      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.




                                        32
