i Introduction

M&A litigation has evolved dramatically in recent years. There has been further development of substantive doctrines under Corwin and MFW (discussed further in Sections II and III, respectively), which provide defendants with strong bases for dismissing many complaints. At the same time, more Section 220 'books and records' actions have been filed as a means for stockholders to obtain pre-lawsuit discovery in order to plead a complaint that may stand a stronger chance of withstanding a motion to dismiss (discussed in Section IV).

Delaware also continues to see a number of M&A cases that are not filed by stockholder plaintiffs (discussed in Section V). For example, the Delaware courts recently held that a buyer properly invoked a material adverse effect (MAE) clause to terminate a merger agreement – the first decision so holding in Delaware. CBS's recent proposal to dilute the Redstone family's controlling stake in CBS in response to a perceived threat that the Redstones were going to force a merger between CBS and Viacom (which is also controlled by the Redstones) also played out in the Court of Chancery. That case led to interesting decisions on the availability of preliminary injunctive relief and attorney–client privilege before it settled.

Meanwhile, the Delaware Supreme Court has issued several key rulings on appraisal issues and continues to provide further guidance on appraisal rights (discussed in Section VI).

ii Post-Closing Damages Claims: The Corwin Defence

As we have written in previous versions of this chapter, the Delaware courts have underscored the deference afforded to merger transactions approved by a fully informed, disinterested and uncoerced stockholder vote. In Corwin v. KKR Financial Holdings, the Delaware Supreme Court unanimously held that arms-length transactions (i.e., ones that do not involve a controlling stockholder on both sides of the deal, as in a minority buyout) approved by a fully informed, uncoerced vote of a majority of the disinterested stockholders will be reviewed under the deferential business judgment rule.2

Since Corwin, the Court of Chancery has repeatedly dismissed post-closing challenges to non-controller stockholder-approved transactions at the pleading stage of the litigation.3 Subsequent decisions clarified that Corwin applies to two-step mergers under Section 251(h) of the Delaware General Corporation Law (DGCL) (involving a tender offer followed by a short-form merger);4 and that the fully-informed, uncoerced and disinterested stockholder vote extinguishes all claims relating to the merger, including aiding and abetting claims against third parties.5

However, some limits on the Corwin doctrine have emerged. First, the Court of Chancery has cautioned that this cleansing effect will apply only when the stockholder vote is not coerced.6

Second, the stockholder vote also must be fully informed. In Appel v. Berkman, Chief Justice Strine wrote for the Court that the failure to disclose that the founder, largest stockholder, and chair of the target privately told the board that, in his view, 'it was not the right time to sell the Company', meant that the stockholders' vote on the deal was not fully informed.7 In Morrison v. Berry, Justice Valihura wrote for the Court that the failure to disclose 'troubling facts regarding director behavior' in negotiating the deal, which 'would have helped [stockholders] reach a materially more accurate assessment of the probative value of the [company's] sale process', precluded Corwin-cleansing in that case.8 The Court emphasised that plaintiffs were not required to allege that the information, if disclosed, would have made a reasonable stockholder less likely to approve the deal; rather, it was enough to plead that 'there is a substantial likelihood that a reasonable stockholder would have considered the omitted information important when deciding whether to tender her shares or seek appraisal'.9

Recent Court of Chancery opinions have continued to emphasise these points. For example, in In re Xura, Inc Stockholder Litigation, Vice Chancellor Slights held that claims against a CEO were not cleansed by the stockholder vote because alleged material facts purportedly showing his conflicted role in negotiating the transaction were not disclosed.10 In In re Tangoe, Inc Stockholders Litigation, Vice Chancellor Slights held that claims against the target board were not cleansed by the stockholder vote because, among other things, allegedly material facts concerning an ongoing restatement process were not disclosed.11 In In re PLX Technology Inc Stockholders Litigation, Vice Chancellor Laster held that claims against an activist investor for aiding and abetting a target board's breaches of fiduciary duty were not cleansed by the stockholder vote because alleged material facts bearing on a potential conflict of interest between the activist investor and the target's remaining stockholders were not disclosed (in that case, however, the Court went on to find that the plaintiffs had failed to prove damages because there was no competent evidence the intrinsic value of the target exceeded the deal price).12

