John D. Arwood v. A W Site Services, LLC

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
JOHN D. ARWOOD, TOGETHER WASTE, )
INC., A.W. WASTE MANAGEMENT, INC., )
DUMPSTER.ME, LLC, DUMPSTER.ME OF )
WAKE COUNTY, LLC, PORTABLE TOILET )
RENTAL COMPANY, INC., ARWOOD )
WASTE, INC. and ARWOOD SITE SERVICES, )
INC., )
)
Plaintiffs, )
)
v. ) C.A. No. 2019-0904-JRS
)
AW SITE SERVICES, LLC, )
)
Defendant. )
)
AW SITE SERVICES, LLC, )
)
Counterclaim Plaintiff, )
)
v. )
)
JOHN D. ARWOOD, TOGETHER WASTE, )
INC., A.W. WASTE MANAGEMENT, INC., )
DUMPSTER.ME, LLC, DUMPSTER.ME OF )
WAKE COUNTY, LLC, PORTABLE TOILET )
RENTAL COMPANY, INC., and ARWOOD )
WASTE, INC., )
)
Counterclaim Defendants, )
)
and )
)
STEVEN C. GOODE, )
)
Third-Party Defendant. )
MEMORANDUM OPINION
Date Submitted: December 17, 2021
Date Decided: March 9, 2022
Corrected: March 10, 2022
Theodore A. Kittila, Esquire and James G. McMillan, III, Esquire of Halloran
Farkas + Kittila LLP, Wilmington, Delaware, Attorneys for Plaintiffs and
Counterclaim Defendants John D. Arwood, Together Waste, Inc., A.W. Waste
Management, Inc., Dumpster.Me, LLC, Dumpster.Me of Wake County, LLC,
Portable Toilet Rental Company, Inc., Arwood Waste, Inc., and Arwood Site
Services, Inc.
Sidney S. Liebesman, Esquire and E. Chaney Hall, Esquire of Fox Rothschild LLP,
Wilmington, Delaware; Leslie B. Spoltore, Esquire of Obermayer Rebmann
Maxwell & Hippel LLP, Wilmington, Delaware; and Jordan D. Weiss, Esquire of
Goodwin Proctor LLP, New York, New York, Attorneys for
Defendant/Counterclaim Plaintiff AW Site Services, LLC.
John G. Harris, Esquire of Berger Harris LLP, Wilmington, Delaware, Attorney for
Third-Party Defendant Steven C. Goode.
SLIGHTS, Vice Chancellor
Yogi Berra said, “You can observe a lot just by watching.”1 The buyer in this
post-closing fraud and breach of contract case apparently was not of this mindset as
it approached the transaction at the heart of this dispute. That buyer,
Defendant/Counterclaim Plaintiff, AW Site Services, LLC (“AWS”), was as
informed about the businesses it sought to acquire as any buyer could be. The
targets, waste disposal businesses founded and built by Plaintiff John D. Arwood,
had not been prepared for sale when Arwood received AWS’s expression of interest,
and Arwood lacked the know-how or inclination to prepare financial records or to
formulate useful valuations. Consequently, AWS was forced to take on full
responsibility for valuing the sellers’ assets. With no seller valuations, no seller
financials, and no other datapoints in hand, AWS insisted upon, and was given, full
and unfettered access to the businesses’ raw financial and other records, including
the personal finances of their owner, Arwood, so that it could value the businesses
for itself and decide whether it wanted to acquire them.
Yet, when the businesses did not perform as AWS had hoped after the
acquisition closed, it claimed fraud. That claim found no support in the trial
evidence. Instead, the preponderance of evidence proved that, if this buyer did not
1
He would eventually write a book by that title. Yogi Berra, You Can Observe A Lot By
Watching (Wiley 2009).
1
appreciate the facts it now claims were fraudulently concealed from it, that
incognizance was the product of its own reckless failure to observe what was right
in front of it.
Arwood started in the waste business as a child collecting “aluminum cans
and pop bottles” from the side of the road.2 After decades of operating various waste
disposal companies, Arwood ultimately built an online dumpster and portable toilet
rental/brokerage platform that attracted the attention of potential buyers, including
the private equity firm Broadtree Partners, LLC. But there was a problem. While
Arwood had developed an attractive and successful business plan, he did not know
how to package a business to be sold. Arwood had not valued his businesses; in fact,
he did not maintain any financial records, and he did not know how to prepare them.
To address this problem, Broadtree dispatched Sean Mahon, a Broadtree
Principal and Operating Partner, to perform extensive due diligence and, in the
process, to prepare a detailed set of financials for the businesses Broadtree was
interested in acquiring so that Broadtree, in turn, could share them with the fund’s
investors. Mahon’s access to Arwood’s business was extraordinary. Ultimately, he
was able to prepare a set of financials that, in his view, and eventually in Broadtree’s
view, accurately reflected the value of the businesses Broadtree was to acquire.
2
Tr. 708:21–709:4 (Arwood).
2
In doing so, Broadtree was able to drive down Arwood’s unsubstantiated asking
price by asserting that Arwood was drawing revenue from sources that Broadtree
could not reliably replicate post-closing. Arwood acquiesced.
The acquisition was memorialized in an Asset Purchase Agreement dated
October 19, 2018 (“APA”), and the consideration paid for all of the businesses AWS
(Broadtree’s acquisition vehicle) acquired was approximately $16 million in cash
and equity. Arwood continued to work for AWS post-closing until the parties had a
falling out and this litigation ensued.
The dispute began when Arwood complained that AWS and Broadtree had
wrongfully refused to release approximately $1.41 million of the acquisition
consideration that remained in escrow. AWS and Broadtree countered by
maintaining that Arwood had somehow managed to defraud them, notwithstanding
Mahon’s intimate knowledge of the businesses pre-closing, by concealing a massive
fraudulent billing scheme that caused a substantial overstatement of revenue. They
asserted both an indemnification claim under the APA and a fraud claim for more
than $11 million.
Arwood struck first in this Court, filing a complaint on November 8, 2019, in
which he and the entities he sold bring claims against AWS for breach of contract,
conversion, and tortious interference with contract. They also seek an award of
specific performance of the APA that would require the buyers to release the funds
3
held in escrow. In response, AWS filed counterclaims against Arwood and the
selling companies, as well as third-party claims against Arwood’s former business
partner, Steven Goode, alleging fraud, fraudulent inducement, breach of contract,
and breach of the implied covenant of good faith and fair dealing. AWS seeks
damages in excess of $9 million. The case has been tried and this is the Court’s
verdict.
After careful consideration, I am satisfied that Arwood and the selling
companies have failed to prove any of their claims. As discussed below, the
preponderance of the evidence reveals that Arwood and the entities he controls
breached the APA by making inaccurate representations regarding the financial
condition and lawful operations of the conveyed businesses, and AWS is entitled to
retain the funds held in escrow and an award of damages up to the cap set in the
APA. The reasonableness, or not, of AWS’s reliance upon the sellers’
representations is not a relevant consideration in assessing the bona fides of AWS’s
indemnification claim.
As for AWS’s counterclaims, the fraud and fraudulent inducement claims fail.
Broadtree and AWS were highly sophisticated, intelligent buyers. They knew
Arwood was a decidedly unsophisticated seller. And they knew Arwood had opened
the doors of his businesses to Mahon so that Mahon could determine how the
businesses were run, what they were worth, and whether Broadtree wanted to buy
4
them. Arwood had no financials; he had not attempted to value his businesses; and
he had made no presentations to Broadtree or any other potential buyers regarding
the financial fitness of his businesses before Mahon began his extensive review.
From Arwood’s perspective––reasonable, in my view, given the evidence––Mahon
and Broadtree knew as much about the businesses AWS was acquiring as he did.
If Broadtree, Mahon and AWS did not know something about the sellers’ businesses,
then they were not watching during Mahon’s weeks of observation. The
preponderance of the evidence reveals that Arwood did not intentionally or
recklessly induce AWS to buy his businesses, and AWS did not justifiably rely upon
any false statements or omissions from the sellers.
On the other hand, as noted, the APA includes representations that the sellers
had accurately represented their financial conditions and had lawfully conducted
their businesses. The specious customer billing scheme that AWS points to in
support of its claims was real and it renders certain of the seller’s representations in
the APA false. That constitutes a breach of contract and triggers the breach remedies
set forth in the APA. Here, that means AWS may retain the funds held in escrow
and may recover additional damages up to the contractually defined cap of
$3.9 million.
Arwood and the selling companies, prompted by the Court’s post-trial inquiry,
have raised a sandbagging defense to AWS’s breach of contract claim. They say the
5
buyers cannot rely upon representations in the APA to sue for breach of contract
when they either knew pre-closing that the representations were false or were
recklessly indifferent to their truth. After careful consideration, I disagree. In my
view, Delaware is, or should be, a pro-sandbagging jurisdiction. The sandbagging
defense is inconsistent with our profoundly contractarian predisposition. Even if
Delaware were an anti-sandbagging jurisdiction, I am not satisfied that a buyer’s
reckless, as opposed to knowing, state of mind would trigger the doctrine in any
event.
As for AWS’s claims against Goode, they fail for lack of proof. The
preponderance of the evidence reveals that he was an innocent, albeit ill-informed,
facilitator and nothing more.
I. BACKGROUND
Having weighed the evidence and evaluated the credibility of the witnesses,
I find the following facts were proven by a preponderance of the evidence presented
at trial.3
3
Citations in the form of “PTO —” refer to the Joint Pre-Trial Stipulation and Order
(D.I. 175). Citations in the form of “JX —” refer to joint exhibits in the trial record.
Citations in the form of “Tr. — ([Last Name])” refer to the trial testimony of the identified
witness. And citations in the form “[Last Name] Dep. —” refer to the deposition testimony
of the identified witness as lodged with the Court.
6
A. The Parties and Relevant Non-Parties
Plaintiff and Counterclaim Defendant, John D. Arwood, is a resident of the
State of Florida.4 Arwood owned or co-owned several companies that comprised
his waste management brokerage business (collectively, “Arwood Waste”), which
had two primary focuses—rentable portable toilets and rentable roll-off dumpsters.5
With one exception,6 the other Plaintiffs/Counterclaim Defendants are entities
affiliated with Arwood or Arwood Waste that were sold to AWS. They are: Together
Waste, Inc.; A.W. Waste Management, Inc.; Dumpster.Me, LLC (“Dumpster.Me”);
Dumpster.Me of Wake County, LLC (“Dumpster Wake”); Portable Toilet Rental
Company, Inc.; and Arwood Waste, Inc (collectively, the “Selling Entities”). Third-
Party Defendant, Steven Goode, owned Dumpster Wake and half of Dumpster.Me
(the “Goode Entities”).7
4
PTO ¶ 35.
5
PTO ¶¶ 36–37.
6
Plaintiff, Arwood Site Services, Inc., was not a party to the transaction at issue here and
is not a Counterclaim Defendant.
7
PTO ¶ 32.
7
Defendant and Counterclaim Plaintiff, AWS, is a Delaware limited liability
company with its principal place of business in Jacksonville, Florida.8 Broadtree
formed AWS to acquire and operate the assets of the Selling Entities.9
Several non-party fact witnesses testified at trial: (1) Sean Mahon,
a “Principal and Operating Partner” of Broadtree and, after the closing, the
Chief Executive Officer of AWS;10 (2) Deb Robinson, who worked for Arwood
Waste for approximately 14 years prior to the acquisition;11 (3) Tiffany Henley, an
independent contractor who performed fulfillment services for Arwood Waste and
reported to Arwood prior to the acquisition;12 and (4) Jason Hull, a “founder and
shareholder of Broadtree.”13
8
PTO ¶ 29; Tr. 118:24–119:6 (Mahon) (explaining that most employees are located in
Florida).
9
PTO ¶ 70.
10
PTO ¶ 30; see also PTO ¶ 28 (“Non-party Broadtree Partners, LLC (‘Broadtree’) holds
itself out as ‘a group of entrepreneurial investors focused on acquiring business where the
owners are looking to transition from their current roles’ and who ‘specialize in providing
opportunities for owners to smoothly exit their companies and seamlessly change
leadership, while preserving their legacy.’”).
11
PTO ¶ 33
12
PTO ¶¶ 34, 40
13
PTO ¶ 31.
8
The parties each presented expert witnesses––Robert Wallace (AWS) and
Darby Beard (Arwood)––to testify regarding the extent to which Arwood exploited
certain questionable business practices to inflate customer bills.14 AWS also
presented expert testimony from Abraham Wyner, a statistician, to quantify the
overbilling and to opine that the practice was routine, not random.15
Both parties also presented expert testimony regarding the damages
purportedly suffered by AWS. On behalf of AWS, Gregory Cowhey testified that
AWS suffered damages totaling about $9.7 million.16 Arwood and the Selling
Entities offered the expert testimony of Brett Margolin to rebut Cowhey’s
methodology and findings.17
B. Arwood’s Business
Arwood spent much of his youth cleaning up debris, scrapping metal, and
hauling junk to make money.18 The small jobs kept getting bigger and, by 2000,
14
JX 283; JX 288.
15
JX 285.
16
JX 284.
17
JX 293.
18
Tr. 708:20–710:18 (Arwood) (explaining the different jobs in waste he worked in his
youth).
9
Arwood had created a full-fledged waste management business.19 Over the next
twenty years, Arwood expanded his waste management business into various related
sectors, such as renting portable toilets and roll-off dumpsters, hauling dumpsters to
and from residential and commercial sites, and contracting for waste removal
services for commercial customers.20
Arwood built his unique brokerage business model after he “got one of the
first .coms,” made a website for arwoodwaste.com, and then began “getting calls for
stuff all over America.”21 As Arwood explained, “if somebody was on Google,
Googling up [a] dumpster, . . . we were the only person out there.”22 Eventually,
Arwood brought more than 900 websites within the Arwood Waste fold, all of which
directed the customer back to Arwood’s centralized brokerage operation.23
As described in detail below, for a fee, Arwood Waste would then act as nationwide
“middleman” between commercial and residential customers seeking to rent a
19
See PTO ¶ 36.
20
Id.
21
Tr. 717:15–20, 718:8–13 (Arwood).
22
Id.
23
PTO ¶ 39.
10
dumpster or portable toilet and the local haulers and suppliers who would fill the
orders.24
1. The Customer Order and Fulfillment Process
Arwood Waste’s online brokerage business was operated from a physical
location in Jacksonville, Florida. That location included a call center where Arwood
Waste employees serviced customers, arranged haulers and processed orders.25
The company maintained its records and sales information through a system
called “TRUX,” a billing and dispatch software.26 For dumpster orders, the TRUX
platform managed the customer’s order information, including the customer’s
contact information, billing information, the size of the dumpster, the location where
the dumpster was to be delivered, and the category and volume of waste the customer
would be placing in the dumpster.27
24
PTO ¶ 40; Tr. 707:15–21, 708:4–19, 948:18–949:8 (Arwood) (describing the fulfillment
process and how order information was processed). I focus mainly on the dumpster side
of the Arwood Waste business going forward as this is the segment of the business where
AWS alleges the wrongdoing occurred.
25
Tr. 558:13–558:18 (Robinson) (explaining that employee responsibilities included
answering phone calls, selling products and assisting customers).
26
PTO ¶ 55; Tr. 562:18–23 (Robinson) (describing TRUX as “a Waste Management billing
system and dispatch system”); Tr. 719:16–24 (Arwood) (describing the functionality of
TRUX).
27
Tr. 483:19–484:6 (Henley).
11
After the sales team onboarded a customer, that team would send the order to
the fulfillment side of the business,28 which focused on finding a local hauler to
service the customer order.29 The fulfillment team was managed by Tiffany Henley,
an independent contractor who reported to Arwood.30 Arwood Waste had a list of
subcontracting haulers that it used regularly, and it would source new haulers as
needed from the Yellow Pages and Google.31 The fulfillment team would contact
the haulers, obtain a quote, and schedule the dumpster delivery.32 The hauler either
required payment up front or invoiced Arwood Waste after completing the job.33 All
of this information was then keyed into the TRUX system.34
28
Tr. 563:4–564:14 (Robinson); Tr. 481:19–23 (Henley) (“You get the order from sales,
and you start locating a vendor that you will be able to use that works within the budget
that we have, schedule that order with the hauler, and then make sure that it gets
delivered.”).
29
Tr. 484:19–485:8 (Henley) (explaining the fulfillment process).
30
PTO ¶¶ 34, 40; Tr. 482:21–23 (Henley).
31
Tr. 484:19–24 (Henley).
32
Tr. 485:1–9 (Henley).
33
Id.
34
Tr. 948:12–21 (Arwood) (“Then Tiffany [Henley] would also have access to that website
that the orders are put on. She would go in and put the orders, you know, in—manually
put the orders into TRUX. . . . And she basically copies and pastes everything out of the
order form, puts it into TRUX. And then she reaches out to a hauler, schedules it, puts all
the details in the notes of TRUX, you know, who the hauler is and what they charge and
what they processed on the credit card.”).
12
2. The Brokerage Billing Process
After a customer placed an order for a dumpster, and an Arwood employee
entered the order information into TRUX, the system generated an invoice and
charged the customer.35 At the outset of the transaction, the customer was typically
charged a rental fee and a hauling fee.36 Often those fees would represent the entirety
of the customer’s financial commitment to Arwood Waste.37 Frequently, however,
the customer would owe more.38 For example, most dumpster rentals would last ten
days, but if the dumpster was not returned on time, the customer would be charged
a late or “demurrage” fee.39 Similarly, most rentals included a “tonnage cap,” which
was an allotted amount of weight a customer could deposit in the dumpster.40 If a
35
Tr. 515:17–516:2 (Henley).
36
PTO ¶ 46.
37
Id.
38
Tr. 515:17–516:2 (Henley).
39
PTO ¶¶ 46–47; Tr. 562:1–5 (Robinson) (“Q. And if he were to keep the dumpster for
11 days, what would happen? A. He would be charged a demurrage fee, which would be—
at one time it was $7, and then it went to $25.”).
40
PTO ¶ 48.
13
dumpster was returned over the agreed upon tonnage cap, the customer would be
charged an overage fee.41
Typically, the landfill receiving the waste would charge the hauler based on
the weight inside the dumpster.42 The landfill then issued the hauler a “dump ticket,”
which served as a receipt containing the weight and price.43 The hauler, in turn,
would provide the dump ticket to Arwood Waste with the expectation of
reimbursement based on the landfill’s charge.44 That cost would then be passed on
41
PTO ¶ 46; Tr. 484:7–14 (Henley) (“Q. And after a disposal is completed, how is—what’s
the process in TRUX for closing it out and issuing a bill? A. We call and get the disposal
ticket from the hauler. They generally are given that once they take the contents to the
landfill. Once we get that ticket, we enter it into TRUX as a disposal ticket. And then that
generates any overages.”); Tr. 565:2–20 (Robinson) (Q. “So the dumpster is picked up by
a hauler. What did the hauler do with the dumpster next? A. They take it to the landfill in
their city or state, have it weighed, empty it, take it back to their location, and they would
send an invoice. Q. And what kind of information would be on that invoice? A. The
address, a lot of times the contact name, the size of the dumpster, a lot of times the date it
was delivered, the date it was picked up, and most times the weight.”).
42
Tr. 484:7–14 (Henley).
43
Tr. 484:10–14 (Henley) (“We call and get the disposal ticket from the hauler. They
generally are given that once they take the contents to the landfill. Once we get that ticket,
we enter it into TRUX as a disposal ticket. And then that generates any overages.”).
44
PTO ¶ 50; Tr. 949:23–950:9 (Arwood) (“The hauler goes and removes the dumpster.
And when they remove the dumpster, they are told, you know, the email, the receipt, or
some kind of documentation. Let’s just say they produced—they have a disposal ticket
and they send it. It would go into the folder that—the remit that I mentioned at Arwood
Waste, it would go there and get carbon-copied and went into Zendesk, where all invoices
for all haulers would go to. So it was—the way I had it set up, it was open access to like,
all employees.”).
14
to the customer.45 It was not unusual, however, for the hauler to seek reimbursement
for an overage charge even though it had not provided the supporting dump ticket.46
When that would happen, Arwood Waste would estimate the weights and charge the
customer based on the estimate.47
On occasion, customers would complain when the overage fees were not
properly documented, and sometimes they would refuse to pay the fees.48 When a
45
PTO ¶¶ 48–49; Tr. 486:8–24 (Henley) (“Q. All right. And when you get a dump ticket,
how are customers—how should customers be charged with regard to the weight on the
dump ticket? A. You should enter the amount that’s on the dump ticket into the billing in
TRUX. And it automatically generates what the overage should be, depending on how
you’ve set it up. Q. Okay. . . . But if the weight on the dump ticket was below the allotted
tonnage, should the customer be charged for any overages? A. No. The system wouldn’t
generate any overages if it was under the cap that’s set up in TRUX.”); Tr. 604:4–9
(Robinson) (“Q. Would Arwood Waste ever provide the customer with the total tonnage
on the invoice or just if there was an overage? A. Just if there was an overage that they
were billed for. That’s all that showed on the invoice.”).
46
Tr. 565:17–20 (Robinson) (“Q. Would Arwood Waste receive dump tickets from
haulers? A. On occasions we would but not always, no, sir.”); Tr. 637:9–22 (Robinson)
(testifying that haulers often billed for overages without supplying dump tickets).
47
Tr. 775:22–776:5 (Arwood) (“There’s always a challenge getting weight slips. So I had
to come up with a way to measure, if we cannot get a weight or they won’t tell us a weight.
If it’s construction debris or roofing, if it’s—a 10-yard dumpster, for example, had, like, a
one-ton cap. And if it was roofing, for example, I knew that that’s heavier. If I couldn’t
get a weight ticket, then I would use this formula [to estimate the weight].”).
