Appraisal Actions

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In the recent decision of In re PLX Technology, Inc. S’holders Litig., Consl. C.A. No. 9880-VCL (Del. Ch. Oct. 16, 2018), the Delaware Court of Chancery found that shareholders of PLX Technology Inc. (“PLX”), a semiconductor firm, failed to prove that breaches of fiduciary duty by its directors caused any damages.

The shareholders brought the suit after PLX announced the proposed sale to a competitor, Avago Technologies Wireless Manufacturing Inc. (“Avago”) at a price of $6.50 per share.  The complaint alleged that the sale process was flawed, stating that Potomac Capital Partners LP (“Potomac”), a 10% shareholder of PLX, pushed for a quick sale that undervalued the company, at a time when PLX was on the cusp of significant improvement.

The claims against two directors of PLX and Avago were previously dismissed, and a settlement was reached with the remaining director defendants before trial. The aiding and abetting claims against Potomac were the remaining claims left to be decided in the instant opinion.

In a lengthy opinion, Vice Chancellor Laster found that while PLX shareholders showed that the company’s directors breached their duty in approving a sale to a competitor in 2015, Potomac did not aid and abet those breaches of fiduciary duties even though it pushed for the deal while not providing transparent information to other investors.

Regarding damages, Vice Chancellor Laster said that the financial projections relied upon by the shareholders’ valuation expert to demonstrate the company was worth $9.82 per share were aggressive and unlikely to be realized, because they anticipated significant revenues from a product line (not yet in existence) that would require PLX to enter a new market.  In addition, PLX had a history of missing its projections.  Citing the Delaware Supreme Court Dell decision, the opinion stated that “The Delaware Supreme Court has cautioned that “[m]anagement’s history of missing its forecasts should . . . give[] the Court of Chancery pause.”  Dell, Inc. v. Magnetar Glob. Event Driven Master Fund Ltd., 177 A.3d 1, 27, n. 129 (Del. 2017).

In relying upon deal price, the opinion cited to recent Delaware Supreme Court rulings, including Dell and DFC Glob. Corp. v. Muirfield Value P’rs., 172 A.3d 346, 362 (Del. 2017), that give significant weight to deal price in an appraisal actions.  Because the Court found that PLX conducted an extensive marketing process both before and after the offer received from Avago that satisfied the High Court’s requirements, plaintiff stockholders were unable to demonstrate damages.

Carl D. Neff is a partner with the law firm of Fox Rothschild LLP.  Carl is admitted in the State of Delaware and regularly practices before the Delaware Court of Chancery, with an emphasis on shareholder disputes. You can reach Carl at (302) 622-4272 or at cneff@foxrothschild.com.

Often times in appraisal litigation, the Court of Chancery must make a determination as to whether admit evidence implicating events transpiring after the signing of the merger.  This issue was addressed in the recent decision of In re Appraisal of Jarden Corporation, C.A. No. 12456-VCS (Del. Ch. Sept. 7, 2018).  There, documents relating to Jarden’s post-signing financial performance were at dispute, and the Court directed the parties to address the objections to the same in post-trial briefing.  This decision reflects that the Court will in certain instances entertain post-signing evidence into the record when adjudicating a Section 262 appraisal action.

Carl D. Neff is a partner with the law firm of Fox Rothschild LLP.  Carl is admitted in the State of Delaware and regularly practices before the Delaware Court of Chancery, with an emphasis on shareholder disputes. You can reach Carl at (302) 622-4272 or at cneff@foxrothschild.com.

The highly publicized Dell and DFC Global appraisal opinions issued by the Delaware Supreme Court in 2017 inform that where a company is sold in a clean M&A auction process, with information sufficiently disseminated to potential bidders, the merger price will be given significant weight, leaving it to the trial court to decide just how much weight that should be in this case.  For a review of prior blog posts addressing the Dell and DFC Global decisions, click here and here, respectively.

