COURT OF CHANCERY 

OF THE

SAM GLASSCOCK III 

VICE CHANCELLOR

STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE

34 THE CIRCLE

GEORGETOWN, DELAWARE 19947

Date Submitted: October 8, 2015 

Date Decided: October 8, 2015 

Derrick B. Farrell, Esquire 

James R. Banko, Esquire 

Faruqi & Faruqi, LLP 

20 Montchanin Road, Suite 145 

Wilmington, DE 19807 

Rudolf Koch, Esquire 

Christopher H. Lyons, Esquire 

Elizabeth A. DeFelice, Esquire 

Richards, Layton & Finger, P.A. 

One Rodney Square 

920 North King Street 

Wilmington, DE 19801 

Kevin R. Shannon, Esquire 

Jaclyn Levy, Esquire 

Potter Anderson & Corroon LLP 

1313 N. Market Street 

Hercules Plaza, 6th Floor 

Wilmington, DE 19899 

Re: Nguyen v. Barrett, Civil Action No. 11511-VCG 

Dear Counsel: 

This matter came before me today on the Plaintiff’s request for preliminary 

injunctive relief, seeking to enjoin the closing of a tender offer pending disclosure 

of certain financial information to the Plaintiff, and to a purported class of 

stockholders of Millennial Media, Inc. After argument, and in light of the briefing, 

I denied the requested injunction. The Plaintiff immediately made this oral Motion 

for an Emergency Certification of Interlocutory Appeal (the “Emergency Motion”). 
2 

The Defendants noted their opposition to the motion. For the reasons that follow, 

pursuant to Supreme Court Rule 42, certification is denied. 

The action filed by Plaintiff An Nguyen challenges an all-cash tender offer 

(the “Tender Offer”) by Mars Acquisition Sub, Inc. (“Merger Sub”)—a wholly 

owned subsidiary of AOL Inc. (“AOL”)—to purchase all of the outstanding stock of 

Millennial Media, Inc. (“Millennial” or the “Company”), upon the completion of 

which Merger Sub will merge with and into the Company, with the Company 

continuing as the surviving corporation and as a wholly owned subsidiary of AOL. 

On September 18, 2015, Millennial filed a Schedule 14D-9 (the “Proxy” or 

“Recommendation Statement”) in connection with the Tender Offer, which is due to 

close on October 16, 2015. 

Plaintiff’s Amended Complaint, filed September 24, 2015, alleges that (1) the 

merger consideration and the sales process were fundamentally unfair to 

Millennial’s stockholders; (2) the merger agreement included unreasonable deal 

protection provisions; and (3) the Proxy was materially incomplete and misleading, 

in that it fails to adequately disclose material information related to the Tender Offer, 

including the process leading up to the consummation of the Tender Offer; the 

financial analyses conducted by the Board’s financial advisor, LUMA Securities 

LLC (“LUMA”), in support of its fairness opinion; and the Company’s financial 

projections. 
3 

The number of disclosure violations alleged is extraordinary: the Amended 

Complaint identifies several specific areas where the Proxy is allegedly materially 

incomplete and misleading, listing what Plaintiff believes to be the missing 

disclosures. A full recitation of those missing disclosures follows. 

In the “Background to the Merger” section, the Plaintiff alleges that the Proxy 

fails to disclose: (a) “[w]hether the implied per share value ranges LUMA calculated 

in connection with the various financial analyses it performed to determine the 

fairness of AOL’s $2.10 per share offer were the same as the implied per share value 

ranges it calculated in connection with AOL’s $1.75 per share offer, and if not, the 

value ranges LUMA calculated in connection with AOL’s $2.10 per share offer (see 

Recommendation Statement at 18)”; (b) “[w]hy the strategic committee determined 

that AOL’s initial proposal of $2.00 per share was ‘not in the best interest of the 

