The Scottish Court of Session has issued an opinion (“Opinion”) on what needs to be shown if a purchaser of a company wants to sue for damages for breach of a competition warranty. B.S.A. International S.A. (“BSA”) bought the shares in A McLelland & Son Ltd (“McLelland”) in September 2004. Subsequently the Office of Fair Trading (OFT) investigated and fined McLelland for infringing competition law by engaging in anticompetitive concerted practices. BSA is now seeking to reclaim the losses incurred as a result of the OFT investigation from the warrantors. When McLelland was sold, the Vendors warranted that, so far as the warrantors were aware, there were no circumstances that may give rise to an investigation by any competition authority that McLelland had breached competition law. The Opinion states the requirement of “awareness” in a competition warranty requires awareness of both the circumstances and the potential that those circumstances might lead to an investigation. To establish a breach of warranty, therefore, it must be shown that the warrantors were aware of the facts leading to the investigation and that they were aware, or ought reasonably to have been aware, that those circumstances might lead to such communication. The case is ongoing.