Professor Guhan Subramanian of the Harvard Business School, who was one of the Dell stockholders’ experts in the Dell appraisal case focused on the M&A deal process, has developed an ostensive “middle ground” between the competing approaches advanced by the respective amicus briefs filed by some two dozen law and economics professors in the DFC Global appeal.
In his February 6, 2017 essay, “Using the Deal Price for Determining ‘Fair Value’ in Appraisal Proceedings,” Professor Subramanian has proposed that courts adopt a presumption that the merger price represents fair value in an appraisal proceeding where the deal process involved “an adequate market canvass, meaningful price discovery, and an arms-length negotiation.” And where the deal process lacks these features, he believes that deal price should receive no weight whatsoever. His suggested “synthesizing principle” is a response to what he believes to be an increase in perceived appraisal risk since the Dell appraisal ruling in May 2016.