Verition Partners Master Fund Ltd. v. Aruba Networks, Inc.

Opinion

EFiled: May 21 2018 08:00AM EDT Transaction ID 62037960 Case No. 11448-VCL IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

VERITION PARTNERS MASTER FUND ) LTD. and VERITION MULTI-STRATEGY ) MASTER FUND LTD., ) ) Petitioners, ) v. ) C.A. No. 11448-VCL ) ARUBA NETWORKS, INC., ) ) Respondent. )

MEMORANDUM OPINION

Date Submitted: February 27, 2018 Date Decided: May 21, 2018

Stuart M. Grant, Michael J. Barry, Christine M. Mackintosh, Michael T. Manuel, Rebecca A. Musarra, GRANT & EISENHOFFER P.A., Wilmington, Delaware; Attorneys for Petitioners.

Michael P. Kelly, Steven P. Wood, McCARTER & ENGLISH, LLP, Wilmington, Delaware; Marc J. Sonnenfeld, Karen Pieslak Pohlmann, Laura Hughes McNally, MORGAN, LEWIS & BOCKIUS LLP, Philadelphia, Pennsylvania; Attorneys for Respondent.

LASTER, V.C. In May 2015, Hewlett-Packard Company (“HP”) acquired Aruba Networks, Inc.

(“Aruba” or the “Company”). Under the merger agreement, each share of Aruba common

stock was converted into the right to receive consideration of $24.67 per share, subject to

the holder’s statutory right to eschew the merger consideration and seek appraisal.1 The

petitioners perfected their appraisal rights and litigated this statutory appraisal proceeding.

In a post-trial memorandum opinion dated February 15, 2018, I determined that the

fair value of Aruba for purposes of appraisal was $17.13 per share.2 In reaching this

conclusion, I relied heavily on the Delaware Supreme Court’s recent decisions in Dell3 and

DFC.4 As I read them, those decisions endorsed using the market price of a widely traded

firm as an indicator of fair value if the market for the shares of the firm exhibited attributes

associated with the premises underlying the efficient capital markets hypothesis.5 As I read

them, those decisions also endorsed using the deal price in a third-party, arm’s-length

transaction as an indicator of fair value, after deducting synergies from the deal price.6 As

1 See 8 Del. C. § 262.

See Verition P’rs Master Fund Ltd. v. Aruba Networks, Inc. (Post-Trial Ruling), 2

2018 WL 922139, at *4 (Del. Ch. Feb. 15, 2018). 3 Dell, Inc. v. Magnetar Glob. Event Driven Master Fund Ltd, 177 A.3d 1 (Del. 2017). 4 DFC Glob. Corp. v. Muirfield Value P’rs, L.P., 172 A.3d 346 (Del. 2017). 5 See Dell, 177 A.3d at 5, 24-27; DFC, 172 A.3d at 369-70, 373. 6 See Dell, 177 A.3d at 21-22, 34-35; DFC, 172 A.3d at 367, 371.

1 I read them, those decisions also cautioned against relying on discounted cash flow

analyses prepared by adversarial experts when reliable market indicators are available.7

Informed by my readings of Dell and DFC, the Post-Trial Ruling declined to give

any weight to the expert valuations, which relied on discounted cash flow analyses to reach

divergent results.8 The market for Aruba’s common stock exhibited attributes consistent

with the premises of the efficient capital markets hypothesis, 9 so I considered Aruba’s

thirty-day average unaffected market price of $17.13 per share to be a reliable indicator of

value.10 I also considered the deal price to be a reliable indicator of value, but concluded

that Dell, DFC, and the appraisal statute required adjustments to exclude “any element of

value arising from the accomplishment or expectation of the merger.”11 Based on a study

cited by the respondent’s expert and synergy estimates in the record from Aruba and HP, I

7 See Dell, 177 A.3d at 25 (describing the management buy-out in that proceeding and stating that “this appraisal case does not present the classic scenario in which there is reason to suspect that market forces cannot be relied upon to ensure fair treatment of the minority”); DFC, 172 A.3d at 369 n.118 (explaining that discounted cash flow models are “often used in appraisal proceedings when the respondent company was not public or was not sold in an open market check”). 8 Post-Trial Ruling, 2018 WL 922139, at *2, *52-53. 9 Id. at *1, *25-28, *51. 10 Id. at *1, *34. 11 8 Del. C. § 262(h); see also Dell, 177 A.3d at 20; DFC, 172 A.2d at 364, 368.

2 derived a midpoint valuation indication based on the deal-price-minus-synergies of $18.20

per share.12

I then confronted the challenge of how to harmonize, weigh, or otherwise decide

between two probative yet divergent indications of fair value. Although my deal-price-

minus-synergies indicator represented my best effort under the circumstances, it potentially

suffered from a variety of measurement errors, raising concerns about its reliability.13 I also

concluded, based on the work of leading scholars, that my deal-price-less-synergies figure

continued to incorporate an element of value derived from the merger itself: the value that

the acquirer creates by reducing agency costs through the aggregation of a control position

(here 100% ownership).14 Under the appraisal statute, the petitioners should not be entitled

to share in that element of value, because it “aris[es] from the accomplishment or

expectation of the merger.”15 My synergy deduction compensated for the one element of

12 Post-Trial Ruling, 2018 WL 922139, at *2, *45. 13 See id. at *2, *44-45, *53-54. 14 See William J. Carney & Mark Heimendinger, Appraising the Nonexistent: The Delaware Court’s Struggle with Control Premiums, 152 U. Pa. L. Rev. 845, 847-48, 857- 58, 861-66 (2003) [hereinafter Control Premiums]; Lawrence A. Hamermesh & Michael L. Wachter, Rationalizing Appraisal Standards in Compulsory Buyouts, 50 B.C. L. Rev. 1021, 1023-24, 1034-35, 1044, 1046-54, 1067 (2009) [hereinafter Rationalizing Appraisal]; Lawrence A. Hamermesh & Michael L. Wachter, The Short and Puzzling Life of the “Implicit Minority Discount” in Delaware Appraisal Law, 156 U. Penn. L. Rev. 1, 30-36, 49, 52, 60 (2007) [hereinafter Implicit Minority Discount]; Lawrence A. Hamermesh & Michael L. Wachter, The Fair Value of Cornfields in Delaware Appraisal Law, 31 J. Corp. L. 119, 128, 132-33, 139-42 (2005) [hereinafter Fair Value of Cornfields]. 15 8 Del. C. § 262(h); see M.P.M. Enters., Inc. v. Gilbert 731 A.2d 790 (Del. 1999) (“Fair value, as used in § 262(h), Is more properly described as the value of the company

3 value arising from the merger, but addressing this other aspect would require a further

downward adjustment.16 By contrast, the market value indicator did not require

adjustments. Under a traditional formulation of the efficient capital markets hypothesis, the

unaffected market price provides a direct indication of the value of the subject company

based on its operative reality independent of the merger, at least for a company that is

widely traded and lacks a controlling stockholder.17 I therefore concluded on the facts

to the stockholder as a going concern, rather than its value to a third party as an acquisition.”); see also Rationalizing Appraisal, supra, at 1038 (“[T]hird-party sale value is an inappropriate standard for determining the fair value of dissenting shares because it incorporates elements of value—associated with acquisitions of control by third parties— that do not belong to the acquired enterprise or to shares of stock in that enterprise.”); Implicit Minority Discount, supra, at 30 (“The value of the firm is not its third-party sale value (V3PS). In an arm’s-length transaction, an acquirer will pay a premium to VE in purchasing the firm. The premium largely reflects synergies arising from the merger, but it can also reflect benefits of control.”); Fair Value of Cornfields, supra, at 148 (“[E]xcluded gains [for purposes of appraisal] include, for example, those resulting from economies of scale or increased market share, or those that result from the acquirer’s plans to operate the post-merger enterprise more efficiently.”); id. at 151 (concluding that Section 262(h) excludes value arising from both “synergies dependent on the consummation of an arm’s-length acquisition” and “operating efficiencies that arise from the acquirer’s new business plans”). 16 See Rationalizing Appraisal, supra, at 1055 (discussing an acquisition of a widely held firm and explaining that “the firm’s going concern value can be estimated in this case as the actual purchase price minus synergies minus control value”). 17 See Richard A. Booth, Minority Discounts and Control Premiums in Appraisal Proceedings, 57 Bus. Law. 127, 151 n.130 (2001) (“[M]arket price should ordinarily equal going concern value if the market is efficient.”); Control Premiums, supra, at 857-58 (“The basic conclusion of the Efficient Capital Markets Hypothesis (ECMH) is that market values of companies’ shares traded in competitive and open markets are unbiased estimates of the value of the equity of such firms.”); id. at 879 (noting that the appraisal statute requires consideration of all relevant factors and stating that “in an efficient market, absent information about some market failure, market price is the only relevant factor”); Implicit Minority Discount, supra, at 52 (“Take the case of a publicly traded company that has no

4 presented that the most persuasive evidence of Aruba’s fair value was its unaffected trading

price of $17.13 per share.18

Under Court of Chancery Rule 59(f), “[a] motion for reargument setting forth briefly

and distinctly the grounds therefor may be served and filed within 5 days after the filing of

the Court’s opinion or the receipt of the Court’s decision.”19 The petitioners have moved

for reargument.20

As movants, the petitioners bear the burden of demonstrating that I “overlooked a

decision or principle of law that would have controlling effect” or “misapprehended the

law or the facts so that the outcome of the decision would be affected.”21 A party moving

for reargument is not permitted “to raise new arguments that they failed to present in a

timely way.”22 An argument that was not previously raised “is therefore waived, and the

controller. Efficient market theory states that the shares of this company trade at the pro rata value of the corporation as a going concern.”); id. at 60 (“As a matter of generally accepted financial theory . . . , share prices in liquid and informed markets do generally represent th[e] going concern value . . . .”). 18 See Post-Trial Ruling, 2018 WL 922139, at *4, *55. 19 See Ct. Ch. R. 59(f). 20 Dkt. 190 (the “Reargument Motion”). 21 Miles, Inc. v. Cookson Am., Inc., 677 A.2d 505, 506 (Del. Ch. 1995) (quoting Stein v. Orloff, 1985 WL 21136, at *2 (Del. Ch. 1985)). 22 Sunrise Ventures, LLC v. Rehoboth Canal Ventures, LLC, 2010 WL 975581, at *1 (Del. Ch.) (Strine, V.C.), aff’d, 7 A.3d 485 (Del. 2010) (TABLE).

5 motion must be denied for that reason alone.”23 Rule 59 is also “not a vehicle to rehash or

more forcefully present arguments already made.”24 “[T]he Court will deny a motion for

reargument that does no more than restate a party’s prior arguments.”25

The Reargument Motion advances what appear to be eight grounds for reargument.

