      IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE


IN RE TRULIA, INC. STOCKHOLDER              CONSOLIDATED
LITIGATION                                  C.A. No. 10020-CB




                                    OPINION

                         Date Submitted: October 16, 2015
                          Date Decided: January 22, 2016

Seth D. Rigrodsky, Brian D. Long, Gina M. Serra and Jeremy J. Riley, RIGRODSKY &
LONG, P.A., Wilmington, Delaware; Peter B. Andrews and Craig J. Springer,
ANDREWS & SPRINGER, LLC, Wilmington, Delaware; James R. Banko, FARUQI &
FARUQI, LLP, Wilmington, Delaware; Peter Safirstein, Domenico Minerva and
Elizabeth Metcalf, MORGAN & MORGAN, P.C., New York, New York; Katharine M.
Ryan and Richard A. Maniskas, RYAN & MANISKAS, LLP, Wayne, Pennsylvania;
Kent A. Bronson, Todd Kammerman and Christopher Schuyler, MILBERG LLP, New
York, New York; Juan E. Monteverde, James Wilson, Jr. and Miles D. Schreiner,
FARUQI & FARUQI, LLP, New York, New York; Counsel for Plaintiffs.

Rudolf Koch and Sarah A. Clark, RICHARDS, LAYTON & FINGER, P.A., Wilmington,
Delaware; Deborah S. Birnbach, GOODWIN PROCTER LLP, Boston, Massachusetts;
Michael T. Jones, GOODWIN PROCTER LLP, Menlo Park, California; Attorneys for
Defendants Trulia, Inc., Pete Flint, Robert Moles, Theresia Gouw, Gregory Waldorf,
Sami Inkinen, Erik Bardman and Steve Hafner.

William M. Lafferty, MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington,
Delaware; Alan S. Goudiss, SHEARMAN & STERLING, New York, New York;
Attorneys for Defendants Zillow, Inc. and Zebra Holdco, Inc.

Joseph Christensen, JOSEPH CHRISTENSEN P.A., Wilmington, Delaware; Counsel for
Amicus Curiae Sean J. Griffith.




BOUCHARD, C.
       This opinion concerns the proposed settlement of a stockholder class action

challenging Zillow, Inc.’s acquisition of Trulia, Inc. in a stock-for-stock merger that

closed in February 2015.      Shortly after the public announcement of the proposed

transaction, four Trulia stockholders filed essentially identical complaints alleging that

Trulia’s directors had breached their fiduciary duties in approving the proposed merger at

an unfair exchange ratio. Less than four months later, after taking limited discovery, the

parties reached an agreement-in-principle to settle.

       The proposed settlement is of the type often referred to as a “disclosure

settlement.” It has become the most common method for quickly resolving stockholder

lawsuits that are filed routinely in response to the announcement of virtually every

transaction involving the acquisition of a public corporation. In essence, Trulia agreed to

supplement the proxy materials disseminated to its stockholders before they voted on the

proposed transaction to include some additional information that theoretically would

allow the stockholders to be better informed in exercising their franchise rights. In

exchange, plaintiffs dropped their motion to preliminarily enjoin the transaction and

agreed to provide a release of claims on behalf of a proposed class of Trulia’s

stockholders. If approved, the settlement will not provide Trulia stockholders with any

economic benefits. The only money that would change hands is the payment of a fee to

plaintiffs’ counsel.

       Because a class action impacts the legal rights of absent class members, it is the

responsibility of the Court of Chancery to exercise independent judgment to determine



                                             1
whether a proposed class settlement is fair and reasonable to the affected class members.

For the reasons explained in this opinion, I conclude that the terms of this proposed

settlement are not fair or reasonable because none of the supplemental disclosures were

material or even helpful to Trulia’s stockholders, and thus the proposed settlement does

not afford them any meaningful consideration to warrant providing a release of claims to

the defendants. Accordingly, I decline to approve the proposed settlement.

       On a broader level, this opinion discusses some of the dynamics that have led to

the proliferation of disclosure settlements, noting the concerns that scholars, practitioners

and members of the judiciary have expressed that these settlements rarely yield genuine

benefits for stockholders and threaten the loss of potentially valuable claims that have not

been investigated with rigor. I also discuss some of the particular challenges the Court

faces in evaluating disclosure settlements through a non-adversarial process.

       Based on these considerations, this opinion offers the Court’s perspective that

disclosure claims arising in deal litigation optimally should be adjudicated outside of the

context of a proposed settlement so that the Court’s consideration of the merits of the

disclosure claims can occur in an adversarial process without the defendants’ desire to

obtain an often overly broad release hanging in the balance. The opinion further explains

that, to the extent that litigants continue to pursue disclosure settlements, they can expect

that the Court will be increasingly vigilant in scrutinizing the “give” and the “get” of such

settlements to ensure that they are genuinely fair and reasonable to the absent class

members.



                                             2
I.     BACKGROUND

       The facts recited in this opinion are based on the allegations of the Verified

Amended Class Action Complaint in C.A. No. 10022-CB, which was designated as the

operative complaint in the consolidation action; the brief plaintiffs submitted in support

of their motion for a preliminary injunction; and the briefs and affidavits submitted in

connection with the proposed settlement. Because of the posture of the litigation, the

recited facts do not represent factual findings, but rather the record as it was presented for

the Court to evaluate the proposed settlement.

       A.     The Parties

       Defendant Trulia, Inc., a Delaware corporation, is an online provider of

information on homes for purchase or for rent in the United States. Individual defendants

Pete Flint, Robert Moles, Theresia Gouw, Gregory Waldorf, Sami Inkinen, Erik Bardman,

and Steve Hafner were members of Trulia’s board of directors when the merger was

approved.

       Defendant Zillow, Inc., a Washington corporation, is a real estate marketplace that

helps home buyers, sellers, landlords and others find and share information about homes.

Defendant Zebra Holdco, Inc. (“Holdco”), now known as Zillow Group, Inc., is a

Washington corporation that was formed to facilitate the merger at issue and is now the

parent company of Zillow and Trulia.

       Plaintiffs Christopher Shue, Matthew Sciabacucci, Chaile Steinberg, and Robert

Collier were Trulia stockholders at all times relevant to this action.



                                              3
       B.     The Announcement of the Merger and the Litigation

       On July 28, 2014, Trulia and Zillow announced that they had entered into a

definitive merger agreement under which Zillow would acquire Trulia for approximately

$3.5 billion in stock.1 The transaction was structured to include two successive stock-for-

stock mergers whereby separate subsidiaries of Holdco would acquire both Trulia and

Zillow. After these mergers, Trulia and Zillow would exist as wholly-owned subsidiaries

of Holdco, and the former stockholders of Trulia and Zillow would receive, respectively,

approximately 33% and 67% of the outstanding shares of Holdco.

       After the merger was announced, the four plaintiffs filed class action complaints

challenging the Trulia merger and seeking to enjoin it. Each of the complaints alleged

essentially identical claims: that the individual defendants had breached their fiduciary

duties, and that Zillow, Trulia, and Holdco aided and abetted those breaches.

       On September 11, 2014, Holdco filed a registration statement containing Trulia

and Zillow’s preliminary joint proxy statement with the United States Securities and

Exchange Commission. On September 24, 2014, one of the four plaintiffs filed a motion

for expedited proceedings and for a preliminary injunction.

       On October 13, 2014, the Court granted an unopposed motion to consolidate the

four cases into one action and to appoint lead counsel. On October 14, at 10:37 a.m.,

1
  By closing, the transaction value had fallen to $2.5 billion, based on the value of Zillow
stock at the time. See Zillow Completes Acquisition of Trulia for $2.5 Billion in Stock;
Forms “Zillow Group” Family of Brands, (Feb. 17, 2015), available at
http://zillow.mediaroom.com/2015-02-17-Zillow-Completes-Acquisition-of-Trulia-for-2-
5-Billion-in-Stock-Forms-Zillow-Group-Family-of-Brands.


                                             4
plaintiffs filed a motion to expedite the proceedings in the newly consolidated case. The

Court never heard the motion, however, because the parties promptly agreed on an

expedited schedule, which they documented in a stipulated case schedule filed on October

14 at 12:12 p.m., less than two hours after the motion to expedite was filed.

         Over the next few weeks, plaintiffs reviewed documents produced by defendants

and deposed one director of Trulia (Chairman, CEO, and co-founder Pete Flint) and a

banker from J.P. Morgan Securities LLC, Trulia’s financial advisor in the transaction.

         On November 14, 2014, plaintiffs filed a brief in support of their motion for a

preliminary injunction. In that brief, plaintiffs asserted that the individual defendants had

breached their fiduciary duties by “failing to obtain the highest exchange ratio available

for the Company’s stockholders in a single-bidder process, failing to properly value the

Company, agreeing to preclusive provisions in the Merger Agreement that impede the

Board’s ability to consider and accept superior proposals, and disseminating materially

false and misleading disclosures to the Company’s stockholders . . . .”2 The discussion of

the merits in that brief, however, focused only on disclosure issues. Plaintiffs provided

no argument in support of any other aspect of their claims.

