In the last couple of years, at the Chancery Court, chancellors have started moving away from the view that the court will determine fair value without regard to the merger price. Now, in certain circumstances (where the deal price is a product of a competitive or robust sales price) chancellors may consider merger price as one of the relevant factors for purposes of determining fair value.
Now this question has found its way to the Delaware Supreme Court and the parties are lining up on both sides. There are even amici! Two sets of amici have rolled up: on the one side there are law professors arguing that the court should be able to presumptively rely on merger price to determine fair value in an appraisal proceeding unless that price does not result from arm’s length bargaining (DFC Holdings – Bainbridge, et al). On the other are law professors arguing requiring a court to rely on merger price to determine fair value would run counter to the language of the statutory appraisal remedy and also not always reflect fair value (DFC Holdings – Talley, et al.
DFC Globalの件では、既に、amicus breifを紹介しておりますが、引用されているもののうち後者のamicus briefは、次のような書き出しです。こちらのbriefも錚々たる教授陣です。私は、独立当事者間の株式買取請求権の公正な価格が、取引価格に縛られないと思っているので、後者のbriefに親近感を覚えます。
Appellant urges the Court to adopt a rule of law in appraisal proceedings that presumptively requires the Court of Chancery to defer exclusively to the transaction price unless that price does not result from an arm’s-length process. Amici disagree: Doing so would be a trifecta of bad law, bad economics, and bad policy.
via Brian JM Quinn
- Paul Weiss, Supreme Court Nominee Has Taken Skeptical View of Private Securities Fraud Litigation, Agency Deference (Feb. 2017)
On January 31, 2017, President Donald J. Trump announced his nominee for the Supreme Court seat vacated by the death of Justice Antonin Scalia nearly a year ago: Judge Neil Gorsuch of the United States Court of Appeals for the Tenth Circuit. Judge Gorsuch has a limited record in private securities litigation cases during his tenure on the Tenth Circuit, but his writing and litigation activity prior to joining the bench give some insight into his views on key issues affecting securities litigants.