The Difficult Standard of Proof for Consumer Confusion: Eli Research, LLC v. Must Have Info, Inc.

By: Emily Wolfford

The Lanham Act,[1] also known as the Trademark Act of 1946 (“the Act”), is an act that has long been disputed for clarification.[2] The Act was created with the intention to prohibit any false designation of a trademark for the purpose of preventing confusion for consumers in the market. This is most often seen in what is known as “passing off” where Company A uses Company B’s logo to “pass off” Company A’s goods as the goods of Company B.[3]

In Eli Research, LLC v. Must Have Info, Inc.[4], two parties further disputed over clarification of the Act. On September 27, 2013, American Academy Holdings (AAH) and Eli Research, Inc. initiated a lawsuit against Must Have Info, Inc. for alleged trademark infringement under the Act. The plaintiff’s sought an injunction against two former employees of Eli Research for their misuse of private company information and practices including the use of the company logo for purposes of passing off.[5] The plaintiffs discovered the use of the mark by the defendants when the wife of an employee for the plaintiff received an email advertising the defendant’s company with the exact logo owned and registered by the plaintiffs.

The Act finds a defendant liable for trademark infringement if the defendant uses “in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark” without express consent.[6] The plaintiff bears the burden of proving a valid mark and the defendant’s use thereof.

The Act clearly defines a trademark as “any word, name, symbol, or device, or any combination thereof used by a person to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others.”[7] This is notably different from either a service mark, used to promote services, and a certification mark; however, the Act seeks to protect any registered mark.[8] The first disputed issue brought by the defendant’s under the Act is for clarification on what constitutes a valid mark.[9] The defendant’s argue that the plaintiff’s do not in fact own a valid mark and rather the mark is owned by another company and plaintiffs merely have express consent to use the mark.[10] The courts did not find this persuasive and further clarified that the Act simply calls for the ownerships of a valid mark and evidence of registration of a mark, whether it be trademark, service, or certification, is sufficient to pass the first hurdle.

The main dispute was whether or not actual confusion created in the market from the defendant’s use of the plaintiff’s mark.[11] The court notes that to prove the likelihood of confusion in the market no proof of actual confusion is necessary and can be shown though a variety of ways, including misaddressed letters.[12] With this in mind, the plaintiffs argue that due to the similarities in the products offered by both companies and the email seen by the plaintiff’s wife that caused her confusion, there is a high possibility that there could be confusion from future consumers in the market.[13] Ultimately, the court held that although plaintiffs do hold a valid mark there is not enough evidence to determine that there is actual confusion in the market because there had been no proof of customer’s confused by the advertisement or any adverse effects on the plaintiff’s business.[14] Confusion from an email received by the plaintiff’s wife was not enough evidence to prove general customer confusion and there was no proof that use of the logo created a risk of passing off.

This holding shows that, although the court has previously determined actual proof of confusion is not required, the courts will likely still hold that there is no confusion without actual proof. However, this is unfair to business’ that are merely fortunate enough to catch the use of the logo at an early stage before confusion was apparent. The Act was created to protect consumers and businesses from confusion in the market by preventing this confusion from happening in the first place. The courts holding seems to go directly against this purpose and further complicates the process of protecting business trademarks to the point where consumers must first be confused.[15] The court has yet to adopt a bright line rule indicating what exactly is enough proof to show actual confusion in the market. The court has ruled that there does not need to be actual proof of confusion, so perhaps the next step is to outline what constitutes enough proof for a business to protect their trademarks from market confusion to further uphold the values of the Act and protect businesses from consumer confusion. The holding in Eli Research further demonstrates that the long disputed Lanham Act still requires further scrutiny by the courts for the best consumer and business protection.

[1] 15 U.S.C.A § 1125.

[2] 150 Cong. Rec. S9518 (indicating a need to further clarify the act through the passing of several amendments).

[3] See Kurtis A. Kemper, annotation, Application of the Doctrine of “Reverse Passing Off” Under Lanham Act, 194 A.L.R. Fed. 175 (explaining in great detail the harms of passing off to businesses and consumers, and further clarifying how the Act protects businesses from the risk of trademark infringement).

[4] Eli Research, LLC v. Must Have Info, Inc. No. 2:13-cv-g95-FtM-28CM, 2015 U.S. Dist. LEXIS 136149, *3 (M.D. Fla. Oct. 6, 2015).

