In RE Appraisal of Ancestry.Com, Inc.

• Court: Court of Chancery of Delaware
• Decided: January 5, 2015
• Docket: CA 8173-VCG (CONS)
• Status: Published

Opinion

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

IN RE APPRAISAL OF ) CONSOLIDATED ANCESTRY.COM, INC. ) C.A. No. 8173-VCG

MEMORANDUM OPINION

Date Submitted: October 14, 2014 Date Decided: January 5, 2015

Kevin G. Abrams, J. Peter Shindel, Jr., and Matthew L. Miller, of ABRAMS & BAYLISS LLP, Wilmington, Delaware, Attorneys for Petitioner Merion Capital, L.P.

Ronald A. Brown, Jr., Marcus E. Montejo, and Eric J. Juray, of PRICKETT, JONES & ELLIOTT, P.A., Wilmington, Delaware, Attorneys for Petitioners Merlin Partners LP and The Ancora Merger Arbitrage Fund, LP.

Stephen C. Norman, Kevin R. Shannon, and James G. Stanco, of POTTER ANDERSON & CORROON LLP, Wilmington, Delaware; OF COUNSEL: Stephen R. DiPrima, William Savitt, Adam M. Gogolak, and Steven Winter, of WACHTELL, LIPTON, ROSEN & KATZ, New York, New York, Attorneys for Respondent Ancestry.com, Inc.

GLASSCOCK, Vice Chancellor Ancestry.com, Inc. (“Ancestry”) was acquired in 2012 by a private equity

firm in a cash-out transaction. Merion Capital L.P. (“Merion”), one of the

Petitioners in this appraisal action, purchased its shares of Ancestry after the record

date for that transaction. The shares were held in fungible bulk by a record owner,

Cede & Co. (“Cede”). Merion caused Cede to file a timely appraisal demand for

the shares beneficially owned by Merion. A stockholder may seek appraisal only

for shares it has not voted in favor of a merger; Cede had at least as many shares

not voted for the merger as those for which Merion sought appraisal. That is, Cede

had sufficient shares it had not voted in favor of the merger to “cover” its demand

on behalf of Merion. Merion then filed this petition for appraisal of the shares.

A plain reading of the appraisal statute as it existed prior to 2007—and case

law construing it—indicates that it is the record holder of shares whose actions

with respect to the merger determine standing to seek appraisal; the beneficial

owner’s actions are irrelevant. Ancestry points out, however, that Section 262 as it

existed prior to 2007 required the record owner to file the appraisal action on

behalf of the beneficial owner, that the 2007 amendment to Section 262(e)

allowed, for the first time, the beneficial owner to file suit in its own name, and

that Merion did so here. Thus, argues Ancestry, it is Merion, not Cede, that must

show it did not vote in favor of the merger. Moreover, according to Ancestry,

because Merion purchased its stock after the record date, it must show that its

1 predecessors did not vote in favor of the merger with respect to these shares as

well. Since it cannot demonstrate the latter fact, Ancestry posits, Merion lacks

standing here. Ancestry accordingly seeks summary judgment.

Ancestry’s arguments notwithstanding, a plain reading of the statute

discloses that, for standing purposes, it remains the record holder who must not

have voted the shares for which it seeks appraisal. Even if the focus were on the

beneficial owner rather that the record owner, Merion did not vote in favor of the

merger—to have standing, the statue requires that the stockholder must not have

voted the stock for which appraisal is sought in favor of the merger; Section 262

imposes no requirement that a stockholder must demonstrate that previous owners

also refrained from voting in favor. Accordingly, Ancestry’s Motion for Summary

Judgment is denied.

I. BACKGROUND FACTS

A. The Acquisition

Respondent Ancestry is “the world’s largest online family history

resource.”1 Its subscription-based websites allow subscribers to “discover,

preserve and share their family history.”2 Merion, a Petitioner, is a hedge fund that

buys stock following merger announcements for the purpose of seeking an

1 Resp’t’s Mot. for Summ. J. at 4. 2 Stanco Aff. Ex. 2, at 4. 2 appraisal as one of its investment strategies, a practice sometimes known as

