A recent decision of the Delaware Court of Chancery provides a cautionary tale for corporate and commercial litigation practitioners about the importance of complying with contractual notice deadlines. In PR Acquisitions, LLC v. Midland Funding LLC, C.A. No 2017-0465-TMR (Del. Ch. April 30, 2018), the court barred a claim made for funds held in escrow because the applicable agreement required notice to be sent to the seller, but instead notice was mistakenly sent to the escrow agent. Although actual notice by phone was given to the seller prior to the deadline, the court explained why that did not satisfy the manner of notice required by the deadline provided for in the agreement.
Brief Factual Background
The basis for the dispute between the parties was the sale of consumer debt accounts. The purchase and escrow agreements for the transaction required that claims for funds held in escrow based, for example, on allegations of breach of representations and warranties, be sent to an address for the seller provided in the agreement. The seller’s liability for those claims was limited to the $6 million held in escrow. The court found that no written request or documentation of a claim was sent to the seller by the deadline. The court described how the buyer’s general counsel gave the notice letter to his assistant, but according to the opinion, the letter was only sent to the escrow agent and not the seller directly as required by the agreement. Despite this “clerical error”, the seller was notified by phone of the claim by the deadline.
The court rejected the buyer’s argument that actual notice to the seller by phone should suffice as substantial compliance with the deadline. Nor was the court persuaded by the argument that the agreement did not require “strict compliance” with the notice provision.
Strict Compliance Required for Notice Provisions for Contract Claims
Notably, the court supported its holding in large part by distinguishing several cases that the buyer relied on for its failed argument that “actual notice” should suffice as “substantial compliance” with a contractual notice provision. The cases that the court distinguishes are cited at footnotes 71, 75, 79, and 88, and accompanying text. None of those cases that the buyer relied on allowed for substantial compliance when the agreement specified a particular method of delivery to a specific party by a fixed deadline–as a condition for claims to an escrow fund. The buyer offered “no reason other than its own error for its failure to comply with the notice provision in the escrow agreement.” Thus, the court granted summary judgment to the seller and barred the claims.
Liability Limited to Escrow Funds
The court also dismissed claims of fraud that would have circumvented the buyer’s claim that the seller’s limitation of liability should not be confined to the funds held in escrow. The buyer’s argument on this point was based on the decision in Abry Partners V, L.P. v. F & W Acquisitions LLC, 891 A.2d 1032, 1050 (Del. Ch. 2006). The court explained that Abry did not help the buyer in this case. The Abry opinion, authored by the current Chief Justice of Delaware when he was a Vice Chancellor, announced that the “public policy of Delaware prohibits a seller from insulating itself from the possibility that the sale would be rescinded if the buyer can show either: 1) that the seller knew that the Company’s contractual representations and warranties were false; or 2) that the seller itself lied to the buyer about a contractual representation and warranty.” 891 A.2d at 1064.
In order to make the showing explained in Abry, the buyer must “prove that the seller acted with an illicit state of mind, in the sense the seller knew that the representation was false and communicated it to the buyer. The buyer may not escape the contractual limitations on liability by attempting to show that the seller acted in a reckless, grossly negligent, or negligent manner.” Id. This statement of the law needs to be contrasted with the limitations of liability in an agreement that, if carefully drafted, will be enforced in Delaware to limit liability of the parties for representations and warranties to only that which is explicitly stated in the agreements between the parties.