In this May 2011 blog post discussing the Texas Supreme Court’s opinion in Italian Cowboy Partners, I acknowledged that if you want to increase the odds of avoiding fraud liability for extracontractual statements of fact, it would be prudent to use “no reliance” language instead of just saying that Acme has made no representations other than those stated in the contract. (In standard “no reliance” language, a party states that it’s not relying on any representations other than those in the contract.) And in that blog post I proposed my own enhanced “no reliance” language.
Soon West LegalEdcenter will be unleashing on the world my webcast on confidentiality agreements, with co-presenters Chris Lemens and Glenn West. One of the topics touched on in the webcast is “no reliance” language. I subsequently realized that for purposes of a confidentiality agreement being entered into in advance of a proposed transaction, the “no reliance” language I had offered in my blog post wouldn’t work—because the recipient would simply be considering whether to enter into the proposed transaction, it wouldn’t be clear until such time as the parties enter into a definitive agreement how the recipient could be said to be relying on any factual statements. (Any definitive agreement would contain its own “no reliance” language.)
So afters some back-and-forth with Glenn, I tweaked as follows my “no reliance” language so that it works for purposes of a confidentiality agreement being entered into in advance of a proposed transaction:
Acme acknowledges that because in exploring the Proposed Transaction and examining Confidential Information it has not relied on, and will not be relying on, any statements made by Widgetco to Acme regarding accuracy of any Confidential Information, Acme will have no basis for bringing any claim for fraud in connection with any such statements.
This language reflects that Widgetco isn’t making any representations in the confidentiality agreement. More significantly, it also makes it clear where the potential reliance lies—a recipient could conceivably bring a claim for fraud against the disclosing party on the grounds that it had relied on statements regarding the Confidential Information and as a result had wasted time and money on due diligence and had foregone other opportunities.
If this language passes muster in the marketplace of ideas, I expect to add it to Koncision’s confidentiality-agreement template.
By the way, is it only Texas courts that have a thing about “no reliance” language, or have other jurisdictions adopted the same approach? (I assume that this isn’t an issue outside the U.S.)
[Updated 14 April 2018: For more on no-reliance language in confidentiality agreements, see this post date 14 June 2012.]
2 thoughts on ““No Reliance” Language for a Confidentiality Agreement”
I tried redrafting the paragraph to:
(a) Upgrade the expectation of future nonreliance to a duty (will becomes shall);
(b) Delete the “because” narrative prepended to the no-basis acknowledgement;
(c) Add a no-claim duty to the no-basis acknowledgment;
(d) Ice the cake with a complete-defense acknowledgement.
(e) Simplify the sentence structure.
“Fraud Claims” makes me think of “Claude Rains.”
Nonreliance. (a) In exploring the Proposed Transaction and examining Confidential Information, Acme has not relied and shall not rely on any statements by Widgetco regarding the accuracy of any Confidential Information (such statements, “Accuracy Statements”).
(b) Acme’s statement of past nonreliance and its agreement for future nonreliance in section (a) remove any basis for any fraud claims by Acme against Widgetco arising from any Accuracy Statements (such claims, “Fraud Claims”).
(c) Acme shall not bring any Fraud Claims.
(d) The provisions of sections (a), (b), and (c) are to be deemed a complete defense to any Fraud Claims.