Pursuing or Defending an Appraisal Claim: A Practical Guide

Document type: Guide Practice area: Corporate — Mergers and Acquisitions Jurisdiction: Delaware (Court of Chancery), with notes on other states Last reviewed: 5 September 2026

Before you start: is this actually an appraisal case?

Three questions decide whether appraisal is the right vehicle, and they should be answered before any demand goes out.

1. Are appraisal rights available at all? Delaware's market-out exception removes appraisal from listed shares and shares held by more than 2,000 record holders — but restores it whenever the consideration includes anything other than stock of the surviving corporation, listed stock, or cash for fractional shares. Translation: cash deals for public companies carry appraisal rights; all-stock deals in listed shares usually do not. Mixed consideration requires a careful read of the specific structure, and the answer can turn on whether the acquirer's stock will be listed at closing rather than at signing.

For private companies, the market-out never applies, so appraisal is available in essentially every merger — which is why private-company appraisal cases, though less publicized, are a steady part of the docket.

2. Do the numbers clear the statutory floors? For listed shares, a petition cannot proceed unless the total shares seeking appraisal exceed 1% of the outstanding shares of the class, or the value of the merger consideration for the total shares exceeds $1 million. These are alternative tests, and the second one is often satisfied even by modest positions in a large deal. Do the arithmetic before spending money; a 0.4% position in a $60 million deal fails both.

3. Is the theory of value plausible? Appraisal is not a general fairness remedy. If the process was competitive and informed, the likely outcome is deal price less synergies — which in a strategic merger can be below the consideration you already turned down. Ask the hard question early: what specifically about this process makes the deal price unreliable evidence of value? Acceptable answers include the absence of any market check, a controller on both sides, a conflicted banker, projections created for the transaction, and management with an undisclosed stake in the buyer. Unacceptable answers include "the premium was low" and "we think the company is worth more."

Phase one: perfection

Perfection is a compliance exercise, not a legal argument. Treat it like a closing checklist.

Step 1 — Identify the record holder and get control of the chain

Most shares are held in street name. The record holder is Cede & Co., DTC's nominee; your client's broker holds a position at DTC; your client holds a position at the broker. Appraisal demands must be made by the record holder or on its behalf.

The sequence is:

1. Client instructs its broker in writing to make an appraisal demand for a stated number of shares.
2. Broker instructs DTC.
3. DTC, through Cede, delivers the demand to the corporation.
4. DTC issues a "cede breakdown" confirming the demand.

Every step is a place to fail. Brokers process these rarely and inconsistently. Build in slack: start at least three weeks before the vote, confirm receipt at each hop in writing, and get the cede breakdown before the vote if possible.

Step 2 — Move shares out of the fungible bulk

DTC holds shares fungibly. To demand appraisal for a specific block, the shares generally must be segregated or the demand must be made in a way that identifies the specific position. Where a client is acquiring shares specifically to dissent, the acquisition and the segregation should be coordinated so that the demand covers shares actually held continuously through the effective date.

A specific trap: if the client trades in and out of the position between demand and closing, the "continuous holding" requirement can be broken even if the net position never went to zero, depending on how the custodian accounts for it. Freeze the position.

Step 3 — Deliver a conforming written demand before the vote

The demand must:

• Be in writing;
• Be delivered to the corporation before the taking of the vote on the merger;
• Reasonably inform the corporation of the identity of the holder and of the intention to demand appraisal;
• Come from the record holder or an authorized agent.

Deliver it to the address specified in the notice of appraisal rights, by a method that produces a receipt, and keep the receipt. Send a courtesy copy to the corporate secretary and to deal counsel.

Step 4 — Do not vote in favor

Abstain or vote against. A vote in favor forfeits appraisal for those shares. In practice the safest instruction is: do not return the proxy at all, and confirm with the custodian that no discretionary vote will be cast. Brokers occasionally vote uninstructed shares under routine-matter rules; a merger is not routine, but confirm rather than assume.

Step 5 — Hold through the effective date

Continuous ownership from the demand through the effective time is required. Set a calendar hold on the position and notify the trading desk in writing.

Step 6 — Watch the corporation's notice and the 120-day clock

Within ten days after the effective date, the surviving corporation must notify each holder who has complied that the merger has become effective. A petition must be filed in the Court of Chancery within 120 days of the effective date. That deadline is jurisdictional in practice and there is no relief from it.