48
See, e.g., JX 18; JX 31; JX 81; JX 150; JX 185.
15
customer did not pay, using a vendor, Arwood Waste routinely would place a
mechanic’s lien on the project for which the customer had rented the dumpster. 49
C. Arwood Connects with Broadtree Through Goode
Arwood met Goode around 2011.50 Goode had years of experience in the
waste industry, including serving as president of a landfill business and as consultant
for various waste removal clients large and small.51 In this latter capacity, he often
facilitated acquisitions in the waste management space.52 Arwood’s first business
association with Goode occurred when he asked Goode to assist him with a bid to
provide waste services to a military base in Fort Benning, Georgia.53 Later, Goode
helped Arwood sell off portions of Arwood Waste.54
At the end of 2017, Arwood brought a business idea to Goode.55 Arwood
“was generating a lot of leads and a lot of business,” and he thought he and Goode
49
Tr. 197:9–10 (Mahon); Tr. 493:18–22 (Henley).
50
Tr. 18:20–19:3 (Goode).
51
Tr. 18:21–20:6 (Goode).
52
Tr. 19:16–20:6 (Goode).
53
Id.
54
Tr. 23:21–25:14 (Goode) (explaining the sales he facilitated for Arwood); Tr. 716:3–
716:9 (Arwood) (same).
55
Tr. 25:6–20 (Goode).
16
might be able to use those relationships to acquire a number of portable toilet
companies.56 The already existing brokerage platform could then feed business to
the newly acquired companies. The idea was described as a “roll-up.” 57
In early 2018, Goode was put in contact with Sean Mahon while facilitating
an unrelated sale of a transfer station.58 As noted, Mahon is a principal of
Broadtree,59 which Mahon described as “a slightly more formalized version of a
search fund.”60 After Broadtree determined that it was not interested in the transfer
56
Tr. 26:6–11 (Goode).
57
Tr. 106:1–4 (Goode); Tr. 25:15–26:15 (Goode) (explaining the roll-up idea).
58
Tr. 27:23–28:15 (Goode); Tr. 186:9–18 (Mahon).
59
PTO ¶ 28 (“Non-party Broadtree Partners, LLC (‘Broadtree’) holds itself out as ‘a group
of entrepreneurial investors focused on acquiring business where the owners are looking
to transition from their current roles’ and who ‘specialize in providing opportunities for
owners to smoothly exit their companies and seamlessly change leadership, while
preserving their legacy.’”). Mahon’s background is impressive—he studied economics at
Princeton, worked for the financial services firm Lehman Brothers, went to business school
at MIT Sloan, and then worked as an associate for McKinsey & Company prior to working
for Broadtree. Tr. 246:9–247:15 (Mahon). In contrast, Arwood graduated high school and
attended “a couple of classes” at college “through an apprenticeship program,” but “never
completed.” Tr. 707:5–9 (Arwood).
60
Tr. 244:14–245:3 (Mahon); Mahon Dep. Vol. I 30:25–31:11 (“A search fund is, the
concept of a search fund is you have an individual, in this case myself, who finances a
period of time known as the search phase, during which time that individual finds a
company, which he or she will ultimately acquire and operate. Once that individual finds
said company, that individual is in charge of finding the financing to secure the acquisition
and then run all of the steps required, via its legal diligence, quality of earnings, to
ultimately close on that transaction.”).
17
station, Mahon inquired whether Goode might know of other investment
opportunities.61 When Goode mentioned Arwood’s portable toilet roll-up idea, even
though Mahon had no experience in the waste management industry,62 he advised
Goode that the opportunity was “much more aligned with what we were looking
for.”63
61
Tr. 28:16–29:7 (Goode) (“Sean [Mahon] figured out pretty quickly [the transfer stations
were] not what he and Broadtree were looking for. . . . [I]t had very little opportunity for
growth. And he asked me then if I had any other projects. And that’s when I told him
about the portable toilet roll-up that John had.”).
62
Tr. 247:16–22 (Mahon) (“Q. Prior to working at AW Site Services, you did not have any
experience in running a business, did you? A. Correct. Q. And you did not have any
experience in waste management, did you? A. Correct.”).
63
Tr. 186:9–18 (Mahon) (“Q. How did you come to meet Mr. Goode? A. I met
Mr. Goode—I had reached out to a transfer station in the Baltimore area. He was their
representative, for lack of a better word. So when I spoke to Mr. Goode, we quickly figured
out that that transfer station was not the type of opportunity we were looking for, but then
he mentioned he had a brokerage business in the portable toilets base, and that was much
more aligned with what we were looking for.”); Tr. 29:8–30:2 (Goode) (explaining that
Mahon thought the roll-up “was kind of right up his alley with the experiences that he had
and what he brought to the table”); Tr. 106:11–17 (Goode) (“[A]ll the discussions with
Sean initially were all centered around the platform and the acquisition, the roll-up. I mean,
the roll-up was the driver. The [brokerage] platform was just icing on the cake.”).
18
D. The April Letter of Intent and the Start of Due Diligence
After learning about Arwood Waste and the roll-up plan from Goode, Mahon
expressed interest in acquiring Arwood Waste’s portable toilet brokerage platform.64
On April 2, 2018, Goode sent Mahon an email with the subject line “Portable Toilet
Marketing Roll-up.”65 Attached to the email was a memorandum explaining the plan
for the roll-up.66 Goode also provided Mahon with spreadsheets summarizing the
sales history of the portable toilet business, revenue, subcontractor costs, and
employee costs that Arwood had extracted from TRUX.67 Goode proposed a
purchase price of $12 million, not based on any financial analysis he or Arwood
performed, but because they “were shooting high” and this was their “dream
price.”68
On April 5, 2018, Mahon and Goode signed a letter of intent (the “April LOI”)
that summarized the terms by which Broadtree would acquire the “Arwood Portable
64
PTO ¶ 62; Tr. 29:8–30:2 (Goode).
65
JX 82; Tr. 30:16–24 (Goode).
66
JX 82.
67
Tr. 33:1–34:6 (Goode) (explaining that the contents of the email which were extracted
from TRUX by Arwood); Tr. 188:9–16 (Mahon).
68
Goode Dep. 49:22–24.
19
Toilet Marketing Platform and Call Center ex real-estate.”69 The April LOI,
prepared by Broadtree, expressly contemplated that the parties would “execute a
roll-up of the portable toilet industry.”70 The non-binding LOI proposed a value of
$12 million, based on a run-rate revenue of approximately $3,254,166, a run-rate
EBITDA of approximately $1,622,000, and an EBITDA multiple of approximately
7.5x.71
After the parties executed the April LOI, Mahon (and perhaps Hull) flew to
Jacksonville where Goode introduced the Broadtree principal negotiators to
Arwood.72 The parties discussed the industry generally and Arwood Waste’s
business specifically. Following the meeting, Broadtree, through Mahon, began
conducting extensive due diligence on Arwood Waste’s portable toilet business,73
69
PTO ¶ 63; JX 83; Tr. 35:6–36:8 (Goode) (describing the scope of the April LOI as
including only the portable toilet platform).
70
JX 83.
71
JX 83; PTO ¶ 63; Tr. 36:22–37:5 (Goode); Tr. 188:5–189:3 (Mahon) (explaining that he
prepared the LOI with Goode based on “extremely high-level P&L information” about
“[t]he portable toilet piece of the business” to acquire it for “$12 million”).
72
Tr. 187:11–20 (Mahon) (describing the meeting); Mahon Dep. Vol. I 120:16–23 (“After
we signed [the April LOI], I believe I flew down to Jacksonville, Florida. I think Mr. Hull
may have been with me. That’s when John showed me his QuickBooks files [and] prepared
any TRUX reports he could at the time . . . .”).
73
PTO ¶¶ 63–65; Tr. 1011:2–20 (Hull).
20
which eventually expanded beyond that focus and lasted for six months.74 Arwood
gave Mahon open access to Arwood Waste’s business records, billing software, and
telecom accounts.75 Additionally, Mahon had complete access to Arwood’s business
and personal bank records.76 Goode’s testimony highlights the unusual access
Arwood granted Mahon from the outset of due diligence:
Q. And if you know, how did Mr. Mahon get access to the information
that he’s referring to in this April 27, 2018, email, if you know?
A. Well, I do know, because John [Arwood] told me that he had given
Sean [Mahon] access to all his bank accounts, passwords into TRUX.
And I remember asking him a question about that because I had never
heard of that done. And I remember him telling me, well, you know—
first of all, I think he said he thought Sean was maybe the smartest man
he had ever met. And then, second, he said that he was going to be
partners with them and he wanted them to look at everything, because
he had nothing to hide.77
Importantly, Mahon and Broadtree were aware that Arwood Waste did not
keep any formal financials whatsoever, had no official accounting system in place,
74
PTO ¶ 64.
75
PTO ¶ 65; Tr. 721:10–723:13 (Arwood) (explaining that he gave Mahon access to
TRUX, all his business accounts, personal accounts, and credit cards because he “wanted
[Mahon] to have access to everything”).
76
PTO ¶ 65; Tr. 721:10–723:13 (Arwood).
77
Tr. 42:14–43:4 (Goode).
21
and used cash accounting.78 In fact, all concerned understood that Arwood was not
sophisticated in the ways of finance and was not capable of preparing the kind of
financial information Broadtree needed to value the businesses and decide whether
to acquire them.79 To solve this problem, Arwood and others showed Mahon how
to use TRUX so Mahon could access the company’s billing, customer information
and the general ledger.80 With unfettered access to all of Arwood Waste’s financials,
Mahon was able to build his own financial statements for the businesses.81
78
Tr. 193:1–6 (Mahon) (“Arwood Waste did not have an accounting system. They used
cash accounting, so they prepared a P&L for tax purposes for all of his different entities
commingled. So we had to use the cash—the receipts of the business to build out the
income statement.”); Tr. 719:4–8 (Arwood) (“I didn’t do financials or any of that type of
stuff. So I gave—we got talking, and we had to come up with a way for him to see what
the business was worth. I just knew what I was basically revenuing [sic].”); PTO ¶ 65.
79
Tr. 1013:8–18 (Hull) (“The Court: All right. And did you have any sense at all whether
Mr. Arwood was capable of preparing a financial statement based on your interactions with
him and your understanding of his past experience? A. Not without assistance, Your
Honor. The Court: All right. So that was just not something he could do without either
yours or Mr. Mahon’s assistance? A. Correct, Your Honor.”); Tr. 719:4–8 (Arwood);
Tr. 40:16–19 (Goode) (“Arwood didn’t have income statements of P&L’s or general—
I mean, he had general ledgers. So if there was an income statement, [Mahon] created it.”);
Tr. 259:4–22 (Mahon) (explaining that Broadtree had to build its own P&L statement using
the data it sourced during Mahon’s time on site); PTO ¶ 65.
80
Tr. 125:16–19 (Mahon) (“Q. Who taught you? A. John Arwood taught me how to use
TRUX, Deb Robinson taught me, Tiffany Henley, and then TRUX also taught me.”);
Tr. 719:16–20 (Arwood) (explaining that he gave Mahon full, password-protected access
to TRUX).
81
Tr. 190:1–16 (Mahon) (“A. With the view access to the bank accounts, I was able to tie
the cash postings. So the cash that he had recognized in TRUX as having received, I was
able to tie that to the cash that went into his bank accounts, to verify the cash. I, with his
22
E. The May and June Letters of Intent
“[A]lmost immediately” upon reviewing Arwood Waste’s data, Mahon
discovered that the portable toilet component of the Arwood Waste business could
not be “disaggregated” from the dumpster business because of poor record-
keeping.82 Accordingly, Mahon and Broadtree decided to acquire the entire
brokerage business.83 On May 3, 2018, informed by the financials that Mahon had
created, Broadtree issued a second LOI (the “May LOI”) to that effect.84 The May
LOI was based on the same 7.5x EBITDA multiple as the April LOI,85 and set the
enterprise value of the brokerage business at $20.9 million, assuming run-rate
credit cards, was able to categorize his spend based on the category of spend, be it
subcontractor, advertising, travel and entertainment, or personnel expenses. And with the
checks, I was also able to do that as well. So, effectively, take the receipts of the business
and build up a P&L for the business. Q. How long did it take you to build the P&L?
A. It took a very long time for us to build the P&L.”); PTO ¶ 66; JX 89; Tr. 39:4–41:17
(Goode) (explaining that JX 89 was an “income statement [Mahon] created” because
“Arwood didn’t have income statements of P&L’s or . . . general ledgers” and that Mahon
was “pretty proud of what he had done”).
82
Tr. 190:22–191:1 (Mahon) (“[I]t became pretty obvious almost immediately that you
would not be able to disaggregate the portable toilet business from the rest of the
business.”).
83
PTO ¶ 68.
84
JX 93; PTO ¶ 68.
85
See PTO ¶ 68; Tr. 191:11–21 (Mahon).
23
revenue of $6,407,708 and run-rate EBITDA of $2,787,748.86 Mahon and Arwood
signed the May LOI on May 4, 2018.87
After the parties executed the May LOI, Mahon continued due diligence.
In the process, Mahon regularly communicated with his partners at Broadtree,
detailing his findings in emails and investor decks.88 He hired Elliott Davis, LLC,
an accounting firm, to do a “quality of earnings” report, or “QoE.”89 Mahon’s
purpose in commissioning the QoE was to have Elliot Davis validate whether
86
JX 93; PTO ¶ 68.
87
Id.
88
See JX 97; JX 99; JX 102; JX 106; JX 107; Tr. 970:15–971:7 (Hull) (“I was assisting
Mr. Mahon, Sean, in his diligence. I would review what he was doing. I would speak to
Sean frequently. . . . We would review documents. We would review Sean’s diligence
and then facilitate a presentation of that information and of the opportunity to acquire the
platform to the investors.”).
89
Tr. 192:2–17 (Mahon) (“A. After the second LOI was issued, we began the Q of E
process with Elliott Davis and Mr. Arwood. Q. Describe, what does Q of E mean? A. Q of
E stands for quality of earnings. That’s when you bring in an outside accounting firm to
validate the P&L that has been proposed to make sure that the revenue was accounted for
correctly, that the costs are accounted for correctly as well. Q. And what was your
involvement in that process? A. In that process, my involvement primarily was to make
sure Elliott Davis was able to get all of their—all of their questions answered by
Mr. Arwood, to get them any of the information that they needed to validate the income
statements.”); Tr. 728:11–22 (Arwood) (“Q. At this point, the offer is—we looked at.
It was $20,900,000. Do you have an idea of what happened next after that point? A. Not
really. I know he was working with, as mentioned in the trial, Elliott Davis. I really don’t
know, except the end result—they come back with a lot lower offer. He just said—when
he come back with the lower offer, he said that there was revenue they couldn’t guarantee.
And he said something about he found another—he found another charge in my credit cards
that was associated to some advertising.”); see JX 132.
24
revenue and costs as reflected in Arwood Waste’s data could be trusted.90 During
the QoE process, Mahon, with the help of Arwood, provided Elliot Davis with all
information the firm requested.91 Broadtree also performed legal diligence and
began the process of drafting transaction documents.92
On June 14, 2018, the parties executed the third and final letter of intent
(the “June LOI”).93 Apparently as a result of negative information regarding
expected revenue and costs uncovered during Mahon’s ongoing due diligence, and
the QoE process, the June LOI set a much lower purchase price, $15,750,000, based
on reductions in revenue forecasts and run-rate EBITDA.94 The EBITDA multiplier
90
Tr. 192:6–22 (Mahon) (explaining the quality of earnings process); Tr. 206:2–207:11
(Mahon) (explaining that they used the cash postings reports from TRUX, credit
statements, checks and bank statements to validate income); Tr. 984:2–15 (Hull)
(discussing QoE process).
91
Tr. 206:10–12 (Mahon) (“Q. How was this report prepared? A. This was prepared by
Elliott Davis with the support and input of myself and Mr. Arwood.”); Tr. 914:10–19
(Arwood) (“Q. You worked with Mr. Mahon to prepare the quality of earnings report with
Elliott Davis as well; right? A. Again, I didn’t work with Elliott Davis. I didn’t know who
they were until after the acquisition. Or maybe they were brought up right before closing
maybe. I just never dealt with anybody there. And me working with them, to be clear, was
[Mahon] asking me questions. I don’t know about accounting stuff.”).
92
Tr. 203:22–204:2 (Mahon) (“A. After due diligence was completed, we began the legal
diligence and document-drafting process.”).
93
PTO ¶ 69; JX 116.
94
PTO ¶ 69; JX 116; Tr. 81:15–82:10 (Goode); Tr. 204:10–205:5 (Mahon) (“Q. How does
it differ from the second letter of intent? A. In this letter of intent, it’s still for the entire
brokerage business, but now the run-rate revenue is 6.2 million. The run-rate EBITDA is
25
remained at 7.5x.95 Regarding the lower purchase price, Arwood testified that he
“wasn’t happy about it” and “didn’t understand” it as he had no valuation of his
own,96 but he ultimately agreed to the lower price because he was excited about
participating in the roll-up.97 Due diligence continued for another four months
before the APA was executed.98
2.1 million. The enterprise valuation is 15.75 million. Q. Why were those changes made?
A. Through going—through looking at the revenue report, the cash postings report that we
used—I’d mentioned previously that it was by customer. With Mr. Arwood and Elliott
Davis, we went through that report to categorize which customers were part of the
brokerage business and which were part of his traditional hauling business. And then we
also found additional expenses for the brokerage business that were sitting in credit cards
that originally were not part of the brokerage business.”); Tr. 728:11–729:8 (Arwood)
(“Q. At this point, the offer is—we looked at. It was $20,900,000. Do you have an idea
of what happened next after that point? A. Not really. I know [Mahon] was working with,
as mentioned in the trial, Elliott Davis. I really don’t know, except the end result—they
come back with a lot lower offer. He just said—when he come back with the lower offer,
he said that there was revenue they couldn’t guarantee. And he said something about he
found another—he found another charge in my credit cards that was associated to some
advertising.”); Tr. 940:4–17 (Arwood) (explaining that “when [Mahon] lowered the price
and stuff, he was taking out stuff he couldn’t account for”).
95
PTO ¶ 69.
96
Tr. 959:1–5 (Arwood) (testifying that he did not have “any consultants or bankers or
anyone else come in” and attempt to provide him with a valuation before negotiating with
Mahon); Mahon Dep. Vol. I 162:14–163:13 (testifying that the financial statement he
prepared “was the authority as far as I was concerned” but did not know if Arwood “had a
P&L number” or “a valuation company”).
97
Tr. 728:23–729:3 (Arwood). He was particularly excited to work with one of the partners
in the roll-up, George Dean Johnson. Arwood testified that he “was honored to be able to
even work with that gentleman” and that “he ultimately agreed to lower the price primarily
because he was excited by George Dean Johnson at that time.” Id.; Tr. 727:1–3 (Arwood).
98
PTO ¶ 70.
26
F. Pre-APA Due Diligence Continues
As due diligence continued, Mahon and Broadtree had nearly unlimited access
to Arwood’s businesses, a product of the implicit trust Arwood placed in Mahon
from early on in the process.99 Broadtree populated and then hosted the “data
room.”100 Arwood gave Mahon full access to both his personal and business banking
information and credit card statements throughout.101 In fact, he gave Mahon such
unfiltered access to his bank accounts that he once sent his father with Mahon to the
bank early in the diligence process, testifying that, having given Mahon “accountant-
[level]” access, and since “we never done this [sic] before,” “[w]e wanted to make
sure that [Mahon] couldn’t, like, steal money and stuff like that.”102
To facilitate his review of internal company information, Arwood gave
Mahon administrative credentials for TRUX and the other tools the company used
99
Tr. 719:21–24 (Arwood) (“In my heart, I felt—I trusted him, so I let him get in there and
pull all the reports he wanted to.”).
100
Tr. 1010:16–1011:1 (Hull).
101
PTO ¶ 65; Tr. 189:16–22 (Mahon) (explaining his access to Arwood’s “corporate bank
account and his corporate credit cards,” among other things); Tr. 206:21–207:3 (Mahon)
(explaining he used credit card statements, checks and bank statements in preparing a
report); Tr. 721:19–42 (Arwood) (“You know, he needed—he had to get—he needed the
numbers, every number—whatever numbers he needed to evaluate the business. So I gave
him access, of course, to TRUX. And then eventually I gave him accountant access to all
my banking, personal and business.”).
102
Tr. 722:1–11 (Arwood).
27
to manage the business.103 In other words, Arwood “gave [Mahon] access to
everything,”104 with one exception—he asked that Mahon visit the call center after
hours, as both parties recognized that it was best the employees did not know that
Arwood was considering selling his business.105 Mahon communicated with
Broadtree about his findings as his diligence progressed, and he prepared summaries
in the form of investor decks for presentation at regular Broadtree meetings.106
As Mahon was creating the brokerage business financials, he noticed that,
besides the portable toilet and roll-off dumpster revenue, Arwood Waste generated
“a lot of miscellaneous/late fees,” including “lien fees,” but testified he did not
103
Tr. 953:6–23 (Arwood) (“The access that I gave Sean was my admin credentials, which
makes it where you’re the, you know, the—you got full control. And the reason I did that,
Your Honor, is because, for example, in TRUX, if I—I didn’t want nobody to know that I
was selling my business. So when I gave him full access to TRUX, he would go in there
after hours, because I was, of course, working during the day in it. He would go in there
after hours and be logged in as me. . . . Plus, I wanted him—by having my admin access,
he could pull reports. I mean, he basically could have shut my business off if he wanted
to. I’m just saying. It was the highest level that I gave him on all the—on Paychex,
Zendesk, TRUX, Vonage.”).
