IN THE SUPREME COURT OF THE STATE OF DELAWARE

IN RE TESLA MOTORS, INC. §

STOCKHOLDER LITIGATION § No. 181, 2022

§

§ Court Below: Court of Chancery

§ of the State of Delaware

§

§ C.A. No. 12711

§

Submitted: March 29, 2023

Decided: June 6, 2023

Before SEITZ, Chief Justice; VALIHURA, VAUGHN, and TRAYNOR, Justices; and 

WALLACE, Judge, constituting the Court en Banc.

1

Upon appeal from the Court of Chancery. AFFIRMED.

Jay W. Eisenhofer, Esquire, Christine M. Mackintosh, Esquire, Kelly L. Tucker, Esquire, 

Vivek Upadhya, Esquire, GRANT & EISENHOFER P.A., Wilmington, Delaware; 

Michael Hanrahan, Esquire (argued), Kevin H. Davenport, Esquire, Samuel L. Closic, 

Esquire, PRICKETT, JONES & ELLIOTT, P.A., Wilmington, Delaware. Of Counsel: 

Daniel L. Berger, Esquire, GRANT & EISENHOFER P.A., New York, New York; Lee D. 

Rudy, Esquire, Eric L. Zagar, Esquire, Justice O. Reliford, Esquire, Matthew Benedict, 

Esquire, KESSLER TOPAZ MELTZER & CHECK, LLP, Radnor, Pennsylvania; Randall 

J. Baron, Esquire, David T. Wissbroecker, Esquire, ROBBINS GELLAR RUDMAN & 

DOWD LLP, San Diego, California for Plaintiffs-Below/Appellants. 

David E. Ross, Esquire, Garrett B. Moritz, Esquire, ROSS ARONSTAM & MORITZ LLP, 

Wilmington, Delaware. Of Counsel: Evan R. Chesler, Esquire (argued), Daniel Slifkin, 

Esquire, Vanessa A. Lavely, Esquire, CRAVATH, SWAINE & MOORE LLP, New York, 

New York for Defendant-Below/Appellee. 

Robert K. Beste, Esquire, SMITH KATZENSTEIN & JENKINS LLP, Wilmington, 

Delaware for Amicus Curiae, Corporate Law Professors, in support of Appellants.

VALIHURA, Justice:

1

Justice Vaughn and Judge Wallace are sitting by designation under Del. Const. art. IV, §§ 38 & 

12, respectively, and Supreme Court Rules 2(a) and 4(a) to complete the quorum. 
2

INTRODUCTION

This is an appeal of an April 27, 2022, post-trial opinion by the Court of Chancery. 

At issue is the 2016 all-stock acquisition (the “Acquisition”) of SolarCity Corporation 

(“SolarCity”) by Tesla, Inc. (“Tesla”). In this suit, Tesla’s stockholders claim that Elon 

Musk caused Tesla to overpay for SolarCity through his alleged domination and control of 

the Tesla board of directors (the “Tesla Board”). At trial, the foundational premise of their 

theory of liability was that SolarCity was insolvent at the time of the Acquisition. Because 

the Court of Chancery assumed, without deciding, that Musk was a controlling stockholder, 

it applied Delaware’s most stringent standard of review: entire fairness. 

The Court of Chancery found the Acquisition to be entirely fair. In this appeal, the 

two sides vigorously dispute various aspects of the trial court’s legal analysis, including,

primarily, the degree of importance the trial court placed on market evidence in 

determining whether the price Tesla paid was fair. Importantly, Appellants do not 

challenge any of the trial court’s factual findings. Rather, they raise only a legal challenge, 

focused solely on the application of the entire fairness test. Much of Appellants’ case on 

appeal asks that we re-weigh the evidence and come to different conclusions as to whether 

certain process flaws preponderated over the process strengths and whether the flaws in the 

process “infected” the price. We are convinced, after a thorough review of the extensive 

trial record, that the trial court’s decision is supported by the evidence and that the court 

committed no reversible error in applying the entire fairness test. 

Both Appellants and amicus curiae (the “amici”) set forth a doomsday argument 

based upon their contention that the trial court grounded its entire fairness ruling almost 
3

exclusively on the unaffected June 21, 2016 stock price of SolarCity, which they say was 

unreliable due to material, nonpublic information that was not factored into the June 21 

stock price. Amici refer to the trial court’s analysis as “market evidence run amok” and 

contend that, if affirmed, this case will disincentivize any board from utilizing the 

procedural protections this Court endorsed in Kahn v. M & F Worldwide Corp. (“MFW”).2 

Although the trial court erred in this portion of its analysis, we reject the contention that 

the June 21 stock price was the sole basis of the trial court’s fair price determination and 

that any error in that aspect of the analysis necessitates reversal. Other bases for the court’s 

fair price determination are sufficient to support the opinion, particularly in the face of the 

total collapse of Appellants’ insolvency theory — their only fair price theory at trial. Our 

decision to affirm is also driven, in part, by our deferential standard of review as to the 

numerous unchallenged credibility and factual findings underpinning the trial court’s 

determination that certain process flaws did not predominate or cause the process either to 

be unfair or to infect the price.

On appeal, Appellants do not challenge the trial court’s rejection of their insolvency 

theory. Instead, they now accuse the trial court of “rote reliance” on market price, applying 

a bifurcated entire fairness test, refusing to consider the trial experts’ discounted cash flow 

(“DCF”) analyses in determining fair price (even though they disclaimed reliance on this 

methodology at trial), and improperly relying on Evercore’s “flawed” analyses and on the 

stockholder vote in support of its determination that the transaction was entirely fair. We 

2

88 A.3d 635 (Del. 2014). 
4

reject each of these challenges, and, for the reasons explained below, we AFFIRM the 

decision of the Court of Chancery.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND3

A. The Parties 

Plaintiffs Below, Appellants are Arkansas Teachers Retirement System, Roofers 

Local 149 Pension Fund, Oklahoma Firefighters Pension and Retirement System, KBC 

Asset Management NV, Erste Asset Management GmbH, and Stitching Blue Sky Active 

Large Cap Equity Fund USA (collectively, “Appellants”). Appellants were Tesla 

stockholders and were selected by the Court of Chancery to serve as co-lead plaintiffs in 

the action below.

Defendant Below, Appellee Musk is a co-founder of Tesla, as well as its largest 

stockholder.4 Musk “has continuously served as Tesla’s CEO since October 2008” and 

“also served as the chairman of the Tesla Board from April 2004 to November 2018[.]”5 

As the Court of Chancery noted, “Tesla is ‘highly dependent on [Musk’s] services,’ and 

[Musk’s] departure from the company would likely ‘disrupt [its] operations, delay the 

development and introduction of [its] vehicles and services, and negatively impact [its] 

business, prospects and operating results.’”6

3 The facts, except as otherwise noted, are taken from the Court of Chancery’s post-trial opinion

below. See In re Tesla Motors, Inc. S’holder Litig., 2022 WL 1237185 (Del. Ch. Apr. 27, 2022)

(“Trial Op.”).

4 Musk “owned approximately 22% of Tesla’s common stock at the time of the Acquisition.” Id.

at *1.

5

Id. at *3.

6

Id. (internal citation omitted).
5

Nominal defendant below, Tesla, is a publicly traded Delaware corporation that

designs, develops, manufactures, and sells electric vehicles (“EVs”) and energy storage 

products. It bills itself as “the world’s only vertically integrated energy company, offering 

end-to-end clean energy products, including generation, storage and consumption.”7

Non-party SolarCity was a publicly traded Delaware corporation founded in 2006 

by Musk’s cousins, Peter Rive and Lyndon Rive. SolarCity developed and produced solar 

panels for residential and commercial use. Musk was both the chairman of the SolarCity 

board of directors from 2006 until the Acquisition’s closing in 2016 and its largest 

stockholder, holding approximately 21.9% of SolarCity’s common stock. 

Non-party Space Exploration Technologies Corporation (“SpaceX”) “is a private 

aerospace manufacturer and space transport services company founded by [Musk] in 

2002.”8 SpaceX bought $255 million in SolarCity corporate bonds — termed “Solar 

Bonds” — between March 2015 and March 2016.

The Tesla Board consisted of seven members: Musk, Kimbal Musk (Musk’s 

brother), Brad Buss, Robyn Denholm, Ira Ehrenpreis, Antonio Gracias, and Stephen 

Jurvetson.9 Although all seven Tesla Board members were named as defendants in this 

litigation, all except Musk settled all claims against them for $60 million, funded by 

insurance, which was approved by the Court of Chancery on August 17, 2020.

7 B18 (Tesla, Inc. Form 10-K for fiscal year ended December 31, 2016 at 1).

8 Trial Op., 2022 WL 1237185, at *3.

9

See id. at *4. We refer to the individual Tesla Board members by their last names and without 

honorifics. To avoid confusion with his brother, we use Kimbal Musk’s first name. We intend no 

familiarity or disrespect. 
6

According to the Appellants, all of Tesla’s directors, except for Denholm, were 

conflicted in varying degrees with respect to the Acquisition.10 Denholm had served on 

the Tesla Board since August 2014 and has served as the Tesla Board chair since November 

2018. She served as the “Executive Vice President and Chief Financial Officer of Juniper 

Networks, Inc. from August 2007 to February 2016, as well as its Chief Operations Officer 

from July 2013 to February 2016.”11 Denholm has never held any financial interest in 

SolarCity, and Appellants do not challenge, on appeal, her disinterestedness or 

independence in the Acquisition.12

The other five Tesla Board members — apart from Musk and Denholm — were all 

conflicted to some degree, according to Appellants. Appellants alleged that Kimbal was 

conflicted because he is Musk’s brother. Kimbal was also a SolarCity stockholder and had 

significant margin loans on his SolarCity shares at the time of the Acquisition. But Kimbal 

was not recused from either voting on or discussions regarding the Acquisition. Buss also 

had a connection to SolarCity: he served as SolarCity’s Chief Financial Officer from 2014 

until February 2016 — overlapping with his time on the Tesla Board. During negotiations 

regarding the Acquisition, approximately 45% of Buss’s wealth was attributable to his 

10 See id. Rather than making factual findings as to each Tesla Board member’s alleged conflicts, 

the trial court assumed that a majority of the Tesla Board was conflicted. “Whether by virtue of 

[Musk’s] control, or by virtue of irreconcilable board-level conflicts, there is a basis for assuming 

that entire fairness is the governing standard of review.” Id. at *30 (emphasis added) (internal 

citations omitted). 

11 A1140 (Joint Pre-Trial Order ¶ 70). Further, by “the time of the Acquisition, Denholm did not 

hold an officer or other management position with any company.” Id. at ¶ 71.

12 In its summary judgment opinion, the trial court noted that Appellants’ “allegations that 

Denholm lacked independence are threadbare.” In re Tesla Motors, Inc. S’holder Litig., 2020 WL 

553902, at *12 (Del. Ch. Feb. 4, 2020) (“SJ Op.”).
7

relationship with Musk and Musk’s companies. According to Tesla’s public disclosures, 

Buss did not qualify as an independent director under the NASDAQ Listing Rules.

Ehrenpreis is the co-founder and co-managing partner of a venture capital fund, 

DBL Equity Fund-BAEF II, L.P. (“DBL”). DBL held 928,977 shares of SolarCity 

common stock at the time of the Acquisition, making it one of SolarCity’s largest investors. 

Further, Ehrenpreis’s co-founder at DBL is Nancy Pfund, who served on SolarCity’s board 

and its special committee for the Acquisition.

Gracias, in addition to his role on the Tesla Board, served on SolarCity’s board until 

the Acquisition’s closing. He was recused from certain Tesla Board discussions regarding 

the Acquisition and from voting on the Acquisition. Finally, Jurvetson, like Ehrenpreis, 

was associated with a venture capital fund possessing ties to SolarCity. He was a managing 

director of Draper Fisher Jurvetson (“DFJ”), SolarCity’s third-largest institutional 

stockholder, which held 4,827,000 shares as of the Acquisition.13 Jurvetson personally 

owned 417,000 shares of common stock in SolarCity.14 

B. Tesla’s Master Plan

Although Tesla is known to many as an EV manufacturer, Musk has had a much 

broader vision for the company. In 2006, Musk authored the “Tesla Motors Master Plan” 

(the “Master Plan”), wherein he publicly declared that “Tesla’s mission is to accelerate the 

world’s transition to sustainable energy” and “to help expedite the move from a mine-and13 Trial Op., 2022 WL 1237185, at *5. One of Jurvetson’s partners at DFJ served on SolarCity’s 

board. See id. Jurvetson also served as a SpaceX director at the time of the Acquisition.

14 Jurvetson testified at trial that this amounted to a single-day swing of his net worth. See id. 
8

burn hydrocarbon economy towards a solar electric economy[.]”15 The Master Plan 

contains three fundamental pillars upon which the transition to clean energy would rest: 

“(1) sustainable energy generation from clean sources, such as solar power; (2) energy 

storage in batteries; and (3) energy consumption through EVs.”16

The three pillars are crucial to the Master Plan. According to Musk, “[i]f any one 

of those three parts are missing, then we will not have a sustainable energy future.”17 The 

Master Plan envisioned that SolarCity would be a part of a vertical integration18 scheme 

and a key to Tesla’s vision for a renewable energy future. The Master Plan states that Tesla 

“will be offering a modestly sized and priced solar panel from SolarCity, a photovoltaics 

company[.]”19

C. Tesla Prior To The Acquisition 

Tesla’s main product line, initially, was its EVs. In order to transition to the 

15 Id. at *1 (internal quotation marks and citation omitted). As the trial court summarized, the 

Tesla Board was familiar with and agreed upon the vision laid out in the Master Plan. See id. at 

*6 (“Tesla’s directors uniformly testified that they understood from the outset that Tesla’s longterm goal was to ‘accelerate the world’s transformation to an alternative energy future.’”) (internal 

citation omitted). 

16 Id. 

17 A1378 (Elon Musk Trial Test. at 23:2–4) [hereinafter Musk Trial Test. at _].

18 Vertical integration is an economic concept. “In a vertically integrated value chain, a single 

company combines two or more stages of production, such as basic research and further 

development of some technology, ordinarily performed by separate companies.” Peter Lee, 

Innovation and the Firm: A New Synthesis, 70 Stan. L. Rev. 1431, 1435 (2018). 

Musk testified that vertical integration was a focus of his: “I wanted [SolarCity] to be acquired so 

that we could do the product integration of the solar battery. So rather than for them to spend a 

few months raising capital, it would have been better to do the acquisition and be able to move 

forward with the solar battery product that I felt was essential for a sustainable energy future.” 

A1433 (Musk Trial Test. at 241:13–20).

19 A1378 (Musk Trial Test. at 23:17–19).
9

sustainable energy world, Tesla invested heavily in batteries for its EVs and energy storage 

products well before the Acquisition. To fully transform production output, Tesla decided 

to build its own company-operated factory to supply batteries. In February 2014, Tesla 

announced the construction of its “Gigafactory,” a massive lithium-ion battery 

manufacturing factory that “was intended to produce more [lithium-ion] batteries ... than 

the entire manufacturing battery production of every other manufacturing facility on the 

planet earth combined.”20

With the Gigafactory’s capacity for mass production came the opportunity for Tesla 

to bring the other core elements of the Master Plan to fruition, including the second pillar: 

energy storage. And with the Gigafactory, Tesla soon thereafter moved forward “with the 

design and production of solar energy storage products, including ‘Powerwalls’ designed 

to store solar energy for home use, and ‘Powerpacks,’ designed to store solar energy for 

commercial use.”21

In March 2015, after the Tesla Board toured the Gigafactory, it discussed Tesla’s 

long-stated goal of acquiring a solar company. A little over a month later, Tesla publicly 

launched Tesla Energy and debuted its Powerwall and Powerpack products. As the trial 

court noted, “Tesla set the stage for a combination of its battery storage capability with 

solar energy.”22 Musk himself confirmed Tesla’s vision during the public launch of the 

Powerwall and Powerpack: “[T]he path that I’ve talked about, the solar panels and the 

20 Trial Op., 2022 WL 1237185, at *7 (internal quotation marks and citation omitted).

21 Id. 

22 Id. at *8.
10

batteries, it’s the only path that I know that can do this. And I think it’s something that we 

must do and we can do and that we will do.”23

D. SolarCity Prior To The Acquisition 

1. SolarCity’s Business

Founded in 2006 by Musk’s cousins, Peter and Lyndon Rive, SolarCity was an 

enterprise dedicated to the production and sale of solar panels for both residential and 

commercial use. It brought solar panels to the market through a variety of channels, from 

door-to-door sales to call centers to placements at Home Depot. To address the high cost 

of solar panels, SolarCity offered consumers a financing option, wherein SolarCity would 

pay the cost of installing and activating the solar panels in exchange for the customer’s 

commitment to repay SolarCity incrementally, with interest, over a period of 20–30 years.

But entering the solar energy space required substantial capital. In order to maintain 

and expand its business model, SolarCity turned to capital raising to bridge the gap between 

its short-term costs and long-term cash flows. With a sophisticated capital markets team, 

SolarCity succeeded at raising capital. As the trial court noted, by 2016’s end, SolarCity 

sponsored over 54 financing funds with 22 investors and carried substantial debt. The 

Solar Bonds, which SolarCity mainly sold to SpaceX and Musk, were another key 

component of the capital raising plan. 

Despite being in a competitive — and rapidly developing — industry, SolarCity 

grew to be quite successful. By 2016, SolarCity “was the undisputed market share and cost 

23 Id. (internal quotation marks and citation omitted).
11

leader in the solar energy sector, with over 30% market share for U.S. residential solar, 

22% market share for U.S. commercial solar, and 15% of total U.S. solar.”24 With respect 

to residential solar installations and revenues, SolarCity exceeded its two closest

competitors combined. 

2. SolarCity’s Financial Outlook

By fall of 2015, massive capital outlays, debt maturities coming due, and lowerthan-anticipated installations caused cash balances to drop. Management feared that the 

company would soon face “a major liquidity crisis[.]”25 SolarCity needed to maintain an 

average monthly cash balance of approximately $116 million to remain compliant with its 

revolving debt facility’s “Liquidity Covenant.” A breach would trigger a default on 

SolarCity’s revolver and cross-defaults on other debts. But management predicted that 

cash levels could fall to just $35 million, and SolarCity’s war chest of cash — which was 

$1.1 billion in January 2015 — was expected to be just $200 million by 2015’s end. 

SolarCity decided to increase monetization to prevent further problems from arising 

due to its lack of cash. At a meeting of SolarCity executives in December 2015, Tanguy 

Serra, who served as SolarCity’s President and CFO until just before the Acquisition’s 

closing, pitched his idea of “cash equity” transactions to address the cash issue. These cash 

equity transactions involved selling a portion of the future cash flows from recurring 

customer payments to a third-party investor in exchange for an upfront payment. Serra 

24 Id. at *11.

25 Id. at *10 (internal quotation marks and citation omitted).
12

intended the cash equity transactions to be part of a four-year plan. 

The cash equity transaction idea proved successful, at least initially. The first cash 

equity transaction occurred with John Hancock Financial in May 2016, and two more 

transactions came in the second half of 2016. “SolarCity retained the rest of its future cash 

flows, which it estimated to be worth billions of dollars.”26 By the second quarter of 2016, 

SolarCity had accumulated what it estimated to be $2.2 billion (net present value or 

“NPV”) in retained value.

But the cash equity transactions did not prove to be sustainable. Although SolarCity 

brought in more cash than it had previously, it still lacked the required capital to meet 

Serra’s four-year plan. To addressthat problem, SolarCity’s board decided to shift its focus 

to cash sales and began reducing costs. And SolarCity — which relied heavily on its ability 

to attract and raise capital — soon found its credit rating in jeopardy. At the start of 2016, 

the company’s credit-rating was downgraded. Shortly thereafter, by the end of the first 

quarter of 2016, the company secured “$305 million in tax equity financing,” an impressive 

sum, but far “short of the $940 million originally projected.”27

Nevertheless, the trial court found that SolarCity was still a valuable company in 

2016. It continued to raise billions of dollars from sophisticated financial institutions that 

had “deep access” to SolarCity’s financials. Further, its cash challenges “were 

ramifications of rapid growth, not market disinterest in its products or poor business 

26 Id. at *10.

27 Id. at *11.
13

execution.”28

E. Musk’s Initial Pitch For The Acquisition 

It is against this backdrop of SolarCity’s worsening cash problems that Musk first 

broached the subject of a deal between Tesla and SolarCity. In February 2016, Lyndon 

Rive29 — Musk’s cousin and co-founder of SolarCity — held an emergency meeting to 

discuss SolarCity’s growing need for cash. Musk attended. At this meeting, management 

discussed various measures to stop the bleeding, such as ranking accounts payable to 

modulate costs and developing guidelines to suspend certain installations based on their 

cash impact. Once the meeting ended, Musk and Lyndon discussed Tesla potentially 

acquiring SolarCity.

In advance of a special Tesla Board meeting scheduled for February 29, 2016, Musk 

asked Tesla’s CFO, Jason Wheeler, to prepare a financial analysis of a Tesla/SolarCity 

merger and give a presentation at the meeting. At the meeting, Wheeler gave his 

presentation on a potential merger between the two companies, noting that SolarCity’s 

stock historically traded at a low price. The Tesla Board, notwithstanding Musk’s strong 

endorsement, did not approve moving forward on a potential merger and instead renewed 

its focus on getting Tesla’s EV production up-and-running, particularly the Tesla Model 

X. However, the Tesla Board did authorize management to gather additional details and 

to further explore and analyze a potential transaction with SolarCity or other related 

28 Id. 

29 We refer to Lyndon Rive by his first name to avoid confusion with his brother, Peter Rive. No 

disrespect or familiarity is intended.
14

businesses.

The Tesla Board next met in March 2016 and again discussed the possibility of 

Tesla acquiring SolarCity. And again, it declined to proceed further with an acquisition, 

but — as in the February 2016 meeting — the Tesla Board reiterated that the topic be 

postponed to a later date. The Tesla Board and management did discuss the steps required 

should the Tesla Board decide to move forward with negotiations in the future. One such 

step involved retaining Wachtell, Lipton, Rosen & Katz (“Wachtell”) to advise the Tesla 

Board regarding a potential transaction. 

F. SolarCity’s Worsening Financial Outlook 

Amidst the backdrop of Musk’s overtures to the Tesla Board regarding a potential 

transaction, SolarCity’s cash flows continued to decline. The company reported $32 

million in net negative cash flow by the end of 2016’s first quarter. Negative cash flow 

was projected for the second quarter to be over $139 million before turning positive in the 

latter half of the year. To address these concerns, Musk tasked Lyndon with managing

SolarCity’s financial position until May 2016, a time when Musk wanted to revisit deal 

discussions.30 Lyndon discussed SolarCity’s financial state at an April 26, 2016 SolarCity 

board meeting. SolarCity anticipated substantially fewer installations than forecasted and 

ran the risk of tripping its Liquidity Covenant. The problems spilled over throughout 

SolarCity’s enterprise, and the company soon found itself battling employee turnover, 

especially in its sales department, which was crucial to getting its solar panels out to 

30 See Trial Op., 2022 WL 1237185, at *13.
15

consumers. As of June 30, 2016, total cash on hand equaled $145.7 million — less than 

$30 million above the Liquidity Covenant.

