IN THE SUPREME COURT OF THE STATE OF DELAWARE

IN RE GGP, INC. STOCKHOLDER 

LITIGATION

§

§

§ No. 202, 2021 

§

§ Court Below–Court of Chancery

§ of the State of Delaware

§ 

§ C.A. No. 2018-0267

Submitted: March 9, 2022

 Decided: July 19, 2022

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

MONTGOMERY-REEVES, Justices, constituting the Court en banc.

Upon appeal from the Court of Chancery. AFFIRMED IN PART, REVERSED

IN PART, AND REMANDED.

Michael Hanrahan, Esquire (argued), Ronald A. Brown, Jr., Esquire, Stephen D. 

Dargitz, Esquire, J. Clayton Athey, Esquire, Marcus E. Montejo, Esquire, Samuel L. 

Closic, Esquire, PRICKETT JONES & ELLIOTT, P.A., Wilmington, Delaware; 

Carl L. Stine, Esquire, Adam J. Blander, Esquire, Antoinette Adesanya, Esquire, 

WOLF POPPER LLP, New York, New York; Brian D. Long, Esquire, LONG LAW, 

LLC, Wilmington, Delaware; Frank P. DiPrima, Esquire, LAW OFFICE OF 

FRANK DIPRIMA, P.A., Morristown, New Jersey, for Plaintiffs-Below, 

Appellants.

Kevin G. Abrams, Esquire, John M. Seaman, Esquire, Matthew L. Miller, Esquire, 

ABRAMS & BAYLISS LLP, Wilmington, Delaware; John A. Neuwirth, Esquire 

(argued), Evert J. Christensen, Jr., Esquire, Seth Goodchild, Esquire, Matthew S. 

Connors, Esquire, Nicole E. Prunetti, Esquire, WEIL, GOTSHAL & MANGES 

LLP, New York, New York, for Defendant-Bellow, Appellee Brookfield Property 

Partners, L.P.

Peter J. Walsh, Jr., Esquire, Berton W. Ashman, Jr., Esquire, Jaclyn C. Levy, 

Esquire, POTTER ANDERSON & CORROON LLP, Wilmington, Delaware; Peter 

E. Kazanoff, Esquire, Michael J. Garvey, Esquire, Sara A. Ricciardi, Esquire, 

SIMPSON THACHER & BARTLETT LLP, New York, New York, for Defendants-
2

Below, Appellees Mary Lou Fiala, Janice R. Fukakusa, John K. Haley, and Christina 

M. Lofgren. 

Raymond J. Dicamillo, Esquire, Susan M. Hannigan, Esquire, RICHARDS, 

LAYTON & FINGER, Wilmington, Delaware; Brian T. Frawley, Esquire, Y. 

Carson Zhou, Esquire, SULLIVAN & CROMWELL LLP, New York, New York, 

for Defendant-Below, Appellee Sandeep Mathrani.

David J. Teklits, Esquire, Thomas P. Will, Esquire, MORRIS, NICHOLS, ARSHT 

& TUNNELL LLP, Wilmington, Delaware, for Defendants-Below, Appellees 

Richard B. Clark, J. Bruce Flatt, and Brian W. Kingston.
3

TRAYNOR, Justice, for the Majority: 

In the negotiations leading up to a merger in which Brookfield Property 

Partners, L.P. and its affiliates acquired GGP, Inc., Brookfield evinced its concern 

over the number of GGP stockholders who might seek appraisal under 8 Del. C.

§ 262. Brookfield sought to allay this concern by including in the merger agreement 

an appraisal-rights closing condition that would allow it to terminate the transaction 

if a specified number of GGP shares demanded appraisal. But the special committee 

of GGP directors charged with negotiating the terms of the merger agreement held 

firm in opposition to this condition, and Brookfield relented. The condition was 

nixed.

The plaintiffs in this case, former GGP stockholders, allege that Brookfield 

and the directors of GGP decided to come at this problem from another angle. 

According to the stockholders, GGP’s directors, urged on by Brookfield, structured 

the merger so that, as a practical matter, the GGP stockholders’ appraisal rights were 

eviscerated. The plaintiffs say that Brookfield and the GGP directors accomplished 

their objective by dividing the consideration Brookfield would pay for GGP shares 

into a sizeable pre-closing dividend followed by a relatively small residual payment, 

the latter of which the merger proxy defined as the “per share merger consideration.” 

GGP’s directors then told their stockholders that they were “entitled to exercise their 

appraisal rights solely in connection with the merger,” which occurred after the 
4

declaration of the dividend, and that the appraised fair value of GGP—a company 

being sold for $23.50-per-share—“may be greater than, the same as or less than” the 

“per share merger consideration,” valued at $0.312. 