In the order presented, they are:

 I misapprehended the law due to my “frustration with many of the Supreme Court’s pronouncements.”26

 I misapprehended both the law and the facts by reaching “an absurd result that no litigant would even ask for.”27

 I misapprehended the import of the discussion of the efficient capital markets hypothesis in Dell and DFC, because “the superior tribunal simply referred to the ECMH to criticize the Court of Chancery’s reliance on information that the Supreme Court deemed was known to the market as a reason for not giving substantial weight to the deal price.”28

23 Id. See generally Donald J. Wolfe, Jr. & Michael A. Pittenger, Corporate and Commercial Practice in the Delaware Court of Chancery § 4.09 (2015) (explaining that a “motion for reargument may not introduce any new legal theories or issues that could have been raised” but were not). 24 Lechiter v. Del. Dep’t of Nat. Res., 2016 WL 878121, at *2 (Del. Ch. Mar. 8, 2016); accord McElroy v. Shell Petroleum, Inc., 1992 WL 397468, at *1 (Del. Nov. 24, 1992) (TABLE) (“A motion for reargument is not intended to rehash the arguments already decided by the court.”).

Zutrau v. Jansing, 2014 WL 6901461, at *2 (Del. Ch. Dec. 8, 2014), aff’d, 123 25

A.3d 938 (Del. 2015). 26 Reargument Mot. ¶ 1. 27 Id. 28 Id. ¶ 4.

6  I misapprehended the facts when applying the efficient capital markets hypothesis because the trial record established that there was information about the value of Aruba that had not been incorporated into the unaffected market price.29

 I misapprehended the law because relying on the unaffected trading price as an indicator of value is “ridiculous.”30

 I acted “arbitrarily and capriciously” by using a 30-day average to measure the unaffected market price rather than some other period.31

 I misapprehended the law and the facts because “the measuring point for the valuation is supposed to be the closing date (May 18, 2015), but the Court effectively used the 30 day period between January 26, 2015 and February 24, 2015 as the ‘valuation date.’”32

 I violated my “oath to Delaware to uphold the Delaware Constitution”33 by using the unaffected market price as an indicator of fair value because this means, as a practical matter, “that there can never be an appraisal for a public company receiving a premium offer, regardless of the size of that premium.”34 This approach “eliminated the statutory right to appraisal provided by the General Assembly in the context of a publicly traded company.”35

In this decision, I take the liberty of grouping conceptually similar objections together,

rather than following the order in which the petitioners presented them.

29 Id. ¶ 5. 30 Id. ¶ 7. 31 Id. 32 Id. ¶ 8. 33 Id. ¶ 9 34 Id. 35 Id.

7 This decision denies the Reargument Motion. The petitioners have not shown that I

misapprehended the facts or the applicable law. When preparing the Post-Trial Ruling, I

reasoned through the issues as best I could and reached what I believe is the correct

determination of fair value for purposes of this case. At this point, the proper institutional

remedy for correcting any errors lies with the senior tribunal on appeal.

A. Objections To The Application Of The Legal Framework

Three of the petitioners’ objections accept for the sake of argument that the Post-

Trial Ruling could rely on the unaffected market price as a valuation indicator, but they

assert that I misapprehended the law and the facts when doing so. These are the petitioners’

most straightforward contentions, so this decision starts with them.

1. The Use Of A Thirty-Day Average

The petitioners contend that I acted “arbitrarily and capriciously” by using a 30-day

average to determine the unaffected market price rather than some other measurement

period.36 The petitioners claim that “[t]here is no record evidence or citation to support that

choice.”37 They ask rhetorically, “Does an efficient market really take 30 days to adjust to

provide evidence of fair value . . . ? Why isn’t it 90 days? Why isn’t it 1 day?”38 They note

that the period chosen makes a substantial difference in the outcome:

[H]ad the Court selected 1 day, the fair value would have been $18.38; had it selected 90 days, it would have been $18.81; had it selected 120 days, it

36 Id. ¶ 7. 37 Id. 38 Id.

8 would have been $19.51; had it selected the opening price the day HP first approached Aruba about a deal, it would have been $22.01.39

The petitioners’ objection to the 30-day measurement period represents a new argument

that is not cognizable under Rule 59(f).

During post-trial briefing and at post-trial argument, the respondent consistently

argued for using Aruba’s 30-day average trading price, measured before the news of a

potential deal leaked, as the relevant metric for the unaffected market price.40 The

39 Id. ¶ 7 n.8. 40 See, e.g., Dkt. 163 at 1 (“[HP] paid $24.67 per share for [Aruba]—a significant premium over the unaffected market value of $17.13 per share.”); id. at 3 (“Aruba’s 30 day average unaffected market price was $17.13 . . . .”); id. at 37 (“The market for Aruba stock was a ‘thick and efficient’ one, such that Aruba’s stock price reflected its going concern value.”); Dkt. 167 at 1 (“Marcus’ valuation far exceeds . . . Aruba’s unaffected market value of $17.13.”); id. at 2 (“Dages’ analysis is also consistent with how the market . . . valued Aruba.”); id. (“Aruba’s share price was not, as Verition contends, trading in an [sic] ‘trough,’ but reflected an efficient market’s concerns about Aruba’s future.” (internal citations omitted)); id. at 6 (“Verition . . . does not contend that the market for Aruba’s stock was not efficient.”); id. (arguing that Aruba had positive and negative aspects, “all of which the market knew and incorporated into Aruba’s stock price”); Dkt. 174 at 1 (“[DFC] confirms Aruba’s position that the Court should reject Verition’s proposed DCF fair value of $32.57 and adopt Aruba’s proposed DCF fair value of $19.75 because the latter is consistent with . . . Aruba’s pre-transaction trading price of $17.13 . . . .”); id. (“DFC makes clear that Aruba’s pre-transaction trading price is relevant to fair value and negates certain of Verition’s challenges to the deal process.”); id. (“[T]he fact that the market for Aruba stock is informationally efficient refutes Verition’s argument that the deal price was negotiated while Aruba traded in an artificial ‘trough.’”); id. at 3 (“DFC Shows That Aruba’s Market Price Of $17.13 Is Informative Of Fair Value.”); id. at 15 (arguing that the court should consider “the market price”); Dkt. 178 at 97-98 (“I would submit that these four numbers, Aruba’s unaffected contemporaneous market price of [$]17.13 a share, the merger price of [$]24.67 a share as a ceiling, and HP’s valuation . . . of Aruba at [$]19.10 a share, and the DCF valuation of Mr. Dages of no greater than [$]19.75 a share, all cluster around the same valuation range.”); id. at 98-104 (discussing relevance of unaffected market price of $17.13 per share as indicator of fair value); Dkt. 188 at 1 (“[Dell] confirms Aruba’s position that the Court must consider Aruba’s pre-transaction market price of

9 respondent did not bury the lede: Aruba identified this metric in the opening lines of every

one of its post-trial briefs, and its counsel mentioned it at the outset of his argument during

the post-trial hearing.41

The petitioners never contested the 30-day metric, nor did they offer a different one.

They took the broader position that Aruba’s market price was depressed and unreliable.

The petitioners could have engaged on the proper measurement period for market value by

$17.13 as both an independent indicator of Aruba’s fair value and as a reliable anchor for the $24.67 merger price less shared synergies.”); id. at 2 (“[T]he Court should consider Dages’ imminently reasonable $19.75 DCF as yet another check that confirms the reliability of the $17.13 market price, and reject Marcus’ $32.57 DCF as there is no rational, factual basis for the 90% valuation gap between this and the market price.”); id. at 14 (arguing for reliance on “Aruba’s 30-day unaffected market price of $17.13”). 41 See, e.g., Dkt. 163 at 1 (respondent’s answering post-trial brief: “[HP] paid $24.67 per share for [Aruba]—a significant premium over the unaffected market price of $17.13 per share.”); Dkt. 167 at 1 (respondent’s post-trial sur-reply brief: “Marcus’ valuation far exceeds . . . Aruba’s unaffected market value of $17.13.”); Dkt. 174 at 1 (respondent’s supplemental post-trial brief on DFC: “[DFC] confirms Aruba’s position that the Court should reject Verition’s proposed DCF fair value of $32.57 and adopt Aruba’s proposed DCF fair value of $19.75 because the latter is consistent with . . . Aruba’s pre-transaction trading price of $17.13 . . . .”); Dkt. 178 at 97-98 (respondent’s counsel beginning his argument during the post-trial hearing: “I would submit that these four numbers, Aruba’s unaffected contemporaneous market price of [$]17.13 a share, the merger price of [$]24.67 a share as a ceiling, and HP’s valuation . . . of Aruba at [$]19.10 a share, and the DCF valuation of Mr. Dages of no greater than [$]19.75 a share, all cluster around the same valuation range.”); id. at 98-104 (discussing relevance of unaffected market price of $17.13 per share as indicator of fair value); Dkt. 188 at 1 (respondent’s supplemental post-trial brief on Dell: “[Dell] confirms Aruba’s position that the Court must consider Aruba’s pre- transaction market price of $17.13 as both an independent indicator of Aruba’s fair value and as a reliable anchor for the $24.67 merger price less shared synergies.”); id. (“[I]n response to the Supreme Court’s recent guidance in Dell and [DFC], Aruba now understands that its pre-transaction market price is indeed the single most important mark of its fair value.” (footnote omitted)).

10 noting that they believed that the market price was unreliable, but that if the court disagreed

and chose to consider that metric, then the court should use a different measurement period.

Parties often make alternative arguments of this type. Rather than engaging in this manner,

the petitioners did not advocate in favor of any metric for market value. Even now, the

Reargument Motion does not argue that the court should have used a particular

measurement period. The Reargument Motion simply observes that different measurement

periods could produce different valuation indications.

Had the petitioners engaged on the measurement period, then the respondent

doubtless would have provided support for the 30-day metric. In response to the

Reargument Motion, the respondent has cited authorities indicating that using a 30-day

period is both “generally considered acceptable in the financial community” 42 and within

a court’s discretionary judgment.43 I would have considered the parties’ competing

42 Weinberger v. UOP, Inc., 457 A.2d 701, 712 (Del. 1983); see Dkt. 192 ¶ 9 n.8 (citing Arthur J. Keown & John M. Pinkerton, Merger Announcements and Insider Trading Activity: An Empirical Investigation, 36 J. Fin. 855, 866 (1981) for the proposition that “a 30-day average has the benefit of correcting for ‘what appears to be common knowledge on the street: impending merger announcements are poorly held secrets’”). Given the strictures of Rule 59(f) and the fact that the petitioners had not previously raised the issue, I have not delved into the valuation and academic literature on this point, but I suspect many treatises and other articles could be cited to support the general acceptance of a 30- day average as a common metric for calculating the unaffected trading price. 43 See, e.g., In re Appraisal of Shell Oil Co., 1990 WL 201390, at *29 (Del. Ch. Dec. 11, 1990) (explaining that it “was not improper, as a matter of law,” to base the unaffected market price on either “the day prior to the offer announcement” or a day “30 days prior to the merger announcement”), aff’d, 607 A.2d 1213 (Del. 1992); In re Olivetti Underwood Corp., 246 A.2d 800, 805 (Del. Ch. 1968) (declining to recognize any rule of law mandating a particular measurement period and finding that an average was reasonable).

