The subprime residential mortgage business got much of its lending money from big banks. Wall Street in turn acquired the cash by pooling thousands of subprime mortgages into securities and selling the paper to investors.
In 2007, Lone Star bought $61 million of such securities from Barclays Bank and Barclays Capital. The deal documents included a representation that none of the about 10,000 loans underlying the securities had gone delinquent. But they also provided that, if any loan had gone bad, Barclays would replace or repurchase it, calling that remedy Lone Star's "sole" one.
Lone Star sued Barclays after learning that several hundred borrowers had defaulted on their mortgage payments at the time of the purchase from Barclays. It alleged fraud. The district court dismissed, citing the "substitute or repurchase" clause. The Fifth Circuit affirmed, saying:
Barclays made no actionable misrepresentations. Even though the mortgage pools contained delinquent mortgages, Appellants have not alleged that Barclays failed to substitute or repurchase the delinquent mortgages. Appellants' efforts to focus on a single representation amid hundreds of pages of contractual documents are misplaced. They are bound by the entirety of the contract.
Lone Star Fund V (US), LP v. Barclays Bank PLC, No. 08-11308, slip op. at 9 (5th Cir. Jan. 11, 2010) (applying Texas law).
Blawgletter can see how a "sole" remedy clause could negate reliance on a misrepresentation. But the court goes on a different track, saying you have to read the whole agreement to understand whether a misrepresentation means what it says. That sounds like a harder way to get to the result, and possibly a much more defendant-friendly way as well.