Of course, notwithstanding these decisions, Corwin remains a powerful tool for defendants in post-closing damages litigation. Indeed, because of the significance of Corwin-cleansing, boards are routinely advised to disclose all conceivably material facts to their stockholders before they vote on a deal.

iii Cases Involving Controlling Stockholders

As explained in previous versions of this chapter, until 2014, all controlling stockholder buyouts were evaluated under the onerous entire fairness standard regardless of the procedural protections used in the deal process. That changed with the Delaware Supreme Court's decision in Kahn v. M&F Worldwide Corporation, commonly referred to as MFW, which held that the business judgment rule (not entire fairness) will apply if the controlling stockholder buyout is expressly conditioned ab initio on the approval of a special committee of the independent directors and approval of a majority of the disinterested stockholders (the dual approval conditions).13

In October 2018, in Flood v. Synutra International, Inc, the Delaware Supreme Court clarified that the ab initio requirement is satisfied as long as the dual approval conditions were in place before the onset of substantive economic bargaining, even if they were not included in the controller's initial offer.14 Further, in April 2019, in Olenik v. Lodzinski, the Delaware Supreme Court further clarified the line between preliminary discussions – which may be conducted before MFW's dual protections are put in place without forfeiting the ability to invoke the business judgment rule under MFW – and substantive economic discussions, which may not be.15 There, the parties had engaged in a joint valuation exercise in the months before the controller conditioned its offer on the dual protections, and the Court found it was 'reasonable to infer that these valuations set the field of play for the economic negotiations to come', an inference that was further supported by the fact that, as alleged in the complaint, the offers that were subsequently made and ultimately accepted were close to the 'indicative valuations' that had been presented several months earlier.16

This framework also has been extended by the Court of Chancery beyond the controller buyout context. In In re Martha Stewart Living Omnimedia, Inc Stockholder Litigation, the controlling stockholder was a seller to a third party along with the minority stockholders, but the plaintiffs alleged that she received greater consideration for herself than the minority stockholders received.17 In such case, the Court found that the business judgment rule would apply under MFW, as long as the dual approval protections were in place at 'the point where the controlling stockholder actually sits down with an acquirer to negotiate for additional consideration.'18

iv Rise of Books and Records Actions Under Section 220

In part in response to Corwin and MFW, which raised the bar for plaintiffs in post-close damages actions to plead facts to survive a motion to dismiss, there has been a recent uptick in stockholder inspection demands under Section 220 of the DGCL, and actions brought in the Court of Chancery to compel the production of books and records pursuant to Section 220(c).19 In the past year, some plaintiffs have used documents obtained in this way to plead a post-close damages complaint that survived a motion to dismiss, including in the Appel case discussed above.20

In several recent decisions, the Delaware Supreme Court has held that Section 220 may entitle stockholders to more than just minutes and other formal board materials, but only to the extent such formal materials are insufficient to satisfy the stockholder's proper inspection purpose. For example, in KT4 Partners LLC v. Palantir Techs Inc, the Court explained that 'if a company . . . decides to conduct formal corporate business largely through informal electronic communications [rather than through formal minutes and resolutions], it cannot use its own choice of medium to keep shareholders in the dark about the substantive information to which Section 220 entitles them'.21 However, the Court emphasised that this 'does not leave a respondent corporation . . . defenseless and presumptively required to produce e-mails and other electronic communications. If a corporation has traditional, non-electronic documents sufficient to satisfy the petitioner's needs, the corporation should not have to produce electronic documents.'22

v M&A Litigation Without Stockholder Plaintiffs

i Broken deal litigation

In Akorn, Inc v. Fresenius Kabi AG, the target (Akorn) sought to compel the buyer (Fresenius) to close on its acquisition of Akorn, while Fresenius sought a declaration that it had properly terminated the merger agreement based on the occurrence of an MAE.23 After expedited discovery and trial, Vice Chancellor Laster concluded that an MAE had occurred, and thus Fresenius had validly terminated and was not required to close. That decision was affirmed by the Delaware Supreme Court.24