Since Dell and DFC Global, several Court of Chancery opinions have considered whether to give significant weight to merger price in determining fair value.  These decisions include In re Appraisal of AOL Inc., C.A. No. 11204-VCG (Del. Ch. Feb. 23, 2018), and Verition Partners Master Fund Ltd. v. Aruba Networks Inc.  In the former, Vice Chancellor Glasscock found that the sales process was not “Dell-compliant”, and thus assigned no weight to the deal price.  The latter went the other way, finding that the sales process was sufficiently adequate.

In the recent decision of Blueblade Capital Opportunities v. Norcraft Company, Inc., C.A. No. 11184-VCS (Del. Ch. July 27, 2018), Vice Chancellor Slights found that “the evidence reveals significant flaws in the process leading to the Merger that undermine the reliability of the Merger Price as an indicator of Norcraft’s value.” Slip op. at 3. This is so because the Court found that there was no pre-signing market check, that Norcraft and its advisors “fixated on Norcraft and never broadened their view to other potential partners”, and that Norcraft’s lead negotiator “was at least as focused on securing benefits for himself as he was on securing the best price available for Norcraft.” Id. 

Accordingly, the Court declined to rely upon deal price, but instead determined fair value by turning to the discounted cash low analysis presented by the parties, and “borrowed the most credible components of each expert’s analysis to conduct [the Court’s] own DCF valuation”.  In so doing, the Court’s DCF valuation yielded a fair value of $26.16 a share, up slightly from the deal price at $25.50 a share.

Carl D. Neff is a partner with the law firm of Fox Rothschild LLP.  Carl is admitted in the State of Delaware and regularly practices before the Delaware Court of Chancery, with an emphasis on shareholder disputes. You can reach Carl at (302) 622-4272 or at cneff@foxrothschild.com.

On May 21, 2018, the Delaware Court of Chancery denied Petitioners’ motion for reargument in the Aruba Networks appraisal litigation, styled as Verition Partners Master Fund Ltd. v. Aruba Networks Inc., C.A. No. 11448-VCL (Del. Ch. May 21, 2018).  In the Court’s post-trial memorandum opinion, dated February 15, 2018, Vice Chancellor Laster issued a ruling, setting the stock’s fair value at Aruba’s thirty-day average unaffected market price, which was $17.13 per share, which was significantly below the merger price of $24.67.

In denying Petitioner’s motion for reargument, the Vice Chancellor defended the reasoning of the post-trial memorandum opinion, with provided a further discussion of DFC Global and Dell.  In the original Aruba Networks opinion, Vice Chancellor Laster determined that an efficient market existed for the target’s shares, given the following factors: (i) the presence of a significant amount of stockholders, (ii) the absence of a controlling stockholder, (iii) fulsome trading volume for the target’s stock, (iv) the broad dissemination of information about the target to the market, and (v) that the Court found that the target’s sale process had been robust.  The Court also noted that the transaction was an arm’s-length merger.

In light of the above, the Court determined that the transaction was “Dell-compliant” and therefore market-based indicators would provide the best evidence of fair value. Of note, Vice Chancellor Laster found that both the deal price and the unaffected stock price constituted probative evidence of fair value.  However, the Court elected to rely upon the unaffected stock price, in light of synergies that the parties expected the transaction to generate.  The Court found that the unaffected stock price reflected “the collective judgment of the many based on all the publicly available information … and the value of its shares.” (Slip op., at 120.)  Vice Chancellor Laster observed that using the deal price and subtracting synergies would involve judgment and introduce a likelihood of error in the calculation.

Key Takeaway:  Consistent with DFC Global and Dell, Aruba Networks reinforces the notion that the Court may look to the deal price in an arm’s-length merger as part of a robust sale process in determining fair value.  But Aruba Networks also lends support for reliance upon the target’s unaffected stock price in determining fair value, to the detriment of the petitioner given the disparity between deal price and stock price.  Appraisal petitioners beware.

Carl D. Neff is a lawyer with the law firm of Fox Rothschild LLP.  Carl is admitted in the State of Delaware and regularly practices before the Delaware Court of Chancery, with an emphasis on shareholder disputes.  You can reach Carl at (302) 622-4272 or at cneff@foxrothschild.com.