In a call between Lyndon and Musk in May 2016, Lyndon conveyed that he wanted 

to move forward with a potential merger between the two companies. In response, Musk 

told Lyndon that any negotiations would have to be pushed to June. It was then that Lyndon 

expressed the desire that a bridge loan accompany any offer or else SolarCity would have 

to put off any transaction to raise equity. Musk replied that any Tesla acquisition proposal 

would come with a bridge loan to SolarCity. 

G. The Acquisition’s Negotiation Process

1. Tesla Retains Independent Advisors

As noted, in March 2016, the Tesla Board retained Wachtell as deal counsel.

31

 The 

Tesla Board later retained Evercore Partners (“Evercore”), a leading investment bank, as 

its financial advisor for the potential merger. Although Musk was involved in the retention 

of Wachtell, he was not involved in retaining Evercore.

32

Musk again raised the possibility of a deal with SolarCity to the Tesla Board on 

31 See supra Section I.E. Musk was involved — with assistance from Gracias and Tesla’s general 

counsel — in retaining Wachtell “before the Tesla Board had decided it wanted to pursue a 

transaction” with SolarCity. Trial Op., 2022 WL 1237185, at *13 n.169.

32 See id. at *15. The trial court found that “Tesla selected independent, top-tier advisors to 

represent the Tesla Board in the Acquisition (Wachtell and Evercore).” Id. at *36. Regarding 

Wachtell, the Vice Chancellor noted that Appellants “did not demonstrate a longstanding 

relationship or conflict between [Musk] or Tesla and Wachtell. To the contrary, based on the 

evidence, I am satisfied that Wachtell was an independent and effective advisor to the Tesla 

Board.” Id. at *13 n.169. For this reason, the Vice Chancellor found that “the failure to disclose 

the circumstances or timing of Wachtell’s engagement in the Proxy was immaterial.” Id. 

Likewise, “Evercore had not previously worked for Tesla or SolarCity.” Id. at *15.
16

May 31, 2016. The Tesla Board thought the timing was now right for an acquisition 

because the company had addressed the problems with the Model X rollout. Once the 

Tesla Board determined to move forward with an acquisition of SolarCity, it was

determined that both Musk and Gracias should be recused from any vote relating to the 

transaction. Recusal was deemed necessary as both had served on the SolarCity board, 

presenting a clear conflict of interest. Although Musk and Gracias were recused from any 

voting, the Tesla Board determined that they could still participate in certain meetings and 

high-level strategic discussions regarding the Acquisition, as their experience and 

knowledge of the solar industry and of SolarCity’s business operations was viewed as 

helpful.

33

On June 20, 2016, the Tesla Board had another special meeting. Evercore presented 

an overview of various potential solar acquisition targets34 and indicated that, among 

Tesla’s options for a strategic merger, SolarCity represented the best option. SolarCity’s 

financial condition was discussed during the meeting, including the company’s ability to 

33 See id. The definitive proxy statement (the “Definitive Proxy”) informed Tesla and SolarCity 

stockholders that:

[T]he Tesla Board determined that the strategic vision, expertise and perspectives

of Messrs. Elon Musk and Antonio Gracias would continue to be helpful to the 

Tesla Board’s evaluation of a potential acquisition of a solar energy company 

because of their involvement in the solar industry, but that Messrs. Elon Musk and 

Antonio Gracias, as a result of their service on the SolarCity Board, should recuse 

themselves from any vote by the Tesla Board on matters relating to a potential 

acquisition of SolarCity, including evaluation, negotiation and approval of the 

economic terms of any such acquisition.

AR501 (Definitive Proxy at 59) (emphases added). 

34 See AR3–108 (Evercore Presentation).
17

meet its current and future obligations. Evercore advised the Tesla Board that the market

favored a stock-for-stock transaction between the companies. The Tesla Board focused on 

the strategic rationale for the transaction and recognized the potential benefits, including 

the “significant synergies” a solar acquisition would bring to the table.

Musk, who attended the June 20 meeting, “noted that the price had to be ‘publicly 

defensible,’ meaning ‘in the middle ... of precedent premia paid.’”35 During this initial 

presentation by Evercore, Musk “appear[ed] to have proposed a 30% premium over 

SolarCity stock’s 4-week trailing price, which amounted to $28.50 per share.”36 Evercore 

recognized the need to pay a premium and recommended a stock exchange ratio equating 

to a $25–$27 per share offer.

37

 The Tesla Board, by contrast, discussed a range of 0.122 

to 0.131 Tesla shares per SolarCity share, equating to $26.50–$28.50 per SolarCity share. 

As the trial court noted, Musk was not keen on a range of exchange ratios. Denholm —

who led Tesla’s negotiations — preferred to use ranges because she felt they played a role 

in negotiating, including providing flexibility. Musk and Gracias then left the meeting,

and the Tesla Board continued to discuss the potential acquisition. 

2. Tesla’s Initial Offer

In Musk’s and Gracias’ absence, the Tesla Board approved a preliminary,

35 See Trial Op., 2022 WL 1237185, at *15 (internal citation omitted).

36 Id. at *16.

37 Later, at trial, Courtney McBean — Evercore’s lead banker — testified that “Solar City was [] 

a high-growth company” and “the market leader.” A1689 (Courtney C. McBean Trial Test. at

1454:20–22) [hereinafter McBean Trial Test. at _]. She explained that “in order to get shareholder 

approval from the SolarCity stockholders, we believed that we would need to pay a premium.” Id.

(McBean Trial Test. at 1454:23–1455:1).
18

nonbinding proposal to acquire SolarCity, subject to due diligence. On June 20, 2016, 

Tesla made an offer to acquire SolarCity at an exchange ratio approved by the Tesla Board 

of 0.122 to 0.131 shares of Tesla stock per share of SolarCity stock (the “Initial Offer”). 

This equated to a 21% to 30% premium over SolarCity’s trading price at the time.

Included in the Initial Offer was a common deal feature: a majority-of-the-minority 

voting provision. This provision conditioned the Acquisition on the approval of a majority 

of disinterested SolarCity stockholders and Tesla stockholders voting on the transaction. 

A second common deal feature was not employed: the formation of a special, independent 

negotiating committee of the Tesla Board. As the trial court noted, the Tesla Board opted 

not to form a special committee “for reasons unexplained.”38 Another aspect from the early 

discussions regarding the potential Acquisition, however, did not make its way into the 

Initial Offer. Despite Musk’s request, the Tesla Board and Evercore concluded that a 

bridge loan would not be in Tesla’s best interest, and so it was not included in the Initial 

Offer. 

The Initial Offer was publicly announced the next day, June 21, 2016, following the 

market’s close. Reactions to the Initial Offer were swift. The price of Tesla’s stock fell 

“more than 10%, or $3.07 billion—an amount greater than SolarCity’s entire market 

capitalization.”39 Although Tesla’s stock price ultimately rebounded and rose above the 

38 Trial Op., 2022 WL 1237185, at *34. Appellants did not ask Musk, during his two depositions 

or two days of trial testimony, any questions regarding the creation of a Tesla special committee. 

See id. at *34 n.408. Accordingly, the trial court refused to “surmise that the failure to form a 

special committee was somehow [Musk’s] doing” since there was no evidence to that effect. Id.

39 Id. at *16. On June 22, 2016, Tesla’s stock closed at $196.66 from the prior day’s close of 

$219.61. See A1182 (Joint Pre-Trial Order).
19

unaffected price by mid-July, it was clear that the market had a gut reaction to the 

Acquisition. SolarCity, for its part, fared no better following the Initial Offer’s public 

announcement. Its credit rating was downgraded, and it finished the second quarter with 

approximately $216 million in negative cash flow. Despite these problems, Bank of 

America continued to lend to, and even deepen its ties with, SolarCity. As the trial court 

found, SolarCity’s financing counterparties participated in financing transactions with 

Solar City in excess of $3 billion from the fourth quarter of 2015 through the fourth quarter

of 2016 — a timeframe when Appellants asserted SolarCity was insolvent. 

Upon receipt of the Initial Offer from Tesla, SolarCity formed a special committee 

(the “SolarCity Committee”) of two directors: Nancy Pfund and Don Kendall. The 

SolarCity Committee retained Lazard Ltd. (“Lazard”) as its financial advisor for the 

Acquisition. Lazard expressed concerns that the company teetered on the edge of 

breaching the Liquidity Covenant and would be operating with little margin of error until 

October 2016. 

3. Tesla’s Negotiation Strategy

Denholm, whom the Vice Chancellor described as “an extraordinarily credible 

witness,” led negotiations for Tesla.40 As noted above, however, Tesla did not form a 

special committee of the Tesla Board, instead choosing to vest negotiating power in

Denholm.41 The trial court found Denholm’s mastery over the negotiations to be critical. 

40 Trial Op., 2022 WL 1237185, at *17 n.233.

41 The trial court commented on Denholm’s credibility when weighing her role in the Acquisition. 

“If [Denholm] says she was in charge, then she was in charge.” Id.
20

She spent almost six weeks and hundreds of hours on the Acquisition. It was Denholm 

who corresponded with the SolarCity Committee, assisted by Evercore, updated the Tesla 

Board, and led the exchange of offers and counteroffers. 

Denholm also fleshed out the details and diligence of the Acquisition. Evercore and 

Wachtell assisted her and the Tesla Board during the negotiations. Evercore staffed the 

matter with a team of ten bankers, who reviewed SolarCity’s financial condition, conducted 

valuation analyses, and negotiated with the Lazard team.

During this time, Musk kept abreast of the negotiation strategy, and Lyndon kept 

Musk apprised of SolarCity’s financials and the need for bridge financing. The Tesla 

Board and Evercore, however, remained opposed to a bridge loan, despite Musk having 

earlier pushed for one. In response to an email request from Lyndon on July 10 to speak 

with Musk about a bridge loan, Musk advised Lyndon that, despite Musk’s wishes, the

Tesla Board would not authorize a bridge loan. 

4. Tesla’s Advisors Uncover SolarCity’s Financial Issues

Evercore’s diligence process was deliberate and encompassing. Evercore’s lead 

banker on the deal, Courtney McBean, led her team’s investigation and analysis of

SolarCity’s financial state. One core component of Evercore’s diligence included 

discussions with the Lazard team on the SolarCity side. During a call on July 15, 2016, 

Lazard advised Evercore that it was unaware that SolarCity was at risk of breaching the 

Liquidity Covenant. Following Evercore’s discovery of Lazard’s failure to comprehend 

the financial risk SolarCity faced, McBean called Musk. Musk was surprised that Lazard 

did not appreciate the risk of tripping the Liquidity Covenant.
21

Following his discussion with Evercore’s McBean, Musk turned his focus to the 

status of diligence. To increase the pace, he set up daily meetings with Evercore, but as 

the trial court found, “[i]t is not clear from the record if [Musk’s] meetings with Evercore 

came at the suggestion of the Tesla Board.”42 The first of these calls between Musk and 

Evercore occurred on July 16, 2016 — one day after Evercore’s concerning call with 

Lazard — and mainly focused on Evercore’s workflows. Following this call, Evercore 

accelerated its pace, with McBean telling her team that the deal would likely be finalized 

within days. 

SolarCity’s financial issues became the focus of Evercore’s work in the days 

following those two July calls. Evercore created “downside” projections on SolarCity and 

the Acquisition. Those projections were presented to Evercore’s Fairness Committee, 

which proposed some changes. At the Tesla Board meeting on July 19, 2016, Evercore 

explained to the Tesla Board that SolarCity could trip its Liquidity Covenant by July 30, 

2016 and warned of the financial consequences. These facts led Evercore to recommend 

that the Tesla Board lower its offer from the terms of the Initial Offer. That 

recommendation was first made to Musk in a call with Evercore on July 21, 2016, and then 

to the Tesla Board on July 22.

Right after the Tesla Board meeting on July 19, Musk self-published the second 

phase of the Master Plan, which he entitled the “Master Plan Part Deux.”43 As Musk 

42 Id. at *18. 

43 See id. at *19.
22

testified, the impetus behind the Master Plan Part Deux “was to remind people of the 

purpose of the company, which was to accelerate the advent of sustainable energy.”44 As 

the trial court found, Musk “stated that ‘the time has come’ for Tesla to acquire SolarCity 

and ‘sell integrated solar and energy storage systems.’”45 Publishing the Master Plan Part 

Deux was Musk’s way of directly communicating with Tesla stockholders that Tesla’s 

vision for the future could not be achieved without a solar company. 

The Tesla Board next met again on July 24 to discuss Evercore’s July 19 

presentation and its recommendation that the Tesla Board lower its offer. Musk attended. 

He echoed Evercore’s message that SolarCity’s financial condition warranted a lower deal 

price, but he stressed that the Acquisition still made strategic sense. Once Musk conveyed

his thoughts to the Tesla Board, he left the meeting.46 Evercore presented next and gave 

an updated presentation on its valuation of SolarCity, confirming its recommendation that 

the Tesla Board lower its offer. The question, then, became one of timing: the Tesla Board 

discussed whether to submit a revised offer to SolarCity before SolarCity released its 

second quarter results. Doing so could lower SolarCity’s stock price. After discussion, 

the Tesla Board determined to make a revised proposal at a lower price prior to SolarCity’s 

announcement of its second quarter results. The new exchange ratio was 0.105 shares of 

Tesla stock per SolarCity share. 

44 A1393 (Musk Trial Test. at 84:6–8).

45 Trial Op., 2022 WL 1237185, at *19 (internal citation omitted). 

46 Gracias — who, like Musk, was recused from any potential vote — left the room, as well. 
23

H. The Acquisition’s Terms And Public Announcement 

In the days following the Tesla Board’s July 24 meeting, negotiations continued as 

the two sides hashed out the details of the Acquisition. The final terms were proposed by 

the Tesla Board and then conveyed to the SolarCity Committee on July 30 (the “Final 

Offer”). Tesla offered 0.110 shares of Tesla stock per share of SolarCity stock —

significantly below the Initial Offer’s range of 0.122 to 0.131 shares. Evercore presented 

its fairness opinion to the Tesla Board on July 30, 2016, opining that the Final Offer was 

fair, from a financial point of view, to Tesla. “[T]he Acquisition price fell within or below 

each of the seven stock price ranges Evercore presented to the Tesla Board (plus two 

illustrative reference ranges).”

47

 Neither Musk nor Gracias took part in the Tesla Board 

vote on the Final Offer.

On July 31, 2016, Tesla and SolarCity executed an Agreement and Plan of Merger 

(the “Merger Agreement”), that was announced publicly on August 1. The Merger 

Agreement required SolarCity to receive Tesla’s approval before issuing any equity or 

taking on any new debt. It also required SolarCity to remain in compliance with its debt 

covenants pending closing. Tesla then filed a Form 8-K with the U.S. Securities and 

Exchange Commission (the “SEC”), with the Form 8-K disclosing that the Acquisition’s

exchange ratio represented an equity value for SolarCity of approximately $2.6 billion, or 

$25.37 per share, based on a five-day volume-weighted average of Tesla’s trading price as 

of July 29, 2016. The final Acquisition consideration — 0.110 Tesla shares for each share 

47 Trial Op., 2022 WL 1237185, at *21.
24

of SolarCity stock — resulted in Tesla paying an equity value of $20.35 per share of 

SolarCity common stock or approximately $2.1 billion at closing.

Signing the Merger Agreement did not ameliorate SolarCity’s financial difficulties. 

Real risk remained of a Liquidity Covenant breach before the parties could close on the 

Acquisition. Pressed for cash, SolarCity turned to bond offerings. Musk and his cousins, 

Peter and Lyndon Rive, purchased $100 million of 12-month 6.5% Solar Bonds, which 

solved SolarCity’s short-term cash needs. Other options to raise capital were not on the 

table due, in part, to constraints imposed by the Merger Agreement’s ordinary course 

covenant. 

I. The Tesla Stockholder Vote

On August 31, 2016, Tesla filed with the SEC a preliminary proxy statement, which 

contained an explanation of the Acquisition’s strategic rationale, the deal process, 

estimated synergies, fairness opinions and the valuation methodologies of Lazard and 

Evercore.

48

 As the Vice Chancellor explained, it: 

[D]isclosed three sets of SolarCity financial projections to the Tesla 

stockholders: (1) the SolarCity Base Case: the base case reflecting the best 

view of SolarCity’s management on the company’s future as of 2016; (2) the 

Evercore Sensitivity Case: the sensitivity case prepared by Evercore and 

Tesla by adjusting the SolarCity Base Case to “reduce[] SolarCity’s 

projected capital needs;” and (3) the Lazard Sensitivity Case: the sensitivity 

case prepared by Lazard and SolarCity that assumed SolarCity faced 

challenges accessing the capital markets and with borrowing costs.49

Evercore’s initial fairness analyses were based on the SolarCity Base Case and Evercore 

48 See id. at *22. 

49 Id. (internal citations omitted).
25

Sensitivity Case because the Lazard Sensitivity Case had not yet been provided to Tesla or 

Evercore.

Evercore reran its cash flow analysis upon learning that Lazard had developed a 

downside case.

50

“Evercore determined that the Evercore Sensitivity Case was more 

conservative than the Lazard Sensitivity Case, which generated uniformly higher values 

for SolarCity.”51 Lazard’s SolarCity cash flow analysis, for example, began at $6 million 

and topped off at $801 million. Evercore’s analysis, however, was more cautious, with 

Evercore’s SolarCity cash flow analysis ranging from negative $226 million to $437 

million.

52

 As Evercore’s lead banker, Courtney McBean, testified, “given that [Lazard’s 

model] generates so much more cash, it’s pretty clear that it’s less conservative.”53 

Evercore then presented its conclusions about the SolarCity–Lazard sensitivity model.

On October 12, 2016, Tesla and SolarCity filed the Definitive Proxy with the SEC.54

Reaction to the Acquisition came from many sources. Institutional stockholders formed 

50 Evercore was not aware that Lazard planned to run a sensitivity case and only learned of its 

existence once the Evercore team reviewed the preliminary proxy statement. See A1690 (McBean 

Trial Test. at 1458:5–15).

51 Trial Op., 2022 WL 1237185, at *22. The SolarCity Base Case is referred to in the Definitive 

Proxy as the “Unrestricted Liquidity Case.” The Evercore Sensitivity Case is referred to in the 

Definitive Proxy as the “Revised Sensitivity Forecasts.” This case was prepared by Evercore and 

Tesla by adjusting the SolarCity Base Case to reduce SolarCity’s projected capital needs. The 

Lazard Sensitivity Case is referred to in the Definitive Proxy as the “Liquidity Management Case.” 

It was prepared by Lazard and SolarCity and assumed SolarCity faced challenges accessing the 

capital markets and with borrowing costs. 

52 See A1691 (McBean Trial Test. at 1462:5–10).

53 Id. (McBean Trial Test. at 1463:24–1464:2).

54 See AR434 (Definitive Proxy).
26

the base of Tesla’s stockholder franchise,55 and many had mixed-to-hesitant reactions to

the Acquisition. The two main proxy advisory firms, Institutional Shareholder Services 

(“ISS”) and Glass, Lewis & Co. (“Glass Lewis”), both offered recommendations on the 

Acquisition in advance of the vote. ISS recommended that stockholders vote in favor of 

the Acquisition and noted that it helped strengthen Tesla’s goal of becoming a fully 

integrated energy company. Glass Lewis, on the other hand, advocated against the 

Acquisition, calling it a “thinly veiled bail-out plan” and expressing the view that SolarCity 

was “increasingly and materially incapable of supporting itself.”56

To quell the concerns of the institutional investors, Musk decided that a 

demonstration of a product in development at SolarCity — the Solar Roof — would show 

investors the promise of the Acquisition.57 He involved himself in the pitches to the 

market, especially when it came to the product demonstrations. He demonstrated the Solar 

Roof in a joint Tesla/SolarCity presentation on October 28, 2016, showcasing a future 

combination of the Solar Roof, solar storage through the Powerwall, and Tesla EVs 

powered by solar. 

The stockholder vote came a few weeks later, on November 17, 2016. The results 

55 For example, as of September 30, 2016, 11 institutional investors each held 1% or more of 

Tesla’s stock. This list includes many well-known institutional investors: from Fidelity and 

Blackrock to T. Rowe Price and Vanguard. See A483 (Daniel R. Fischel Expert Report at Exhibit 

D).

56 Trial Op., 2022 WL 1237185, at *23 (internal quotation marks and citation omitted).

57 At his deposition, Musk testified: “[I]t stands to reason that if you are trying to explain to 

investors why the combination makes sense, then you have to explain the products and the 

synergies that will result from the -- from the combination. Otherwise, they will not understand 

why it should be done.” A339 (Elon Musk Dep. Trans. at 421:15–20).
27

were overwhelming, with roughly 85% of the votes cast by Tesla’s stockholders voting in 

favor of the Acquisition. Most of those votes were cast by sophisticated, institutional 

investors.

J. The Closing 

On November 21, 2016, the Acquisition closed. By the time “of closing, SolarCity 

brought substantial value to Tesla. It had 15,000 employees, $200 million a month in 

business, over $3 billion in future cash flows, over 300,000 customers, and net assets in 

excess of its market capitalization (as confirmed by KPMG)[.]”58 As the trial court found, 

this led to “Tesla booking an $89 million gain on the Acquisition” and that “as of closing, 

SolarCity had accumulated and continued to accumulate substantial net retained value.”59 

After the closing, however, Tesla faced more challenges at the start of 2017. The 

time had come for Tesla to launch its first full-scale production EV — the Model 3. But 

production delays hampered the Model 3 roll-out and, with much on the line, Musk directed 

all of Tesla’s focus, post-Acquisition, toward the Model 3 launch. This shift in focus

included redeploying former SolarCity employees who had been transitioned into Tesla’s 

workforce. As a result, the solar energy business was put on hold, and Tesla even started 

to outsource production and installation of solar panels to third parties. Despite that, Tesla 

largely achieved the vision Musk outlined in the Master Plan.60 As the trial court observed, 

“[a]s long-promised, following the Acquisition, Tesla became the world’s first vertically 

58 Trial Op., 2022 WL 1237185, at *24 (internal citations omitted).

59 Id. 

60 See id. at *25.
28

integrated sustainable energy company, offering end-to-end clean energy products.”61 The 

court found that “[t]he preponderance of the evidence suggests that the Acquisition was 

and is synergistic.”

62

 It also found that Tesla realized approximately $1 billion in nominal 

cash flows and conservatively expected to realize at least $2 billion more from the legacy 

SolarCity systems. Tesla also achieved significant cost and revenue synergies. 

K. Proceedings In The Court Of Chancery

Litigation began in the fall of 2016, when several Tesla stockholders filed separate 

actions challenging the Acquisition. The Court of Chancery consolidated the actions in 

mid-October 2016 and appointed lead plaintiffs and counsel.

1. Pre-Trial Motions Practice

On March 28, 2018, the trial court denied the then-Defendants’ motion to dismiss.63 

The then-Defendants had moved to dismiss under Corwin v. KKR Financial Holdings 

LLC,

64 and then-Plaintiffs, now-Appellants, opposed, arguing that Musk was Tesla’s 

controlling stockholder and, thus, Corwin did not apply. The trial court agreed with 

Appellants and noted that, although it was “a close call,” it was reasonably conceivable

that Musk, a minority blockholder, was Tesla’s controlling stockholder and exerted control 

over the Tesla Board in connection with the Acquisition.

65

 The Court of Chancery 

61 Id. (internal quotation marks and citation omitted). 

62 Id. at *25.

63 See In re Tesla Motors, Inc. S’holder Litig., 2018 WL 1560293 (Del. Ch. Mar. 28, 2018) (“MTD 

Op.”).