Akorn is the first Delaware decision to release an acquirer from its obligation to close a transaction as a result of the occurrence of an MAE. Before Akorn, Delaware decisions had required acquirers to close, often despite a significant diminution in a target's value. However, the Court of Chancery's detailed recitation of the unusual facts of that case attest to the fact that MAEs remain difficult to establish, even after Akorn. Nonetheless, Akorn may embolden parties to litigate such cases in the future, where before the lack of precedent for finding an MAE may have discouraged them.

In Vintage Rodeo Parent, LLC v. Rent-a-Center, Inc, the Delaware Court of Chancery found that a target company properly terminated the merger agreement following the passage of the specified end date where the buyer failed to exercise its right under the agreement to give notice that it wished to extend the end date.25 The Court further determined that there was no implied duty to warn a counterparty of a mistake, and that an obligation to use commercially reasonable efforts to consummate a merger does not preclude exercise of an express right to terminate the merger agreement.26 The Court, however, requested additional briefing regarding the enforceability in this context of the US$126.5 million reverse termination fee to which the target claimed to be entitled, which constituted 15.75 per cent of the equity value of the transaction (the case settled before that issue was decided). The decision was a stark reminder that courts will strictly enforce the terms of a merger agreement as written, and that failure to comply with seemingly ministerial formalities can have severe consequences.

ii CBS/Redstone case

One of the most extraordinary Delaware cases in recent memory, In re CBS Corporation Litigation, led to two notable decisions from the Court of Chancery before it settled shortly before trial.

In that case, a special committee of the CBS board of directors called a special meeting of the full board on 14 May 2018 (to take place three days later, on 17 May) to consider and vote on a stock dividend intended to dilute the voting control of National Amusements, Inc (NAI), a company owned by the Redstone family who, by virtue of CBS's dual class structure, owns approximately 10 per cent of CBS's common stock and 80 per cent of its voting power.27 The special committee and CBS simultaneously filed a lawsuit against NAI in the Court of Chancery seeking approval of such dividend, alleging that it was necessary to prevent the supposed threat that NAI would remove CBS directors to force an allegedly unfair merger with Viacom, of which NAI is also the controlling stockholder. CBS also immediately moved for a temporary restraining order (TRO) to prevent NAI from taking action to protect its controlling stake until the board had a chance to approve the proposed dividend at the special meeting.

Before a hearing on the TRO motion on 16 May, NAI (which had no prior notice that the CBS special committee was considering such a drastic step) exercised its right to amend CBS's by-laws by written consent to require, among other things, that any dividend be approved by at least 90 per cent of the CBS directors. Because three of the 14 CBS directors were affiliated with NAI, these by-law amendments likely would preclude the declaration of the dilutive dividend.

After an expedited briefing and a hearing on 16 May, the Court of Chancery denied CBS's request for a TRO on 17 May, the day of the special meeting. In so ruling, the Court resolved an 'apparent tension' in the law between, on the one hand, past decisions suggesting the possibility that a board might be justified in diluting a controlling stockholder in extraordinary circumstances (arguably implying that, in such circumstances, the board should be permitted to act without interference by the controlling stockholder) and, on the other, cases recognising the right of a controlling stockholder to have the opportunity to take action to avoid being disenfranchised. The Court found the well-established right of a controlling stockholder to take measures to protect its voting control 'weigh[ed] heavily' against granting a TRO that would restrain it from doing so, and that 'truly extraordinary circumstances' would therefore be required to support such a TRO.28 At the same time, the Court noted that it had the power to review and, if necessary, set aside any such action taken by the controlling stockholder after the fact (itself another reason why a TRO in these circumstances was not warranted).29