[5] Nathan Hale, Medical Newsletter Co. Hit With $16M Trade Secret Suit, Sept. 30, 2013,

[6] Eli Research, LLC v. Must Have Info, Inc. 2015 U.S. Dist. LEXIS 136149 at *7-8 (quoting Homes & Land Affiliates, LLC. v. Homes & Loans Magazine, LLC, 598 F. Supp. 2d. 1248, 1258-259 (M.D. Fla. 2009)).

[7] Id. (citing 15 U.S.C. § 1127).

[8] Id. at *8-9.

[9] Id. at *9-10.

[10] Id. at 10.

[11] Id.

[12] Id. (citing Frehling Enters. v. Int’l Select Group, Inc., 192 F.3d 1330, 1340 (11th Cir. 1999)).

[13] Id. at 20.

[14] Id. at 22.

[15] Eli Research, LLC v. Must Have Info, Inc, 2015 U.S. Dist. LEXIS 136149 at *22.

Espinoza v. Dimon

By: Megan Doyle

In September, the Delaware Supreme Court answered a question at the request of the Second Circuit regarding gross negligence and shareholder derivative suits.[1] The Second Circuit was concerned with correctly applying principles of Delaware law, and requested the Delaware Supreme Court review the following question: Where a shareholder demands that a board of directors investigate an underlying wrongdoing and corporate officers’ statements about the wrongdoing, what factors should a court consider in determining whether the board acted in a grossly negligent fashion when they focused their investigation solely on the underlying wrongdoing?[2] The Second Circuit hoped to apply the response to Espinoza v. Dimon. In Espinoza, the plaintiffs, stockholders of JPMorgan Chase & Co. (hereinafter JPMorgan), requested that the board of directors for JPMorgan investigate two issues concerning a high profile situation that the Second Circuit refers to as the “London Whale Debacle.”[3]

Plaintiffs contended they had a right to demand the full investigation of possible wrongdoings during the “London Whale Debacle”.[4] The issues the plaintiffs prompted the board to investigate were: 1) the failure of JPMorgan’s risk management policies in preventing trading resulting in corporate losses; and 2) supposed false and misleading statements JPMorgan management made when the problem emerged.[5] Plaintiffs contended that the JPMorgan board’s investigative committee only made findings on the first issue, constituting gross negligence.[6] The Supreme Court of Delaware acknowledged several undisputed facts in this case: the committee was entirely comprised of independent directors, experts of the committee’s choosing advised them and conducted a detailed investigation that involved the review of massive amounts of materials and varied witness interviews, which all culminated in the issuance of a detailed report explaining why it recommended refusal of the demand.[7]

The Delaware Supreme Court held that they could not prescribe a particular formula for this determination, and that they could not provide an abstract analysis where the situation is inherently contextual.[8] The Delaware Supreme Court declined to answer the question as they felt it was too general, particularly given it was an issue that the Court itself was not deciding.[9] The Delaware Supreme Court rather chose to affirm that determining whether plaintiff’s contention, that a committee has been grossly negligent in investigating a demand, requires a “classic line-drawing exercise.”[10] The Delaware Court re-affirmed the traditional standards used to determine whether or not a board erred in their investigation of a shareholder claim.[11]

While this decision declines to provide the Second Circuit with specific guidance on what may constitute gross negligence in the situation in Espinoza, The Delaware Supreme Court does provide information that affects the business community because it ultimately supports a new standard of review. This is the first case in which the Second Circuit adopts de novo review of shareholder derivative suits, which means that the Second Circuit will review shareholder derivative suits without giving deference to a lower court’s findings.[12] The Delaware Supreme Court’s refusal to provide more concrete guidance leaves the Second Circuit without clear guidance on how to determine where gross negligence occurred under de novo review.[13] This lack of guidance could likely lead to an increase in the number of shareholder derivative suits where shareholders feel a board has not taken adequate steps to investigate a matter. This decision also means that banks and corporate boards must be a great deal more stringent when responding to shareholder requests so as to avoid future shareholder derivative suits because shareholders now have far more power to appeal any decisions in a lower court. De novo review opens up the possibility that more shareholder derivative suits will be heard in appeals courts, and therefore puts a higher burden on banks and boards to investigate within the purview of a shareholder’s request. Ultimately, this decision empowers shareholders to request more deference in board investigations because of the ease with which a shareholder can now appeal a decision and have a more favorable standard of review. The Delaware Supreme Court’s reluctance to weigh in on what is required of corporate boards ultimately leaves them far more open to suit, and does not provide a clear standard under which the Second Circuit could conduct de novo review. Thus, the courts may see an increase in shareholder’s derivative suits.