104
Tr. 724:11 (Arwood).
105
Tr. 468:1–8 (Mahon) (“I was on-site on one or two occasions after 5:00 to see the call
center, but not during peak hours to see the call center in action, because Mr. Arwood didn’t
want his employees to know that he was looking at potentially selling.”); Tr. 970:18–22
(Hull) (“I would speak to Sean [Mahon] frequently. I did travel down to Jacksonville to
meet Mr. Arwood, Mr. Goode, and we also went into the call center after hours.”).
106
See JX 118; JX 120; JX 124; JX 129; JX 140.
28
understand the source of those fees “at the time.”107 Notably, he did understand that
some of the data he compiled did not include ancillary service charges such as
overages, and understood that “overages [were] part of the pricing structure.”108 And
he knew that there was a “poor accounting system” in place with respect to cash
flow.109
G. The Asset Purchase Agreement
The APA, as drafted by Broadtree, was executed on October 19, 2018, by
Arwood and Goode for the Selling Entities, and Mahon for AWS.110 Under the terms
of the APA, AWS paid Arwood “aggregate consideration” of $16 million, including
$13,500,000 in cash and $2,500,000 in junior preferred membership units in AWS’s
parent company.111 A total of $1.41 million of the purchase price was held in
escrow, which included $1.26 million for indemnification obligations and $150,000
for working capital adjustments.112
107
Tr. 197:3–198:8 (Mahon).
108
Tr. 306:15–307:13, 308:11–16 (Mahon).
109
Tr. 307:17–319:5 (Mahon).
110
JX 182 (“APA”); PTO ¶ 70.
111
PTO ¶ 71; APA § 2.4.
112
APA §§ 1.1, 2.5(b), 2.6(b)(iii)–(iv), 7.2(h); PTO ¶ 71. The APA also provided for a
“Post-Closing Purchase Price Adjustment” that provided additional post-closing remedies
not relevant here. See APA § 2.5(b)(iv); PTO ¶ 72.
29
As is typical, the APA contained buyer and seller warranties. Relevant here,
Arwood and the Selling Entities represented and warranted that their financial
statements were accurate, all accounts receivable less than 120 days outstanding
were valid and enforceable claims, the sellers had materially complied with the law
and all employees were disclosed.113 Relevant here, the APA required Arwood and
Goode to indemnify AWS against Losses (as defined) due to: (i) any inaccuracy or
breach of any representation or warranty and (ii) any failure to perform or breach of
any covenant or agreement.”114 Importantly, the APA strictly limited Goode’s
representations to Dumpster.Me and Dumpster Wake, the only entities in the
acquisition that he wholly or partially owned.115
On the same day the APA closed, Arwood and AWS agreed to a 24-month
employment agreement whereby Arwood would serve as AWS’s Chief Marketing
Officer at an annual salary of $200,000 and as a director on AWS’s board.116
Arwood’s employment agreement also provided for three weeks of paid vacation
113
APA §§ 3.7, 3.9, 3.20, 3.22.
114
APA § 7.2(a).
115
APA §§ 3.29, 7.2(c)(iv).
116
JX 181; PTO ¶¶ 80, 84.
30
and confirmed his participation in AWS’s sponsored employee benefit plan on
substantially the same terms offered to other AWS executives.117
H. AWS Management Post-Closing
After the acquisition closed, Mahon served as AWS’s Chief Executive
Officer.118 As to be expected, Mahon took several measures to tighten AWS’s
operations and accounting, including implementing processes to organize customer
billing,119 hiring new employees,120 and putting a new accounting system in place.121
Mahon “changed the way [employees] use TRUX” and acknowledged he had to fix
“a lot of bad habits” of AWS’s employees, including how they invoiced and input
117
PTO ¶ 80.
118
PTO ¶ 87.
119
Tr. 237:4–238:20 (Mahon) (explaining that he rebuilt the customer billing process,
updated how the company used Zendesk, created individual email accounts for each
employee, and built out an accounts payable team).
120
Tr. 203:6–13 (Mahon) (“Q. And what employees did you have to hire after closing?
A. We had to hire several sales agents, a controller, an AP department to process invoices
and pay haulers. We ended up having to build out the accounts receivables team as well
and build out the support team . . . .”).
121
Tr. 215:4–8 (Mahon); Tr. 729:4–18 (Arwood).
31
reports into TRUX.122 Otherwise, the brokerage business operated as it did before
the acquisition.123
In May of 2019, to save AWS money and enable it to hire more staff, Arwood
voluntarily reduced his salary by half and resigned as Chief Marketing Officer. He
continued his association with AWS as a consultant.124
I. Issues Surface Post-Acquisition
The issues that ultimately sparked this litigation surfaced soon after closing.
In August of 2019, Mahon noticed that “the profits of the business[] were materially
lower than what we had anticipated pre-acquisition.”125 Mahon also “heard rumors
122
Tr. 344:15–17, 346:4–9 (Mahon).
123
Tr. 121:15–125:13 (Mahon).
124
PTO ¶ 88; Tr. 747:11–22 (Arwood) (“Well, in the board meetings, I’m hearing—you
know, they are saying they are trying to hire more people and stuff. And that point, I had
just got all that money. I’m, like, I don’t need all this money, getting paid that much. So
I went to them and said, look, why don’t I just cut my—we met at Bono’s Bar-B-Q. I said,
why don’t I just—I’m willing to cut my pay in half and be an independent contractor, do
the same work—and I let him know you’d be saving, too, if you’re paying me that way
because you’re not paying taxes, I mean, and I’ll do my same stuff.”).
125
Tr. 134:17–19 (Mahon); Tr. 134:22–135:2 (Mahon) (“Well, first, I had to assess where
the difference in profitability came from. And we saw that our gross profit was about
44 percent, when we expected 54 percent. And at that point, we looked to see where the
revenue sources were different.”). Mahon was also concerned about the increase of
employment costs. See JX 236 at 10 (“Half of the increase[] in operating expenses is due
to officer salaries: Sean [Mahon], John [Arwood], and Anna [Watkins, the new
controller].”); JX 239 at 1–3 (“This has me pretty stressed out unfortunately . . . . Why
have employment costs increased so much? . . . How long does J. Arwood’s consulting
contract extend?”).
32
of fraudulent billing practices” from Robinson and Henley.126 Both circumstances
prompted Mahon to investigate. Using TRUX, Mahon looked at “the revenue that
we recognized around tonnage overage while we were operating the business versus
pre-acquisition when [Arwood] was running the business.”127 He then compared
dump tickets and revenues and determined there were substantial discrepancies pre-
and post-acquisition.128 This exercise caused Mahon to draw certain conclusions
about Arwood Waste’s pre-acquisition practices that he believed inflated revenue
and decreased reported costs, as summarized below.
1. The Overbilling of Weight Overage Fees
Mahon discovered that Arwood Waste charged excessive overage fees. As
noted, if a customer’s filled dumpster exceeded the tonnage cap, Arwood Waste
would charge an overage fee.129 Because haulers often did not provide dump tickets
that would reflect the details of the waste contained in the rented dumpsters upon
disposal,130 Arwood admitted at trial that he “had to come up with a way to measure,
126
Tr. 135:3–5, 24 (Mahon). Mahon testified that Robinson and Henley told him “to be
on the lookout for any overage weights that end in .88.” Tr. 143:15–16 (Mahon).
127
Tr. 135:6–9 (Mahon).
128
Tr. 143:22–144:2 (Mahon).
129
See, e.g., JX 9; JX 11; JX 12; JX 15; JX 22; JX 117; JX 134.
130
Tr. 637:18–22 (Robinson).
33
if we cannot get a weight or they won’t tell us a weight.”131 To estimate dumpster
weights in these circumstances, Arwood testified that he researched government
sources, like the Federal Emergency Management Agency (“FEMA”), to obtain
information about the weight of certain types of debris,132 and then estimated the
weights of particular rented dumpsters by referring to the type of debris the customer
indicated would be placed in the dumpster at the outset of the transaction and
multiplying that by the size of the dumpster.133 As it turns out, using this formula,
many estimated weights happened to end in .88 regardless of the size of the load.134
131
Tr. 775:22–777:17 (Arwood). As AWS observes, Arwood’s trial testimony regarding
his weight estimation practices was not consistent with his sworn testimony at deposition.
See Def./Countercl. Pl. AW Site Servs., LLC’s Opening Post-Trial Br. (“DOB”) (D.I. 197)
at 13. During his deposition, Arwood claimed he would not have estimated weights and
that he did not know anything about the practice. See Arwood Dep. 61:17–20, 64:25–
65:11, 194:18–195:3. When asked about his deposition at trial, Arwood testified that he
“wasn’t feeling good” that day and watched YouTube videos before the deposition that
warned him that “attorneys will try to word stuff and trick you.” Tr. 771:1–17 (Arwood).
It appears he feigned ignorance of estimated weights to avoid being “trick[ed].” As noted,
he admitted at trial that he engaged in the practice rather extensively.
132
Tr. 777:4–11 (Arwood) (“Q. Where did you come up with the concept of estimating
weights? A. Through research off the internet. As mentioned in this litigation, FEMA,
municipalities, I went off places that I trusted because they’re run by the government. And
they had—they have a weight chart on there of what C&D could weigh versus roofing to
concrete and so on.”).
133
Tr. 775:9–777:17 (Arwood).
134
Tr. 776:15–777:17 (Arwood) (giving hypothetical weights for dumpsters for a
construction and demolition project depending on dumpster size and explaining that he
chose numbers ending in .88 because they were “easy for me to remember”); see, e.g., JX 9
(email containing weights ending in .88); JX 22 (same); JX 117 (same).
34
According to Arwood, he informed Mahon of his use of estimates during the course
of Mahon’s due diligence.135 In this regard, at least, Arwood’s testimony was
credible.
At trial, Arwood insisted that he did not estimate weights for overages if he
had the actual weights,136 but AWS introduced a handful of customer bills showing
overages charged in excess of the actual weight reflected on dump tickets.137
Arwood also maintained that he only estimated “if [he] had to say, 10% of the
time,”138 but here again, as discussed below, the preponderance of the evidence said
otherwise.139
135
Tr. 940:21–942:18 (Arwood) (“He asked me about how, you know, how we did the
billing and so forth, and he asked about the—you know, what the charges were for disposal
and how we billed the people. And I remember going into telling him about, you know,
the weight charges . . . . He was asking what charges like that. He got into all the details
like that. And overages would have been definitely one of them, because there’s overages
on roll-off dumpsters, you know. And from what I’m remembering, he told me on the
overages, that was something that he couldn’t rely on as revenue.”).
136
Tr. 777:18–20 (Arwood) (“Q. So with respect to the use of these numbers, would you
use them if you had actual weights? A. No, sir.”).
137
See, e.g., JX 48; JX 67; JX 77; JX 78.
138
Tr. 779:9 (Arwood). As noted below, this testimony is rebutted by Wyner’s expert
report.
139
See JX 285 (Wyner Report) at 3 (concluding Arwood Waste charged overages on nearly
every transaction before the acquisition but overages “rapidly dropped to about 50%” after
the acquisition).
35
Arwood Waste’s employees had access to a template from which they could
create dump tickets when haulers would not send their own.140 Robinson credibly
testified that “if [Arwood] or myself didn’t have a dump ticket, we had [that]
template for one in the office that we could input the information.”141 Henley, who
had no first-hand knowledge of the practice,142 testified that her understanding was
that when a customer disputed the invoice, employees “would go back and create
that false dump ticket to correlate to the invoice in TRUX.”143 Robinson’s
understanding was that she was being instructed to overbill, although she admitted
140
Tr. 578:2–581:10 (Robinson) (testifying “if he or myself didn’t have a dump ticket, we
had a template for one in the office that we could input the information”); Tr. 774:3–20
(Arwood) (testifying about use of template in another business he owned); see, e.g., JX 16;
JX 19; JX 20; JX 24; JX 25; JX 41; JX 56; JX 59; JX 125; JX 133; JX 164; JX 167; JX 185;
JX 191; JX 192; JX 193; JX 195 (uses of template dump ticket).
141
Tr. 578:2–581:10 (Robinson).
142
Tr. 536:20–537:4 (Henley). For clarity, I note that Henley had first-hand knowledge of
Arwood asking employees to create dump tickets reflecting disposal weights, but not in
response to a customer dispute. See Tr. 489:19–23 (Henley) (“Q. Did Mr. Arwood ask you
to create dump tickets reflecting disposal weights? A. Yes. In TRUX, to bill customers.
Not a disposal ticket that’s from a landfill, but the disposal ticket process in TRUX.”).
143
Tr. 549:19–20 (Henley). According to Henley, Arwood never asked her to create fake
dump tickets herself. But she would use fake dump tickets to create customer bills.
Tr. 490:23–3 (Henley) (“A. He never asked me to create a fake disposal ticket. He asked
me to bill the customer in TRUX. Q. For an inaccurate weight? A. I didn’t know that
necessarily.”).
36
“that verbiage was never said.”144 For his part, Arwood denied that he told Robinson
to overbill or ever implied that she should.145
The parties presented competing expert testimony regarding whether
Arwood’s practice of “estimating” overage weights was standard practice in the
waste removal industry. Robert Wallace, AWS’s industry expert, concluded that
Arwood’s practice of estimating weights was “the opposite of industry norms” and
“grossly violate[d] industry practices.”146 He also doubted Arwood’s contention that
it was difficult to obtain dump tickets from haulers.147 Even if estimating weights
was permitted in the industry, Wallace opined that Arwood Waste lacked the
144
Tr. 648:22–649:2 (Robinson).
145
Tr. 766:7–20 (Arwood) (“Q. Did you ever tell employees that it was the policy of
Arwood Waste or any of your companies to overbill customers? A. No, sir.
Q. Ms. Robinson said it wasn’t said in so many words; it was implied. Did you ever imply
anything of the sort? A. No, sir.”); Tr. 955:23–956:7 (Arwood) (“The Court: Did you
authorize anyone to create internally within Arwood Waste a dump ticket in cases where
the landfill had not issued a dump ticket? The Witness: No, sir. The Court: So to the
extent that was happening, that was happening without your knowledge? Arwood: Yes,
sir.”). AWS refutes this testimony by pointing to one email chain involving Arwood where
fake dump tickets were attached. See JX 13.
146
JX 283 at 8.
147
Id. at 11 (“Based on my waste industry experience, it is a common practice for any
customer, including waste brokers, to request Dump Tickets from haulers. In my
experience, haulers almost always comply, except for unusual and rare circumstances.”);
id. at 9 (“Although it is true that Mr. Arwood’s businesses were dependent on outside
contractors, his statement that it is difficult to obtain accurate weight measurements from
landfills or dumps is false.”).
37
necessary information to make an informed estimate and instead regularly charged
customers based on “a mere guess.”148
AWS also offered the expert opinion of Abraham Wyner to prove the
regularity with which Arwood charged estimated overages.149 Wyner’s report
analyzed an Excel spreadsheet, with data extracted from TRUX, containing
approximately 9,750 pre-acquisition weight tickets dating from January 2017
through December 2019.150 He concluded that “[b]efore the acquisition, almost
every load had overage charges,” whereas, “[a]t the time of the acquisition, that
fraction rapidly dropped to about 50%.”151 “What the data suggests,” he opined,
“is that pre-acquisition inflated weights were regularly used and recorded in place
of actual measurements and that post-acquisition, these practices were stopped.”152
148
Id. at 9 (“In order to estimate the weight of the material in a roll off container, one would
need to know the materials that were placed in the roll off container, and how much
material was placed in each roll off container, as well as several other factors.”).
149
Dr. Wyner holds a doctorate degree in statistics from Stanford University, and teaches
statistics at the University of Pennsylvania.
150
JX 285 at 2–3. I note that Arwood argues that Wyner “relied on unreliable data
compilations prepared for the purposes of litigation by AWS’s chief witness Sean Mahon.”
Pls.’ Post-Trial Answering Br. (“PAB”) (D.I. 205) at 27. Before trial, I rejected that
argument and deemed the TRUX spreadsheet and Wyner testimony admissible. D.I. 135
(Mot. in Limine to Exclude Def.’s TRUX at Trial); D.I. 179 (denying the motion).
151
JX 285 at 3.
152
Id. at 4.
38
He also noted that, “[t]here is a huge and statistically significant tendency to repeat
certain number patterns, most prominently ‘88.’”153 He later testified that when
estimating, “it is scientific malpractice to include extra-significant digits” because it
creates “the very strong impression [in the minds of customers] that either I’m an
incredible estimator or I’m actually using weights.”154
In response, Arwood and the Selling Entities proffered Darby Beard to rebut
Wallace and Wyner’s findings. She observed that Arwood Waste’s unique
brokerage model created a dynamic where it lacked “leverage over the hauler to
compel production of disposal tickets” because it “often paid for the hauling in
advance,”155 while other brokers have the power to “withhold[] payments while
awaiting disposal tickets.”156 Given that dynamic, she concluded that Arwood
appropriately “relied upon information provided by the customer as to the type of
debris and the size of the container” and then “us[ed] average tons per cubic yard for
different debris types published by multiple government agencies” to estimate
153
Id.
154
Tr. 1185:4–5, 1186:15–17 (Wyner).
155
JX 288 at 6.
156
Id.
39
weights.157 When pressed, Beard was unable to explain or justify how Arwood’s
estimating methodology, if properly employed, would so frequently land on an
estimated weight ending in .88.158
After carefully considering the competing expert opinions, and other
evidence, I am satisfied the credible evidence reveals that estimating overage
charges was not an industry-standard practice. To the extent Arwood Waste’s
brokerage model made it uniquely difficult for it to obtain dump tickets from haulers,
the answer was not to guess at estimates of overage weights and charge customers
accordingly.159 Instead, the answer was either to change the model to provide more
leverage to obtain actual dump tickets, or to advise customers that overage charges
would be based on estimates and then explain the methodology. Arwood Waste did
neither.160 Instead, Arwood guessed at the overages and then systematically
157
Id.; see also id. at 7 (“Based on this approach, I conclude that Mr. Arwood did not
defraud customers, but in fact implemented a well thought out approach to ensure a fair
and equitable billing methodology in the unique circumstances his business model
created.”).
158
Tr. 1170:20 (Beard).
159
As noted above, Beard’s conclusion that Arwood’s business model made obtaining
dump tickets difficult is consistent with Arwood and Robinson’s testimony.
160
Arwood points to JX 49, “Terms and Conditions for Service,” to argue that customers
were alerted of this practice. This argument fails. That document states that “AW may
increase the rates hereunder proportionately to adjust for any increase in [disposal and fuel
costs] or any increases in transportation cost . . . . Furthermore, customer agrees that
40
represented to customers that the weights had been carefully calculated to the
hundredth decimal point. This practice was misleading and, as Wallace opined,
“grossly violated industry practices.”161
2. The Improper Lien Charges
Arwood Waste also improperly charged customers lien fees and placed
unwarranted liens on their property. Mechanics’ liens were filed “extremely
quickly” when customers did not pay and customers were charged lien fees “even if
[Arwood Waste] did not file a lien on the location.”162 And Arwood Waste would
sometimes pursue mechanics’ liens against residential customers for non-
construction projects, even though such liens are appropriate only for construction-
related projects.163 Arwood Waste received several customer complaints about
AW may proportionately pass through to Customer increases in cost as a result of weights
being higher than those estimated.” JX 49 at 2. This language simply states that Arwood
Waste may increase rates as costs increase and that it may charge an overage fee if the
actual weight measured is higher than what is estimated. If anything, it suggests that the
weights as billed were not estimated, but “actual.”
161
JX 283 at 8.
162
Tr. 180:24–181:10 (Mahon); Tr. 493:18–494:12 (Henley). Mechanics’ liens are
“statutory liens that secure payment for labor or materials supplied in improving, repairing,
or maintaining real property.” Mechanic’s Lien, Black’s Law Dictionary (11th ed. 2019).
163
Tr. 132:10–13 (Mahon) (“Q. Under what circumstances can AW not place a lien on a
customer’s property? A. If it’s not a construction-related project.”); Tr. 181:1–10 (Mahon)
(“[Arwood] filed the liens extremely quickly. And on locations that—where you could not
file a lien, such as someone having a barbecue in their house. Q. I believe you told us about
41
improper liens, often through attorneys and once through the Missouri Attorney
General’s office.164 Mahon knew that Arwood Waste booked revenue from lien fees
and had access to the source of these fees during due diligence, but apparently failed
to investigate or appreciate the improper practices associated with at least some of
these fees.165
When asked if Arwood Waste pursued mechanics’ liens even when state law
did not allow them, Arwood testified that he used Nationwide Notice for liens, and
entrusted that firm to obey applicable laws.166 To the extent an improper lien was
placed on a customer’s property, Arwood testified that Nationwide Notice would be
this a little bit yesterday, but remind me why you can’t file a lien for a barbecue at
someone’s house? A. A lien is for a construction-related project. So you can only file it
for construction-related projects.”); JX 10 (complaint alleging “Arwood Waste and
Demolition” filed an illegal lien against a residential tenant for lack of payment); JX 51
(letter from attorneys for residential customers setting forth several ways in which lien filed
by Arwood Waste was in violation of the law); JX 127 (same).
164
See JX 10; JX 27; JX 40; JX 51; JX 72; JX 74; JX 108; JX 127; JX 128.
165
See Tr. 197:5–15 (Mahon) (“Q. What were the revenue sources of Arwood Waste at the
time? A. Portable toilets and roll-off dumpsters were the two main revenue sources.
Q. And what about any other fees, any other charges to customers? A. They also had a lot
of miscellaneous/late fees; so NTO [Notice to Owner of intent to lien] and lien fees.
Interest charges were a big piece of it too. Q. What was your understanding of those
additional fees as a revenue source? A. I didn’t have an understanding at the time. I didn’t
know about the extent of that.”).