The GGP stockholders claim that, by divorcing the appraisal remedy from the 

large pre-closing dividend and linking it to the meager “per share merger 

consideration,” Brookfield and the GGP directors led them to believe that a fair value 

determination in an appraisal proceeding would be limited to the value of postdividend GGP. This description of appraisal rights, coupled with other descriptions 

of how the transaction was to be effected, led the stockholders, or so they have 

alleged, to believe that their appraisal rights had either been eliminated or so reduced 

as to be meaningless. And by agreeing to do this, they say, the GGP directors, with 

the aid of Brookfield, breached their fiduciary duties.

The stockholders filed suit in the Court of Chancery seeking quasi-appraisal 

damages, and the defendants—the GGP directors and Brookfield—moved to 

dismiss, contending that the stockholders’ complaint failed to state a claim upon 

which relief could be granted. The Court of Chancery concluded that, because it 

could consider the pre-closing dividend as a “relevant factor” under the appraisal 

statute, the defendants’ structuring of the merger did not deny the stockholders their 

right to seek appraisal.1 The court, moreover, determined that, although the 

1

In re GGP, Inc. S’holder Litig., 2021 WL 2102326 (May 25, 2021).
5

defendants’ appraisal disclosures “could have been more clearly drafted,”2they were 

sufficient. The court therefore found that the plaintiffs’ complaint failed to state a 

claim.

We agree with the Court of Chancery—though for different reasons—that, 

whether or not they may have intended to, the defendants did not, by paying a large 

portion of the merger consideration by way of a pre-closing dividend, structure the 

merger in a manner that effectively and unlawfully eliminated appraisal rights. We 

disagree, however, with the court’s conclusion that the merger proxy’s disclosures 

regarding appraisal were sufficient. 

Although it is undisputed that the GGP directors notified stockholders that 

appraisal rights were available and complied with Section 262’s notice requirements 

by including in the notice a copy of the statute, the manner in which the merger 

proxy described the merger and the stockholders’ attendant appraisal rights was, at 

best, materially misleading. In our view, the disclosures, having described the 

merger and appraisal rights in a confusing manner, did not provide the stockholders 

the information they needed to decide whether to dissent and demand appraisal. 

And, as will be more fully developed below, it is reasonably conceivable to us that 

GGP’s directors, aided and abetted by Brookfield, consciously crafted the 

transaction and the related disclosures in such a way as to deter GGP’s stockholders 

2

Id. at *33. 
6

from exercising their appraisal rights. Consequently, we have concluded that the 

Court of Chancery erred when it dismissed the plaintiffs’ disclosure claim against 

the GGP directors and the stockholders’ aiding-and-abetting claim against 

Brookfield. 

I

A

GGP (or “the Company”) was a real estate company and one of the largest 

owners and operators of shopping malls in the United States.3 The Plaintiffs in this 

case are former GGP stockholders Randy Kosinski, Arthur Susman, and Robert 

Lowinger. The Defendants are Brookfield Property Partners (“Brookfield” or 

“BPY”) as well as the members of GGP’s Board of Directors and the Special 

Committee (the “Director Defendants”) that approved the sale of GGP to Brookfield 

and disseminated the Definitive Proxy Statement (the “Proxy”).4 

3 The facts are drawn from the well-pleaded allegations in the Plaintiffs’ Third Amended 

Complaint as well as from documents integral to the Complaint or incorporated in it by reference, 

including the June 26, 2018 definitive proxy statement disseminated by GGP. We also draw on 

the Court of Chancery’s 2021 opinion in this case and its review of the pertinent facts as pleaded. 

In re GGP, Inc. S’holder Litig., 2021 WL 2102326 (Del. Ch. May 25, 2021); see also Kosinski v. 

GGP, Inc., 214 A.3d 944 (Del. Ch. 2019) (awarding Kosinski access to GGP’s books and records 

under 8 Del. C. § 220). 

4 The operative complaint in this case names the following GGP directors as defendants: Richard 

B. Clark, Mary Lou Fiala, J. Bruce Flatt, Janice R. Fukakusa, John K. Haley, Daniel B. Hurwitz, 

Brian K. Kingston, Christina M. Lofgren, and Sandeep Mathrani. Compl. ¶¶ 27–38, App. to 

Answering Br. at B26–31. Clark, Flatt, Kingston, and Mathrani were GGP board members during 

the relevant period, and Fiala, Fukakusa, Haley, Hurwitz, and Lofgren served on the Special 

Committee. Id. Mathrani was also GGP’s CEO. Id. 
7

Before it was sold to Brookfield, GGP’s properties included the Christiana 

Mall in Newark, Delaware, and other luxury malls throughout the country. GGP 

was organized as a tax-advantaged real estate investment trust (“REIT”) that was 

publicly traded on the New York Stock Exchange. After the consummation of the 

sale at issue in this case (the “Transaction”), GGP was reconstituted and renamed 

Brookfield Property REIT Inc. (“BPR”).5 BPR is a publicly traded U.S.-registered 

REIT and is designed to mirror the economics of a BPY unit.6 

Before the Transaction, GGP had counted Brookfield as a shareholder since 

at least 2010, when Brookfield made a multi-billion-dollar equity investment in the 

Company and helped it to emerge from bankruptcy. In exchange, Brookfield 

received the right to appoint three directors to the nine-member GGP Board. When 

merger negotiations began in 2017, Brookfield owned about 35 percent of GGP’s 

voting stock.7 

On May 1, 2017, GGP was trading at $23.07 per-share. On an investor 

conference call that day, GGP CEO Sandeep Mathrani shared his view that “there is 

a wide discount between public and private markets. The sum of the parts is far 

greater than GGP’s current stock price.”8 Mathrani added that “we are reviewing all 

5 Compl. ¶ 206(f), App. to Answering Br. at B116. 

6

Id.