A second decision issued by the Court of Chancery in this case arose from a privilege dispute during discovery. Among other things, NAI argued that, because the three NAI-affiliated members of the CBS board were joint clients of CBS's counsel (i.e., in-house and outside counsel representing the full board, not the special committee specifically), NAI was entitled to unfettered access to privileged communications with such counsel made prior to the filing of CBS's complaint on 14 May. CBS, however, took the position that the NAI-affiliated directors were adverse to CBS management and other board members with respect to certain issues even separate from the proposed merger with Viacom (which the special committee was formed to consider) and prior to the commencement of the litigation. For example, CBS's outside counsel filed an affidavit acknowledging that it had advised certain members of CBS management and the board (unaffiliated with NAI) about 'the options available to CBS in dealing with its controller' over many years.30

In ruling on this issue, Chancellor Bouchard first held that, because the NAI-affiliated directors were joint clients of CBS's counsel, under existing Delaware jurisprudence they had the right to unfettered access to legal advice rendered by such counsel absent an ex ante agreement among the parties, the formation of a special committee or 'sufficient adversity' between the director and the corporation 'such that the director could no longer have a reasonable expectation that he was a client of the board's counsel'.31 The Court determined that, as a result of the formation of a special committee by the CBS board of directors to consider the potential merger with Viacom, the NAI-affiliated CBS directors were not entitled to privileged communications with company counsel relating to the special committee's mandate. The Court held, however, that the NAI-affiliated directors were entitled to communications with company counsel that were unrelated to special committee matters, finding that 'no factual basis has been identified to support the conclusion that the NAI Affiliated Directors were made aware (or reasonably should have been aware) that CBS Counsel was not representing them jointly with the other CBS directors with respect to any matter other than the matters falling within the purview of the Special Committees for which CBS Counsel provided assistance'.32 This decision shows that mere adversity between directors is not sufficient to exclude some directors from privileged communications with board counsel; rather, such adversity must be made manifest to the directors who are excluded.

vi Fall of Appraisal Arbitrage

Section 262 of the Delaware General Corporation Law provides stockholders with the right to demand a judicial appraisal of the fair value of their stock.33 To exercise appraisal rights a stockholder must:

  1. deliver a written demand prior to the vote;
  2. not have voted in favour of the transaction;
  3. continuously hold the stock through closing; and
  4. perfect appraisal rights after closing.34

The past decade has been marked by a notable increase in statutory appraisal filings in Delaware, driven by the appraisal arbitrage phenomenon.35 This phenomenon was made possible largely by the generous statutory rate of interest on appraisal claims (5 per cent over the Federal Reserve discount rate, compounded quarterly from the closing date of a merger) and a 2007 Court of Chancery decision in In re Appraisal of Transkaryotic Therapies, Inc.36 In that case, the Court permitted investors who purchased publicly traded shares in the open market, when neither petitioner nor respondent knew whether those shares were voted in favour of a merger (which would disqualify them from seeking appraisal), to pursue appraisal so long as the total number of shares not voting in favour of the deal was greater than the number of shares pursuing appraisal.37 Several appraisal decisions finding fair value materially above the merger price added to the increase in filings.38

Recent developments, however, have pumped the brakes on appraisal arbitrage. First, in 2016, Section 262(h) of the DGCL was amended to permit companies to cut off the accrual of statutory interest by prepaying any amount to the petitioner. In addition, in response to the concern that small appraisal claims were being filed solely to extract nuisance settlements, Section 262(g) was amended to provide that appraisal would be unavailable in the case of a company whose stock was publicly listed if the appraisal demands represent 1 per cent or less of the stock outstanding and the total value of the demands (as implied by the deal price) is US$1 million or less.

