Travelport Ltd & Ors v WEX Inc

Travelport Ltd & Ors v WEX Inc

The relevant industry for the purposes of the MAE clause in the SPA is the B2B payments industry, not the 'travel payments industry' as defined by the Sellers. There is no established 'travel payments industry' or TPI as a matter of fact or contractual construction. The Carve-Out Exception does not apply to future events; it applies only retrospectively. Where an event falls within both the pandemic carve-out and the regulatory/political changes carve-out, the Carve-Out Exception does not apply if the event also falls within the regulatory carve-out. The burden of proof for the Carve-Outs is on the Sellers. The parties must be able to identify the relevant industry and comparators at the...

Parties
Claimants: Travelport Limited and others; Defendant: WEX INC; Claimants: Mr Adam Rhys Olding and 112 other Claimants
Jurisdiction
England and Wales
Judgment Date
12 October 2020
Procedural Posture
Commercial/share Purchase Agreement Dispute / Judgment on Expedited Preliminary Issues
Outcome
Preliminary issues determined in favour of WEX on the main construction point; no declaration that the 'travel payments industry' is the relevant industry; guidance given on burden of proof and operation of carve-outs.
Legal Topics
Material Adverse Effect Clauses, Share Purchase Agreements, Risk Allocation, Contractual Interpretation, Burden of Proof
Contract Law Commercial Law Material Adverse Effect Clauses Share Purchase Agreements Risk Allocation Contractual Interpretation Burden of Proof

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Parties

Travelport Limited and others

Claimants

WEX INC

Defendant

Mr Adam Rhys Olding and 112 other Claimants

Claimants

Procedural Posture

Commercial/share Purchase Agreement Dispute / Judgment on Expedited Preliminary Issues

Legal Issues

  1. 1 What is the relevant 'industry' for the purposes of the Material Adverse Effect (MAE) clause in the SPA?
  2. 2 Does a 'travel payments industry' exist for the purposes of the MAE clause?
  3. 3 Who bears the burden of proof regarding the Carve-Outs and Carve-Out Exception?

Ratio Decidendi

The relevant industry for the purposes of the MAE clause in the SPA is the B2B payments industry, not the 'travel payments industry' as defined by the Sellers. There is no established 'travel payments industry' or TPI as a matter of fact or contractual construction. The Carve-Out Exception does not apply to future events; it applies only retrospectively. Where an event falls within both the pandemic carve-out and the regulatory/political changes carve-out, the Carve-Out Exception does not apply if the event also falls within the regulatory carve-out. The burden of proof for the Carve-Outs is on the Sellers. The parties must be able to identify the relevant industry and comparators at the...

Court Disposition

Preliminary issues determined in favour of WEX on the main construction point; no declaration that the 'travel payments industry' is the relevant industry; guidance given on burden of proof and operation of carve-outs.

Orders

  • The relevant industry for the MAE clause is the B2B payments industry.
  • There is no TPI as defined, nor a 'travel payments industry' for the purposes of the SPA.