“appraisal arbitrage.”3

In December 2012, Ancestry was acquired by the private equity firm

Permira Advisors (“Permira”) for $32 per share in cash. The transaction was

announced on October 22, 2012 and the preliminary proxy was filed on October

30. The definitive proxy was filed on November 30, 2012, indicating a record date

of November 30 and a meeting date of December 27, 2012.4 Following the

acquisition, two verified petitions for appraisal were filed. One, filed by Merion,

sought an appraisal of 1,255,000 shares,5 while the second, filed by two affiliated

hedge funds, Merlin Partners LP and The Ancora Merger Arbitrage Fund, LP,

sought appraisal of a total of 160,000 shares.6

Merion first began purchasing Ancestry shares on December 4, four days

after the record date.7 On December 12, Samuel Johnson, the portfolio manager at

Merion, notified Cede, the record owner of shares, that it would be exercising its

3 Id. Ex. 10, at 81:17–24. I note that Samuel Johnson—one of the partners of Merion, not the great lexicographer—did not consider this phrase to be an accurate characterization of the investment strategy in light of the technical definition of “arbitrage.” See id. at 76:21–78:20. For a fuller description of trade in appraisal causes of action, see Merion Capital LP v. BMC Software, Inc., C.A. No. 8900-VCG, at 2 (Del. Ch. Jan. 5, 2015). 4 Stanco Aff. Ex. 1. 5 Verified Pet. for Appraisal, Merion Capital, L.P. v. Ancestry.com, Inc., C.A. No. 8173-VCG (Jan. 3, 2013). 6 Pet. for Appraisal of Stock, Merlin Partners LP v. Ancestry.com, Inc., C.A. No. 8175-VCG (Jan. 3, 2013). 7 Stanco Aff. Ex. 18, at MER 0000032. 3 appraisal rights.8 The majority of Merion’s purchases occurred between December

12 and December 17, when it purchased 1,005,100 of the 1,255,000 shares for

which it seeks appraisal.9 On December 18, 2012, Cede notified Ancestry that it

was asserting appraisal rights with respect to 1,255,000 shares beneficially owned

by Merion.10

In its Petition for Appraisal, Merion asserted that it “did not vote in favor of

the merger” and that “[n]one of the petitioner’s shares were voted in favor of the

merger.”11 This assertion notwithstanding, Merion does not put forth any evidence

to verify that, in fact, none of its shares were voted in favor of the merger by prior

owners.12 Merion purchased all of its shares on the open market after the record

date and neither knows who the sellers were,13 nor acquired proxies from prior

owners to vote its shares.14

B. Procedural History

The appraisal petitions were consolidated and I held trial from June 17-19,

2014. In May 2014, a few weeks before trial, Ancestry filed its Motion for

8 Id. Ex. 17, at MER 0003055. 9 Id. Ex. 18, at MER 0000032. 10 See id. Ex. 24, at MER 0000547. 11 Verified Pet. for Appraisal ¶ 8. 12 Stanco Aff. Exs. 21, 22; see also id. Ex. 10, at 41:8–20 (Merion’s corporate representative testified that Merion “ha[d] no evidence that could permit it to meet its burden to show that it holds shares not voted in favor of the merger.”). 13 Id. Ex. 19 (Petitioner’s Supplemental Responses and Objections to Respondent’s First Set of Interrogatories (Response No. 1)); Id. Ex. 10, at 43:14–25. 14 Id. Ex. 10, at 39:2–8; 73:11–20. 4 Summary Judgment, solely as to Merion’s Petition, arguing that Merion could not

show that the shares for which it sought appraisal were not voted in favor of the

merger. The question before me on this Motion for Summary Judgment, therefore,

is whether a beneficial owner is required to show that the specific shares for which

it seeks appraisal have not been voted in favor of the merger.

I reserved consideration of the Motion for Summary Judgment until after full

briefing. I heard oral argument on the Motion for Summary Judgment, along with

post-trial argument, on October 14, 2014; this Opinion relates only to the Motion

for Summary Judgment. For the following reasons, I deny the Respondent’s

Motion. The appraisal decision will issue separately.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the moving party demonstrates that

“there are no issues of material fact in dispute and the moving party is entitled to

judgment as a matter of law.”15 The parties here agree that no genuine issue of

material fact exists;16 the only issue is whether, as a matter of law, Merion has met

the statutory requirements of Section 262.

15 Ch. Ct. R. 56(c). 16 Answering Br. in Opp’n to Resp’t’s Mot. for Summ. J. at 8. 5 III. ANALYSIS

A. History of Appraisal

I find it appropriate to take occasion here to retrace the history of this

“creature of statute”17 before considering the modern iteration and the issues

concerning it that are now before me.

