Washington Law Review


John T. McLean


Before Weinberger, Delaware law allowed a minority shareholder, dissatisfied with a cashout merger, to seek either the sure but conservative remedy of an appraisal action or the less certain but more liberal remedy of an equitable action. The new fairness action combines allegations of unfair price and unfair dealing. However, the court appears to ground plaintiffs' monetary remedies in the appraisal statute which was designed only to remedy unfair price. More important, the court requires plaintiffs to follow the technical procedures outlined in the appraisal statute. While these procedures allow sufficient time for allegations of unfair price, they would severely limit the time allowed for discovery for the more complex fair dealing allegations. Hence, plaintiffs may lose access to this new remedy because they properly followed the court's instructions for seeking it. In this Note, the new "combined" action will be examined in order to determine how prospective claimants may avail themselves of its remedies.

First Page