We’ve covered the Mobile Posse case before, specifically, how it shows the importance of getting the basics right regarding appraisal notices. The Delaware Litigation blog provides more on Mobile Posse, including a recap of whether a post-suit “do over” is available:
“The company sought a “do-over” or a mulligan for its statutory errors, because it purported to send proper notices required by DGCL Section 262–only after suit was filed. Three problems with that approach are that: (i) Such a “replicated remedy proposal” had never before been blessed by a Delaware court; (ii) Even the supplemental notice proposed was itself wrong (in part because it quoted the statute of another statute); and (iii) trying to make a “supplemental notice” sent after the lawsuit was filed does not always make it part of the pleadings, although as noted above–in some circumstances–based on the opinion in this case, it is now possible to do so. See Slip op. at 13.”
At core, the various aspects of this case highlight that – especially for corporate lawyers preparing the transaction – getting the appraisal notice right up front is critical. Failing to do so can subject the company to liability, and you may not get a mulligan.