At common law, mergers could only be consummated upon the unanimous

favorable vote of a company’s stockholders. The unanimity requirement created in

stockholders a veto power that “made it possible for an arbitrary minority to

establish a nuisance value for its shares by refusal to cooperate.”18 When the

Delaware General Corporation Law was enacted in 1899, our General Assembly

provided for consolidation or merger by less-than-unanimous vote of the

stockholders:

Any two more corporations organized under the provisions of this Act or existing under the laws of this State . . . may consolidate into a single corporation . . . . ; the directors or a majority of them, of such corporations, as desire to consolidate, may enter into an agreement signed by them, and under the corporate seals of the respective corporations, prescribing the terms and conditions of consolidation . . . .

Written notice of the time and place of a meeting to consider the purpose of entering into such an agreement, shall be mailed to the

17 Kaye v. Pantone, Inc., 395 A.2d 369, 374 (Del. Ch. 1978). 18 Voeller v. Neilston Warehouse Co., 311 U.S. 531, 535, n.6 (1941); see, e.g., Paine v. Saulsbury, 166 N.W. 1036 (Mich. 1918) (refusing to allow a 99% stockholder to dissolve a corporation because the 1% minority stockholders would not agree), cited in In re Unocal Exploration Corp. Shareholders Litig., 793 A.2d 329, 339 (Del. Ch. 2000), aff'd sub nom., Glassman v. Unocal Exploration Corp., 777 A.2d 242 (Del. 2001)). 6 last known post office address of each stockholder of each corporation . . . , and the written consent of the owners of at least two- thirds of the capital stock of each corporation shall be necessary to the validity and adoption of such an agreement . . . .19

At the same time, however, recognizing the need for give-and-take to

compensate dissenting stockholders for their loss of the ability to block mergers, an

appraisal remedy was provided by statute20:

If any stockholder in either corporation consolidating aforesaid, who objected thereto in writing, shall within twenty days after the agreement of consolidation has been filed and recorded, as aforesaid, demand in writing from the consolidated corporation payment of his stock, such consolidated corporation shall, within three months thereafter, pay to him the value of the stock at the date of consolidation.21

That section provided for a three-person panel to ascertain the value of the stock in

anticipation of disagreement of valuation. The panel was to be comprised of one

individual chosen by each of the dissenting stockholder and the consolidated

corporation, and the third to be chosen by those two together.22

The appraisal statute has been amended many times since its inception at the

turn of the twentieth century, as would be clear to any reader of the statutory

19 21 Del. Laws c. 273 § 54 (1899) (emphasis added). 20 See Reynolds Metals Co. v. Colonial Realty Corp., 190 A.2d 752, 755 (Del. 1963); Francis I. duPont & Co. v. Universal City Studios, 343 A.2d 629, 634 (Del. 1975); Meade v. Pac. Gamble Robinson Co., 51 A.2d 313, 316 (Del. Ch. 1947) (citing Chicago Corp. v. Munds, 172 A. 452 (Del. Ch. 1934), decree aff'd, 58 A.2d 415 (Del. 1948)); Barry M. Wertheimer, The Shareholders' Appraisal Remedy and How Courts Determine Fair Value, 47 Duke L.J. 613, 614 (1998). But see Robert B. Thompson, Exit, Liquidity, and Majority Rule: Appraisal's Role in Corporate Law, 84 Geo. L.J. 1, 14 (1995) (noting that not all states provided for appraisal in tandem with allowing mergers by less-than-unanimous vote). 21 21 Del. Laws c. 273 § 56 (1899). 22 Id. 7 language above who is familiar with the modern statute. In its earlier iterations,

appraisal was simply designed to serve as “a statutory means whereby the

shareholder can avoid the conversion of his property into other property not of his

choosing”23—characterized by scholars as a historic “liquidity purpose.”24 In the

wake of an evolution of a “more fungible view of property rights,” where the

difference between shares of a selling and surviving corporation is perhaps not

always significant, and in light of national securities markets providing liquidity in

many cases, the place for appraisal within our corporate law changed.25 Appraisal,

it is theorized, came to serve instead “as a check against opportunism by a majority

shareholder in mergers and other transactions in which the majority forces minority

shareholders out of the business and requires them to accept cash for their

shares.”26 More recently, a market has arisen between the stockholders subject to a