[1] See Espinoza v. Dimon, 2015 U.S. App. 10129, at *1 (2d Cir. Sep 15, 2015).

[2] Id. at *1.

[3] Id. at *n2 (describing that the actions plaintiffs requested be investigated were one of many involved in the “’London Whale’ trading debacle, which cost JPMorgan Chase billions.”).

[4] Id.

[5] Id. at *2.

[6] Id.

[7] Id.

[8] Cf. Id. at *7 (holding that because the briefs of the parties in the Second Circuit spend very little time discussing the issue in question, the Delaware Supreme Court has no viable way of determining the importance of the misstatements in the context of the London Whale debacle)

[9] Id. at *8.

[10] Id. at *9.

[11] . See e.g. Levine v. Smith, 591 A.2d 194, 207 (Del. 1991) (decrying that where a board refuses a demand, the key issues to be examined by a higher court are both the good faith and reasonableness of the investigation); Spiegel v. Buntrock, 571 A.2d 767, 777 (Del. 1990) (same).

[12] Cf. Second Circuit Seeks Advice in JPM Case, Adopts Tougher Standard for Derivative Suits, Bloomberg BNA, (2015) (asserting that the 2nd Circuit’s adaptation of de novo review in this case is a huge win for shareholders and shareholder’s rights).

[13] See Espinoza, 2015 U.S. App. 10129, at n11 (internal citations omitted) (pointing out that in context of decision-making, governed by a gross negligence standard, “the inquiry is necessarily fact-specific).

Eastern Savings Bank, FSB v. Cach, LLC C.A.

By: Nick Enns

Equitable subrogation is an equitable doctrine which allows one who has discharged the debts of another to succeed the rights of the satisfied creditor. In Eastern Savings Bank, FSB v. Cach, LLC (ESB)[1], the Supreme Court of Delaware made a majority ruling holding that the doctrine of equitable subrogation does not apply to mortgage refinances in Delaware when the funds that refinancing lenders disburse are used to pay off pre-existing mortgages.

CACH obtained a judgement against Aaron Johnson Jr. to satisfy a deficiency for a car loan. That judgment turned into a lien against Johnson’s property in Newark, DE. Two days before CACH obtained the lien on Johnson’s premises, Johnson engaged in a mortgage refinancing with Eastern Savings Bank which made him and his wife tenants by the entireties. Both Johnsons then proceeded to execute a mortgage in the amount of $168,000 to pay off other secured liens against their Newark property. The total debt paid with Eastern Savings’ funds was $148,479.56.[2] CACH’s judgment lien had not been recorded yet and was not paid off with the refinancing of the Johnson’s mortgage through Eastern Savings. The funds loaned by Eastern Savings exceeded the liens paid off by more than $19,000 which was more than the amount owed on CACH’s judgment lien. The Eastern Savings mortgage was not recorded for 10 days after its execution.

In August 2008, Eastern Savings filed for foreclosure against the Johnson’s property, after which an attorney for CACH informed Eastern Savings that their lien was ahead of Eastern Savings’ mortgage. Eastern Savings did not respond and the property was subsequently sold at a Sheriff’s auction for $133,000 with all proceeds going to Eastern Savings. CACH then demanded the $16,000 it was owed, from Eastern Savings. Eastern Savings refused, and CACH filed suit in the Court of Common Pleas alleging misappropriation and unjust enrichment.[3] Eastern Savings’ motion to dismiss was granted but the case was appealed to the Delaware Supreme Court. The Supreme Court of Delaware remanded the case to examine equitable subrogation and the case made its way back to the Delaware Supreme Court to examine that issue.

The priority of mortgages in Delaware is subject to 25 Del C. § 2106, which is a pure race statute that gives CACH’s lien priority over Eastern Savings mortgage, because they recorded first. However, Eastern Savings contended that because it paid the pre-existing mortgages and judgments on the Johnson’s property, it stepped into the shoes of the previous lien holders and were now first priority. CACH responded that equitable subrogation does not apply. Equitable subrogation is a doctrine, which allows one who has discharged the debts of another to succeed the rights of the satisfied creditor. Though Delaware has expanded the doctrine to many equitable situations, the Supreme Court of Delaware declined to extend it to cases that enable a mortgage lender who funds the homeowner’s refinancing to assume the position of the original lender.[4] According to the Delaware Supreme Court, equitable subrogation will not be extended when it would work any injustice to the rights of others, and applied to the case at hand they refused to extend, basing the decision on a differentiation in the current case and two older cases, Stoeckle and Oldham. In both of those cases there was a either a reasonable mistake or unjust enrichment, which allowed for the doctrine of equitable subrogation to be applied. Further, CACH did not bargain for its subordinate position and therefore never agreed to be subjected to another mortgage.[5]