11 arguments, and perhaps there would have been good reason to choose a different period.

But the petitioners did not engage on how long the measurement period should be. They

chose to reject market value entirely. For the petitioners to dispute the proper measurement

period now constitutes a new argument that is beyond the scope of Rule 59(f).

The petitioners also point out that I did not provide a footnoted record citation for

the source of the 30-day average. This argument presents a somewhat different point than

their objection to the 30-day average because the petitioners could not have raised this

omission before seeing the Post-Trial Ruling.

Because the 30-day measurement period permeated the briefing, it did not occur to

me to provide a footnoted record citation to support it. It appeared uncontested that if I

adopted market value as a metric, then the 30-day average was an appropriate measurement

period and $17.13 per share was the relevant figure. The Post-Trial Ruling spanned 129

pages and was encumbered by 498 footnotes. In my view, the omission of a 499th footnote

does not rise to a misapprehension of fact sufficient to warrant reargument.

2. The Gap Between The Market Indication And The Valuation Date

The petitioners next contend that I misapprehended the law because “the measuring

point for the valuation is supposed to be the closing date (May 18, 2015), but the Court

effectively used the 30 day period between January 26, 2015 and February 24, 2015 as the

‘valuation date.’”44 I did not misapprehend the law regarding the valuation date or miss the

44 Reargument Mot. ¶ 8.

12 fact that using earlier market measures resulted in a temporal gap between the evidence of

value and the valuation date. The Post-Trial Ruling considered the issue explicitly,45 just

as I have done in other appraisal decisions.46

The Post-Trial Ruling found that “neither side proved that Aruba’s value had

changed materially by closing, so this decision sticks with the unaffected market price and

the deal price less synergies.”47 As support for the legitimacy of this determination, the

Post-Trial Ruling cited Chief Justice Strine’s decision in the Union Illinois case, issued

while he served on this court, in which he reached a similar conclusion regarding the

insignificance of the temporal gap based on the record presented in that matter.48

The petitioners have not shown that I misapprehended the law or facts as to the

temporal gap. They simply disagree with the finding made in the Post-Trial Ruling. That

disagreement gives rise to an issue for appeal, not grounds for reargument.49

45 Post-Trial Ruling, 2018 WL 922139, at *53. 46 See Merion Capital L.P. v. Lender Processing Servs., Inc., 2016 WL 7324170, at *23-26 (Del. Ch. Dec. 16, 2016); In re Appraisal of Dell Inc. (Dell Trial Fair Value), 2016 WL 3186538, at *21 (Del. Ch. May 31, 2016), aff’d in part, rev’d in part sub nom. Dell, 177 A.3d 1. 47 Post-Trial Ruling, 2018 WL 922139, at *53. 48 See Union Ill. 1995 Inv. Ltd. P’ship v. Union Fin. Gp. Ltd., 847 A.2d 340, 358 (Del. Ch. 2004) (describing the temporal gap as a “quibble” and “not a forceful objection”). 49 See Zutrau, 2014 WL 6901461, at *2 (finding “[m]ere disagreement with the Court’s resolution of a matter” to be insufficient grounds for reargument.).

13 3. The Existence Of Information That Was Not Known To The Market

The petitioners also contend that I misapprehended the facts when applying the

efficient capital markets hypothesis as framed in Dell and DFC because the trial record

established that there was information about the value of Aruba that was undisclosed and

could not have been incorporated into the unaffected market price.50 The petitioners

contend that by using the 30-day unaffected market price, the Post-Trial Ruling effectively

adopted the strong form of market efficiency rather than the semi-strong form that the Dell

and DFC decisions endorsed.51

I agree that the Delaware Supreme Court’s decisions in Dell and DFC endorsed a

traditional version of the semi-strong form of the efficient capital markets hypothesis, not

the strong form.52 Under the semi-strong version, information concerning a company is

quickly impounded into the company’s stock price such that the price reflects the

information. The semi-strong form of the hypothesis differs from the strong form, in which

stock prices reflect all information relevant to value, both public and nonpublic.53

50 Reargument Mot. ¶ 5. 51 Id. ¶ 4. 52 See, e.g., Post-Trial Ruling, 2018 WL 92139, at *24 (“The Delaware Supreme Court’s recent decisions in DFC and Dell teach that if a company’s shares trade in a market having attributes consistent with the assumptions underlying a traditional version of the semi-strong form of the efficient capital markets hypothesis, then the unaffected trading price provides evidence of the fair value of a proportionate interest in the company as a going concern.” (footnote omitted)); see also id. at *25, *30, *31 n.207, *34. 53 See generally Eugene F. Fama, Efficient Capital Markets: A Review of Theory and Empirical Work, 25 J. Fin. 383 (1970).

14 The petitioners now argue that I found that there was information that was not

impounded into the trading price. In the Post-Trial Ruling, I made the following findings

about Aruba’s release of information to the market:

At the end of January 2015, HP offered to acquire Aruba for $23.25 per share. During the first week of February, while Aruba was considering its response, another analyst report criticized the Company, and the stock price fell again, closing around $16.07 the day after the report. Contrary to the market’s perception, Aruba management knew internally that Aruba was having an excellent quarter and would beat its guidance. But, rather than correcting the market’s perception, Aruba management proposed to time the announcement of the merger to coincide with the announcement of Aruba’s February 2015 earnings. Companies often announce significant items as part of an earnings release, particularly if the earnings are bad and the news is good (or vice versa). In this case, Aruba management believed that an increase in the stock price would hurt their chances of getting the deal approved. Providing both pieces of information simultaneously would blur the market’s reaction to Aruba’s strong quarterly results and help get the deal approved.54

I noted that after Aruba announced its strong quarterly results in conjunction with the

merger, “Aruba’s stock traded briefly above the deal price, indicating the market took into

account both the announcement of the deal and Aruba’s strong results.”55

As with the measurement period, the petitioners could have used the conjunctive

announcement as an opportunity to engage with the respondent’s proffered measure of the

unaffected market price and argue for a higher figure. Had they done so, then in my view

the respondent would have had a strong argument that to the extent the market price reacted

to news of the deal, the resulting valuation impact represented an “element of value arising

54 Post-Trial Ruling, 2018 WL 922139, at *33 (footnotes omitted). 55 Id. at *34.

15 from the . . . expectation of the merger.”56 That argument would have forced the petitioners

to try to disentangle the effect of the earnings information from the effect of the merger

announcement.57

The petitioners did not make the attempt. Instead, they argued broadly that the

market price was unreliable and should be disregarded because investors were

undervaluing Aruba. The Post-Trial Ruling considered that argument and rejected it.58

For the petitioners now to argue that I should have constructed and considered a

different market price constitutes a new argument. It does not provide a basis for relief

under Rule 59(f).

B. Objections To The Interpretation Of Dell And DFC That Created The Legal Framework

The petitioners’ next three objections disagree with the Post-Trial Ruling’s reliance

on Aruba’s unaffected market price as a valuation indicator. They contend that the Post-

Trial Ruling misapprehended the import of the Delaware Supreme Court’s rulings in Dell

and DFC and should not have considered the unaffected market price. This is logically the

next set of arguments to tackle.

56 8 Del. C. § 262(h). 57 See Post-Trial Ruling, 2018 WL 922139, at *35 (noting that “[r]eleasing information simultaneously or in close proximity might make it difficult for an expert to disentangle the price reaction”). 58 See id. at *28-34.

16 1. Whether Dell And DFC Meant To Endorse The Efficient Capital Markets Hypothesis As A Valuation Tool

The petitioners argue that the Post-Trial Ruling misapprehended the import of the

discussion of the efficient capital markets hypothesis in Dell and DFC, because neither

decision “required the Court of Chancery to weight the supposedly ‘unaffected’ market

trading price at all.”59 Rather, the petitioners say that “the superior tribunal simply referred

to the ECMH to criticize the Court of Chancery’s reliance on information that the Supreme

Court deemed was known to the market as a reason for not giving substantial weight to the

deal price.”60

I agree that Dell and DFC did not require the Court of Chancery to give weight to

the unaffected market price. The Post-Trial Ruling did not proceed on the premise that I

was required to give weight to the unaffected market price, nor did I ultimately give

exclusive weight to the unaffected market price because I thought I was required to do so.

Instead, I perceived that Dell and DFC endorsed the reliability of the unaffected

market price as an indicator of value, at least for a widely traded company, without a

controlling stockholder, where the market for its shares has attributes consistent with the

assumptions underlying the efficient capital markets hypothesis. As a result, I believe that

trial courts now can (and often should) place heavier reliance on the unaffected market

price.

59 Reargument Mot. ¶ 6. 60 Id. ¶ 4.

17 From my standpoint, this aspect of the Dell and DFC decisions represented a change

in direction for Delaware appraisal law. Before Dell and DFC, my conceptual framework

for approaching the determination of fair value called for regarding the trading price with

skepticism, while having relatively greater confidence in the contemporaneous views of

management and other sophisticated parties and placing relatively greater reliance on

management projections prepared in the ordinary course of business. This skeptical

approach to market prices did not flow from any personal value judgment on my part, but

rather from how Delaware Supreme Court decisions had treated the unaffected trading

price as a valuation indicator.61

The relatively diminished role of the market price in this conceptual framework also

influenced the circumstances under which I perceived that the deal price would provide

reliable evidence of fair value. While recognizing the potential relevance of that indicator,

I believed that if contemporaneous evidence from knowledgeable insiders indicated that

61 See, e.g., Cede & Co. v. Technicolor, Inc. (Technicolor II), 684 A.2d 289, 301 (Del. 1996) (observing, in context of appraisal of publicly traded company following arm’s-length deal, that the “market price of shares may not be representative of fair value” (internal quotation marks omitted) (quoting Paramount Commc’ns, Inc. v. Time Inc., 571 A.2d 1140, 1150 n.12 (Del. 1989))); Rapid-American Corp. v. Harris, 603 A.2d 796, 806 (Del. 1992) (describing the Court of Chancery’s rejection of market value in Chicago Corp. v. Munds, 172 A. 452 (Del. Ch. 1934), and observing that “Munds’ succinct evaluation of the market has lost none of its lustre”); see also Glassman v. Unocal Expl. Corp., 777 A.2d 242, 248 (Del. 2001) (stating that if a transaction “was timed to take advantage of a depressed market, or a low point in the company’s cyclical earnings, or to precede an anticipated positive development, the appraised value may be adjusted to account for those factors”). See generally Implicit Minority Discount, supra, at 8 (“Delaware appraisal law has never been particularly friendly to the idea that stock market prices always accurately represent a proportional share of the value of the enterprise as a going concern.”).

