• Don't Ask, Don't Waive Standstill Provisions: A Tool to Maximize Value or Willful Blindness?
  • January 9, 2013 | Authors: Benjamin M. Grossman; Peter E. Izanec; Andrew M. Levine; Robert A. Profusek; Philip S. Stamatakos
  • Law Firms: Jones Day - New York Office ; Jones Day - Cleveland Office ; Jones Day - New York Office ; Jones Day - Chicago Office
  • Two recent bench rulings by respected Delaware Chancery Court judges-In re: Complete Genomics, Inc. Shareholder Litigation (Vice-Chancellor Laster) and In re: Ancestry.com Inc. Shareholder Litigation (Chancellor Strine)-questioned and, in one case, enjoined the enforcement of so-called "don't ask, don't waive" standstill provisions in deal process confidentiality agreements. Although we do not believe that these provisions are now per se unenforceable in Delaware, target companies will need to employ these provisions with care to ensure that they survive judicial scrutiny.