It is no secret that equity investing outside public markets has grown dramatically in recent years. A recent report from PriceWaterhouseCoopers puts this trend in perspective: the number of domestic private companies in the United States with over 500 employees now exceeds the number of domestic public companies in the United States, the European Union and the United Kingdom combined. PwC, Asset and wealth management revolution, at 5 (2020).
Disputes over these private investments inevitably arise. Yet unlike disputes over transactions in publicly traded companies that often follow a well-worn path of federal-court securities and Delaware Chancery Court litigation, disputes over private investments often turn on bespoke provisions in heavily negotiated investment contracts, which might be litigated in an arbitral forum, or one of many state or federal courts. Many of these disputes involve allegations of fraud, where a party claims material facts were misrepresented or omitted in negotiations.