The recent decision of In re Appraisal of AOL Inc., C.A. No. 11204-VCG (Del. Ch. Feb. 23, 2018) constitutes yet another Delaware Court of Chancery appraisal decision in which fair value of the corporation fell below the deal price of the merger.  Petitioners beware.

Here, the Court relied solely on its own discounted cash flow (“DCF”) analysis to appraise the fair value of AOL Inc.  This resulted in fair value below the deal price paid in its acquisition by Verizon Communications Inc.

Vice Chancellor Glasscock did indicate that deal price is the best evidence of fair value when appraising “Dell‑compliant” transactions, where “(i) information was sufficiently disseminated to potential bidders, so that (ii) an informed sale could take place, (iii) without undue impediments imposed by the deal structure itself.”  (Slip op., at 20).

However, the Court held this was not such a transaction.  The Court found that certain of the deal protections, combined with informational disparities between potential bidders, and actions of the parties were preclusive to other bidders.  Thus, Vice Chancellor Glasscock assigned no weight to the deal price in the Court’s fair value determination.  Applying its own DCF analysis, the Court ultimately determined fair value to be approximately 3% lower than the deal price.

Carl D. Neff is a partner with the law firm of Fox Rothschild LLP.  Carl is admitted in the State of Delaware and regularly practices before the Delaware Court of Chancery, with an emphasis on shareholder disputes. You can reach Carl at (302) 622-4272 or at cneff@foxrothschild.com.

In a long awaited and highly anticipated ruling, the Delaware Supreme Court overturned the Court of Chancery’s decision in the Dell appraisal action, Dell v. Magnetar Global Event Driven Master Fund, No. 565, 2016 (Del. Supr. Dec. 14, 2017).

By way of background, in the 2016 Court of Chancery opinion, In re: Appraisal of Dell Inc., C.A. No. 9322-VCL (Del. Ch. May 31, 2016), Vice Chancellor Laster found fair value of the Dell merger to be 22% greater than the deal price, holding that deal price is not a fair value indicator in the context of a management-led buyout.  For a review of the Court of Chancery’s decision, click here.

On appeal, the High Court reversed and remanded the Chancery’s decision in an unanimous en banc decision.  Of significance, the Supreme Court found that where a company is sold in a clean M&A auction process, the Court of Chancery must give the merger price significant weight in its ruling, leaving it to the trial court to decide just how much weight that should be in this case.  Accordingly, the Supreme Court ruled that the Court of Chancery abused its discretion in placing no weight upon the transaction price when valuing the Dell shares at the time of its going-private merger in 2013, and instead relying exclusively on its own discounted cash flow analysis.

This Dell opinion is consistent with the Delaware Supreme Court’s August 2017 decision in DFC Global v. Muirfield Value Partners, No. 518, 2016 (Del. Supr. Aug. 1, 2017), whereby the High Court held that a deal price should represent strong evidence of fair value.  To review a prior post highlighting the DFC Global decision, click here.

Key Takeaway:

The Delaware Supreme Court’s decisions in DFC Global and now Dell make clear that significant weight to the deal price must be afforded when analyzing fair value of a company that is merged or consolidated in a clean, arm’s-length transaction.  Appraisal petitioners therefore will need to demonstrate flaws in the merger process to overcome the “heavy weight” afforded to the deal price.

Carl D. Neff is a partner with the law firm of Fox Rothschild LLP.  Carl is admitted in the State of Delaware and regularly practices before the Delaware Court of Chancery, with an emphasis on shareholder disputes. You can reach Carl at (302) 622-4272 or at cneff@foxrothschild.com.

In the latest of a wave of appraisal opinions issued in Delaware, on August 1st, the Delaware Supreme Court reversed the highly-publicized DFC Global appraisal ruling, in DFC Global Corporation v. Muirfield Value Partners, L.P., No. 518, 2016 (Del. Ch. Aug. 1, 2017).