64 125 A.3d 304 (Del. 2015).

65 MTD Op., 2018 WL 1560293, at *1.
29

summarized its pleadings-stage assessment of Musk’s status as Tesla’s alleged controller 

as follows: 

Whether Musk has regularly exercised control over Tesla’s Board, or 

whether he did so only with respect to the Acquisition, is not entirely clear 

from the Complaint. For purposes of my decision on the motion, however, 

that distinction does not matter. At the very least, the Complaint pleads 

sufficient facts to support a reasonable inference that Musk exercised his 

influence as a controlling stockholder with respect to the Acquisition. 

Specifically, the combination of well-pled facts relating to Musk’s voting 

influence, his domination of the Board during the process leading up to the 

Acquisition against the backdrop of his extraordinary influence within the 

Company generally, the Board level conflicts that diminished the Board’s 

resistance to Musk’s influence, and the Company’s and Musk’s own 

acknowledgements of his outsized influence, all told, satisfy Plaintiffs’

burden to plead that Musk’s status as a Tesla controlling stockholder is 

reasonably conceivable.66

Thus, the court provisionally established entire fairness as the standard of review.67

Both sides then moved for summary judgment, and the trial court denied summary 

judgment with limited exceptions not relevant to the issues presented on appeal.

68

 Because 

genuine disputes of material fact existed as to whether Musk was Tesla’s controlling 

stockholder, whether the stockholder vote was fully informed, whether a majority of 

66 Id. at *19. The then-Defendants sought an interlocutory appeal of the Court of Chancery’s 

opinion denying their motion to dismiss. We refused the interlocutory appeal. See Musk v. Ark. 

Teacher Ret. Sys., 184 A.3d 1292, 2018 WL 2072822 (Del. May 3, 2018) (ORDER). 

67 See MTD Op., 2018 WL 1560293, at *19 (noting that “[t]he facts developed in discovery may 

well demonstrate otherwise”) (internal citation omitted). As the Court of Chancery emphasized in 

its order denying certification of the interlocutory appeal, the standard of review remained to be 

determined. See In re Tesla Motors, Inc. S’holder Litig., 2018 WL 2006678, at *3 (Del. Ch. Apr. 

27, 2018) (“As the Opinion makes clear, the standard of review remains to be determined.”) 

(internal citation omitted).

68 See SJ Op., 2020 WL 553902. The only claims that the court dismissed on summary judgment 

were “certain disclosure claims that [were] not viable, either a matter of undisputed fact or as a 

matter of law.” Id. at *2.
30

Tesla’s Board faced disqualifying conflicts of interest, and whether the Acquisition 

constituted waste, the court set the case for trial and noted that the then-Defendants could 

“avoid liability if the transaction was fair.”69

Shortly before the court’s summary judgment decision, the litigants reached a 

settlement to dismiss the claims against all of the then-Defendants, save Musk. On August 

17, 2020, the trial court approved the partial settlement, for an aggregate of $60 million

(funded by insurance), as to those then-Defendants. The trial court then assumed thenPlaintiffs, now-Appellants’ “best case on standard of review—that entire fairness applies—

and consider[ed] the trial evidence through that lens.”

70

2. Trial Testimony 

The trial commenced in July 2021 and spanned ten days of in-person testimony and 

one day of remote testimony. The witness list was expansive: 11 live fact witnesses (and 

one by deposition video) and 7 live expert witnesses testified at trial. Musk testified first.71

As is common in an entire fairness trial, both sides put forward expert testimony 

opining on the Acquisition.72 Appellants presented three experts: Ronald Quintero, 

Murray Beach, and Jeurgen Moessner.73 A common theme emerged from Appellants’ 

69 Id. at *7.

70 Trial Op., 2022 WL 1237185, at *27.

71 See A1374–440 (Musk Trial Test.).

72 See S. Muoio & Co. LLC v. Hallmark Entm’t Invs. Co., 2011 WL 863007, at *17 (Del. Ch. Mar. 

9, 2011) (“As has become common in entire fairness proceedings of this sort, the parties presented 

the testimony of competing valuation experts in an effort to convince [the Court of Chancery] that 

their valuation was the most accurate.”), aff’d, 35 A.3d 419 (Del. 2011) (ORDER).

73 See Trial Op., 2022 WL 1237185, at *6. Quintero founded two firms: R.G. Quintero & Co., 

which focuses on accounting, and Chartered Capital Advisers, Inc., which focuses on financial 
31

presentation: insolvency. As the trial court put it, Appellants were “all in” on the theory 

that SolarCity was insolvent, and, thus, Tesla overpaid.74 Quintero’s testimony was key, 

and “he doubled down on his sworn testimony that SolarCity was worth nothing.”75 

Appellants “placed their valuation case entirely in Quintero’s hands, and Quintero, in turn, 

relied exclusively on a single valuation theory: insolvency.”76 Further, Appellants’ “other 

experts did not opine on valuation.”77

Musk presented four experts: Dan Reicher, Jonathan Foster, Frederick Van Zijl, 

services for M&A transactions. See A583 (Ronald G. Quintero Expert Report at 2) [hereinafter 

Quintero Rep. at _]. He was retained “to evaluate the ability of SolarCity to meet its financial 

obligations absent the acquisition and also to determine the fair value of SolarCity common stock 

as of the merger date.” A1504 (Ronald G. Quintero Trial Test. at 695:2–5) [hereinafter Quintero 

Trial Test. at _]. 

Beach is the president of Business Consulting Group, LLC. See A2218 (Beach Demonstrative 

Exhibits). He was retained “to determine if a seasoned equity offering [] would be possible” for 

SolarCity and if a raise between $250–$300 million would have been feasible. A1633 (Murray

Beach Trial Test. at 1078:18–22). 

Moessner founded Global Capital Finance, a firm specializing in the renewable energy sector. He 

was retained “to assess the reasonableness of the projections that were used by the Tesla board in 

order to determine whether or not to pursue the merger” and “to determine whether or not it was 

necessary to make any adjustments to those projections in order to address the operative reality 

and the business situation of SolarCity at the time of the merger.” A1483 (Jeurgen Moessner Trial 

Test. at 609:14–21) [hereinafter Moessner Trial Test. at _]. 

74 See Trial Op., 2022 WL 1237185, at *40.

75 Id. 

76 Id. (internal citations omitted).

77 Id. at *40 n.470. Their other two experts offered similar testimony regarding SolarCity’s 

financial state, which they depicted as dire. According to Beach, SolarCity could not succeed on 

an equity offering, putting its ability to finance itself in question. According to Moessner, the 

projections by Evercore and Lazard valuing SolarCity were inflated and too optimistic. See id. at 

*6.
32

and Daniel Fischel.78 Musk’s experts discussed the strategic rationale behind the 

Acquisition. They focused their testimony on the Master Plan and the potential for 

synergistic value to catapult Tesla to the next level. Reicher’s testimony focused on the 

potential synergies of the Acquisition and the benefits that would flow to Tesla 

stockholders. Foster testified as to the process employed by the Tesla Board that 

culminated in the Acquisition. Van Zijl rebutted Quintero’s view that SolarCity was 

insolvent, and Fischel — Musk’s main expert — testified that the price Tesla paid was 

fair.79

Following post-trial briefing, the trial court heard post-trial oral argument on 

January 18, 2022.80 The court issued its written opinion on April 27, 2022. We discuss 

the trial court’s key findings next. 

78 See id. Reicher serves as the Executive Director of Stanford University’s Steyer-Taylor Center 

for Energy Policy and Finance. His “expert report extensively detailed the immense growth 

potential of the solar industry in particular.” Id. at *47 n.551.

Foster is “an M&A practitioner” who was retained to review the “steps that a board should follow,

when considering a major acquisition, to be consistent with custom and practice; or evaluating 

target companies, various potential targets should be considered.” A1826–27 (Jonathan Foster 

Trial Test. at 2459:3–6; 2461:15).

Van Zijl is a capital markets expert with “35 years of investment banking experience” who “has 

advised on hundreds of leveraged finance transactions.” A2132 (Musk’s Post-Trial Reply Br. at 

8 n.15). 

Fischel is a scholar in the law and economics field and served as the dean of the University of 

Chicago Law School. He was retained “to analyze the economic evidence in connection with the 

allegations” made by Appellants regarding the Acquisition. A1832 (Daniel R. Fischel Trial Test. 

at 2481:8–12) [hereinafter Fischel Trial Test. at _].

79 See Trial Op., 2022 WL 1237185, at *6.

80 On September 20, 2021, this Court issued its opinion in Brookfield Asset Mgmt., Inc. v. Rosson, 

261 A.3d 1251 (Del. 2021). As a result, the parties below stipulated to decertify the class, dismiss 

the direct claims, and submit only the derivative claims for decision. 
33

3. The Trial Court’s Fair Dealing Findings

The court first addressed the fair dealing analysis of the unitary entire fairness 

standard. The Vice Chancellor observed that “a controlling stockholder brings with him

into the boardroom an element of ‘inherent coercion.’”81 But the court found “that any 

control [Musk] may have attempted to wield in connection with the Acquisition was 

effectively neutralized by a board focused on the bona fides of the Acquisition, with an 

indisputably independent director leading the way.”82 Although the court described 

Musk’s “presence in the boardroom” as “problematic[,]” at times, it weighed the flaws 

against the process strengths and found that “the credible evidence produced at trial shows 

that” Musk did not exercise his purported control over the Tesla Board with respect to the 

Acquisition.

83

The Vice Chancellor looked first at the flaws in the process, particularly Musk’s 

involvement in negotiating the Acquisition. The court made 11 factual findings showing 

that Musk had participated in the deal process to a degree greater than he should have.

84

 

The “process flaws” — as the trial court described them — were: 

• Several of Musk’s communications with SolarCity’s management about the 

Acquisition that were not disclosed to the Tesla Board. 

• Musk’s overtures to the Tesla Board about the Acquisition and his direction 

to Tesla’s CFO to prepare a presentation on the Acquisition. 

81 Trial Op., 2022 WL 1237185, at *33 (quoting In re Pure Res., Inc. S’holders Litig., 808 A.2d 

421, 436 (Del. Ch. 2002) and SJ Op., 2020 WL 553902, at *5–6). 

82 Id. at *33.

83 Id. 

84 See id. at *34. 
34

• Musk’s participation in the selection of Wachtell. 

• Musk’s review of the letter and blog post announcing the Initial Offer.

• Musk’s involvement in Evercore’s initial presentation to the Tesla Board and 

his push for a higher premium.

• Musk’s frequent communications with the Evercore team, obtaining updates 

on timing and diligence. 

• Musk’s publication of the Master Plan Part Deux in an apparent attempt to 

garner Tesla stockholder support.

• Evercore informing Musk — before informing the Tesla Board — that it 

recommended lowering the terms of the Initial Offer.

• Musk’s presence during part of a Tesla Board meeting regarding a revised 

offer. 

• Musk’s demonstration of the Solar Roof and his promises concerning the 

timing of the product launch.

• Kimbal’s failure to be recused from both Tesla Board meetings and voting 

on the Acquisition.85

The trial court noted that these “process flaws flow[ed] principally from [Musk’s] apparent 

inability to acknowledge his clear conflict of interest and separate himself from Tesla’s 

consideration of the Acquisition.”86

Upon recognizing these process flaws, the court then turned to what it identified as 

the strengths. It found six. The first involved the timing of the Acquisition, with the court 

noting that the Tesla Board did not begin negotiations upon Musk’s initial requests but 

85 See id. at *34–35.

86 Id. at *34. 
35

rather waited until Tesla addressed issues with its EVs.87 The second was the deal

structure: notably, the inclusion of the majority-of-the-minority stockholder vote

provision, Musk’s and Gracias’ recusals from voting, the selection of independent, 

experienced advisors to represent the Tesla Board, and Denholm’s lead on the negotiations. 

Third, the court cited the due diligence and negotiations — overseen by Denholm — that

resulted in the lower Final Offer.

88

 

The fourth was the fact that the Tesla Board operated independently of Musk: it did 

not begin negotiations when he said to, it did not include a bridge loan in its offers, and it 

took its time doing due diligence.89 The Tesla Board’s insistence on a walkaway right in 

the event of a SolarCity debt covenant breach was also significant. The court found that 

these facts suggested “an ultimately productive board dynamic that protected the interests 

of stockholders, despite [Musk’s] assumed ‘managerial supremacy’ and the assumed 

board-level conflicts.”90

Public knowledge of the Acquisition by the market, and by the Board during 

negotiations, was the fifth strength, with the court noting that there were “well-publicized 

debates and transaction modeling.”91 It found that “[t]he material aspects of the 

Acquisition were known to Tesla stockholders.”92 Moreover, the Definitive Proxy

87 See id. at *36.

88 See id. at *37.

89 See id. 

90 Id. 

91 Id. at *38.

92 Id. 
36

disclosed which Tesla Board meetings Musk attended and that, on two occasions, voting 

members had asked Musk to provide his technical and strategic insights.93

Denholm’s role leading the negotiations, according to the trial court, was the last 

process strength, with the court finding that she was “an independent, powerful and positive 

force during the deal process who doggedly viewed the Acquisition solely through the lens 

of Tesla and its stockholders.”

94

 She “served as an effective buffer between [Musk] and 

the Tesla Board’s deal process.”95

Regarding fair dealing, the trial court noted that the road leading to the Acquisition 

was not entirely smooth. The court found, however, that the “Tesla Board meaningfully 

vetted the Acquisition” and Musk “did not impede the Tesla Board’s pursuit of a fair 

price.”96 Although Appellants assert that the court failed to make a finding of fair dealing, 

the court’s opinion can only reasonably be read and understood as concluding that the flaws 

did not overcome the findings of the process strengths and that the process, overall, was 

the product of fair dealing. We address this point more fully in Section IV of this Opinion. 

4. The Trial Court’s Fair Price Findings

The focus next turned to the fair price analysis and the battle of the competing 

93 See AR500–09 (Definitive Proxy at 58–67); see also AR508 (Definitive Proxy at 66) (stating 

that at the July 22, 2016 special meeting of the Tesla Board, “[t]he Tesla Board requested that Mr. 

Elon Musk join the meeting to discuss with the other directors his views and expectations, in his 

capacity as Chief Executive Officer of Tesla, following a potential acquisition with respect to 

SolarCity’s solar panel manufacturing operations and competitive positioning relative to the solar 

energy industry generally.”). Following that, Musk left the meeting. See id.

94 Trial Op., 2022 WL 1237185, at *38.

95 Id. 

96 Id. at *39 (emphasis in original).
37

experts. The court found that Musk prevailed in establishing that the price was fair: Musk 

“presented the most persuasive evidence regarding SolarCity’s value and the fairness of 

the price Tesla paid to acquire it.”97 The court pointed to six factors and categories of 

evidence it relied upon in reaching its determination on fair price. 

First, the trial court found that SolarCity was not insolvent, despite Appellants 

placing all of their eggs in the insolvency basket. Their theory was simple: SolarCity had 

no value and, thus, Tesla overpaid. The trial court rejected Quintero’s testimony “that 

SolarCity was worthless[,]” instead finding that SolarCity “was solvent, valuable and never 

in danger of bankruptcy.”98 Second, the court found that the proffered DCF models by 

Quintero and Fischel were unhelpful and, thus, the court disregarded them.99 Third, the 

court considered market evidence, which supported its finding of fair price. The trial court 

noted three pieces of market-based evidence: SolarCity traded in an efficient market, Tesla 

paid, at most, a small premium for SolarCity, and Tesla stockholders overwhelmingly 

97 Id. at *40.

98 Id. At trial, SolarCity executives — including its CEO, CFO, and former CFO — confirmed 

that SolarCity was not insolvent or headed into bankruptcy. See A1758–59 (Lyndon Rive Trial 

Test. at 1732:18–1733:7); A1612 (Tanguy Serra Trial Test. at 997:18–24); A1810 (Brad Buss Trial 

Test. at 2393:3–10). Unrebutted testimony established that SolarCity never contemplated filing 

for bankruptcy and never took steps to retain restructuring advisors or counsel. 

In addition, Quintero — Appellants’ main valuation expert — abandoned his four illustrative 

valuations at trial. See A1586 (Quintero Trial Test. at 890:20–891:4). See also Glob. GT LP v. 

Golden Telecom, Inc., 993 A.2d 497, 510 (Del. Ch. 2010) (declining to “engage in a speculative 

exercise based on tinkering with analyses that the two experts themselves essentially do not stand 

behind”), aff’d, 11 A.3d 214 (Del. 2010).

99 See Trial Op., 2022 WL 1237185, at *41 (stating that “Quintero and Fischel both performed 

DCF valuations” and that “neither expert persuaded me that a DCF analysis is the proper method 

by which to value SolarCity given the facts of this case, and so I decline to rely on the DCFs when 

analyzing whether the Acquisition was fair to Tesla’s stockholders.”). The court also noted that 

“the parties did not focus on DCF at trial or in their post-trial briefs[.]” Id.
38

voted in favor of the Acquisition. The court took into account Appellants’ “argument 

regarding the quality (or not) of the Tesla stockholder vote”100 in finding the stockholder 

vote compelling evidence of fairness. 

Fourth, the trial court examined SolarCity’s current and future cash flows. 

SolarCity derived its value from long-term cash flows, and that benefit flowed to Tesla 

after the Acquisition. As the court found, “Tesla has already realized approximately $1 

billion in nominal cash flows and expects to realize at least $2 billion more from the legacy 

SolarCity systems.”101 Fifth, the trial court relied on Evercore’s fairness opinion. Based 

upon Evercore’s work negotiating for Tesla and doing due diligence, the trial court found 

Evercore’s work credible and rejected a suggestion from Appellants that “Evercore was 

beholden to [Musk].”

102

 And, finally, the trial court found that the potential synergies 

weighed in favor of finding fair price. Looking at the evidence put forth by Musk’s experts, 

the court found that “Tesla expected the Acquisition to result in cost synergies of at least 

$150 million per year[.]”103 The overlap between the two companies led to a vertically 

integrated enterprise with a renewed focused on renewable energy solutions, like EVs and 

solar panels, creating significant value, as the trial court found.

104

 

Summarizing the fair price part of the entire fairness analysis, the trial court 

100 Id. at *44 n.515. 

101 Id. at *45.

102 Id. at *46.

103 Id. at *47.

104 See id. 
39

acknowledged that “where there are process infirmities, the Court is obliged to study fair 

price even more carefully.”105 Its review of the evidence put forth at trial regarding the 

price Tesla paid for SolarCity led it to conclude that the price was fair. Given that 

Appellants had proffered only “incredible” testimony that SolarCity was insolvent, the trial 

court’s review of the evidence convinced it that no “fairer” price existed and that the price 

was not near the low end of a range of fairness but, rather, was “‘entirely’ fair in the truest 

sense of the word.”106 Because of that, it found that Musk satisfied the entire fairness 

standard and, thus, did not breach his fiduciary duty.

L. Contentions On Appeal 

Appellants filed a timely appeal to this Court following the Court of Chancery’s 

issuance of its post-trial opinion.107 They do not challenge the factual findings by the trial 

court. Instead, they challenge the Vice Chancellor’s application of Delaware’s entire 

fairness standard of review. Appellants contend that: 

The gravamen of the trial court’s Opinion, based on an apples-to-oranges 

comparison, was that SolarCity’s stock price on June 21, 2016 (which was 

“affected” by pre-offer rumors and did not reflect full information) was 

marginally higher than the price paid for SolarCity with Tesla stock on 

November 21, 2016, so the price was entirely fair.108

Regarding fair dealing, Appellants contend that the trial court “refused to issue any 

105 Id. at *48.

106 Id. (emphasis in original).

107 See A1 (Court of Chancery Docket).

108 Opening Br. at 1–2 (emphases in original).
40

ruling at all with regard to fair process.”

109

 They raise three arguments regarding the 

court’s fair dealing analysis: (1) the court “failed to find that Musk had not met his burden 

to prove fair dealing[,]” (2) the court focused its entire fairness analysis exclusively on fair 

price, and (3) the court “erroneously found that the unfair process did not affect the fairness 

of the price.”110

As to fair price, Appellants contend that the trial court committed legal error in five 

ways: (1) the court “applied a bifurcated entire fairness test that focused exclusively on 

fair price[,]” (2) the court “failed to determine SolarCity’s value at the time the Acquisition 

closed” and instead improperly compared SolarCity’s stock price from June 21, 2016 to its 

stock price right before the November 21, 2016 closing, (3) the court considered the “$1-3 

billion of cash from SolarCity assets” Tesla expected to receive “but failed to include the 

$5.35 billion of SolarCity liabilities that Tesla immediately assumed as part of the 

Acquisition[,]” (4) the court “determined that discounted cash flow (‘DCF’) analyses were 

inappropriate to value SolarCity, yet relied on post-close undiscounted cash flows and the 

flawed DCF analyses from Tesla’s financial advisor [Evercore],” and (5) the court “held 

that the Tesla stockholder vote supported a finding of fair price despite: (i) clear precedent 

that votes are presumed coerced in conflicted controlling stockholder transactions;” and 

(ii) acknowledging certain disclosure and cross-ownership issues meant the vote deserved 

“less weight[.]”111

109 Id. at 6.

110 Id.

111 Id. at 6–7.
41

Musk responds that what the Appellants really seek isto retry this case. He contends

that the Appellants push for a rigid approach to entire fairness not grounded in Delaware 

law. According to Musk, the trial court did not engage in a “bifurcated” entire fairness 

analysis, but rather, recognized that price plays a “paramount” role in the analysis.

This appeal — and the questions it raises regarding our highest level of judicial 

review — has also attracted the presence of a group of corporate law professors from 

institutions across the United States — the amici — who argue that the Court of Chancery 

erred when it put “heavy reliance” on “market-based evidence” to support its determination 

of fair price.112 As explained below, we reject their characterization of the trial court’s 

opinion.

II. STANDARD OF REVIEW 

“The standard and scope of appellate review of the Court of Chancery’s factual 

findings following a post-trial application of the entire fairness standard to a challenged 

merger is governed by Levitt v. Bouvier.”113 “Accordingly, this Court will not ignore the 

112 Amicus Br. at 2. We note with disappointment that the amici state in their brief that “the Court 

of Chancery’s opinion below placed ‘heavy reliance’—indeed, nearly exclusive reliance—on 

‘market-based evidence’ in concluding ‘that Tesla paid a fair price for SolarCity.’” Id. They then 

cite to several pages of the trial court’s opinion. The trial court’s opinion, however, never uses the 

words “heavy reliance” in its market-based evidence discussion. Nor is it fair to say that the trial 

court nearly exclusively relied on market-based evidence. 

Submission of amicus briefs lies solely within this Court’s discretion, should we believe the 

submission will be helpful. A brief built upon an inaccurate premise and a misquotation of the 

trial court’s opinion, however, is not helpful. Nor is it helpful to use disparaging phrases to 

describe a trial court opinion — for example, “this is deference to market evidence run amok.” Id.

at 5.

113 Cinerama, Inc. v. Technicolor, Inc., 663 A.2d 1156, 1178 (Del. 1995) (“Cinerama II”) (citing

287 A.2d 671, 673 (Del. 1972)). In Levitt, we stated:
42

findings of the Court of Chancery if they are sufficiently supported by the record and are 

the product of an orderly and logical deductive process.”

