misleading email marketing campaigns.” 49
In the December 17 email, a representative of the Third Party more pointedly
suggested that the use of email marketing was not permitted under its policies.50
The Complaint also plausibly alleges that ValueClick’s refusal to provide to IAC
an Officer’s Certificate at the closing of the Transaction attesting to ValueClick’s
compliance with Section 3.27 of the Agreement amounts to an admission that its
representations in Section 3.27 were false. 51 In sum, although it is not clear
precisely which policies of the Third Party allegedly were violated, the foregoing
allegations of the Complaint, taken together, easily satisfy the reasonable
49 Id. ¶ 94 (quoting the December 6 email). More specifically, the text of the December 6 email reveals that the Third Party found “high volumes” of referral traffic going to ValueClick’s sites for “specific keywords, when there is only a limited amount of search results for that keyword,” and discusses advertiser complaints about “misleading email marketing campaigns that drive users to [ValueClick] sites.” Sauder Aff. Ex. 3 at 2. The email noted that “[o]ur traffic quality team is very concerned that they are still seeing these patterns and hearing these complaints from advertisers.” Id. 50 See supra § I.D, text accompanying notes 5-7. 51 Am. Compl. ¶ 95.
26 conceivability standard to state a claim for breach of Section 3.27 with respect to
ValueClick’s compliance with the Third Party’s policies.
Apart from taking issue with the substance of IAC’s factual allegations,
which is improper on a motion to dismiss, 52 ValueClick implies that IAC waived
its right to assert a claim under Section 3.27 by accepting the Officer’s Certificate
and proceeding to close the transaction. This argument is without merit.
Under Section 10.3 of the Agreement, a “waiver shall be valid only if set
forth in a written instrument executed and delivered by a duly authorized officer on
behalf of such party.” Section 10.3 further provides that “[n]o action taken
pursuant to this Agreement … shall be deemed to constitute a waiver by the party
taking such action of compliance with any representation, warranty, covenant or
agreement contained herein.” But ValueClick does not contend that IAC ever
executed and delivered a written waiver as Section 10.3 requires, and it fails to
explain how IAC’s acceptance of the Officer’s Certificate, which reasonably could
be viewed as an act “taken pursuant to Agreement,” could amount to a waiver
52 See, e.g., BAE Sys. N. Am. Inc. v. Lockheed Martin Corp., 2004 WL 1739522, at *6-7 (Del. Ch. Aug. 3, 2004) (inappropriate to decide questions of fact on motion to dismiss).
27 when Section 10.3 says the opposite. i.e., that any such action shall not “be deemed
to constitute a waiver … of compliance with any representation ….” 53
For the reasons explained above, Count IV states a claim for relief.
3. Count VI States a Claim for Breach of Section 5.1(i) of the Agreement.
ValueClick covenanted in Section 5.1(i) of the Agreement not to “extend,
modify or amend in any material respect, . . . or waive any material benefit under”
the Third Party Contract. IAC asserts in Count VI of the Complaint that
ValueClick breached these obligations by “agreeing not to expand the Transferred
Group’s email marketing business.”54 For support, IAC points to Neufer’s January
9, 2014 email, which was sent the day before the Transaction closed. It states: “I
have asked our folks to continue status quo on email traffic (with an emphasis on
no increase in volume) until I receive either a schedule for an orderly wind down
or notice of a hard stop from the Policy Team.” 55
53 Relying on Section 2.2 of the Agreement, ValueClick asserts that “closing can occur only after satisfaction or waiver of all closing conditions.” Def.’s Op. Br. at 34. Although compliance with Section 3.27 “as of the Closing Date” was a condition of closing, the Agreement also expressly provides that Section 3.27 is one of the “Fundamental Representations” that “shall survive indefinitely” after the closing. See Agreement §§ 7.3(a), 8.1. 54 Am. Compl. ¶ 118. 55 Sauder Aff. Ex. 6.
