Developments in corporate law center on two topics these days—shareholder voting and merger litigation. One of the more surprising of the many twists and turns in the latter area is the appearance of appraisal arbitrage. The arbitrage characterization applies because the petitioner under section 262 of the Delaware corporate code takes advantage of the section’s standing rule to buy the transferor’s stock after the record date for the vote on the merger, based on a financial analysis that signals a good chance to prove a valuation in excess of the merger price. A number of special-purpose hedge funds have cropped up as players—Merion Capital, now a frequent appraisal plaintiff, raised $1 billion for a fund dedicated to appraisal claims in 2013. The volume of petitions has spiked up.
Volume has increased substantially despite the fact that appraisal is supposed to be brutally unfriendly to plaintiffs, partly because class actions are prohibited and partly because the plaintiff bears the burden to prove every dollar of damages through a ground up valuation of the company. The surge casts a negative light on the permissive the standing rule, which, in contrast to the blocks erected in representative litigation, facilitates buy-ins. The surge in filings also bids reconsideration of the open-ended approach to valuation techniques followed in the Delaware courts. Finally, it calls into question the fed funds plus 5% interest rate applied to appraisal recoveries under section 262. It is alleged that at a time when interest rates have fallen to little more than zero, a petitioner with a substantial stake can turn a profit on a return of the merger price alone, given an assured 5% yield during the litigation period. Critics are pressuring Delaware to amend the statute to turn back the plaintiffs.
In Appraisal Arbitrage and the Future of Public Company M&A, Myers and Korsmo turn back the critics.
This is a model law review article. It succinctly lays out the framework, and then reports on what has been going on lately, reporting an empirical study of Delaware appraisal litigation over the past ten years. The authors produce a series of crisp, telling descriptive statistics. (There is also a regression but it does not really add anything.) They persuade the reader that the appraisal surge, while certainly dependent on the loose standing rule as a door-opener, is not a function of hold up tactics and does not depend on the 5% interest add-on. The petitioners are selective and target low-premium mergers. Appraisal rights thus are being deployed in accordance with their purpose. Indeed, the authors suggest that Delaware expand section 262 to make appraisal available whatever the form of merger consideration.
This is one of those rare cases where there arises a strong inference that an article influenced the development of the law. Everyone in Delaware with whom I have raised the appraisal arbitrage question makes reference to Myers and Korsmo. The Council of the Corporation Law Section of the Delaware Bar Association cited the article when it took the matter up earlier this year. Significantly, the Council left the standing door open and proposed only a tweak of the statute, suggesting (1) a de minimis dismissal opening for petitions including 1% or less of the shares outstanding or involving a merger consideration of $1 million or less, and (2) an interest cutoff option in the company keyed to a payment of all or part of the merger consideration. As it happened, the legislature left the Committee’s suggestions on the table.
Delaware’s adjustment for appraisal arbitrage instead shows up in the caselaw. Vice-Chancellor Sam Glasscock recently has been using the merger price to trump the petitioner’s showing, reasoning that a well-conducted sale process lends confidence in the dollar result. See, e.g., Huff Fund Investment Partnership v. CKx, Inc., 2013 WL 5878807 (Del. Ch.), affirmed 2015 WL 631586 (Del.). Process concerns have been known to spill over into appraisal cases before, but never to this extent. Even so, the process move makes sense in the present context. Myers and Korsmo pick up on it, mooting a section 262 safe harbor constructed on Revlon principles. This is an intriguing suggestion, but then safe harbors are not the style in Delaware corporate jurisprudence.