A recent paper addresses the problem of the “wide discretion” judges have
in fashioning appraisal awards to dissenting shareholders based on opinions
of valuation experts that are miles apart. “Judicial appraisal should not
be a remedy for dissenting shareholders when a market exit or equivalent
protection is otherwise available,” the authors write. Shareholders of
publicly held companies often have an exit—they can sell easily. But
shareholders of most closely held firms cannot do this. So, the authors
explore “reinventing” the shareholders’ appraisal remedy. “While such
reform would be costly to valuation litigation professionals, their loss
would be more than offset by the benefit of such reforms to shareholders
involved in future corporate transactions,” the authors say.
The paper is “The Exit Theory of Judicial Appraisal” and the authors are William J. Carney and Keith Sharfman, The paper appears in the Fordham Journal of Corporate & Financial Law.