In Re PLX Technology Inc. Stockholders Litigation, C.A. 9880-VCL (October 16, 2018)

This massive decision is a primer on Delaware director fiduciary duty. It covers just about all the important issues, with an enormous amount of citations and explanation. It is particularly helpful in showing how directors must meet their disclosure obligations, both to their other directors and to stockholders. It is, of course, very much a product of its unique facts.

What may be its most lasting impact is its conclusion that the deal price in a merger established fair value and that yet again a DCF analysis was defective. At least for publicly traded and well shopped companies, we may be seeing the end of DCF as the preferred measure of value in Delaware. (emphasis added)

via Morris James

DFC Global Decided

The respondent argues that we should establish, by judicial gloss, a presumption that in certain cases involving arm’s-length mergers, the price of the transaction giving rise to appraisal rights is the best estimate of fair value. We decline to engage in that act of creation, which in our view has no basis in the statutory text, which gives the Court of Chancery in the first instance the discretion to “determine the fair value of the shares” by taking into account “all relevant factors.”

… [W]e do not share DFC’s confidence in our ability to craft, on a general basis, the precise pre-conditions that would be necessary to invoke a presumption of that kind. We also see little need to do so, given the proven record of our Court of Chancery in exercising its discretion to give the deal price predominant, and indeed exclusive weight, when it determines, based on the precise facts before it that led to the transaction, that the deal price is the most reliable evidence of fair value. …

… Although there is no presumption in favor of the deal price, under the conditions found by the Court of Chancery, economic principles suggest that the best evidence of fair value was the deal price, as it resulted from an open process, informed by robust public information, and easy access to deeper, non-public information, in which many parties with an incentive to make a profit had a chance to bid. . .



デラウェア州の裁判所は,価値評価の方法について,「金融業界で受け入れられていると一般に考えられている方法」と述べた上で,価値評価の技術革新に応じて,違った価値評価の方法を受け入れている。Weinberger v. UOP, Inc., 457 A.2d 701, 713 (Del. 1983); Global GT LP v. Golden Telecom, Inc., 993 A.2d 497, 517 (Del. Ch. 2010) (Strine, V.C.), aff’d, 11 A.3d 214 (Del. 2010) (資本コストの算定に際し,かつて衡平法裁判所が採用した歴史的なエクイティ・リスク・プレミアムではなく,長期的なエクイティ・リスク・プレミアムの期待値を採用した事例。裁判所は,専門家の新たな意見を採用することの意義について言及している).

 より詳しくは、同事件におけるTestimony of Petitioners’ Expert Witness, Paul A. Gompers, 2009 WL 8399149 (Oct. 15, 2009)をご参照下さい。