This case will have an impact on fault based analysis in the Delaware court system, meaning that if a mistake is made during the recording process of a mortgage such as failing to record the mortgage in a timely manner like what happened in this case, the remedy available for the aggrieved party it to sue the title insurance or recording company. However, the cost involved in that are entirely placed on the homeowner which likely will discourage people from buying and lead them to seek alternative means of housing besides ownership. Further, the doctrine of equitable subrogation as applied is supposed to provide an equitable remedy, but not allowing equitable subrogation in the instance of one mortgagee being negligent essentially kills the doctrine entirely. Judge Seitz, dissenting, states that “negligence on the part of the refinancing lender should only be a counterweight to equitable subrogation when the intervening lienholder has been harmed, which is not the case here.[6]


[1] Eastern Savings Bank, FSB v. Cach, LLC C.A. No. 695, 2014 N13A-09-008 (Del. 2015)

[2] Eastern Savings Bank, C.A. No. 695 at 3

[3] Id at 5

[4] Id at 10

[5] Id at 15

[6] Eastern Savings Bank, C.A. No. 695 at 33

Melrose Credit Union, et. al. v. City of New York, et. al.

By: Mary Siders

Four credit unions filed suit against the City of New York in response to regulations promulgated by the Taxi and Limousine Commission (TLC) that, according to plaintiffs, allow companies like Uber Technologies, Inc. (Uber) to “troll the streets” and encroach on taxi medallion owners’ exclusive right to accept hails.[1] The plaintiffs, which have financed roughly $2.47 billion in medallion loans,[2] sought primarily to compel the TLC to enforce a rule classifying smartphone communications as hails.[3] However, the court held that the classification was discretionary and the TLC could not be compelled to enforce or promulgate rules.[4]

Under New York City’s current Administrative Code, yellow taxis, with a TLC-issued medallion, or green taxis, operating in the boroughs, “are the only vehicles authorized to transport passengers who hail them in the street.”[5] For-hire-vehicles (FHVs), such as black cars, are only allowed to serve passengers “who make pre-arrangements with a base station.”[6]

The plaintiffs focused on two TLC regulations promulgated during 2015. The E-Hail Rules defined an e-hail as a “[h]ail requested through an E-Hail Application.”[7] The TLC then proposed the E-Dispatch Rules, which allowed trips to be pre-arranged by “telephone, smartphone application, website, or other method.”[8] Plaintiffs argue that while the E-Hail Rules clearly define smartphone communications as hails, those communications are considered pre-arrangements when sent to companies like Uber under the E-Dispatch Rules, which infringes on the medallion owners’ exclusive rights to pick up hails.[9]

In the first cause of action, plaintiffs sought to compel the City to enforce the E-Hail Rules.[10] The court held that such an extraordinary action can only be invoked to compel performance of an “act which does not involve the exercise of official discretion.”[11] The court rejected the credit unions’ argument because the TLC made an administrative decision when it chose to classify passenger communications to companies like Uber as a pre-arrangement.[12]

Next, plaintiffs sought to compel the TLC to promulgate rules to uphold the medallion owners’ exclusive rights to hails.[13] An administrative body can only be compelled where a directive to promulgate rules is mandatory, not discretionary.[14] Here, there is no statute that requires the TLC to promulgate rules that prohibit Uber from responding to a smartphone app.[15]

The third and fourth causes of action sought to prohibit the TLC from enforcing rules “inconsistent with taxicab medallion owners’ exclusive right to hails”[1] and prohibit enforcement of rules “permitting the electronic dispatch of FHVs.”[2] To obtain a writ of prohibition the petitioner must demonstrate: (1) a body is acting in a judicial or quasi-judicial capacity, (2) that body is proceeding in excess of its jurisdiction, and (3) petitioner has a legal right to the relief requested.[3] None of the criteria were satisfied because the rule-making was related to a legislative function, the TLC had sufficient authority to classify e-hails as both hails and pre-arrangements, and petitioners did not show a clear right to relief.[4]

In the final cause of action, plaintiffs asked the court to throw out TLC’s rules because they were “arbitrary and capricious or an abuse of discretion.”[5] The court rejected the claim, holding there was nothing to suggest the rules were arbitrary and capricious and the TLC did not abuse its discretion in defining apps as hails in some instances and pre-arrangements in others.[6]

Complaints from medallion owners and lenders are not hard to understand. Yet, some courts may be reluctant to intervene. Here, the court noted that it is “not the court’s function to adjust the competing political and economic interests disturbed by . . . Uber type apps,”[7] which leaves legislatures as the best venue for taxi companies and lenders to fight for their interests.

