The key element here is improper motive or wrongful conduct (defined further in the context of competitors in Sec. 768 of the Restatement of Torts). This is where these cases usually are decided. Ventas alleged that the wrongful conduct and improper motive element was fulfilled by HCP’s announcement of an “illusory” offer and its deliberate violation of the standstill agreement. HCP, on the other hand, argued that its conduct was not wrongful in failing to obtain a technical waiver of the standstill and acting as a valid competitor in bidding for Sunrise. Here, Ventas’s case was clearly aided by the Canadian court judgment, which after the fact established a violation of the standstill agreement.

Still, the case is also a partial victory for HCP: Ventas was limited at trial to no more than the damages lost in raising its bid. The judge excluded consideration of punitive damages. A $101 million verdict may just be HCP’s price of doing business. That is probably also why this case wasn’t settled beforehand; a company the size of HCP was probably willing to take its chances despite this evidence, particularly since punitive damages were off the table. And of course, there will be an appeal — tortious interference cases should be harshly scrutinized by courts as they may prevent efficient bidding, and hopefully the appeals court will do the same to determine if the unflattering evidence here is not just out-of-context pieces, but part of a real claim.

In the end, the case is a warning to deal-makers.

First, control your C.E.O. Point out this case and the evidence that made HCP’s defense that much harder. After all, $101 million is still a lot of money. The actions of HCP’s executives may have been taken out of context, but they certainly did not help.

Second, be careful about breaching standstills and confidentiality agreements and otherwise overstepping the rules of an auction.

Delaware may or may not enjoin a bidder from breaching a standstill to offer a competing, higher bid or otherwise allow a company to contractually override its fiduciary duties to consider a higher, competing bid. In essence, this was the prospective defense of HCP: that Sunrise’s actions violated its fiduciary duties or that it did not expect the court to actually uphold the standstill.

But the problem is that the elements of an interference case (i.e., wrongful conduct) may still exist. This is particularly true since a jury does not understand the nuances of fiduciary duties and the ability of companies to enforce these agreements in a competitive bidding process.

And finally, carefully coordinate your clients’ actions if you are making a jumping bid, so the narrative is consistent. In a number of other bids (such as Upper Deck’s unsolicited bid for Topps), the motives of competing bidders were questioned. But here, there was tangible conduct to seize upon. Take heed.