         On November 17, Trulia and Zillow filed a definitive joint proxy statement

regarding the transaction on Schedule 14A (the “Proxy”).




2
    Pls.’ Op. Br. Supp. Mot. Prelim. Inj. 2.


                                               5
         C.     The Parties Reach a Settlement

         On November 19, 2014, the parties entered into a Memorandum of Understanding

detailing an agreement-in-principle to settle the litigation for certain disclosures to

supplement those contained in the Proxy, subject to confirmatory discovery. The same

day, Trulia filed a Form 8-K with the Securities and Exchange Commission containing

the disclosures (the “Supplemental Disclosures”).

         On December 18, 2014, Trulia and Zillow held special meetings of stockholders at

which each company’s stockholders voted on and approved the transaction. Trulia’s

stockholders overwhelmingly supported the transaction. Of the Trulia shares that voted,

99.15% voted in favor of the transaction.         In absolute terms, 79.52% of Trulia’s

outstanding shares voted in favor the transaction.3

         On February 10, 2015, plaintiffs conducted a confirmatory deposition of a second

Trulia director, Gregory Waldorf. On February 17, 2015, the transaction closed.

         On June 10, 2015, the parties executed a Stipulation and Agreement of

Compromise, Settlement, and Release (the “Stipulation”) in support of a proposed

settlement reiterating the terms of the Memorandum of Understanding. In the Stipulation,

the parties agreed to seek certification of a class consisting of all Trulia stockholders from

July 28, 2014 (when the transaction was announced) through February 17, 2015 (when

the transaction closed).        The Stipulation included an extremely broad release



3
    Trulia, Inc., Current Report (Form 8-K) (Dec. 18, 2014).


                                              6
encompassing, among other things, “Unknown Claims”4 and claims “arising under

federal, state, foreign, statutory, regulatory, common law or other law or rule” held by any

member of the proposed class relating in any conceivable way to the transaction.5 The

Stipulation further provided that plaintiffs’ counsel intended to seek an award of

attorneys’ fees and expenses not to exceed $375,000, which defendants agreed not to

oppose.

         Beginning on July 17, 2015, Trulia disseminated notices to the proposed class

members in accordance with a scheduling order the Court had entered.

         D.      Procedural Posture

         On September 16, 2015, after receiving a brief and an affidavit from plaintiffs

advocating for approval of the proposed settlement, I held a hearing to consider the

fairness of the terms of the proposed settlement.       Defendants made no submissions

concerning the proposed settlement before the hearing, and no stockholder filed an

objection to it. After the hearing, I took the request to approve the settlement under

advisement and asked the parties for supplemental briefing on whether disclosures must

meet the legal standard of materiality in order to constitute an adequate benefit to support


4
 “Unknown Claims” were defined as “any claim that a releasing person does not know or
suspect exists in his, her or its favor at the time of the release of the Released Claims as
against the Released Persons, and at the time of Defendants’ release of Plaintiffs, each
and all Class Members, and all Plaintiffs’ counsel from all claims as set forth in
Paragraph 9, including without limitation those claims which, if known, might have
affected the decision to enter into the Settlement.” Stipulation ¶ 10.
5
    Stipulation ¶ 8.


                                             7
a settlement, and on the rationale and justification for including “unknown claims” among

the claims that would be released by the proposed settlement.

         On September 22, 2015, Sean J. Griffith, a professor at Fordham University

School of Law who has researched disclosure settlements and objected to them in the

past,6 requested permission to appear as amicus curiae in order to submit a brief on the

topics for which I requested supplemental briefing. I approved this request on September

23, and the parties submitted their supplemental briefing on October 16.

         Along with their supplemental briefing, plaintiffs submitted an affidavit from

Timothy J. Meinhart, a managing director of Willamette Management Associates, which

provides business valuation and transaction financial advisory services. The affidavit

addresses certain concerns about some (but not all) of the disclosures that I raised at the

settlement hearing. Plaintiffs and defendants also informed the Court that, following the

hearing, the parties had agreed to a revised stipulation with a narrower release.

         Specifically, the parties removed “Unknown Claims” and “foreign” claims from

the ambit of the release and added a carve-out so that the release would not cover “any

claims that arise under the Hart-Scott-Rodino, Sherman, or Clayton Acts, or any other

state or federal antitrust law.” As revised, the release still encompasses “any claims

arising under federal, state, statutory, regulatory, common law, or other law or rule” held

by any member of the proposed class relating in any conceivable way to the transaction,



6
    See In re Riverbed Tech., 2015 WL 5458041, at *2.


                                             8
with the exception of the carve-out for claims arising under state and federal antitrust

law.7

II.        LEGAL ANALYSIS

           A.   Legal Standard

           Under Court of Chancery Rule 23, the Court must approve the dismissal or

settlement of a class action.8      Although Delaware has long favored the voluntary

settlement of litigation,9 the fiduciary character of a class action requires the Court to

independently examine the fairness of a class action settlement before approving it.10

“Approval of a class action settlement requires more than a cursory scrutiny by the court

of the issues presented.”11 The Court must exercise its own judgment to determine

whether the settlement is reasonable and intrinsically fair.12 In doing so, the Court

evaluates not only the claim, possible defenses, and obstacles to its successful




7
    Revised Proposed Order and Final J., Oct. 16, 2015.
8
 See Ct. Ch. R. 23(e). Court of Chancery Rule 23.1(c) similarly requires Court approval
of the dismissal or settlement of derivative actions.
9
    Rome v. Archer, 197 A.2d 49, 53 (Del. 1964).
10
     Kahn v. Sullivan, 594 A.2d 48, 58 (Del. 1991).
11
     Rome v. Archer, 197 A.2d at 53.
12
     Id.


                                              9
prosecution,13 but also “the reasonableness of the ‘give’ and the ‘get,’”14 or what the class

members receive in exchange for ending the litigation.

         Before turning to that analysis here, I pause to discuss some of the dynamics that

have led to the proliferation of disclosure settlements15 and the concerns that have been

expressed about this phenomenon, and to offer the Court’s perspective on how disclosure

claims in deal litigation should be adjudicated in the future.

         B.     Considerations Involving Disclosure Claims in Deal Litigation

         Over two decades ago, Chancellor Allen famously remarked in Solomon v. Pathe

Communications Corporation that “[i]t is a fact evident to all of those who are familiar

with shareholder litigation that surviving a motion to dismiss means, as a practical matter,

that economical[ly] rational defendants . . . will settle such claims, often for a peppercorn

and a fee.”16 The Chancellor’s remarks were not made in the context of a settlement, but




13
     See id.
14
     In re Activision Blizzard, Inc. S’holder Litig., 124 A.3d 1025, 1043 (Del. Ch. 2015).
15
   In this Opinion, I use the term “disclosure settlement” to refer to settlements in which
the sole or predominant consideration provided to stockholders in exchange for releasing
their claims is the dissemination of one or more disclosures to supplement the proxy
materials distributed for the purpose of soliciting stockholder approval for a proposed
transaction. An example of a disclosure settlement in which the supplemental disclosures
would be the predominant but not sole consideration is one that, in addition to
supplemental disclosures, includes an insubstantial component of other non-monetary
consideration, such as a minor modification to a deal protection measure.
16
     1995 WL 250374, at *4 (Del. Ch. Apr. 21, 1995), aff’d, 672 A.2d 35 (Del. 1996).


                                               10
they touch upon some of the same dynamics that have fueled disclosure settlements of

deal litigation.

       Today, the public announcement of virtually every transaction involving the

acquisition of a public corporation provokes a flurry of class action lawsuits alleging that

the target’s directors breached their fiduciary duties by agreeing to sell the corporation for

an unfair price. On occasion, although it is relatively infrequent, such litigation has

generated meaningful economic benefits for stockholders when, for example, the integrity

of a sales process has been corrupted by conflicts of interest on the part of corporate

fiduciaries or their advisors.17 But far too often such litigation serves no useful purpose

for stockholders. Instead, it serves only to generate fees for certain lawyers who are

regular players in the enterprise of routinely filing hastily drafted complaints on behalf of



17
   Some examples of adjudicated cases of this type arising from acquisitions of public
corporations include: In re Rural/Metro Corp. S’holders Litig., 102 A.3d 205, 263 (Del.
Ch. 2014) (finding after trial that class suffered damages of $91 million, of which the
board’s financial advisor was liable for 83%, based on aiding and abetting fiduciary
breaches in sale of corporation), aff’d sub nom. RBC Capital Mkts., LLC v. Jervis, – A.3d
–, 2015 WL 7721882 (Del. Nov. 30, 2015); In re Dole Food Co., Inc. S’holder Litig.,
2015 WL 5052214, at *47 (Del. Ch. Aug. 27, 2015) (finding after trial that certain
directors were liable for $148 million in damages, based on fiduciary breaches in going-
private transaction); In re Emerging Commc’ns, Inc. S’holders Litig., 2004 WL 1305745,
at *43 (Del. Ch. May 3, 2004) (finding after trial that certain defendants were liable to
stockholders for damages of $27.80 per share for fiduciary breaches in going-private
transaction). See also In re Jefferies Grp., Inc. S’holders Litig., 2015 WL 1414350 (Del.
Ch. Mar. 26, 2015) (ORDER) (approving settlement for $70 million (net of attorneys’
fees) to resolve allegations involving conflicts of interest in the sale of Jefferies Group to
Leucadia National Corporation); In re Del Monte Foods Co. S’holder Litig., Cons. C.A.
No. 6027-VCL (Del. Ch. Dec. 1, 2011) (ORDER) (approving $89 million settlement of
stockholder suit alleging fiduciary duty violations in connection with leveraged buy-out).