merger—protection of whom was the traditional concern of the appraisal statute—

and those who purchase stock from them pending the merger, seeking to maximize

value through appraisal litigation. A vigorous debate exists as to whether such

23 Francis I. duPont & Co., 343 A.2d at 634. 24 See Thompson, supra note 20, at 4–5; Wertheimer, supra note 20, at 615. 25 Thompson, supra note 20, at 4. 26 Id. (“In earlier times, policing transactions in which those who controlled the corporation had a conflict of interest was left to the courts through the use of fiduciary duty or statutes that limited corporate powers. Today, that function is left for appraisal in many cases. The overwhelming majority of appraisal cases in the last decade reflect this cash-out context: less than one in ten of the litigated cases illustrate the liquidity/fundamental change concern of the classic appraisal remedy.”); see also Wertheimer, supra note 20, at 615–16 (“The remedy fulfills this function ex ante, deterring insiders from engaging in wrongful transactions, and ex post, providing a remedy to minority shareholders who are subjected to such transactions.” (footnote omitted)). 8 litigation is wholesome;27 for my purposes, however, it is important to note that

appraisal rights are a creation of the legislature, not judge-made law, and are “not

determined with reference to a stockholder’s purpose.”28 My function here is to

ensure compliance with the statutory prerequisites, and if they are met, to

determine fair value.

B. The Appraisal Statute

1. Overview of the Appraisal Statute

The right to appraisal of stock is set out in 8 Del. C. § 262. Subsection (a)

sets forth the standing requirement, describing those stockholders who “shall be

entitled” to appraisal:

Any stockholder of a corporation of this State who holds shares of stock on the date of the making of a demand pursuant to subsection (d) of this section with respect to such shares, who continuously holds such shares through the effective date of the merger or consolidation, who has otherwise complied with subsection (d) of this section and who has neither voted in favor of the merger or consolidation nor consented thereto in writing pursuant to § 228 of this title shall be entitled to an appraisal by the Court of Chancery of the fair value of the stockholder’s shares of stock under the circumstances described in subsection (b) and (c) of this section. As used in this section, the word “stockholder” means a holder of record of stock in a corporation . . . .29

27 See, e.g., Minor Myers & Charles R. Korsmo, Appraisal Arbitrage & the Future of Public Company M&A, 92 Wash. U. L. Rev. (forthcoming 2015), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2424935. 28 2 Edward P. Welch et al., Folk on the Delaware General Corporation Law § 262.05 (6th ed. 2014). 29 8 Del. C. § 262(a). 9 Thus, in order for a petitioner to perfect the appraisal remedy according to the plain

language of Section 262(a), the petitioner need only show that the record holder of

the stock for which appraisal is sought: (1) held those shares on the date it made a

statutorily compliant demand for appraisal on the corporation; (2) continuously

held those shares through the effective date of the merger; (3) has otherwise

complied with subsection (d) of the statute, concerning the form and timeliness of

the appraisal demand; and (4) has not voted in favor of or consented to the merger

with regard to those shares.

Section 262(d) provides that notice of a merger invoking appraisal rights

must be given to the “stockholder,” that is, the “holder of record of stock”30 and

prescribes how that record holder perfects appraisal rights, by making a written

demand prior to the vote. Finally, the most recent iteration of subsection (e) sets

out the procedure by which a record stockholder who has complied with

subsections (a) and (d) and is otherwise entitled to appraisal may file its petition. It

also provides such record holder the opportunity to request a statement from the

company setting forth “the aggregate number of shares not voted in favor of the

merger or consolidation and with respect to which demands for appraisal have

been received and the aggregate number of holders of such shares.”31 The

subsection concludes with the following provision: “Notwithstanding subsection

30 Id. 31 Id. § 262(e). 10 (a) of this section, a . . . beneficial owner . . . may in such person’s own name, file

a petition or request from the corporation the statement described in this

subsection.”32 Therefore, reading subsections (d) and (e) together, the statute

provides that the stockholder of record eligible for appraisal must provide the

written demand, but once that is done, either the holder of record or the beneficial

owner may demand information regarding aggregate shares subject to appraisal,

and either may file the appraisal petition.

