                                                      NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                     _________

                          No. 10-4040
                          _________

                MITCHELL PARTNERS, L.P.
                                Appellant

                                v.

  IREX CORPORATION; NORTH LIME HOLDINGS CORP.;
 W. KIRK LIDDELL; DAVID C. KLEINMAN; PAUL J. ISAAC;
JOANN M. JUDGE; MICHAEL J. LARDNER; JOHN O. SHIRK;
 THOMAS W. WOLF; LORI A. PICKELL; JAMES E. HIPOLIT;
       JANEE. PINKERTON; KENNETH G. STOUDT;
              N. THOMPSON WASHBURN
                     ________

                          No. 10-4091
                           ________

                MITCHELL PARTNERS, L.P.

                                v.

  IREX CORPORATION; NORTH LIME HOLDINGS CORP.;
W. KIRK LIDDELL; DAVID C. KLEINMAMN; PAUL J. ISAAC;
JOANN M. JUDGE; MICHAEL J. LARDNER; JOHN O. SHIRK;
 THOMAS W. WOLF; LORI A. PICKELL; JAMES E. HIPOLIT;
       JANE E. PINKERTON; KENNETH G.STOUDT;
              N. THOMPSON WASHBURN,
                                Appellants
                      ________

        On Petition for Review of an Order of the United
  States District Court for the Eastern District of Pennsylvania
                     (D.C. No. 5-08-cv-4814)
          District Judge: Honorable James K. Gardner
                             Argued July 12, 2011
             Before: SLOVITER, FUENTES and GARTH, Circuit Judges.

                                      ____________

                                  JUDGMENT ORDER
                                     ____________

       It appearing that:

       On October 8, 2008, the plaintiff-appellant Mitchell Partners, L.P., a minority

shareholder of Irex Corp., brought an action in the Eastern District of Pennsylvania

alleging, among other things, breach of fiduciary duty and unjust enrichment against the

defendants-appellees Irex Corp., North Lime Holdings Corp., and a number of

individuals. The Mitchell Partners complaint described a disputed acquisition of Irex

Corp. by North Lime, which Mitchell Partners claimed “squeezed them out.” Mitchell

Partners sought, inter alia, compensatory damages arising from its breach of fiduciary

duty claims as well as disgorgement of any amount by which the defendants had been

unjustly enriched. Mitchell Partners pursued these remedies in the United States District

Court for the Eastern District of Pennsylvania in addition to pursuing, in state court, any

compensation to which it might be entitled through a statutory appraisal proceeding.

       The District Court dismissed Mitchell Partners’ claim as not stating a cause of

action, holding that, pursuant to 15 Pa. Cons. Stat. § 1105, a statutory appraisal provided

the only available remedy. Section 1105 provides:

       A shareholder of a business corporation shall not have any right to obtain,
       in the absence of fraud or fundamental unfairness, an injunction against any
       proposed plan or amendment of articles authorized under any provision of
       this subpart, nor any right to claim the right to valuation and payment of the
       fair value of his shares because of the plan or amendment, except that he
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       may dissent and claim such payment if and to the extent provided in
       Subchapter D of Chapter 15 (relating to dissenters rights) where this
       subpart expressly provides that dissenting shareholders shall have the rights
       and remedies provided in that subchapter. Absent fraud or fundamental
       unfairness, the rights and remedies so provided shall be exclusive.
       Structuring a plan or transaction for the purpose or with the effect of
       eliminating or avoiding the application of dissenters rights is not fraud or
       fundamental unfairness within the meaning of this section.

(Footnote omitted.) The District Court further noted that in In re Jones & Laughlin

Steel Corp., 488 Pa. 524, 533, 412 A.2d 1099, 1104 (1980), “the Supreme Court of

Pennsylvania clearly stated that post-merger remedies are limited to the appraisal

of the fair market value of their stock.” Mitchell Partners, L.P. v. Irex Corp., No.

08-CV-04814, 2010 WL 3825719, at *5 (E.D. Pa. Sept. 29, 2010).

       We reversed that decision by a divided opinion. A Petition for panel rehearing was

thereafter filed and granted. That Petition led to the certification 1 of the following

question to the Pennsylvania Supreme Court:

       Does [§ 1105], providing for appraisal of the value of the shares of minority
       shareholders who are “squeezed out” in a cash-out merger preclude all

1
 Our Court’s Local Rule 110.1, “Certification of Questions of State Law,” provides:
       When the procedures of the highest court of a state provide for certification
       to that court by a federal court of questions arising under the laws of that
       state which will control the outcome of a case pending in the federal court,
       this court, sua sponte or on motion of a party, may certify such a question
       to the state court in accordance with the procedures of that court, and will
       stay the case in this court to await the state court’s decision whether to
       accept the question certified. The certification will be made after the briefs
       are filed in this court. A motion for certification shall be included in the
       moving party’s brief.
3d Cir. L.A.R. 110.1 (2011). See also 210 Pa. Code § 63.10 (2007) for certification of a
question arising under the laws of Pennsylvania.


                                               3
       other post-merger remedies including claims of fraud, breach of fiduciary
       duty, and other common law claims.

(Emphasis added.)

       The Pennsylvania Supreme Court accepted this court’s Petition and, on July 24,

2012, answered the certified question by holding that Jones is not controlling in the

context of the present action; Mitchell Partners, L.P. v. Irex Corp., No. 13 EAP 2012,

2012 WL 3007224, at *6 (Pa. July 24, 2012); and that § 1105 permits post-merger

damage actions sounding in fraud or fundamental unfairness. Id. at *8.

       The holding of the Pennsylvania Supreme Court, representing the substantive law

of Pennsylvania, mandates that we reverse the District Court and remand this proceeding

to the District Court for the Eastern District of Pennsylvania for further proceedings,

including discovery and adjudication on the merits, consistent with the Pennsylvania

Supreme Court’s answer to our certified question.

       It is therefore ORDERED and ADJUDGED that that the judgment of the District

Court entered September 29, 2010, dismissing Mitchell Partners’ complaint be and the

same is hereby reversed and remanded for further proceedings consistent with the

Pennsylvania Supreme Court’s opinion and answer to our certified question dated July

24, 2012. No costs to be taxed.




                                             4
                                    BY THE COURT:


                                    /s/ Leonard I. Garth
                                    United States Circuit Judge




                 ATTEST:


                 /s/Marcia M. Waldron,
                 Clerk




DATED: September 19, 2012




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