                                             11
stockholders on the heels of the public announcement of a deal and settling quickly on

terms that yield no monetary compensation to the stockholders they represent.

       In such lawsuits, plaintiffs’ leverage is the threat of an injunction to prevent a

transaction from closing. Faced with that threat, defendants are incentivized to settle

quickly in order to mitigate the considerable expense of litigation and the distraction it

entails, to achieve closing certainty, and to obtain broad releases as a form of “deal

insurance.”   These incentives are so potent that many defendants self-expedite the

litigation by volunteering to produce “core documents” to plaintiffs’ counsel, obviating

the need for plaintiffs to seek the Court’s permission to expedite the proceedings in aid of

a preliminary injunction application and thereby avoiding the only gating mechanism

(albeit one friendly to plaintiffs18) the Court has to screen out frivolous cases and to

ensure that its limited resources are used wisely.19


18
   Stockholder plaintiffs who seek expedition benefit from the most favorable standard
available under our law for assessing the merits of a claim—“colorability”—and from the
sensible policy of this Court to attempt to resolve disclosure claims before stockholders
are asked to vote. See Ortsman v. Green, 2007 WL 702475, at *2 (Del. Ch. Feb. 28,
2007) (granting expedited proceedings because disclosure claims were “colorable” and
“[o]nly by remedying proxy deficiencies in advance of a vote can irreparable harm be
avoided”); Morton v. Am. Mktg. Indus. Hldgs., Inc., 1995 WL 1791090, at *2-4 (Del. Ch.
Oct. 5, 1995) (granting expedition because colorability finding did not require a
determination of merits or even legal sufficiency of pleadings, and disclosures must be
made before stockholder vote rather than after the fact).
19
   Notwithstanding the plaintiff-friendly pleading standard governing a motion to
expedite, the Court takes seriously its role to deny expedition in deal litigation when
warranted. See, e.g., In re Rite Aid Corp. S’holders Litig., Cons. C.A. No. 11663-CB, at
78-92 (Del. Ch. Jan. 5, 2016) (TRANSCRIPT) (denying motion to expedite); Sheet Metal
Workers Local No. 33 Cleveland Dist. Pension Plan v. URS Corp., C.A. No. 9999-CB, at
47-56 (Del. Ch. Aug. 28, 2014) (TRANSCRIPT) (same); In re Zalicus Inc. S’holder

                                             12
         Once the litigation is on an expedited track and the prospect of an injunction

hearing looms, the most common currency used to procure a settlement is the issuance of

supplemental disclosures to the target’s stockholders before they are asked to vote on the

proposed transaction. The theory behind making these disclosures is that, by having the

additional information, stockholders will be better informed when exercising their

franchise rights.20     Given the Court’s historical practice of approving disclosure

settlements when the additional information is not material, and indeed may be of only

minor value to the stockholders,21 providing supplemental disclosures is a particularly

easy “give” for defendants to make in exchange for a release.

         Once an agreement-in-principle is struck to settle for supplemental disclosures, the

litigation takes on an entirely different, non-adversarial character. Both sides of the

caption then share the same interest in obtaining the Court’s approval of the settlement.22

The next step, after notice has been provided to the stockholders, is a hearing in which the


Litig., Cons. C.A. No. 9602-CB, at 100-11 (Del. Ch. Jun. 13, 2014) (TRANSCRIPT)
(same).
20
     See In re Riverbed Tech., 2015 WL 5458041, at *4.
21
   See, e.g., id. at *5 (finding that “a positive result of small therapeutic value to the Class
. . . can support . . . a settlement, but only where what is given up is of minimal value”);
In re Dr. Pepper/Seven Up Cos., Inc. S’holders Litig., 1996 WL 74214, at *4 (Del. Ch.
Feb. 9, 1996) (“[E]ven a meager settlement that affords some benefit for stockholders is
adequate to support its approval.”), aff’d, 683 A.2d 58 (Del. 1996) (TABLE).
22
   See Ginsburg v. Phila. Stock Exch., Inc., 2007 WL 2982238, at *1 (Del. Ch. Oct. 9,
2007) (“When parties have reached a negotiated settlement, the litigation enters a new
and unusual phase where former adversaries join forces to convince the court that their
settlement is fair and appropriate.”).


                                              13
Court must evaluate the fairness of the proposed settlement. Significantly, in advance of

such hearings, the Court receives briefs and affidavits from plaintiffs extolling the value

of the supplemental disclosures and advocating for approval of the proposed settlement,

but rarely receives any submissions expressing an opposing viewpoint.23

          Although the Court commonly evaluates the proposed settlement of stockholder

class and derivative actions without the benefit of hearing opposing viewpoints,

disclosure settlements present some unique challenges. It is one thing for the Court to

judge the fairness of a settlement, even in a non-adversarial context, when there has been

significant discovery or meaningful motion practice to inform the Court’s evaluation. It

is quite another to do so when little or no motion practice has occurred and the discovery

record is sparse, as is typically the case in an expedited deal litigation leading to an

equally expedited resolution based on supplemental disclosures before the transaction

closes.     In this case, for example, no motions were decided (not even a motion to

expedite), and discovery was limited to the production of less than 3,000 pages of

23
   See In re Caremark Int’l Inc. Deriv. Litig., 698 A.2d 959, 961 (Del. Ch. 1996) (Allen,
C.) (“[I]n most instances, the court is constrained by the absence of a truly adversarial
process, since inevitably both sides support the settlement and legally assisted objectors
are rare.”); Browning Jeffries, The Plaintiffs’ Lawyer’s Transaction Tax: The New Cost of
Doing Business in Public Company Deals, 11 Berkeley Bus. L.J. 55, 59, 89 (2014)
(“[D]ue to the agency costs involved in class action litigation and the lack of motivation
of any one plaintiff shareholder to monitor class counsel, these fee awards are rarely
objected to . . . .”). In the rare case in which objectors are present, the question
necessarily becomes whether the objectors represent the interests of the class or instead
represent yet another set of interests. See Sean J. Griffith & Alexandra D. Lahav, The
Market for Preclusion in Merger Litigation, 66 Vand. L. Rev. 1053, 1084 n.142, 1122
(2013) (noting that in some cases objectors may also be hold-outs demanding a piece of
the settlement value).


                                            14
documents and the taking of three depositions, two of which were taken before the parties

agreed in principle to settle and one of which was a “confirmatory” deposition taken

thereafter.24

       The lack of an adversarial process often requires that the Court become essentially

a forensic examiner of proxy materials so that it can play devil’s advocate in probing the

value of the “get” for stockholders in a proposed disclosure settlement. Consider the

following example. During discovery, plaintiffs will typically receive copies of board

presentations made by financial advisors who ultimately opine on the fairness of the

transaction from a financial point of view. It is all too common for a plaintiff to identify

and obtain supplemental disclosure of a laundry list of minutiae in a financial advisor’s

board presentation that does not appear in the summary of the advisor’s analysis in the

proxy materials—summaries that commonly run ten or more single-spaced pages in the

first instance. Given that the newly added pieces of information were, by definition,

missing from the original proxy, it is not difficult for an advocate to make a superficially

24
   “Confirmatory” discovery is discovery taken after an agreement-in-principle to settle a
case has been reached. Theoretically, it is an opportunity for plaintiffs’ counsel to
“confirm” that the settlement terms are reasonable—that is, to probe further the strengths
and weaknesses of the claims relative to the consideration for the proposed settlement. In
reality, given that plaintiffs’ counsel already have resigned themselves to settle on certain
terms, confirmatory discovery rarely leads to a renunciation of the proposed settlement
and, instead, engenders activity more reflective of “going through the motions.” See
Brinckerhoff v. Tex. E. Prods. Pipeline Co., LLC, 986 A.2d 370, 385 (Del. Ch. 2010)
(questioning quality of confirmatory discovery process) (“Confirmatory discovery
performances ranging from the diffident to the feckless impair, rather than inspire,
judicial confidence.”); In re Coleman Co., Inc. S’holders Litig., 750 A.2d 1202, 1212
(Del. Ch. 1999) (“[C]onfirmatory discovery in settlement situations is hardly the
equivalent of adversarial pre-trial discovery.”).


                                             15
persuasive argument that it is better for stockholders to have more information rather than

less.     In an adversarial process, defendants, armed with the help of their financial

advisors, would be quick to contextualize the omissions and point out why the missing

details are immaterial (and may even be unhelpful) given the summary of the advisor’s

analysis already disclosed in the proxy. In the settlement context, however, it falls to law-

trained judges to attempt to perform this function, however crudely, as best they can.

