M&A: Time Bars to Claims

Two Delaware opinions were released on June 30, 2026 that cover a regular post-closing topic in M&A. Even though fraud occurred, plaintiffs’ cases were either dismissed in total or in part because of a failure to timely bring claims.

In Delaware, claims based on most statutes and by contract are limited to three years from breach (not actual injury), a point which is negotiated in M&A transactions, often reducing the survival period of general representations and warranties even further (12 to 18 months), and in some cases extending the survival period of fundamental representations and warranties or in the case of fraud (up to 5-7 years in the extreme).

In Mark Berg, et al. v. Titan Spine, Inc., et al., Vice Chancellor Will overviews tolling, which can extend the limitations period:

“[T]he statute of limitations may be tolled when a defendant has fraudulently concealed from a plaintiff the facts necessary to put him on notice of the truth.”The limitations period is tolled only until the plaintiff is on inquiry notice—that is, until “such time that persons of ordinary intelligence and prudence would have facts sufficient to put them on inquiry which, if pursued, would lead to the discovery of the injury.”

Putting these facts together, it is vitally important post-close in M&A to file a claim within the applicable statute of limitations period, or survival period, if modified by contract, and not to assume a tolling exception applies right out of the gate. In both cases referenced above, the court found the plaintiffs’ to be on inquiry notice, even though fraud had occurred.

Jerome Fogel is co-founder of Fogel & Potamianos LLP, a firm recognized by Chambers & Partners’ California Spotlight Guide for excellence in corporate law. A partner in the Corporate Practice Group and Chair of the Sports & Entertainment Group, he is known as an innovator and dealmaker in the legal community. He serves as a general counsel to privately held companies, including representation in mergers and acquisitions. 

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