To reiterate, here, Cede was the holder of record with respect to shares not

voted for the transaction, and thus had standing to make a demand under

subsections (a) and (d). It did so. With respect to those shares, the beneficial

owner, Merion, filed the petition in its own name, pursuant to subsection (e). In

this situation, Ancestry argues that Merion must demonstrate that it, and not Cede,

meets the requirements of subsection (a), and that subsection (e), read properly,

imposes on Merion an obligation to demonstrate not merely that it did not vote the

stock in question for the merger, but that no one else did so, either. This Court

previously faced an analogous issue in another case, In re Appraisal of

Transkaryotic Therapies, Inc.

32 Id. 11 2. Transkaryotic and the 2007 Amendment to Section 262(e)

In Transkaryotic, decided in 2007, this Court was asked “whether under 8

Del. C. § 262 a beneficial owner, who acquires shares after the record date, must

prove that each of its specific shares for which it seeks appraisal was not voted in

favor of the merger?”33 Ultimately, then-Chancellor Chandler answered that

question in the negative, concluding that “[u]nder the literal terms of the statutory

text and under longstanding Delaware Supreme Court precedent, only a record

holder, as defined in the DGCL, may claim and perfect appraisal rights. Thus, it

necessarily follows that the record holder’s actions determine perfection of the

right to seek appraisal.”34 More pointedly, the Court held that “the actions of the

beneficial holders are irrelevant in appraisal matters.”35 The Court considered the

way in which shares of stock are often held:

[M]ost securities issued by domestic companies listed on the NYSE and on the Nasdaq are “on deposit” with central securities depositories, such as the Depository Trust Company (“DTC”). Securities deposited at DTC as part of its book-entry system are generally registered in the name of DTC's nominee, Cede & Co. (“Cede”), making DTC's nominee the registered owner or record holder of these securities. The securities deposited as a part of this system are held in an undifferentiated manner known as “fungible bulk,” which means that no DTC participant, no customer of any

33 In re Appraisal of Transkaryotic Therapies, Inc., 2007 WL 1378345, at *1 (Del. Ch. May 2, 2007); see also id. at *3 (“The question presented in this case can be stated thusly: Must a beneficial shareholder, who purchased shares after the record date but before the merger vote, prove, by documentation, that each newly acquired share (i.e., after the record date) is a share not voted in favor of the merger by the previous beneficial shareholder?”). 34 Id. at *3. 35 Id. at *4. 12 participant (such as an intermediary bank or broker), and no investor who might ultimately have a beneficial interest in securities registered to Cede, has any ownership rights to any particular share of stock reflected on a certificate held by Cede.36

Simply put, the Court found that it was “incorrect” to “assum[e] that Cede’s

aggregate share vote on the [merger] may be traced to ‘specific shares’ attributable

to specific beneficial owners.”37

Cede had voted some shares in favor of the merger and some against, but the

Court ultimately found that this did not preclude Cede’s petition for appraisal with

respect to shares not voted in favor of the merger; i.e., Cede, having otherwise

perfected its appraisal rights with respect to approximately 11 million shares for

which appraisal was sought, and having voted approximately 17 million shares

against the merger, was able to exercise appraisal rights for the 11 million shares

held by the beneficial owner.38

Following the Transkaryotic decision, which noted that only record holders

could “claim and perfect appraisal rights,”39 the General Assembly amended

Section 262(e) of the appraisal statute to add, in relevant part,

Notwithstanding subsection (a) of this section, a person who is the beneficial owner of shares of such stock held either in a voting trust or by a nominee on behalf of such person may, in such person’s own

36 Id. at *2. 37 Id. 38 Id. at *4. 39 Id. at *3 (emphasis added). 13 name, file a petition or request from the corporation the statement described in this subsection.40

Notably, when presented with occasion to reconsider the role of beneficial

owners in appraisal actions in light of modern trading practices, the General

Assembly decided to allow beneficial owners to file a petition in their own name

and seek a statement from the corporation,41 but did not otherwise amend Section

262 to allow beneficial owners to perfect appraisal rights by not voting in favor

and making a timely demand; those provisions remain applicable only to

“stockholders,” still defined as “record owners.” Further, the General Assembly

took no action to amend the statute in light of the Court’s holding that a record

owner need only show that the number of shares that it did not vote in favor of the

merger is equal to or greater than the number of shares for which it perfected

appraisal on behalf of petitioning beneficial owners. There is, in short, no

indication that the Court’s observation that “the actions of beneficial holders are

irrelevant in appraisal matters”42 is no longer accurate, except with respect to rights

granted in Section 262(e).