          It is beyond doubt in my view that the dynamics described above, in particular the

Court’s willingness in the past to approve disclosure settlements of marginal value and to

routinely grant broad releases to defendants and six-figure fees to plaintiffs’ counsel in

the process,25 have caused deal litigation to explode in the United States beyond the realm

of reason. In just the past decade, the percentage of transactions of $100 million or more

that have triggered stockholder litigation in this country has more than doubled, from

39.3% in 2005 to a peak of 94.9% in 2014.26 Only recently has the percentage decreased,

falling to 87.7% in 2015 due to a decline near the end of the year.27 In Delaware, the

percentage of such cases settled solely on the basis of supplemental disclosures grew


25
   See In re Sauer-Danfoss Inc. S’holders Litig., 65 A.3d 1116, 1135-43 (Del. Ch. 2011)
(discussing disclosure settlements and compiling fee awards in various disclosure-only
cases).
26
   Matthew D. Cain & Steven Davidoff Solomon, Takeover Litigation in 2015 2 (Jan. 14,
2016), available at http://ssrn.com/abstract=2715890.      The sample consists of
transactions of at least $100 million with publicly traded targets, and includes both
Delaware and non-Delaware corporations. Figures for 2015 are preliminary.
27
     See id. at 2-3.


                                              16
significantly from 45.4% in 2005 to a high of 76.0% in 2012, and only recently has seen

some decline.28 The increased prevalence of deal litigation and disclosure settlements has

drawn the attention of academics, practitioners, and the judiciary.

       Scholars have criticized disclosure settlements, arguing that non-material

supplemental disclosures provide no benefit to stockholders and amount to little more

than deal “rents” or “taxes,” while the liability releases that accompany settlements

threaten the loss of potentially valuable claims related to the transaction in question or

other matters falling within the literal scope of overly broad releases.29 One recent study


28
   See id. at 6. The percentage of settlements in Delaware based solely on supplemental
disclosures was 63.6% in 2013 and 70.6% in 2014. Figures for 2015 appear to be too
preliminary to be meaningful.
29
    See generally Jill E. Fisch, Sean J. Griffith & Steven Davidoff Solomon, Confronting
the Peppercorn Settlement in Merger Litigation: An Empirical Analysis and a Proposal
for Reform, 93 Tex. L. Rev. 557 (2015) (proposing that state courts reject disclosure
settlements and shift disclosure policing to the federal securities laws). See also J. Travis
Laster, A Milder Prescription for the Peppercorn Settlement Problem in Merger
Litigation, 93 Tex. L. Rev. See Also 129 (2015) (responding to the Fisch, Griffith &
Solomon article, acknowledging similar concerns regarding disclosure settlements, and
proposing solutions involving greater judicial scrutiny of claims at motion to expedite
stage); Matthew D. Cain & Steven Davidoff Solomon, A Great Game: The Dynamics of
State Competition and Litigation, 100 Iowa L. Rev. 465 (2015) (examining merger
litigation data and theorizing that states seeking to attract corporate litigation award
higher fees and dismiss fewer cases); Jeffries, supra note 23 (criticizing disclosure-only
settlements and suggesting legislative responses); Griffith & Lahav, supra note 23
(discussing the value for defendants of receiving release through disclosure-only
settlements and the potential usefulness of multi-jurisdiction litigation). But see Phillip R.
Sumpter, Adjusting Attorneys’ Fee Awards: The Delaware Court of Chancery’s Answer
to Incentivizing Meritorious Disclosure-Only Settlements, 15 U. Pa. J. Bus. L. 669 (2013)
(arguing that disclosure-only settlements can have value and discussing the concept of
awarding of varying levels of fees to encourage or discourage different types of
disclosure settlements).


                                             17
provides empirical data suggesting that supplemental disclosures make no difference in

stockholder voting, and thus provide no benefit that could serve as consideration for a

settlement.30 Another paper, written by a practitioner, provides examples of cases in

which unexplored but valuable claims that almost were released through disclosure

settlements later yielded significant recoveries for stockholders.31 A particularly vivid

example is the recently concluded Rural/Metro case.32          In that case, the Court of

Chancery initially considered it a “very close call”33 to reject a disclosure settlement that

would have released claims which subsequently yielded stockholders over $100 million,

mostly from a post-trial judgment, after new counsel took over the case.34

         Members of this Court also have voiced their concerns over the deal settlement

process, expressing doubts about the value of relief obtained in disclosure settlements,

and explaining their reservations over the breadth of the releases sought and the lack of



30
     Fisch, Griffith & Solomon, supra note 29, at 582-87.
31
   See generally Joel Edan Friedlander, How Rural/Metro Exposes the Systemic Problem
of Disclosure Settlements (U. Pa. L. Sch. Inst. for L. and Econ. Res. Paper No. 15-40,
Draft Dec. 17, 2015), available at http://ssrn.com/abstract=2689877.
32
  In re Rural/Metro Corp., 102 A.3d 205, aff’d sub nom. RBC Capital Mkts., LLC v.
Jervis, – A.3d –, 2015 WL 7721882 (Del. Nov. 30, 2015).
33
  In re Rural/Metro Corp. S’holders Litig., Cons. C.A. No. 6350-VCL, at 134 (Del. Ch.
Jan. 17, 2012) (TRANSCRIPT).
34
   See Friedlander, supra note 31, at 16-22. The paper also examines litigation over the
sale of Prime Hospitality Corporation, which settled for $25 million after a disclosure
settlement was rejected and new counsel was appointed to litigate the case. See id. at 11-
14.


                                             18
any meaningful investigation of claims proposed to be released.35 Judges outside of

Delaware have expressed similar concerns.36

       Given the rapid proliferation and current ubiquity of deal litigation, the mounting

evidence that supplemental disclosures rarely yield genuine benefits for stockholders, the

risk of stockholders losing potentially valuable claims that have not been investigated

with rigor, and the challenges of assessing disclosure claims in a non-adversarial

settlement process, the Court’s historical predisposition toward approving disclosure

settlements needs to be reexamined. In the Court’s opinion, the optimal means by which

disclosure claims in deal litigation should be adjudicated is outside the context of a

35
   See, e.g., Acevedo v. Aeroflex Hldg. Corp., C.A. No. 9730-VCL, at 60-79 (Del. Ch. July
8, 2015) (TRANSCRIPT) (rejecting settlement because relief obtained was insufficient to
support a broad release, and giving the option to reapply with a release tailored only to the
Delaware disclosure and fiduciary claims investigated by plaintiffs); In re Riverbed Tech.,
2015 WL 5458041, at *3-6 (approving settlement, but expressing concerns over agency
problems, lack of adversarial presentation, limited benefit conferred by disclosures, and
noting that broad releases may not be approved going forward); In re Intermune, Inc.
S’holder Litig., C.A. No. 10086-VCN (Del. Ch. July 8, 2015) (TRANSCRIPT) (deferring
decision on a disclosure settlement and questioning whether the releases should be limited
only to disclosure claims) (settlement later approved in C.A. No. 10086-VCN (Del. Ch.
Dec. 29, 2015) (TRANSCRIPT)); In re TW Telecom, Inc. S’holders Litig., C.A. No.
9845-CB (Del. Ch. Aug. 20, 2015) (TRANSCRIPT) (approving a settlement “somewhat
reluctantly” while opining that settlements going forward will receive more scrutiny and
that all but one disclosure obtained had “no consequential value”).
36
   See, e.g., In re Allied Healthcare S’holder Litig., 2015 WL 6499467, at *2 (N.Y. Sup.
Ct. Oct. 23, 2015) (rejecting a settlement and expressing concern that “in the area of
derivative litigation, a culture has developed that results in cases of relatively worthless
settlements (derivative actions are rarely tried to a verdict) that discontinue the action
(with releases) resulting in the corporate defendants not opposing an agreed upon legal
fee to class counsel”); City Trading Fund v. Nye, 2015 WL 93894 (N.Y. Sup. Ct. Jan. 7,
2015) (rejecting a settlement the court regarded as exceptionally frivolous and noting that
the nature of “merger tax suits” incentivizes settlement regardless of a case’s frivolity).


                                             19
proposed settlement so that the Court’s consideration of the merits of the disclosure

claims can occur in an adversarial process where the defendants’ desire to obtain a release

does not hang in the balance.

         Outside the settlement context, disclosure claims may be subjected to judicial

review in at least two ways. One is in the context of a preliminary injunction motion, in

which case the adversarial process would remain intact and plaintiffs would have the

burden to demonstrate on the merits a reasonable likelihood of proving that “the alleged

omission or misrepresentation is material.”37 In other words, plaintiffs would bear the

burden of showing “a substantial likelihood that the disclosure of the omitted fact would

have been viewed by the reasonable investor as having significantly altered the ‘total mix’

of information made available.”38

         A second way is when plaintiffs’ counsel apply to the Court for an award of

attorneys’ fees after defendants voluntarily decide to supplement their proxy materials by

making one or more of the disclosures sought by plaintiffs, thereby mooting some or all

of their claims. In that scenario, where securing a release is not at issue, defendants are

incentivized to oppose fee requests they view as excessive.39 Hence, the adversarial


37
     Gantler v. Stephens, 965 A.2d 695, 710 (Del. 2009).
38
     Id. (quoting Arnold v. Soc’y for Sav. Bancorp, Inc., 650 A.2d 1270, 1277 (Del. 1994)).
39
   If defendants do not oppose a mootness fee application, then the Court presumably
would not have the benefit of any opposing position when considering the application
unless an objector appeared. But, in that case, the Court would have some indication of
the reasonableness of the fee request.


