The Delaware Supreme Court, in The Claros Diagnostics, Inc. Shareholder Representative Committee v. OPKO Health, Inc., C.A. No. 2019-0262-SG, memo. op. (Del. Ch. Feb. 19, 2020), found buyer’s untimely claims for fraudulent inducement and breach of reps and warranties lacked a sufficient to seller’s claim for an unpaid earnout, and could not be revived as recoupment defenses.
K&L Gates discusses the decision in Chancery Court Denies Purchaser’s Theory of Recoupment With Time – Barred Claims to Offset Post-Merger Earn-Out Payments.