18 the company’s market price was depressed, then the party arguing for reliance on the deal

price (typically the respondent) would bear the burden of showing that the process had

provided a sufficient opportunity for price discovery to warrant regarding the deal price as

a reliable indicator of fair value.62 I have previously described my then-operative

understandings of what this inquiry contemplated, so I will not repeat them here.63

As discussed in greater detail below, the Delaware Supreme Court’s decisions in

Dell and DFC contained an unprecedented level of discussion of the efficient capital

markets hypothesis.64 To my mind, the Delaware Supreme Court’s endorsement of the

62 See M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 520 (Del. 1999) (“In a statutory appraisal proceeding, both sides have the burden of proving their respective valuation positions by a preponderance of evidence.”). 63 See Dell Trial Fair Value, 2016 WL 3186538, at *22-28; Lender Processing, 2016 WL 7324170, at *14-26. 64 I use “unprecedented” descriptively and without intending any pejorative connotation to mean literally without prior Delaware Supreme Court precedent. I personally have been unable to locate a single Delaware Supreme Court decision before Dell and DFC that mentioned the efficient capital markets hypothesis by name, much less cited it with approval. Among various research efforts, I queried the Delaware cases database on Westlaw (DE-CS) with a broad search (efficient +5 market), then limited the results to Delaware Supreme Court decisions. The results consisted of nine opinions, including Dell and DFC. Of the remaining seven, three explained that uniform interpretations of standard provisions in indentures and other commercial documents promote the “efficient working of capital markets.” See Caspian Alpha Long Credit Fund, L.P. v. GS Mezzanine P’rs 2006 L.P., 93 A.3d 1203, 1206 n.9 (Del. 2014) (quoting Sharon Steel Corp. v. Chase Manhattan Bank, N.A., 691 F.2d 1039, 1048 (2d Cir. 1982)); RAA Mgmt., LLC v. Savage Sports Hldgs., Inc., 45 A.3d 107, 119 (Del. 2012); Kaiser Aluminum Corp. v. Matheson, 681 A.2d 392, 398 (Del. 1996) (quoting Sharon Steel, 691 F.2d 1039). A fourth used the phrase when describing the defendants’ rationale for proceeding with a controlling-stockholder acquisition that the plaintiffs had challenged. See Ams. Mining Corp. v. Theriault, 51 A.3d 1213, 1229 (Del. 2012) (noting that the defendants contended that a stock-for-stock merger would increase the number of outstanding shares, which

19 would “improve stockholder liquidity, generate more analyst exposure, and create a more efficient market for Southern Peru shares”). A fifth quoted my observation in a post-trial decision that “the reliability of an observed beta depends on an efficient trading market.” RBC Capital Mkts., LLC v. Jervis, 129 A.3d 816, 867 (Del. 2015) (quoting In re Rural Metro Corp. S’holders Litig., 88 A.3d 54, 108-09 (Del. Ch. 2014)).

The last two of the pre-Dell and DFC decisions involved appraisal cases. In one, the Delaware Supreme Court referred to the “efficient market” when describing the respondent’s request on appeal for the creation of a presumption that the deal price equated to fair value, which the high court declined to adopt. See Golden Telecom, Inc. v. Glob. GT LP, 11 A.3d 214, 216 (Del. 2010) (“Supported by the arms-length nature of the merger and the efficient market price, Golden contends that the merger price indicated Golden’s fair value for purposes of appraisal.”). The final decision cited Eugene Fama’s seminal Efficient Capital Markets in support of the observation that “[i]nformation and insight not communicated to the market may not be reflected in stock prices; thus, minority stockholders being cashed out may be deprived of part of the true investment value of their shares.” Cede & Co. v. Technicolor, Inc. (Technicolor I), 542 A.2d 1182, 1187 n.8 (Del. 1988). The only substantive reference—Technicolor I—thus cut against relying on the efficient capital markets hypothesis, not in favor of it, as did the eventual outcome in that case.

In the interest of completeness, there is one pre-DFC decision from the Delaware Supreme Court that referred favorably to market price as a method of determining value. See Applebaum v. Avaya, Inc., 812 A.2d 880 (Del. 2002). The Applebaum decision interpreted Section 155(2) of the Delaware General Corporation Law, which states that when a reverse stock split or other transaction generates fractional shares, a corporation may “pay in cash the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined.” 8 Del. C. § 155(2). A corporation used the market price to determine the amount due for factional shares following a reverse stock split. The Court of Chancery upheld this determination, and the Delaware Supreme Court affirmed, stating that “the Vice Chancellor properly held that the trading price of actively-traded stock of a corporation, the stock of which is widely held, will provide an adequate measure of fair value for the stockholders’ fractional interests for purposes of a reverse stock split under Section 155.” Applebaum, 812 A.2d at 883. The high court later reiterated that “[t]he Vice Chancellor correctly concluded that a well-informed, liquid trading market will provide a measure of fair value superior to any estimate the court could impose.” Id. at 890. The court cautioned, however, that “market price is not employed in all valuation contexts,” citing both the appraisal statute and Smith v. Van Gorkom, 488 A.2d 858, 876 (Del. 1985). See Applebaum, 812 A.2d at 889 & n.28.

20 efficient capital markets hypothesis suggested a greater (yet still non-mandatory) role for

the use of market price when determining fair value.

The petitioners are correct that the structure of the Delaware Supreme Court’s

opinions in Dell and DFC permits the interpretation that the Delaware Supreme Court only

discussed the efficient capital markets hypothesis en route to endorsing a deal-price-less-

synergies metric and that the discussion might carry no weight for purposes of assessing

market price as a separate valuation indicator. Both Dell and DFC follow the same broad

structure. First, the opinions discussed the efficient capital markets hypothesis. Second,

they discussed the sale processes and held that the processes provided sufficiently reliable

evidence of fair value that it constituted an abuse of discretion for the trial judge not to

have given that indicator greater weight. Third, for completeness, they worked through

challenges to the discounted cash flow analyses. Finally, they remanded the cases so that

the trial court could consider giving greater weight to the deal price.

Because of this high-level structure, it is possible to read the decisions as discussing

the efficient capital markets hypothesis only instrumentally in support of a deal-price-less-

synergies metric. I personally considered that possibility, but after multiple readings of

Dell and DFC, several factors convinced me that something more was at work.

First, discussing the efficient capital markets hypothesis did not appear to be

logically necessary at the appellate level in either Dell or DFC. To endorse the deal price

as a valuation indicator, the Delaware Supreme Court could have started and finished by

discussing the deal process itself and explaining why market forces generated a reliable

price. The DFC court cited a series of Court of Chancery decisions that had given exclusive

21 weight to the deal price.65 These decisions focused on whether the deal price resulted from

a “proper transactional process.”66 None of the cited decisions discussed the efficient

capital markets hypothesis. Only one—Autoinfo—considered an argument that the market

price was unreliable because the company “was thinly traded and lacked financial analyst

coverage.”67 In addressing this argument, the court discussed the sale process and noted

that the resulting deal generated a premium of 22% over the closing price on the last trading

day before the announcement of the merger. The court concluded that “[w]hile the market

may have been uninformed about AutoInfo before the sale process, it subsequently gained

ample information.”68

The Delaware Supreme Court could have followed a similar course in Dell and DFC

by focusing on the reliability of the sale process without discussing the efficient capital

65 See DFC, 172 A.3d at 364 n.84 (citing In re PetSmart, Inc., 2017 WL 2303599 (Del. Ch. May 26, 2017); Merion Capital LP v. BMC Software, Inc., 2015 WL 6164771 (Del. Ch. Oct. 21, 2015); LongPath Capital, LLC v. Ramtron Int’l Corp., 2015 WL 4540443 (Del. Ch. June 30, 2015); Merlin P’rs LP v. AutoInfo, Inc., 2015 WL 2069417 (Del. Ch. Apr. 30, 2015); In re Appraisal of Ancestry.com, Inc., 2015 WL 399726 (Del. Ch. Jan. 30, 2015); Huff Fund Inv. P’ship v. CKx, Inc., 2013 WL 5878807 (Del. Ch. Nov. 1, 2013); Union Ill., 847 A.2d 340). 66 Ramtron, 2015 WL 4540443, at *20; accord PetSmart, 2017 WL 2303599, at *31; see also BMC, 2015 WL 6164771, at *17 (“robust, arm’s-length sales process”); Ancestry.com, 2015 WL 399726, at *16 (“[T]he process here . . . appears to me to represent an auction of the Company that is unlikely to have left significant stockholder value unaccounted for.”). 67 2015 WL 2069417, at *12. 68 Id.

22 markets hypothesis or the general reliability of market prices.69 Instead, the high court

chose to endorse those propositions. To my mind, these aspects of the high court’s decision

carried independent doctrinal significance. Moreover, the analytical move seemed

particularly meaningful because it represented a departure from prior Delaware Supreme

Court precedent, which had not previously endorsed the efficient capital markets

hypothesis and had expressed skepticism about the reliability of market prices.70

Second, the opinions in Dell and DFC did not just mention the efficient capital

markets hypothesis in passing. Both devoted considerable space to the subject, and both

seemed quite forceful in their endorsement of market prices as an indicator of value. Here

are a selection of quotations from Dell and DFC that contributed to my impressions on

these points:

 “[T]he Court of Chancery’s analysis ignored the efficient capital market hypothesis long endorsed by this Court.”71

 “[The efficient capital markets hypothesis] teaches that the price produced by an efficient market is generally a more reliable assessment of fair value than the view

69 See, e.g., DFC, 172 A.3d at 366 (“[W]e have little quibble with the economic argument that the price of a merger that results from a robust market check, against the back drop of a rich information base and a welcoming environment for potential buyers, is probative of the company’s fair value.”); id. (“[O]ur refusal to craft a statutory presumption in favor of the deal price . . . does not in any way signal our ignorance to the economic reality that the sale value resulting from a robust market check will often be the most reliable evidence of fair value . . . .”). 70 See supra notes 61-64 and accompanying text. 71 Dell, 177 A.3d at 24.