40 8 Del. C. § 262(e) (emphasis added). 41 Ancestry makes an argument based on the statutory language describing the statement from the corporation; I address it below. 42 Transkaryotic, 2007 WL 1378345, at *4. 14 C. Application of the Statute to these Facts

Merion’s argument in this case is statutory and quite simple—it involves a

straightforward reading of the statute, considered in light of this Court’s decision in

Transkaryotic. Essentially, Merion argues that, as beneficial owner, it must cause

the stockholder—i.e., Cede & Co., the record owner—to make demand. Cede

must also have had sufficient shares not voted in favor of the merger, per the

Transkaryotic decision, to cover the number of shares for which Merion sought

appraisal. Having thus perfected appraisal rights through Cede, the beneficial

owner may file in its own name in light of the 2007 amendment to Section 262(e),

which Merion did here. Thus, Merion concludes, it has standing to pursue

appraisal.

Ancestry argues to the contrary: “The statute as amended permits Merion to

bring its own petition, but does nothing to excuse Merion from the obligation that

has always attached to every Delaware appraisal petitioner to show that the shares

it seeks to have appraised were not voted in favor of the merger.”43 In other words,

Ancestry assumes that in amending subsection (e) of Section 262 to allow

beneficial owners to bring a petition, the General Assembly necessarily, if silently,

amended the standing requirements of subsection (a).

As this Court has previously stated,

43 Opening Br. in Supp. of Mot. for Summ. J. at 2. 15 In interpreting a statute, Delaware courts must ascertain and give effect to the intent of the legislature. If the statute is found to be clear and unambiguous, then the plain meaning of the statutory language controls. The fact that the parties disagree about the meaning of the statute does not create ambiguity. Rather, a statute is ambiguous only if it is reasonably susceptible of different interpretations, or if a literal reading of the statute would lead to an unreasonable or absurd result not contemplated by the legislature. If a statute is ambiguous, however, courts should consider the statute as a whole, rather than in parts, and read each section in light of all others to produce a harmonious whole. Courts also should ascribe a purpose to the General Assembly's use of statutory language, and avoid construing it as surplusage, if reasonably possible.44 Additionally,

where a provision is expressly included in one section of a statute, but is omitted from another, it is reasonable to assume that the [l]egislature was aware of the omission and intended it. The courts may not engraft upon a statute language which has been clearly excluded therefrom by the [l]egislature.45

In consideration of the foregoing principles, I find Section 262 to be

unambiguous, and thus, its plain meaning controls. Accordingly, as applied to

these facts, I find that: (1) Cede, the record owner, made demand as required by

Section 262(a); (2) consistent with Transkaryotic, Cede had at least as many shares

not voted in favor of the merger as the number for which demand was made; and 44 In re Krafft–Murphy Co., Inc., 62 A.3d 94, 100 (Del. Ch. 2013), quoted in In re Krafft-Murphy Co., Inc., 82 A.3d 696, 702 (Del. 2013) (footnotes and internal quotations omitted); see also Doroshow, Pasquale, Krawitz & Bhaya v. Nanticoke Mem'l Hosp., Inc., 36 A.3d 336, 342–43 (Del. 2012) (“At the outset, a court must determine whether the provision in question is ambiguous. Ambiguity exists when a statute is capable of being reasonably interpreted in two or more different senses. If the statute is unambiguous, then there is no room for judicial interpretation and the plain meaning of the statutory language controls. If it is ambiguous, we consider the statute as a whole, rather than in parts, and we read each section in light of all others to produce a harmonious whole.” (internal footnotes and quotation marks omitted)). 45 Giuricich v. Emtrol Corp., 449 A.2d 232, 238 (Del. 1982). 16 (3) in exercise of its rights under Section 262(e), the beneficial owner, Merion,

filed its petition in its own name. Under the unambiguous language of subsection

(a), Merion has standing to pursue appraisal here.

Ancestry suggests that giving the statute its plain meaning could lead to an

absurdity: an “interpretation that relieves an appraisal petitioner of the burden of

showing that the shares it seeks to have appraised were ‘not voted in favor of the

merger’ leads to absurd results inconsistent with the statute’s text” because “the

number of shares that qualify for appraisal cannot exceed the number of shares not

voted in favor of the merger.”46 This is not, to my mind, a concern on the facts

presented, because under the statute it is the record holder’s burden to show that it

did not vote in favor of the merger with respect to the shares for which appraisal is

sought. Transkaryotic teaches that, for stock held in fungible bulk, the record

holder must have refrained from voting a number of shares sufficient to cover the

demand. Cede meets that requirement here.