114

 “Our review of the formulation 

and application of legal principles, however, is plenary and requires no deference.”115 “In 

addition, this Court accords ‘a high level of deference’ to Court of Chancery findings based 

on the evaluation of expert financial testimony.”116 

III. ANALYSIS

The Court of Chancery examined the Acquisition through the lens of the entire 

fairness standard — our corporate law’s most rigorous standard of review. The trial court 

assumed, without finding, that the entire fairness standard applied. For example, it made 

no finding that Musk was Tesla’s controlling stockholder.

117

 Nor did it explicitly find that 

In exercising our power of review, we have the duty to review the sufficiency of 

the evidence and to test the propriety of the findings below. We do not, however, 

ignore the findings made by the trial judge. If they are sufficiently supported by 

the record and are the product of an orderly and logical deductive process, in the 

exercise of judicial restraint we accept them, even though independently we might 

have reached opposite conclusions. It is only when the findings below are clearly 

wrong and the doing of justice requires their overturn that we are free to make 

contradictory findings of fact. When the determination of facts turns on a question 

of credibility and the acceptance or rejection of “live” testimony by the trial judge, 

his findings will be approved upon review. If there is sufficient evidence to support 

the findings of the trial judge, this Court, in the exercise of judicial restraint, must 

affirm.

287 A.2d at 673 (internal citations omitted).

114 Cinerama II, 663 A.2d at 1179 (citing Levitt, 287 A.2d at 673).

115 Kahn v. Lynch Commc’n Sys., Inc., 669 A.2d 79, 84 (Del. 1995) (“Lynch II”). See also Kahn 

v. Tremont Corp., 694 A.2d 422, 428 (Del. 1997) (“Tremont”) (noting that we “exercise de novo 

review concerning the application of legal standards.”).

116 Cinerama II, 663 A.2d at 1179 (quoting Kahn v. Household Acq. Corp., 591 A.2d 166, 175 

(Del. 1991)). 

117 We save for another day whether a stockholder with 22% of the voting power, but who may 

exercise “managerial supremacy,” is a controlling stockholder. As the Vice Chancellor noted, “the 

source of [Musk’s] control was hotly disputed. [Appellants] focused at trial on [Musk’s] 
43

a majority of the Tesla Board was conflicted.118 Instead, the court “skipped” straight to 

entire fairness. As the Vice Chancellor put it, “[w]hether by virtue of [Musk’s] control, or 

by virtue of irreconcilable board-level conflicts, there is a basis for assuming that entire 

fairness is the governing standard of review.”119

On appeal, the parties do not dispute that entire fairness controls. In keeping with 

our practice of addressing only issues fairly presented, we, too, view the Acquisition 

through the lens of entire fairness. This Court described the entire fairness standard of 

review in our seminal decision, Weinberger v. UOP, Inc.,

120 as follows:

‘managerial supremacy,’ not his stock ownership or the voting power flowing from his stock. Of 

course, that argument brings the controlling stockholder debate in clear focus. Again, I have 

chosen not to enter into the fray of this debate, as the outcome does not depend on whether [Musk] 

is or is not a controller (or a controlling stockholder, if that is different).” Trial Op., 2022 WL 

1237185, at *30 n.377 (internal citations omitted).

The fact that such a stockholder lacks the voting power to elect directors, approve transactions, or 

perhaps use her voting power to block transactions makes the question an important one, which 

can greatly affect the direction of our law, as well as the outcome of individual cases. For example, 

expanding the definition of a “controller” expands the universe of persons who could be liable to 

stockholders under fiduciary principles, and it potentially excludes persons from “Corwin 

cleansing” and subjects them to the rigorous entire fairness standard of review. 

118 See id. at *2. On potential Tesla Board conflicts, the Vice Chancellor noted the following: 

With regard to board-level conflicts, I acknowledge [Appellants’] arguments that 

each member of the Tesla Board, save Denholm, was either interested or lacked 

independence with respect to the Acquisition. I have already reviewed the relevant 

evidence in that regard as I introduced each Tesla Board member in the Background 

section of this opinion. Suffice it to say, there is a bona fide dispute regarding 

whether a majority of the Tesla Board was conflicted as it considered, negotiated 

and ultimately approved the Acquisition. There is, therefore, a factual basis to 

justify an assumption that entire fairness is the standard of review on this basis 

alone. 

Id. at *30 n.376.

119 Id. at *30 (emphasis added) (internal citations omitted). 

120 457 A.2d 701 (Del. 1983).
44

The concept of fairness has two basic aspects: fair dealing and fair price. 

The former embraces questions of when the transaction was timed, how it 

was initiated, structured, negotiated, disclosed to the directors, and how the 

approvals of the directors and the stockholders were obtained. The latter 

aspect of fairness relates to the economic and financial considerations of the 

proposed merger, including all relevant factors: assets, market value, 

earnings, future prospects, and any other elements that affect the intrinsic or 

inherent value of a company’s stock. However, the test for fairness is not a 

bifurcated one as between fair dealing and price. All aspects of the issue 

must be examined as a whole since the question is one of entire fairness.121

“The requirement of fairness is unflinching in its demand that where one stands on 

both sides of a transaction, he has the burden of establishing its entire fairness, sufficient 

to pass the test of careful scrutiny by the courts.”122 “[E]ntire fairness is the highest 

standard of review in corporate law[,]”123 and “the defendants bear the burden of proving 

that the transaction with the controlling stockholder was entirely fair to the minority 

stockholders.”124 

“A determination that a transaction must be subjected to an entire fairness analysis 

is not an implication of liability.”125 Even under our entire fairness standard, “[a] finding 

121 Id. at 711 (internal citations omitted).

122 Id. at 710 (emphasis added). 

123 MFW, 88 A.3d at 644. See also In re Trados Inc. S’holder Litig., 73 A.3d 17, 44 (Del. Ch. 

2013) (explaining that entire fairness is “Delaware’s most onerous standard”).

124 Ams. Mining Corp. v. Theriault, 51 A.3d 1213, 1239 (Del. 2012).

125 Emerald P’rs v. Berlin, 787 A.2d 85, 93 (Del. 2001) (citing Nixon v. Blackwell, 626 A.2d 1366, 

1376 (Del. 1993)). For example, this Court has affirmed decisions of the Court of Chancery 

holding that a conflicted transaction was entirely fair. See, e.g., ACP Master, Ltd. v. Sprint Corp., 

184 A.3d 1291 (Del. 2018) (ORDER); S. Muoio & Co. LLC, 35 A.3d 419 (Del. 2011) (ORDER); 

Emerald P’rs v. Berlin, 840 A.2d 641 (Del. 2003) (ORDER); Lynch II, 669 A.2d 79. See also 

Cinerama II, 663 A.2d at 1163 (“Because the decision that the procedural presumption of the 

business judgment rule has been rebutted does not establish substantive liability under the entire 

fairness standard, such a ruling does not necessarily present an insurmountable obstacle for a board 

of directors to overcome.”) (emphases in original); id. (“Thus, an initial judicial determination that 
45

of perfection is not a sine qua non in an entire fairness analysis.”126 Entire fairness is a 

unitary test, and both fair dealing and fair price must be scrutinized by the Court of 

Chancery. “It is a standard by which the Court of Chancery must carefully analyze the 

factual circumstances, apply a disciplined balancing test to its findings, and articulate the 

bases upon which it decides the ultimate question of entire fairness.”127 

The burden of proof rests with the defendant to prove that the transaction was 

entirely fair to stockholders. Although this Court has stated that “which party bears the 

burden of proof [in an entire fairness case] must be determined, if possible, before the trial 

begins[,]”

128 the trial court here did not determine — before trial — which party bore the 

burden of proof.129 The court stated that it “need not decide the burden of proof question”

because, in the court’s words, “the evidence favoring the defense is that compelling.”

130

 

Appellants contend that the Vice Chancellor “functionally shifted the burden to 

[Appellants] to prove that every aspect of the process was unfair,”

131 especially in 

a given breach of a board’s fiduciary duties has rebutted the presumption of the business judgment

rule does not preclude a subsequent judicial determination that the board action was entirely fair, 

and is, therefore, not outcome-determinative per se.”).

126 Cinerama II, 663 A.2d at 1179.

127 Id. 

128 Ams. Mining, 51 A.3d at 1243 (emphasis added).

129 See Trial Op., 2022 WL 1237185, at *32.

130 Id. (internal citations omitted).

131 Opening Br. at 3 (emphasis added). See also Reply Br. at 11 (“Thus, the trial court [] shifted 

the unfairness burden to [Appellants.]”).

Appellants also contend that the trial court engaged in a burden shift when it “held that [Appellants] 

must satisfy this burden by proving Musk used actual threats and bullying tactics, rather than the 

inherent coercion that accompanied his status at Tesla and his improper intrusions into the deal 

process.” Id.
46

connection with their theory of inherent coercion.132 Again, we do not think that is an 

accurate reading of the trial court’s opinion. The trial court stated, for example, that “[i]n 

sum, [Musk] proved that the process did not ‘infect’ the price.”133 It also found that Musk 

“presented credible evidence that Tesla paid a fair price for SolarCity[,]” whereas 

Appellants “answered by proffering incredible testimony that SolarCity was 

insolvent[.]”134 The Court of Chancery, thus, correctly assumed that Musk had the 

burden.135 

IV. THE COURT OF CHANCERY DID NOT ERR IN ITS FAIR DEALING

ANALYSIS

We begin with a brief overview of the fair dealing aspect of the entire fairness test. 

“The element of ‘fair dealing’ focuses upon the conduct of the corporate fiduciaries in 

effectuating the transaction.”136 A fair dealing analysis looks to “how the purchase was 

initiated, negotiated, structured and the manner in which director approval was 

obtained.”137 Fair dealing “also embraces the duty of candor owed by corporate fiduciaries 

132 See Opening Br. at 33 (arguing that the trial court required Appellants to show “evidence of 

actual exploitation of Musk’s inherent coercion,” rather than require Musk to show that he did not 

impede the fairness of process).

133 Trial Op., 2022 WL 1237185, at *39. The court also stated that it would “give no deference to 

[Musk] (or his fellow Tesla Board members) and will review [Appellants’] breach of fiduciary 

[duty] claim with the highest degree of scrutiny recognized in our law.” Id. at *30.

134 Id. at *48.

135 See Ams. Mining, 51 A.3d at 1243 (“[I]f the record does not permit a pretrial determination that 

the defendants are entitled to a burden shift, the burden of persuasion will remain with the 

defendants throughout the trial to demonstrate the entire fairness of the interested transaction.”).

136 Tremont, 694 A.2d at 430. 

137 Id. at 431. 
47

to disclose all material information relevant to corporate decisions from which they may 

derive a personal benefit.”138

“This Court has held that arm’s-length negotiation provides ‘strong evidence that 

the transaction meets the test of fairness.’”139 Deal mechanisms commonly employed to 

replicate arm’s-length negotiating include the use of a special committee and a majorityof-the-minority voting provision for stockholder approval. Given the unitary nature of the

test, findings in one area may seep into the findings of the other. As a result, “[a] fair 

process usually results in a fair price.”140 The opposite is also true: “an unfair process can 

infect the price[.]”141

Although the entire fairness test is a fact-intensive analysis, Appellants do not 

challenge any of the factual findings or credibility determinations made by the Vice 

Chancellor.142 But in many respects, they ask us to re-weigh the evidence regarding the 

Acquisition’s deal process and to reach the opposite conclusion: namely, that the factual 

findings demand a finding of unfair dealing.143 

138 Mills Acq. Co. v. Macmillan, Inc., 559 A.2d 1261, 1280 (Del. 1989) (internal citation omitted). 

See also Weinberger, 457 A.2d at 711.

139 Cinerama II, 663 A.2d at 1172 (quoting Weinberger, 457 A.2d at 709 n.7). 

140 Ams. Mining, 51 A.3d at 1244.

141 In re Trados, 73 A.3d at 78 (internal citation omitted).

142 Appellants confirmed that it is “[n]ot true” that they seek to “ask[] this Court to make 

contradictory findings.” Reply Br. at 4. They stated the same at oral argument before this Court. 

See Oral Argument, at 19:36–40, 

https://livestream.com/accounts/5969852/events/10769099/videos/235611407, (“We’re not 

challenging specific, factual findings.”).

143 For example, they argue that, based upon the trial court’s findings, “the trial court should have 

ruled that the process was unfair as a matter of law.” Opening Br. at 36. In our decision after 

remand in Lynch II, we observed that “[t]he absence of certain elements of fair dealing does not 
48

A. The Factual Findings Support A Determination Of Fair Dealing 

1. The Trial Court Made a Finding of Fair Dealing That is Supported by the 

Record

The so-called Weinberger factors — how the deal was initiated and timed, how it 

was structured and negotiated, and how it was approved144 — form the core of a court’s 

fair dealing analysis. Despite Weinberger setting forth a helpful analytical path for a trial 

court to follow, the trial court here did not organize its discussion that way.

145

 The court’s 

opinion, heavily laden with findings in footnotes, perhaps left it vulnerable to the challenge 

that its analysis was incomplete and that the court, as Appellants put it, essentially wrote 

fair dealing out of the Weinberger analysis. Although our review was also made more 

difficult as a result, we believe the trial court’s opinion can only reasonably be read as 

finding that, despite the process flaws, Musk carried his burden of establishing fair 

dealing.146 In addition to its process-focused factual findings, the trial court, for example, 

mandate a decision that the transaction was not entirely fair.” 669 A.2d at 83 (emphasis added)

(internal quotation marks and citation omitted); see also Cinerama II, 663 A.2d at 1179. The 

rigorous entire fairness analysis is heavily fact-driven and requires the court to make fact and 

credibility determinations after trial, to carefully scrutinize the transaction process, and to critically

evaluate valuation and other evidence, including expert analyses, of fair price.

144 See 457 A.2d at 711.

145 The trial court’s discussion of the process strengths, however, largely coincides with the 

Weinberger factors. 

146 Of course, as we have recognized, there is great flexibility in how opinions are crafted. See, 

e.g., Ams. Mining, 51 A.3d at 1244 (noting that “[b]ecause the issues relating to fair dealing and 

fair price were so intertwined, the Court of Chancery did not separate its analysis, but rather treated 

them together in an integrated examination” and finding that approach to be “consistent with the 

inherent non-bifurcated nature of the entire fairness standard of review.”). Nevertheless, clear and 

delineated findings, when possible, facilitate effective appellate review and may mitigate 

challenges founded on an alleged lack of clarity or incompleteness. See Nixon, 626 A.2d at 1378 

(“The decision of the trial court did not plainly delineate and articulate findings of fact and 
49

recognized “that a fair price does not ameliorate a process that was beyond unfair.”147 

Further, we have thoroughly reviewed the extensive record and conclude that the record, 

including the trial court’s unchallenged fact and credibility findings, supports a finding of 

fair dealing.

The parties put forth extensive evidence, and the Vice Chancellor grouped his 

factual findings and legal determinations into two categories: the process strengths and the 

process flaws. Using Weinberger’s list of factors, we consider Appellants’ specific 

challenges to the trial court’s findings and analysis.

a. Initiation of the Acquisition

Appellants contend that the trial court found that Musk was “the catalyst and a vocal 

proponent of the Acquisition”148 and that this supports a conclusion that Musk failed to 

meet his burden of proving his compliance with the Weinberger fair dealing factors. Musk 

points to other findings by the trial court, responding that the Vice Chancellor found that 

the Tesla Board declined to explore a transaction when Musk originally asked.149 We also 

note, for example, the trial court’s unchallenged finding that “Evercore reviewed the solar 

industry as a whole before recommending SolarCity as the obvious choice to be 

acquired.”150

conclusions of law so that this Court, as the reviewing court, could fathom without undue difficulty 

the bases for the trial court’s decision.”).

147 Trial Op., 2022 WL 1237185, at *32 (internal quotation marks and citation omitted).

148 Opening Br. at 31 (quoting Trial Op., 2022 WL 1237185, at *1).

149 See Answering Br. at 31.

150 Trial Op., 2022 WL 1237185, at *36.
50

For the trial court, calling Musk the “catalyst” behind the Acquisition did not tip the 

scale in favor of finding unfair dealing.151 As the trial court found, Musk did not force the 

hand of any Tesla Board member.152 And when Musk initially proposed — in February 

2016 — a combination with SolarCity, the Tesla Board declined to follow through on his 

suggestion. 

Appellants contend, as a general matter, “that Musk did exploit his inherently 

coercive status by repeatedly and improperly injecting himself into the Acquisition 

process.”153 This concept of inherent coercion154 was a focus of the trial court’s overall 

fair dealing fact finding, as it “searched during [its] deliberations for persuasive evidence 

that [Musk] exploited the coercion inherent in his status as a controller to influence the 

Tesla Board’s” process.155 But the trial court, after examining the evidence, including 

observing live testimony, rejected Appellants’ contention that Musk exerted domination 

and control over the transaction process. Instead, it specifically found that: 

[T]he evidence reveals that any control [Musk] may have attempted to wield 

in connection with the Acquisition was effectively neutralized by a board 

151 For example, we have observed that “[i]nitiation by the seller, standing alone, is not 

incompatible with the concept of fair dealing so long as the controlling shareholder does not gain 

financial advantage at the expense of the controlled company.” Tremont, 694 A.2d at 431.

152 See Trial Op., 2022 WL 1237185, at *37 (finding that “the Tesla Board was not dominated by 

[Musk]”).

153 Opening Br. at 33. 

154 The concept of “inherent coercion” has often percolated in controlling stockholder transactions. 

This Court discussed the potential for inherent coercion in Kahn v. Lynch Communication Systems, 

Inc., 638 A.2d 1110 (Del. 1994) (“Lynch I”). There, we stated that “‘[e]ven where no coercion is 

intended, shareholders voting on a parent subsidiary merger might perceive that their disapproval 

could risk retaliation of some kind by the controlling stockholder.’” Id. at 1116 (quoting Citron v. 

E.I. Du Pont de Nemours & Co., 584 A.2d 490, 502 (Del. Ch. 1990)). 

155 Trial Op., 2022 WL 1237185, at *33.
51

focused on the bona fides of the Acquisition, with an indisputably 

independent director leading the way. [Musk] did not “engage[] in pressure 

tactics that went beyond ordinary advocacy to encompass aggressive, 

threatening, disruptive, or punitive behavior.” In other words, even assuming 

[Musk] had the ability to exercise control over the Tesla Board, the credible 

evidence produced at trial shows that he simply did not do so with respect to 

the Acquisition.156

The court’s overarching determination that Musk did not exploit any inherent 

coercion was adequately supported by numerous factual findings, which relate to other 

aspects of the fair dealing inquiry.

157

 For example, the trial court concluded that there were 

“several instances where the Tesla Board simply refused to follow [Musk’s] wishes.”158 It 

noted that the Tesla Board rejected Musk’s wish to include a bridge loan in any offer; the 

Tesla Board insisted on having a walkaway right in the Final Offer should SolarCity breach 

the Liquidity Covenant; and the Tesla Board conducted significant due diligence, resulting 

in a lower deal price.159 Because Appellants do not challenge any of these findings on 

appeal, they are entitled to deference by this Court. 

b. Timing of the Acquisition 

At trial, Appellants “assert[ed] that [Musk] bailed out SolarCity on a schedule that 

worked for him.”160 As they contend before this Court: “Musk testified that the 

Acquisition was initiated because SolarCity either needed to raise money or be 

156 Id. (internal citations omitted).

157 See id. at *36–39.

158 Id. at *37.

159 See id. 

160 Id. at *36.
52

acquired.”161 This, they argue, suggests unfair dealing on Musk’s part.

However, the trial court found the Acquisition’s timing to be a process strength

indicating fairness. In rejecting the argument that Musk engineered a bailout convenient 

to his own timetable, the trial court found that “there was no bailout and the facts illustrate 

the timing was right for Tesla.”162 Further, the Vice Chancellor found that, due to 

“macroeconomic headwinds in the industry, solar company stocks were trading at historic 

lows.”163 And rather than proceed with a SolarCity deal when Musk originally pitched it 

in February 2016, the Tesla Board decided to wait and first address the company’s rollout 

of the Model X. The trial court’s assessment of the industry conditions at the time support 

its finding of fair dealing, as the Tesla Board did not acquiesce in Musk’s proposed timing, 

but instead, waited until the time was right for the company to explore a transaction. We 

defer to these unchallenged findings that point to fair dealing.

161 Opening Br. at 31 (internal quotation marks and citations omitted).

162 Trial Op., 2022 WL 1237185, at *36 (internal citation omitted). In Lynch II, in our decision 

after remand, in upholding the Court of Chancery’s finding that the conflicted transaction was 

entirely fair, we observed that: 

More to the point, the timing of a merger transaction cannot be viewed solely from 

the perspective of the acquired entity. A majority shareholder is naturally 

motivated by economic self-interest in initiating a transaction. Otherwise, there is 

no reason to do it. Thus, mere initiation by the acquirer is not reprehensible so long 

as the controlling shareholder does not gain a financial advantage at the expense of 

the minority.

669 A.2d at 85 (citing Cinerama II, 663 A.2d at 1172 and Jedwab v. MGM Grand Hotels, Inc., 

509 A.2d 584, 599 (Del. Ch. 1986)).

163 Trial Op., 2022 WL 1237185, at *36. These “headwinds” included the fact that SunEdison, 

Inc. (one of SolarCity’s competitors) filed for bankruptcy, changes in net metering laws, and the 

prospect that certain federal tax credits available to solar customers were possibly set to expire.
53

c. Structure of the Acquisition

One common deal mechanism was included in the Final Offer: a majority-of-theminority stockholder voting provision. The trial court found that this provision, which it 

called “one of the most extolled and powerful protections afforded Delaware 

stockholders,” was another indicium of fair dealing.164 Our case law recognizes “that the 

presence of a non-waivable ‘majority of the minority’ provision is an indicator at trial of 

fairness because it disables the power of the majority stockholder to both initiate and 

approve the merger.”165 It was not legal error for the Vice Chancellor to view the majorityof-the-minority voting provision as a strong indicator of fair dealing.166

Appellants claim that our affirmance of the trial court’s opinion would

disincentivize boards from complying with certain procedural mechanisms, like the use of 

a special, independent committee, in conflicted transactions. Appellants suggest that 

Tesla’s failure to employ an independent negotiating committee is an indicium of unfair 

dealing. Amici argue that the Court of Chancery’s approach threatens to fatally undermine 

the framework set forth in MFW by substantially negating the incentives MFW promotes.167 

164 Id. 

165 Gesoff v. IIC Indus., Inc., 902 A.2d 1130, 1148 (Del. Ch. 2006) (citing Jedwab, 509 A.2d at

599–600 and In re Pure Res., 808 A.2d at 442). 

166 In assessing the weight of the stockholder vote, the Vice Chancellor factored in the argument 

that the magnitude of the approval vote might be overstated given “the likelihood that many 

stockholders who approved the Acquisition also owned SolarCity stock.” Trial Op., 2022 WL 

1237185, at *36 n.430 (emphasis added).

167 For example, in Americas Mining, this Court observed that: 

A fair process usually results in a fair price. Therefore, the proponents of an 

interested transaction will continue to be incentivized to put a fair dealing process 

in place that promotes judicial confidence in the entire fairness of the transaction 
54

Because one of Appellants’ main arguments on appeal is that affirmance of the opinion 

below will undermine the best practices established by our decision in MFW, we explain 

why we reject that argument and why the record does not support that assertion.