                                              20
process would remain in place and assist the Court in its evaluation of the nature of the

benefit conferred (i.e., the value of the supplemental disclosures) for purposes of

determining the reasonableness of the requested fee.

         In either of these scenarios, to the extent fiduciary duty claims challenging the

sales process remain in the case, they may be amenable to dismissal. Harkening back to

Chancellor Allen’s words in Solomon, the Court would be cognizant of the need to “apply

the pleading test under Rule 12 with special care” in stockholder litigation because “the

risk of strike suits means that too much turns on the mere survival of the complaint.”40 In

that regard, both the litigants and the Court are aided today by thirty years of

jurisprudence that now exists interpreting the principles enunciated in Unocal and Revlon

that often are central to reviewing fiduciary conduct in deal litigation.41

         The preferred scenario of a mootness dismissal appears to be catching on. In the

wake of the Court’s increasing scrutiny of disclosure settlements, the Court has observed

40
     1995 WL 250374, at *4.
41
   That jurisprudence includes the Delaware Supreme Court’s recent express confirmation
that “the business judgment rule is invoked as the appropriate standard of review for a
post-closing damages action when a merger that is not subject to the entire fairness
standard of review has been approved by a fully informed, uncoerced majority of the
disinterested stockholders.” Corwin v. KKR Fin. Hldgs. LLC, 125 A.3d 304, 305-06 (Del.
2015).

In this case, because the disputed transaction involved a stock-for-stock merger of widely
held, publicly traded corporations, plaintiffs’ claims presumably would not benefit from
the enhanced scrutiny of Revlon and instead would need to overcome the business
judgment presumption. Paramount Commc’ns, Inc. v. QVC Network, Inc., 637 A.2d 34,
46-47 (Del. 1994) (quoting Paramount Commc’ns Inc. v. Time Inc., 1989 WL 79880, at
*23 (Del. Ch. July 14, 1989), aff’d, 571 A.2d 1140 (Del. 1989)).


                                              21
an increase in the filing of stipulations in which, after disclosure claims have been mooted

by defendants electing to supplement their proxy materials, plaintiffs dismiss their actions

without prejudice to the other members of the putative class (which has not yet been

certified) and the Court reserves jurisdiction solely to hear a mootness fee application.42

From the Court’s perspective, this arrangement provides a logical and sensible framework

for concluding the litigation. After being afforded some discovery to probe the merits of

a fiduciary challenge to the substance of the board’s decision to approve the transaction in

question, plaintiffs can exit the litigation without needing to expend additional resources

(or causing the Court and other parties to expend further resources) on dismissal motion

practice after the transaction has closed. Although defendants will not have obtained a

formal release, the filing of a stipulation of dismissal likely represents the end of fiduciary

challenges over the transaction as a practical matter.

       In the mootness fee scenario, the parties also have the option to resolve the fee

application privately without obtaining Court approval. Twenty years ago, Chancellor

Allen acknowledged the right of a corporation’s directors to exercise business judgment

to expend corporate funds (typically funds of the acquirer, who assumes the expense of

defending the litigation after the transaction closes) to resolve an application for

42
  See, e.g., In re Family Dollar Stores, Inc. S’holder Litig., C.A. No. 9985-CB (Del. Ch.
Aug. 4, 2015) (ORDER) (dismissing case with prejudice to plaintiffs and without
prejudice to class, where supplemental disclosures had mooted certain claims, and setting
schedule for mootness fee application); In re Zalicus, Inc. S’holder Litig., C.A. No.
9602-CB (Del. Ch. Nov. 12, 2014) (ORDER) (dismissing action without prejudice after
defendants had mooted certain disclosure claims, and setting schedule for mootness fee
application).


                                              22
attorneys’ fees when the litigation has become moot, with the caveat that notice must be

provided to the stockholders to protect against “the risk of buy off” of plaintiffs’

counsel.43 As the Court recently stated, “notice is appropriate because it provides the

information necessary for an interested person to object to the use of corporate funds,

such as by ‘challeng[ing] the fee payment as waste in a separate litigation,’ if the

circumstances warrant.”44 In other words, notice to stockholders is designed to guard

against potential abuses in the private resolution of fee demands for mooted

representative actions. With that protection in place, the Court has accommodated the use

of the private resolution procedure on several recent occasions and reiterates here the

propriety of proceeding in that fashion.45

       Returning to the historically trodden but suboptimal path of seeking to resolve

disclosure claims in deal litigation through a Court-approved settlement, practitioners

should expect that the Court will continue to be increasingly vigilant in applying its

independent judgment to its case-by-case assessment of the reasonableness of the “give”

43
  In re Advanced Mammography Sys., Inc. S’holders Litig., 1996 WL 633409, at *1 (Del.
Ch. Oct. 30, 1996); see also In re Cellular Commc’ns Int’l, Inc. S’holders Litig., 752
A.2d 1185, 1188 (Del. Ch. 2000).
44
  In re Zalicus, Inc. S’holders Litig., 2015 WL 226109, at *2 (Del. Ch. Jan. 16, 2015)
(quoting Hack v. Learning Co., 1996 WL 633306, at *2 (Del. Ch. Oct. 29, 1996)).
45
  See, e.g., Swomley v. Schlecht, 2015 WL 1186126, at *1-2 (Del. Ch. Mar. 12, 2015)
(setting forth class notice procedure for mootness fee, after defendants mooted certain
disclosure claims and successfully moved to dismiss rest of case); In re Zalicus, 2015 WL
226109, at *1-2 (supporting private mootness fee resolution procedure while requiring
that adequate notice be provided to stockholders); Astex Pharm., Inc. S’holders Litig.,
2014 WL 4180342, at *1-2 (Del. Ch. Aug. 25, 2014) (same).


                                             23
and “get” of such settlements in light of the concerns discussed above. To be more

specific, practitioners should expect that disclosure settlements are likely to be met with

continued disfavor in the future unless the supplemental disclosures address a plainly

material misrepresentation or omission, and the subject matter of the proposed release is

narrowly circumscribed to encompass nothing more than disclosure claims and fiduciary

duty claims concerning the sale process, if the record shows that such claims have been

investigated sufficiently.46 In using the term “plainly material,” I mean that it should not

be a close call that the supplemental information is material as that term is defined under

Delaware law. Where the supplemental information is not plainly material, it may be

appropriate for the Court to appoint an amicus curiae to assist the Court in its evaluation

of the alleged benefits of the supplemental disclosures, given the challenges posed by the

non-adversarial nature of the typical disclosure settlement hearing.47


46
  In contrast to the settlement context, the Court does not need to weigh the “get” of the
supplemental disclosures against the “give” of a release when determining whether to
grant an award of fees in the mootness fee scenario discussed above. Accordingly, an
award of fees in the mootness fee scenario may be appropriate for supplemental
disclosures of less significance than would be necessary to sustain approval of a
settlement. The amount of the fee in the mootness scenario, however, would be
commensurate with the value of the benefit conferred. Thus, for example, a supplemental
disclosure of nominal value would warrant only a nominal fee award.
47
   See Hoffman v. Dann, 205 A.2d 343, 345 (Del. 1964) (noting that “the Chancellor
appointed an amicus curiae to report to him on the relevant issues to be tendered at the
hearing on the proposed settlement, and as to proof which would be of assistance to him
in passing on the fairness of the settlement.”). The costs of the amicus curiae may be
taxed to the parties, as appropriate, in the Court’s discretion. See 3B C.J.S. Amicus
Curiae § 6 (“Where the court appoints an amicus curiae who renders services which prove
beneficial to the solution of the question presented, the court may properly award
compensation and direct it to be paid by the party responsible for the situation that

                                             24
         Finally, some have expressed concern that enhanced judicial scrutiny of disclosure

settlements could lead plaintiffs to sue fiduciaries of Delaware corporations in other

jurisdictions in the hope of finding a forum more hospitable to signing off on settlements

of no genuine value. It is within the power of a Delaware corporation to enact a forum

selection bylaw to address this concern.48 In any event, it is the Court’s opinion, based on

its extensive experience in adjudicating cases of this nature, that the historical

predisposition that has been shown towards approving disclosure settlements must evolve

for the reasons explained above. We hope and trust that our sister courts will reach the

same conclusion if confronted with the issue.

         With the foregoing considerations in mind, I consider next the “give” and the “get”

of the proposed settlement in this case.

