In Re: Appraisal of Jarden Corporation
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IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE : IN RE: APPRAISAL OF : CONSOLIDATED JARDEN CORPORATION : C.A. No. 12456-VCS : MEMORANDUM OPINION Date Submitted: May 1, 2019 Date Decided: July 19, 2019 Stuart M. Grant, Esquire, Cynthia M. Calder, Esquire, Kimberly A. Evans, Esquire, Kelly L. Tucker, Esquire and Vivek Upadhya, Esquire of Grant & Eisenhofer P.A., Wilmington, Delaware, Attorneys for Petitioners. Srinivas M. Raju, Esquire, Brock E. Czeschin, Esquire, Robert L. Burns, Esquire, Sarah A. Clark, Esquire and Matthew W. Murphy, Esquire of Richards, Layton & Finger, P.A., Wilmington, Delaware and Walter W. Davis, Esquire, Michael J. McConnell, Esquire and Robert A. Watts, Esquire, of Jones Day, Atlanta, Georgia, Attorneys for Respondent Jarden Corporation. SLIGHTS, Vice Chancellor This statutory appraisal action arises from a merger whereby Newell Rubbermaid, Inc. (“Newell”) acquired Jarden Corporation (“Jarden” or the “Company”) (the “Merger”) for cash and stock totaling $59.21 per share (the “Merger Price”). Petitioners, Verition Partners Master Fund Ltd., Verition Multi-Strategy Master Fund Ltd., Fir Tree Value Master Fund, LP and Fir Tree Capital Opportunity Master Fund, LP (together “Petitioners”), were Jarden stockholders on the Merger’s effective date and seek a judicial appraisal of the fair value of their Jarden shares as of that date. At the close of the trial, I observed, “[w]e are in the classic case where . very-well credentialed experts are miles apart. There’s some explaining that is required here to understand how it is that two very well-credentialed, I think, well- intended experts view this company so fundamentally differently.”1 This observation was prompted by the all-too-frequently encountered disparity in the experts’ opinions regarding Jarden’s fair value. Jarden’s expert, Dr. Glenn Hubbard, applying a discounted cash flow (“DCF”) analysis, opines that Jarden’s fair value as of the Merger was $48.01 per share. Petitioners’ expert, Dr. Mark Zmijewski, applying a comparable companies analysis, contends that Jarden’s fair value as of 1 Trial Tr. 1315:21–1316:5. 1 the Merger was $71.35 per share. To put the disparity in context, Dr. Zmijewski’s valuation implies that the market mispriced Jarden by over $5 billion. In a statutory appraisal action, the trial court’s function is to appraise the “fair value” of the dissenting stockholder’s “shares of stock” by “tak[ing] into account all relevant factors.”2 The statute does not define “fair value” but our courts understand the term to mean the petitioner’s “pro rata share of the appraised company’s value as a going concern.”3 This definition of fair value “is a jurisprudential, rather than purely economic, construct.”4 Even so, the remarkably broad “all relevant factors” mandate necessarily leads the court deep into the weeds of economics and corporate finance. These are places law-trained judges should not go without the guidance of experts trained in these disciplines. In other words, corporate finance is not law. The appraisal exercise is, at bottom, a fact-finding exercise, and our courts must appreciate that, by functional imperative, the evidence, including expert evidence, in one appraisal case will be different from the evidence 2 8 Del. C. § 262(h). 3 DFC Global Corp. v. Muirfield Value P’rs, L.P., 172 A.3d 346, 367 (Del. 2017). DFC explained that the statutory definition of fair value has been distilled further to require the court “to value the company on its stand-alone value.” Id. at 368. 4 Id. at 367 (citing Cavalier Oil Corp. v. Hartnett, 564 A.2d 1137 (Del. 1989)). As the Court further explained, “the definition of fair value used in appraisal cases is a jurisprudential concept that has certain nuances that neither an economist nor market participant would usually consider when either valuing a minority block of shares or a public company as a whole.” Id. 2 presented in any other appraisal case. Different evidence, of course, can lead to different decision paths and different outcomes. After all, the appraisal exercise prescribed by the governing statute contemplates a trial—a good, old-fashioned trial—where the parties carry burdens of proof, present their evidence in hopes of meeting that burden and subject their adversary’s evidence to the “crucible of cross- examination” in keeping with the traditions of our adversarial process of civil justice.5 Our Supreme Court has had several opportunities recently to provide direction with regard to certain frames of reference this court should consider while 5 Gilbert v. M.P.M. Enters., Inc., 1998 WL 229439, at *3 (Del. Ch. Apr. 24, 1998) (noting that while certain