By way of background, Weinberger recognized that certain procedural devices 

could alter the burden of proof in a conflicted transaction: there, we held that “where 

corporate action has been approved by an informed vote of a majority of the minority 

shareholders, [] the burden entirely shifts to the plaintiff to show that the transaction was 

unfair to the minority.”168 The standard of review remained entire fairness, but the potential 

for a burden shift created an incentive for boards in conflicted transactions to include 

majority-of-the-minority voting provisions. 

In 1994, this Court, in Lynch I,

169 clarified the effect of certain procedural cleansing 

mechanisms in the context of controller squeeze-outs.

170

 Relying on our decisions in 

Weinberger and Rosenblatt v. Getty Oil Co.,

171 we held in Lynch I that “an approval of the 

transaction by an independent committee of directors or an informed majority of minority 

shareholders shifts the burden of proof on the issue of fairness from the controlling or 

price. Accordingly, we have no doubt that the effective use of a properly 

functioning special committee of independent directors and the informed 

conditional approval of a majority of minority stockholders will continue to be 

integral parts of the best practices that are used to establish a fair dealing process.

51 A.3d at 1244.

168 457 A.2d at 703.

169 638 A.2d 1110.

170 See also In re Pure Res., 808 A.2d at 436 (noting that Lynch I addresses “the ‘inherent coercion’ 

that exists when a controlling stockholder announces its desire to buy the minority’s shares.”).

171 493 A.2d 929 (Del. 1985).
55

dominating shareholder to the challenging shareholder-plaintiff.”172 Thus, the standard of 

review remained entire fairness.173

But the Court of Chancery, in the roughly decade following Lynch I, observed that 

the framework we outlined — which created the opportunity for controllers, in certain 

transactions, to shift the burden of proof — was not being fully utilized. Further, use of 

the two procedural mechanisms would yield no greater result than a burden shift under the 

entire fairness standard.174 Then-Vice Chancellor Strine, in In re Cox, noted that what 

Lynch I created was “a modest procedural benefit” but little more than that.175 In dicta, he 

suggested that Delaware law evolve and expand on Lynch I and suggested the following 

change to our standard of review governing certain transactions: 

The reform would be to invoke the business judgment rule standard of review 

when a going private merger with a controlling stockholder was effected 

172 638 A.2d at 1117 (emphasis added). The potential to shift the burden in an entire fairness case 

creates strong incentives to employ such devices. See Weinberger, 457 A.2d at 703. See also 

Rosenblatt, 493 A.2d at 937 (“However, approval of a merger, as here, by an informed vote of a 

majority of the minority shareholders, while not a legal prerequisite, shifts the burden of proving 

the unfairness of the merger entirely to the plaintiffs.”).

173 See Lynch I, 638 A.2d at 1117.

174 Our opinion in Lynch I “created a strong incentive for the use of special negotiating committees 

in addressing mergers with controlling stockholders.” In re Cox Commc’ns, Inc. S’holders Litig., 

879 A.2d 604, 618 (Del. Ch. 2005). But one result of that, as we explained in Flood v. Synutra 

International Inc., was a preference to only use special committees because a majority-of-theminority vote “‘added an element of transactional risk without much liability-insulating 

compensation in exchange.’” 195 A.3d 754, 762 (Del. 2018) (quoting In re Cox, 879 A.2d at 618). 

Further, until MFW, the debate continued over what had been perceived by many to be an inability 

by a defendant to prevail on a pleadings-stage motion to dismiss a claim challenging a merger with 

a controlling stockholder.

175 879 A.2d at 617; id. (observing also that “[n]o defendant in Lynch, and no defendant since, has 

argued that the use of an independent special committee and a Minority Approval Condition 

sufficiently alleviates any implicit coercion as to justify invocation of the business judgment rule” 

and “[f]or this reason, it is important not to assume that the Supreme Court has already rejected 

this more precisely focused contention.”) (emphasis in original).
56

using a process that mirrored both elements of an arms-length merger: 1) 

approval by disinterested directors; and 2) approval by disinterested 

stockholders.176

The Court of Chancery in In re Cox was of the view that its suggested reform “would 

improve the protections [offered] to minority stockholders and the integrity of the 

representative litigation process[.]”177 Such a view, however, remained dictum, but became 

known as the “unified standard.”178

The Court of Chancery confronted the concept of the “unified standard” and the 

potential consequences of Lynch I five years after In re Cox in In re CNX Gas Corp. 

Shareholders Litigation.

179

 There, the court, looking to In re Cox, stated that “if a freezeout merger is both (i) negotiated and approved by a special committee of independent 

directors and (ii) conditioned on an affirmative vote of a majority of the minority 

stockholders, then the business judgment standard of review presumptively applies.”180 

But the trial court explicitly recognized in In re CNX that the question of which standard 

of review to apply remained an open question of law that this Court had yet to address:

I recognize that by applying the unified standard, I reach a different 

conclusion than the recent Cox Radio decision, which opted to follow Pure 

Resources. The choice among Lynch, Pure Resources, and Cox 

Communications implicates fundamental issues of Delaware law and public 

policy that only the Delaware Supreme Court can resolve. Until the 

Delaware Supreme Court has the opportunity to address Lynch and Siliconix 

176 Id. at 606 (emphasis in original).

177 Id. at 606.

178 See, e.g., Edward P. Welch et al., Folk on the Delaware General Corporation Law, 

Fundamentals § 141.02[N], at GCL-326 (2020 ed.).

179 4 A.3d 397 (Del. Ch. 2010). 

180 Id. at 412–13 (citing In re Cox, 879 A.2d at 606).
57

definitively, I believe the unified standard from Cox Communications offers 

the coherent and correct approach.181

Then came MFW. MFW answered a doctrinal question the corporate bar long had: 

did “the business judgment standard appl[y] to controller freeze-out mergers where the 

controller’s proposal is conditioned on both Special Committee approval and a favorable 

majority-of-the-minority vote[?]”182 MFW answered the question in the affirmative. In 

MFW, this Court adopted the standard that the Court of Chancery had suggested in the In 

re Cox and In re CNX decisions and described it as follows: 

To summarize our holding, in controller buyouts, the business judgment 

standard of review will be applied if and only if: (i) the controller conditions 

the procession of the transaction on the approval of both a Special Committee 

and a majority of the minority stockholders; (ii) the Special Committee is 

independent; (iii) the Special Committee is empowered to freely select its 

own advisors and to say no definitively; (iv) the Special Committee meets its 

duty of care in negotiating a fair price; (v) the vote of the minority is 

informed; and (vi) there is no coercion of the minority.183

Both procedural protections must be “established prior to trial[.]”184 And when 

they are established, the transaction is then afforded the deferential business judgment 

181 Id. at 414 (internal citation omitted).

182 88 A.3d at 639. As the Court of Chancery had observed, although language in Lynch I could 

be read to suggest that there were no scenarios where a merger with a controlling stockholder could 

avoid entire fairness review, that language was dictum because this Court had never squarely 

addressed the question of the appropriate standard of review where the merger was conditioned on 

both special committee approval and a majority-of-the-minority vote. See In re MFW S’holders 

Litig., 67 A.3d 496, 522–24 (Del. Ch. 2013), aff’d, 88 A.3d 635.

183 88 A.3d at 645 (emphasis in original). In Synutra, we clarified that “[t]o avoid one of Lynch’s 

adverse consequences—using a majority-of-the-minority vote as a chit in economic negotiations 

with a Special Committee—MFW reviews transactions under the favorable business judgment rule 

if these two protections are established up-front.” 195 A.3d at 762 (citing MFW, 88 A.3d at 644)

(emphasis added) (internal quotation marks omitted).

184 MFW, 88 A.3d at 646 (emphasis in original).
58

standard of review. Under Delaware’s business judgment rule, “the board’s decision will 

be upheld unless it cannot be ‘attributed to any rational business purpose.’”185

The absence of MFW protections, however, does not automatically result in a 

finding of liability. Appellants contend that the Vice Chancellor “acknowledged that the 

Board did not even consider creating an independent committee, which, as the trial court 

acknowledged, is the proper mechanism to negotiate a conflicted transaction.”186 Musk 

responds that they “advocate for a per se rule unsupported by case law” that would establish 

that failing to employ a special committee in a conflicted transaction would require 

“imposition of liability ‘as a matter of law.’”187 But Appellants respond that their position 

is not one advocating for a per se rule, but rather, is “that the absence of a special committee 

plus the numerous specific process flaws” requires the imposition of liability as a matter 

of law.

188

As to the Tesla Board’s decision not to form a special committee, the Vice 

Chancellor noted the following: 

There was a right way to structure the deal process within Tesla that likely 

would have obviated the need for litigation and judicial second guessing of 

fiduciary conduct. First and foremost, [Musk] should have stepped away from 

the Tesla Board’s consideration of the Acquisition entirely, providing targeted 

input only when asked to do so under clearly recorded protocols. The Tesla 

Board should have formed a special committee comprised of indisputably 

independent directors, even if that meant it was a committee of one. The 

decision to submit the Acquisition for approval by a majority of the minority 

185 In re Walt Disney Co. Deriv. Litig., 906 A.2d 27, 74 (Del. 2006) (quoting Sinclair Oil Corp. v. 

Levien, 280 A.2d 717, 720 (Del. 1971)).

186 Opening Br. at 35 (internal citations omitted).

187 Answering Br. at 27 (internal citation omitted).

188 Reply Br. at 6 (emphasis in original).
59

of Tesla’s stockholders was laudable, and had the deal process otherwise been 

more compliant with the guidance provided by this court and our Supreme 

Court over many decades, it is likely there would be no basis to challenge the 

stockholder vote as uninformed. Of course, none of that happened.189

In other words, our decisions — which we continue to adhere to — have established 

a “best practices” pathway that, if followed, allow for conflicted transactions, such as the 

Acquisition, to avoid entire fairness review. Tesla’s and Musk’s determination not to form 

a special committee invited much risk (not to mention incursion of costs and diversion of 

personnel to litigation matters).

190

 Although the Vice Chancellor aptly observed that 

perhaps the Tesla Board subjected itself to “unnecessary peril,” we also recognize that there 

may be reasons why a board decides not to employ such devices, including transaction 

execution risk. Also, a board may wish to maintain some flexibility in the process, as the 

Tesla Board did here, by having the ability to access the technical expertise and strategic 

vision and perspectives of the controller.191 Although we continue to encourage the use of 

special negotiation committees as a “best practice,” nothing in Delaware law requires a 

189 Trial Op., 2022 WL 1237185, at *33 n.397.

190 We have “repeatedly held that any board process is materially enhanced when the decision is 

attributable to independent directors. Accordingly, judicial review for entire fairness of how the 

transaction was structured, negotiated, disclosed to the directors, and approved by the directors

will be significantly influenced by the work product of a properly functioning special committee 

of independent directors.” Ams. Mining, 51 A.3d at 1243–44 (internal citations omitted).

191 This is not to say that such access cannot be achieved effectively where a special negotiating 

committee and proper protocols have been established. See, e.g., Dell, Inc. v. Magnetar Glob. 

Event Driven Master Fund Ltd., 177 A.3d 1, 12, 30 (Del. 2017) (noting that, although not a 

controlling stockholder, Michael Dell — who had 15% of the equity and pledged that his voting 

power would go to any higher bidder, voting in proportion to other shares — was available to all 

parties throughout the go-shop period).
60

board to form a special committee in a conflicted transaction.192 Here, the price of not 

utilizing a special committee was being subjected to entire fairness review — an expensive, 

risky, and “heavy lift” in the litigation arena.193 

Although Appellants argue that both MFW factors are required to neutralize the 

inherent coercion of a controller, that was exactly the issue the parties fought out in the 

trial on the merits. After hearing extensive testimony and reviewing voluminous evidence, 

the trial court “searched during [its] deliberations for persuasive evidence that [Musk] 

exploited the coercion inherent in his status as a controller” to influence the Tesla Board.194 

The court concluded that “any control [Musk] may have attempted to wield in connection 

with the Acquisition was effectively neutralized by a board focused on the bona fides of 

the Acquisition, with an indisputably independent director leading the way.”195 It amplified 

that holding, adding that “even assuming [Musk] had the ability to exercise control over 

the Tesla Board, the credible evidence produced at trial shows that he simply did not do 

so with respect to the Acquisition.”196 Thus, Appellants’ theory that both MFW 

mechanisms were needed to neutralize Musk was tested in the trial arena, and the court 

192 See, e.g., Lynch II, 669 A.2d at 85 (observing that “[h]ere Alcatel could have presented a merger 

offer directly to the Lynch Board, which it controlled, and received a quick approval” but adding 

that “[h]ad it done so, of course, it would have born the burden of demonstrating entire fairness in 

the event the transaction was later questioned.”); Rosenblatt, 493 A.2d at 938 n.7 (noting that “the 

use of [a special] committee is not essential to a finding of fairness.”); In re Trados, 73 A.3d at 76 

(finding, in a transaction approved by a conflicted board, that “[a]lthough the defendant directors 

did not adopt any protective provisions . . . they nevertheless proved that the transaction was fair.”).

193 See, e.g., In re Trados, 73 A.3d at 78. 

194 Trial Op., 2022 WL 1237185, at *33.

195 Id. (emphasis added).

196 Id. 
61

rejected it. The record supports the trial court’s conclusion, which, we note, is heavily 

dependent upon unchallenged fact and numerous credibility determinations.

d. Negotiation of the Acquisition

Although the process here had some flaws, the trial court found that “[t]he Tesla 

Board’s process included several redeeming features that emulated arms-length bargaining 

to the benefit of Tesla stockholders.”197 For example, the Court of Chancery found that 

Denholm, whose independence was unquestioned, led the negotiations on Tesla’s behalf. 

Appellants disputed this fact at trial, but the Vice Chancellor found that “Denholm led due 

diligence and negotiations with SolarCity” and that Denholm was “an extraordinarily 

credible witness.”198

By Denholm’s side were Tesla’s indisputably independent advisors — Evercore and 

Wachtell. Evercore, in particular, updated the Tesla Board on its discussions with Lazard, 

including over SolarCity’s liquidity concerns.199 Neither Wachtell nor Evercore had 

performed work for either Tesla or SolarCity prior to their work on the Acquisition. 

Appellants did not seriously question their independence. As the trial court found, 

197 Id. at *36.

198 Id. at *17 and *17 n.233. In the trial below, Appellants disputed that Denholm was in charge 

because “there are no Tesla Board minutes or resolutions that state the Tesla Board put Denholm 

in charge of the negotiations.” Id. at *17 n.233. The Vice Chancellor explicitly rejected this 

contention and found the opposite: he noted that “[a]ll director testimony is consistent that 

Denholm was in charge. And there are special meeting minutes that imply the same.” Id.

199 In particular, the trial court made credibility determinations regarding Evercore, finding: “[i]n 

aid of Denholm’s efforts, Evercore performed extensive diligence. McBean credibly testified that 

Evercore’s 10-member team spent thousands of hours reviewing SolarCity’s financial condition, 

conducting valuation analyses and negotiating with Lazard.” Id. at *17 (emphasis added) (internal 

citation omitted). 
62

“Wachtell was an independent and effective advisor to the Tesla Board.”200 The court, as 

to Evercore, found that “Evercore was a diligent advisor with no previous ties to Tesla, and 

McBean credibly explained and defended its work and advice.”

201

Tesla made two formal offers — the Initial Offer and the Final Offer — before both 

sides approved the Acquisition. And as the Vice Chancellor found, “[t]he information 

discovered during the due diligence process was used to lower the price substantially—

even below the original offer range.”202

Appellants contend that Musk pressed Evercore to accelerate the Acquisition 

process. After trial, the Vice Chancellor did find that Musk “was in frequent 

communication with Evercore outside the boardroom throughout the process,”203 but the 

court also found that “the preponderance of the evidence suggests that the purpose of 

[Musk’s meetings with Evercore] was to speed up diligence, not to influence the bankers 

regarding substantive aspects of the Acquisition.”204

Appellants also argue that Musk played an integral and decisive role in the entire 

deal process. The Vice Chancellor found that Musk had an “apparent inability to 

200 Id. at *13 n.169. With respect to Wachtell, the Vice Chancellor noted that although Musk 

“should not have been involved in the selection of counsel to advise the Tesla Board, as explained 

above, I am convinced that Wachtell was a qualified, independent advisor, not beholden to [Musk] 

in any way.” Id. at *34 n.413.

201 Id. at *21 n.276.

202 Id. at *37.

203 Id. at *34.

204 Id. at *34 n.416 (emphasis added). McBean testified at trial that Musk never asked Evercore 

to change any of its presentations or advice that it provided to the Tesla Board. See A1732 

(McBean Trial Test. at 1628:5–8).
63

acknowledge his clear conflict of interest and separate himself from Tesla’s consideration 

of the Acquisition.”205 We agree with the Vice Chancellor that the spillover effects of 

Musk’s actions could have been mitigated had the Tesla Board formed a special negotiating 

committee. But we also note that Tesla’s advisors, led by Wachtell, did work to insulate 

Musk from the process to a certain extent, namely, his recusal from certain meetings and 

from voting overall. 

Here, the credibility findings made by the trial court regarding Tesla’s lead 

negotiator are critical in this part of the analysis. The Vice Chancellor gave significant 

weight to Denholm’s testimony. Denholm “served as an effective buffer between [Musk] 

and the Tesla Board’s deal process.”206 Further, “[h]er credible and unequivocal 

endorsement of the Acquisition is highly persuasive evidence of its fairness.”207 At trial, 

Appellants did not challenge Denholm’s independence or disinterestedness: in fact, 

according to them, she was the only Tesla director who was not conflicted.

208

 What the 

record shows, then, is a negotiation process led by an indisputably qualified, disinterested 

director who was advised by indisputably independent legal counsel and financial advisors. 

That negotiation process, led by Denholm, resulted in the Final Offer, which by its 

terms, was lower than the Initial Offer and Musk’s first pitch. The trial court found that: 

205 Trial Op., 2022 WL 1237185, at *34.

206 Id. at *38.

207 Id. The trial court referred to Denholm as a “disinterested decisionmaker[.]” Id. at *34.

208 See id. at *4. Curiously, despite not challenging the factual findings on appeal, Appellants refer 

to Denholm as a “purportedly independent director” in their papers before this Court. See Reply 

Br. at 11. 
64

Denholm led the diligence and negotiations . . . The information discovered 

during the due diligence process was used to lower the price substantially—

even below the original offer range. Price increases or decreases that are the 

products of hard-nosed negotiations are strong evidence of fairness.209 

The Vice Chancellor also found “that Evercore was dutiful in keeping the Tesla Board 

apprised of new developments and concerns, including the concerns related to SolarCity’s 

growing liquidity challenges.”210 Negotiations that are “vigorous and spirited” are an 

indicium of fair dealing.211

e. Approval of the Acquisition

The question under the last Weinberger fair dealing factor involves how the

Acquisition was approved.

212

 As we have noted, Appellants challenged all of the Tesla 

Board directors as conflicted except for Denholm. The Vice Chancellor explicitly stated 

that he “assum[ed] (without deciding) that . . . the Tesla Board was conflicted[.]”213 

Appellants’ contention on appeal that “[t]he negotiation was handled by a conflicted Board 

that failed to supervise Musk”214 is directly refuted by fact and credibility findings that they

209 Trial Op., 2022 WL 1237185, at *37 (internal citations omitted). The Tesla Board also secured 

an exchange ratio that would capture the benefit of an intervening price change for Tesla’s 

stockholders. See AR507 (Definitive Proxy at 65) (“The Tesla board instructed its advisors to 

reject the Special Committee’s proposal that the acquisition consideration should be based on a 

fixed value per share of SolarCity common stock, rather than a fixed exchange rate, given the 

increased uncertainty and risk of increased dilution to Tesla stockholders.”).

210 Trial Op., 2022 WL 1237185, at *37.

211 Gesoff, 902 A.2d at 1148. The trial court found that Denholm “directed Evercore in its selection 

of acquisition targets and was actively engaged with Evercore with respect to the development and 

delivery of its fairness opinion.” Trial Op., 2022 WL 1237185, at *38.

212 Fair dealing “embraces questions of . . . how the approvals of the directors . . . were obtained.” 

Weinberger, 457 A.2d at 711.

213 Trial Op., 2022 WL 1237185, at *2 (emphasis added).

214 Opening Br. at 39.
65

do not challenge. We find no error in the trial court’s heavily fact-and-credibility-laden 

determination215 that the directors, following a rigorous negotiation process led by 

Denholm, were not “dominated” or “controlled” by Musk when they voted to approve the 

Acquisition.216 In the next section, we explain why the Vice Chancellor’s reliance on the 

stockholder vote as an indicium of fairness was not error.

2. The Trial Court’s Finding that the Stockholder Vote was Informed is Supported 

by the Record 

The final contention on appeal by Appellants regarding the deal process concerns 

the stockholder vote on the Acquisition. They contend that the trial court erred in relying 

on the stockholder vote, for five reasons. Those reasons are: (1) Musk’s involvement in 

the deal process was not properly disclosed to stockholders; (2) Tesla’s disclosures about 

the Solar Roof were misleading; (3) Evercore’s warning to the Tesla Board about a 

potential breach of SolarCity’s Liquidity Covenant was not disclosed; (4) SolarCity’s credit

215 “As an appellate court, we do not review determinations of credibility.” VonFeldt v. Stifel Fin. 

Corp., 714 A.2d 79, 83 (Del. 1998).

216 For example, the Vice Chancellor stated that he was “satisfied that the Tesla fiduciaries placed 

the interests of Tesla stockholders ahead of their own.” Trial Op., 2022 WL 1237185, at *34. We 

note, however, that the Vice Chancellor found that “[e]ach arguably conflicted director credibly 

testified (and, in detail, explained how) he made his decision consistent with his duty of loyalty. 

Yet the facts implicating the potential for self-interest or lack of independence, all similar to 

scenarios where Delaware courts have found a reasonably conceivable disabling conflict on pled 

facts, were proven at trial (e.g., familial ties, personal friendships, ‘thick’ business relationships, 

cross-investments, etc.).” Id. at *30 n.378. As he framed it, “[t]his raises the question whether 

credible (and convincing) testimony revealing loyal decision making can overcome proven facts 

revealing recognized scenarios where the potential for conflict exists. Here again, I raise but do 

not answer the question.” Id. (emphasis in original).

Our decision to affirm does not rest upon potentially conflicted director testimony. As this Opinion 

makes clear, we are confident — after a full review of the record and oral argument of the parties 

— that Musk satisfied his burden of proving entire fairness. 
66

downgrades were material to stockholders; and (5) several institutional stockholders held 

shares of both Tesla and SolarCity, raising questions of their disinterest and a reliance on 

their votes. 

Delaware law on disclosure is well-settled. “An omitted fact is material if there is 

a substantial likelihood that a reasonable shareholder would consider it important in 

deciding how to vote.”217 In other words, it must be substantially likely that the omitted 

fact would have been viewed as having “significantly altered the total mix of information 

made available.”218 The duty of disclosure extends beyond material omissions, as 

“disclosures cannot be materially misleading” either.219 It is against this well-established 

backdrop that we weigh Appellants’ five disclosure contentions on appeal. 

First, Appellants contend that certain aspects of Musk’s involvement in the deal 

process were not disclosed to stockholders. They raise five sub-arguments: 

Musk’s (i) failure to inform the Board about SolarCity’s looming financial 

crisis; (ii) daily calls with Tesla’s advisors and management; (iii) July 21, 

2016 call with Evercore concerning Evercore’s recommendation that Tesla 

lower its offer; (iv) preliminary discussions with his cousin about Tesla 

acquiring SolarCity; and (v) proposal to the Board at the March 2016 meeting 

to acquire SolarCity.220 

These sub-arguments largely center around the extent to which Musk involved

himself in the process. However, we reject them based upon our examination of the record 

217 Morrison v. Berry, 191 A.3d 268, 282 (Del. 2018) (internal quotation marks and citation 

omitted).

