Private equity (PE) firms that acquire businesses in competition with their existing portfolio companies are vulnerable to claims that they have misappropriated those portfolio companies’ trade secrets. To mitigate this risk, PE sponsors may include provisions in the governing documents of their portfolio companies permitting them to invest in competing businesses, and that those investments are not de facto proof that they violated their confidentiality obligations to the portfolio companies. Although these “corporate opportunity” waivers are critical defenses for PE sponsors, they need to be carefully crafted to avoid being considered overbroad. The Delaware Court of Chancery (Chancery Court) considered these issues in a recent case in which the plaintiff claimed that a PE stakeholder had misappropriated its trade secrets by investing in a competing business. The Chancery Court dismissed the plaintiff’s claim – which was affirmed by the Supreme Court of Delaware – because the PE firm wisely adopted corporate opportunity waivers. The Chancery Court issued a word of caution, however, about the potential validity of these waivers if they are worded too broadly. This article summarizes the matters giving rise to the complaint, as well as the Chancery Court’s reasoning in deciding to dismiss the motion. For more on trade secrets, see “How Private Fund Managers Can Protect Their Trade Secrets in Light of Recent NY Appellate Ruling
” (Mar. 9, 2017); and “Quant Fund Manager Moves Aggressively Against Former Employee Who Allegedly Stole Trade Secrets and Other Proprietary Information
” (Mar. 21, 2014).