Brian M Lutz

January 16, 2013 | Delaware Business Court Insider

In two recent rulings, the Delaware Court of Chancery has provided important guidance on how so-called "don't ask, don't waive" standstill provisions - which can be utilized to encourage bidders to provide their best-offer bids during an auction - will be viewed in future litigation in Delaware. While the use of such provisions is necessarily guided by the fiduciary obligation of a target company board to obtain the best price reasonably available in an auction, the Chancery Court has recognized that "don't ask, don't waive" provisions can be an appropriate and effective tool in maximizing shareholder value in a board-run auction process.

By Brian M. Lutz and Jefferson E. Bell

5 minute read

January 15, 2013 | Delaware Business Court Insider

In two recent rulings, the Delaware Court of Chancery has provided important guidance on how so-called "don't ask, don't waive" standstill provisions - which can be utilized to encourage bidders to provide their best-offer bids during an auction - will be viewed in future litigation in Delaware. While the use of such provisions is necessarily guided by the fiduciary obligation of a target company board to obtain the best price reasonably available in an auction, the Chancery Court has recognized that "don't ask, don't waive" provisions can be an appropriate and effective tool in maximizing shareholder value in a board-run auction process.

By Brian M. Lutz and Jefferson E. Bell

5 minute read

June 19, 2013 | Delaware Business Court Insider

In two recent Delaware Court of Chancery decisions — In re Plains Exploration & Production Stockholder Litigation, C.A. No. 8090-VCN (May 9, 2013), and Koehler v. NetSpend Holdings, C.A. No. 8373-VCG (May 21, 2013) — the court reached opposite conclusions with respect to whether the plaintiffs were likely to succeed in establishing that a target board of directors breached its fiduciary duties in connection with a single-bidder sales process. These decisions serve as a useful reminder that while a target's board of directors may reasonably conclude that negotiating a sale of the company with a single bidder is consistent with the board's Revlon duties, the board must ensure that, at every step in the transaction, it has followed a process reasonably designed to achieve the best possible price under the circumstances, including through the implementation and monitoring of deal protection measures.

By Brian M. Lutz and Jeffrey I. Salomon

6 minute read