Company’s stockholders,’” which Plaintiff alleges is “material given that the Board 

ultimately agreed to accept the significantly lower Merger Consideration of $1.75 

per share (see Recommendation Statement at 15)”; (c) “[a]n explanation concerning 

why Company A and Company C were informed that the ‘Company’s strategic 

process was nearing conclusion’ sometime between June 2 and June 15, when the 

Company had not even received an offer it deemed actionable from AOL at that 

point in time (Recommendation Statement at 15)”; (d) “[a] fair summary of the 

‘possibility of interest from any other parties’ as discussed by the strategic 
4 

committee on June 8, 2015 (Recommendation Statement at 16),” which the Plaintiff 

alleges is “material to stockholders to determine whether the Board’s decision to 

ultimately finalize a deal with AOL for significantly less consideration than it 

initially offered was reasonable and in their best interests”; (e) “[a] fair summary of 

the discussion led by Company management on August 26 concerning ‘the reasons 

stated by AOL for the reduction in the per share purchase price,’” which the Plaintiff 

alleges is “material for stockholders to determine whether AOL’s purported reasons 

for lowering its offer by $0.40 per share were actually supported by AOL’s due 

diligence results and the Company’s recent financial performance 

(Recommendation Statement at 21)”; and (f) “[t]he identity of the seven other 

Company employees with whom AOL entered into Offer Letters (Recommendation 

Statement at 19),” which the Plaintiff alleges is “material for stockholders to 

determine whether the sale and negotiation process was improperly influenced by 

conflicts of interest.” 

Additionally, the Plaintiff alleges that the Proxy, “fails to provide any 

information concerning the number of outstanding shares beneficially owned by 

Millennial’s directors and executive officers as of the date the Merger Agreement 

was signed, and the aggregate cash consideration they will receive for such shares,” 

arguing that “[s]uch information is material for Millennial’s stockholders to 

determine whether the sale and negotiation process was improperly influenced by 
5 

the Board’s desire to quickly cash out their otherwise illiquid shares in the 

Company.” 

With respect to LUMA’s Selected Companies Analysis, found in the Proxy at 

pages 29–31, the Plaintiff alleges that the Proxy fails to disclose: (a) “[t]he specific 

criteria utilized to select the 14 companies that were used for the analysis,” which 

the Plaintiff alleges is “material given the significant differences in the multiples that 

were calculated for each of the three categories of companies (i.e. Advertising 

Technology – Managed Media, Advertising Technology-Platform, and Digital 

Media/Interactive Marketing)”; (b) “[t]he LTM Revenue and CY 2015 Revenue 

multiples observed for each of the companies utilized for the analysis,” which the 

Plaintiff alleges is “material for stockholders to determine whether the multiple 

ranges selected by LUMA were reasonable and appropriate”; and (c) “[t]he basis for 

LUMA’s decision to utilize the lowest multiple ranges associated with the 

‘Advertising Technology-Managed Media’ companies, when much higher multiples 

were observed for the two other categories of companies, including the Digital 

Media/Interactive Marketing group, of which AOL was included,” arguing that 

“[s]uch information is material given that LUMA’s decision to utilize the lowest 

range of trading multiples resulted in much lower implied per share value ranges.” 

With respect to LUMA’s Selected Transactions Analysis, found in the Proxy 

at pages 31–32, the Plaintiff alleges that the Proxy fails to disclose: (a) “[t]he specific 
6 

criteria utilized to select the 6 transactions that were used for the analysis,” which 

the Plaintiff alleges is “material given the significant differences in the multiples that 

were calculated for each of the transactions”; and (b) “[t]he enterprise value to 

current year revenue multiple calculated for each of the transactions utilized in this 

analysis, and the mean and median of the multiples observed,” which the Plaintiff 

alleges are “material to stockholders because such information provides a necessary 

guidance point for stockholders to determine the most appropriate multiple to utilize 

for purposes of calculating an implied per share value range.” 

With respect to LUMA’s Illustrative Discounted Cash Flow Analyses, found 

in the Proxy at pages 32–33, the Plaintiff alleges that the Proxy fails to disclose: (a) 

“the illustrative terminal values calculated for purposes of the analysis”; (b) “the 

basis for LUMA’s decision to use an end-of-year discounting methodology, rather 

than the nearly universally used mid-period discounting convention”; (c) “the 

present value of Millennial’s net operating loss carry-forwards, which was a benefit 

that was excluded from the analysis”; and (d) “quantification of the assumptions 

underlying LUMA’s weighted average cost of capital calculation.” 

With respect to LUMA’s Premiums Paid Analysis, found in the Proxy at page 

33, the Plaintiff alleges that the Proxy fails to disclose: (a) “[t]he specific acquisitions 

that were utilized for purposes of the analysis,” which the Plaintiff alleges is 

“material to stockholders because without such information they cannot determine 
7 

whether the acquisitions selected were actually comparable and appropriate for 

purposes of the analysis”; and (b) “[t]he low, high, mean and median premiums paid 

for the entire group of acquisitions that were reviewed,” which the Plaintiff alleges 

is “material to stockholders because such information is necessary for them to 

determine whether the ranges LUMA selected were appropriate.” 

