Note – “Between” a Rock and a Hard Place: Martin Marietta v. Vulcan and the Rise of the Backdoor Standstill

Sasha S. Hahn

Volume 65, Issue 5, 1393-1418

A recent trend has created an anomaly in interpreting confidentiality agreements in the context of merger negotiations. After the Canadian decision in Certicom v. Research in Motion and the Delaware Court of Chancery and Delaware Supreme Court’s decisions in Martin Marietta Materials, Inc. v. Vulcan Materials Co., standstill agreements may be read into standard confidentiality agreements without being separately negotiated or intended. These decisions have created the force of entire agreements out of the words “between” and “legally required.” This Note argues for a contextualist, rather than traditionalist, approach to interpreting these “backdoor” standstills to avoid unintended consequences for parties to these agreements.

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