Within the same 120-day window, any holder who has complied may make a written request for a statement of the aggregate number of shares not voted in favor for which appraisal demands were received, and the aggregate number of holders. The corporation must respond within ten days. Send this request. It tells you whether you clear the 1% threshold and whether other dissenters exist — information you need before deciding whether to file alone.

Phase two: the petition and early motions

Filing

The petition is short. It identifies the petitioner, the merger, the demand, the effective date, and asks the court to determine fair value. Multiple petitions are typically consolidated.

Verified list and service

The surviving corporation must file a verified list of holders who demanded appraisal and with whom agreements have not been reached. The court may direct service on those holders, and may require share certificates be submitted for notation.

The early motions worth bringing

For respondents:

• De minimis dismissal. If the shares seeking appraisal fall below 1% and the consideration value falls below $1 million, move to dismiss. Verify against the verified list, not the petition.
• Perfection challenges. Attack demands that were untimely, made by non-record holders, made for the wrong share count, or covered shares not continuously held. These motions are unglamorous and frequently successful. Request the cede breakdowns in early discovery.
• Dismissal of shares voted in favor. Where the record shows a portion of a petitioner's position was voted for the merger, those shares are out.

For petitioners:

• Motion to compel the § 262(e) statement if the corporation stonewalls.
• Early scheduling of the buyer's document production. The synergy files are the case; get them into the schedule immediately.

The prepayment decision

The surviving corporation may, at any time before entry of judgment, pay each petitioner a sum of money, and interest thereafter accrues only on the difference between the amount paid and the fair value ultimately determined, plus interest on the amount paid to the date of payment.

This is the respondent's most valuable procedural tool. Consider it whenever:

• The process was strong and deal price is likely to anchor the award;
• Interest rates are high, making the accruing statutory rate expensive; and
• The case is likely to run more than a year.

How much to prepay? Common approaches are the full merger consideration, or the merger consideration less an estimated synergy deduction. Paying the full consideration is cleaner, signals confidence, and caps the largest slice of interest exposure. Paying less invites a dispute about the adequacy of the prepayment that adds litigation without much benefit.

A caution for petitioners: accepting a prepayment does not settle the case or waive anything. Take the money.

Phase three: discovery

Appraisal discovery is unlike other corporate litigation because the merits are financial rather than behavioral. Aim at documents that establish value and process reliability.

From the target company

• All sets of management projections, with drafts, and the metadata showing who changed what and when. Ask specifically for projections prepared in the ordinary course for budgeting, lender reporting, and board planning in the two years before the transaction — these are the least contaminated forecasts in the file.
• Board and committee minutes and materials, including banker presentations and all versions of the fairness analysis.
• The banker's engagement letter and fee arrangements, plus records of the banker's other relationships with the buyer.
• Communications about the sale process: outreach lists, confidentiality agreements, indications of interest, and the reasons any party dropped out.
• Internal valuation work — impairment testing, purchase price allocations for prior acquisitions, option grant valuations (409A reports for private companies are gold), and any recent third-party appraisals.

From the buyer

This is where the case is usually won.

• Synergy analyses, in every form: board decks, integration plans, cost-savings models, revenue-synergy assumptions, and the sensitivity cases.
• The buyer's own valuation of the target, including the price it was prepared to pay and its walk-away number.
• Financing models submitted to lenders, which often contain the most honest projections in the case because they were prepared for people who lend money.
• Communications about the negotiation, which show how much of the synergy value the buyer expected to share.

Practical note: the buyer is frequently now the respondent's parent, which means the "third party" is aligned with the respondent. Expect resistance. Get the buyer's production into the scheduling order explicitly rather than relying on a general obligation.

Depositions

Prioritize:

1. The chief financial officer, on how projections were built and revised;
2. The lead banker, on the analyses and the process;
3. The special committee chair (in a conflicted deal), on negotiation and independence;
4. The buyer's corporate development lead, on synergies and valuation.

Keep the deposition list short. Appraisal is tried to a judge who will read the documents; marginal depositions rarely change outcomes and always cost money.

Phase four: experts

Choosing one

The court will hear two valuation experts and will find both partly unpersuasive. The winning expert is usually the one whose model is transparent, conventional, and internally consistent, not the one with the cleverest adjustment.

Look for:

• Experience testifying in Chancery specifically, because the court's expectations are idiosyncratic and well documented;
• Willingness to use the company's own ordinary-course projections rather than building new ones;
• Discipline about the terminal value, which typically drives most of the DCF answer; and
• An ability to explain a weighted average cost of capital calculation to a generalist without condescension.