Secondly, in 2017, the Delaware Supreme Court reversed two appraisal awards – 7.5 per cent above the deal price in DFC Global and 28 per cent above the deal price in Dell – in both cases because the lower court had given insufficient weight to the deal price.39 As Chief Justice Strine explained in DFC Global, economic principles suggest that in open and arm's-length mergers, 'the best evidence of fair value [i]s the deal price'.40 The Court rejected the arguments that regulatory uncertainty surrounding the target at the time of the transaction rendered the deal price unreliable, and that the buyers' status as a financial sponsor rather than a strategic acquirer meant that it did not fully value the target.41 In Dell, Justice Valihura echoed this reasoning, and extended it to a management buyout involving a relatively limited pre-signing bidding process.42

Both decisions left open that the deal price would not be entitled to significant weight in all cases, particularly those with an uncompetitive or otherwise flawed deal process. For that reason, even after Dell and DFC Global, the Court of Chancery declined to place any weight on the deal price in at least two appraisal cases. However, in those cases, the Court looked to the deal price as a check on its fair value determination, which ultimately was very close to the deal price.43

Thirdly, a separate line of appraisal cases has found fair value to be significantly below the deal price due to the fact that synergies are excluded from the statutory fair value standard. For example, in ACP Master, Ltd v. Sprint Corp, Vice Chancellor Laster held that fair value was US$2.13 per share, less than half the merger price of US$5 per share.44 In Verition Partners Master Fund Ltd v. Aruba Networks, Inc, Vice Chancellor Laster relied on the unaffected market price of the target's stock, which was 30 per cent below the deal price, as the 'most persuasive evidence of fair value'.45 On appeal, however, the Delaware Supreme Court reversed, holding that the deal price minus synergies realised in the transaction was the appropriate way to determine fair value based on the record of that case (which still valued the tie-up below its deal price).46

These developments have already led to a sharp decrease in appraisal actions, with new appraisal filings falling by approximately two-thirds from their peak in 2016.47


1 Roger A Cooper and Meredith Kotler are partners and Mark McDonald and Vanessa C Richardson are associates at Cleary Gottlieb Steen & Hamilton LLP.

2 Corwin v. KKR Financial Holdings, 125 A.3d 304, 305-06 (Del. 2015).

3 See, e.g., In re Cyan, Inc S'holders Litig, C.A. No. 11027-CB, 2017 WL 1956955 (Del. Ch. 11 May 2017); In re Paramount Gold & Silver Corp S'holders Litig, C.A. No. 10499-CB, 2017 WL 1372659 (Del. Ch. 13 Apr 2017); In re Columbia Pipeline Group, Inc S'holders Litig, C.A. No. 12152-VCL (7 Mar 2017) (order); In re Merge Healthcare Inc S'holders Litig, C.A. No. 11388-VCG, 2017 WL 395981 (Del. Ch. 30 January 2017); In re Solera Holdings, Inc S'holders Litig, C.A. No. 11524-CB, 2017 WL 57839 (Del. Ch. 5 January 2017).

4 In re Volcano Corp S'holder Litig, 143 A.3d 727 (Del. Ch. 2016), aff'd, 156 A.3d 697 (Del. 2017) (table).

5 Singh v. Attenborough, 137 A.3d 151, 152 (Del. 2016) ('Having correctly decided . . . that the stockholder vote was fully informed and voluntary, the Court of Chancery properly dismissed the plaintiffs' claims against all parties [including the board's financial advisor].').

6 Sciabacucchi v. Liberty Broadband Corp, C.A. No. 11418-VCG, 2017 WL 2352152, at *2 (Del. Ch. 31 May 2017) (determining that the plaintiff adequately pleaded that a vote was structurally coercive, and refusing to dismiss); In re Saba Software, Inc S'holders Litig, C.A. No. 10697-VCS, 2017 WL 1201108, at *8, 14 (Del. Ch. 31 Mar 2017, revised 11 April 2017) (determining that the plaintiff adequately pleaded that a vote was coerced and was not fully informed, and refusing to dismiss).