218 Arnold v. Soc’y for Sav. Bancorp, Inc., 650 A.2d 1270, 1277 (Del. 1994) (internal quotation 

marks and citation omitted).

219 Morrison, 191 A.3d at 283.

220 Opening Br. at 40.
67

evidence, which supports the Vice Chancellor’s findings. As the trial court found, the 

Definitive Proxy “did disclose that [Musk] and Lyndon” Rive — Musk’s cousin — had 

conversations, including in February 2016, about Tesla acquiring SolarCity.221 Regarding 

the calls between Musk and Evercore, the Vice Chancellor stated that such an “omission 

may well have been material given [Musk’s] conflicts.”222 Musk argues in response that a 

single disclosure issue, standing in the aggregate, does not change the calculus, especially 

in an entire fairness analysis. He points us to In re Orchard Enterprises, Inc. Stockholder 

Litigation, where the Court of Chancery stated that “a single disclosure problem may not 

be outcome-determinative” at trial.223

We agree that the trial court must evaluate an alleged disclosure violation in the 

context of the evidence as a whole. It is possible a single disclosure violation could, in 

certain circumstances, indicate larger issues with the deal process. It is equally possible 

that a single disclosure violation would not affect the total mix provided to stockholders.

224

 

As we previously noted, the Vice Chancellor found that the purpose of the calls between 

Musk and Evercore was not to set the terms of any potential offers, but rather, to check on 

the pace of diligence. Appellants do not challenge these factual findings, and we see no 

basis to disturb the Vice Chancellor’s finding or weighing of this evidence.

221 Trial Op., 2022 WL 1237185, at *12 n.156 (emphasis in original).

222 Id. at *18 n.250.

223 88 A.3d 1, 29 (Del. Ch. 2014).

224 See Brown v. Perette, 1999 WL 342340, at *8 (Del. Ch. May 14, 1999) (noting that “disclosure 

of a single unadorned fact can quickly snowball into wide-ranging disclosure of facts and opinions 

that otherwise would never come before the shareholders.”); Khanna v. McMinn, 2006 WL 

1388744, at *34 n.272 (Del. Ch. May 9, 2006) (same).
68

Second, Appellants contend that Tesla affirmatively made misleading disclosures 

regarding the Solar Roof. They point to the demo Musk did in late October 2016, as well 

as a tweet sent out by Musk concerning the availability of the product. It is true that the 

trial court identified as a process flaw that Musk “publicly demonstrated the (inoperable) 

Solar Roof and made promises about the timing of the product launch to the market.”

225

 

The court, however, expressly found no disclosure violations in connection with the Solar 

Roof: 

Although the Solar Roof demonstration was intended to garner stockholder 

support for the Acquisition, these statements either occurred after the 

stockholder vote, were qualified or were accurate. I am satisfied investors 

knew the Solar Roof was a part of Tesla’s “vision for the future” and a “goal,” 

not a ready-for-market product offering.226

As the trial court found, “Tesla filings and press releases regarding the Solar Roof 

presentation were qualified with language that made clear the product was part of Tesla’s 

‘vision for the future’ and something ‘the combined company will be able to create.’”

227

And as to Appellants’ claim that Musk’s tweets about the Solar Roof constituted 

disclosure violations, the Vice Chancellor found that Appellants exhibited “temporal 

confusion” because Musk’s comments about the Solar Roof occurred after the stockholder 

vote, meaning, logically, that his comments could not have affected the vote.228 Regarding 

certain of Musk’s tweets that occurred prior to the vote, the Vice Chancellor found that 

225 Trial Op., 2022 WL 1237185, at *34.

226 Id. at *34 n.420 (internal citations omitted). 

227 Id. at *45 (internal citation omitted) (emphasis in original).

228 See id. at *45. 
69

they “were optimistic—perhaps overly so—but Tesla did, in fact, expect a product launch 

in mid-2017.”

229

 The trial court found that SolarCity had been working on the Solar Roof 

since 2015 and that Musk’s statements were “not a prop created to secure the vote.”230 The 

record supports that conclusion.

Third, Appellants argue that the Vice Chancellor “found that Evercore advised the 

Board that a SolarCity breach of its liquidity covenant would threaten SolarCity’s 

solvency” — which, they contend, was not disclosed to Tesla stockholders.231 However, 

the trial court found that “[t]he market generally understood SolarCity’s liquidity 

challenges”232 and that Appellants’ “expert witnesses, Moessner and Beach, conceded that 

market participants were aware of the risk that SolarCity might breach its Liquidity 

Covenant.”233 These unchallenged factual findings are supported by the record and cannot 

be squared with Appellants’ contention that material facts were not disclosed to the 

stockholders by the time of the vote.

Fourth, Appellants contend that a disclosure violation exists because Tesla 

stockholders were not informed about SolarCity’s credit downgrades.234 They also claim 

that the Vice Chancellor erred in holding that “SolarCity’s failure to disclose information 

229 Id. 

230 Id. 

231 Opening Br. at 42.

232 Trial Op., 2022 WL 1237185, at *38. 

233 Id. at *42. Further, the preliminary proxy statement contained “a description of the risks posed 

by SolarCity’s liquidity challenges.” Id. at *22. 

234 See Opening Br. at 42.
70

related to its credit downgrades was immaterial.”235 Among other things, the court 

observed that “[i]f SolarCity’s largest lender was undeterred by the change in credit rating, 

it is difficult to see how or why the market would have viewed the information 

differently.”236 We agree with the trial court’s weighing of the evidence in assessing the 

materiality of this information. The trial court also expressly grounded its holding on the 

“credible evidence presented at trial.” We have no basis in the record to disturb these 

findings.

Appellants’ fifth disclosure contention relates to the potential crossholdings of stock 

by institutional investors. Appellants contend that the Court of Chancery did not decide 

the issue of whether these stockholders were disinterested and yet still factored the vote

into the analysis. However, as the trial court stated, Fischel analyzed Appellants’ “crossholdings” claim. For example, Fischel analyzed 25 of Tesla’s top institutional holders. Of 

those, 17 also held SolarCity stock, “[b]ut only 5 of those 17 had greater stakes in SolarCity 

than Tesla.”237 The trial court, considering the “quality” of the stockholder vote, ultimately 

concluded that “[e]ven with these issues in mind, however, I cannot, as factfinder, conclude 

that such a large majority of Tesla’s stockholders would have voted to approve a 

transaction whereby Tesla would acquire an insolvent energy company, as [Appellants] 

would have me believe.”238 The Vice Chancellor explained that he gave “less weight to 

235 Trial Op., 2022 WL 1237185, at *43.

236 Id. 

237 A1845 (Fischel Trial Test. at 2532:13–14).

238 Trial Op., 2022 WL 1237185, at *44 n.515.
71

the Tesla stockholders’ approval of the Acquisition than [he] might have otherwise in 

recognition of [Appellants’] disclosure arguments and their argument that the magnitude 

of the approval vote might be overstated given the likelihood that many stockholders who 

approved the Acquisition also owned SolarCity stock.”239 We find no error with the Vice 

Chancellor’s determination to give the vote some weight.

In weighing the stockholder vote on the Acquisition, the court again found Fischel’s 

testimony particularly persuasive. Fischel testified that the Tesla stockholder vote was “the 

ultimate market test,” that if anyone believed that SolarCity was insolvent, “all they had to 

do was reject the offer[,]” and similarly for Tesla stockholders who thought the deal was 

beneficial, they could vote in favor of it.240 He testified as to the robust public commentary 

regarding liquidity issues, as well as commentary characterizing the deal as a “bailout” and 

the result of a process “steeped in conflicts.”241 He further testified as to the sophistication 

of the stockholder base, which contained “many of the most sophisticated institutions in 

the world.”242 

In sum, we reject all five claims of error. The record supports the Vice Chancellor’s

conclusion that “[t]he material aspects of the Acquisition were known to Tesla 

stockholders.”243 

239 Id. at *36 n.430.

240 Id. at *44 (internal quotation marks and citation omitted).

241 Id. 

242 A1844 (Fischel Trial Test. at 2529:20–21).

243 Trial Op., 2022 WL 1237185, at *38. 
72

Finally, we reject Appellants’ contention that the Vice Chancellor failed to 

adequately find that the Acquisition was the product of fair dealing. Musk was required to 

prove fair dealing. Both aspects of the entire fairness test — fair dealing and fair price —

must be satisfied. “[A] party does not meet the entire fairness standard simply by showing 

that the price fell within a reasonable range that would be considered fair.”

244

The trial court, citing cases to this effect, recognized that principle and found that 

Musk carried his heavy burden. The trial court’s findings — which, again, are factual 

determinations not challenged by the Appellants — support the conclusion that the process, 

overall, was the product of fair dealing. The Vice Chancellor did not ignore the process 

flaws, but rather, he considered them in his overall assessment of the process. For example, 

he noted that “the recusal protocol was not precise” as to Musk attending certain Tesla 

Board meetings and that this was a flaw in the process.245 But he also acknowledged that 

“the Tesla Board believed that [Musk’s] and Gracias’ perspectives regarding the solar 

industry and SolarCity, in particular, would be helpful, so it was agreed that the two could 

participate in certain high-level strategic discussions regarding the Acquisition.”

246

 This 

244 William Penn P’rship v. Saliba, 13 A.3d 749, 757 (Del. 2011); id. at 758 (“Merely showing 

that the sale price was in the range of fairness, however, does not necessarily satisfy the entire 

fairness burden when fiduciaries stand on both sides of a transaction and manipulate the sales 

process.”) (internal citation omitted). See also Tremont, 694 A.2d at 432 (“[H]ere, the process is 

so intertwined with price that under Weinberger’s unitary standard a finding that the price 

negotiated by the Special Committee might have been fair does not save the result.”); Cede & Co. 

v. Technicolor, Inc., 634 A.2d 345, 361 (Del. 1993) (holding that “directors must establish to the 

court’s satisfaction that the transaction was the product of both fair dealing and fair price.”) 

(emphases in original), modified on other grounds, 636 A.2d 956 (Del. 1994).

245 Trial Op., 2022 WL 1237185, at *15 n.197.

246 Id. at *15.
73

was disclosed in the Definitive Proxy.247 

The court found that overall, “the preponderance of the evidence reveals that 

[Musk’s] influence did not degrade the entire fairness of the Acquisition.”248 It noted that 

“[t]he Tesla Board’s process included several redeeming features that emulated armslength bargaining to the benefit of Tesla stockholders.”249

 Further, “an ultimately 

productive board dynamic [] protected the interests of stockholders, despite [Musk’s] 

assumed ‘managerial supremacy’ and the assumed board-level conflicts.”250 And 

specifically, the court concluded that “under Denholm’s leadership, the Tesla Board 

meaningfully vetted the Acquisition”251 and that, under Denholm’s direction and influence 

as a “disinterested decisionmaker,” the “Tesla fiduciaries placed the interests of Tesla 

stockholders ahead of their own.”252 Thus, although the trial court could have stated its 

fair dealing conclusion more clearly and explicitly, its opinion — fairly read — determines 

that despite certain process flaws, the Acquisition was the product of fair dealing. We also 

conclude, based upon our independent review of the record, that the record supports such 

a determination. 

247 See id. at *15 n.197.

248 Id. at *33.

249 Id. at *36.

250 Id. at *37 (internal citation omitted).

251 Id. at *39.

252 Id. at *34.
74

V. THE TRIAL COURT DID NOT REVERSIBLY ERR IN ITS FAIR PRICE 

ANALYSIS

We now turn to fair price. We conclude that the record supports the Court of 

Chancery’s legal conclusion that the price paid was a fair one and that the trial court did 

not misapply the entire fairness standard.

As this Court has said, a fair price analysis typically applies “recognized valuation 

standards[.]”253 “In resolving issues of valuation[,] the Court of Chancery undertakes a 

mixed determination of law and fact.”254 Our “precedent establishes that the fair price and 

fair value standards call for equivalent economic inquiries.”255 It is important to note, 

however, that “[t]he fair price aspect of the entire fairness test, by contrast, is not in itself 

a remedial calculation.”256 Thus, “[a] price may fall within the range of fairness for 

purposes of the entire fairness test even though the point calculation demanded by the 

253 Lynch II, 669 A.2d at 87. See also Rosenblatt, 493 A.2d at 940 (“Fair price involves all relevant 

economic factors of the proposed merger, such as asset value, market value, earnings, future 

prospects, and any other elements that affect the inherent or intrinsic value of a company’s stock.”) 

(citing Weinberger, 457 A.2d at 711); Weinberger, 457 A.2d at 713 (noting that a fair price analysis 

requires use of “techniques or methods which are generally considered acceptable in the financial 

community”).

254 Tremont, 694 A.2d at 432. Such a determination is entitled to deference by this Court: “[w]e 

recognize the thoroughness of the [Court of Chancery’s] fair price analysis and the considerable 

deference due [its] selection from among the various methodologies offered by competing 

experts.” Id.

255 In re Orchard, 88 A.3d at 30. See also Gesoff, 902 A.2d at 1152 n.127 (“[I]n general, the 

techniques used to determine the fairness of price in a non-appraisal stockholder’s suit are the same 

as those used in appraisal proceedings.”).

256 ACP Master, Ltd. v. Sprint Corp., 2017 WL 3421142, at *18 (Del. Ch. July 21, 2017), aff’d, 

184 A.3d 1291. See also Reis v. Hazelett Strip-Casting Corp., 28 A.3d 442, 465 (Del. Ch. 2011) 

(“The fair price analysis is part of the entire fairness standard of review; it is not itself a remedial 

calculation.”).
75

appraisal statute yields an award in excess of the merger price.”257 

Here, Appellants attack Musk’s evidence on fair price, which the Court of Chancery 

largely found to be credible. Their fair price challenge is five-fold: (1) the trial court 

applied a bifurcated entire fairness test; (2) the trial court employed “rote reliance” on 

market price; (3) the trial court did not look to SolarCity’s value at the time of closing; (4) 

the trial court erroneously considered cash flows and synergies; and (5) the stockholder 

vote did not prove fair price.258 We consider each challenge and conclude that the trial 

court committed no reversible error.

A. The Trial Court Did Not Apply A Bifurcated Analysis

Appellants first contend that the “court applied a bifurcated entire fairness test, 

concluding that its separate fair price analysis alone satisfied entire fairness.”259 In essence, 

they argue that the Vice Chancellor looked at price and price alone.260 We disagree with 

Appellants’ reading of the Court of Chancery’s opinion, which, among other things, makes 

extensive fact and credibility findings relating to the Acquisition’s process. The trial court 

also expressly recognized that “[e]ntire fairness is a composite” and is not a bifurcated 

257 In re Orchard, 88 A.3d at 30. The Court of Chancery has noted that our case law “has not 

equated satisfying the standards of review that govern fiduciary duty claims with carrying the 

burden of proof in an appraisal proceeding. Because the two inquiries are different, a sale process 

might pass muster for purposes of a breach of fiduciary claim and yet still constitute a sub-optimal 

process of an appraisal.” Merion Cap. L.P. v. Lender Processing Servs., Inc., 2016 WL 7324170, 

at *15 (Del. Ch. Dec. 16, 2016).

258 See Opening Br. at ii.

259 Id. at 44.

260 The amici join in and argue that Musk satisfied his burden “by reference chiefly to the preannouncement price[.]” Amicus Br. at 21.
76

test.261

Nevertheless, Appellants are correct that fair price played a large role in the trial 

court’s analysis. Though the entire fairness test is a unitary one, we have long recognized 

that, sometimes, a fair price is the most important showing.262 “Evidence of fair dealing 

has significant probative value to demonstrate the fairness of the price obtained. The 

paramount consideration, however, is whether the price was a fair one.”263 That is not to 

say that an alleged controller can shirk her fiduciary duties and hide behind the price she 

pays. “[T]he range of fairness is not a safe-harbor that permits controllers to extract barely 

fair transactions.”264 Here, given the process flaws as found by the trial court, the court 

had to conclude that those flaws did not infect the price in order to find that the price was 

fair. That is what it did, finding that, ultimately, the process did not impact the price, which 

was “not near the low end of a range of fairness[.]”265 Although Appellants raise certain 

legitimate criticisms as to a certain part of the trial court’s fair price analysis, given the 

261 Trial Op., 2022 WL 1237185, at *31.

262 In Weinberger, this Court stated that “in a non-fraudulent transaction we recognize that price 

may be the preponderant consideration outweighing other features of the merger.” 457 A.2d at 

711 (emphasis added). When looking at fair price, we analyze a variety of factors, as does the trial 

court. See In re Dole Food Co., Inc. S’holder Litig., 2015 WL 5052214, at *34 (Del. Ch. Aug. 27, 

2015) (“The principal evidence on the issue of fair price consists of the expert opinions at trial, the

Committee’s negotiations, Lazard’s fairness opinion, and market indications.”).

263 Ams. Mining, 51 A.3d at 1244 (emphasis added). See also In re Dole Food, 2015 WL 5052214, 

at *34 (“Fair price can be the predominant consideration in the unitary entire fairness inquiry.”). 

264 ACP Master, 2017 WL 3421142, at *19. See also Basho Techs. Holdco B, LLC v. Georgetown 

Basho Invs., LLC, 2018 WL 3326693, at *37 (Del. Ch. July 6, 2018) (same), aff’d, 221 A.3d 100 

(Del. 2019) (ORDER).

265 Trial Op., 2022 WL 1237185, at *48 (internal quotation marks and citation omitted).
77

other evidence of fair price, we find no reversible error in the court’s overall determination 

that the price was fair.

B. The Credible Evidence Supports The Fairness Of The Price

1. Musk Presented “Persuasive Evidence” of SolarCity’s Solvency, While 

Quintero’s Insolvency Valuation Theory was “Incredible”

Appellants’ claims as to fair price focus on whether the court afforded too much 

weight to market evidence. They contend that “[t]he trial court rejected all expert valuation 

methodologies and concluded that Tesla paid a fair price by relying on a stale SolarCity 

stock price from when Tesla’s preliminary proposal was announced.”266 More specifically, 

they assert that “[t]he only valuation ‘methodology’ the court purported to employ . . . was 

to look at the $20.35/share value of the Tesla stock paid at closing on November 21

compared to SolarCity’s $21.19/share ‘unaffected stock price’ from June 21[.]”267 As a 

result of that mistake, they say the court erred in concluding that Tesla paid no premium.

However, market evidence of SolarCity’s stock price was only one part of the 

evidence considered by the trial court in its fair price analysis. Although it is true that the 

court addressed market evidence to a greater degree than the DCF analysis, for example, 

that is a function of how the parties litigated the case. Appellants gloss over the fact that 

they pressed a single fair price valuation theory at trial, namely, that SolarCity was 

insolvent. As the Vice Chancellor found, Appellants “placed their valuation case entirely 

in Quintero’s hands, and Quintero, in turn, relied exclusively on a single valuation theory: 

266 Opening Br. at 46.

267 Reply Br. at 19 (emphases in original).
78

insolvency.”268 However, that strategy did not pan out.269

At trial, Quintero calculated and relied upon what he determined to be SolarCity’s 

“net liquidation value,” which he stated was the appropriate measurement due to 

SolarCity’s failure as a going concern.270 To reach his conclusion that SolarCity was 

insolvent, Quintero ran two types of tests: balance sheet tests and cash flow tests, each 

with two variations. Both tests, in his view, resulted in the same conclusion: SolarCity 

was not a going concern. The two balance sheet tests looked at current liabilities versus 

current assets and then all assets and all liabilities.271 According to Quintero, SolarCity 

had a net working capital deficit of $422.9 million.272 The two cash flow tests employed 

by Quintero looked at whether SolarCity could pay its obligations as they came due and 

then the size of SolarCity’s capital.273 Under both the balance sheet and cash flow tests, 

SolarCity was, in Quintero’s opinion, insolvent.274

268 Trial Op., 2022 WL 1237185, at *40 (internal citations omitted). 

269 As the Vice Chancellor described, they “went ‘all in’ on insolvency, arguing that SolarCity was 

worthless when Tesla acquired it, so any price paid by Tesla was too high.” Id. at *40. And as 

the Vice Chancellor put it, their strategy consisted of “swinging for the fences” and arguing for a 

SolarCity maximum value of zero dollars. Based upon their proffered valuation of zero dollars for 

SolarCity, Appellants argued that “compensatory damages should be the full value of the 

Acquisition consideration: $2.058 billion (at $20.35/share) to $2.443 billion (at $24.16/share).” 

A2113 (Appellants’ Post-Trial Reply Br. at 33).

270 A586 (Quintero Rep. at 5). Quintero testified at trial that, “[b]ased on the financial performance 

and condition of SolarCity as of the merger date, net liquidation value is the appropriate premise 

of value.” A1507 (Quintero Trial Test. at 706:20–22).

271 See id. (Quintero Trial Test. at 708:2–17).

272 See A1532 (Quintero Trial Test. at 807:14–16).

273 See A1508 (Quintero Trial Test. at 709:6–14).

274 See id. (Quintero Trial Test. at 710:5).
79

Quintero’s expert report (the “Quintero Report”) focused on one key aspect of 

SolarCity: liquidity problems, including the risk of tripping the Liquidity Covenant.275 

“SolarCity was highly debt dependent”276 and had “[l]iabilities that exceeded net assets 

(excluding the net assets of the [variable interest entities]) by approximately $650 million 

as of the” Acquisition.277 Net liquidation value — the key financial calculation in the 

Quintero Report — is defined as “the net amount that would be realized if the business is 

terminated and the assets are sold piecemeal.”278 The Quintero Report relied upon “orderly 

liquidation value,” which “[a]ssumes the assets are sold piecemeal with a reasonable 

amount of time allowed for market exposure.”279 It concluded that the average net 

liquidation value of SolarCity was negative $1.952 billion.280 Thus, according to the 

Quintero Report, “the common stock of SolarCity would be worthless on a liquidation 

basis.”281 

SolarCity’s stock trading price did not factor into Quintero’s analysis, as he 

concluded that its stock “essentially became a Tesla tracking stock up until the 

275 See A605–20 (Quintero Rep. at 24–39). See also supra Sections I.D.2, I.F., I.G.2, I.G.4. One 

of the Appellants’ other experts, Juergen W. Moessner, testified at trial that the market was aware 

of the risk SolarCity had with tripping the Liquidity Covenant. See A1502 (Moessner Trial Test. 

at 686:9–20).

276 A624 (Quintero Rep. at 43).

277 A628 (Quintero Rep. at 47).

278 A652 (Quintero Rep. at 71).

279 Id. Orderly liquidation value differs from “forced liquidation value,” which “[a]ssumes the 

assets are sold piecemeal with less than normal exposure as in a distressed sale.” Id.

280 See A805 (Quintero Rep. at Exhibit 53).

281 See id.
80

[Acquisition] closed, and SolarCity shareholders actually received Tesla common stock in 

exchange for their SolarCity common stock.”282 Although Quintero prepared a DCF 

analysis, he assigned it no value.283 He also rejected the fairness opinions of Evercore and 

Lazard, as he found they did “not provide an appropriate basis for determining the fair 

value of SolarCity” since they both determined that the company operated as a going 

concern.284 At trial, Quintero testified as to his net liquidation analysis. He confirmed 

repeatedly that it was the proper method by which to value SolarCity. 