The methodological menu

Discounted cash flow. Still the workhorse where the deal price is unreliable. The battlegrounds are always the same four inputs:

Comparable companies. Useful as a cross-check, weak as a primary method, because true comparables are rare and multiples embed differences in growth and risk the analysis cannot control for.

Comparable transactions. Weaker still in appraisal, because transaction multiples embed control premiums and synergies — the very things the statute excludes.

Deal price less synergies. The default in an arm's-length case. The expert work here is estimating total synergies and the share captured by the seller. Petitioners argue for a low synergy number and a low sharing rate; respondents argue for the opposite.

Unaffected market price. Admissible and sometimes useful, but not a safe primary anchor. It measures minority trading value, which may sit below pro rata enterprise value.

The report

Delaware judges read expert reports closely and cite them. Insist on:

• A clearly labeled base case with sensitivities;
• Every input sourced to a document in the record;
• Explicit treatment of the synergy deduction, even if the expert's primary method is a DCF; and
• No advocacy in the text. An expert who argues is discounted.

Phase five: trial and judgment

What the trial looks like

Appraisal trials are bench trials, typically three to six days, dominated by expert testimony. Fact witnesses appear mainly to establish how projections were made and how the process ran. There is no jury, no liability phase, and no damages theory — only a number.

How the court decides

The court weighs the evidence and determines fair value as of the effective date, exclusive of merger-arising value. It may adopt one expert's model, adopt a model with adjustments, adopt deal price less synergies, or blend methodologies — though blending has fallen out of favor after DFC.

A structural feature worth internalizing: the court is not choosing between the parties' positions. It can land anywhere, including below the merger consideration. Petitioners should model the downside honestly.

Interest

Interest accrues at 5% over the Federal Reserve discount rate, compounded quarterly, from the effective date to payment, unless the court in its discretion determines otherwise for good cause. Prepayments reduce the base.

Costs and fees

The court may assess costs against the parties as it deems equitable. Each side generally bears its own attorneys' fees; there is no fee shifting analogous to a common-fund recovery, because appraisal produces no fund for a class. Where multiple petitioners are consolidated, the court may order a proportional allocation of the petitioners' shared expert and litigation costs.

The case law you will actually argue

Four decisions do most of the work in a modern appraisal brief, and knowing what each one holds — as opposed to what it is cited for — separates competent briefing from noise.

Weinberger v. UOP, Inc., 457 A.2d 701 (Del. 1983) is cited for abolishing the Delaware block method and admitting modern finance. Its underused holding is the linkage between process and price: a price produced by a defective process is not merely unfair, it is unreliable as evidence. Petitioners should quote this when the respondent argues that a negotiated price is self-validating.

DFC Global Corp. v. Muirfield Value Partners, L.P., 172 A.3d 346 (Del. 2017) refused to adopt a presumption favoring deal price. Petitioners should lead with this refusal, because respondents routinely brief deal price as though it were presumptive. The correct framing is that deal price is entitled to the weight the record supports, and the record is about process quality.

Dell, Inc. v. Magnetar Global Event Driven Master Fund Ltd., 177 A.3d 1 (Del. 2017) rejected two arguments petitioners still make: that private equity pricing is inherently unreliable because LBO models target an internal rate of return, and that the absence of a strategic topping bid signals undervaluation. Know these are foreclosed; arguing them costs credibility.

Verition Partners Master Fund Ltd. v. Aruba Networks, Inc., 210 A.3d 128 (Del. 2019) is the respondent's warning label as much as the petitioner's. It reversed an award below the deal price, and it identified deal price less synergies as the natural methodology for a reliable arm's-length process. Respondents who over-read DFC and Dell into an unaffected-market-price argument are relitigating a reversal.

Two more are worth having at hand. Cede & Co. v. Technicolor, Inc., 684 A.2d 289 (Del. 1996) addresses valuation as of the effective date where a two-step transaction has already changed the company, an issue that recurs whenever a tender offer precedes a back-end merger. And Glassman v. Unocal Exploration Corp., 777 A.2d 242 (Del. 2001) confirms that where a parent effects a short-form merger, appraisal is the exclusive remedy — which means a dissenter facing a 90% parent should stop looking for a fiduciary theory and concentrate on valuation and disclosure.

Working the valuation inputs

Most appraisal trials are decided on four numbers. Prepare each one as its own mini-case.