A recent string of decisions have found that the deal price of a merger, when there was an arm’s length transaction achieved after a well-structured and robust sales process, may be the best evidence of “fair value” of the merger proceeds at issue.  This decision reinforces this notion, although the Supreme Court declined to go so far as declaring a bright-line rule.

In DFC Global, the Delaware Supreme Court reversed a Court of Chancery ruling that payday lender DFC Global Corp. (“DFC” or the “Company”) was sold for an amount less than fair value in 2014.  Last year, Chancellor Bouchard determined that the fair value of the petitioners’ 4.6 million DFC shares was $10.21 each, a roughly 7 percent increase over the deal price.  For a discussion of the lower court’s decision, click here.

This was one of two decisions in 2016, where the Court of Chancery found fair value to be greater than the deal price.  In the other decision, In re: Appraisal of Dell Inc., C.A. No. 9322-VCL (Del. Ch. May 31, 2016), Vice Chancellor Laster found fair value to be 22% greater than the deal price, which stood for the premise that deal price is not a fair value indicator in the context of a management-led buyout.  The Dell decision is similarly pending before the Delaware Supreme Court.  For a review of this decision, click here.

In reversing the Court of Chancery, the High Court found that reversible error had been committed by only according a one-third weighting of the deal price to the valuation of DFC’s common stock.  Under these circumstances, the deal price should have been accorded greater emphasis.  The Supreme Court further addressed the ability of the market to reflect regulatory impact on the stock price, and rejected the trial court’s conclusions that regulatory upheaval justified a downward weighting of the deal price.  The Supreme Court ordered the Court of Chancery to explain its weighting methodology on remand.

Stay tuned for the Delaware Supreme Court’s decision in Dell.

Carl D. Neff is a partner with the law firm of Fox Rothschild LLP.  Carl is admitted in the State of Delaware and regularly practices before the Delaware Court of Chancery, with an emphasis on shareholder disputes. You can reach Carl at (302) 622-4272 or at cneff@foxrothschild.com.

In a recent appraisal action before the Court of Chancery, In re Appraisal of SWS Group, Inc., C.A. No. 10554-VCG (Del. Ch. May 30, 2017), Vice Chancellor Glasscock found that the fair value of the acquired entity, SWS Group, Inc., (“SWS” or the “Company”), was less than deal price as a result of synergies between SWS and the acquiring company, Hilltop Holdings, Inc. (“Hilltop”).  Prior to the merger, SWS was a relatively small bank holding company.

Although the Court acknowledged that “a public sales process that develops market value is often the best evidence of statutory ‘fair value’”, what drove the Court to not rely upon deal price was its finding that “the sale of SWS was undertaken in conditions that make the price thus derived unreliable as evidence of fair value….”  Slip op., at 1.

Per the Court, the sale process of SWS was not a reliable proxy for statutory fair value because, among other things, “the probable effect on deal price of the existence of the [Hilltop] Credit Agreement under which the acquirer exercised a partial veto power over competing offers.”  Slip op., at 30.  Notably, neither side’s expert relied upon the deal price to determine fair value.

The Court was presented with competing discounted cash flow analyses from petitioning stockholders and the Company, along with a less frequently used comparable companies analysis provided by the petitioners.  The latter approach was rejected by the Court given that the sample of comparables chosen by the expert differed in significant ways.

In comparing the competing DCF analyses, the Court noted the way in which each side’s respective expert factored in the projections of the Company’s management.  In determining the appropriate cash flow projections, the Court of Chancery “has long expressed its strong preference for management projections.”  Slip op., at 32.

Of significance, respondent’s expert adopted management projections of the Company, while the petitioning stockholders’ expert made major adjustments to the projections, including extending the projections by two years.  The Court largely adopted the management projections with certain adjustments, which favored the Company’s DCF valuation.

The Court also analyzed the expert’s agreements over certain additional inputs, including equity risk premium, equity beta, and size premium.  After a careful consideration of each input, the Court determined that the fair value of the Company was $6.38/share, down from a merger price of $6.92/share.  Vice Chancellor Glasscock noted “that the fact that my DCF analysis resulted in a value below the merger price is not surprising: the record suggests that this was a synergies-driven transaction whereby the acquirer shared value arising from the merger with SWS.”