The Plaintiff alleges further that the Proxy “fails to disclose the amount of 

LUMA’s $3.6 million fee that is contingent upon the completion of the Proposed 

Transaction, which is material for stockholders to determine whether LUMA’s 

fairness opinion was improperly influenced by its desire to ensure that the Proposed 

Transaction is consummated.” 

With respect to Millennial’s financial projections, found in the Proxy at pages 

34–35, the Plaintiff alleges that the Proxy “fails to disclose the following 

information,” which the Plaintiff argues “are particularly material given that two of 

the cases of projections resulted in a DCF illustrative price per share of $0.00”: (a) 

“[w]hy AOL was not provided with the ‘High Scenario’ forecast (Recommendation 

Statement at 34),” which the Plaintiff alleges is “material given that the High 

Scenario forecast presented the most favorable picture of the Company’s future 

financial performance and therefore supported a higher valuation for the Company”; 

(b) “[w]hy the Mid Scenario Adjusted EBITDA figures provided to AOL were 

different from the figures in the Millennial Projections (Recommendation Statement 
8 

at 35)”; (c) “[t]he standalone unlevered, after-tax free cash flows that the Company 

was forecasted to generate from 2015-2019 for each of the three forecasts that were 

prepared (i.e., High Scenario, Mid Scenario, and Low Scenario),” which the Plaintiff 

argues are material “because they are being asked to exchange their ownership stake 

in the Company and forego the Company’s future cash flows in exchange for allcash consideration today”; (d) “[s]tock-based compensation projections”; (e) “[n]et 

operating loss balances and utilization”; and (f) “[a]mortization expense.” 

With respect to the Cash and Debt Overview of the Millennial Projections, 

found in the Proxy at pages 35–37, the Plaintiff alleges that the Proxy “fails to 

disclose why the Mid Scenario and Low Scenario Net Cash figures provided to AOL 

were different from the figures in the Millennial Projections (Recommendation 

Statement at 36).” 

Finally, the Plaintiff alleges that, with respect to the table of reconciliation of 

Adjusted EBITDA to GAAP operating income, found in the Proxy at page 36, the 

Proxy “fails to provide any detail concerning how the reconciling adjustments were 

made, which is material given that two of the cases of projections resulted in a DCF 

illustrative price per share of $0.00.” 

By the time this preliminary injunction request was submitted, these alleged 

disclosure allegations were abandoned, and are therefore waived, with a single 

exception, advanced in the alternative. The Plaintiff notes that management 
9 

provided inputs that LUMA, the financial advisor, used to derive unlevered, aftertax free cash flows and a discounted cash flow (DCF) valuation, and that the 

Company disclosed that fact in the Proxy, but that not all projections and inputs 

themselves were provided in the Proxy. The Plaintiff contends that the disclosures 

are misleading, because they imply that management itself (rather than LUMA) 

produced the projected unlevered, after-tax free cash flows, or alternatively, that all 

management projections and inputs relied on by LUMA must be disclosed as a 

matter of law. 

DISCUSSION 

The Tender Offer is to close on October 16. Given the press of time, I issued 

a bench ruling directly following oral argument. With respect to the argument that 

the 14D-9 was materially misleading,1

 I found that a fair reading of the Proxy 

disclosed accurately that management did not prepare forecasts of unlevered, aftertax free cash flows, but did provide revenue projections and other inputs from which 

LUMA derived unlevered, after-tax free cash flows and a DCF valuation. Therefore, 

I found it unlikely that the Plaintiff could prevail on the merits on this ground. 

With respect to the argument that all inputs provided by management on 

which the financial advisor relied in its DCF valuation must, as a matter of law, be 

 

1

 The Plaintiff argued that an implication that management had projected unlevered, after-tax free 

cash flows could give stockholders an unwarranted confidence in those projections, citing Dias v. 

Purches, 2012 WL 4503174 (Del. Ch. Oct. 1, 2012). 
10 

disclosed to stockholders, I found such a per se rule inconsistent with our case law. 

Further, I found that the Plaintiff had failed to demonstrate under the facts here that 

the Proxy was materially incomplete or misleading. My understanding of the 

Plaintiff’s request for certification of an interlocutory appeal is that it is based solely 

on the contention that a per se rule exists, or should exist, that all management inputs 

relied on by the advisor in crafting a DCF must be disclosed. 