166
Tr. 887:10–14 (Arwood).
42
to blame.167 Once again, the evidence does not align with that view given Arwood
Waste’s substantial control over the lien process.168
3. The Hauler Payments
Mahon discovered that Arwood Waste had a practice of failing to pay haulers.
Henley testified that the payment of haulers was contingent on Arwood Waste’s
receipt of payment from Arwood Waste customers,169 but Arwood testified to the
contrary.170 Henley and Arwood also disagreed about whether Arwood’s failure to
pay haulers led to soured relationships and ultimately suspended services. 171
Tr. 889:12–18 (Arwood) (describing litigation where “the end result was Nationwide
167
messed up”).
168
See JX 108 (emailing Nationwide Notice to “remove the lien on this property” because
the customer “is requiring more paperwork than we have”); JX 128 (complaint reporting
that an employee from Arwood Waste “said that [the customer] owed them” and that
“she would file a lien on my property”); JX 40 (complaint to Missouri Attorney General
stating that, after a payment dispute, Arwood Waste refused to talk to customer’s attorney
and “filed a Notice of Intent to File a Mechanic’s Lien”); JX 72 (letter from customer
stating that Arwood Waste filed a lien after being “unwilling to discuss [a payment dispute]
in good faith”).
169
Tr. 495:3–5 (Henley) (“Q. And was payment to haulers contingent on payment by the
customer to Arwood Waste? A. Yes.”).
170
Tr. 908:3–6 (Arwood) (“Q. If Arwood Waste didn’t receive payment from its customer,
it wouldn’t pay the hauler; correct? A. That’s not true.”).
171
Compare Tr. 506:16–22 (Henley) (“Q. Ms. Henley, did the failure to pay hauler invoices
have any impact on your ability to do your job? A. We’d call a hauler to try to schedule
new services for a new order. They would tell us that we were unable to set up the new
service because of past-due amounts on the account.”), with Tr. 908:7–15 (Arwood)
(“Q. At some point, Arwood Waste jeopardized its relationship with Waste Management
43
Henley’s testimony is corroborated by the preponderance of the evidence, which
establishes that Arwood Waste often failed to pay haulers and that these failures
often had consequences to long-term relationships.172 For example, Henley kept and
distributed to the fulfillment team a list of haulers that the company could not use
because of nonpayment.173 Post-acquisition, AWS rebranded, in large part because
of this issue.174
4. The Hidden Employee Expenses
Finally, Mahon discovered that certain employee costs were not accurately
disclosed because Arwood neglected to inform Broadtree that his parents, at nominal
cost, performed work that would have to be performed post-acquisition by two paid
employees.175 Arwood’s mother paid invoices for the brokerage business on a part-
due to nonpayment; correct? A. That’s not true either. Q. Arwood Waste didn’t have a
past-due balance with Waste Management? A. They may have, but it never jeopardized
their relationship. I’m still working with them today.”).
172
See, e.g., JX 33; JX 38; JX 247.
173
Tr. 507:1–22 (Henley); JX 247.
174
E.g., Tr. 227:13–229:2 (Mahon) (explaining that the company rebranded due to issues
with “haulers refusing to do business with us because we were affiliated with Arwood
Waste”). AWS now operates under the name ASAP Site Services. Tr. 227:13–19 (Mahon)
(“Q. Mr. Mahon, what name does AW currently do business under? A. ASAP Site
Services. Q. Who decided to operate the business under the name ASAP? A. Ultimately,
I and the board decided to.”).
175
JX 244 at 7.
44
time basis for $100 dollars a week,176 and his father ran errands.177 In Mahon’s view,
the sellers misled AWS by not disclosing the breadth of the work performed by
Arwood’s parents or the likely costs to replace them post-acquisition.178
But AWS admits that Mrs. Arwood was disclosed as an employee.179
Schedule 3.22(a)(i), which was created in connection with the APA, provides the list
of sellers’ employees.180 The list, entitled “Salaried Employees,” is categorized by
“Position/Title,” and disclosed the salary in the column entitled “Annualized
Salary.”181 Pansy Arwood is the second employee identified on the list, just below
John Arwood.182 Mahon knew that Arwood’s mother worked for Arwood Waste,
176
Tr. 743:24–744:8 (Arwood).
177
Tr. 615:10–15 (Robinson) (describing his duties as “payroll,” “mail” and “errands”);
744:11–19 (Arwood) (explaining his father’s duties as “deposit[ing] checks into banks,”
reviewing Henley’s time sheet, picking up lunch, “run[ing] errands,” amounting to
“[n]ot much of nothing”).
178
Tr. 202:13–203:19 (Mahon).
179
DOB at 42.
180
JX 303.
181
Id.
182
Id.
45
but purportedly did not “expect to have to hire an entire accounts payable
department” in her absence.183 That testimony was not credible.
Mahon did not know that Arwood’s father worked for the business, as he was
not listed in Schedule 3.22(a)(i).184 As noted, Mr. Arwood occasionally ran errands,
monitored payroll, deposited checks at the bank, reviewed the credit card statements,
and sometimes picked up lunch for staff.185 The credible evidence reveals
Mr. Arwood served essentially as a volunteer, not an employee. AWS’s contention
that it “was forced to hire and pay new employees to replace” Arwood’s father is
simply not supported by the preponderance of the evidence.186
J. Arwood’s Removal and the Notice of Claims
According to Mahon, his post-acquisition findings prompted AWS to
terminate Arwood’s employment.187 On October 17, 2019, AWS sent Arwood a
183
Tr. 202:13–203:19 (Mahon).
184
Tr. 202:18–22 (Mahon); APA § 3.22; JX 303.
185
Tr. 511:22–512:2 (Henley) (testifying that “the only thing” she knew Arwood’s father
did was “review[] [her] account sheets and pa[y] [her] invoice”); Tr. 615:10–15 (Robinson)
(“Q. Do you know what services [Arwood’s father] performed for the company?
A. Payroll. Q. Anything else? A. Payroll, mail. He ran errands. I mean, other than that,
I don’t really know.”); 744:11–19 (Arwood) (explaining his father’s duties as “deposit[ing]
checks into banks,” reviewing Henley’s time sheet, picking up lunch, “run[ing] errands,”
amounting to “[n]ot much of nothing”).
186
DOB at 19.
187
PTO ¶¶ 90–92; Tr. 223:12–18 (Mahon).
46
Notice of Termination for Cause.188 Hull then phoned Arwood and read from a script
informing Arwood that he was being terminated.189 The next day, AWS sent
Arwood a Notice of Claims in which it invoked the indemnification provisions in
the APA,190 asserting that Arwood was liable for “at least $11,800,000” based, in
large part, on Arwood Waste’s pre-acquisition fraudulent billing scheme that, in
turn, caused AWS to overpay for the assets.191 AWS then instructed the escrow
agent not to release any of the funds held in escrow to Arwood.192
K. Procedural History
In response to the Notice of Claims, Arwood and the Selling Entities filed a
Verified Complaint in this court on November 8, 2019.193 The Complaint comprises
five counts. Count I seeks specific performance of the APA through an order
requiring AWS to release the funds held in escrow.194 Count II asserts breach of
188
PTO ¶ 90; JX 243.
189
JX 323; Tr. 756:20–757:13 (Arwood) (identifying JX 323 as the script that Hull read to
him when he was terminated over the phone); Tr. 984:16–24 (Hull).
190
JX 244; PTO ¶ 91.
191
PTO ¶ 91; JX 244.
192
PTO ¶ 93.
193
Verified Compl. (“Compl”) (D.I. 1); JX 332.
194
Compl. ¶¶ 73–78.
47
contract against AWS for breaching the APA “by asserting false and unfounded
indemnification claims.”195 Count III asserts that AWS converted certain accounts
receivable.196 Count IV asserts tortious interference with contractual relations
against AWS for interfering with Arwood’s right to collect certain accounts
receivable owed him.197 And Count V asserts that AWS breached Arwood’s
employment agreement by “failing to compensate Mr. Arwood for paid days off and
for benefits, including family health insurance.”198
AWS answered the Complaint and brought counterclaims against Arwood and
the Selling Entities, and a third-party complaint against Goode.199 AWS’s
counterclaim and third-party complaint comprise five counts.200 Count I asserts a
fraud claim against all Counterclaim Defendants.201 Count II asserts a fraudulent
195
Compl. ¶ 82.
196
Compl. ¶¶ 84–87.
197
Compl. ¶¶ 89–94.
198
Compl. ¶ 98.
199
Answer of Broadtree P’rs, LLC and AW Site Servs., LLC and Verified Countercl. and
Third-Party Compl. of AW Site Servs., Inc. (“Countercls.”) (D.I. 5); JX 333.
200
Id.
201
Countercls. ¶¶ 77–85.
48
inducement claim against all Counterclaim Defendants.202 Count III asserts a breach
of contract claim against all Defendants, and against Goode as third-party
defendant.203 Count IV asserts a breach of the implied covenant of good faith and
fair dealing (the “implied covenant”) against all Counterclaim Defendants and
Goode.204 And Count V asserts an unjust enrichment claim against all Counterclaim
Defendants and Goode, although the parties later stipulated to dismiss that count.205
After dispositive motion practice did not dispose of the claims, counterclaims
or third-party claims, the Court convened a five-day trial from April 19–23, 2021,
and May 1, 2021.206 With post-trial briefs in hand, the Court heard post-trial oral
argument on September 22, 2021.207 The Court then requested supplemental
briefing on a discrete legal issue, which the parties supplied on December 17,
2021.208 The matter was deemed submitted for decision on that date.
202
Countercls. ¶¶ 86–90.
203
Countercls. ¶¶ 91–97.
204
Countercls. ¶¶ 98–102.
205
Countercls. ¶¶ 103–07; D.I. 117.
206
D.I. 186–91.
207
D.I. 212.
208
D.I. 216–17.
49
II. ANALYSIS
I address the counterclaims first, as they have been the parties’ primary focus
throughout this litigation. For the reasons explained below, AWS has not proven
fraud or breach of the implied covenant but has proven breach of contract. I then
address Arwood and the Selling Entities’ claims against AWS and conclude that they
all fail for want of proof. I also determine that AWS has failed to prove its third-
party claims against Goode. Finally, I address remedies and award $3.9 million in
compensatory damages to AWS.
A. Fraud and Fraudulent Inducement
In Delaware, “[t]he elements of fraud and fraudulent inducement are the
same.”209 A plaintiff alleging common law fraud (or fraudulent inducement) must
prove five prima facie elements: (1) a false representation, (2) that the defendant
knew or believed the representation to be false or was recklessly indifferent as to its
truth, (3) that the defendant intended to induce action, (4) that the plaintiff acted in
justifiable reliance upon the representation, and (5) causally related damages.210
209
Maverick Therapeutics, Inc v. Harpoon Therapeutics, Inc., 2020 WL 1655948, at *26
(Del. Ch. Apr. 3, 2020).
210
Stephenson v. Capano Dev., Inc., 462 A.2d 1069, 1074 (Del. 1983).
50
As explained below, AWS’s trial proofs fall short of proving either the requisite
scienter (elements (2) and (3)) or justifiable reliance (element (4)).
AWS argues that it has proven the first element of fraud—a false
representation—by proving that Arwood (1) stayed silent when he had a duty to
disclose his misguided billing practices pre-acquisition,211 (2) provided information
that created a false impression that Arwood Waste’s success was legitimate,212 and
(3) failed to cure the false impression he had created.213 In other words, AWS asserts
that Arwood’s misrepresentations were the product of concealment, not affirmative
falsehood, in that he provided information that left the buyer with a falsely optimistic
view of Arwood Waste’s businesses and failed to correct that misimpression.214 For
211
DOB at 27; see also Paron Cap. Mgmt., LLC v. Crombie, 2012 WL 2045857, at *5
(Del. Ch. May 22, 2012) (“Fraud need not take the form of an overt misrepresentation;
it also may occur through concealment of material facts, or by silence when there is a duty
to speak.”), aff’d, 62 A.3d 1223 (Del. 2013).
212
DOB at 27–29; see also Norton v. Poplos, 443 A.2d 1, 5 (Del. 1982) (“[A]lthough a
statement or assertion may be facially true, it may constitute an actionable
misrepresentation if it causes a false impression as to the true state of affairs, and the actor
fails to provide qualifying information to cure the mistaken belief.”).
213
DOB at 30–31; see also Trascent Mgmt. Consulting, LLC v. Bouri, 2018 WL 4293359,
at *15 (Del. Ch. Sept. 10, 2018) (“One has a duty to speak to correct an omission ‘in order
to prevent statements actually made from being misleading.’”) (quoting Stephenson,
462 A.2d at 1074).
214
I note that AWS’s counterclaim alleged fraud based on both contractual
misrepresentations in the APA and Arwood’s concealment of material facts pre-closing,
whereas AWS focused only on pre-closing fraudulent concealment and a duty to speak in
its post-trial briefing. Compare Countercls. ¶¶ 8–9 (identifying specific representations
51
purposes of analysis, I assume AWS has proven that certain aspects of Arwood
Waste’s business, particularly its sources of revenue, were not overtly revealed in its
haphazardly-kept business records such that AWS has proven the first element of
fraud.215
1. Scienter
As a matter of Delaware law, fraud “require[s] a certain level of scienter on
the part of the defendant; a misrepresentation must be made either knowingly,
intentionally, or with reckless indifference to the truth.”216 The plaintiff must also
prove that the defendant intended to induce reliance.217 In this regard, “[f]raud
and warranties sections in its fraud claim), with DOB at 27–31 (failing to discuss fraud
with respect to any of the APA’s reps and warranties). The failure to argue contractual
fraud in its post-trial briefs raises the specter of waiver. See Walker v. Williams, 2016 WL
6555886, at *5 (Del. Ch. Nov. 4, 2016) (deeming matters not raised in post-trial briefs
waived). Ultimately, regardless of whether the claim sounds in contractual fraud or extra-
contractual fraud, as discussed below, AWS failed to prove Arwood possessed the requisite
scienter for fraud or that AWS justifiably relied on Arwood’s alleged misrepresentations.
215
I assume adequate proof of a false representation for the sake of analysis. To be clear,
however, as explained below, AWS has not proven that any false impression it may have
developed with respect to revenue was the product of the seller’s conscious effort to
mislead.
216
Metro Commc’n Corp. BVI v. Advanced Mobilecomm Techs. Inc., 854 A.2d 121, 143
(Del. Ch. 2004) (citation omitted); In re Wayport, Inc. Litig., 76 A.3d 296, 326 (Del. Ch.
2013) (“Under Delaware law, scienter can be proven by establishing that the defendant
acted with knowledge of the falsity of a statement or with reckless indifference to its
truth.”).
217
Stephenson, 462 A.2d at 1074.
52
depends on a subjective test. The defendant must be shown to have had a culpable
state of mind.”218 And a culpable state of mind requires proof beyond negligence:
Fraud may be said to be an action of a more affirmative evil nature,
such as proceeding or acting dishonestly, intentionally, and
deliberatively, with a wicked motive, to cheat or deceive one party to a
transaction with respect to the situation or operations, or such as an
action that results to his or her damage or loss and to the advantage or
gain of the other party.219
“Whether the defendant had the necessary state of mind to support liability
for fraud is ordinarily a question for the [factfinder].”220 Although AWS was not
required to “produce direct evidence of the defendant’s state of mind,” and could,
instead, rely on “[c]ircumstantial evidence” to prove the point,221 as discussed below,
the preponderance of the circumstantial evidence presented in this case falls well
short of supporting a finding that Arwood acted with the requisite scienter for fraud.
218
Restatement (Third) of Torts: Liab. for Econ. Harm § 10 cmt. a (2020).
219
37 Am. Jur. 2d Fraud and Deceit § 3 (Feb. 2022 Update).
220
Restatement (Third) of Torts: Liab. for Econ. Harm § 10 cmt. d (2020).
221
Deloitte LLP v. Flanagan, 2009 WL 5200657, at *8 (Del. Ch. Dec. 29, 2009) (citing
McLean v. Alexander, 599 F.2d 1190, 1198 (3d Cir. 1979)); see also Maverick
Therapeutics, 2020 WL 1655948, at *29 (“Such scienter may be demonstrated through
circumstantial evidence, including demonstrating motive and opportunity for the
inducement. In cases where a fraud claim centers on a transaction, the transaction itself
may serve as both the motive and opportunity to commit the fraud.”); Great Hill Equity
P’rs IV, LP v. SIG Growth Equity Fund I, LLLP, 2018 WL 6311829, at *32 (Del. Ch.
Dec. 3, 2018) (“Facts that establish motive and opportunity to commit common law fraud
can also be used to establish scienter.”); Restatement (Third) of Torts: Liab. for Econ.
Harm § 10 cmt. d (2020) (“Scienter is often difficult to prove directly in a suit for fraud.”).
53
First, the unique and extensive level of access Mahon and Broadtree were
given––by Arwood––into Arwood Waste’s operations does not support an inference
that Arwood devised a “scheme [] reasonably calculated to deceive.”222 There is no
credible evidence that Arwood refused to provide anything that Mahon or Broadtree
requested in due diligence. Indeed, Mahon and Broadtree were denied access only
to the Arwood Waste employees, and that was by agreement of the parties to prevent
unwanted disclosure that Arwood was looking to sell his brokerage business.223
Arwood trusted Mahon and gave him unfettered, password-protected access to his
personal and business banking information, credit card statements, TRUX records
and more.224
This point is especially salient given that Arwood expected this acquisition to
culminate in a “roll-up” in which he would participate post-acquisition, meaning that
he planned to be business partners with Mahon and Broadtree after closing.225
222
37 C.J.S. Fraud § 42 (Feb. 2022 Update).
223
Tr. 468:1–8 (Mahon) (“Arwood didn’t want his employees to know that he was looking
at potentially selling.”).
224
Tr. 719:21–24, 721:10–723:13, 953:12–23 (Arwood); Tr. 189:16–22, 206:21–207:3
(Mahon); Tr. 42:14–43:4 (Goode).
225
Tr. 29:24–30:1 (Goode); JX 113 (Email from Mahon to Arwood and Goode with the
subject line “Potential New Deal Structure and Overview of Roll-Up Structure”);
Tr. 730:22–731:14 (Arwood) (“Q. And what was your understanding of what [JX 113]
54
Indeed, Arwood was paid partially in equity with this very point in mind.226 Given
the access Arwood provided Mahon and his expectation that their business
relationship would continue, it makes little sense that Arwood would intend to
defraud Mahon and Broadtree only to be discovered post-closing. Nor is it
reasonable to conclude that Arwood was reckless in his representations given that
he turned the keys of the business over to Mahon so that Mahon could ascertain for
himself precisely what Broadtree was buying.
Second, and relatedly, although he had built a large waste business, Arwood
was an alarmingly unsophisticated businessman.227 Remarkably, he did not track
costs or keep a reliable profit and loss statement for the business, and he likely had
no idea how to do so.228 This reality cannot be squared with AWS’s allegations that
was? A. Well, from what I was explained on how the roll-up and how I can make a lot of
money, you know, I guess is how I understood it.”).
226
See, e.g., JX 83 (April LOI) at 1 (stating that “together, we [meaning Arwood, Goode
and Broadtree] will execute a successful roll up of the portable toilet industry”); id.
(detailing Arwood’s rollover equity “represent[ing] 40% ownership in the Company
at close” and his post-closing employment as chief marketing officer).
227
AWS argues Arwood was not unsophisticated because he had sold other parts of his
business before. I find this argument unpersuasive. Arwood needed and utilized Goode’s
assistance to do the deals. See Tr. 23:2–25:15 (Goode) (testifying that Arwood “needed
some assistance” in making a bid and later asked Goode to help “facilitate” two sales).
And Arwood clearly had not done any deal comparable to this one. See Tr. 722:1–11
(Arwood).
228
Tr. 719:4–8 (Arwood); Tr. 259:4–16 (Mahon).
55
Arwood ran an extensive fraudulent scheme, that included giving Mahon password-
protected access to the Selling Entities’ finances and records, while successfully
hiding that scheme from sophisticated businesspeople. Rather, it is more likely that
Arwood, while understanding that he was engaging in certain untenable business
practices, believed that Mahon and Broadtree knew how Arwood Waste was
operating, including how it billed its customers to make money, and that they
accepted those practices at the time they agreed to acquire the business from him.229
This likely explains why Arwood did not balk when Broadtree reported that its offer
had decreased significantly, as per the June LOI, because it could not verify or
replicate certain revenue sources.230
Third, Arwood’s behavior after the sale is not consistent with a seller who has
just made off with a fraudulently attained payday. Instead of selling and running,
Arwood continued to work with Mahon and AWS as Chief Marketing Officer.231
After increased salary costs cut into the profitability of the new business, Arwood
229
Tr. 940:21–942:18 (Arwood).
230
PTO ¶ 69; JX 116; Tr. 81:15–82:10 (Goode); Tr. 204:10–205:5 (Mahon); Tr. 728:11–
729:8, 940:4–17 (Arwood).
231
PTO ¶ 87. In his new role, Arwood obtained new accounts for the business. See JX 220
at 9; JX 235 at 18; cf. JX 322.
56
voluntarily took a pay cut and stayed on as a consultant. 232 There is no evidence
that, before or after the acquisition, Arwood attempted to prevent Mahon or others
from learning about Arwood Waste’s past business practices by destroying evidence
or otherwise secreting the purported fraud. Indeed, as Arwood persuasively argues,
the preponderance of the evidence shows that Arwood was legitimately surprised
when he was terminated and accused of fraud.233
It is often difficult to discern precisely what is, or was, in the mind of an actor
accused of fraud, which is why our law allows the factfinder to rely upon
circumstantial evidence when determining whether sufficient proof of scienter exists
in a fraud case.234 In some instances, a seller’s motive to achieve a higher price, as
revealed in the evidence, may alone support a fair inference of scienter.235 In this
case, however, the substantial (and unusual) disparity in the business acumens of
232
PTO ¶ 88; Tr. 747:5–748:4 (Arwood); JX 236 at 10.
