It is not uncommon for shareholders who seek appraisal of their shares, pursuant to Section 262 of the Delaware General Code (“DGCL”) in objection to a merger, to also pursue claims of wrongdoing against the directors or officers of the merging corporation (i.e. claims for breach of fiduciary duty, fraud, etc.).
In Cede v. Technicolor, Inc., 542 A.2d 1182 (Del. 1988), the Delaware Supreme Court held that claims for appraisal and corporate wrongdoing must be brought separately, and then subsequently consolidated.
Generally, claims against directors and officers for corporate wrongdoing, and appraisal actions brought pursuant to Section 262 of the DGCL should be asserted in separate complaints and thereafter consolidated. The lone exception to this rule is where the shareholders who assert claims for corporate wrongdoing and appraisal constitute the entirety of the shareholders who could bring such claims.