Merion Capital LP v. BMC Software, Inc. and In re Appraisal of Ancestry.com, Inc.: Court of Chancery Rejects Challenges to Standing of Appraisal Arbitrageurs to Petition for Appraisal
February 17, 2015
In two opinions issued the same day, the Delaware Court of Chancery addressed standing requirements under Delaware’s appraisal statute, Section 262 of the General Corporation Law of the State of Delaware. In both Merion Capital LP v. BMC Software, Inc., 2015 WL 67586 (Del. Ch. Jan. 5, 2015), and In re Appraisal of Ancestry.com, Inc., 2015 WL 66825 (Del. Ch. Jan. 5, 2015), the Court found that a 2007 amendment to the appraisal statute did not impose a “share-tracing” requirement on an appraisal petitioner’s right to demand appraisal of shares acquired after the record date for determining the stockholders entitled to vote on a merger. In so doing, the Court rejected a potential obstacle to so-called “appraisal arbitrageurs” that seek to use Delaware’s appraisal process to capitalize on potentially undervalued transactions by purchasing shares of the target company’s stock after announcement of a merger.
In BMC Software, petitioner Merion Capital LP (“Merion”) sought appraisal for 7.6 million shares of common stock of BMC Software, Inc. (“BMC”) that were purchased after the record date for a going-private merger. Merion, the beneficial owner of the shares, requested its broker to direct the nominee record holder of its shares to demand appraisal with respect to the purchased shares on Merion’s behalf, but the broker refused. Merion then transferred record ownership of the shares into its own name and delivered a formal demand for appraisal to the company. BMC argued that, in order to have standing to pursue its appraisal claims, Merion had the burden of showing that each share it acquired after the record date had not been voted in favor of the merger by the previous holders. The Court rejected this contention and held instead that the unambiguous language of the appraisal statute required Merion to show only that the record holder of the shares that made the demand (in this case, Merion itself) had not voted the shares in favor of the merger.
In Ancestry.com, Merion sought appraisal for 1,255,000 shares of common stock of Ancestry.com, Inc. (“Ancestry”) purchased after the record date for a cash-out merger. Unlike in BMC Software, Merion never transferred its shares into record name, but instead directed Cede & Co., the nominee record holder of the shares, to demand appraisal on Merion’s behalf. As permitted by a 2007 amendment to the appraisal statute, Merion, in its capacity as the beneficial owner of the shares, filed a petition for appraisal in the Court of Chancery. Ancestry.com argued that since Merion, as the beneficial owner of the shares, filed the petition for appraisal, Merion was required to show that it (rather than the record holder, Cede & Co.) did not vote the shares in favor of the merger. Moreover, Ancestry.com argued that because Merion acquired beneficial ownership of its shares after the record date, Merion was also required to show that its predecessor beneficial owners did not vote in favor of the merger. The Court rejected this argument as well, holding that an appraisal petitioner is only required to show that the record holder held of record at least as many shares not voted in favor of the merger as the number for which appraisal demands were submitted.
In both BMC Software and Ancestry.com, the Court identified, but declined to address, the potential for a theoretical “over-appraisal” scenario, in which a record holder (such as Cede & Co.) would hold shares as nominee for many beneficial owners, would follow those beneficial owners’ voting instructions, and would end up owning of record fewer shares not voted in favor of the merger than the number of shares as to which the record holder demanded appraisal. The Court noted that such a theoretical problem at most threatened the policy goals of the appraisal statute, but did not render the statute absurd or inoperable.