Reconsidering NDAs

The Deal Pipeline published an article by Corporate partners Abbe L. Dienstag and Ernest S. Wechsler entitled “Reconsidering NDAs.” On May 4, 2012, the Delaware Court of Chancery held that Martin Marietta Materials had violated a pair of confidentiality agreements with Vulcan Materials and issued a 4-month temporary injunction suspending Martin Marietta's hostile exchange offer for Vulcan and related proxy contest. Martin Marietta has appealed the Court's decision to the Delaware Supreme Court. The case - which was decided by the Court as a pure contract case (and not as a fiduciary duty case) - has important implications for drafting transactional non-disclosure agreements. The authors discuss the Court's decision and provide some key takeaways.