Musk’s lead expert at trial, Fischel, testified that Quintero’s net liquidation valuation 

was “irrelevant for analyzing what I consider to be the relevant economic question in this 

case, which is the value of the assets purchased to SolarCity that are going to continue [] 

as opposed to SolarCity being liquidated.”285 Upon his review of “economic data, stock 

price data, acquisition data, all kinds of data from analysts on price targets and all kinds of 

different types of analysis, economic data[,]” he did not see “a single piece of evidence that 

supports the claim that SolarCity was insolvent at the time of the acquisition.”286 

According to Fischel, no one in the industry — apart from Quintero — “thought it was 

282 A677 (Quintero Rep. at 96). 

283 See A724 (Quintero Rep. at 143). Quintero testified at trial that he viewed DCF analysis as a 

highly speculative approach. See A1580 (Quintero Trial Test. at 868:19–24).

284 A726 (Quintero Rep. at 145). See also A1529 (Quintero Trial Test. at 795:23–796:4). 

285 A1833 (Fischel Trial Test. at 2485:15–19).

286 Id. (Fischel Trial Test. at 2486:2–10). Fischel testified that, if stockholders believed SolarCity 

was insolvent, they would not have voted for the Acquisition “because they were the ones who 

would have been the most harmed.” A1845 (Fischel Trial Test. at 2533:1–2). He also pointed to 

SolarCity’s trading price on June 21 of $21.19 and opined that “[i]nsolvent firms don’t have equity 

trading at $21.19.” A1835 (Fischel Trial Test. 2493:5–6).
81

appropriate to value SolarCity based on liquidation value.”287 In rejecting Quintero’s 

insolvency analysis, the trial court cited Musk’s “persuasive valuation evidence.”288 In 

addition to Fischel’s testimony, Musk’s evidence included: a contemporaneous analysis

done by KPMG, showing that SolarCity was not insolvent; Tesla’s 10-K, reporting an $89 

million gain on the Acquisition; Evercore’s analysis; and other financial testimony on cash 

flows and retained value.289

The trial court weighed evidence as to SolarCity’s supposed insolvency and

resoundingly rejected the insolvency theory. As the court noted, Quintero “doubled down” 

on his insolvency theory to such a degree that, when weighed against the evidence put forth 

by Musk’s experts, Appellants “undermined the credibility of their fair price case 

completely.”290 Thus, the trial court found that, despite SolarCity’s financial issues, the 

company “was solvent, valuable and never in danger of bankruptcy.”291 A review of the 

record and the opinion below reveals that this finding is adequately supported by the record. 

The trial court attempted to ascertain whether Appellants relied on any other fair 

price theory or analysis besides insolvency. In response to questions from the trial court, 

Quintero completely disclaimed reliance on any valuation metric or methodology other 

than his insolvency valuation theory: 

THE COURT: All right. I just have a couple questions to understand the 

287 A1850 (Fischel Trial Test. at 2554:5–6).

288 Trial Op., 2022 WL 1237185, at *41.

289 See id. at *41 n.481

290 Id. at *40.

291 Id. 
82

big picture of what you are telling the Court. As I understand it, the flag that 

you put in the ground on valuation, and that you would have me adopt, is a 

liquidation value of Tesla [sic] as of November, the date of the closing of this 

merger. That’s the value that you believe in, as you have analyzed the data

provided to you. Is that fair?

THE WITNESS: Yes, sir, based on professional appraisal.

THE COURT: The rest of this illustrative -- I’m trying to understand the 

point of the illustrative valuations. As I understand that, those are not 

methodologies that you believe in for this company. Is that accurate? 

THE WITNESS: That is correct. Not as of the merger date. 

THE COURT: All right. So as I look at the big picture of your testimony 

and your report, what I should be focusing on is whether I believe in the 

liquidation value premise that you are offering. Right? That’s the main 

essence of your testimony? 

THE WITNESS: That is correct. 

THE COURT: So the DCF, for example, that you performed, you don’t 

believe in that valuation?

THE WITNESS: No, it is only alternative information I have provided you 

for informational purposes. 

THE COURT: But I guess that’s what I’m trying to get at. What is the 

information that gives me that is useful in terms of deciding the dispute? 

Because it’s a valuation that you do not endorse. Is that --

THE WITNESS: The sole purpose would be if, Your Honor, you came to a 

view that Tesla was a going concern, I have provided you four alternative 

valuation analyses, albeit with very substantial caveats.

THE COURT: Right. And my understanding is that, as to each of them, 

from your perspective, they do not reflect the appropriate means by which to 

value this company. 

THE WITNESS: That’s correct, based upon professional appraisal 

standards.292

The result, after the court found Quintero’s insolvency theory to be “incredible” —

and Appellants disavowed any other theories — is that Appellants were left with no 

credible fair price evidence. As the trial court recognized, “in a plenary breach of fiduciary 

292 A1585–86 (Quintero Trial Test. at 889:6–891:4).
83

duty action, the court’s function when assessing fair value is not to conduct its own 

appraisal but to land where the preponderance of the credible and competent evidence of 

value takes it.”

293

 In the end, the Vice Chancellor found “no credible basis in the evidence 

to conclude that a ‘fairer’ price was available, and therefore, no basis to conclude that the 

price paid was not entirely fair.”

294

 

Musk, on the other hand, in addition to refuting Appellants’ insolvency theory,

“presented the most persuasive evidence regarding SolarCity’s value and the fairness of 

the price Tesla paid to acquire it.”

295

 Musk’s experts not only offered evidence 

demonstrating that SolarCity was not insolvent, but they also presented other evidence in 

order to prove the fairness of the price. And, as explained more fully below, market-based 

evidence was only one piece of Musk’s fair price case. We now turn to the question of 

whether the trial court erred in finding that Musk had established the fairness of the price

and whether the court erred in applying this aspect of the analysis. 

2. Musk’s Evidence Adequately Supports the Trial Court’s Finding of Fair Price

a. The Record Supports a Finding that Evercore’s Fair Price Evidence 

Supports the Fairness of the Price

As Tesla’s financial advisor on the Acquisition, Evercore and its work were a focus 

at trial. Evercore’s fairness opinion was based upon seven different valuation analyses, 

293 Trial Op., 2022 WL 1237185, at *40. See also Dell, 177 A.3d at 22 (observing that “it is 

possible that a factfinder, even the same factfinder, could reach different valuation conclusions on 

the same set of facts if presented differently at trial.”).

294 Trial Op., 2022 WL 1237185, at *48.

295 Id. at *40.
84

including DCF and non-DCF methodologies. In addition to the DCF analyses, Evercore’s 

valuation methodologies, which were described in detail in its presentation to the Tesla 

Board, included a sum-of-the-parts (“SOTP”) analysis and a premiums paid analysis.296 

Evercore credibly demonstrated to the court that the price paid was fair. 

Appellants argue that the Court of Chancery committed legal error by disregarding 

the DCF evidence. Their position is that the Vice Chancellor refused to consider a DCF 

methodology.297 Appellants also contend that the trial court’s DCF analysis was 

inconsistent with several of its other findings. According to them, there are two issues. 

The first is that the trial court erred in relying on Evercore’s fairness opinion, which was 

based, in part, on a DCF analysis they say was flawed.

298

 The second is that the court 

ignored SolarCity’s liabilities: as they frame it, “Tesla did not just pay $2.1 billion of 

stock, it also immediately assumed SolarCity’s $5.35 billion of liabilities.”299 Musk argues 

296 See AR519–24 (Definitive Proxy at 77–82) (summarizing Evercore’s financial analyses). At 

trial, McBean testified that Evercore’s primary valuation methodologies were DCF, SOTP, and 

precedent premiums analysis. See A1688 (McBean Trial Test. at 1450:16–1451:18); A1689 

(McBean Trial Test. at 1454:7–13). Appellants, in their post-trial briefing, described Evercore’s 

two main valuation methodologies as the DCF and SOTP analyses.

297 See Opening Br. at 52.

298 Appellants criticize Evercore’s DCF analysis for failing to account for the phasing out of an 

investment tax credit (“ITC”) program. Fischel believed that there were no cash flows in the 

terminal period from the residential tax credit. See A1871 (Fischel Trial Test. at 2636:3–11). 

McBean testified that Evercore knew that the ITC program was ending, but it did not “make 

specific assumptions” about the ITC in its aggregate analysis of its DCF sensitivity case. A1687 

(McBean Trial Test. at 1448:4–23). She also testified that Evercore’s DCF analysis was consistent 

with the expected ITC phasedown, see A1687–88 (McBean Trial Test. at 1448:24–1449:2), and 

that Evercore did “extensive diligence” when it reached its conclusion that SolarCity would have 

other sources of cash available even with the end of the ITC program. See A1688 (McBean Trial 

Test. at 1449:10–20). Notably, Evercore’s SOTP analysis took account of the ITC issue, as noted 

in the Definitive Proxy. See AR520 (Definitive Proxy at 78).

299 Opening Br. at 54 (emphases in original).
85

that Appellants focus on the liabilities but ignore the $8.5 billion in assets Tesla acquired 

in the deal.

First, the trial court did consider the DCF analyses, except “neither expert [Quintero 

or Fischel] persuaded [the court] that a DCF analysis is the proper method by which to 

value SolarCity[.]”300 Quintero testified that a DCF was not the appropriate way to value 

SolarCity. Fischel testified that he conducted a DCF as a check on the other market 

evidence, which he found to be more reliable.

Appellants assert that the trial court erred in finding that the DCF analyses were 

“not helpful,” despite finding Evercore’s analyses strong evidence of fair price. Credibility 

findings explain, in part, the trial court’s reliance on McBean and Evercore. The court 

rejected the suggestion that Evercore’s overall fairness opinion was unreliable, finding that 

“Evercore was a diligent advisor with no previous ties to Tesla, and McBean credibly 

explained and defended its work and advice.”301 It also expressly found that “[t]he 

preponderance of the evidence reveals this opinion [by Evercore] was reliable, honest and 

300 Trial Op., 2022 WL 1237185, at *41. Quintero testified that a DCF analysis for SolarCity was 

“an unreliable valuation approach” and “highly speculative[.]” A1580 (Quintero Trial Test. at 

868:19–24). Fischel testified that “the market evidence in this case is more probative, more 

reliable than an after-the-fact DCF analysis conducted by me or anybody else.” A1856 (Fischel 

Trial Test. at 2579:19–21). See also Rosenblatt, 493 A.2d at 940 (observing “that the relative 

importance of the several tests of value depends upon the circumstances of each case.”) (citing 

Sterling v. Mayflower Hotel Corp., 93 A.2d 107, 115–16 (Del. 1952) (reasoning that net asset 

value was of less importance than earning power, given the nature of the assets of the two 

companies)). Nor did the trial court here rely upon Fischel’s stock indexing methodology, which 

the Court of Chancery had criticized in other decisions. See Trial Op., 2022 WL 1237185, at *44 

n.509.

301 Id. at *21 n.276.
86

independently given.”302 The trial court found that Evercore’s work was based upon 

“weeks of due diligence.”303 The record supports this finding, as McBean testified at trial 

that “we did a tremendous amount of work on this transaction, thousands of hours with --

among our team. It was a very thorough process. This was probably one of the most 

involved diligence processes I’ve ever undergone.”304 

Further, at oral argument before this Court, when pressed as to this inconsistency 

point regarding the DCF analyses (i.e., finding DCF analyses unhelpful, yet relying upon 

Evercore’s analyses), Musk argued that the projections relied upon by Tesla’s management 

were contemporaneous, as opposed to being litigation-driven analyses prepared by 

experts.305 The trial court concluded that “Evercore’s analysis and projections were based 

302 Id. 

303 Id. at *46. 

304 A1733 (McBean Trial Test. at 1631:11–15). She testified further that the Acquisition “was a 

great deal for Tesla, a strategic rationale which we believed in, and we stand behind our work.” 

Id. (McBean Trial Test. at 1631:18–20).

305 The following colloquy occurred: 

THE COURT: How do you respond to Mr. Hanrahan’s suggestion that there’s some 

tension between the court’s finding that the DCF analyses were not helpful and, yet, as part 

of its six factors that it looked at in fair price and finding the price to be fair, it looked at 

SolarCity’s current and future cash flows?

COUNSEL: My answer is I think Mr. Hanrahan left one important fact out, which is the 

distinction between contemporaneous discounted cash flow analyses that were done at the 

company and the made-for-litigation discounted cash flow analyses, which the court did 

not credit. That’s the distinction. Both sides came in with after-the-fact experts who did 

discounted cash flow analyses. Mr. Quintero said, “I did it, but don’t rely upon it and don’t 

pay any attention to it.” Dr. Fischel did it and said, “I’m giving it to you. I don’t think 

these are particularly useful after the fact, but here it is if you want to consider it because 

the other side did one.” The court said, “I’m not considering those.” What the court 

considered was not the made-for-litigation DCFs but the contemporaneous DCFs, which 

the company was actually using to conduct its business. Those, the court found, were relied 

upon by Evercore and were appropriate.
87

on ‘extensive discussion and analysis’ between Tesla and Evercore[.]”306 

The record contains other quantitative analyses performed by Evercore. For 

example, McBean testified about Evercore’s two SOTP analyses — another key 

component of Evercore’s fairness opinion work. She stated that these analyses resulted in 

a range of $31 to $46 for the management case and a range of $16 to $26 for the revised 

sensitivity case.307 She observed that “[t]he final deal price is below or within those ranges” 

and that “[s]pecifically, it’s below the SolarCity management case and within the range for 

the revised sensitivity case.”308 We find no error in the trial court’s determination that 

Evercore credibly explained and defended its work or in the trial court’s overall reliance 

on Evercore’s fairness opinion as “just one of many pieces of evidence that justify the price 

paid in the Acquisition.”309

In addition to Evercore’s fairness opinion, the trial court relied upon the 

contemporaneous KPMG analysis and the fact that Tesla booked an $89 million gain on 

the Acquisition.310 As to Appellants’ claim that the trial court ignored SolarCity’s 

liabilities, the trial court’s finding that SolarCity’s “net assets [were] in excess of its market 

capitalization (as confirmed by KPMG)” and that it “brought substantial value to Tesla” 

Oral Argument, at 40:50–41:59, 

https://livestream.com/delawaresupremecourt/events/10769099/videos/235611407:

306 Trial Op., 2022 WL 1237185, at *46 (internal citation omitted). 

307 A1689 (McBean Trial Test. at 1453:5–8).

308 Id. (McBean Trial Test. at 1453:11–14).

309 Trial Op., 2022 WL 1237185, at *21 n.276.

310 See id. at *41 n.481.
88

are supported by the record.311 The trial court found that, “as of closing, SolarCity had 

accumulated and continued to accumulate substantial net retained value.”312 The trial court

also relied upon cash flow and synergies analyses, which we discuss below.

b. The Trial Court did not err as to its Cash Flow Findings

Appellants argue that the Court of Chancery erred when it relied upon SolarCity’s 

cash flows and upon “encumbered future cash flows that might never materialize.”313 They 

contend that the Vice Chancellor relied upon “undocumented and unsupported testimony 

by Musk” that Tesla would realize $1 billion in nominal cash flows and at least $2 billion 

more from legacy SolarCity systems.

314

 They suggest a similar logical inconsistency,

315

namely, that the trial court considered cash flows, yet also stated that it would reject the

discounted cash flow analyses prepared by the experts. Musk responds that the cash flows 

represented “SolarCity’s business model and part of the value proposition the Acquisition 

presented to Tesla” and that “the trial court found the cash flows supported by documentary 

evidence and credible testimony from five witnesses.”316

The trial court found that “part of SolarCity’s value came from the long-term cash 

flows it generated.”317 It flows logically, then, that those cash flows are part of the “get” 

311 Id. at *24.

312 Id. 

313 Opening Br. at 53.

314 Id. at 53–54.

315 See supra Section V.B.2.a.

316 Answering Br. at 53–54 (internal citations omitted).

317 Trial Op., 2022 WL 1237185, at *45. See also supra Sections I.D.2. and I.J. See also DFC 

Glob. Corp. v. Muirfield Value P’rs, L.P., 172 A.3d 346, 349–50 (Del. 2017) (“It is, of course, 
89

Tesla received from the Acquisition and factored into the fair price analysis. And, as the 

trial court’s opinion demonstrates, the court did not solely rely upon Musk’s testimony as 

to cash flows. Rather, the trial court considered evidence from Tesla’s directors and from 

SolarCity’s officers that cash flows were an integral part of SolarCity’s business.318 For 

example, the trial court noted that “[u]sing a ‘retained value’ methodology (calculating the 

net present value (‘NPV’) after accounting for the repayment of associated debt), SolarCity 

valued its future cash flows as of Q2 2016 at $2.2 billion (NPV) in retained value.”319 It 

found that “[t]his amount was available for monetization at the time of the Acquisition.”320 

Further, the trial court found that “SolarCity’s financing counterparties participated in 

financing transactions with SolarCity worth more than $3 billion from” the fourth quarter 

of 2015 through the fourth quarter of 2016.321 We find no error in the trial court’s 

natural for all buyers to consider how likely a company’s cash flows are to deliver sufficient value

to pay back the company’s creditors and provide a return on equity that justifies the high costs and 

risks of an acquisition.”).

318 See Trial Op., 2022 WL 1237185, at *45 nn.524–26. For example, the Vice Chancellor pointed 

to Serra testifying “that the cumulative amount of cash flow would be $2.2 billion value today” 

and to Gracias testifying that it was “a very good deal for us, to pay 2-, $2-1/2 billion for a business 

that, on its face, was going to cash flow to us 3 billion off of leases alone.” Id. at n.524 (internal 

quotation marks and citations omitted). 

Van Zijl also testified that the cash flow stream “would probably be upwards of 3 billion” and was 

not encumbered but rather available for monetization. Id. (internal citation omitted).

319 Trial Op., 2022 WL 1237185, at *10 n.136 (internal citation omitted).

320 Id. 

321 Id. at *17. Appellants argue that Bank of America — SolarCity’s largest lender — repeatedly 

downgraded SolarCity’s credit rating. Although that is true, those downgrades did not stop Bank 

of America from lending to SolarCity. In fact, the opposite occurred. As the trial court found, 

“[a]fter SolarCity’s credit rating was downgraded, Bank of America (SolarCity’s principal lender) 

reacted by not only continuing to transact business with SolarCity but seeking to deepen the 

lender/borrower relationship.” Id. at *43 (emphasis added).
90

consideration of SolarCity’s cash flows as supporting a finding of fair price.322

c. The Trial Court’s Synergy Findings Support Fair Price

Appellants contend that the trial court erred in relying on synergies as evidence of 

the fairness of the price. They argue that finding the Acquisition to be synergistic does not 

make the transaction entirely fair. But synergistic values are a relevant input for a court to 

consider in assessing the entire fairness of an acquisition. Potential synergies are often a 

prime motivator for an acquiring company.323 That was the case here.324 Following the 

trial, the Vice Chancellor found that “synergies were a focus of the Tesla Board from the 

very beginning of its consideration, and there is evidence to support them. At trial, 

numerous directors testified they were laser-focused on the potential synergies throughout 

322 The Vice Chancellor found that at “[t]he moment Tesla acquired SolarCity, it became the 

beneficiary of these cash flows. In fact, Tesla has already realized approximately $1 billion in 

nominal cash flows and expects to realize at least $2 billion more from the legacy SolarCity 

systems.” Id. at *45. 

323 The same is true here: “the Tesla Board recognized the significant potential product synergies” 

at the first board meeting — on February 29, 2016 — where the possibility of a deal between Tesla 

and SolarCity was first raised. Id. at *12.

324 The Definitive Proxy listed numerous reasons why Tesla believed the Acquisition was in the 

best interest of the company and its stockholders, with a focus on synergies. Among them: “its 

belief that the Combined Company will operate more efficiently to create fully integrated 

residential, commercial and grid-scale products[,] its expectation of substantial cost synergies[,] 

its expectation of substantial revenue synergies[, and] its belief that a combination of Tesla’s and 

SolarCity’s business could eliminate certain of the costs and complexities currently associated with 

transactions between Tesla and SolarCity[.]” AR513 (Definitive Proxy at 71).

In fact, the Definitive Proxy’s first page specified the “strategic rationale” behind the Acquisition, 

informing stockholders that “Tesla and SolarCity believe that this is an opportune time to combine 

in order to operate more efficiently and fully integrate our products” and that “[t]he Combined 

Company is expected to achieve approximately $150 million in cost synergies in the first full year 

after closing[.]” AR443 (Definitive Proxy at 1). 
91

the deal negotiations.”325 Fischel testified that “standalone value is relevant, but synergies 

are also relevant [] in light of Tesla’s objective of becoming an integrated, sustainable 

energy company[.]”326

We conclude that the Vice Chancellor properly found that the synergistic value in 

Tesla acquiring SolarCity could be “considered in assessing the value” of the 

Acquisition.327 The trial court credited Fischel’s testimony that the relevant economic 

question is the value of the purchased assets to Tesla, and that synergies were a strong 

rationale for the Acquisition and, thus, were properly considered in assessing the value of 

SolarCity to Tesla. We find no error in his determination, which is supported by the record 

evidence.

328

 

Appellants also challenge the magnitude of the synergies, contending that the trial 

court further erred by crediting all potential cost, revenue, and global strategic synergies 

325 Trial Op., 2022 WL 1237185, at *46. For example, Denholm testified: 

I believed that it was in the best interests of Tesla shareholders to actually continue 

the mission of Tesla, which was to accelerate the world towards sustainable energy. 

And the best way to do that was to have the solar generation capability within the 

four walls of Tesla so that we could continue in terms of the technology journey 

that it would take to satisfy the mission, and I believed that it was in the best 

interests of all Tesla’s shareholders.

Id. at *46 n.539. Buss testified that Tesla got “this really good asset that was part of our long-term 

vision really at a great price[.]” Id. (internal quotation marks omitted). And Ehrenpreis testified 

that, following the Acquisition, Tesla became “a fully integrated, sustainable energy company and 

really the only one of its kind[.]” Id.

326 A1833 (Fischel Trial Test. at 2484:4–7).

327 Trial Op., 2022 WL 1237185, at *46.

328 “It is the expectation of such synergies [i.e., those to be created by the changes that the bidder 

contemplates] that allows a rational bidder to pay a premium when he negotiates an acquisition.” 

Cinerama, Inc. v. Technicolor, Inc., 663 A.2d 1134, 1143 (Del. Ch. 1994) (“Cinerama I”), aff’d, 

Cinerama II, 663 A.2d 1156.
92

Tesla might eventually realize as elements of SolarCity’s value. According to Appellants, 

these were “speculative synergies” that should not have factored into the fair price analysis. 

The trial court recognized that it should consider only cognizable synergies, not speculative 

synergies.329 Fischel testified at trial that he pressure-checked Tesla’s projection of $150 

million in cost synergies per year.330 These included “cost synergies that are described as 

various ways of reducing costs, including reducing headcount.”331 The Court of Chancery 

also noted that the synergies stemming from the Acquisition were known to Tesla 

stockholders: 

[P]rior to the close of the Acquisition, Tesla identified and disclosed to 

stockholders three categories of synergies that it expected to realize: (1) cost 

synergies (from “[s]ales and marketing efficiencies” and “corporate and 

overhead savings”); (2) revenue synergies (from leveraging Tesla’s retail 

capabilities and the companies’ overlapping customer bases); and (3) global 

strategic synergies (by creating the “world’s only integrated sustainable 

energy company”).332

Here, the potential synergies were estimated to be “at least $150 million per year,” which 

the trial court found supported a finding of fair price.333 The record supports these 

conclusions. 