233
See Tr. 752:4–14 (Arwood); Pls.’ Opening Post-Trial Br. (“POB”) (D.I. 198) at 17–18.
E.g., Maverick Therapeutics, 2020 WL 1655948, at *29 (noting that “scienter may be
234
demonstrated through circumstantial evidence”).
235
E.g., Great Hill Equity P’rs, 2018 WL 6311829, at *32 (“Facts that establish motive
and opportunity to commit common law fraud can also be used to establish scienter.”);
Deloitte, 2009 WL 5200657, at *8 (“Plaintiffs can establish scienter with facts establishing
a motive and an opportunity to commit fraud, or by setting forth facts that constitute
circumstantial evidence of either reckless or conscious behavior where they are plead [sic]
with particularity and give rise to a strong inference of scienter.”) (internal quotation marks
and footnotes omitted).
57
buyer and seller, the unfettered and nearly total access given by seller to buyer, and
the seller’s post-closing commitment to the buyer to continue to work for newco, all
support a finding that Arwood did not intend to mislead or induce Mahon or
Broadtree, nor did he act recklessly in providing information to them pre-closing.
2. Justifiable Reliance
The fraud and fraudulent inducement claims also fail because AWS did not
justifiably rely on Arwood’s misrepresentations or omissions.236 As noted, to prove
fraud, the plaintiff must prove that his “action” was “taken in justifiable reliance
236
I note that the failure to prove scienter is, alone, fatal to AWS’s fraud claim, whether
based on extra-contractual or contractual fraud. And, again, AWS did not press a
contractual fraud claim in its post-trial briefs. With that said, there may be a basis to view
justifiable reliance differently in the contractual fraud context, particularly given the
express recognition in the APA that AWS was relying upon the seller representations and
warranties. See APA § 4; see also Agspring Holdco, LLC v. NGP X US Hldgs., L.P.,
2020 WL 4355555, at *13 n.137 (Del. Ch. July 30, 2020) (“To be clear, no basis would
exist to challenge Plaintiffs’ reliance on the representations in the MIPCA, which expressly
provides that Holdco has relied and would rely on those representations.”). But see
Universal Enter. Gp., L.P. v. Duncan Petroleum Corp., 2013 WL 3353743, at *14–15
(Del. Ch. July 1, 2013) (“Although Universal proved that Duncan made knowingly false
representations to induce Universal to enter into the Sale Agreement, Universal did not
prove that it relied upon Duncan’s false representations. . . . In the Sale Agreement,
Universal bargained for an unfettered due diligence right. Universal then retained Delta
and Manko Gold as its experts to conduct due diligence and evaluate the results. Through
due diligence, Universal learned about [various problems] . . . Universal treated Duncan’s
representations with healthy skepticism. Universal relied on the representations in the
sense that they contractually allocated to Duncan the risk that the representations would be
incorrect, but Universal did not rely on the representations in the sense of being
fraudulently induced by them to close the transaction.”), aff’d, 99 A.3d 228 (Del. 2014)
(TABLE). That issue has not been joined in the briefs, however, so I do not address it here.
58
upon the representation.”237 “Under Delaware law, justifiable reliance is measured
objectively” and is determined as a matter of fact.238 Whether reliance was justified
is a contextual inquiry and “is judged by reference to the plaintiff’s knowledge and
experience”239 and “the relationship between the parties.”240 In other words,
“[j]ustifiable reliance has a personalized character. It is measured by reference to
the plaintiff’s capabilities and knowledge; [and] a plaintiff’s sophistication may
affect a court’s judgments about what dangers were fairly considered obvious.”241
237
Stephenson, 462 A.2d at 1074; 37 C.J.S. Fraud § 51 (Feb. 2022 Update) (“The reliance
must be justifiable or reasonable.”). Some jurisdictions use the term “reasonable reliance”
instead of “justifiable reliance,” or even draw a distinction between the two. See, e.g.,
37 Am. Jur. 2d Fraud and Deceit § 231 (Feb. 2022 Update) (“Most courts have declared
that the plaintiff must establish that the reliance on the misrepresentation was either
reasonable or justifiable. A minority of courts require the plaintiff to demonstrate that the
reliance was both reasonable and justified.”). I need not distinguish between the two here
because, in Delaware, “[r]easonable reliance is equivalent to justifiable reliance.” Reserves
Dev. LLC v. Crystal Props., LLC, 986 A.2d 362, 368 (Del. 2009). But see Great Hill Equity
P’rs, 2018 WL 6311829, at *33 (“This Court sometimes explicitly separates from
justifiable reliance the requirement that reliance be reasonable.”).
238
See Trascent Mgmt. Consulting, 2018 WL 4293359, at *17; Great Hill Equity P’rs,
2018 WL 6311829, at *33 (“Whether reliance is justifiable is an objective standard.”);
37 Am Jur. 2d Fraud and Deceit § 239 (Feb. 2022 Update) (“[T]he question of justifiable
reliance is one of fact and requires an inquiry into the relationship between the parties.”).
239
37 C.J.S. Fraud § 51 (Feb. 2022 Update).
240
37 Am. Jur. 2d Fraud and Deceit § 239 (Feb. 2022 Update).
241
Restatement (Third) of Torts: Liab. for Econ. Harm § 11 cmt. d (2020); see also
37 C.J.S. Fraud § 51 (Feb. 2022 Update) (“[R]eliance is not justifiable where the alleged
victim of a fraud ignored or closed its eyes to a known or obvious risk, particularly when
the transaction is between large, sophisticated commercial enterprises with relevant
59
“One cannot secure redress for fraud where he or she acted in reliance on his or her
own knowledge or judgment,” and “not on the representor’s statements.”242
As just explained, it is axiomatic that a plaintiff does not justifiably rely on a
defendant’s misrepresentation if the plaintiff knows that the representation is
false.243 On the other hand, it is equally well-established that, generally, a failure to
discover the fraud through due diligence does not excuse it;244 in fact, “[a] plaintiff’s
diligence efforts can be evidence that her reliance on a false representation was
reasonable because she made efforts to verify the representation and discovered no
experience.”); id. (“Where ample opportunity existed to discover the truth, then reliance
on a fraudulent misrepresentation of the defendant is not justified.”); Maverick
Therapeutics, 2020 WL 1655948, at *30 (explaining that if a party “should have
discovered” the misrepresentation, “it did not justifiably rely”).
242
37 C.J.S. Fraud § 60 (Feb. 2022 Update).
243
Ward v. Hildebrand, 1996 WL 422336, at *4 (Del. Ch. July 8, 1996) (“[T]he recipient
of a fraudulent misrepresentation is not justified in relying upon its truth if knows that it is
false or if its falsity is obvious to him.”) (citing Restatement (Second) of Torts § 541);
Maverick Therapeutics, 2020 WL 1655948, at *30 (observing that if a defendant “shared
[plaintiff’s] understanding,” “then it cannot have justifiably relied”); Great Hill Equity
P’rs, 2018 WL 6311829, at *33 (“[T]he plaintiff must have actually relied.”).
244
See, e.g., 37 Am. Jur. 2d Fraud and Deceit § 240 (Feb. 2022 Update) (“A party who
has perpetrated a fraud through misrepresentations which induce action by another party
cannot defeat a claim for damages by asserting that the defrauded party might have
discovered the fraud by the exercise of proper care. However, the victim of a fraud cannot
close their eyes to a known misrepresentation and cannot close their eyes to a
misrepresentation that is obvious.”).
60
reason to doubt its truth.”245 Delaware law does not condone fraud, nor are buyers
required to conduct perfect due diligence before their reliance can be said to be
justified.
But reliance must have been “justifiable” in some sense of the word. 246 This
requirement “creates arguable tension with the usual rule that contributory
negligence is no defense to an intentional-tort claim.”247 Courts have struggled to
draw a line somewhere between actual knowledge and negligence when assessing
245
Great Hill Equity P’rs, 2018 WL 6311829, at *33; see also id. (“The fact that a
plaintiff’s diligence efforts do not uncover fraud does not render such efforts unreasonable,
especially when the fraud was intentionally hidden.”).
246
E.g., 37 C.J.S. Fraud § 51 (Feb. 2022 Update) (“The reliance must be justifiable or
reasonable.”); Restatement (Third) of Torts: Liab. for Econ. Harm § 11 cmt. d (2020)
(“[L]iability does require a showing that the plaintiff’s reliance on what the defendant said
was ‘justifiable.’ Justifiable reliance is an element of the plaintiff’s cause of action . . . .”).
247
Restatement (Third) of Torts: Liab. for Econ. Harm § 11 cmt. d (2020). Compare, Great
Hill Equity P’rs, 2020 WL 948513, at *8 (“Great Hill was well aware of Plimus’s business
model which included the quality of the vendors, and thus could not establish justifiable
reliance on any misrepresentation that may have been made regarding vendor quality.”),
and Universal Enter. Gp., 2013 WL 3353743, at *14–15 (holding that unusually extensive
pre-close due diligence foreclosed finding of justifiable reliance), with Cobalt Operating,
LLC v. James Crystal Enters., LLC, 2007 WL 2142926, at *28 (Del. Ch. July 20, 2007)
(“[I]t appears that Crystal’s own efforts at deception prevented the fraud from being
detected during due diligence. Given these factors, and the other diligence Cobalt
conducted, Cobalt satisfies its burden as a fraud plaintiff to show justifiable reliance.”),
aff’d, 945 A.2d 594 (Del. 2008) (TABLE), and Janas v. Biedrzycki, 2000 WL 33114354,
at *5 (Del. Super. Ct. Oct. 26, 2000) (“Contributory negligence does not operate to reduce
the liability under a theory of fraud.”).
61
whether a buyer’s reliance was reasonable or justified. Judge Posner endeavored to
do so in AMPAT/Midwest, Inc. v. Illinois Tool Works Inc., where he observed:
That a more cautious buyer might not have relied, might have smelled
a rat, does not defeat liability. There is no defense of contributory
negligence to an intentional tort, including fraud.
This principle coexists uneasily, however, with a requirement that the
victim of a fraud prove justifiable, or in other words reasonable,
reliance, implying some duty of care on the part of the victim. How are
these principles—no duty of care (that is, no defense of contributory
negligence) but a duty of reasonable, not just any old, reliance—to be
reconciled? . . . We think it comes down to this: while the victim of an
ordinary accident is required to use the ordinary care of an average
person . . . the victim of a deliberate fraud is barred only if he has notice
of the fraud, and so he need only avoid deliberate or reckless risk-
taking.
These attenuated duties of care that a fraud victim has are two, not one.
The victim cannot close his eyes to a known risk. But, beyond that—
and the crux of the present case—he cannot close his eyes to a risk that
is obvious, even if he does not himself perceive the risk.248
Pairing “recklessness” with knowing intent as a touchstone for justifiable
reliance makes good sense.249 It protects a buyer’s reasonable reliance on due
248
896 F.2d 1035, 1041–42 (7th Cir. 1990) (emphasis in original).
249
Accord. Restatement (Third) of Torts: Liab. for Econ. Harm § 11 cmt. d (2020)
(“Justifiable reliance amounts to freedom from recklessness . . . .”); 75 Causes of Action
2d 119 § 10 (2016) (noting that courts must consider numerous factors “[i]n assessing
whether reliance was justifiable or whether there was a reckless failure to exercise
diligence”); AMPAT/Midwest, Inc. v. Illinois Tool Works Inc., 896 F.2d 1035, 1041–42
(7th Cir. 1990); Fed. Land Bank of Balt. v. Pusey, 1986 WL 9041, at *3 (Del. Super. Ct.
July 21, 1986) (couching argument of unjustifiable reliance in terms of recklessness);
Dexter Corp. v. Whittaker Corp., 926 F.2d 617, 620 (7th Cir. 1991) (using the phrase
62
diligence while also giving reverence to the word “justifiable.” In this regard, it
should not escape notice that equating a lack of “recklessness” with “justifiable” in
the reliance context jibes with our law’s acknowledgment that a knowing or reckless
misrepresentation can give rise to fraud.250 The symmetry is befitting––one can be
held liable for fraud for acting with reckless indifference to the truth; and one can be
denied a fraud recovery for acting with reckless indifference to the falsity of the
representation or misimpression he alleges was fraudulently made or given.
With this symmetry in mind, AWS has failed to prove justifiable reliance
because Mahon and Broadtree were, at the very least, reckless in any reliance they
might claim upon Arwood’s misleading omissions. This is not a case where a buyer
simply failed to discover the hidden skeleton in the closet during due diligence.
Rather, Mahon and Broadtree passed warning sign after warning sign as the
information AWS now points to as the source of the fraud stared them in the face.
The preponderance of the evidence reveals they either saw the evidence of improper
“reckless indifference to the truth” to describe behavior “that establishes unreasonable
reliance in the law of fraud”). Black’s Law Dictionary defines “recklessness” as “[c]onduct
whereby the actor does not desire harmful consequence but nonetheless foresees the
possibility and consciously takes the risk. Recklessness involves a greater degree of fault
than negligence but a lesser degree of fault than intentional wrongdoing.” Recklessness,
Black’s Law Dictionary (11th ed. 2019).
250
See Lord v. Souder, 748 A.2d 393, 402 (Del. 2000) (“It is well-settled under both
Delaware law and the law of most other jurisdictions that the scienter [] requirement
[for fraud] can be satisfied by a showing of recklessness.”).
63
billing, improper lien practices and damaged vendor relationships and chose to
ignore it, or they somehow missed what Arwood placed right before their eyes.
Either way, any reliance they might now claim cannot be deemed justified.
First, to reiterate, Arwood gave Mahon and Broadtree unfettered access to his
personal and business financials, as well as password-protected access to Arwood
Waste’s records and software.251 He did this because he could not provide an
accurate picture of the business that Broadtree was looking to buy. Broadtree was
left to paint its own picture. At post-trial oral argument, counsel for AWS could not
point to a single Delaware case where the court found that fraud had been proven
even though the buyer knew the seller was not sophisticated enough accurately to
depict the business he was selling, and I am aware of none.252
AWS argues that Mahon could not have known about the improper overages
or lien practices, but the record does not bear this out. Indeed, although Mahon
claims he was first alerted to the issue post-closing by the under-performance of the
business and employee rumors, he investigated and confirmed the practice using data
251
E.g., Tr. 719:21–24, 953:18–23 (Arwood).
252
Post-Trial Oral Arg. (“PT OA”) (D.I. 212) at 97:22–98:18.
64
from TRUX, which he indisputably had full access to throughout diligence.253 That
information was always in Mahon’s hands. Moreover, AWS’s arguments regarding
the pervasiveness of Arwood’s “scheme” undercuts its contention that Mahon could
not have discovered the scheme during the countless hours he spent rummaging
through Arwood Waste’ records.254
Second, and relatedly, Mahon and Broadtree knew early on that they could
not trust Arwood Waste’s financials (as they did not exist) nor the underlying data.
Knowing they could not rely on the company’s poor record keeping, they bought the
brokerage business anyway.255 Mahon relied heavily on TRUX in creating his
reports, which he later dubbed the “authority,” and yet he testified that he “had a
very, very difficult time understanding” the software.256 Basing the decision to buy
253
Tr. 135:5–9 (Mahon) (testifying that he looked at TRUX to compare overage revenue
recognized pre- and post-acquisition to investigate); Tr. 719:16–20 (Arwood) (explaining
that he gave Mahon full, password-protected access to TRUX).
254
See JX 285 (Wyner Report) at 3 (concluding that “[b]efore the acquisition, almost every
load had overage charges”); see also 37 C.J.S. Fraud § 51 (Feb. 2022 Update) (“Where
ample opportunity existed to discover the truth, then reliance on a fraudulent
misrepresentation of the defendant is not justified.”); Maverick Therapeutics,
2020 WL 1655948, at *30 (stating that if a party “should have discovered” the
misrepresentation, “it did not justifiably rely”).
255
Tr. 193:1–6, 197:22–198:4, Tr. 258:1–13 (Mahon); Tr. 719:4–8, 943:16-18 (Arwood).
256
Tr. 345:21–346:3 (Mahon); see also Tr. 190:1–16, 193:11–14, 206:2–207:11 (Mahon);
Tr. 719:16–20, 953:6–23 (Arwood); Tr. 33:1–34:6 (Goode); JX 102.
65
a company on financials you know you cannot trust, drawn from data stored in
software you do not understand, is not justifiable.257
Third, the fact that Broadtree substantially lowered the purchase price
(by nearly 25%) after months of due diligence is strong evidence that Broadtree
realized either that there were serious problems with the brokerage business or it
could not fully trust the information it had in hand.258 Broadtree contractually
managed the risk that it had not painted an accurate picture of the brokerage business,
after having been tasked with doing so, by substantially lowering the purchase price,
securing seller’s representations and warranties in the APA and then holding its
breath. For purposes of fraud, that is not justifiable reliance.
257
AWS’s assertion that TRUX could not alert Mahon to Arwood’s practices because
“Trux does not contain documents or information sufficient to track customers” and “dump
tickets are not stored in Trux” is not credible. See DOB at 11 n.2. As noted, Mahon
confirmed the overage practice using TRUX. More to the point, he and Broadtree literally
had to recreate the flow of cash in and out of the brokerage business to understand how the
business they were buying made money. Given the pervasiveness of the overbilling and
improper lien practices, it is not reasonable to conclude that evidence of these practices
either was not seen or was seen but not understood.
258
The May LOI was set at $20.9 million, and the June LOI was set at $15.75 million;
PTO ¶¶ 68–69; JX 93; JX 116. In his deposition, Mahon identified certain additional costs
that reduced the purchase price, but those costs do not fully account for the substantial
decrease in the ultimate price paid for the businesses. See Mahon Dep. Vol. I 167:9–
168:25. Both Arwood and Goode credibly testified that “there was revenue they couldn’t
guarantee” or “account for.” Tr. 728:11–729:8 (Arwood); Tr. 940:4–17 (Arwood); see also
Tr. 81:19–22 (Goode) (“The last letter of intent when they dropped the purchase price and
[sic] he said there was revenue that he couldn’t sustain and be guaranteed he would have,
and he had added additional expenses.”).
66
Fourth, although Mahon spent substantial time confirming Arwood Waste’s
revenue, he wholly ignored other aspects of the business. Besides the largest
contract with the Florida prison system, Mahon did not ask for access to any
customers or customer contracts even though this information was but a request
away.259 Importantly, he knew overage and liens fees were part of the revenue,260
and that Arwood engaged in a practice of estimating weights,261 but he apparently
chose not to confront Arwood with questions about the legitimacy of these charges
and the reliability of the revenue they generated. On this point, the Court’s exchange
with Mahon at trial was disquieting:
Mahon: We didn’t get into the nuances of the actual billing of the
customer since I wanted to more understand the process flow of the
customer. And coming in, they would receive an invoice to the end.”
Court: But I assume you appreciated that billing the customer and the
customer paying was how the company succeeded. That was sort of
integral to the success of the business you were buying. Right?
259
Tr. 470:19–471:2 (Mahon) (“THE COURT: Did you ask to get access to any customers
during that process? THE WITNESS: At the time, Your Honor, the customer concentration
was so low that the single largest customer was the Florida prison system, which we asked
to see those contracts. But any individual customer was less than 1 percent, I believe, of
the overall revenue.”).
260
Tr. 197:3–198:4, 307:8–13 (Mahon); JX 160 at 36 (recognizing “overage[s]”
as additional charges customers may pay).
261
Tr. 940:21–942:18 (Arwood) (testifying he told Mahon about how they billed overages).
67
Mahon: Yes, Your Honor, but we reviewed customer reviews. They
had a 4-Star rating in Trustpilot, and so we felt that they were doing a
good job at the time.262
Mahon’s answer was unresponsive. He was tasked with creating what did not exist,
and he had access to anything he asked for to enable him to complete that task.
To now claim that he was somehow misled by a picture that he himself was painting
is not justifiable.263
Taken together, these facts prove that AWS was not justified in relying upon
any supposed extra-contractual impressions created by Arwood pre-closing
regarding the fitness of the brokerage business, or any representations expressly
made by the Selling Entities in the APA, especially given Mahon and Broadtree’s
262
Tr. 466:9–21 (Mahon). AWS argues that even the customer reviews were misleading
because Arwood offered gift cards to employees to write positive reviews. See DOB at 14–
15. That contention is supported by credible evidence. Robinson testified that employees
received bonuses for “procuring Trustpilot reviews,” and Henley testified that Arwood had
employees “make reviews online under different names.” Tr. 493:5–7 (Henley);
Tr. 614:11–13 (Robinson). Even so, for a sophisticated private equity buyer, it is not
credible to suggest that positive online customer reviews were sufficient to fill in gaps left
by non-existent or incomplete financial records, or that they somehow diverted this
sophisticated buyer from the path of further inquiry.
263
For the first time at oral argument, AWS argued that “Arwood selectively provided
some real dump tickets during due diligence,” relying on JX 350. PT OA at 77:12–20.
JX 350 is unhelpful. It contains not just bills from Arwood Waste to customers but also
several bills from service providers to Arwood Waste, and almost none of the invoices
include overage weights.
68
level of “knowledge and experience.”264 Having failed to prove scienter and
justifiable reliance, AWS cannot succeed on its fraud and fraudulent inducement
claims.