23 of a single analyst, especially an expert witness who caters her valuation to the litigation imperatives of a well-heeled client.”72

 “[T]he [efficient market hypothesis] states that the market assessment of value is more accurate, on average, than that of any individual, including an appraiser.”73

 “Market prices are typically viewed superior to other valuation techniques because, unlike, e.g., a single person’s discounted cash flow model, the market price should distill the collective judgment of the many based on all the publicly available information about a given company and the value of its shares.”74

 When the market for a company’s shares is efficient, “a company’s stock price ‘reflects the judgments of many stockholders about the company’s future prospects, based on public filings, industry information, and research conducted by equity analysts.’”75

 When the market for a company’s shares is efficient, “a mass of investors quickly digests all publicly available information about a company, and in trading the company’s stock, recalibrates its price to reflect the market’s adjusted, consensus valuation of the company.”76

 “As one textbook puts it, ‘[i]n an efficient market you can trust prices, for they impound all available information about the value of each security.’”77

 “‘For many purposes no formal theory of value is needed. We can take the market’s word for it.’”78

72 Id. 73 DFC, 172 A.3d at 367 n.104 (alterations in original) (internal quotation marks omitted) (quoting Bradford Cornell, Corporate Valuation 47 (1999)). 74 Id. at 369-70. 75 Dell, 177 A.3d at 25 (quoting DFC, 172 A.3d at 373-74). 76 Id. (citing DFC, 172 A.3d at 370). 77 DFC, 172 A.3d at 370 (alteration in original) (quoting Richard A. Brealey et al., Principles of Corporate Finance 373 (2008)). 78 Id. (quoting Brealey et al., supra, at 13).

24  “[T]he relationship between market valuation and fundamental valuation has been strong historically.”79

 “[C]orporate finance theory reflects a belief that if an asset—such as the value of a company as reflected in the trading value of its stock—can be subject to close examination and bidding by many humans with an incentive to estimate its future cash flows value, the resulting collective judgment as to value is likely to be highly informative and that, all estimators having equal access to information, the likelihood of outguessing the market over time and building a portfolio of stocks beating it is slight.”80

 “[I]t is unlikely that a particular party having the same information as other market participants will have a judgment about an asset’s value that is likely to be more reliable than the collective judgment of value embodied in a market price.”81

 Although the market price may not always be right, “one should have little confidence she can be the special one able to outwit the larger universe of equally avid capitalists with an incentive to reap rewards by buying the asset if it is too cheaply priced.”82

 “[O]n average, market forecasts and market valuations will be at least as accurate as those produced by individual investors and appraisers, no matter how expert.”83

 “Like any factor relevant to a company’s future performance, the market’s collective judgment of the effect of regulatory risk may turn out to be wrong, but established corporate finance theories suggest that the collective judgment of the many is more likely to be accurate than any individual’s guess.”84

79 Id. 80 Id. 81 Id. at 367. 82 Id. 83 Id. at 373 n.144 (alteration in original) (internal quotation marks omitted) (quoting Cornell, supra, at 47). 84 Id. at 349.

25 In Dell, after describing Dell’s market capitalization, public float, weekly trading volume,

bid-ask spread, and analyst coverage and the response to the news of the buyout offer, the

high court observed that “[b]ased on these metrics, the record suggests the market for Dell

stock was semi-strong efficient, meaning that the market’s digestion and assessment of all

publicly available information concerning Dell was quickly impounded into the

Company’s stock price.”85 In its legal analysis, the Delaware Supreme Court returned to

and reiterated these points, stressing that the market for Dell’s shares was efficient and that

it was error to discount the trading price.86 To my mind, this degree of emphasis did not

seem solely instrumental, but rather independently important.

Third and more generally, the Delaware Supreme Court stressed in both Dell and

DFC that the trial courts must take into account accepted financial and economic

principles. This mandate applies to the trial court’s factual findings.87 It extends to the trial

85 Dell, 177 A.3d at 7. 86 Id. at 25-27. 87 See DFC, 172 A.3d at 372 (“Although the Court of Chancery has broad discretion to make findings of fact, those findings of fact have to be grounded in the record and reliable principles of corporate finance and economics.”); id. (“[T]he Chancellor found that the deal price was unreliable because DFC was in a trough with future performance dependent upon the outcome of regulatory actions, but he cited no economic literature to suggest that markets themselves cannot price this sort of regulatory risk.” (emphasis added)); see also Dell, 177 A.3d at 24 (“We consider each of these premises in turn and find them untenable in view of the Court of Chancery’s own findings of fact as considered in light of established principles of corporate finance.”); id. at 30-31 (describing trial court’s finding that the Dell sale process only involved private equity bidders and therefore had attributes of a common value auction, which in turn affected price, as “not grounded in accepted financial principles”).

26 court’s choice of valuation methodologies.88 And it encompasses the final determination

of fair value.89 As the Delaware Supreme Court repeatedly emphasized in Dell and DFC,

the efficient capital markets hypothesis is a widely accepted principle in corporate

finance.90 It follows that a trial court would be obligated to consider the valuation

88 See Dell, 177 A.3d at 22 (“[W]hatever route it chooses, the trial court must justify its methodology (or methodologies) according to the facts of the case and relevant, accepted financial principles.”); see also id. at 5 (explaining that the trial court “erred because its reasons for giving [the stock price and the deal price] no weight—and for relying instead exclusively on its own discounted cash flow (‘DCF’) analysis to reach a fair value conclusion of $17.62—do not follow from the court’s key factual finding and from relevant, accepted financial principles”); id. at 6 (“[T]he trial court’s decision to rely ‘exclusively’ on its own DCF analysis is based on several assumptions that are not grounded in relevant, accepted financial principles.”). 89 See DFC, 172 A.3d at 388 (“[T]he Court of Chancery must exercise its considerable discretion while also explaining, with reference to the economic facts before it and corporate finance principles, why it is according a certain weight to a certain indicator of value.”); see also Dell, 177 A.3d at 5-6 (“We defer to the trial court’s fair value determination if it has a ‘reasonable basis in the record and in accepted financial principles relevant to determining the value of corporations and their stock.’” (quoting DFC, 172 A.3d at 348-49)); DFC, 172 A.3d at 349 (explaining that trial court erred when giving one- third weight to the deal price where “economic principles suggest that the best evidence of fair value was the deal price”). 90 See, e.g., DFC, 172 A.3d at 349 (“[E]stablished corporate finance theories suggest that the collective judgment of the many [in a market] is more likely to be accurate than any individual’s guess.”); id. at 366 & n.104 (collecting valuation treatises to support proposition that “in any assessment of the economic value of something—be it a company, a product, or a service—economics teaches that the most reliable evidence of value is that produced by a competitive market”); id. at 366 n.104 (“Most of us economists who believe in this efficient market theory do so because we view markets as amazingly successful devices for reflecting new information rapidly and, for the most part, accurately.” (quoting Burton G. Malkiel, Are Markets Efficient?, Wall St. J., Dec. 28, 2000); id. at 367 (noting that the fair value of the petitioners’ shares “would, to an economist, likely be best reflected by the prices at which their shares were trading as of the merger”); id. at 370 (“[C]orporate finance theory reflects a belief that if an asset—such as the value of a company as reflected in the trading value of its stock—can be subject to close examination and bidding by many

27 implications of a stock price generated by a market having attributes consistent with the

efficient capital markets hypothesis.

Fourth, particularly in Dell, the Delaware Supreme Court appeared to regard my

failure to give weight to the stock price as a separate and distinct source of error. If the

petitioners’ instrumentalist view were correct, one would expect the Delaware Supreme

Court to have stressed my giving inadequate weight to the deal price (the root cause of the

error) and to have placed less emphasis on the market price (the instrumental error).

Instead, the Delaware Supreme Court prominently discussed both as sources of error.91

humans with an incentive to estimate its future cash flows value, the resulting collective judgment as to value is likely to be highly informative . . . .”). 91 See Dell, 177 A.3d at 5 (“The problem with the trial court’s opinion is not, as the Company argues, that it failed to take into account the stock price and deal price. The trial court did consider this market data. It simply decided to give it no weight. But the court nonetheless erred because its reasons for giving that data no weight . . . do not follow from the court’s key factual findings and from relevant, accepted financial principles.”); id. at 34 (“The actual facts concerning Dell’s market values—the particularities of its stock market and the sale process—demonstrate that the court of Chancery’s reasons for assigning no weight to the market values are flawed.”); id. at 35 (citing list of factors, including “the evidence of market efficiency,” that results in the trial-level outcome in Dell “abus[ing] even the wide discretion afforded the Court of Chancery in these difficult cases”); id. (citing as error the decision “to give no weight to the prices resulting from the actions of Dell’s stockholders and potential buyers”).

That said, it bears noting that at one point the Dell opinion did describe the stock market error instrumentally, stating: “In short, the record does not adequately support the Court of Chancery’s conclusion that the market for Dell’s stock was inefficient and that a valuation gap in the Company’s market trading price existed in advance of the lengthy market check, an error that contributed to the trial court’s decision to disregard the deal price.” Id. at 27 (emphasis added). To reiterate, I agree that one possible reading of Dell and DFC would treat the discussion of the efficient capital markets hypothesis as merely an instrumental step along the road to reliance on the deal price. For the reasons I have

28 Most significantly, the Delaware Supreme Court specifically identified the failure to give

weight to the market price as a standalone source of error because the market price itself

provided evidence of fair value: “Here, the trial court gave no weight to Dell’s stock price

because it found its market to be inefficient. But the evidence suggests that the market for

Dell’s shares was actually efficient and, therefore, likely a possible proxy for fair value.”92

This language appeared to me to recognize explicitly that when the market for a company’s

shares has attributes associated with the premises underlying a traditional view of the

efficient capital markets hypothesis, and the company lacks a controlling stockholder, then

the stock market price is “likely a possible proxy for fair value.”93

Finally, as a matter of policy, I was aware that some commentators have expressed

concern about a regime that incentivizes appraisal arbitrage and have contended that the

statutory interest rate permits appraisal arbitrageurs to generate outsized profits with

minimal risk, because the fair value determination often comes in at the deal price or

slightly below it.94 The Dell and DFC decisions appeared to me to be taking steps to

outlined, I concluded that the discussion of the efficient capital markets hypothesis carried independent doctrinal weight. 92 Id. at 6. 93 Id. 94 See generally Charles K. Korsmo & Minor Myers, Interest in Appraisal, 42 J. Corp. L. 109, 111, 126-31 (2016) (discussing and critiquing the work of journalists, transactional lawyers, law students, and other commentators who have made this assertion). I personally find persuasive Korsmo and Myers’ conclusion that the interest rate has played a minimal if nonexistent role in spurring appraisal arbitrage. Nevertheless, I acknowledge that others appear genuinely concerned about its effects.

