Koehler v. NetSpend Holdings, Inc., C.A. No. 8373-VCG (Del. Ch. May 21, 2013).
This Court of Chancery Opinion is especially noteworthy and is destined to be cited often as the first written opinion that deals with the increasingly common deal protection device known as a “don’t-ask-don’t-waive” provision. Although the Court was critical of the process undertaken in connection with the sale of the company in light of negotiation with a single purchaser, for example, the court declined to enjoin the transaction despite a reasonable likelihood of success on the merits of the complaint, because the court did not want to deny stockholders the chance to receive a substantial premium over market for their shares when no other potential bidders have appeared.
Since the publication of this opinion, this case has generated substantial expert commentary, both among practitioners and the professoriate. In light of the extensive commentary already available, I will provide reference to that commentary instead of providing my own. See, e.g., Sullivan and Cromwell highlights of the case at this link on the Columbia Law School’s CLS Blue Sky Blog.
As an aside, it is worth noting that in addition to the scholarly legal analysis provided in this 68-page opinion, the author displays his familiarity with classical literature with his reference in footnote 264 to Homer’s The Odyssey, and comparing it with a tale by the Brothers Grimm.