The potential for “over-appraisal” posited by Ancestry is a theoretical

concern where the appraisal arbitrageur acquires stock after a record date, which

stock may have been voted in favor of the merger by the seller. I discuss this issue

briefly in connection with a discussion of the information rights conveyed to

stockholders in Section 262(e) below, and more fully in Merion Capital LP v.

46 Opening Br. in Supp. of Mot. for Summ. J. at 16. 17 BMC Software, Inc.47 Suffice it to say here that Ancestry raises a theoretical

problem which is not present in the case before me, and which in any event would

at most threaten a policy goal of the statute, not render the statute absurd or

inoperable. Such a concern may of course be addressed by the legislature, but it is

insufficient to permit me to look past the unambiguous language of the statute.

The plain language of the statute, including the 2007 amendment to Section

262(e), does not impose on beneficial owners any new burden in connection with

affording them the opportunity to file petitions in their own names. Further,

nothing has changed the longstanding requirement under Delaware law that “[t]o

be entitled to appraisal, the beneficial owner must ensure that the record holder of

his or her shares makes the demand.”48 That record holder—not the beneficial

owner—is subject to the statutory requirements for showing entitlement to

appraisal and demonstrating perfection of appraisal rights under Sections 262(a)

and (d). While beneficial owners may file a petition in their own names, the record

holder is still required to comply with the statutory requirements in order for that

petition to be viable.

Even if Section 262 did impose the voting/consent prohibition of subsection

(a) on a beneficial owner petitioning for appraisal, Merion would meet that

requirement here. Merion did not cause its stock to be voted for the merger.

47 C.A. No. 8900-VCG, at 18–20 (Del. Ch. Jan. 5, 2015). 48 Dirienzo v. Steel Partners Holdings L.P., 2009 WL 4652944, at *3 (Del. Ch. Dec. 8, 2009). 18 Ancestry points out that Merion cannot demonstrate that the stock it beneficially

owns—held in fungible bulk by Cede—was not voted for the merger by the sellers.

The plain language of the standing requirement of subsection (a) focuses on the

actions of the stockholder, not on the shares, however. Ancestry argues that not

imposing a share-tracing requirement49 on arbitrageurs could lead to the result

discussed above: theoretically, more shares could be appraised than the total not

voted for the merger.

To demonstrate that this could not comport with legislative intent, Ancestry

points to the requirement that subsection (e) imposes on the corporation to provide

an informational statement. Section 262(e) provides that a stockholder or

beneficial owner

upon written request, shall be entitled to receive from the corporation . . . a statement setting forth the aggregate number of shares not voted in favor of the merger or consolidation and with respect to which demands for appraisal have been received and the aggregate number of holders of such shares.50

This information, Ancestry points out, is intended to provide a potential petitioner

with information about the pool of other potential litigants, so that it can assess

whether the costs of appraisal litigation can be allocated in a way that makes the

49 I use the term “share-tracing requirement” as a shorthand for the burden that Ancestry suggests the statute imposes on appraisal petitioners; it is somewhat imprecise, as Ancestry suggests that the burden could be met in a number of ways, including through, for instance, a petitioner buying shares after the record date also buying sufficient proxies to cover the number of shares for which it seeks appraisal. See infra note 54. 50 Id. § 262(e). 19 litigation financially viable. In order for this statement to provide usable

information, Ancestry argues, a share-tracing requirement must be imposed on

arbitrageurs; otherwise, “shares not voted. . . with respect to which demands . . .

have been received” may inadequately describe the pool of eligible shares, which

could include shares voted for the merger by prior owners now held by

arbitrageurs. Once again, Ancestry has merely pointed out that the statute may not

perfectly fulfill what it suggests is the policy goal of the legislature. If the General

Assembly wishes to address the “problems” caused by appraisal arbitrage, either

substantive or with respect to the operation of Section 262, presumably it will do

so, but the fact that, in Ancestry’s reading, the statutory language is an imperfect

representation of legislative intent does not give a judge license to rewrite clear

statutory language; nothing Ancestry has pointed out makes operation of the statute

impossible or leads to a result that is absurd.