As legislatures and reluctant courts tackle Uber related issues, market disruption will likely continue. Credit unions, with portfolios highly concentrated in medallion loans, are most at risk.[8] In fact, one of the plaintiffs has already been taken over by its regulator.[9] However, it remains to be seen if prices are simply normalizing[10] or if, as plaintiffs predict, there will be “incalculable destruction and chaos” that will “devastat[e ]the economy.”[11]

[1] Id.

[2] Id. at *22.

[3] Id. at *19.

[4] Id. at *19-21.

[5] Id. at *22.

[6] Id.

[7] Id. at *12; See also, Checker Cab Phila., Inc. v. Uber Techs., Inc., No. 14-7265, 2015 U.S. Dist. LEXIS 26471, *12-13 (E.D. Pa. Mar. 3, 2015) (“[T]he Court is particularly concerned with doing anything to stand in the way of the political process that appears to already be underway in which the city of Houston is…trying to determine how to deal with this emerging technology.” (quoting oral decision to deny a temporary restraining order in Greater Houston Transp. Co. v. Uber Techs., Inc., No. 14–0941 (S.D. Tex. Apr. 21, 2014)).

[8] Aaron Elstein, Credit Unions Face Bloodbath from Medallion Owners Smothered by Uber, Crains New York Business (Sept. 8, 2015),

[9] Montauk Credit Union Conserved, NCUA (Sept. 18, 2015),

[10] Micah Miadenberg, Market for Taxi Medallion Loans Grinding to a Halt, Crains Chicago Business (Aug. 29, 2015),

[11] Plaintiff’s Petition at ¶ 10, Melrose, 2015 N.Y. Misc. LEXIS 3275 (No. 6443/15).

[1] Plaintiff’s Petition at ¶ 1, Melrose Credit Union, et. al. v. City of New York, et. al., No. 6443/15, 2015 N.Y. Misc. LEXIS 3275 (N.Y. Sup. Ct. Sept. 8, 2015).

[2] Melrose, 2015 N.Y. Misc. LEXIS 3275, at *1-2.

[3] Id. at *9-10.

[4] Id. at *12-22.

[5] Id. at *5; See also, N.Y.C. Admin. Code § 19-504(a)(1).

[6] Melrose, 2015 N.Y. Misc. LEXIS 3275, at *5; See also, N.Y.C. Admin. Code § 19-507(a)(4).

[7] Melrose, 2015 N.Y. Misc. LEXIS 3275, at *7.

[8] Id. at *10.

[9] Id. at *11.

[10] Id. at *12.

[11] Id. at *13.

[12] Id. at *15-16.

[13] Id. at *17.

[14] Id. at *17-18.

[15] Id. at *18.

Deciphering the fair value standard: Merion Capital L.P., v. BMC Software Inc.

By: Betty J. McNeil

In Merion Capital L.P., v. BMC Software Inc., C.A. No. 8900-VCG, 2015 WL 67586 at *1-51 (Del. Ch. Oct. 21, 2015), the Chancery of the state of Delaware held that the merger stock price of $46.25 was the most persuasive indication of fair value.[1]

In fiscal years 2011 to 2013, BMC, one of the largest software companies in the world, saw a steady decrease in its revenue.[2] To account for the losses, BMC relied on its internal M&A department to come up with “Tuck-in” transactions.[3] However, even with the relatively stable revenue acquired from its M&A’s, in May 2012, investors commenced a proxy contest.[4] While attempting to handle the settlement terms with the hostile stockholders, BMC’s Strategic Review Committee explored other options to maximize shareholder value. [5]A short bidding war ensued, however, all offers were ultimately rejected by the Strategic Review Committee. [6]

A second auction of sale commenced in December 2012, and after nearly a year of bidding, BMC accepted an agreement with Buyer Group.[7] The agreement was presented to the board of directors after a fairness analysis was completed.[8] The Board approved the agreement and recommended that BMC stockholders follow suit; and in July 2014, the transaction was approved by 67% of the outstanding shares voting in favor of the merger.[9]

However, dissenters challenged the sale. They presented expert testimony showing that the stock was undervalued in the merger.[10] Specifically, the sale was valued at $46.25.[11] The Petitioner’s, stockholders, expert suggested that the fair value of BMC at the time of the merger was $67.08[12]; while the Respondent’s expert suggested that the fair value of the BMC shares were only $37.88[13]. Thus, the court was faced with the challenge of determining whether the shareholders received the fair value for their shares.