Which projections

The single most consequential decision. Ask, in order:

1. Were there ordinary-course projections prepared for budgeting, board planning, or lender reporting before the transaction was contemplated? These are the strongest evidence because nobody made them to win an argument.
2. Were projections revised during the process, and why? Revisions are not automatically suspect — new information arrives — but the timing, the direction, and the identity of the person who directed the change all matter. A downward revision that coincides with a controller's proposal is a different fact from one that coincides with a lost customer.
3. Did management have a track record? A company that consistently beat or missed its own forecasts by a stable margin gives the court a calibration tool. Pull five years of budget-versus-actual.
4. Do the projections extend far enough? A DCF needs an explicit forecast period long enough to reach steady state. Where management projected three years and the expert extended to ten, the extension is the expert's own work and will be scrutinized as such.

The discount rate

Expect fights over the risk-free rate's maturity, the equity risk premium source (supply-side versus historical), beta (raw versus adjusted, peer group composition, measurement period), whether a size premium applies, and the target capital structure. The practical advice is to be conventional. A WACC built from standard published sources with documented peer selection beats a bespoke construction, even a better one, because the court can follow it.

Terminal value

Typically 60–80% of a DCF's answer. Two methods: perpetuity growth and exit multiple. Delaware prefers perpetuity growth for appraisal because exit multiples import market pricing that may embed control and synergy elements. The perpetuity growth rate has an effective floor around expected long-run inflation and a ceiling around long-run nominal economic growth; experts who stray outside that band need a reason.

A consistency trap: the terminal year's capital expenditure, depreciation, and working capital assumptions must be consistent with the assumed perpetual growth rate. A model that grows to infinity while capex stays below depreciation is describing a company that shrinks its asset base forever. Opposing experts find this; find it first.

The synergy deduction

Where deal price anchors, this is the whole case. Build the record from the buyer's documents:

• The total synergy estimate the buyer presented to its own board and lenders;
• The probability and timing the buyer applied, since unrealized future synergies are worth less than run-rate figures suggest;
• One-time costs to achieve, which reduce net synergy value; and
• The sharing rate, inferred from the buyer's walk-away price versus the price paid.

Respondents want a large gross synergy number and a high sharing rate. Petitioners want the opposite, and should press on execution risk, integration costs, and the difference between the buyer's aspirational deck and its financing model.

Appraisal outside Delaware

Roughly thirty states follow the Model Business Corporation Act's dissenters' rights chapter, and its architecture differs from Delaware's in ways that change strategy fundamentally.

The practical consequences are large. In an MBCA state, a dissenting minority holder in a closely held business receives money early, forces the corporation to bear the cost of initiating litigation, and holds a fee-shifting threat. That combination makes small-company appraisal viable in places where the Delaware model would make it uneconomic. Counsel advising a minority holder in a non-Delaware entity should read the actual statute before assuming the Delaware playbook applies, and counsel for the corporation should treat the statutory estimate as a serious strategic decision rather than a formality — an unreasonably low estimate is the classic trigger for fee shifting.

Note too that many states extend dissenters' rights to transactions Delaware does not cover, including certain sales of substantially all assets, some charter amendments that adversely affect a class, and conversions between entity forms.

Settlement: how these cases actually end

The large majority of appraisal petitions resolve before trial. Understanding the levers helps both sides.

What moves a petitioner toward settlement:

• A prepayment that removes interest accrual;
• Discovery showing the process was genuinely competitive;
• A synergy record that supports a large deduction;
• The realization that its own expert's model, honestly built, lands near the deal price;
• Cost. An appraisal trial with two experts runs into seven figures.

What moves a respondent toward settlement:

• Documents showing conflicted or manipulated projections;
• A weak or absent market check;
• Disclosure problems that would also support a fiduciary claim, creating tail risk;
• The prospect of the buyer's confidential synergy and pricing files becoming public exhibits;
• Accrued interest at a rate above its own cost of capital.

Typical settlement shapes are the merger consideration plus a negotiated interest component; the merger consideration plus a modest premium expressed as a percentage; or, in weak-process cases, a genuine premium negotiated off the parties' expert ranges. Settlements are private — there is no class, no fund, and no court approval requirement — which is itself an advantage for respondents worried about precedent.

One structural point. Because there is no class, a settlement with one petitioner does not bind another, and a respondent facing several dissenters may face several negotiations. Consolidation helps, but the petitioners retain independent claims. Respondents should decide early whether to settle the whole group at one number or to pick off the weakest perfections first.

A worked example: the two sides of one case

The deal. Halvorsen Instruments, a listed maker of laboratory equipment, is acquired for $41.00 per share in cash by a strategic buyer, Pemberton Scientific. The board ran a process: eleven parties contacted, four signed confidentiality agreements, two bid, and Pemberton raised twice from $37.25. There was a 30-day go-shop with a reduced break fee; no one topped.

