The Review of Securities & Commodities Regulation recently published “The Shift in Delaware Appraisal Litigation” (full article $$$), suggesting, as have other authors, that Delaware appraisal has moved to a realm where process questions are central to the appraisal analysis. This will be little surprise to readers of this blog; while appraisal is distinct from fiduciary claims, recent cases have focused increasingly on a search for process issues, and the absence of issues with the sales process has led some Delaware Chancellors to conclude that merger price (or other price) is the proper measure barring such process issues. Whether that will continue as the caselaw develops in 2018 is yet to be seen; and as Court’s clarify what can be problematic about a process we may well see decisions giving greater clarity to where one can expect the “shift” to take us.
Probably – at least according to this analysis posted on the Harvard Corporate Governance Forum. The analysis provides extensive discussion of Norcraft and Solera**, two recent decisions we’ve also noted.
The authors conclusion will be familiar to regular readers of this blog: “appraisal decisions likely will continue to focus on many of the same issues that courts examine when considering breach of fiduciary duty claims in the merger context as well as assessing whether the seller’s stock trades in an efficient market.” As other authors have suggested, sales process and market efficiency may be the new focus of appraisal proceedings – seemingly a litigation crossover from fiduciary duty litigation (as to process) and fraud litigation (market efficiency).
** This firm is counsel of record to petitioners in the Solera matter.
The Columbia Blue Sky Blog posted last week on the impending auction for Sky PLC, where Professors Albert Choi and Eric Talley set the stage for the “shotgun economic jousting match between Comcast and Fox.”
Today the Harvard Law School Forum on Corporate Governance and Financial Regulation posted this piece by Matthew Schoenfeld, The High Cost of Fewer Appraisal Claims in 2017: Premia Down, Agency Costs Up, which studies the recent reduction in appraisal claims and the decline in M&A deal premia.