B. Breach of Representations
AWS has also asserted breaches of representations and warranties within the
APA against all Counterclaim Defendants and Goode. To prevail on a breach of
contract claim, a party must prove the existence of a contractual obligation, the
breach of that obligation, and resulting damages.265 Importantly, unlike its fraud
claims, where justifiable reliance is a prima facia element, in the context of its breach
of contract claim, “[t]o the extent [the Selling Entities] warranted a fact or
circumstance to be true in the [APA], [AWS was] entitled to rely upon the accuracy
of the representation []regardless of what [its] due diligence may have or should
have revealed.”266
AWS points to four different provisions of the APA that were breached––
Section 3.7 (Financial Statements), Section 3.9 (Accounts Receivable, Accounts
264
37 C.J.S. Fraud § 51 (Feb. 2022 Update).
265
VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d 606, 612 (Del. 2003);
WaveDivision Hldgs. v. Millennium Digit. Media Sys., L.L.C., 2010 WL 3706624, at *13
(Del. Ch. Sept. 17, 2010).
266
Interim Healthcare, Inc. v. Spherion Corp., 884 A.2d 513, 548 (Del. Super. Ct. 2005),
aff’d, 886 A.2d 1278 (Del. 2005).
69
Payable), Section 3.20 (Compliance with Laws), and Section 3.22 (Employees).
I address each in turn below. But first, I address whether “sandbagging” is
implicated by the facts proven here, as Arwood argues, and, if so, how the doctrine
affects the viability of AWS’s breach of contract claims.267
1. Sandbagging
After post-trial oral argument, I suspected that the preponderance of the
evidence might prove that Mahon and Broadtree either knew pre-closing that certain
representations in the APA were false or that they should have known of their falsity.
Concerned that either scenario might implicate “sandbagging,” I asked the parties
for supplemental submissions to answer two questions:
1) What is the current state of “sandbagging” as a defense under Delaware
law, particularly in light of our Supreme Court’s opinion in Eagle Force
Holdings, LLC v. Campbell?
2) Is “sandbagging” implicated if the buyer should have known that a
representation or warranty was false, but did not actually know of its
falsity?268
Having reviewed the parties’ supplemental submissions, in answer to the first
question, for the reasons explained below, I am satisfied that Delaware law allows a
267
As discussed in more detail below, “sandbagging” colloquially “refer[s] to the practice
of asserting a claim based on a representation despite having had reason to suspect it was
inaccurate.” Akorn, Inc. v. Fresenius Kabi AG, 2018 WL 4719347, at *77 n.756 (Del. Ch.
Oct. 1, 2018), aff’d, 198 A.3d 724 (Del. 2018) (TABLE).
268
D.I. 215.
70
buyer to “sandbag” a seller. But even if it did not, in answer to the second question,
I am satisfied that “sandbagging” only applies when a buyer knows a representation
is false pre-closing but seeks post-closing indemnification on the representation
anyway. As Mahon and Broadtree were recklessly indifferent to the truthfulness of
the representations, but did not actually know of their falsity pre-closing,
sandbagging is not implicated in this case in any event.
a. Delaware is a “Pro-Sandbagging” Jurisdiction
The term “sandbagging,” in all of its uses, carries a “negative connotation.”269
It “evokes an inference of wrongful intent and malfeasance” since it is generally
understood “to mean to misrepresent or conceal one’s true intent, position, or
potential in order to take advantage of an opponent.”270 Of course, the term’s origins
likely explain the modern perception of a “sandbagger”:
In the 19th century, ruffians roamed the streets armed with cotton socks.
These ostensibly harmless socks were filled with sand and used as
weapons to rob innocent, unsuspecting victims. Sandbaggers, as they
came to be known, were reviled for their deceitful treachery:
representing themselves as harmless, until they have you where they
269
Stacey A. Shadden, How to Sandbag Your Opponent In the Unsuspecting World of High
Stakes Acquisitions, 47 Creighton L. Rev. 459, 459 (2014) (“Shadden”).
270
Id.; see also Griffith Kimball, Sandbagging: Eagle Force Holdings & the Market’s
Reaction, 46 B.Y.U. L. Rev. 571, 571 (2020) (Comment) (“Kimball”) (“The word carries
a negative connotation; Merriam-Webster defines it as meaning ‘to treat unfairly or
harshly’ or ‘to conceal or misrepresent one’s true position, potential, or intent especially in
order to gain an advantage.’”) (citation omitted).
71
want you. Then, revealing their true intentions, they spring their trap
on the unwitting.271
As noted, in the context of a business acquisition, a “sandbagging” buyer
refers to a buyer who “is or becomes aware that a specific representation and
warranty made by the seller is false, yet instead of alerting the seller to this fact, the
buyer consummates the transaction, despite its knowledge of the breach, and seeks
post-closing damages against the seller for the breach.”272 The practice of
sandbagging in acquisitions is ubiquitous; so much so that transactional planners
have developed a sandbagging playbook that calls for different approaches to the
issue depending on which side of the deal one sits and whether the state law
271
Daniel L. Chase, M&A After Eagle Force: An Economic Analysis of Sandbagging
Default Rules, 108 Calif. L. Rev. 1665, 1666 (2020) (Note) (“Chase”); see also Akorn,
2018 WL 4719347, at *77 n.756 (“[Sandbagging] is a loaded and pejorative term:
It ‘originates from the 19th century where gang members would fill socks full of sand to
use as weapons against unsuspecting opponents.’”) (citing Shadden, at 459).
272
Shadden, at 459; see also Charles K. Whitehead, Sandbagging: Default Rules and
Acquisition Agreements, 36 Del. J. Corp. L. 1081, 1081 (2011) (“Whitehead”) (“In the
M&A World, a buyer ‘sandbags’ a seller when, knowing the seller has materially breached
a warranty, it closes the deal and then asserts a post-closing claim.”); Seth Cleary,
Delaware Law, Friend or Foe? The Debate Surrounding Sandbagging and How
Delaware’s Highest Court Should Rule on a Default Rule, 72 S.M.U. L. Rev. 821, 825
(2019) (Comment) (“Cleary”) (“In the United States M&A context, sandbagging is often
used to describe a situation where a buyer knows that a seller’s representations or
warranties are in breach prior to closing, but in spite of this breach, the buyer closes the
transaction and then pursues indemnification.”).
72
governing the deal has emerged as “pro-sandbagging” or “anti-sandbagging.”273
While there certainly is nuance in how a planner might approach sandbagging, the
playbook boils down to three approaches: (1) including a clause within the
acquisition agreement that “expressly permit[s] buyer to engage in sandbagging even
if buyer has previous knowledge of the falsity of seller’s representations and
warranties”; (2) including a clause within the acquisition agreement that “expressly
prevent[s] buyer [from pursuing] indemnification for a breach of seller’s
representations or warranties if buyer had prior knowledge of its inaccuracy”; or
(3) “remaining silent on the issue.”274
Not surprisingly, the parties to the APA took the third approach––the APA is
silent on the issue of sandbagging. I say not surprisingly because the preponderance
of evidence reveals that the APA was not negotiated; Broadtree prepared the
agreement and Arwood signed it with no fanfare or pushback.275 Having failed
expressly to allocate the risk of sandbagging in their contract, and apparently having
273
See, e.g., Whitehead, at 1092–93 (surveying jurisdictions and acquisition agreements;
concluding that New York and Delaware are pro-sandbagging and that very few acquisition
agreements contain anti-sandbagging clauses).
274
Shadden, at 461 (citing Broc Romanek et al., Negotiating Public-Private Mergers,
6 M&A Law 1 (2002)).
275
See JX 177, 179 (emails from Mahon discussing closing payments with no issues);
Tr. 728:11–729:3 (Arwood) (testifying that he “wasn’t happy” about the price reduction
but “ultimately agreed to it”).
73
given no thought to the matter pre-closing, the parties implicitly have invoked the
default common law of Delaware regarding sandbagging.
Delaware is “more contractarian” than most states,276 and our law respects
contracting parties’ “right to enter into good and bad contracts.”277 Our courts
“enforce[] both.”278 Given these strong contractarian propensities, it is surprising
that our highest court has not yet had occasion to resolve the “interesting question”
of “whether a party can recover on a breach of warranty claim where the parties
know that, at signing, certain of them were not true.”279 In the absence of definitive
guidance from the Supreme Court, I do my best to discern what the law of Delaware
on sandbagging is, or at least, what I believe it should be.
276
GRT, Inc. v. Marathon GTF Tech., Ltd., 2011 WL 2682898, at *12 (Del. Ch. July 11,
2011) (Strine, C.).
277
Nemec v. Shrader, 991 A.2d 1120, 1126 (Del. 2010).
278
Id.279
Eagle Force Hldgs., LLC v. Campbell, 187 A.3d 1209, 1236 n.185 (Del. 2018); see also
Chase, at 1671 (“Delaware’s sandbagging default rule is ambiguous.”); Kimball, at 582
(“As of this writing, the Delaware Supreme Court has still not definitively ruled on
sandbagging.”).
74
In my view, “Delaware is what is affectionately known as a ‘sandbagging’
state.”280 In his recent decision in Akorn, Vice Chancellor Laster well explained the
reason why this is (or should be) so:
From my perspective, the real question is whether the risk allocation in
the contract controls, or whether a more amorphous and tort-like
concept of assumption of risk applies. To my mind, the latter risks
having cases routinely devolve into fact disputes over what was
provided or could have been provided in due diligence. The former
seems more in keeping with Delaware’s contractarian regime,
particularly in light of Delaware’s willingness to allow parties to restrict
themselves to the representations and warranties made in a written
agreement.281
This perspective is entirely consistent with, and driven by, the settled Delaware
law that “reliance is not an element of a claim . . . for breach of any of the
representations or warranties in the agreement.”282 Here again, the reasoning of
our law is sound:
Due diligence is expensive and parties to contracts in the mergers and
acquisitions arena often negotiate for contractual representations that
280
NASDI Hldgs. v. N. Am. Leasing, No. 10540-VCL, at 57 (Del. Ch. Oct. 23, 2015)
(TRANSCRIPT); see also Cobalt Operating, LLC v. James Crystal Enters., LLC,
2007 WL 2142926, at *28 (Del. Ch. July 20, 2007) (“[A] breach of contract claim is not
dependent on a showing of justifiable reliance. . . . Having contractually promised
[the buyer] that it could rely on certain representations, [the seller] is in no position to
contend that [the buyer] was unreasonable in relying on [the seller's] own binding words.”),
aff’d, 945 A.2d 594 (Del. 2008).
281
Akorn, 2018 WL 4719347, at *77 n.756.
282
Id. (cleaned up) (citing Gloucester Hldg. Corp. v. U.S. Tape & Sticky Prods., LLC,
832 A.2d 116, 127–28 (Del. Ch. 2003)); Interim Healthcare, 884 A.2d at 548.
75
minimize a buyer’s need to verify every minute aspect of a seller’s
business. In other words, representations like the ones made in
[the agreement] serve an important risk allocation function.
By obtaining the representations it did, [the buyer] placed the risk that
[the seller’s] financial statements were false and that [the seller] was
operating in an illegal manner on [the seller]. Its need then, as a
practical business matter, to independently verify those things was
lessened because it had the assurance of legal recourse against
[the seller] in the event the representations turned out to be false. . . .
[H]aving given the representations it gave, [the seller] cannot now be
heard to claim that it need not be held to them because [the buyer’s] due
diligence did not uncover their falsity. . . . Having contractually
promised [the buyer] that it could rely on certain representations,
[the seller] is in no position to contend that [the buyer] was
unreasonable in relying on [the seller’s] own binding words.283
Pro-sandbagging is often characterized as the “modern rule.”284 Some who
disagree with the “modern rule” view sandbagging as bad economics in that it creates
penalty-like incentives in the bargaining process.285 Others view sandbagging as
283
Akorn, 2018 WL 4719347, at *77–78 (quoting Cobalt Operating, 2007 WL 2142926,
at *28).
284
Bryan Westhoff, You Were Relying on What? The Effect of a Pro-Sandbagging Clause
on a Fraud Claim, 2018 Bus. L. Today 1, 4 (2018); see also Victor P. Goldberg, Protecting
Reliance, 114 Colum. L. Rev. 1033, 1080 (2014) (“The weight of authority, and practice,
is with the pro-sandbagging side.”); Chase, at 1665 (“Dealmakers have long considered
Delaware as a ‘pro-sandbagging’ state following the modern trend.”); Kimball, at 574
(“Sandbagging law has evolved from tort to contract law, and ‘modern theory’ courts like
Delaware and New York generally consider the representations and warranties as
bargained-for provisions and refuse to change the parties’ deliberate allocation of risk.”).
285
See, e.g., Whitehead, at 1105–07. But see generally Chase (critiquing this conclusion).
76
simply unfair or “ethically questionable.”286 While I acknowledge there is
something unsettling about allowing a buyer to lay in wait on the other side of
closing with a breach claim he knew before closing he would bring against the seller,
the risk of such litigation, like any other risk, can be managed expressly in the
bargain the parties strike. A pro-sandbagging rule supports the notion that
“representations and warranties serve an important risk allocation function.”287
Indeed, as a general matter, Delaware’s “public policy favor[s] private ordering”288
and “respects the freedom of parties in commerce to strike bargains and honors and
enforces those bargains.”289 I see no reason to alter that public policy here, especially
since “anti-sandbagging clauses” have emerged as effective risk management tools
286
See, e.g., Shadden, at 474 (“Many scholars have recently asked the question whether
sandbagging is ethical. . . . Under both European and Canadian law, the default rule is
consistently in favor of anti-sandbagging. An anti-sandbagging provision appeals to one’s
sense of fairness . . . .”).
287
Pilot Air Freight, LLC v. Manna Freight Sys., Inc., 2020 WL 5588671, at *2 (Del. Ch.
Sept. 18, 2020) (citing In re Tibco Software Inc. S’holders Litig., 2014 WL 6674444, at *18
(Del. Ch. Nov. 25, 2014)); Cobalt Operating, 2007 WL 2142926, at *28; see also
Whitehead, at 1084 (observing that under the modern rule, a “[b]uyer can argue it bargained
for the warranties as a means to allocate risk and minimize cost”); cf. Chase, at 1681
(“By adopting a pro-sandbagging default rule, Delaware and other courts . . . will more
efficiently allocate risk, decreasing transaction costs and reducing sandbagging
litigation . . . .”).
288
Manti Hldgs., LLC v. Authentix Acq. Co., Inc., 261 A.3d 1199, 1217 (Del. 2021).
289
Related Westpac LLC v. JER Snowmass LLC, 2010 WL 2929708, at *6 (Del. Ch.
July 23, 2010).
77
that every transactional planner now has in her toolbox.290
When parties choose not to (or fail to) allocate the risk of sandbagging in their
contract, the buyer may rest on its reasonable belief that it has acquired as part of the
transaction the seller’s implicit promise to be truthful in its representations.291 “This
view of ‘reliance’—i.e., as requiring no more than reliance on the express warranty
as being a part of the bargain between the parties—reflects the prevailing perception
of an action for breach of express warranty as one that is no longer grounded in tort,
but essentially in contract.”292 Viewed through the lens of contract, not tort, the
question is simple: was the warranty in question breached? If it was, then the buyer
may recover—regardless of whether she relied on the warranty or believed it to be
290
See, e.g., Kimball, at 576 (noting that attorneys can bypass default pro-sandbagging
rules by “simply negotiat[ing] for an anti-sandbagging provision”); Jacek Jastrzȩbski,
“Sandbagging” and the Distinction Between Warranty Clauses and Contractual
Indemnities, 19 U.C. Davis Bus. L. J. 207, 209 (2019) (“Jastrzȩbski”) (acknowledging, in
discussing default sandbagging rules, that “parties can contract for a pro-sandbagging or
anti-sandbagging solution in their agreement”).
291
See CBS Inc. v. Ziff-Davis Publ’g Co., 553 N.E.2d 987, 1000–01 (N.Y. 1990)
(“The critical question is not whether the buyer believed in the truth of the warranted
information, as Ziff–Davis would have it, but whether it believed it was purchasing the
seller’s promise as to its truth.”) (citation and internal quotations omitted).
292
Id.; see also Jastrzȩbski, at 215 (“Typically, the states that follow the anti-sandbagging
rule are more strongly rooted in the tortious nature of warranty liability, while those that
adopt the pro-sandbagging rule have moved to the modern, contractual approach to
warranty liability.”).
78
true when made.293 “Stated otherwise, the fact that the buyer has questioned the
seller’s ability to perform as promised should not relieve the seller of his obligations
under the express warranties when he thereafter undertakes to render the promised
performance.”294 Reliance, whether justified or unjustified, is not a prima facie
element of breach of contract.295
As applied here, Arwood and the Selling Entities made certain representations
and warranties in the APA. AWS accepted those promises when it signed the
contract. Whether AWS was oblivious to their falsity pre-closing, or fully cognizant,
does not matter. It was entitled to believe that it was “purchasing [the Selling
Entities’] promise” that the representations and warranties were true, and it may
recover damages if that promise was breached.
b. Sandbagging Is Not Implicated Here
In the Court’s second question to counsel, the Court inquired whether
sandbagging is even implicated when the buyer does not have actual knowledge pre-
closing that the seller’s representations were false. Having considered the issue,
guided by the parties’ supplemental submissions, I am satisfied the answer is no––
293
Ziff-Davis, 553 N.E.2d at 1001.
294
Id.
295
Interim Healthcare, 884 A.2d at 548.
79
sandbagging is not implicated unless the buyer actually knew pre-closing that the
seller’s representations were false. Thus, even if Delaware were an “anti-
sandbagging” jurisdiction, sandbagging is not implicated here because the evidence
does not prove that AWS knew the APA’s representations and warranties were false
before it closed.
In its supplemental submission, AWS argues that “the applicable inquiry is
what the buyer knew at the time of signing, not what the buyers should have
known.”296 Most commentators appear to share this view.297 Importantly, this is
296
Suppl. Ltr. Submission from E. Chaney Hall to V.C. Slights Regarding Sandbagging
(D.I. 216) at 10. For their part, Arwood and Goode assert that “Delaware law has not
resolved this issue.” Ltr. from Counsel for Pls. to the Ct. Regarding Suppl. Post-Trial
Briefing (D.I. 217) at 5.
297
See, e.g., Whitehead, at 1081 (“In the M&A World, a buyer ‘sandbags’ a seller when,
knowing the seller has materially breached a warranty, it closes the deal and then asserts a
post-closing claim.”) (emphasis added); Jastrzȩbski, at 208 (“[A] warrantee ‘sandbags’ the
warrantor if he enters into an agreement knowing that a warranty clause is incorrect and
subsequently brings a claim against the warrantor . . . .”) (emphasis added); Kimball, at 571
(“In corporate transactions, ‘sandbagging’ refers to a situation where a buyer knows that a
seller’s representation in a purchase agreement is false, but nevertheless closes the
transaction and later seeks to hold the seller liable for that breach.”) (emphasis added);
Cleary, at 825 (“In the United States M&A context, sandbagging is often used to describe
a situation where a buyer knows that a seller’s representations or warranties are in breach
prior to closing, but in spite of this breach, the buyer closes the transaction and then pursues
indemnification.”) (emphasis added); Chase, at 1665 (“In the Mergers & Acquisition
(M&A) context, a buyer ‘sandbags’ a seller when the buyer, despite knowing pre-closing
that the seller materially breached a representation or warranty, closes the deal anyway and
subsequently seeks indemnification from the seller for damages arising out of a breach.”)
(emphasis added). But see id. at 1667 (“‘Anti-sandbagging’ states do not allow a buyer to
sue a seller for breach of warranty if the buyer knew (or should have known) of the breach
80
also consistent with how our Supreme Court, in passing, recently framed the
unresolved issue of sandbagging in Eagle Force. Both the majority opinion and
then-Chief Justice Strine’s dissent strongly suggested that the buyer’s actual
knowledge of falsity animates the sandbagging inquiry, not constructive
knowledge.298
For these reasons, I am satisfied that sandbagging is not implicated if a buyer,
exercising reasonable care, should have known a representation was false but did not
actually know. But that does not end the inquiry. The Court’s question to counsel
assumed the evidence would reveal that the buyer’s state of mind was “did not know,
but should have known” with respect to the falsity of the operative representations.
But the preponderance of the evidence has actually revealed that AWS’s lack of
knowledge was the product of reckless indifference. That, then, raises the additional
question of whether reckless indifference will implicate sandbagging. Because I am
satisfied the parties’ supplemental submissions are sufficiently responsive to the
question, I see no need to ask them to do more.
prior to closing without an express contractual provision to the contrary.”) (emphasis
added).
298
Eagle Force, 187 A.3d at 1236 n.185 (“We acknowledge the debate over whether a party
can recover on a breach of warranty claim where the parties know that, at signing, certain
of them were not true.”) (emphasis added); id. at 1247 (expressing “doubt” that a buyer can
“turn around and sue because of what he knew to be false remained so”) (Strine, C.J.,
concurring in part and dissenting in part) (emphasis added).
81
In my view, AWS’s argument that actual knowledge is required to implicate
sandbagging applies in full force to whether reckless indifference suffices. Just as
recklessness is beyond simple negligence, recklessness is not actual knowledge.299
And actual knowledge appears to be what is required to trigger the sandbagging
inquiry, as the language from Eagle Force and commentators cited above
suggests.300
Based on the foregoing, I am satisfied that “sandbagging” is implicated only
when a buyer has actual knowledge that a representation is false. Therefore, with
no concern that a sandbagging defense could defeat AWS’s claim for breach of the
APA’s representations and warranties, I turn now to the specific representations at
issue.