7 Appel v. Berkman,180 A.3d 1055, 1057-58 (Del. 2018).

8 Morrison v. Berry, 191 A.3d 268, 283-84 (Del. 2018).

9 Id. at 286.

10 In re Xura, Inc S'holder Litig, Consol C.A. No. 12698-VCS, 2018 WL 6498677, at *1 (Del. Ch. 10 December 2018).

11 In re Tangoe, Inc S'holders Litig, C.A. No. 2017-0650-JRS, 2018 WL 6074435, at *2 (Del. Ch. 20 November 2018).

12 In re PLX Technology Inc S'holders Litig., 2018 WL 5018353 (Del. Ch. 16 October 2018), aff'd, No. 571, 2018, 2019 WL 2144476, at *1 (Del. 16 May 2019).

13 Kahn v. M&F Worldwide Corp, 88 A.3d 635 (Del. 2014).

14 Flood v. Synutra Int'l, Inc, 198 A.3d 754 (Del. 2018).

15 Olenik v. Lodzinski, No. 392, 2018, 2019 WL 1497167 (Del. 5 April 2019).

16 Id. at *9.

17 In re Martha Stewart Living Omnimedia, Inc S'holder Litig, Consol. C.A. No. 11202-VCS, 2017 WL 3568089, at *2 (Del. Ch. 18 August 2017).

18 Id. at *19.

19 DGCL § 220(c) ('If the corporation . . . refuses to permit an inspection sought by a stockholder . . . or does not reply to the demand within 5 business days . . . , the stockholder may apply to the Court of Chancery for an order to compel such production. The Court of Chancery is hereby vested with exclusive jurisdiction to determine whether or not the person seeking inspection is entitled to the inspection sought.').

20 Appel, 180 A.3d at 1059 (noting plaintiff served Section 220 books and records demand before filing his post-closing damages suit). Notably, the material fact that the Delaware Supreme Court found was not disclosed in that case came from the target board's minutes. Id. at 1057 & n.1.

21 KT4 Partners LLC v. Palantir Techs Inc, No. 281, 2018, 2019 WL 347934, at *2 (Del. 29 Jan 2019); see also Inter-Local Pension Fund GCC/IBT v. Calgon Carbon Corp, C.A. No. 2017-0910-MTZ, 2019 WL 479082 (Del. Ch. 25 January 2019) (holding that a stockholder had proper purpose to inspect records, and that the stockholder was entitled to emails because they were necessary and essential for that purpose); Schnatter v. Papa John's Int'l, Inc, C.A. No. 2018-0542-AGB, 2019 WL 194634 (Del. Ch. 15 January 2019) (noting that '[a]lthough some methods of communication (e.g., text messages) present greater challenges for collection and review than others, . . . the utility of Section 220 as a means of investigating mismanagement would be undermined if the court categorically were to rule out the need to produce communications in these formats').

22 KT4 Partners at *12.

23 Akorn, Inc v. Fresenius Kabi AG, C.A. No. 2018-0300-JTL, 2018 WL 4719347, at *3 (Del. Ch. 1 October 2018).

24 Akorn, Inc v. Fresenius Kabi AG, 198 A.3d 724 (Del. 2018).

25 Vintage Rodeo Parent, LLC v. Rent-a-Center, Inc, C.A. No. 2018-0927-SG (Del. Ch. 14 March 2019).

26 Id.

27 CBS Corp v. Nat'l Amusements, Inc, C.A. No. 2018-0342-AGB, 2018 WL 2263385, at *1-2 (Del. Ch. 17 May 2018).

28 Id. at *6.

29 Id. at *5.

30 In re CBS Corp Litig, Consol. C.A. No. 2018-0342-AGB, 2018 WL 3414163 (Del. Ch. 13 July 2018).

31 Id. at *4-5.

32 Id. at *7 (emphasis in original).

33 In general, holders of listed stock (or stock held by more than 2,000 holders of record) have appraisal rights if they are required to accept as merger consideration anything other than stock of the surviving company, listed stock of any other corporation or cash in lieu of fractional shares. 8 Del. C. § 262(b).