In Delaware, the appraisal statute indicates that stockholders can seek appraisals of their shares in Court when they do not wish to participate in a company induced merger. When challenged, the Court is under an obligation to determine the fair value of the cashed out shares. The Delaware law explicitly states: “Court’s shall determine the fair value of the shares. . . . of the merger or consolidation, together with interest, if any, to be paid upon the amount determined to be the fair value. In determining such fair value, the Court shall take into account all relevant factors.”[14]

The Court suggested that one of the most important relevant factors is the particular method used to determine the fair value of a share. Since both the Petitioning stockholders and the Respondent Board directors carried the burden of proof, both methods were thoroughly analyzed to determine if it produced a fair value for the cashed out shares.[15] Further, the Court suggested that other relevant factors are the different financial techniques which are acceptable in the financial community.[16] For instance, in Delaware, techniques such as discounted cash flow (DCF), comparable transactions, merger price, and comparable companies are relevant factors to determine fair value. [17]

As such, the Court in the current case analysis began by considering acceptable financial techniques. Specifically, the Court considered the DCF.[18] Since the DCF was disputed between the parties’ experts, the Court analyzed whether the Petitioner’s projections or the Respondent’s projections were accurate.[19] The Court concluded, from the financial reports, that the Respondent’s projections were too optimistic and were not an accurate reflection of the corporations’ quarterly revenue.[20] As such, the Court adopted a cash flow amount of 5%, which was more consistent with the corporations’ actual revenue.[21]

After rendering its calculations and finding a DCF of $48.00, the Court looked at a host of other techniques, but specifically the merger price as indication for fair value.[22] Under the merger price approach, the Court outlined a rule that: considers deal price as a factor for computing fair value, and suggested that courts must conclude that the merger price was generated by a process that provided market value – which is useful in determining fair value.[23]

The holding seems to suggest, that there is a two prong fair value analysis when dissenters seek appraisals of cashed out shares. In addition to the two prong fair value analysis, the relevant factor portion of the statute should be further analyzed under a two-step process to determine what factors are consistent with determining the fair value of shares.

Further, this case outlines the process that a court will take when dissenting shareholders argue that they did not receive the fair value of their shares. It appears, that courts will be go through a detailed analysis to first determine what the fair value should be by using tools that are common in the financial industry, and then the court will factor in any relevant additional factors that may be applicable to determine the fair value, such as synergies and deal prices.

Since expert opinion will often differ, challengers of a fair value price should attempt to place themselves in a position where they have chosen a method that identifies all the key parts used in the above holding. Likewise, respondents should structure deals that adopt narrowly tuned methods that initially factor into consideration: market values, merger prices, and sale prices. This will likely assure that, if challenged, the deal will meet the threshold set forth by the fair value standard.

[1] Merion Capital L.P., v. BMC Software Inc., C.A. No. 8900-VCG, 2015 WL 67586, 22 (Del. Ch. Oct. 21, 2015)

[2] Id. at 3.

[3] Id. at 8-10.

[4] Id. at 16-17.

[5] Id. at 17-18.

[6] Id. at 18-19.

[7] Id. at 20.

[8] Id. at 20.

[9] Id. at 23.

[10] Id. at 23-25.

[11] Id. at 21.

[12] Id. at 23.

[13] Id. at 24.

[14] 8 Del. C. § 262; Merion Capital L.P., v. BMC Software Inc., C.A. No. 8900-VCG, 2015 WL 67586, 30.

[15] Merion Capital L.P., C.A. No. 8900-VCG, 2015 WL 67586, at 31.

[16] Id. at 31.

[17] Id. at 31.

[18] Id. at 32.

[19] Id. at 32.

[20] Id. at 32.

[21] Id. at 32.

[22] Id. at 40-44.

[23] Id. at 48.