2. AWS Has Proven Breaches of Representations and Warranties
As noted above, AWS alleged that Arwood and the Selling Entities breached
Section 3.7 (Financial Statements), Section 3.9 (Accounts Receivable, Accounts
299
Compare Knowledge, Black’s Law Dictionary (11th ed. 2019) (“An awareness or
understanding of a fact or circumstance; a state of mind in which a person has no substantial
doubt about the existence of a fact.”), with Recklessness, Black’s Law Dictionary (11th ed.
2019) (“Reckless involves a greater degree of fault than negligence but a lesser degree of
fault than intentional wrongdoing.”) (emphasis added).
300
I note that the term’s origin is consistent with this conclusion. Sandbagging robbers
knew their sock weapons were filled with sand; they did not swing socks at unsuspecting
victims with reckless disregard for their weapons’ efficacy.
82
Payable), Section 3.20 (Compliance with Laws), and Section 3.22 (Employees).
I address each in turn.
a. Section 3.7: Financial Statements
First, AWS alleges a breach of Section 3.7 of the APA. At Section 3.7, the
Selling Entities represented that:
Each Company has delivered to Buyer and set forth on Schedule 3.7
[the financial statements listed]. Each of the foregoing financial
statements is consistent with the books and records of each Company.
The records provided by the Companies to the Buyer underlying the
Financial Statements are complete and accurate in all respects, and the
Financial Statements present fairly in all material respects the financial
condition and results of operations and cash flows of each
Company . . . .301
AWS argues that Arwood Waste’s Financial Statements (as defined) did not
accurately represent its financial condition or cash flows because both were based,
in large measure, on revenue generated by overbilling.302 In this regard, AWS points
to Arwood Waste’s false overage charges, improper lien fees, fabricated demurrage
fees, failure to pay haulers, and its purported failure to pay employees.303 The result
of these practices, AWS contends, was an inflated purchase price caused by an
301
APA § 3.7.
302
DOB at 39.
303
Id.
83
inflated EBITDA.304 At first glance, the contention appears to be well supported by
the evidence.
But the analysis is not so simple. As a preliminary matter, the “Financial
Statements” that AWS argues were inaccurate are those “set forth on
Schedule 3.7.”305 The problem is no Financial Statements were actually “set forth
on Schedule 3.7.”306 Not one.
Even assuming the applicable financial statements were “delivered,”307 the
Financial Statements were prepared by Mahon. All parties knew that Arwood Waste
had no financial statements or “formal records of any sort.”308 It would be extremely
odd that Arwood and the Selling Entities would “rep against” financial statements
that Mahon created for the buyer, and the incongruity was not lost on Broadtree;
Mahon sent an email to Elliott Davis coyly stating that “John [Arwood] will rep
against this income statement as the ONLY income statement that exists for 2017
304
Id.
305
APA § 3.7.
306
See JX 187 at 3.
307
See JX 102 (email from Mahon stating that “[Arwood] will rep against this income
statement”).
308
Tr. 193:1–10 (Mahon); Tr. 719:4–8 (Arwood) (explaining he did not “do financials or
any of that type of stuff” and “just knew what [he] was basically revenuing [sic]”);
PTO ¶ 65.
84
and 2018 so it is the authority :).”309 Although the typical dynamic is that the buyer
relies on the seller for the accuracy of the financial statements, this case strangely
presents the opposite dynamic.310 It seems ridiculous on its face that Mahon,
knowing full well that Arwood Waste did not have reliable financial records, would
undertake to create the Financial Statements, tell Arwood to make representations
as to the accuracy of those records, not attach them to the agreement as expressly
required, and then sue Arwood for breach.
And yet, unlike other representations in the APA,311 Section 3.7 contained no
knowledge qualifier, meaning that Arwood and the Selling Entities did not represent
that the financials were accurate to their knowledge. They represented that they were
“complete and accurate in all respects.”312 Because Arwood used false “estimated”
overages and utilized improper lien practices when billing customers, it is highly
unlikely that the Financial Statements were “complete and accurate in all respects.”
And, contrary to reality, the clear and unambiguous terms of the APA provide that
309
JX 102.
310
See Arwood Dep. Vol. II 188:6–20 (“Q. What about these statements of profit and loss
and cash flows, do you agree that you are telling—that you are representing that all those
things are true and accurate? A. . . . I do because I was trusting Sean [Mahon]. I don’t
know nothing about profit and loss and cash flows.”).
311
See, e.g., APA §§ 3.10, 3.17, 3.18, 3.19, 3.20.
312
APA § 3.7.
85
the obligation to provide accurate Financial Statements rested with Arwood and the
Selling Entities, not AWS.313
The proof of breach with respect to Section 3.7, in the end, stands in equipoise.
On the one hand, the provision unequivocally places responsibility on the sellers to
provide accurate Financial Statements, and they likely did not do so. On the other
hand, AWS failed to ensure that the Financial Statements were attached to the
contract it drafted, which makes assessing their accuracy (either by sellers or the
Court) impossible. Ultimately, however, whether Section 3.7 was breached does not
matter; as discussed below, Section 3.20 was breached, and AWS is entitled to
damages for that breach.
b. Section 3.9: Accounts Receivable
In its post-trial briefs, AWS alleges Arwood and the Selling Entities breached
Section 3.9, which represents that “[a]ll of the accounts received of [sic] each
Company that are less than 120 days outstanding are valid and enforceable
claims.”314 AWS alleges that this representation was false because “Arwood Waste
313
See id. (“Each Company has delivered to Buyer and set forth on Schedule 3.7: . . . The
records provided by the Companies to the Buyer . . . .”) (emphasis added).
314
APA § 3.9; see DOB at 40; Def./Countercl. Pl. AW Site Servs., LLC’s Answering Post-
Trial Br. (“DAB”) (D.I. 208) at 38.
86
charged customers improper extra fees and placed unwarranted liens on customer
property.”315
But AWS did not plead a breach of Section 3.9 in its counterclaim.316 That
alone is fatal to the claim. Moreover, AWS’s argument assumes that because a
portion of the underlying charges to customers was the product of fraud, some
unidentified portion of the amounts owed but not paid by customers must also be the
product of fraud. Yet, it made no effort to parse this out in the evidence. It simply
assumes, without proof, that all receivables are laced with fraudulent charges.
Accordingly, AWS has not proven a recoverable breach of Section 3.9.
c. Section 3.20: Compliance with Laws
AWS alleges that Arwood and the Seller Entities breached Section 3.20,
which states that “[e]ach Seller Entity has materially complied with and is currently
in compliance with all Laws of federal, state, local and foreign governments.”317
315
DOB at 40.
316
See Countercls. ¶¶ 78, 94 (referring only to Sections 3.7, 3.20, and 3.22 of the APA).
It appears the first mention of Section 3.9 appears on page 46 of AWS’s pre-trial brief
(D.I. 162). See Snow Phipps Gp., LLC v. KCAKE Acq., Inc., 2021 WL 1714202, at *44
(“Generally speaking, ‘[w]hen an argument is first raised in a pretrial brief after the parties
already have shaped their trial plans, it is simply too late and deemed waived.’”) (citing
ABC Woodlands L.L.C. v. Schreppler, 2012 WL 3711085, at *3 (Del. Ch. Aug. 15, 2012)).
317
APA § 3.20. The term “Laws” is broadly defined in the APA to include the common
law of fraud. APA § 1.1.
87
In particular, AWS points to several of the business practices already discussed and
argues that these practices resulted in violations of Law (as defined).318 I agree.
First, Arwood and the entities he controlled did not comply with the law in
their billing practices regarding weight overages. They systematically, inaccurately,
and intentionally overcharged their customers.319 AWS’s expert testimony supports
this point. Robert Wallace, AWS’s industry expert, credibly opined that Arwood’s
practice of estimating weights was “the opposite of industry norms” and “grossly
violate[d] industry practices.”320 And Wyner testified persuasively that “it is
scientific malpractice to include extra-significant digits” when estimating, such as
318
As explained below, AWS’s claims regarding Arwood’s conduct with respect to his
parents as employees must be rejected, so I do not accept or address AWS’s argument that
“Arwood failed to comply with applicable wage and hours laws” concerning his parents.
DOB at 41.
319
See Cobalt Operating, 2007 WL 2142926, at *27 (“Engaging in a repeated pattern of
fraud is clear non-compliance with applicable law . . . .”). To state the obvious, a claim
that Arwood committed fraud against his customers would not suffer from the same defects
as the claim that he defrauded AWS. For example, the customers justifiably relied on the
weights upon which Arwood Waste calculated their bills because they fully relied upon
Arwood Waste to tell them the weight charged and the amount due. And even if Arwood
did not fully appreciate the wrongfulness of the practice, he likely had the scienter
necessary for fraud—that is, he knew the weights were estimates, knew they were not
accurate and knew the customer would be misled to believe some level of precision had
been used in the calculation given that the weights routinely suggested exactness to a
hundredth of a decimal point. See Tr. 1185:4–5, 1186:15–17 (Wyner). That Arwood likely
defrauded customers does not mean he also defrauded AWS, particularly given Arwood’s
reasonable belief that Mahon had fully explored all aspects of Arwood Waste’s operations.
320
JX 283 at 8.
88
Arwood’s frequent use of weights that end in .88, because it gives customers the
impression that actual weights were used to calculate their charges.321 In this regard,
Arwood’s testimony that he systematically used .88 in his weight estimates because
it was “easy to remember” was not credible.322
Second, as noted, the preponderance of the evidence indicates that Arwood
placed false liens on customer projects, meaning liens that were not justified by
applicable law.323 These unlawful liens damaged AWS because the revenue derived
from illegal lien fees could not be replicated post-closing.324
321
Tr. 1185:4–5, 1186:15–17 (Wyner).
322
Tr. 776:15–777:17 (Arwood).
323
See, e.g., Tr. 180:24–181:2 (Mahon); Tr. 493:18–494:12 (Henley); 181:1–10 (Mahon);
JX 10; JX 27; JX 40; JX 51; JX 72; JX 74; JX 108; JX 127; JX 128; DOB at 28, 41 (citing
56 C.J.S. Mechanics’ Liens § 470) (“In a proceeding for the enforcement of a mechanic’s
lien, the evidence must be sufficient to show a furnishing or use of the labor or material for
or in a building or improvement as required by statute.”).
324
AWS also argues that Arwood Waste did not materially comply with the law when it
failed to pay haulers for work they performed when customers did not pay him. See, e.g.,
JX 33; JX 38; JX 247; Tr. 496:15–510:8 (Henley); Tr. 456:17–460:9 (Mahon). In fact,
Mahon testified that “it was a common practice if [Arwood] had not received payment to
not pay the haulers.” Tr. 459:12–13 (Mahon). In response, Arwood argues that AWS fails
to cite any legal authority that supports the proposition that Arwood failed to comply with
the law when he failed to pay haulers. See PAB at 37–38. While Arwood Waste’s
consistent failure to pay contractually owed fees to haulers might well have been a violation
of its legal obligations to those vendors, that would be a matter of contract, and I have
insufficient evidence of the contractual relationships between Arwood Waste and its
various haulers to render that judgment.
89
d. Section 3.22: Employees
Next, AWS alleges that Arwood and the Selling Entities breached
Section 3.22 of the APA. Specifically, AWS claims the sellers misrepresented
Schedule 3.22(a)(i), which sets out a “complete and accurate list of all employees of
each Company.”325 AWS claims that Arwood’s mother and father should have been
disclosed as employees, but instead Arwood “did not disclose, and even tried to hide,
the involvement of [his] parents.”326 As explained below, there was no breach of
Section 3.22.
Arwood’s mother, Pansy Arwood, paid invoices for the brokerage business
on a part-time basis for $100 a week.327 According to AWS, “[Mrs. Arwood’s] salary
did not match the amount of work she actually performed.”328 As a result, Mahon
325
Countercls. ¶ 41(c) (citing APA § 3.22).
326
DAB at 40.
327
Tr. 743:24–744:8 (Arwood).
328
DOB at 42; Tr. 202:6–17 (Mahon) (explaining that his impression was that Pansy
Arwood was not an employee of Arwood Waste); Tr. 460:11–461:4 (Mahon)
(“A. My understanding pre-acquisition was she did nothing for Arwood Waste. Post-
acquisition, I learned that she was in charge of paying the haulers. Q. How much did she
make per year from Arwood Waste? A. $500 a year, I believe. Q. How much work would
that suggest to you? A. That she was not working. Q. So would you have expected to
have to hire a full-time employee to do that work? A. If she was, in fact, doing it full time,
then I would have to hire a full-time employee to do that work. At the time it was not my
expectation.”).
90
did not “expect to have to hire an entire accounts payable department, particularly
for paying invoices,” to replace Mrs. Arwood post-acquisition.329
But AWS admits that Mrs. Arwood was disclosed as an employee.330
Schedule 3.22(a)(i) lists and categorizes the Selling Entities’ employees.331 The
second employee on the list, directly below John Arwood, is Pansy Arwood.332
Moreover, the trial record makes clear that Mahon and Broadtree had plans after the
acquisition to hire internal staff, especially in accounting and for other essential
services.333 Finally, Mahon was on site at Arwood Waste over a period of several
months, and the suggestion that Mahon did not understand what Mrs. Arwood did
for the businesses is simply not credible. From this and other evidence, I am satisfied
329
Tr. 202:13–203:19 (Mahon).
330
DOB at 42.
331
JX 303.
332
Id.
333
JX 293 (Margolin Report) at 45 (“It is common to see family on the payroll of privately
held businesses, often for relatively insignificant amounts, for questionable services
rendered. Generally accepted valuation practices typically omit such expenses from their
financial analyses as inconsistent with fair market value. Further, to the extent
Mr. Arwood’s parents provided any economic benefit to the Acquired Business, one would
classify it as an accounting function. Broadtree’s Investor Deck opined that the Acquired
Business ‘operates with a very lean organization, too lean, as there is no accounting
function or sales team and key functions are currently outsourced,’ and ‘today’—as
operated by Mr. Arwood, an ‘Accounting’ department is ‘Not Present,’ and that post-
acquisition the Acquired Business will outsource the function until it hires an internal
staff.”) (quoting from JX 160 at 34, 38–39).
91
that it was disclosed to AWS that Mrs. Arwood was an employee, that AWS
understood what she did for the businesses, and that it appreciated it would need to
replace her after the acquisition closed.
Arwood’s father was not listed in Schedule 3.22(a)(i). Mr. Arwood
occasionally ran errands, monitored payroll, deposited checks to the bank, reviewed
the credit card statements, and sometimes picked up lunch for staff.334 Given his
minimal responsibilities as essentially a company volunteer, AWS’s contention that
it “was forced to hire and pay new employees to replace Arwood’s [father] at
substantial cost” is not persuasive.335
* * * * *
For reasons explained above, AWS has proven that Arwood’s brokerage
business was not operated in compliance with the law in breach of Section 3.20.
I address the remedy for the breach below.
C. The Implied Covenant of Good Faith and Fair Dealing
AWS also brings a claim for breach of the implied covenant of good faith and
fair dealing. “[A]n implied covenant of good faith and fair dealing inheres in every
334
Tr. 511:22–512:2 (Henley); Tr. 615:10–15 (Robinson); 744:11–19 (Arwood)
(explaining that his father would pick up lunch, “run errands,” and do “[n]ot much of
nothing”).
335
DOB at 19.
92
contract.”336 Its application “should be rare and fact-intensive, turning on issues of
compelling fairness,”337 and limited to “a situation [] that was unforeseen by the
parties where the agreement’s express terms do not cover what should happen.”338
In other words, “[t]he application of the implied covenant . . . is limited to filling
contractual gaps that neither party anticipated.”339
The implied covenant is not needed here. Indeed, it appears AWS brought
this claim as a security net—it argues that “[t]o the extent any gap-filling is needed,
the implied covenant ensures that AWS’s reasonable expectations will be fulfilled.
It is fundamental to the purchase of a business that that business is run legitimately
and lawfully.”340 Gap-filling is not required here; the space regarding the legitimate
336
Chamison v. HealthTrust, Inc.—The Hosp. Co., 735 A.2d 912, 920 (Del. Ch.
1999), aff’d, 748 A.2d 407 (Del. 2000).
337
Cincinnati SMSA, Ltd. P’r v. Cincinnati Bell Cellular Sys. Co., 708 A.2d 989, 992
(Del. 1998).
338
Oxbow Carbon & Mins. Hldgs., Inc. v. Crestview-Oxbow Acq., LLC, 202 A.3d 482, 504
n.93 (Del. 2019).
339
E.g., Ryan v. Buckeye P’rs, L.P., 2022 WL 389827, at *7 (Del. Ch. Feb. 9, 2022);
Nemec, 991 A.2d at 1125 (“The implied covenant of good faith and fair dealing involves a
cautious enterprise, inferring contractual terms to handle developments or contractual gaps
that the asserting party pleads neither party anticipated.”) (internal quotation marks
omitted).
340
DOB at 45.
93
and lawful operations of the sellers’ businesses within the APA is fully occupied by
Section 3.20.
D. Arwood Did Not Prove His Claims
The parties focused most of their efforts on the Counterclaims, and for good
reason—Arwood and the Selling Entities cannot prove their claims against AWS.
They allege AWS breached the APA “by asserting false and unfounded
indemnification claims” and ask that the escrow agent be directed to release the
escrow funds.341 They also allege that AWS “converted the Selling [Entities]’
property by wrongful acts or disposition of the accounts receivable,”342 and
tortiously interfered with Arwood Site Services’ contract with a customer.343
Finally, they allege that AWS breached Arwood’s employment agreement “by
failing to compensate Mr. Arwood for paid days off and for benefits, including
family health insurance.”344 Each claim fails.
First, as explained above, AWS did not “assert[] false and unfounded
indemnification claims.” Arwood breached the APA and AWS followed the correct
341
Compl. ¶¶ 76, 78, 82.
342
Compl. ¶ 86.
343
Compl. ¶ 93.
344
Compl. ¶ 98.
94
procedures under the APA in asserting that breach by providing timely notice and
instructing the escrow agent to retain the withheld funds.345
Second, AWS did not convert the accounts receivable. The APA transferred
all accounts receivable less than 120 days outstanding to AWS.346 After closing, the
parties were to work together to determine the outstanding assets and liabilities owed
to each, and the working capital adjustment would true up the differences.
As Arwood testified at trial, Mahon provided him with a list of receivables.347
He was free to collect that income. Arwood has not explained why he is owed
anything else.348 That Arwood did not collect all of the receivables owed him does
not mean AWS converted those accounts.
345
JX 244 (Notice of Claims); PTO ¶¶ 91–92; APA § 7.2(d).
346
APA § 2.1(a)(viii).
347
Tr. 924:22–925:10 (Arwood) (“Q. And Mr. Mahon gave you a list of your receivables
that were more than 120 days old at the time of the acquisition; correct? A. He gave me a
list that had the name and the phone number and an address, really vague. . . . So it’s just
a list with the amount owed, the phone number and the name and the address.”).
348
Arwood argues that JX 222 shows that Arwood and the Selling Entities are entitled to
collect $70,835.19 because only $18,530.70 of the amounts depicted was collected by
Arwood. But AWS has asserted that “AW[S] paid about $285,000 of Plaintiffs’ bills and
$31,000 of its refunds.” DOB at 61. The APA contemplated that the working capital
adjustment would true up any discrepancies. Arwood’s bare allegation that he has not
cashed in on $70,000 of the accounts receivable does not, alone, allow the Court to
determine how the working capital adjustment is properly distributed. Moreover, under
the APA, AWS has a contractual right to setoff. APA § 8.15. AWS’s damages far
outweigh this $70,000, even if Arwood had proven his entitlement to those funds, which
he hasn’t.
95
Third, AWS did not tortiously interfere with Arwood’s contract with Adams
Homes, as alleged. The Complaint alleges that Adams Homes and Arwood Site
Services are parties to a valid and binding contract, as is required for a tortious
interference with contract claim.349 But Arwood testified that he was not doing
business with Adams Homes at the time of the alleged interference.350 Arwood
offered no evidence to prove any of the remaining prima facie elements, and then
ignored the claim altogether in his post-trial briefs. The claim fails.
Finally, AWS did not breach Arwood’s employment agreement. Arwood
identifies two alleged breaches—failure to provide family health insurance and
failure to pay for Arwood’s accrued paid time off. The health insurance claim fails
because the employment agreement provided that Arwood was entitled to participate
in AWS’s employee benefit plans only on the same terms and conditions as other
AWS executives.351 AWS did not offer health insurance to any other executives
349
See Am. Homepatient, Inc. v. Collier, 2006 WL 1134170, at *4 (Del. Ch. Apr. 19, 2006)
(“The elements of a claim of tortious interference with contract are: (i) the existence of a
valid contract; (ii) the interferer’s knowledge of the contract; (iii) intentional interference
that induces or causes a breach of the contract; and (iv) damages.”) (emphasis added).
784:23–785:4 (Arwood) (“Q. Mr. Arwood, were you doing any business with Adams
350
Homes at that point in time? A. No. Q. Were you planning on doing some business with
Adams Homes? A. Yes.”).
351
JX 181 (Employment Agreement) § 2(a).
96
when Arwood worked for the company, so it owed no health insurance to Arwood.352
In any event, Arwood received additional compensation to purchase insurance.353
The “paid time off” claim fails because AWS actually compensated Arwood for
vacation time as promised.354
E. AWS Did Not Prove Its Claims Against Third-Party Defendant Goode
As noted, AWS brings third-party claims of breach of contract and breach of
the implied covenant against Goode. Both fail. In his post-trial briefs, Goode asks
for indemnification against AWS. I deny that request.
352
DOB at 62 (“Mahon testified, and Arwood did not contest, that AW[S] did not offer
health insurance to any other AW[S] executives or employee during the time Arwood
worked for AW[S].”); Tr. 121:3–14 (Mahon) (“Q. Were any other benefits provided
throughout the time you have been operating the company? A. There’s a 401(k) match as
well. PTO, which is paid time off. And those are the going—Q. What about health
insurance? A.—benefits. No, there is no health insurance. Q. What about on the executive
level? Do executives receive any different benefits? A. No. The executives receive the
same benefits.”).