28 ValueClick responds that Section 17.7 of the Third Party Contract requires
that “[a]ny amendment must be in writing signed by both parties and expressly
state that it is amending this Agreement,” and that IAC has not alleged any facts
suggesting that this requirement was met. Although that appears to be correct,
drawing all reasonable inferences in IAC’s favor at this stage of the case, as I must,
Count VI states a claim for relief. In particular, the references to an “orderly wind
down” and “hard stop” in Neufer’s January 9 e-mail can be read to support IAC’s
theory that ValueClick was prepared to waive a right it previously believed it had
to use e-mail marketing.56 At a minimum, a factual dispute exists on this issue that
cannot be resolved at the pleadings stage.57 Accordingly, Count VI states a claim
for relief.
C. Count V States a Claim for Breach of Section 3.7 of the Agreement.
IAC asserts in Count V of the Complaint that ValueClick breached Section
3.7 of the Agreement. In Section 3.7, ValueClick represented and warranted,
among other things, that: (a) certain “Financial Statements” attached as Schedule
3.7(a) “fairly present, in all material respects, the consolidated financial position
56 Tr. at 80-81 (Sept. 20, 2016). 57 See, e.g., BAE, 2004 WL 1739522, at *6-7 (Del. Ch. Aug. 3, 2004) (inappropriate to decide questions of fact on motion to dismiss).
29 . . . of the Transferred Group,” that (b) ValueClick and the members of the
Transferred Group each maintained “accurate books and records that in all material
respects reflect their respective assets and liabilities,” and that (c) “[t]here are no
debts, liabilities or obligations . . . of the Transferred Group . . . required to be
reflected or reserved against on a consolidated balance sheet of the Transferred
Group” other than those “incurred . . . after the date of the Balance Sheet but on or
before the date of this Agreement.”
ValueClick argues that Count V fails to state a claim for relief because the
Complaint’s allegations are too conclusory and because IAC has failed to plead
that it suffered any loss recoverable under the Agreement. These arguments fail.
At this stage of the case, IAC need “only give the defendant fair notice of a
claim.” 58 It has done so. The Complaint identifies and quantifies three allegedly
non-conforming balance sheet items:
• A claimed $93,000 receivable from a customer (Flash IT) that was uncollectible because Flash IT was insolvent.
• A $101,000 liability in the form of payments one member of the Transferred Group (ValueClick Brands, Inc.) owed to a third party during the pre-closing period that was not reflected in ValueClick’s books and records.
58 Cent. Mortg. Co., 27 A.3d at 536.
30 • A $58,000 payment an affiliate of a Transferred Group member owed that was not reflected in ValueClick’s books and records. 59
Two of these items reflect liabilities not reflected in ValueClick’s books and
records even though it is reasonably conceivable that they should have been, and
the third reflects a receivable on paper that allegedly was uncollectable in reality.
These facts are sufficient to support a reasonable inference that the representations
made in Section 3.7 of the Agreement were breached.
As to ValueClick’s second line of attack, even though a plaintiff need not
offer proof of damages in its pleading to state a claim for relief, 60 the Complaint
alleges “at a minimum” $252,000 in damages from the alleged financial
misrepresentations.61
For the reasons explained above, Count V states a claim a relief.
D. Count VII States a Claim for Indemnification
IAC asserts in Count VII that ValueClick breached Section 8.2 of the
Agreement, which requires ValueClick to “. . . indemnify and hold harmless [IAC]
and its Affiliates . . . from and against any and all losses, damages, liabilities,
deficiencies, claims . . . to the extent resulting from . . . any breach or failure to
59 Am. Compl. ¶ 104. 60 See Anglo Am. Sec. Fund, L.P. v. S.R. Global Int’l Fund, L.P., 829 A.2d 143, 156 (Del. Ch. 2003). 61 Am. Compl. ¶ 110.
31 perform any covenant or agreement” contained in the Agreement. Count VII is
entirely derivative of the claims in the Complaint (Counts II-VI) asserting that
ValueClick breached the Agreement. Because Count II is not subject to the
present motion to dismiss, and because the motion to dismiss the breach of contract
claims in Counts IV, V, and VI will be denied for the reasons explained above,
Count VII survives as well.
III. CONCLUSION
For the foregoing reasons, IAC has failed to state a claim for relief with
respect to Counts I and III of the Complaint. Accordingly, ValueClick’s motion to
dismiss is GRANTED with respect to those two claims, but is otherwise DENIED
with respect to Counts IV, V, VI, and VII of the Complaint.
IT IS SO ORDERED.