Two dissenters emerge. Kestrel Ridge Partners holds 2.4% and files a petition. The Ostrowski family trust, holding 0.3%, wants to join.

Petitioner-side analysis

Kestrel's counsel, Nadia Berhane, runs the threshold math first: 2.4% clears 1%, so the petition proceeds regardless of the trust's position. She advises the trust to join anyway, since the aggregate is what matters and the incremental cost is small.

Then she asks the hard question: what makes $41.00 unreliable? The honest answer is: not much. Eleven contacts, a real auction, a go-shop, no controller, no management rollover. Under DFC and Dell, this is close to the paradigm of a reliable process.

She looks anyway, and finds one thread. Pemberton's financing model, produced in discovery, projects $52 million of annual run-rate cost synergies — far above the $31 million disclosed in the proxy. If Kestrel argues synergies were large, that helps the respondent (a bigger deduction). But the same documents show Pemberton's internal walk-away price was $46.50, meaning Pemberton captured most of the surplus. That fact does not increase fair value — the statute excludes synergies regardless of who captured them — but it does undercut the respondent's characterization of the negotiation.

Berhane's realistic assessment: the likely award is deal price less some synergy deduction, i.e., below $41.00. She advises Kestrel that the expected value of the case is negative unless the synergy deduction proves small, and that the interest accrual is the main source of positive expected value.

She recommends dismissal or an early walk-away settlement. This is the advice petitioners' counsel gives least often and should give most.

Respondent-side analysis

Pemberton's counsel, Devon Achebe, reaches the mirror-image conclusion and acts on it.

• He prepays $41.00 per share immediately, stopping interest on the entire merger consideration. Kestrel's positive expected value evaporates.
• He moves to dismiss the trust's shares on perfection grounds after the cede breakdowns show the trust's demand covered 4,000 shares while its position at the effective date was 3,600 — the difference having been lent out and not recalled. Four hundred shares is trivial in dollars, but the motion establishes rigor and signals that the perfection record will be tested.
• He resists broad synergy discovery into Pemberton's files by offering a stipulation: Pemberton will stipulate to a synergy figure at the high end of its own analyses. Since a larger synergy number reduces fair value under deal-price-less-synergies, the stipulation costs him nothing and moots most of the discovery.

That last move is the elegant one, and it illustrates the strategic asymmetry of modern appraisal: in an arm's-length case, the respondent wants the synergy number to be large, and the petitioner wants it small — the reverse of what intuition suggests.

Outcome. Kestrel accepts a settlement at $41.00 plus a modest interest component covering the period before prepayment. Total elapsed time: eight months.

How the same case looks if the process had been bad

Change one fact: assume Halvorsen's chief executive had a rollover arrangement with Pemberton negotiated before the price was set and disclosed only in a footnote, and that the two "bidders" were both contacted at the CEO's direction while nine others were not.

Now the process generates no reliable market evidence. The court will run a valuation. Kestrel's expert builds a DCF on the pre-transaction budget, which projected higher growth than the deal-time projections. The synergy deduction is irrelevant because deal price is not the anchor. The same $41.00 deal can produce a $47 award — or a $38 award, because valuation cuts both ways.

The private-company appraisal case

Public-company appraisal gets the attention, but private-company cases are more numerous, more varied, and more often winnable — and they follow different rules of thumb.

No market-out, no de minimis floor. The exceptions that shrink the public docket do not apply to unlisted shares held by fewer than 2,000 record holders. Every merger of a private Delaware corporation carries appraisal rights for every dissenting holder, however small.

Usually no market check at all. A family business sold to a sponsor, a founder-controlled company merged into a holding vehicle, a physician practice rolled into a platform — none of these run auctions in the sense DFC contemplated. The deal-price anchor is therefore weak or absent, and the DCF is back at the center of the case.

Projections are the problem. Private companies frequently have no formal forecast. What exists is a lender-facing budget, a tax-driven set of numbers, or nothing. Where projections must be constructed, the court is being asked to accept an expert's own forecast, and both sides should expect skepticism. Look hard for:

• 409A valuations, if the company granted options. These are third-party appraisals prepared for a different purpose, at intervals, and they establish a value history the parties cannot easily disown.
• Bank submissions. Covenant compliance certificates and borrowing base reports contain audited or reviewed figures.
• Prior transactions in the stock — repurchases from departing employees, estate transfers, prior rounds — which show what the company itself thought shares were worth.
• Buy-sell agreement formulas already in place, which may not bind the court but are powerful evidence of the parties' own valuation convention.