Finally, Ancestry contends that Section 262(e) contains an explicit share-

tracing requirement. Ancestry points to the following language from Section

262(e): “a person who is a beneficial owner of shares of such stock held . . . by a

nominee on behalf of such person may, in such person’s own name, file a petition

[for appraisal].”51 It argues that “shares of such stock” refers to the earlier

sentence in that subsection imposing on the company the information reporting

51 Reply Br. in Supp. of Resp’t’s Mot. for Summ. J. at 7 (alterations in original) (quoting 8 Del. C. § 262(e)). 20 requirement discussed above—“shares not voted in favor of the merger or

consolidation and only with respect to which demands for appraisal have been

received.”52 Notably, however, Ancestry concedes that “[t]he subsections of § 262

pertaining to the perfection of appraisal rights were not amended to refer to

beneficial owners.”53

Subsection (e) expands the rights of petitioners under Section 262. It allows

beneficial owners as well as record holders to seek appraisal, and gives such

petitioners an informational right. The language Ancestry points to is simply

insufficient to work the legislative change Ancestry posits: to place the burden of

demonstrating perfection of rights to appraisal on the beneficial owner and impose

a share-tracing requirement. Nothing in the above-quoted subsection suggests that

the General Assembly intended to require beneficial owners who made post

record-date purchases to show that their specific shares were not voted in favor of

the merger, in contradiction to the approach taken in Transkaryotic which

accounted for the fact that beneficially-owned shares are typically held in fungible

bulk.

Ancestry’s real argument is that allowing arbitrageurs appraisal rights for

shares they acquired after the record date could lead to an unwholesome result,

namely, extending appraisal rights to shares voted for the merger by prior owners,

52 8 Del. C. § 262(e); see also Reply Br. in Supp. of Resp’t’s Mot. for Summ. J. at 7. 53 Opening Br. in Supp. of Mot. for Summ. J. at 20 (emphasis added). 21 potentially resulting in more shares appraised than the number not voted for the

merger. They ask me to remedy this by imposing a requirement on beneficial

owners who petition for appraisal, a requirement that is not found in the statute: 54 tracing the voting history of their shares. To do so would be to exercise a

legislative, not a judicial, function. 55

IV. CONCLUSION

I find that Cede perfected Merion’s appraisal rights with respect to the

shares for which is seeks appraisal, and that Merion is entitled to bring a petition

for appraisal of those shares in its own name under Section 262(e). For the

foregoing reasons, the Respondent’s Motion for Summary Judgment is denied. An

appropriate order accompanies this Memorandum Opinion.

54 Ancestry points out that “tracing”—speaking strictly—the voting history of a particular share is not required to avoid the unwholesome result addressed above; Ancestry suggests that a petitioner could simply buy sufficient proxies to cover the number of shares for which it seeks appraisal, and suggests other ways of satisfying this policy concern. This argument proves too much; it clarifies that there are a number of ways to address what Ancestry sees as a problem with the statute. This is a matter requiring legislative, not judicial, deliberation. See Merion Capital LP v. BMC Software, Inc., C.A. No. 8900-VCG, at 18–20 (Del. Ch. Jan. 5, 2015). 55 See, e.g., In re Adoption of Swanson, 623 A.2d 1095, 1099 (Del. 1993) (“It is beyond the province of courts to question the policy or wisdom of an otherwise valid law. Instead, each judge must take and apply the law as they find it, leaving any changes to the duly elected representatives of the people.” (internal citation omitted)); Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, 80 A.3d 155, 160 (Del. Ch. 2013) (“If a valid statute is not ambiguous, the court will apply the plain meaning of the statutory language to the facts before it. It would usurp the authority of our elected branches for this court to create a judicial exception to the words ‘all . . . privileges’ for pre-merger attorney-client communications regarding the merger negotiations. That sort of micro-surgery on a clear statute is not an appropriate act for a court to take.” (internal footnotes omitted)).

22 IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

IN RE APPRAISAL OF ) CONSOLIDATED ANCESTRY.COM, INC. ) C.A. No. 8173-VCG

ORDER

AND NOW, this 5th day of January, 2015,

The Court having considered the Respondent’s Motion for Summary

Judgment as to Merion Capital, L.P., and for the reasons set forth in the

Memorandum Opinion dated January 5, 2015, IT IS HEREBY ORDERED that the

Respondent’s Motion is DENIED.

SO ORDERED:

/s/ Sam Glasscock III Vice Chancellor