         C.     The Supplemental Disclosures Are not Material and Provided no
                Meaningful Benefit to Stockholders

         Under Delaware law, when directors solicit stockholder action, they must “disclose

fully and fairly all material information within the board’s control.”49 Delaware has



prompted the court to make the appointment.”). Cf. Chapin v. Benwood Found., Inc.,
1977 WL 2583, at *1 (Del. Ch. June 28, 1977) (describing appointment of individual
trustee defendant as amicus curiae with costs paid by defendant corporation, as agreed by
the parties). Scholars have proposed a similar solution in which the Court may “appoint
an objector as a kind of guardian ad litem for the class.” See Griffith & Lahav, supra
note 23, at 1122 n.309 (compiling sources for proposal).
48
  See Boilermakers Local 154 Ret. Fund v. Chevron Corp., 73 A.3d 934, 963 (Del. Ch.
2013) (upholding statutory validity of forum selection bylaw).
49
     Stroud v. Grace, 606 A.2d 75, 84 (Del. 1992).


                                             25
adopted the standard of materiality used under the federal securities laws. Information is

material “if there is a substantial likelihood that a reasonable shareholder would consider

it important in deciding how to vote.”50 In other words, information is material if, from

the perspective of a reasonable stockholder, there is a substantial likelihood that it

“significantly alter[s] the ‘total mix’ of information made available.”51

         Here, the joint Proxy that Trulia and Zillow stockholders received in advance of

their respective stockholders’ meetings to consider whether to approve the proposed

transaction ran 224 pages in length, excluding annexes. It contained extensive discussion

concerning, among other things, the background of the mergers, each board’s reasons for

recommending approval of the proposed transaction, prospective financial information

concerning the companies that had been reviewed by their respective boards and financial

advisors, and explanations of the opinions of each company’s financial advisor. In the

case of Trulia, the opinion of J.P. Morgan was summarized in ten single-spaced pages.

         The Supplemental Disclosures plaintiffs obtained in this case solely concern the

section of the Proxy summarizing J.P. Morgan’s financial analysis, which the Trulia

board cited as one of the factors it considered in deciding to recommend approval of the

proposed merger.52 Specifically, these disclosures provided additional details concerning:


50
   Rosenblatt v. Getty Oil Co., 493 A.2d 929, 944 (Del. 1985) (adopting materiality
standard of TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976)).
51
     Arnold v. Soc’y for Sav. Bancorp, 650 A.2d 1270 at 1277.
52
     Proxy at 118.


                                             26
(1) certain synergy numbers in J.P. Morgan’s value creation analysis; (2) selected

comparable transaction multiples; (3) selected public trading multiples; and (4) implied

terminal EBITDA multiples for a relative discounted cash flow analysis.

           Relevant to considering the materiality of information disclosed in this section of

the Proxy, then-Vice Chancellor Strine observed in In re Pure Resources, Inc.

Shareholders Litigation that there were “conflicting impulses” in Delaware case law

about whether, when seeking stockholder action, directors must disclose “investment

banker analyses in circumstances in which the bankers’ views about value have been cited

as justifying the recommendation of the board.”53 The Court held that, under Delaware

law, when the board relies on the advice of a financial advisor in making a decision that

requires stockholder action, those stockholders are entitled to receive in the proxy

statement “a fair summary of the substantive work performed by the investment bankers

upon whose advice the recommendations of their board as to how to vote on a merger or

tender rely.”54 This “fair summary” standard has been a guiding principle for this Court

in considering proxy disclosures concerning the work of financial advisors for more than

a decade.55



53
  808 A.2d 421, 449 (Del. Ch. 2002) (discussing, among other decisions, Skeen v. Jo-Ann
Stores, Inc., 750 A.2d 1170 (Del. 2000) and McMullin v. Beran, 765 A.2d 910 (Del.
2000)).
54
     Id.
55
  See, e.g., In re Netsmart Techs., Inc. S’holders Litig., 924 A.2d 171, 203-04 (Del. Ch.
2007) (“[W]hen a banker’s endorsement of the fairness of a transaction is touted to

                                               27
       A fair summary, however, is a summary. By definition, it need not contain all

information underlying the financial advisor’s opinion or contained in its report to the

board.56 Indeed, this Court has held that the summary does not need to provide sufficient

data to allow the stockholders to perform their own independent valuation.57 The essence



shareholders, the valuation methods used to arrive at that opinion as well as the key inputs
and range of ultimate values generated by those analyses must also be fairly disclosed.”).
56
   See, e.g., In re Micromet, Inc. S’holders Litig., 2012 WL 681785, at *11 (Del. Ch. Feb.
29, 2012) (rejecting claim that the board failed to disclose underlying assumptions and
bases for probabilities of success of clinical trial drugs) (“Stockholders are entitled to a
fair summary of the substantive work performed by the investment bankers, but Delaware
courts have repeatedly held that a board need not disclose specific details of the analysis
underlying a financial advisor’s opinion.”) (internal quotation marks omitted); In re
Cogent, Inc. S’holder Litig., 7 A.3d 487, 511 (Del. Ch. 2010) (holding stockholders are
entitled to fair summary, but not to minutiae, and rejecting requests for additional
disclosures); Ryan v. Lyondell Chem. Co., 2008 WL 2923427, at *20 & n.120 (Del. Ch.
July 29, 2008) (finding that fair summary did not require disclosure of all projections, as
long as it disclosed description of valuation exercises, key assumptions, and range of
values generated; but noting that the failure to disclose that the financial advisor used a
significantly higher WACC in its calculation than management’s WACC estimate, even
when it was using management’s other financial projections, could constitute a disclosure
violation), rev’d on other grounds, 970 A.2d 235 (Del. 2009). See also David P.
Simonetti Rollover IRA v. Margolis, 2008 WL 5048692, at *9-10 (Del. Ch. June 27, 2008)
(distinguishing Pure Resources as a case in which a proxy statement was deficient
because it did not disclose “any substantive portions of the bankers’ work”) (internal
quotation marks omitted); In re MONY Grp. Inc. S’holder Litig., 852 A.2d 9, 28 (Del. Ch.
2004) (“The plain meaning of ‘summary’ belies the Stockholders’ interpretation.”).
57
  See Globis P’rs, L.P. v. Plumtree Software, Inc., 2007 WL 4292024, at *12-13 (Del.
Ch. Nov. 30, 2007) (rejecting disclosure claims for various details that may have been
helpful in determining accuracy of analysis) (“Delaware law does not require disclosure
of all the data underlying a fairness opinion such that a shareholder can make an
independent determination of value.”); In re Gen. Motors (Hughes) S’holder Litig., 2005
WL 1089021, at *16 (Del. Ch. May 4, 2005) (rejecting claim for information that would
amount to “the raw data behind the advisors’ updated summaries”) (“A disclosure that
does not include all financial data needed to make an independent determination of fair
value is not, however, per se misleading or omitting a material fact. The fact that the

                                            28
of a fair summary is not a cornucopia of financial data, but rather an accurate description

of the advisor’s methodology and key assumptions.58          In my view, disclosures that

provide extraneous details do not contribute to a fair summary and do not add value for

stockholders.59

       With the foregoing principles in mind, I consider next whether any of the four

specific Supplemental Disclosures that plaintiffs obtained here were material or whether

they provided any benefit to Trulia’s stockholders at all.




financial advisors may have considered certain non-disclosed information does not alter
this analysis.”), aff’d, 897 A.2d 162 (Del. 2006).

One important qualification bears mention. Although management projections and
internal forecasts are not per se necessary for a fair summary, this Court has placed
special importance on this information because it may contain unique insights into the
value of the company that cannot be obtained elsewhere. See In re Netsmart Techs., 924
A.2d at 203 (noting that management projections can be important because management
can have “meaningful insight into their firms’ futures that the market [does] not”).
58
   See In re 3Com S’holders Litig., 2009 WL 5173804, at *2-3 (Del. Ch. Dec. 18, 2009)
(rejecting claim for omission of financial projections because “an adequate and fair
summary of the work performed by [the advisor] [was] included in the proxy”); In re
CheckFree Corp. S’holders Litig., 2007 WL 3262188, at *3 (Del. Ch. Nov. 1, 2007)
(distinguishing Netsmart and rejecting disclosure claim based on omission of
management financial projections, because proxy statement fairly summarized financial
advisor’s methods and conclusions); In re Pure Res., 808 A.2d at 449 (noting in fair
summary discussion that stockholders would find it material to know the advisor’s basic
valuation exercises, key assumptions of those exercises, and range of values produced).
59
   See In re PAETEC Hldg. Corp. S’holders Litig., 2013 WL 1110811, at *8 (Del. Ch.
Mar. 19, 2013) (citing In re Pure Res., 808 A.2d at 449) (declining to award settlement
fees for disclosures that “provide a level of detail beyond what the law of Delaware
requires”).


                                             29
         1.     Synergy Numbers in the Value Creation Analysis

         The Supplemental Disclosures provided some additional details in the sections of

J.P. Morgan’s analysis entitled “Value Creation Analysis – Intrinsic Value Approach” and

“Value Creation Analysis – Market-Based Approach.” In the “Intrinsic Value Approach”

analysis, J.P. Morgan compared the implied equity value derived from its discounted cash

flow analysis of Trulia on a standalone basis to Trulia stockholders’ pro forma ownership

of the implied equity value of the combined company. In the “Market- Based Approach,”

J.P. Morgan compared the public market equity value of Trulia on a standalone basis to

Trulia stockholders’ pro forma ownership of the implied equity value of the combined

company.