Key Takeaway: Appraisal actions in the Delaware Court of Chancery can come at real risk to petitioners when a robust sales process did not take place, management projections are significantly altered, and the sale included large synergies between the seller and acquirer that would be inappropriate to factor into the fair value of the entity.

Carl D. Neff is a partner with the law firm of Fox Rothschild LLP.  Carl is admitted in the State of Delaware and regularly practices before the Delaware Court of Chancery, with an emphasis on shareholder disputes. You can reach Carl at (302) 622-4272 or at cneff@foxrothschild.com.

In the recent PetSmart, Inc. appraisal proceeding, styled as In re Appraisal of PetSmart Inc., C.A. No. 10782-VCS (Del. Ch. May 26, 2017), the Delaware Court of Chancery found the deal price to be the fair value of PetSmart, Inc. (“PetSmart” or the “Company”), which was acquired as a going concern by a private equity acquirer.

Petitioners’ discounted cash flow valuation of the Company relied upon management projections, which is generally the preference of the Court.  However here, the Court determined the projections to be too optimistic about the future of the Company, and were “saddled with nearly all of the [ ] telltale indicators of unreliability….” Among other things, the Court found that the projections were prepared for the purpose of the sale process, rather than in the ordinary course.

Accordingly, Vice Chancellor Slights rejected Petitioners’ DCF valuation on that basis.  Rather, the Court held that a merger price “‘forged in the crucible of objective market reality,’ meaning that it was ‘the product of not only a fair sales process, but also of a well-functioning market,’” will generally be considered the best evidence of fair value of the Company.

Key Takeaway: The PetSmart decision,demonstrates that where a robust and competitive sale process exists, the deal price will be considered strong evidence of the fair value of a company. This is especially true when management projections lack sufficient reliability and cannot be relied upon to formulate a discounted cash flow analysis.

Carl D. Neff is a partner with the law firm of Fox Rothschild LLP.  Carl is admitted in the State of Delaware and regularly practices before the Delaware Court of Chancery, with an emphasis on shareholder disputes. You can reach Carl at (302) 622-4272 or at cneff@foxrothschild.com.

In the first Chancery opinion of 2017, Vice Chancellor Montgomery-Reeves granted dismissal of a class action complaint which alleged breach of the duty of disclosure in connection with a short-form merger, in the decision of In re United Capital Corp. S’holders Litig., Cons. Case Nos. 11619-VCMR (Del. Ch. Jan. 4, 2017).

Lead Plaintiff Louis B. Geser (“Plaintiff”) owned shares of common stock in United Capital Corporation (“United Capital”).  Defendant A.F. Petrocelli owned approximately 94% of the outstanding shares of United Capital before the transaction at issue. On September 30, 2015, Petrocelli through his controlled entities merged with United Capital at $32 a share, thus becoming the sole shareholder of United Capital.

Plaintiff’s complaint alleged the notice of merger failed to disclose the following information:

  • The controller’s reasoning behind the merger price,
  • Special committee’s process,
  • Financial projections used to determine the value of the company,
  • Information regarding the working capital and future use of cash of the company,
  • The lack of independence of two members of the special committee, and
  • The identities of two directors and a director’s spouse who participated in a multi-million dollar note with the company.

The Court granted defendants’ motion to dismiss on the grounds that all material information was disclosed in the notice and, in the realm of a short-form merger, any omitted information is not material to the decision of whether the minority stockholders should accept the merger consideration or seek appraisal.

In granting the motion, the Court found that plaintiff did not allege adequately that the omitted information was material to the decision to seek appraisal and the duty of disclosure was not violated.  The Court found that Plaintiff’s sole remedy was one of appraisal.

Carl D. Neff is a partner with the law firm of Fox Rothschild LLP.  Carl is admitted in the State of Delaware and regularly practices before the Delaware Court of Chancery, with an emphasis on shareholder disputes. You can reach Carl at (302) 622-4272 or at cneff@foxrothschild.com.