approaches to a DCF valuation might be endorsed in other cases, the experts endorsing those approaches had not been “subject to the crucible of cross- examination” in the appraisal trial conducted by the court and the court would not consider their testimony from other cases). See also Merion Capital L.P. v. Lender Processing Servs., Inc., 2016 WL 7324170, at *16 (Del. Ch. Dec. 16, 2016) (noting that the “relevant factors” informing the fair value determination will “vary from case to case depending on the nature of the [acquired] company”); DFC, 172 A.3d at 388 (observing: “[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. In other cases, it may be necessary to consider two or more factors.”); D.R.E. 702 (recognizing that lay fact-finders may rely upon expert testimony when the expert’s “scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue”). In this regard, it is worth noting that submitting the fair value determination to a “court-appointed ‘appraiser’” was “essentially required practice under the appraisal statute before 1976.” Lawrence A. Hammermesh & Michael L. Wachter, Finding the Right Balance in Appraisal Litigation: Deal Price, Deal Process, and Synergies, 73 Bus. Law 961, 976 (2018). Now that expert “appraisers” have been “eliminated as a statutory requirement,” it is for the court to decide fair value based on its assessment of the factual evidence presented at trial, including expert evidence, using traditional fact-finding methods. Id. 3 performing the statutory appraisal function.6 I will not recount those holdings here as they are well known. Suffice it to say, as I approached my deliberation of the evidence in this case, my “takeaway” from the Supreme Court’s recent direction reduced to this: “What is necessary in any particular [appraisal] case [] is for the Court of Chancery to explain its [fair value calculus] in a manner that is grounded in the record before it.”7 That is what this court endeavors to do after every trial and what I have endeavored to do here.8 6 See DFC, 172 A.3d 346; Dell, Inc. v. Magnetar Global Event Driven Master Fund Ltd., 177 A.3d 1 (Del. 2017); Verition P’rs Master Fund Ltd. v. Aruba Networks, Inc., 2019 WL 1614026 (Del. Apr. 16, 2019). 7 DFC, 172 A.3d at 388. 8 In this regard, I reiterate with renewed appreciation then-Chancellor Chandler’s astute observation in the Technicolor, Inc. appraisal saga: [V]aluation decisions are impossible to make with anything approaching complete confidence. Valuing an entity is a difficult intellectual exercise, especially when business and financial experts are able to organize data in support of wildly divergent valuations for the same entity. For a judge who is not expert in corporate finance, one can do little more than try to detect gross distortions in the experts’ opinions. This effort should, therefore, not be understood, as a matter of intellectual honesty, as resulting in the fair value of a corporation on a given date. The value of a corporation is not a point on a line, but a range of reasonable values, and the judge’s task is to assign one particular value within this range as the most reasonable value in light of all the relevant evidence and based on the considerations of fairness. Cede & Co. v. Technicolor, Inc., 2003 WL 23700218, at *2 (Del. Ch. Dec. 31, 2003), aff’d in part, rev’d in part on other grounds, 875 A.2d 602 (Del. 2005), withdrawn from bound volume, opinion amended and superseded, 884 A.2d 26 (Del. 2005). 4 The parties have reveled in the statutory mandate that the court consider “all relevant factors.” Indeed, they have joined issue on nearly every possible indicator of fair value imaginable, including market indicators (unaffected market price, deal price less synergies, Jarden stock offerings shortly before the Merger) and traditional valuation methodologies (comparable companies and DCF analyses).9 The result: an unfortunately long opinion, made so by a sense that I needed to traverse every road the parties waived me down right to the bitter end, even if that road did not lead to the desired fair value destination. Appraisal litigation can be unwieldy. This is one of those cases. Apologies in advance to those who read on. I begin my fair value analysis where I believe I must—with the market evidence.10 As explained below, I have found Jarden’s unaffected market price of $48.31 per share is a reliable indicator of its fair value at the time of the Merger. This finding is supported by credible, unrebutted expert testimony from Dr. Hubbard, including an event study that analyzed the market’s response to 9 Respondent’s expert undertook a precedent transactions analysis as well but the parties did not engage on this valuation approach at trial, so I will not address it here.