         As supplemented, the disclosure concerning the Intrinsic Value Approach reads in

relevant part as follows, with the information that was added to the original disclosure in

the Proxy appearing in bolded text:

         The pro forma combined company equity value was equal to: (1) the Trulia
         standalone discounted cash flow value of $2.9 billion, plus (2) the Zillow
         standalone discounted cash flow value of $6.2 billion, plus (3) $2.2 billion,
         representing the present value of (a) Trulia’s management expected after-
         tax synergies of $2.4 billion, less (b) Trulia’s management estimates of
         (i) the one-time costs to achieve such synergies of $65.0 million and
         (ii) transaction expenses of $85 million. The present value of after-tax
         synergies was based on an estimate of $175.0 million in synergies to be
         fully realized starting in 2016, extrapolated through 2029 based on
         assumptions provided by Trulia’s management.60




60
     Supplemental Disclosures at 5-6.


                                              30
Plaintiffs argue that the disclosure of the $175 million synergies figure in the quote above

was important because it is substantially different from the $100 million in synergies that

J.P. Morgan used in the Market-Based Approach, which figure already was disclosed in

the Proxy.61         According to plaintiffs, “[h]ad [stockholders] initially known that the

market-based approach analysis was skewed downward by using lower synergies

numbers, their view as to the resulting implied value and reliability of [J.P. Morgan’s]

analysis may have changed appreciably.”62 There are three fundamental problems with

this argument.

          First, although plaintiffs question why J.P. Morgan used two different synergies

figures in two different analyses, they provide no explanation as to why doing so would

be inappropriate. To the contrary, it seems logical that an intrinsic value approach (which

is based on a comparison derived from a discounted cash flow analysis) would use

synergies based on long-term management projections, while a market-based approach

(which is based on a comparison to the public market equity value of Trulia) would use

synergies based on what would be publicly announced to investors. Regardless, the Proxy

accurately disclosed which synergies assumptions the financial advisor deemed

appropriate to use in each analysis.63


61
  Pls.’ Br. Supp. Proposed Settlement at 23 (citing Proxy at 103 (noting that the synergies
“are expected to be at least $100 million in annualized cost savings by 2016”)).
62
     Id. at 23-24.
63
     Proxy at 130, 132.


                                                31
         Second, the $175 million synergies figure that plaintiffs consider so important was

not new information.       It already was disclosed in the Proxy, which contained the

following table providing information about management’s synergies expectations:64

         The following table presents summary estimated synergies that Trulia’s
         management also prepared in respect of the combined company following
         the completion of the mergers for the calendar years ending 2014 through
         2024 in connection with Trulia’s evaluation of the mergers.




         (1)    “Total Operating Synergies” means the expected EBIT effect of
         revenue synergies plus the EBIT effect of cost savings/cost avoidance less
         one-time costs to achieve and retain such synergies. “EBIT” means
         earnings before interest and taxes. An assumed tax rate of 40% was
         applied to Total Operating Synergies to determine estimated after-tax
         synergies. Projected synergies (including costs to achieve synergies) were
         prepared by Trulia’s management through fiscal year 2016 after discussion
         with Zillow’s management. The management of Trulia provided J.P.
         Morgan with assumptions relating to projected synergies for fiscal years
         2017 through 2024 deemed appropriate by Trulia’s management. The
         management of Trulia then directed J.P. Morgan to use these assumptions
         in extrapolating such estimated synergies for fiscal years extending beyond
         those for which the management of Trulia had provided projections. The
         management of Trulia then reviewed and approved such extrapolation of
         the synergies.65

Because the $175 million figure for 2016 synergies already appeared in this table,

inserting it into a methodological paragraph a few pages later is of no benefit to

64
  Plaintiffs’ counsel was not aware that this information already was disclosed in the
Proxy until the Court pointed it out at the settlement hearing. See Hr’g Tr. 12-15, Sept.
16, 2015. If the proposed settlement had been opposed, this fact presumably would have
been brought to the attention of plaintiffs and the Court.
65
     Proxy at 123.


                                             32
stockholders. In my view, the supplemental disclosure may have added confusion more

than anything else, because it lacks explanatory context and does not clearly describe the

nature of management’s estimate of synergies that was disclosed in the original Proxy.66

         Third, plaintiffs exaggerate the significance of juxtaposing the synergy figures

used in the Intrinsic Value Approach with those used in the Market-Based Approach. In

contrast to the Intrinsic Value Approach, the Market-Based Approach was placed in the

end of the summary of the financial advisor’s analysis in the “Other Information” section,

was termed an “illustrative value creation analysis,” and “was presented merely for

informational purposes.”67 As plaintiffs concede, a “fair reading” of the Proxy indicates

that the Market-Based Approach analysis was less important than the Intrinsic Value

Approach analysis.68 Thus, the notion that the disclosure of the $175 million synergies

figure used in one analysis (which already was disclosed in the Proxy) was significant

because it was higher than the $100 million figure used in a second, different analysis is

based on a false equivalence of the relative importance of the two analyses.

         In sum, the disclosures in the original Proxy already provided a fair summary of

J.P. Morgan’s methodology and assumptions in its two “Value Creation” analyses.


66
  For instance, the Supplemental Disclosures refer to the expected synergies after 2016 as
extrapolations through 2029 based on management’s assumptions. But the table in the
Proxy, produced above, notes that management provided assumptions regarding synergies
through 2024. Plaintiffs do not address this ambiguity.
67
     Proxy at 131-32.
68
     Hr’g Tr. 15, Sept. 16, 2015.


                                            33
Inserting additional minutiae underlying some of the assumptions could not reasonably

have been expected to significantly alter the total mix of information and thus was not

material. Indeed, in my view, the supplemental information was not even helpful to

stockholders.

          2.       Individual Company Multiples in the Selected Transaction Analysis

          The Proxy disclosed that J.P. Morgan used publicly available information to

analyze certain selected precedent transactions involving companies engaged in

businesses that J.P. Morgan considered analogous to Trulia’s businesses.69 The Proxy

listed the date, the target, and the acquirer for each of 32 transactions that were

considered. It also disclosed the low and high forward EBITDA multiples for the group

of transactions. Using a narrower range of multiples falling between the low and the high

for the group, J.P. Morgan created an estimated range of equity values per share for Trulia

common stock. This methodology was summarized in the Proxy as follows:

          J.P. Morgan reviewed the implied firm value for each of the transactions as
          a multiple of the target company’s two-year forward EBITDA immediately
          preceding the announcement of the transaction. The analysis indicated a
          range of EBITDA multiples of 8.0x to 69.1x. Based on the result of this
          analysis and other factors that J.P. Morgan considered appropriate, J.P.
          Morgan applied an EBITDA multiple range of 10.0x to 23.0x to Trulia’s
          fiscal 2015 Adjusted EBITDA and arrived at an estimated range of equity
          values per share for Trulia common stock of $17.25-$38.50.70




69
     Proxy at 129-30.
70
     Id. at 130.


                                              34
         Plaintiffs’ grievance is that the Proxy did not provide the relevant multiples for each

of the 32 individual transactions.          The individual multiples were added in the

Supplemental Disclosures for those transactions for which the information was publicly

available.71 The addition of this information made evident that multiples were not publicly

available for 15 of the 32 transactions. Plaintiffs argue that, without the Supplemental

Disclosures, stockholders would not have realized that J.P. Morgan’s analysis did not

consider multiples for half of the precedent transactions it listed and was therefore less

robust than the Proxy portrayed it to be.

         The addition of the individual multiples and the revelation that some were not

publicly available could not reasonably have been expected to significantly alter the total

mix of information.        No argument is made, for example, that having 16 similar

transactions was not sufficient to perform the analysis that J.P. Morgan conducted. The

discussion in the Proxy, moreover, including the portion quoted above, fairly summarized

the methodology and assumptions J.P. Morgan used in conducting that analysis to

extrapolate a range of per share values for Trulia stock. A fair summary does not require

disclosure of sufficient data to allow stockholders to perform their own valuation.72




71
  In one case, the publicly available multiple was not included because it exceeded 100x
and thus was not considered meaningful. Supplemental Disclosures at 5.
72
     In re Gen. Motors (Hughes), 2005 WL 1089021, at *16.


                                               35
          This conclusion is supported by the Court’s decision in In re MONY Group

Shareholder Litigation.73 There, the Court rejected a similar argument that the disclosure

of transaction multiples was important because it showed that 25% of the multiples in a

set of 71 transactions were unavailable. After noting that the plaintiffs had not argued

that the financial advisor did not have sufficient data to perform its analysis, the Court

held that the additional information was “immaterial, as a matter of law,” and a “triviality

[that] could not reasonably be expected to affect the total mix of information.”74 In my

view, the addition of similar trivialities was not helpful to Trulia’s stockholders here.

          3.      Individual Company Multiples in the Selected Public Trading Analysis

          The Proxy disclosed the names of sixteen publicly traded companies that J.P.