34 8 Del. C. § 262.

35 Cornerstone Research, Appraisal Litigation in Delaware: Trends in Petitions and Opinions: 2006-2018 at 1, available at https://www.cornerstone.com/publications/reports/appraisal-litigation-delaware-2006–2018 (Appraisal Litigation in Delaware) (noting appraisal filings steadily rose after 2009 until peaking in 2016).

36 No. Civ. A. 1554-CC, 2007 WL 1378345 (Del. Ch. 2 May 2007).

37 Scott Callahan, Darius Palia and Eric Talley, Appraisal Arbitrage and Shareholder Value, 3 J Law, Fin & Accounting 147, page 3 (2018) (describing how statutory interest rate in Section 262(h) and the Court of Chancery's 2007 Transkaryotic decision led to arbitrage opportunity: hedge funds may 'accumulate shares in the target company after an announced merger, perfect appraisal rights, and put forward a sophisticated expert to challenge the merger consideration, possibly obtaining an award in excess of the merger consideration. And, even if the award fell short of the merger consideration, it would accrue interest at the statutory compounded rate, often far outpacing the risk-adjusted return on the deal consideration itself').

38 See, e.g., Towerview v. Cox Radio, Inc, C.A. No. 4809-VCP, 2013 WL 3316186 (Del. Ch. 28 June 2013) (finding fair value of 20 per cent above deal price); Global GT LP v. Golden Telecom, Inc, 993 A.2d 497 (Del. Ch. 2010) (19.5 per cent above deal price).

39 DFC Global Corp v. Muirfield Value Partners, LP, 172 A.3d 346, 349-50 (Del. 2017); Dell, Inc v. Magnetar Global Event Driven Master Fund Ltd, 177 A.3d 1, 5-6 (Del. 2017).

40 DFC Global, 172 A.3d at 349.

41 Id. at 349-50.

42 Dell, 172 A.3d at 31-35.

43 See, e.g., Blueblade Cap Opportunities LLC v. Norcraft Cos, Inc, C.A. No. 11184-VCS, 2018 WL 3602940, at *1-3 (Del. Ch. 27 July 2018) (refusing to the give deal price any weight, finding fair value to be 2.5 per cent above the deal price); In re Appraisal of AOL Inc, C.A. No. 11204-VCG, 2018 WL 1037450, at *2 (Del. Ch. 23 February 2018) (also refusing to give deal price any weight, finding fair value to be 2.6 per cent below deal price).

44 ACP Master, Ltd v. Sprint Corp, C.A. No. 8508-VCL, 2017 WL 3421142, at *1 (Del. Ch. 8 August 2017).

45 Verition Partners Master Fund Ltd v. Aruba Networks, Inc, C.A. No. 11448-VCL, 2018 WL 922139, at *2-4 (Del. Ch. 26 January 2018).

46 Verition Partners Master Fund Ltd v. Aruba Networks, Inc, No. 368, 2018, 2019 WL 1614026 (Del. 16 April 2019). In a more recent decision, the Court of Chancery distinguished Aruba, and held fair value to be equal to the unaffected market price (18 per cent below the deal price). See In re: Appraisal of Jarden Corp, Consolidated C.A. No. 12456-VCS (Del. Ch. 19 July 2019).

47 Appraisal Litigation in Delaware, supra note 35 at 1 ('Last year saw a drop in the number of appraisal petitions filed in the Delaware Court of Chancery. After steadily rising since 2009 and peaking at 76 in 2016, the number of appraisal petitions filed by shareholders declined to only 26 in 2018').