Minority and marketability discounts do not apply. This is the point private-company respondents most often get wrong. Fair value in appraisal is the petitioner's pro rata share of the going concern, not the price a willing buyer would pay for a minority block. A respondent's expert who applies a 25% discount for lack of control and another 20% for lack of marketability has produced a number the court will reject. Those discounts belong in fair market value analysis — estate tax, buy-sell formulas, gift valuation — not in statutory fair value.

Entity form changes the analysis entirely. Delaware LLCs and limited partnerships have no statutory appraisal right unless the operating or partnership agreement creates one. A minority member squeezed out of an LLC has whatever the agreement gives, plus whatever fiduciary duties the agreement did not waive. Read the agreement first. Many sponsor-drafted LLC agreements contain a drag-along with a contractual "fair value" determination and an expert-determination mechanism — which functions as a private appraisal regime with its own rules, its own decision-maker, and its own standard of review.

Practical sequencing for a private-company dissenter:

1. Send a books-and-records demand before the merger closes if there is time; the information is otherwise very hard to obtain, and the demand also builds the record on process.
2. Perfect the appraisal demand with the same rigor as a public deal — the record-holder mechanics are simpler, but the deadlines are identical.
3. Preserve every valuation artifact you already possess: prior offers, 409A reports, tax appraisals, the buy-sell formula.
4. Model the case honestly. Private-company appraisals can produce awards multiples of the merger consideration, but they can also produce awards below it, and the litigation costs are the same as in a public case against a company with far less ability to pay.

Practice notes and recurring errors

• The most common fatal error is a defective demand. It is not close. Build the perfection file as if it will be attacked, because it will be.
• The second most common error is filing without a theory of process failure. Appraisal is now a process-defect remedy dressed as a valuation remedy.
• Respondents should prepay reflexively in strong-process cases. The cost is the time value of money you owe anyway; the benefit is removing the petitioner's main economic incentive.
• Do not overlook private-company appraisal. No market-out, no de minimis threshold for unlisted shares, frequently no market check, and often no reliable projections. These cases are where DCF still reigns, and where minority holders in family businesses and sponsor-backed companies actually recover.
• Coordinate with any fiduciary case. Appraisal requires not voting yes and holding through closing; a disclosure claim may be better served by a pre-closing injunction posture. The same client generally cannot do both optimally.
• Check the other state's statute. Most states follow the Model Business Corporation Act's dissenters' rights provisions, which differ from Delaware in important ways — notably by requiring the corporation to pay its own estimate of fair value promptly and by shifting fees when the corporation's estimate is unreasonably low. Those regimes are meaningfully more petitioner-friendly than Delaware's, and practitioners who assume Delaware law applies everywhere give bad advice.

A twelve-month timeline

Appraisal cases run on a predictable rhythm. Use it for budgeting and for client expectations.

Two budgeting realities. First, expert costs typically exceed legal fees in a contested appraisal, and both sides need a valuation expert plus, sometimes, an industry expert. Second, the buyer's document production is the largest single driver of cost and delay, and it is usually the thing worth fighting for. A petitioner that trades away buyer discovery to save money has traded away the case.

Quick reference: fatal errors, ranked

1. Voting the shares in favor — including through an uninstructed broker vote.
2. A demand made by the beneficial owner rather than the record holder.
3. A demand for more shares than were continuously held through the effective date.
4. Missing the 120-day petition deadline.
5. Trading the position between demand and closing, breaking continuity.
6. Filing below the de minimis thresholds in a listed-share deal.
7. Assuming appraisal guarantees at least the merger consideration. It does not, and in a clean strategic auction it usually should not.
8. Applying minority or marketability discounts in a private-company case.
9. Failing to request the § 262(e) statement, and therefore not knowing whether the thresholds are met or who else has dissented.
10. Building the case on a fairness narrative instead of a valuation record.

Related documents

• Appraisal rights and controller going-private transactions: fair value, MFW, and the price that sticks
• Going-private transaction checklist
• Appraisal and going-private toolkit: special committee charters, fairness opinions, and valuation records
• Fiduciary duties in mergers and acquisitions: Revlon, MFW, appraisal, and the standard of review
• Buy-sell agreements and business valuation: triggers, formulas, and funding
• Books-and-records demands: Section 220, proper purpose, and the documents you actually get