29 moderate the attractiveness of appraisal arbitrage. From that standpoint, a rule that

channeled outcomes towards the deal price could have the effect of bolstering the ability

of arbitrageurs to benefit from the interest rate.95 That risk would particularly afflict

acquisitions by financial sponsors, where the opportunity for operational synergies is

generally reduced. For the Delaware Supreme Court to open up the fair value analysis by

permitting greater consideration of the unaffected market price seemed to me to be

directionally consistent with and perhaps the next logical step in the path laid out by Dell

and DFC.

Having considered these factors, I concluded that the discussion of the efficient

capital markets hypothesis in Dell and DFC was not merely deployed instrumentally in

support of a deal-price-less-synergies metric, but rather was intended to have independent

doctrinal heft as a means of altering the traditional skepticism with which Delaware

decisions have approached the stock market price when determining fair value. That

conclusion represents one individual’s reading of the operative decisions. For present

purposes, however, the possibility that Dell and DFC had discussed the efficient capital

markets hypothesis only for instrumental purposes was not something that I

95 Cf. Cooper v. Pabst Brewing Co., 1992 WL 208763, at *9 (Del. Ch. June 8, 1993) (observing that Delaware courts had been hesitant to rely heavily on deal price as evidence of fair value because it would “in effect make the deal price a ‘floor,’” presenting stockholders “with a ‘no-lose’ situation if they seek an appraisal” and creating a regime in which “dissents from mergers would therefore be encouraged”).

30 misapprehended. I was aware of that possibility and considered it when issuing the Post-

Trial Ruling.

2. Whether Relying On The Unaffected Market Price Is Ridiculous

In a stronger variant of their argument that the Post-Trial Ruling misapprehended

the import of Dell and DFC, the petitioners contend that the those decisions could not have

meant what I interpreted them to mean because using the unaffected market price as

evidence of fair value is “ridiculous”96 and “absurd.”97 I do not share that view.

The main reason why the petitioners appear to denigrate my reliance on the

unaffected market price is that it departs from this court’s traditional approach to

determining fair value, which typically relied on multiple metrics, even when appraising a

publicly traded company. Indeed, it appears that the Post-Trial Ruling may be the first

decision to hold that the unaffected market price was the best evidence of fair value and

award that figure.

I do not dispute that the Post-Trial Ruling takes an approach that differs from prior

Court of Chancery precedent. As this decision already has noted, Delaware Supreme Court

decisions on appraisal that pre-dated Dell and DFC expressed skepticism about the

reliability of the market price as an indicator of fair value. In my view, Dell and DFC

changed things. I regarded the Delaware Supreme Court’s endorsement of the efficient

96 Reargument Mot. ¶ 7. 97 Id. ¶ 1.

31 capital markets hypothesis and its emphasis on market indicators over the subjective views

of knowledgeable insiders as altering the decisional landscape and authorizing greater

reliance on market value.

If one jettisons the notion that relying on the market price just isn’t done, then it is

hard to regard using the unaffected market price as ridiculous or absurd, at least for a

publicly traded firm that lacks a controlling stockholder and whose shares otherwise trade

in a market having attributes associated with the assumptions underlying the efficient

capital markets hypothesis. Reliance on market value is a technique that is “generally

considered acceptable in the financial community and otherwise admissible in court.”98

Prominent legal scholars have recommended this approach.99 As suggested by the sources

that the Delaware Supreme Court cited, finance scholars also endorse it.100

98 Weinberger, 457 A.2d at 712. 99 See Booth, supra, at 151 n.130 (“[M]arket price should ordinarily equal going concern value if the market is efficient.”); Control Premiums, supra, at 857-58 (“The basic conclusion of the Efficient Capital Markets Hypothesis (ECMH) is that market values of companies’ shares traded in competitive and open markets are unbiased estimates of the value of the equity of such firms.”); Implicit Minority Discount, supra, at 52 (“Take the case of a publicly traded company that has no controller. Efficient market theory states that the shares of this company trade at the pro rata value of the corporation as a going concern.”); id. at 60 (“As a matter of generally accepted financial theory . . . , share prices in liquid and informed markets do generally represent th[e] going concern value . . . .”); see also Rationalizing Appraisal, supra, at 1033-34 (questioning the use of market price for determining fair value where there is no public market price at all, the shares are illiquid or thinly traded, or there is a controlling stockholder, but observing that outside of these scenarios, “because financial markets are efficient, one can simply use the market price”). 100 See DFC, 172 A.3d at 367 n.104 (“[T]he [efficient market hypothesis] states that the market assessment of value is more accurate, on average, then that of any individual or appraiser.” (alterations in original) (internal quotation marks omitted) (quoting Cornell,

32 Once the unaffected market price is no longer regarded as a disfavored metric, then

it should not be problematic to rely on it exclusively. The Delaware Supreme Court has

made clear that a trial court can rely on a single valuation methodology. 101 While serving

on this court, Chief Justice Strine invoked a culinary metaphor to argue in favor of using

one valuation technique rather than several:

As a law-trained judge who has to come up with a valuation deploying the learning of the field of corporate finance, I choose to deploy one accepted method as well as I am able, given the record before me and my own abilities. Even if one were to conclude that there are multiple ways to come up with a discount rate, that does not mean that one should use them all at one time and then blend them together. Marc Vetri, Mario Batali, and Lidia Bastianich all make a mean marinara sauce. Is the best way to serve a good meal to your guest to cook up each chef’s recipe and then pour them into a single huge pot? Or is it to make the hard choice among the recipes and follow the chosen one as faithfully as a home cook can? This home cook will follow the one recipe approach and use the recipe endorsed by Brealey, Myers and Allen and the mainstream of corporate finance theory taught in our leading academic institutions . . . .102

supra, at 47)); id. at 370 (“For many purposes no formal theory of value is needed. We can take the market’s word for it.” (quoting Brealey et al., supra, at 13)); id. at 373 n.144 (“In an efficient market you can trust prices, for they impound all available information about the value of each security.” (internal quotation marks omitted) (quoting Brealey et al., supra, at 373)). 101 See M.G. Bancorporation, 737 A.2d at 525-26 (explaining that “in discharging its statutory mandate” to determine fair value, “the Court of Chancery has the discretion to select one of the parties’ valuation models as its general framework or to fashion its own” and that it is “entirely proper for the Court of Chancery to adopt any one expert’s model, methodology, and mathematical calculations, in toto, if that valuation is supported by credible evidence and withstands a critical judicial analysis on the record”). 102 In re Orchard Enters., Inc., 2012 WL 2923305, at *18 (Del. Ch. July 18, 2012), aff’d sub nom. Orchard Enters., Inc. v. Merlin P’rs LP, 2013 WL 1282001 (Del. Mar. 28, 2013) (TABLE).

33 In DFC, the Delaware Supreme Court similarly cautioned against using multiple valuation

techniques, admonishing that the Court of Chancery “may well feel tempted to turn its

valuation decisions into a more improvisational variation of the old Delaware Block

Method, but one in which the court takes every valuation method put in the record, gives

each equal weight, and then divides by the number of them.” 103 The high court mandated

that if the Court of Chancery relies on multiple valuation methods, it “must exercise its

considerable discretion while also explaining, with reference to the economic facts before

it and corporate finance principles, why it is according a certain weight to a certain indicator

of value.”104 The high court admonished that “[i]n some cases, it may be that a single

valuation metric is the most reliable evidence of fair value and that giving weight to another

factor will do nothing but distort that best estimate.”105

The Dell and DFC decisions observe that while the unaffected market price need

not equate to fundamental value, it nevertheless generates a measure of value that is more

likely to be accurate than other methodologies. “[T]he efficient market hypothesis long

endorsed by this Court . . . teaches that the price produced by an efficient market is

generally a more reliable assessment of fair value than the view of a single analyst . . . .”106

[C]orporate finance theory reflects a belief that if an asset—such as the value of a company as reflected in the trading value of its stock—can be subject to

103 DFC, 172 A.3d at 388. 104 Id. 105 Id. 106 Dell, 177 A.3d at 24.

34 close examination and bidding by many humans with an incentive to estimate its future cash flows value, the resulting collective judgment as to value is likely to be highly informative and that, all estimators having equal access to information, the likelihood of outguessing the market over time and building a portfolio of stocks beating it is slight.107

A single valuator, such as a trial judge conducting an appraisal, “should have little

confidence she can be the special one able to outwit the larger universe of equally avid

capitalists with an incentive to reap rewards by buying the asset if it is too cheaply

priced.”108 And even a “market that is not perfectly efficient may still value securities more

accurately than appraisers who are forced to work with limited information and whose

judgments by nature reflect their own views and biases.”109 Like democracy, the unaffected

market price may be imperfect, but absent proof undermining its premises, it often will be

better than the other metrics that have been tried.110

I therefore cannot agree that using the unaffected market price as the most reliable

indicator of fair value is so ridiculous or absurd as to mean that I misapprehended the law.

I do not claim to have privileged insight into the high court’s intent, and I may well have

misunderstood the import of Dell and DFC, but that is a matter for appeal, not for a motion

for reargument.

107 DFC, 172 A.3d at 370. 108 Id. at 367. 109 Dell, 177 A.3d at 24 n.113 (quoting Cornell, supra, at 46). 110 Cf. Winston Churchill, Churchill By Himself 574 (Richard Langworth ed., 2008)

35 3. An Outcome That No Litigant Proposed

A third reason that the petitioners regard the Post-Trial Ruling as necessarily

misapprehending Dell and DFC is because it resulted in a fair value conclusion “that no

litigant would even ask for.”111 The assertion that no litigant would ask for an award equal

to the unaffected trading price seems limited to the facts of this case. If respondents in

appraisal proceedings believe that the facts and the law can support an appraisal award

equal to the unaffected trading price, they doubtless will ask for that outcome.

