Appraising the 'Merger Price' Appraisal Rule

48 Pages Posted: 22 Dec 2016 Last revised: 27 Mar 2017

Albert H. Choi

University of Virginia School of Law

Eric L. Talley

Columbia University - School of Law

Date Written: March 27, 2017

Abstract

This paper develops an analytic framework combining agency costs, auction design and shareholder voting to study how best to measure “fair value” for dissenting shareholders in post-merger appraisal proceedings. Our inquiry spotlights an approach recently embraced by some courts benchmarking fair value against the merger price itself. We show that as a general matter, the “Merger Price” (MP) rule tends to depress both acquisition prices and target shareholders’ expected welfare relative to both the optimal appraisal policy and several other plausible alternatives. In fact, we demonstrate that the MP rule is strategically equivalent to nullifying appraisal rights altogether. Although the MP rule may be warranted in certain circumstances, our analysis suggests that such conditions are unlikely to be widespread and, consequently, the rule should be employed with caution. Our results are robust to settings where courts commit errors in applying conventional valuation metrics (such as discounted cash flow analysis), and the analysis helps explain why conventional approaches generate outcomes that skew well above the deal price — an equilibrium phenomenon that is an artifact of strategic behavior (and not an institutional deficiency, as some assert). Finally, our analysis facilitates a better understanding of the efficiency implications of recent reforms allowing “medium-form” mergers, as well as an assortment of (colorfully named) contractual terms, such as blow provisions, drag-alongs, and “naked no-vote” fees.

Keywords: Mergers and Acquisitions, Appraisal, Fair Value, Merger Price Appraisal

JEL Classification: D44, D82, G34, K22

Suggested Citation

Choi, Albert H. and Talley, Eric L., Appraising the 'Merger Price' Appraisal Rule (March 27, 2017). Virginia Law and Economics Research Paper No. 2017-01. Available at SSRN: https://ssrn.com/abstract=2888420 or http://dx.doi.org/10.2139/ssrn.2888420

Albert H. Choi (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Eric L. Talley

Columbia University - School of Law ( email )

435 West 116th Street
New York, NY 10025
United States

HOME PAGE: http://www.erictalley.com

Paper statistics

Downloads
643
Rank
32,454
Abstract Views
1,491