Morgan used to construct ranges of forward EBITDA and revenue multiples for Trulia

and Zillow.75 The Proxy provided these multiples for Trulia and Zillow based on their

last unaffected trading day before the announcement of the merger, and provided the

median multiples for the three groups into which J.P. Morgan categorized the sixteen

comparable companies: “Real Estate,” “Software as a Service,” and “Other.” The Proxy

did not include individual multiples for the peer companies.




73
     852 A.2d 9 (Del. Ch. 2004).
74
     Id. at 28.
75
     Proxy at 125-26.


                                             36
           The Supplemental Disclosures added the revenue and EBITDA multiples for each

of the sixteen companies. Citing In re Celera Corporation Shareholder Litigation,76

plaintiffs argue, in essence, that individual company multiples are material per se. That is

not a fair reading of the case. In Celera, the Court commented that “as a matter of best

practices, a fair summary of a comparable companies or transactions analysis probably

should disclose the market multiples derived for the comparable companies or

transactions.”77 Although the decision reluctantly concluded that a multiples disclosure

was compensable, it found it “questionable whether [the multiples] altered the ‘total mix’

of available information” because that information “already was publicly available.”78

The individual company multiples in the Supplemental Disclosures here also were already

publicly available.79


76
  2012 WL 1020471 (Del. Ch. Mar. 23, 2012), aff’d in part, rev’d in part on other
grounds, 59 A.3d 418 (Del. 2012).
77
     Id. at *32.
78
     Id.
79
   Meinhart, plaintiffs’ expert, points out that not all stockholders can access all of this
information because some of the forward-looking data are available only from proprietary
fee-based services. It may be correct that not all of these data would be freely or easily
obtainable. A fair summary, however, does not require disclosure of sufficient data to
allow stockholders to perform their own valuation. And it certainly does not require
disclosure of underlying data that stockholders could obtain on their own, even if doing
so would involve some cost or investment of time. Meinhart also opines that the
multiples show a high level of dispersion, but he fails to explain how that information
undermines J.P. Morgan’s analysis or is otherwise informative considering that J.P.
Morgan explicitly stated that its analysis was not strictly quantitative in nature. See Proxy
at 126-27 (“J.P. Morgan did not rely solely on the quantitative results . . . . Based on
various judgments concerning relative comparability of each of the selected companies to

                                             37
         More importantly, the original disclosures in Celera simply listed the comparable

companies with no summary multiple data at all.80 Although the supplemental disclosures

in that case added summary data for each of three categories of companies, they did not

provide any individual company multiples.81 In other words, the disclosures in Trulia’s

Proxy, which provided the median multiples for three different categories of companies

that J.P. Morgan considered in its judgment to be similar to Trulia, essentially started at

the point where Celera ended.82

         Plaintiffs next argue that the individual multiples are important here because they

allow stockholders to compare the selected companies’ EBITDA growth rates and

EBITDA multiples to Trulia’s. This argument is unpersuasive for two reasons. First,

basic valuation principles already would suggest to stockholders that higher growth rates


Trulia, as well its experience with the industry . . . J.P. Morgan selected a range of
revenue and Adjusted EBITDA multiples that it believed reflected an appropriate range
of multiples applicable to Trulia.”).
80
     See In re Celera Corp., 2012 WL 1020471, at *32.
81
  See id. The supplemental disclosure in Celera added more categories of summary data,
namely the high, low, median, and mean multiples. This distinction is immaterial. The
point of a fair summary is to summarize the methodologies and assumptions the financial
advisor used in its analysis. Here, the Proxy fairly summarizes J.P. Morgan’s use of
multiples in its trading multiples analysis.
82
   Plaintiffs also rely on a transcript ruling in Turberg v. ArcSight, C.A. No. 5821-VCL
(Del. Ch. Sept. 20, 2011) (TRANSCRIPT). As in Celera, the initial description in
ArcSight did not have any multiples at all. The plaintiff obtained a full description of the
analysis comparable to the depiction that would appear in a board book. The Court
praised that disclosure in the context of a non-adversarial presentation regarding
settlement approval. The case is distinguishable because, unlike here, no summary
multiples were initially provided to stockholders.


                                             38
should correspond to higher multiples.83 Second, the Supplemental Disclosures do not

contain EBITDA growth rates, so the figures necessary to make that comparison are not

present in any event. Thus, plaintiffs have not persuaded me that individual company

multiples are material or were even helpful in this case.

         4.     Implied Terminal EBITDA Multiples in the DCF Analysis

         J.P. Morgan performed a relative discounted cash flow analysis to determine the

per-share equity values of Trulia and Zillow, using expected cash flows from 2014

through 2028 based on management’s projections for each company and the perpetuity

growth method to calculate the companies’ respective terminal values.84 The Proxy

explained this methodology and provided the assumptions J.P. Morgan used in its

analysis. Specifically, the Proxy disclosed management’s projections of unlevered free

cash flows, the ranges of discount rates (11.0% to 15.0%) and perpetuity growth rates

(2.5% to 3.5%) that were used, the terminal period projected cash flows, and other

details.85 In my view, these disclosures already provided a more-than-fair summary of the

relative discounted cash flow analysis that J.P. Morgan performed.




83
   Joshua Rosenbaum & Joshua Pearl, Investment Banking: Valuation, Leveraged
Buyouts, and Mergers & Acquisitions 19 (2009) (“A company’s growth profile, as
determined by its historical and estimated future financial performance, is an important
driver of valuation. Equity investors reward high growth companies with higher trading
multiples than slower growing peers.”).
84
     See Proxy at 127.
85
     See id. at 108, 122, 127.


                                             39
         The Supplemental Disclosures added to this summary the EBITDA exit multiple

ranges for Trulia and Zillow that were implied by the range of terminal values calculated

based on J.P. Morgan’s chosen inputs. Plaintiffs argue that, although J.P. Morgan used

the perpetuity growth method and only derived the implied EBITDA exit multiples to

check the strength of its methodology, the implied multiples were important to

stockholders, who would be concerned that the exit multiples for Trulia and Zillow are

nearly identical despite differences in their current EBITDA growth rates, and that the

exit multiples are much lower than the current EBITDA multiples of Trulia and its

peers.86

         The logic of plaintiffs’ argument is flawed in two respects. First, because the same

range of perpetuity growth rates (2.5% to 3.5%) was used to calculate the terminal values

for both companies, it should not have been surprising that the implied exit EBITDA

multiples would be similar for both companies: 4.0x to 6.7x for Trulia and 4.1x to 6.8x

for Zillow. Second, although Trulia’s then-current EBITDA growth rate was high, the

exit EBITDA multiples are based on growth assumptions as of 2028, not 2015, and the

2015 growth rate cannot realistically continue through the projection period.87 Basic

principles of valuation suggest that it would be more reasonable to forecast that the

86
     Pls.’ Br. Supp. Proposed Settlement at 30-31.
87
  Id. at 26 (noting Trulia’s expected EBITDA growth rate of 148% and the “decided
correlation between higher growth rates and higher valuation multiples”). Were Trulia
able to retain this impressive EBITDA growth rate for the entire forecast period, its 2028
EBITDA would amount to nearly $10 trillion, more than half the current GDP of the
United States.


                                              40
growth of both Trulia and Zillow eventually would fall to a market-based rate, making

plaintiffs’ comparison to the current growth rates of Trulia and its peers inappropriate.88

Thus, not only is the supplemental disclosure immaterial, it also serves none of the

purposes that plaintiffs allege.


                                         *****


       For the reasons explained above, none of plaintiffs’ Supplemental Disclosures

were material or even helpful to Trulia’s stockholders. The Proxy already provided a

more-than-fair summary of J.P. Morgan’s financial analysis in each of the four respects

criticized by the plaintiffs. As such, from the perspective of Trulia’s stockholders, the

“get” in the form of the Supplemental Disclosures does not provide adequate

consideration to warrant the “give” of providing a release of claims to defendants and

their affiliates, in the form submitted89 or otherwise.      Accordingly, I find that the

proposed settlement is not fair or reasonable to Trulia’s stockholders.90


88
  See Rosenbaum & Pearl, supra note 83, at 132 (“The perpetuity growth rate is typically
chosen on the basis of the company’s expected long-term industry growth rate, which
generally tends to be within a range of 2% to 4% (i.e., nominal GDP growth).”).
89
   As noted above, after the settlement hearing, the parties commendably agreed to narrow
the release to exclude “Unknown Claims,” foreign claims, and claims arising under state
or federal antitrust law. Nevertheless, even if the Supplemental Disclosures had provided
sufficient consideration to warrant the “give” of a release of claims, which they did not,
the scope of the revised release still would have been too broad to support a fair and
reasonable settlement because the revised release was not limited to disclosure claims and
fiduciary duty claims concerning the decision to enter the merger.
90
   Because I reject the proposed settlement, I do not address the issue of class
certification, although stockholder classes in cases such as this are typically certified.

                                             41
III.   CONCLUSION

       For the foregoing reasons, approval of the proposed settlement is DENIED.

IT IS SO ORDERED.




                                          42