Limiting the assertion to the facts of this case, the respondent actually did propose

that I rely on the unaffected market price.112 In every one of its briefs, the respondent argued

that Aruba’s unaffected trading price of $17.13 per share was informative of fair value. 113

Moreover, in its post-trial brief on the implications of Dell, the respondent advanced the

following proposition: “[I]n response to the Supreme Court’s recent guidance in Dell and

[DFC], Aruba now understands that its pre-transaction market price is indeed the single

most important mark of its fair value.”114 Consequently, the respondent asserted that “the

Court should find fair value to be Aruba’s 30-day unaffected market price of $17.13.”115

111 Reargument Mot. ¶ 1. 112 Dkt. 192 ¶ 3. 113 See supra notes 40-43. 114 Dkt. 188 at 1. 115 Id. at 14.

36 But the picture is more complicated, because what actually happened is that the

respondent’s valuation position evolved over the course of the case. As the Post-Trial

Ruling explained,

During discovery and at trial, both sides focused on their experts’ discounted cash flow valuations. As the number of opinions that focused on the deal price mounted, the respondent placed greater emphasis on that metric, and the petitioners responded by attacking the process that led to the deal. After DFC, the respondent stressed a combination of the unaffected market price and the deal price. After Dell, the respondent redoubled its emphasis on the combination of the unaffected market price and the deal price.116

During post-trial argument, before the parties provided their supplemental submissions on

Dell, the petitioners chastised the respondent for presenting a moving target in its valuation

assertions.117 In response, the respondent cited various valuation indications, including the

unaffected market price, but counsel ultimately asserted that they were relying on their

expert’s updated valuation opinion of $19.75 per share as their valuation contention.118

Taking this history into account, I thought it reasonable when making my fair value

determination to regard the respondent as bound by their contention that the minimum fair

value for Aruba was $19.75 per share. Given this fact, I debated whether I should award

116 Post-Trial Ruling, 2018 WL 922139, at *24. 117 Dkt. 178 at 4 (petitioners’ counsel: “Respondent didn’t prove anything other than its ability to constantly change its valuation model to accommodate adverse litigation developments.”); id. at 36 (describing expert’s change in his valuation opinion as “a litigation-driven decision” and “advocacy”); id. at 64-67 (tracing changes in respondent’s valuation contentions). 118 Id. at 118 (“[W]e’re standing behind our expert. And he says Aruba is worth [$]19.75 . . . .”).

37 what I believed represented the most reliable estimate of fair value, or whether,

notwithstanding my belief, I should award $19.75 on the theory that the respondent should

be estopped from benefitting from a valuation lower than what it had endorsed.

I ultimately found persuasive the authorities which require this court to make its

own, independent valuation determination.119 I also was concerned, as a matter of policy,

that to hold that a court would not go outside the range of fair value established by the

parties might further incentivize parties to adopt extreme valuation positions as a means of

demarcating the widest possible field in which the court could exercise its discretion.

On different facts, holding a party to its valuation contention might be warranted.

For present purposes, however, because I considered the issue when issuing the Post-Trial

Ruling, it does not result in a misapprehension of fact or law that would support a motion

119 See 8 Del. C. § 262(h) (“[T]he Court shall determine the fair value of the shares . . . .”); Del. Open MRI Radiology Assocs., P.A. v. Kessler, 898 A.2d 290, 310-11 (Del. Ch. 2006) (Strine, V.C.) (“I cannot shirk my duty to arrive at my own independent determination of value . . . .”); Cooper v. Pabst Brewing Co., 1993 WL 208763, at *8 (Del. Ch. June 8, 1993) (“When . . . none of the parties establishes a value that is persuasive, the Court must make a determination based upon its own analysis.”). See generally Jesse A. Finkelstein & John D. Hendershot, Appraisal Rights in Mergers and Consolidations, 38- 5th C.P.S. § VI(K), at A-90 (BNA) (“If both parties fail to meet the preponderance standard on the ultimate question of fair value, the Court is required under the statute to make its own determination.”).

38 C. Objections To My Good Faith In Rendering The Post-Trial Ruling

The petitioners’ final two arguments question my good faith in issuing the Post-

Trial Ruling. The short answer is that notwithstanding the petitioners’ suspicions, I

honestly did the best I could.

1. An Act Of Political Theater

The petitioners initially argue that I issued the Post-Trial Ruling as an act of political

theater designed to show the Delaware Supreme Court the error of its ways. They

sympathize that the Post-Trial Ruling must reflect my “frustration with many of the

Supreme Court’s pronouncements,”120 only to posit that this frustration led me to pen a

decision designed to show “the absurdity of the literal application of certain

pronouncements made by the Supreme Court in Dell and DFC to appraisal actions.”121

They conclude that I must be engaging in a “battle of legal titans” with the Delaware

Supreme Court and that the emotional fervor of intellectual combat led me to impose an

unjust ruling.122 The motion strives to remind me that the petitioners are not characters in

an academic hypothetical but “real” litigants with “real dollars at stake” who should not be

turned into “collateral damage.”123

120 Reargument Mot. ¶ 1. 121 Id. 122 Id. ¶ 9. 123 Id.

39 Technically, this argument neither contends that I “overlooked a decision or

principle of law that would have controlling effect,” nor that I “misapprehended the law or

the facts so that the outcome of the decision would be affected.”124 At one level, it contends

that I apprehended the language of Dell and DFC too well and took it too seriously. Read

fairly, however, it contends that I did not carry out the judicial task of rendering a decision

based on the applicable law and the facts of the case, but rather sacrificed the petitioners’

interests because of intellectual vanity. If this were true, it would seem to me to provide a

legitimate basis for reargument. Indeed, in my view it would provide grounds for vacating

the decision and asking the Chancellor to reassign the case to a colleague who could carry

out the responsibilities of a judicial officer. Those responsibilities include that a judge

“perform the duties of the office impartially and diligently”125 and be “unswayed by

partisan interests, public clamor, or fear of criticism.”126 If the petitioners were correct,

then I permitted partisan intellectual interests to affect my impartiality and sway the

outcome.

Recognizing that the human mind does not offer an Archimedean perch for self-

assessment, I nevertheless have sought to take seriously the petitioners’ assertion that I did

not try in good faith to follow Dell and DFC. Rather than rejecting the petitioners’ rather

124 Miles, Inc., 677 A.2d at 506 (quoting Stein, 1985 WL 21136, at *2). 125 Del. Judges’ Code Judicial Conduct Canon 2, Rule 2.5(A). 126 Id., Rule 2.4(A).

40 extraordinary position at face value, I have carefully re-read DFC, Dell, and other appraisal

authorities, and I have re-read the Post Trial Ruling with the petitioner’s concern squarely

in mind.

After undertaking this process, I do not believe that that petitioner’s contention is

accurate. I personally do not believe that I issued the Post-Trial Ruling out of frustration.

To the contrary, I personally believe that I engaged in a lengthy, laborious (in both senses),

and reasoned effort to implement Delaware Supreme Court precedent.

For starters, I am lot a legal titan. I am a state court trial judge. I personally do not

think that the role of a trial judge accommodates active resistance to Delaware Supreme

Court pronouncements. I rather view the job as calling for adherence to Delaware Supreme

Court precedent. While I think it is fair game for a trial judge to suggest potential changes

in the law,127 I do not believe that a trial judge has the flexibility to disregard the Delaware

Supreme Court’s holdings, nor do I think that a trial judge should look for clever ways to

evade their implications. When a new precedent arrives, I view my job as requiring that I

update my understanding of Delaware law to incorporate the new precedent.

127 I took this approach when ruling on whether certain petitioners in the Dell matter, were entitled to seek appraisal. Although I argued for a different rule, I applied the governing Delaware Supreme Court precedent. Compare In re Appraisal of Dell Inc., 2015 WL 4313206, at *9-10 (Del. Ch. July 13, 2015) (applying existing Delaware law), with id. at *11 (arguing for “another possible interpretation of the Record Holder Requirement”).

41 That is what I tried to do in this case. As this decision already has discussed at

length, I made this effort when evaluating the persuasiveness of the unaffected market

I made a similar effort when evaluating the persuasiveness of the deal price. As

discussed in the Post-Trial Ruling, the petitioners in this case proved that the sale process

had flaws,128 so it was critical for me to attempt to understand whether the deal price could

be regarded as a reliable valuation indicator under the framework envisioned by Dell and

DFC. From a conceptual standpoint, I imagined four hypothetical bands of deal-price

reliability, ranging from the most reliable to least reliable:

 Band 1: A sale process is so well-constructed and well-executed that a trial court would err by not giving the deal price heavy, if not dispositive, weight.

 Band 2: A sale process is sufficiently good that the trial court would err by not treating the deal price as a reliable valuation indicator, but the trial court would not commit error by failing to give the deal price heavy, if not dispositive, weight.

 Band 3: The sale process is sufficiently flawed that the trial court could determine without erring that the deal price was not a reliable valuation indicator.

 Band 4: The sale process is so flawed that the trial court would err by treating the deal price as a reliable valuation indicator.

Although I have described these bands as separate domains, the lines between them

necessarily will be fact-specific and fuzzy.

In this case, the petitioners argued that the sale process fell squarely into Band 4 or,

at worst, in the lower range of Band 3. The respondent argued that the sale process fell

128 See Post-Trial Ruling, 2018 WL 922139, at *36-44.

42 within Band 1 or, at worst, within Band 2. As I read Dell and DFC, those decisions placed

the deal prices in those cases in Band 1. At the trial level in DFC, Chancellor Bouchard

found that the sale process was sufficiently reliable to warrant consideration as a valuation

indicator, and he gave it one-third weight. The Delaware Supreme Court reversed, holding

that “under the conditions found by the Court of Chancery, economic principles suggest

that the best evidence of fair value was the deal price.”129 Likewise in Dell, I found that the

sale process was sufficiently reliable to exclude outlier valuations like the twice-the-deal-

price figure that the petitioners advanced, and I relied on it to that extent. But I found that

the sale process was not sufficiently reliable to rule out a smaller valuation discrepancy.

The Delaware Supreme Court reversed, concluding that “the deal price deserved heavy, if

not dispositive, weight.”130

Because the holdings in Dell and DFC addressed when a deal price fell within Band

1, they logically did not have implications for when a sale process would be so flawed as

to require placing the deal price in Band 4, nor for demarcating the boundary between

Bands 4 and 3, or between Bands 3 and 2. Technically, the holdings did not even clearly

delineate the border between Bands 2 and 1. The Delaware Supreme Court placed both

deal prices into Band 1, but the high court might have believed the sale processes were so

129 DFC, 172 A.3d at 349. 130 Dell, 177 A.3d at 23.

43 good that they fell into an upper register of Band 1, without excluding the possibility that

a not-as-good sale process still could generate a deal price warranting Band 1 treatment.

After I issued the Post-Trial Ruling, Vice Chancellor Glasscock issued his decision

in AOL.131 He derived sale process characteristics from Dell and declined to give any

weight to a sale process that he found was not “Dell Compliant.”132 This outcome suggests

to me that he viewed whether a transaction is “Dell Compliant” as demarcating the point

within Band 2 at which a trial judge could opt to disregard the deal price.

