In Nguyen v. Barrett, C.A. No. 11511-VCG (Oct. 8, 2015), the letter opinion by Delaware Court of Chancery Vice Chancellor Sam Glasscock III denies a plaintiff’s motion for the certification of an interlocutory appeal after the court rejected the plaintiff’s efforts to enjoin the closing of a tender offer. The opinion will likely be cited going forward for its holding that there is no per se rule under Delaware law that a proxy statement must disclose to the stockholders the specific inputs and management projections that a financial adviser used in rendering a fairness opinion. The opinion does, however, leave open the prospect that under certain factual scenarios, such information might be material to the stockholders’ decision-making process, and thus, must be disclosed.

The action challenged an all-cash tender offer by a wholly owned subsidiary of AOL Inc. for all the outstanding stock of Millennial Media Inc. In connection with the tender offer, Millennial filed a Schedule 14D-9 (the proxy), which formed the basis for the plaintiff’s complaint. The complaint alleged that (1) the transaction’s price and the process that led to the transaction were unfair to the stockholders; (2) the transaction was protected by unreasonable deal-protection provisions; and (3) the proxy failed to disclose material information related to the tender offer. As the court framed it, “the number of disclosure violations alleged [was] extraordinary.”

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