329 See Trial Op., 2022 WL 1237185, at *46.

330 See A1846–47 (Fischel Trial Test. at 2539:12–2540:5). Evercore confirmed that $150 million 

in synergies was reasonable. See Trial Op., 2022 WL 1237185, at *47 n.542.

331 A1847 (Fischel Trial Test. at 2542:4–6).

332 Trial Op., 2022 WL 1237185, at *46 (internal citation omitted).

333 Id. at *47.
93

d. The Trial Court Properly Accorded Some Weight to the Stockholder Vote

Appellants also contend that the Court of Chancery erred when it accorded weight 

to the stockholder vote on the Acquisition. They claim that “[a] coerced, uninformed vote 

by stockholders with conflicting equity interests is not even sufficient to change the 

standard of review, much less to prove fair price.”334 Musk responds that the court was 

free to consider the stockholder vote in evaluating the actual merits of these claims at trial

and that the amount of weight accorded “is a classic example of trial court discretion[.]”335 

We agree.

In Weinberger, this Court expressly stated that the entire fairness standard 

“embraces questions [like] how the approvals of the directors and the stockholders were 

obtained.”336 And in Cinerama II, we found that “an overwhelming majority of” 

stockholders voting in favor of a transaction “constituted substantial evidence of 

fairness.”337 For the reasons we explained in Section IV.A.2. above, the trial court’s

finding — that the stockholder vote, wherein roughly 85% of Tesla stockholders approved 

the Acquisition, weighed in favor of fairness — was not erroneous.

338

334 Opening Br. at 55.

335 Answering Br. at 56.

336 457 A.2d at 711 (emphasis added). See also Bomarko, Inc. v. Int’l Telecharge, Inc., 794 A.2d 

1161, 1182 (Del. Ch. 1999), aff’d, 766 A.2d 437 (Del. 2000).

337 663 A.2d at 1176. The Court of Chancery has also held that stockholder approval is an indicium 

of fairness. See, e.g., ACP Master, 2017 WL 3421142, at *29 (“[A]pproval of the merger at $5.00 

per share by a supermajority of Clearwire’s minority stockholders is compelling evidence that the 

price was fair.”).

338 As we noted there, the Vice Chancellor gave the stockholder vote less weight than he otherwise 

may have due to Appellants’ disclosure contentions and the crossholdings point. See also Trial 
94

e. Some, but not all, Market Evidence Supports Fair Price

As evident from the preceding discussion, and from the trial court’s direct statement 

that Evercore’s fairness opinion was “one of many pieces of evidence” that justified the 

price, only part of Musk’s evidence on fair price focused on market evidence. And even 

within the trial court’s discussion on market evidence, the June 21 stock price was not the 

sole aspect considered — it was one of three aspects of market evidence. The other two 

included the fact that the market for SolarCity was efficient (which neither side disputed)

339

and that the stockholders overwhelmingly voted for the Acquisition.340 Our review of the 

record reveals no error by the Vice Chancellor in his consideration of these aspects of 

Musk’s market evidence as supporting a finding of fair price. 

As for the efficiency of the market, experts for both Appellants and Musk testified 

that SolarCity traded in an efficient market, leading the Vice Chancellor to conclude the 

Op., 2022 WL 1237185, at *36 n.430. We also note that the stockholder vote is but one component 

of the trial court’s fair price analysis. See id. at *44–45.

339 Fischel testified, for example, that throughout 2016, Tesla’s stock price reflected all publicly 

available information and would react quickly and without bias to all newly disclosed, valuerelevant information. See A1866 (Fischel Trial Test. at 2618:13–19). He observed that “[t]hat’s 

the general definition of ‘semi-strong efficient markets.’” Id. (Fischel Trial Test. at 2618:22–23).

340 See Trial Op., 2022 WL 1237185, at *42–45. Fischel explained at trial how he concluded that 

both SolarCity and Tesla stock traded in an efficient market:

[T]hey’re both actively traded on NASDAQ. They’re actively followed by 

analysts. Prices reacted quickly to information. Basically, all the traditional indicia 

of trading in an efficient market really was satisfied by the stocks of both 

companies.

A1834 (Fischel Trial Test. at 2490:1–6). He observed that there was “[m]assive scrutiny” of 

SolarCity’s economic position by analysts and “voluminous discussion of SolarCity’s liquidity 

position” in the market commentary. A1834–35 (Fischel Trial Test. at 2490:10; 2494:9–10).
95

same.341 The trial court found, for example, “that SolarCity accurately disclosed the 

existence and terms of its debt covenants, that its covenant compliance margins decreased 

in Q1 and Q2 of 2016, the potential consequences of a breach, its quarterly cash balances 

and its debt maturities.”342 It found that Appellants’ experts “conceded that market 

participants were aware of the risk that SolarCity might breach its Liquidity Covenant.”343 

Further, “[t]he unrebutted trial evidence establishe[d] that SolarCity appropriately and 

timely disclosed guidance reductions consistent with its internal projections.”344 Finally,

as we held above, given the credible evidence presented at trial, SolarCity’s failure to 

disclose information related to its credit downgrades was immaterial. The record supports 

these conclusions.

345

As for the second piece of Musk’s market evidence, the Vice Chancellor found the 

stockholder vote to be credible evidence of fairness.

346

 As to the court’s consideration of 

341 See Trial Op., 2022 WL 1237185, at *42. Trading in an efficient market means that the market 

quickly assimilates all publicly available information into a company’s stock price. See Fir Tree 

Value Master Fund, LP v. Jarden Corp., 236 A.3d 313, 326 (Del. 2020); see also Dell, 177 A.3d 

at 16 (observing that the efficient market hypothesis teaches that the price of a company’s stock 

reflects all publicly available information).

Evidence of a stock’s trading price in “an efficient market is generally a more reliable assessment 

of fair value than the view of a single analyst, especially an expert witness who caters her valuation 

to the litigation imperatives of a well-heeled client.” Id. at 24.

Conversely, “reliance on a price determined in a thinly traded, illiquid, market is evidence of a 

price’s unfairness.” Gesoff, 902 A.2d at 1154. 

342 Trial Op., 2022 WL 1237185, at *42. 

343 Id. 

344 Id. 

345 McBean, in addition to Fischel, testified that, as of the time of the stockholder vote, the market 

knew about SolarCity’s liquidity situation. See A1732 (McBean Trial Test. at 1626:17–20).

346 See also supra Section IV.A.2 (discussing how the stockholder vote indicates fair dealing).
96

this market-based evidence, we find no error. Market evidence, in fact, is one of the explicit 

factors we first listed in Weinberger for determining if a price paid was fair: the price

“aspect of fairness relates to the economic and financial considerations of the proposed 

merger, including all relevant factors [including] market value[.]”347 

3. The Trial Court Erred in its Analysis of the June 21 Stock Price 

Lastly, we turn to the third aspect of market evidence and to Appellants’ argument 

that “the trial court erred by rote reliance on market price.”

348

 They contend that affirmance 

by this Court would reduce the entire fairness analysis to the single question of whether 

the purchase price is sufficiently near the unaffected stock price.

349

 Appellants argue that 

“[t]he trial court did not determine SolarCity’s value on November 21, 2016, as it was 

required to do, because it based its fair price holding on what it claimed was ‘market 

evidence,’ specifically SolarCity’s June 21, 2016 stock price.”350 They say that the Vice 

Chancellor looked to the trading price of $21.19 per share for SolarCity’s stock on June 

21, the day Tesla announced the Acquisition and then compared that trading price to the 

ultimate exchange ratio for the Acquisition, which implied a $20.35 per share price. This, 

they argue, led the court to conclude erroneously that this was “a discount of 84 cents per 

347 457 A.2d at 711 (emphasis added).

348 Opening Br. at ii, 45.

349 The amici similarly urge that “[i]f a conflicted party can rely on little more than the preannouncement transaction price to demonstrate the fairness in question, the party has little to gain 

from submitting to the procedural protections in MFW.” Amicus Br. at 21. See also id. at 4 (“The 

Court of Chancery’s approach, thus, threatens to fatally undermine MFW by substantially negating 

the incentives MFW promotes.”).

350 Opening Br. at 48 (emphasis in original).
97

share” and that “Tesla paid no premium for SolarCity as of closing.”351

In arguing that the June 21 stock price could not be trusted as a proxy for value, they 

point to certain pieces of information regarding SolarCity that were not known to the 

market as of June 21 but became known later during the summer and fall. The information 

they point to consists of two items, namely, SolarCity’s liquidity problems and SolarCity’s 

credit downgrades. As the trial court noted, neither was known to the Tesla Board when 

the Acquisition was first announced in June. The Tesla Board only learned of SolarCity’s 

liquidity problems on July 19, when Evercore presented on SolarCity’s direct liquidity 

situation and explained that SolarCity could trip its Liquidity Covenant by July 30, 2016. 

The Vice Chancellor credited the “new developments and concerns” uncovered by 

Evercore during the summer of 2016, which the court found were “used to lower the price 

substantially[.]”352 Further, Evercore acknowledged that SolarCity’s stock did not reflect 

non-public information Evercore discovered in due diligence.353 The Vice Chancellor also 

found that SolarCity failed to disclose information related to its credit downgrades during 

negotiations.354 This information, according to Appellants, was not factored into the stock 

351 Id. at 48–49 (quoting Trial Op., 2022 WL 1237185, at *43).

352 Trial Op., 2022 WL 1237185, at *37 (internal citation omitted).

353 At trial, Evercore’s McBean testified: “The market had certain information. We had additional 

information, having done nonpublic diligence. So the market had some information about the 

liquidity situation of SolarCity, but not complete information.” A1704 (McBean Trial Test. at 

1515:8–12). She further testified that there would typically be a decrease in stock price for 

SolarCity if the public knew that the company would trip its Liquidity Covenant. See A1714 

(McBean Trial Test. at 1553:24–1554:1).

354 Trial Op., 2022 WL 1237185, at *43 (holding that the failure to disclose this information, 

however, was immaterial).
98

price relied upon by the Vice Chancellor. We focus mainly on the “liquidity information” 

issue, as we have already found no error in the trial court’s determination that the credit 

downgrades were immaterial.

Appellants’ criticism of the court’s reliance on the June 21 stock price has some 

merit for two reasons. First, the trial court never explained why it was reasonable to rely 

on the June 21 stock price in the face of the nonpublic information it identified as not being 

available in June.

355

 This is an error in its analysis. Second, the court did not explain, at 

least in a general sense, the weight it gave to the June 21 stock price. 

As to the weighting issue, in DFC, in the appraisal context, we emphasized that the 

Court of Chancery should explain its weighing of indications of value in a manner that is 

grounded in the record.356 We acknowledge that specific weighting of valuation 

methodologies takes on more significance in the appraisal context, where the court is 

355 We note, however, that the Vice Chancellor did provide a reason for why he specifically 

selected June 21. After looking at the evidence, including various analyst reports and testimony 

by Fischel and McBean, which set the unaffected trading price date as June 21, 2016, the Vice 

Chancellor noted that he was “likewise persuaded that the June date is the appropriate date upon 

which to set SolarCity’s unaffected stock price.” Id. at *43 n.504. 

356 See DFC, 172 A.3d at 388. In DFC, this Court stated that: 

[T]he Court of Chancery must exercise its considerable discretion while also 

explaining, with reference to the economic facts before it and corporate finance 

principles, why it is according a certain weight to a certain indicator of value. In 

some cases, it may be that a single valuation metric is the most reliable evidence of 

fair value and that giving weight to another factor will do nothing but distort that 

best estimate . . . . What is necessary in any particular case though is for the Court 

of Chancery to explain its weighting in a manner that is grounded in the record 

before it.

Id.
99

required to derive a single numerical estimate of fair value.357 In entire fairness cases, the 

court’s analysis — although no less rigorous — is less aimed at deriving a specific fair 

value amount than at a range of values, where the price is deemed to be fair. “A court 

could conclude that a price fell within a range of fairness and would not support fiduciary 

liability, yet still find that the point calculation demanded by the appraisal statute yields an 

award in excess of the merger price.”358 As we said in Cinerama II, “[t]he standard of 

entire fairness is also not in the nature of a litmus that ‘lend[s] itself to bright line precision 

or rigid doctrine.’”359 “Rather, it is a standard by which the Court of Chancery must 

carefully analyze the factual circumstances, apply a disciplined balancing test to its 

findings, and articulate the bases upon which it decides the ultimate question of entire 

fairness.”

360

 

Notwithstanding that the analysis, as well as the court’s function, in appraisal cases 

is different,361 it is helpful to the reviewing court for the trial court to provide a general 

sense of how it weighed the valuation methodologies and fair price evidence. In the 

absence of this information, Appellants speculate that the trial court solely relied on the 

June 21 stock price. Although this argument is refuted, in our view, by the opinion itself, 

the litigants and our Court would have been greatly aided by a more fulsome discussion of 

357 Pursuant to 8 Del. C. § 262, the Court of Chancery assesses the company’s fair value as of “the 

effective date of the merger[.]” 8 Del. C. § 262(h).

358 In re Trados, 73 A.3d at 78.

359 663 A.2d at 1179 (quoting Nixon, 626 A.2d at 1381). 

360 Id. at 1179.

361 See infra note 257.
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how the trial court weighed the valuation evidence.

Although this is a buy-side alleged overpayment case and not an appraisal case, 

Verition Partners Master Fund Ltd. v. Aruba Networks, Inc.,

362 a statutory appraisal case, 

highlights the other problematic aspect of reliance on the June 21 price, namely the fact 

that it did not take account of the depth of the liquidity issues.

363

 The trial court in Aruba 

had looked to market price as a measure of the fair value of the corporation, but it relied 

upon an outdated, unaffected market price that did not factor in certain material, nonpublic 

information. There, Hewlett-Packard Company (“HP”) approached Aruba Networks, Inc. 

(“Aruba”) about a possible combination. Negotiations between the two ensued and, 

eventually, HP submitted a bid, which Aruba accepted. The problem, however, was that 

HP knew about Aruba’s strong quarterly results long before those results were disclosed to 

the market. But the Aruba trial court failed to factor that into its analysis of Aruba’s fair 

value, instead holding that Aruba’s thirty-day unaffected market price represented Aruba’s 

fair value. 

We reversed and explained that our decisions in Dell and DFC did not “compel” 

any reliance on market price as the sole indicator of fair value. The issue in Aruba was 

that HP had access to nonpublic information that the market did not factor in, thus giving 

HP an advantage. As we explained: 

Under the semi-strong form of the efficient capital markets hypothesis, the 

unaffected market price is not assumed to factor in nonpublic information. 

In this case, however, HP had signed a confidentiality agreement, done 

362 210 A.3d 128 (Del. 2019).

363 Musk does not cite Aruba in his papers before this Court. 
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exclusive due diligence, gotten access to material nonpublic information, 

and had a much sharper incentive to engage in price discovery than an 

ordinary trader because it was seeking to acquire all shares.364

We reversed because the Court of Chancery in Aruba placed sole reliance on the unaffected 

market price, but that “unaffected market price was a measurement from three to four 

months prior to the valuation date, a time period during which it is possible for new, 

material information relevant to a company’s future earnings to emerge.”365

Our discussion in Aruba should have cautioned against reliance on a stock price that 

did not account for material, nonpublic information, especially where the trial court has 

expressly found that certain information had not been factored into that stock price. 

Although Aruba reveals the flaw in that aspect of the trial court’s analysis, it does not 

undermine the trial court’s overall fair price finding for several reasons. 

First, the other evidence — which the trial court found to be credible and persuasive 

— amply supports the court’s finding that the price was fair. Musk presented an array of 

valuation and fair price evidence, and the trial court found that he “presented the most 

persuasive evidence regarding SolarCity’s value and the fairness of the price Tesla paid to 

acquire it[,]”

366 including Evercore’s fairness opinion and its supporting analyses. As the 

trial court stated, “Evercore’s fairness opinion is just one of the many pieces of evidence 

that justify the price paid in the Acquisition.”367 And as the court found, “there [was] no 

364 Aruba, 210 A.3d at 140 (emphases added).

365 Id. at 139 (emphasis added). We observed, for example, that HP had material, nonpublic 

information that “could not have been baked into the public trading price.” Id. at 139.

366 Trial Op., 2022 WL 1237185, at *40.

367 Id. at *21 n.276.
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reason to doubt Evercore in this case.”368 Although Appellants argue that Fischel was 

Musk’s lead financial expert and that Musk, on appeal, is “switching horses” by relying

more on Evercore, the Vice Chancellor carefully evaluated all of the evidence and accepted 

some of it, and rejected other aspects of it. There can be no doubt that Evercore, as Tesla’s 

financial advisor for the Acquisition, played a key role in both the overall Acquisition 

process and at trial. 

“When faced with differing methodologies or opinions the [trial] court is entitled to 

draw its own conclusions from the evidence.”369 Further, “[s]o long as the court’s ultimate 

determination of value is based on the application of recognized valuation standards, its 

acceptance of one expert’s opinion, to the exclusion of another, will not be disturbed.”370 

Here, the court relied on Evercore’s fairness opinion analyses and portions of Fischel’s 

analyses, and rejected Quintero’s analysis altogether. It expressly rejected the claim that 

Evercore’s opinion “was unreliable”371 and found that “the Acquisition price fell within or 

below each of the seven stock price ranges Evercore presented to the Tesla Board (plus 

two illustrative reference ranges).”372

In addition to Evercore’s DCF and SOTP analyses, which are based upon 

recognized valuation standards, SolarCity’s current and future cash flows, the substantial 

368 Id. at *46.

369 Lynch II, 669 A.2d at 87.

370 Id. at 87–88.

371 Trial Op., 2022 WL 1237185, at *21 n.276 (internal quotation marks and citation omitted).

372 Id. at *21.
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synergies flowing to Tesla from the Acquisition, the other aspects of market evidence, 

including the stockholder vote, and the evidence of SolarCity’s solvency, including the 

KPMG analysis and related retained value analyses, also support the trial court’s finding 

of fair price.373 

And with the rejection of Appellants’ lone insolvency valuation theory, there was 

no credible countervailing evidence.374 The Court of Chancery, after examining all of the 

expert testimony and fair price evidence, found that the fair price case was not even 

close.375 Thus, even without the June 21 price, there is ample support in the record to 

support the fairness of the price. 

VI. UNITARY FAIRNESS ANALYSIS

Finally, having gone through the fair dealing and fair price analyses of the entire 

fairness test, we address whether, under the unitary application of the test, Musk proved 

entire fairness. In Weinberger, this Court stated that “the test for fairness is not a bifurcated 

one as between fair dealing and price. All aspects of the issue must be examined as a whole 

since the question is one of entire fairness.”376 Since then, we have recognized that the 

373 See id. at *40.

374 See supra Section V.B.1. See also infra note 293.

375 See Trial Op., 2022 WL 1237185, at *48 (“I have no credible basis in the evidence to conclude 

that a ‘fairer price’ was available, and therefore, no basis to conclude that the price paid was not 

entirely fair. Indeed, the price was, in my view, not ‘near the low end of a range of fairness,’ but 

‘entirely’ fair in the truest sense of the word.”) (emphasis in original) (internal citations omitted).

376 457 A.2d at 711. See also Lynch II, 669 A.2d at 84 (“An important teaching of Weinberger, 

however, is that the test is not bifurcated or compartmentalized but one requiring an examination 

of all aspects of the transaction to gain a sense of whether the deal in its entirety is fair.”); Encite

LLC v. Soni, 2011 WL 5920896, at *20 (Del. Ch. Nov. 28, 2011) (“Although fair dealing and fair 
104

entire fairness test is a “unitary standard.”377 The Court of Chancery has succinctly 

summarized why the unitary determination of the test is so important: “[a] strong record 

of fair dealing can influence the fair price inquiry, reinforcing the unitary nature of the 

entire fairness test. The converse is equally true: process can infect price.”378

Although the Vice Chancellor concluded that the Acquisition, on a unitary basis, 

was entirely fair, he did not set forth that analysis in a separate section. We are, 

nevertheless, satisfied that the court evaluated the effect the process flaws had on the 

overall fairness of the process and the Acquisition. For example, the court concluded that: 

With the Tesla Board’s deal process front of mind, and after careful 

consideration, for the reasons just explained, [Musk’s] compelling “evidence 

on price fairness was ultimately persuasive,” such that I can conclude the 

Acquisition was entirely fair.379

Although some of this analysis is in lengthy footnotes — like the one quoted above — it is 

there. For example, the Court of Chancery recognized that “[i]n instances where there are 

process infirmities, the Court is obliged to study fair price even more carefully.”

380

 At the 

beginning of his analysis, the Vice Chancellor stated: 

I explain my finding that [Musk] has proven the Acquisition was entirely fair 

and, therefore, he did not breach his fiduciary duties. The evidence adduced 

at trial proved the Acquisition process, like most worldly things, had both 

flaws and redeeming qualities. The linchpin of this case, though, is that 

price concern separate lines of inquiry, the determination of entire fairness is not a bifurcated 

analysis.”).

377 Tremont, 694 A.2d at 432. See also Basho Techs., 2018 WL 3326693, at *40 (addressing the 

unitary determination of fairness); In re Dole Food, 2015 WL 5052214, at *37–38 (same); In re 

Trados, 73 A.3d at 76 (same).

378 Reis, 28 A.3d at 467 (emphasis added).

379 Trial Op., 2022 WL 1237185, at *48 n.555 (quoting In re Trados, 73 A.3d at 66).

380 Id. at *48.
105

[Musk] proved that the price Tesla paid for SolarCity was fair—and a 

patently fair price ultimately carries the day.381

There can be no dispute that the trial court weighed both fair dealing and fair price and 

found that Musk proved his case. The record demonstrates that the negotiations were 

conducted at arm’s-length, in good faith, with the advice of independent financial and legal 

advisors, led by an indisputably independent director, and, thus, constituted a fair process 

that led to a fair price.382 But the trial court’s opinion could have been aided by separately 

and expressly setting forth its process and price conclusions and by identifying its unitary 

determination of entire fairness in a separate section at the end.

In sum, although, as we have highlighted, there was an error in the trial court’s fair 

price analysis, and we have suggested how the presentation of its findings could have been 

more helpful, there is no reversible error.383 We are convinced that the record supports the 

conclusion that the Acquisition was entirely fair. The trial court’s opinion is replete with 

factual findings and credibility determinations, and those determinations have not been 

challenged and decidedly weigh in favor of Musk. Neither the Vice Chancellor nor this 

Court applauds the process here as pitch perfect. But it does not have to be. The question 

381 Id. at *27.

382 See Cinerama I, 663 A.2d at 1144 (despite a flawed process, the transaction was fair where “the 

board was insufficiently informed to make a judgment worthy of presumptive deference, 

nevertheless considering the whole course of events, including the process that was followed, the 

price that was achieved and the honest motivation of the board to achieve the most financially 

beneficial transaction available”).

383 See Cinerama II, 663 A.2d at 1179 (“A finding of perfection is not a sine qua non in an entire 

fairness analysis” because “perfection is not possible, or expected as a condition precedent to a 

judicial determination of entire fairness.”) (internal quotation marks and citation omitted).
106

is whether the Acquisition was entirely fair. We agree with the Vice Chancellor that it was.

VII. CONCLUSION

For the reasons set forth above, we AFFIRM the Court of Chancery’s opinion.