Supreme Court Rule 42 controls interlocutory appeals. Earlier this year, the 

rule was amended to emphasize the exceptional nature of a grant of interlocutory 

review. The ground stated orally in the Emergency Motion is consistent with an 

application under Rule 41 (b) (ii) or (iii), made relevant here under Rule 42(b)(i), 

that my bench decision represents a conflict in the decisional law or involves an 

unsettled question of law. Under Rule 42(b), I must determine whether my bench 

decision determined a substantial issue, establishes a legal right, and meets one of 

the grounds stated above. 

I find that the bench decision determined a substantial issue and established a 

legal right. The Defendants are, as a result of that decision, free to proceed with the 

Tender Offer without disclosing information that the Plaintiff contends is required 

by law. Without review, the Plaintiff will be forced to decide whether to tender 

without the information it seeks, although he will retain the right—assuming what 

he describes as inadequate disclosures prove to have been materially misleading, 
11 

causing him to improvidently tender—to seek damages under a quasi-appraisal 

metric. However, I do not find our case law to be undeveloped or conflicted, and 

therefore I cannot certify interlocutory appeal. Here, the Company did not prepare 

projected unlevered, after-tax free cash flows, and, accordingly, did not provide such 

projections to its financial advisor. It did provide projections of earnings, non-cash 

stock based compensation, and change in net working capital. While these precise 

inputs were not disclosed in the proxy, the Company did disclose projected net 

revenues, gross profits, and adjusted EBITDA. 

The investment advisor, as disclosed in the Proxy, took the management 

forecasts, adjusted them for amortization of intangible assets which it obtained from 

the Company’s form 10-K, made a decision to net out depreciation and amortization 

against capital expenditure, and thereby derived unlevered, after-tax free cash flows, 

using a formula explicitly set forth in the Proxy. Our case law provides that, where 

the bankers derive unlevered, after-tax free cash flows rather than relying on 

management projections, the inputs on which they rely are not per se subject to 

disclosure. As this Court has previously noted, “a disclosure that does not include 

all financial data needed to make an independent determination of fair value is not 

per se misleading or omitting a material fact. The fact that the financial advisors 
12 

may have considered certain non-disclosed information does not alter this analysis.”2 

Therefore, the Plaintiff’s reliance on grounds that the case law is conflicted or 

undeveloped is misplaced. I do not understand the Plaintiff to contend for purposes 

of interlocutory appeal that, even in the absence of a per se disclosure rule, he has 

demonstrated that the information he seeks is material under the specific facts of this 

case, but even if he does, my determination to the contrary is based on my 

interpretation of the facts submitted in connection with the PI request, and does not 

turn on conflicted or unsettled case law.3

For the foregoing reasons, the Plaintiff’s Emergency Motion for Certification 

of Interlocutory Appeal is denied. An appropriate order is attached. 

 Sincerely, 

/s/ Sam Glasscock III 

Sam Glasscock III 

 

 

2

In re Checkfree Corp. S’holders Litig., 2007 WL 3262188, at *2 (Del. Ch., Oct. 18, 2007) 

(internal citations omitted). 

3

Id. (noting that a stockholder seeking disclosures must explain why “receiving information in 

addition to the basic financial data already disclosed” is material to his decision) (internal quotation 

omitted). 
13 

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE 

AN NGUYEN, Individually and On : 

Behalf of All Other Similarly Situated, : 

 : 

 Plaintiff, : C.A. No. 11511-VCG 

 : 

v. : 

 : 

MICHAEL G. BARRETT, THOMAS : 

R. EVANS, ROBERT P. GOODMAN, : 

PATRICK KERINS, ROSS B. : 

LEVINSOHN, WENDA HARRIS : 

MILLARD, JAMES A. THOLEN, AOL : 

INC., and MARS ACQUISITION SUB, : 

INC. : 

 Defendants. : 

ORDER DENYING LEAVE TO APPEAL 

FROM INTERLOCUTORY ORDER 

 AND NOW, TO WIT, this 8th day of October, 2015, the Plaintiff having made 

application under Rule 42 of the Supreme Court for an order certifying an appeal from the 

interlocutory order of this Court, dated October 8, 2015; and the Court having found that such 

order decides a substantial issue of material importance but that the criteria of Supreme Court 

42(b)(iii) do not apply, 

 IT IS ORDERED that certification to the Supreme Court of the State of Delaware for 

disposition in accordance with Rule 42 of that Court, is DENIED. 

 /s/ Sam Glasscock III 

 Vice Chancellor