I obviously did not have the benefit of AOL when reasoning through these issues,

but I considered similar questions. After pondering Dell and DFC, those decisions seemed

to me to imply that a deal price fell above the point of disregard and should be considered

as a valuation indicator if the transaction did not involve a controlling stockholder and was

otherwise at arm’s length. This is a lower standard than the “Dell Compliant” concept.

I derived my lower test from a confluence of factors, including the following:

 In both Dell and DFC, the Delaware Supreme Court linked the purpose of an appraisal to whether the transaction involved a third-party buyer.

o “[T]he purpose of an appraisal . . . is to make sure that [the petitioners] receive fair compensation for their shares in the sense that it reflects what they deserve to receive based on what would fairly be given to them in an arm’s-length transaction.”133

131 See In re Appraisal of AOL, Inc., 2018 WL 1037450 (Del. Ch. Feb. 23, 2018). 132 Id. *1-2. Technically, he did give the deal price some weight in that he used it as a cross-check, see id. at *21, but he did not use it as an input when deriving fair value. 133 DFC, 172 A.3d at 370–71.

44 o Fair value for purposes of appraisal “means a price that is one that a reasonable seller, under all of the circumstances, would regard as within a range of fair value; one that such a seller could reasonably accept.”134

o “[T]he key inquiry [in an appraisal] is whether the dissenters got fair value and were not exploited.”135

 In both cases, the Delaware Supreme Court seemed to discount the importance of considering whether a different or more open sale process might have generated a higher value.

o “[T]he purpose of an appraisal is not to make sure that the petitioners get the highest conceivable value that might have been procured had every domino fallen out of the company’s way . . . .”136

o “[F]air value is just that, ‘fair.’ It does not mean the highest possible price that a company might have sold for had Warren Buffett negotiated for it on his best day and the Lenape who sold Manhattan on their worst.”137

o “To be sure, ‘fair value’ does not equal ‘best value.’”138

o “The issue in an appraisal is not whether a negotiator has extracted the highest possible bid.”139

 The Delaware Supreme Court placed the Dell transaction in Band 4 even though the transaction was a management buy-out in which Michael Dell, the eponymous founder, CEO, and largest blockholder, was a net buyer of shares.

 In Dell, the Delaware Supreme Court rejected as a matter of law the possibility that a sale process involving homogenous bidders operating within the confines of a

134 Id. at 370 (quoting Cinerama, Inc. v. Technicolor, Inc., 663 A.2d 1134, 1143 (Del. Ch. 1994), aff’d, 663 A.2d 1156 (Del. 1995)). 135 Dell, 177 A.3d at 33. 136 DFC, 172 A.3d at 370-71. 137 Id. at 370. 138 Dell, 177 A.3d at 23. 139 Id. at 33.

45 leveraged buy-out model could fall short of the valuation that would be placed on the entity by a diversified group of public owners.

Based on these factors, I concluded that although the sale process in Aruba had flaws, the

deal price warranted consideration as a reliable valuation indicator.140

My assessment of the Aruba sale process in light of Dell and DFC meant that I had

two reliable indications of value: the unaffected market price and the deal price. At that

point, I had to determine how to weigh, choose between, or otherwise evaluate the two

indications. I have already described the thought process that led me to select the unaffected

market price as the most reliable indicator of fair value.

I thus submit that the Post-Trial Ruling resulted from my efforts to reason through

the Dell and DFC decisions and apply them to the facts presented. That said, I cannot fault

the petitioners for inferring some frustration on my part. Most notably, at one point in the

Post-Trial Ruling, I included a footnote detailing the record evidence that I relied on when

rendering my factual finding in Dell about the existence of a valuation gap.141 Having re-

read this language in light of the Reargument Motion, I understand how it could sound

petulant.

I did not include that footnote gratuitously. Rather, I included it to emphasize why

what I regarded as the far less extensive and persuasive evidence presented in this case

would not be sufficient to support a factual finding in the petitioners’ favor. In the face of

140 For example, 141 Post-Trial Ruling, 2018 WL 822139, at *31 n.307.

46 more extensive evidence in Dell, the Delaware Supreme Court had concluded that “[t]he

record before us provides no rational, factual basis for such a ‘valuation gap’” 142 and that

“[t]here is also no evidence in the record that investors were ‘myopic’ or shortsighted.”143

As I noted in the Post-Trial Ruling, these holdings by the high court demonstrated that the

justices regarded the comparatively more extensive showing in Dell as “the equivalent of

no evidence at all.”144

The Delaware Supreme Court reversed or criticized many other aspects of my trial

level rulings in Dell. I did not use the Post-Trial Ruling as a platform for engaging in debate

on any of those points. The footnote regarding the evidentiary basis for my finding in Dell

was relevant to and supported my decision not to rely on weaker evidence in the Post-Trial

Ruling. Nevertheless, given how it evidently came across, I should have phrased that

footnote differently. If the Reargument Motion is a guide, the footnote missed its intended

mark and detracted from the reasoning in the Post-Trial Ruling. That is a helpful lesson,

but I do not believe that the misimpression I inadvertently created warrants granting

reargument.

2. Judicial Oath Breaking

The petitioners also argue that I could not have issued the Post-Trial Ruling in good

faith without violating my oath as a judge. They assert that even if I believed in good faith

142 Dell, 177 A.3d at 25. 143 Id. at 26. 144 Post-Trial Ruling, 2018 WL 822139, at *31.

47 that I was properly applying the teachings of Dell and DFC and that those decisions

authorized a trial court to rely exclusively on the unaffected market price, I still should not

have accepted that outcome because of my “oath to Delaware to uphold the Delaware

Constitution, which creates three branches of government, including the legislature.”145

The petitioners claim that the Post-Trial Ruling somehow violated that oath because using

the unaffected market price as an indicator of fair value would mean, as a practical matter,

“that there can never be an appraisal for a public company receiving a premium offer,

regardless of the size of that premium”146 and would “eliminate[] the statutory right to

appraisal provided by the General Assembly in the context of a publicly traded

company.”147

I do not agree that my reading of Dell and DFC means “that there can never be an

appraisal for a public company receiving a premium offer, regardless of the size of that

premium.”148 The common law develops incrementally, case by case. As the Post-Trial

Ruling noted, “[p]erhaps future appraisal litigants will retain experts on market efficiency,

as is common in federal securities actions, and maybe future appraisal decisions will

consider subtler aspects of the efficient capital markets hypothesis.”149 Depending on the

145 Reargument Mot. ¶ 9. 146 Id. 147 Id. 148 Id. 149 Post-Trial Ruling, 2018 WL 922139, at *24 n.257.

48 facts and the persuasiveness of the experts, future petitioners might demonstrate that the

trading price is not a reliable indicator of value. Or perhaps future petitioners will

demonstrate the existence of information that was unknown to the market and argue for a

specific valuation impact. Doubtless other possibilities are possible.

Equally important, it does not violate the Delaware Constitution for the Delaware

Supreme Court to interpret the appraisal statute, even if it refines the litigation target zone

for petitioners in appraisal proceedings. “In our constitutional system, this Court’s role is

to interpret the statutory language that the General Assembly actually adopts, even if

unclear and explain what we ascertain to be the legislative intent without rewriting the

statute to fit a particular policy position.”150 “[T]he Constitution invests the Judiciary, not

the Legislature, with the final power to construe the law.”151 The interpretation of statutory

text is “one of the Judiciary’s characteristic roles.”152 The Delaware courts play a

particularly significant role in the corporate arena,153 where historically the judiciary, rather

150 Taylor v. Diamond State Port Corp., 14 A.3d 536, 542 (Del. 2011). 151 Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 325 (1992). 152 Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986). 153 See Jill E. Fisch, The Peculiar Role of the Delaware Courts in the Competition for Corporate Charters, 68 U. Cin. L. Rev. 1061, 1074 (2000) (“Delaware corporate law relies on judicial lawmaking to a greater extent than other states.”); Lawrence Hamermesh, How We Make Law in Delaware, and What to Expect from Us in the Future, 2 J. Bus. & Tech. L. 409, 409 (2007) [hereinafter How We Make Law] (“The best-known of the principal policymakers in Delaware are the members of the judiciary.”); Marcel Kahan & Edward Rock, Symbiotic Federalism and the Structure of Corporate Law, 58 Vand. L. Rev. 1573, 1591 (2005) (“The most noteworthy trait of Delaware’s corporate law is the extent

49 than the General Assembly, has taken the lead.154

For nearly seventy years, the Delaware Supreme Court has spoken authoritatively

on the standard for value under the appraisal statute and the weight to be given various

types of evidence within that valuation framework. The Delaware Supreme Court first

addressed the governing standard of value in Battye,155 then again in Weinberger,156 and

subsequently in decisions like Cavalier Oil,157 Rapid-American,158 and Technicolor II.159

The high court has now continued its interpretive role in Dell and DFC.

to which important and controversial legal rules are promulgated by the judiciary, rather than enacted by the legislature.”). 154 See, e.g., How We Make Law, supra, at 414 (“[W]e view the courts as the first line of defense, the first responders in dealing with complex situations. When drafting legislation, we abstain from addressing complicated matters that are hard to figure out, allowing them to develop through the common law.”); Omari Scott Simmons, Branding the Small Wonder: Delaware’s Dominance and the Market for Corporate Law, 42 U. Rich. L. Rev. 1129, 1159 (2008) (“As a result of the legislature’s preference against regulatory prescription and its deference to the judicial branch, Delaware courts are often the first responders to corporate law controversies.”); see also Lawrence A. Hamermesh & Norman M. Monhait, A Delaware Response to Delaware’s Choice, 39 Del. J. Corp. L. 71, 75 (2014) (agreeing that the Corporation Law Council and the General Assembly “have often subscribed to . . . ‘a wait-and-see approach,’ proposing and enacting, respectively, amendments to the DGCL only when there are persuasive reasons to do so” and endorsing a continuing policy of “reticence to initiate legislative action” (footnote omitted)). 155 Tri-Continental Corp. v. Battye, 74 A.2d 71, 72 (Del. 1950). 156 Weinberger, 457 A.2d at 711-13. 157 Cavalier Oil Corp. v. Hartnett, 564 A.2d 1137, 1144-45 (Del. 1989). 158 603 A.2d at 805. 159 684 A.2d at 296-97.

50 A trial judge’s oath is not a license to disregard the Delaware Supreme Court’s

rulings. DFC and Dell reflect authoritative statements of appraisal law. For purposes of the

separation of powers, if the high court has moved in a direction contrary to the General

Assembly’s liking, the General Assembly can amend the appraisal statute. The dynamic

interplay among the constitutional branches of government fulfills, rather than contravenes,

the constitutional scheme.

II. CONCLUSION

The Reargument Motion is denied. The parties shall cooperate in preparing a final

order that will bring this case to conclusion at the trial court level.