353
Tr. 217:3–7 (Mahon) (“A. His salary was $200,000 plus $15,000 health insurance.
Q. And did he—was he paid that $15,000 so he could buy health insurance? A. Yes, he
was.”); JX 304.
354
Tr. 922:3–8 (Arwood) (testifying that he received a check for the paid time off after-
the-fact and was “told by [his] attorney to return it” and did not deposit it); JX 325.
Although he did not initially cash the check, Arwood deposited the check after trial.
See Aff. of Sean Mahon in Supp. of AW Site Servs., LLC’s Opening Post-Trial Br. Ex. A
(D.I. 197).
97
1. The APA Limited Goode’s Representations to Dumpster.Me and
Dumpster Wake
The APA is crystal clear that Goode’s liability is limited to Dumpster.Me and
Dumpster Wake. The preamble to Section 3 of the APA acknowledges a caveat in
Section 3.29,355 which reads:
Goode Representations. Notwithstanding anything herein [to] the
contrary, the representations and warranties contained in this Section 3
by Goode with respect to any of the Companies are limited to
Dumpster.Me and Dumpster Wake, and he specifically makes no
representations or warranties in this Agreement as to any other
Company.356
The APA’s indemnification regime also specifies that “no claim for indemnification
may be made under this Agreement against Goode except with respect to
Dumpster.Me or Dumpster Wake.”357 Finally, the APA’s “Knowledge” qualifier is
defined as Goode’s or Arwood’s actual knowledge for Dumpster.Me and Dumpster
Wake, but only Arwood’s actual knowledge “with respect to any of the other
Companies.”358
355
APA § 3.
356
APA § 3.29.
357
APA § 7.2(c)(iv).
358
APA § 1.1.
98
In keeping with the APA’s clear terms, to prevail on its third-party claims,
AWS was obliged to prove that Goode breached a representation or warranty
regarding Dumpster.Me or Dumpster Wake. It failed to do so.
First, Goode did not breach Section 3.7. As noted, Section 3.7 is a
representation that the Financial Statements were consistent with “the books and
records of each Company” and that they “present fairly in all material respects the
financial condition and results of operations and cash flows of each Company.”359
In support of its claim of breach, AWS argues that Arwood’s business practices
rendered this representation false. But the Goode Entities’ only asset was a website;
they had no revenue, cash flows, business operations, financial statements or other
records.360 Goode’s liability is limited to the financial statements and records of
those two companies, which did not exist.
Second, Goode did not breach Section 3.9, a representation that “[a]ll of the
accounts received of each Company that are less than 120 days outstanding are valid
359
APA § 3.7.
360
Tr. 52:11–54:9, 92:1–93:22 (Goode).
99
and enforceable claims.”361 Goode could not have breached this representation
because Dumpster.Me and Dumpster Wake did not have accounts receivables.362
Third, Goode did not breach Section 3.20, “Compliance with Laws.”363 AWS
did not prove how the Dumpster.Me website somehow operated in violation of the
law, particularly given the lack of proof that the website had anything to do with
billing or liening customers, nor did it make any effort to prove that customers of
either of the Goode Entities were fraudulently or improperly billed.
Finally, Goode did not breach Section 3.22, which contains several employee-
centric representations and warranties. As noted, Dumpster.Me and Dumpster Wake
had no employees, independent contractors or consultants of any kind.
AWS argues that this limited view of Goode and the Goode Entities’ role
blinks at reality because Goode was a key player in the negotiations leading to the
361
APA § 3.9.
362
Tr. 86:5–7, 93:19–22, 94:9–11 (Goode).
363
APA § 3.20 (“Compliance with Laws. Each Seller has materially complied with and is
currently in compliance with all Laws of federal, state, local and foreign governments and
all agencies thereof that are applicable to the Business, each Seller Entity, the business
practices of the Seller Entity or any Leased Real Property, and to the Knowledge of any
Seller Entity, no claims have been filed against any Seller Entity alleging a violation of any
such Laws, and no Seller Entity has received notice of any such violation.”).
100
APA.364 Additionally, although the website dumpster.me (held by the entity
Dumpster.Me365) was one of the Selling Entities’ 900 websites, AWS says it was
only one of two that allowed customers to place orders (a fact that is disputed and
unclear from the record).366 Finally, AWS argues that all Selling Entities were
intertwined such that this Court should not disaggregate them.367
But the APA, by its terms, did disaggregate Goode’s companies. Even if the
record is unclear about what (if any) orders came through the website dumpster.me,
it is clear that Goode’s entities had no other assets, bank accounts, employees, etc.
It is easy enough to separate the entities Goode owned on those grounds alone.
Moreover, the record on this point shows that the dumpster.me website was not a
364
See Tr. 715:19–716:7 (Arwood) (“[Goode] reached out to me because he knew
somebody that had an interest in my portable toilet platform . . . . They had an interest in
buying my portable toilet platform, and I wanted him to facilitate the deal like he did with
the Advanced Disposal deals. . . . He facilitated the deals.”).
365
Tr. 73:7–8 (Goode); JX 114 at 17.
366
Compare Tr. 795:22–796:4 (Arwood) (“Q. Were customer orders—were any customer
orders, as far as you know, placed by way of or through Dumpster.Me’s website? A. No,
sir. Q. Was that even possible as far as you know? A. No, sir.”), with JX 345 (print out of
Dumpster.me webpage handout with the words “order now!”), and Tr. 1004:3–15 (Hull)
(testifying he “clicked through [the website] to simulate going through the process of
placing an order”).
367
See, e.g., Tr. 190:20–191:21 (Mahon) (“I should say that, you know, the P&L that we
built was for the entire company, not just the portable toilet business. Because it became
pretty obvious almost immediately that you would not be able to disaggregate the portable
toilet business from the rest of the business.”).
101
critical part of the operation, as about 95% of the business came through the call
center.368
AWS next argues that it is nonsensical Goode would receive $500,000 for
transferring a worthless asset, so dumpster.me must have been a critical part of the
purchased businesses. But a closer look at the evidence shows that the APA does
not provide for consideration to be paid directly to Goode. In fact, it was never
contemplated that Goode would receive any compensation under the APA from
AWS or Broadtree.369 Rather, Goode was paid $400,000 directly from Arwood,
essentially as payment for facilitating the deal,370 and another $100,000 that he
would then invest into the post-acquisition entity “to be a team player.”371
368
JX 97 at 18.
369
Tr. 57:23–58:5 (Goode) (“Q. Did the APA provide for any—I will use the term deal
consideration that would flow to you either directly or even indirectly? A. No.
No consideration. Q. Did you receive any consideration from Mr. Arwood in connection
with your involvement— A. I did.”).
370
Tr. 78:18–19 (Goode) (“Q. You sourced that deal. Correct? A. I was the facilitator,
correct.”).
371
Tr. 58:12–18 (Goode).
102
2. Breach of the Implied Covenant
As previously explained, “[t]he implied covenant only applies where a
contract lacks specific language governing an issue”372 to “handle developments or
contractual gaps” neither party anticipated.373 AWS’s implied covenant claim fails
as to Goode because it simply does not identify any gap in the APA. AWS argues
that Goode breached the implied covenant because “[i]t is fundamental to the
purchase of a business that that business is run legitimately and lawfully.” 374 But
Section 3.20 of the APA expressly addressed the lawfulness of the businesses
purchased, and Goode did not breach that provision. The implied covenant claim
fails.
3. Indemnification
Goode claims he is entitled to indemnification from AWS because (1) he is
an indemnified party under the APA, and (2) AWS breached the APA by “making a
baseless claim for indemnification against Goode.”375 Assuming the first point is
true, Goode did not issue an indemnification notice to perfect his claim as required
372
Roma Landmark Theatres, LLC v. Cohen Exhibition Co. LLC, 2020 WL 58167759,
at *10 (Del. Ch. Sept. 30, 2020).
373
Nemec, 991 A.2d at 1125.
374
DOB at 45.
375
Third-Party Def.’s [Corrected] Post-Trial Answering Br. (D.I. 207) at 16.
103
under the APA. Nor has he shown how AWS’s pursuit of this litigation caused AWS
to breach the APA—meaning, he has not pointed to any “breach of any []
representation, warranty, covenant or agreement by [AWS],” as required to trigger
a right to indemnification.376 Consequently, Goode’s claim for indemnification or
fees must be rejected.
F. Damages Against Arwood
While AWS failed to prove its common law fraud claim against Arwood or
the Selling Entities, AWS did prove that these sellers breached the APA such that it
is entitled to compensatory damages.377 AWS’s claim for breaches of the APA’s
representations and warranties is subject to a contractual $3.9 million damages cap:
Except to the extent indemnifiable Losses arise out of (1) fraud,
intentional misrepresentation or the intentional breach of a
representation, warranty or a covenant . . . , or (2) an inaccuracy or
breach of any Fundamental Representation, the maximum amount of
Losses . . . shall be Three Million Nine Hundred Thousand Dollars. 378
376
APA § 7.1(b). Goode’s argument that AWS breached Section 7.2(c)(iv) fails because
AWS did not purport to assert claims against Goode beyond those identified in
Section 7.2(c)(iv).
377
See Strassburger v. Earley, 752 A.2d 557, 579 (Del. Ch. 2000) (“The traditional
measure of damages is that which is utilized in connection with an award of compensatory
damages, whose purpose is to compensate a plaintiff for its proven, actual loss caused by
the defendant’s wrongful conduct.”).
378
APA § 7.2(c)(iii)(A).
104
Because the cap applies, the only question for the Court to decide is whether AWS
has proven damages up to the $3.9 million cap. As explained below, it has.
1. No Damages for Unproven Claims
I begin with the calculations from the report of Gregory Cowhey, AWS’s
expert witness. In my view, the report, and supporting testimony, were extensive
and generally reliable.379 Cowhey’s report concluded that AWS suffered damages
totaling $9,783,013,380 broken down as follows:
Although I generally found Cowhey to be a reliable expert, I cannot accept
his calculations in their entirety. First, as noted, I reject AWS’s contention that
379
JX 284.
380
Id. at 24. Arwood argues I should reject Cowhey’s report because he relied on
information derived from certain spreadsheets Mahon extracted from TRUX, but as noted,
I previously found the TRUX data admissible in this litigation. D.I. 135 (Mot. in Limine
to Exclude Use of Def.’s TRUX at Trial); D.I. 179 (denying the motion).
105
Arwood’s (partial) failure to disclose his parents as employees resulted in damages
to AWS. This reduces AWS’s damages by $308,840.
Next, the demurrage damages cannot be included. Arwood points out that
AWS attempted to include the allegedly lost demurrage revenue when AWS filed a
motion to amend its counterclaims,381 which was denied.382 I excluded the evidence
regarding demurrage revenue pretrial and sustained objections when AWS
attempted to present that evidence during trial.383 As evidence of demurrage was
deemed inadmissible, I do not award those damages, further subtracting $2,259,284
from Cowhey’s calculations.
2. Damages for Proven Claims
Turning next to Cowhey’s calculation of damages relating to overage revenue,
lien revenue and unpaid hauler expenses, I accept Cowhey’s calculation of damages
relating to weight overage revenue and lien revenue, but not the hauler expenses.
As for the overage revenue, Arwood’s expert, Brett Margolin, argues that the
drop in business reflected in Cowhey’s calculation actually was a result of changes
381
PAB at 41; D.I. 158.
382
D.I. 179.
383
Tr. 181:11–182:10. I acknowledge that I did allow an expert to testify regarding
demurrage as “[h]e was just indicating numbers that he detected in his forensic analysis.”
Tr. 1357:6–7 (The Court). But I made clear that I was not “in any way revisiting my rulings
on the motion to amend or otherwise.” Tr. 1357:2–3 (The Court).
106
in Arwood Waste’s portable toilet business, not the dumpster business.384 But
Cowhey points out that Margolin’s opinion relies on an arbitrary assumption that the
revenue between the portable toilet business and the dumpster business was divided
evenly.385 Because the companies were so intertwined, and it was impossible to
disaggregate the two, Cowhey credibly testified, “[y]ou cannot statistically reliably
calculate the gross profit margin for either line of business from the compiled
financial statements pre-transaction.”386
384
See JX 293 (Margolin Report) at 15 (“[T]he 2019 gross margin compression appears
driven not by the dumpster business—from which the vast majority of the projected
Cowhey Report decline emanates—but the underperformance of the portable toilet
business. Further, the underperformance of the portable toilet business in 2019 can explain
nearly the entire observed reduction in gross margins.”). Margolin also attacks Cowhey’s
omission of data for August 2019 to December 2019 but, as AWS argues, that data would
cause the damages to go up, not down. See JX 314. Nor do I agree with Margolin’s
assertion that Cowhey confuses cash and accrual accounting. See DAB at 50–53
(defending Cowhey’s method as comparing billing for different periods).
385
AWS’s investor deck estimates a roughly equivalent distribution of gross margins for
portable toilets and roll-off dumpsters. JX 311 at 27, 36. Arwood points to various
financial reports that suggest that those two lines of businesses was roughly equal.
POB at 35 (citing JX 145; JX 163; JX 293; and JX 329). But, as AWS points out, the gross
profit margin examination in the Investor Deck does not depict the gross percentage of
revenue of AWS as a whole because it is limited to only certain vendors. JX at 36. It is
clear from the record that Arwood did not and could not track gross margin by product
type.
386
Tr. 1345:12–15 (Cowhey); JX 163. The inability to disaggregate the businesses also
defeats Arwood’s argument that “AWS paid just $3 million for the entire dumpster
business,” pointing to the fact that the first LOI for the purchase of just the portable toilet
business contemplated a purchase price of $12 million, while the final LOI for all the
Selling Entities was $15.75 million. See PTO ¶¶ 63, 69.
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That weight overage revenue was more than a small part of the overstated
purchase price is supported by Wyner’s testimony. When overage data is compared
pre-and post-transaction, it shows a significant drop in overages charges.387 Wyner
credibly demonstrated that the average tonnage-billed dropped from about 6.1 to 3.7,
and the median tonnage dropped from about 6 to 3.388 Wyner also found that prior
to the acquisition, Arwood Waste entered overages weights for nearly 100% of its
customers, but that number decreased to less than 50% post-acquisition.389 “What
the data suggests is that pre-acquisition inflated weights were regularly used and
recorded in place of actual measurements and that post-acquisition, these practices
were stopped.”390 Wyner’s expert testimony proves that the overage revenue was
substantial, and I accept Cowhey’s calculation that the damages suffered as a result
of improper weight overages amounts to $2,934,061.391
387
JX 285 at 14.
388
DAB at 58–60.
389
JX 285 at 14; DAB at 16–17; Tr. 1050:2–1051:19 (Wyner).
390
JX 285 at 4.
391
I note that even though Margolin testified that the drop in revenue could be allocated to
a drop in the portable toilet business, JX 293 at 15, his report acknowledged that “available
data allows for construction of an alternative damages model which indicates damages of
between $2.30 million and $2.15 million.” Id. at 4, 48. This means that, even if I accepted
one of Margolin’s alternative calculations of the damages resulting from overages, I would
still reach the $3.9 million cap after accounting for lien damages (as discussed below)––
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As for the damages caused by Arwood Waste’s wrongful lien practices,
Cowhey opines that AWS suffered almost $2 million in damages caused by Arwood
Waste’s unlawful lien practices. Arwood and Margolin critique Cowhey’s
calculation of these damages by arguing that Arwood Waste actually lost money
pursuing liens, so there could be no positive EBITDA from imposing liens on
customers.392 In other words, it cost Arwood Waste more money to file liens than
Arwood Waste earned in collection.393
But, as AWS points out, Arwood Waste charged customers for liens it never
filed, so the fees paid to Nationwide Notice do not reliably reflect the breadth of the
unlawful lien activity.394 As discussed above, the preponderance of the evidence
proves that Arwood Waste sometimes collected lien fees from customers without
actually placing the lien on the project.395 In my view, Cowhey credibly assessed
$2.15 million in overage damages plus $1,915,933 in lien damages equals $4,065,933,
which is above the $3.9 million cap.
392
Tr. 1285:11–1289:9 (Margolin) (critiquing Cowhey’s lien calculation); JX 293
(Margolin Report) at 34–38 (same); see also POB at 40–42; PAB at 42.
393
Tr. 1288:8–24 (Margolin) (“Lien fees for 2017 and all the other years are highly
negative. Right? $31,000 in income, maybe in that year; $108,000 in expenses, definitely
in that year.”).
394
DAB at 56; JX 293; JX 316.
395
See, e.g., Tr. 493:18–494:12 (Henley) (“Q. Did Mr. Arwood have any practice involving
liening customers? A. Yes. Q. And what was that practice? A. We would lien due to
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and calculated damages flowing from illegal lien activity pre-closing, and lien
revenue losses multiplied by the agreed-upon EBITDA are awarded to AWS.
I am not persuaded, however, regarding the validity of AWS’s hauler
expenses damages calculations. Although the record evidence indicates that
Arwood sometimes failed to pay haulers, it appears that the parties accounted for
unpaid expenses to haulers. Arwood persuasively argues that AWS’s alleged
payment of $231,000 to haulers for unpaid services is entirely consistent with the
Elliott Davis Due Diligence Report, which estimates that the Buyer would have to
pay expenses for “accounts payable to vendors [that] approximates $250,000.”396
This suggests that these expenses were known and priced into the acquisition.397
In any event, for reasons stated, I am not satisfied that AWS proved a breach with
respect to unpaid hauler fees. That being said, even without including damages for
nonpayment. But there wouldn’t always be a lien on the property, necessarily. Q. And
what do you mean by that? A. If a customer called in and paid, there was the $495 fee on
the account. So in order to reverse that lien, you have to contact our insurance company,
which was usually Deb, Michael, or Leeann. But we would find that there wasn’t always
a lien when they would call Nationwide. Q. And so if you would—what did that indicate
to you that was happening with regard to the liens? A. That we may be charging customers
for that lien when no lien actually existed.”).
396
JX 132 at 13; JX 293 at 43.
397
JX 293.
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unpaid haulers, AWS has already proven damages that exceed the cap of $3.9
million.
The funds currently in escrow do not reduce the judgment amount, but they
do reduce the payout amount.398 The APA provided for $150,000 to be held in a
“Working Capital Escrow Fund” and $1,260,000 to be held back in the “Indemnity
Escrow Fund,”399 totaling $1.41 million in escrow. At the time of closing, AWS also
withheld an additional $200,000 in funds as a ‘Working Capital Adjustment.”400
After sending Arwood a “Notice of Claims” invoking the indemnification provisions
of the APA, AWS instructed the escrow agent not to release any of the escrowed
funds to the Selling Entities.401 Since then, none of the escrowed funds have been
released.
According to the APA, the payment of indemnification obligations is to be
paid first through the Working Capital Escrow Fund, second through the Indemnity
Escrow Fund, and third by the Selling Entities, Arwood and Goode in accordance
398
PTO ¶ 71.
399
APA § 2.8(b)(iii), (iv); id. § 1.1 (definitions); PTO ¶ 71.
400
PTO ¶ 79.
401
PTO ¶¶ 91–92.
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with any judgment entered against them.402 Because of the cap, AWS is entitled to
damages in the amount of $3.9 million from Arwood, to be satisfied by payment of
the money held in escrow ($1.41 million) and any accrued interest, with the
difference to be paid by Arwood and the Selling Entities directly. AWS is not
entitled to fees.403 It is, however, entitled to pre- and post-judgment interests at the
statutory rate, and prevailing party costs.404
III. CONCLUSION
For the foregoing reasons, judgment will be entered for Arwood and the
Selling Entities on AWS’s fraud claim, for Goode on all third-party claims brought
402
APA § 7.2(f)(i); PTO ¶ 76.
403
As noted, AWS seeks attorneys’ fees and costs. See DOB at 56. “Although Delaware
generally adheres to the American Rule for attorneys’ fees, in certain instances,” including
as a matter of contract, or in response to “particularly egregious or fraudulent behavior,
attorneys’ fees may be awarded as part of a plaintiffs’ damages.” Paron Cap. Mgmt. LLC
v. Crombie, 2012 WL 2045857, at *15 (Del. Ch. May 22, 2012). As explained above,
AWS has not proven its fraud claim. And, while it is true that, under the APA, “Losses”
is defined to include “attorneys,’ accountants’ and other professionals’ fees and expenses,”
APA § 1.1, “Losses” are also subject to the $3.9 million cap in 7.2(c)(iii)(a), of which AWS
is recovering the full amount. As for a non-contractual basis for fee shifting, AWS has
made no effort to demonstrate the sort of egregious behavior that would justify an award
of fees under that exception to the American Rule.
404
See 6 Del. C. § 2301; see also 2 Donald J. Wolfe & Michael A. Pittenger, Corporate
and Commercial Practice in the Delaware Court of Chancery, § 16.09[f][1], at 16-136
(2d ed. 2020) (“[T]he Court of Chancery has the authority to grant pre- and post-judgment
interest, and to determine the form of that interest. The practice of awarding pre-judgment
interest is well accepted in Delaware.”) (footnote omitted); Ct. Ch. R. 54(d) (allowing for
recovery of prevailing party costs).
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against him, for AWS on all claims brought against it, and for AWS on its breach of
contract claim. AWS is awarded $3.9 million in compensatory damages, to be paid
first from the funds held in escrow with the difference to be paid directly by the
judgment debtors, plus pre- and post-judgment interest and prevailing party costs.
The parties shall confer and submit a proposed implementing final order and
judgment within ten (10) days.
113