“Appraisal after Dell” by Professor Guhan Subramanian has been published in the book “The Corporate Contract in Changing Times: Is the Law Keeping up?” While the book covers a number of topics in recent corporate law, including challenges to Delaware primacy, activism, and disclosure-only settlements with respect to mergers, it also covers the oft-changing world of appraisal via Professor Subramanian’s article. In “Appraisal after Dell” the Professor argues that Dell and other recent cases have swung the appraisal “pendulum” towards deal price. Of perhaps more interest to practitioners and investors are the implications the Professor sees from Dell and recent cases: the creation of a “tactical choice” for sell-side boards to either have a “good” (i.e., Dell compliant) deal process, or the added risk of post-closing appraisal challenges – with the dissemination of Dell-compliant deal processes a slow process unless appraisal remains a meaningful remedy. The Professor also examines the implications of the “who decides” aspect of the Dell decision – arguing that Chancery Court judges will seek to appeal-proof their decisions by finding possibly false clarity in otherwise shades-of-grey deal processes. We note that the Professor was the expert for Dell in their appraisal case and has written on this topic before.
The article (and book more generally) set out a useful recounting of the potential questions remaining post-Dell. But with the caselaw changing as fast as it is, no doubt yet additional academic commentary will be needed in the future.