7

Id. ¶ 136, App. to Answering Br. at B78. 

8

Id. ¶ 71, App. to Answering Br. at B42–43 (quoted emphasis removed). 
8

strategic alternatives to bridge the gap” and “the disconnect has gotten so wide [that] 

it is up to us to demonstrate to the market that there’s a real estate value at stake

here.”9 In June 2017, Mathrani argued to the GGP Board that “[t]he Company is 

trading at a deep discount to its private market valuation”

10 and explained that “the 

current share price of $22.00 represents an approximately 20% discount to the mean 

[net asset value] per share estimate of Wall Street research analysts[.]”11 Brookfield, 

at this time merely a major stockholder in GGP, appeared to share in Mathrani’s 

optimism. On a November 2, 2017 investor call, Brookfield CFO Bryan Davis 

pegged GGP’s net asset value at “about $30 per share.”12 

Nine days later, on November 11, Brookfield made an unsolicited offer to buy 

the rest of GGP it did not own, about 65 percent of the company (the “2017 Offer”). 

Under the 2017 Offer, each GGP share would be exchanged for, subject to proration,

either (a) $23.00 in cash or (b) 0.9656 limited partnership units in the Bermudaregistered BPY.

13

 The implied total offer value of the 2017 Offer was $13.8 

billion.14 On November 12, the GGP Board established a five-member Special 

Committee to negotiate with Brookfield.15 After three weeks of internal discussions, 

9

Id. ¶ 71, 74, App to Answering Br. at B43. 

10 Id. ¶ 76, App. to Answering Br. at B44 (quoted emphasis removed). 

11 Id. 

12 Id. ¶ 78, App to Answering Br. at B46. 

13 Id. ¶ 137, App. to Answering Br. at B78.

14 Proxy at 68, App. to Opening Br. at A96. 

15 Compl. ¶¶ 144–45, App. to Answering Br. at B83–85. 
9

the Special Committee rejected the 2017 Offer, in part because of concern that many 

GGP stockholders would be restricted from, or otherwise not interested in, owning 

units of BPY, a Bermuda-registered partnership that was not organized as a REIT.16 

During the next three months, the Special Committee negotiated for GGP 

shareholders to have the option to receive equity in a United States-registered 

REIT.17 Brookfield agreed to this in February 2018—it eventually offered GGP 

stockholders equity in BPR, a newly formed U.S. REIT designed to mirror the 

economics of BPY—but the parties continued to negotiate other issues.18 According 

to the Proxy, the Special Committee credited concerns from GGP management 

during this period that trends in the real estate market were growing less favorable. 

Interested in either making progress with Brookfield or cutting off 

negotiations entirely, the Special Committee countered on February 24 at $24.00-

per-share, a one dollar increase from Brookfield’s previous offer. The Special 

Committee then requested Brookfield’s “best and final” offer. Brookfield quickly 

responded with its final top-line offer (the “February 25 Offer”). According to the 

Proxy:

The final proposal provided for consideration per share of 

GGP common stock, at the election of the unaffiliated 

16 Proxy at 63, App. to Opening Br. at A91; see Compl. ¶ 199, App. to Answering Br. at B113. 

17 Proxy at 63–68, App. to Opening Br. at A91–96. 

18 Id. The February 24 Offer included the option to receive, subject to proration, one share of class 

A stock in BRP REIT, “a newly created REIT that was expected to be listed on the NASDAQ 

upon closing[.]” Compl. ¶ 199, App. to Answering Br. at B113. 
10

GGP common stockholders and subject to proration, of up 

to $23.50 in cash, subject to a maximum aggregate amount 

of cash to be paid of $9.25 billion, with the remainder of 

the consideration to consist of BPY units (or shares of 

class A stock) at an exchange ratio of 1:1.19

The February 25 Offer carried an implied value of $14.5 billion, up slightly from the 

$13.8 billion 2017 Offer.20

The Special Committee met with its advisers the next day and instructed them 

to begin negotiating definitive transaction documents in line with the February 25

offer. The Special Committee circulated a draft merger agreement on February 27.

21

 

Counsel for Brookfield responded with various proposed changes and, on March 7, 

a new draft agreement. The new draft featured a proposed structure with various 

steps—including “special dividends”—that were to occur over three days and 

culminate in the merger. It also included an “appraisal rights closing condition.”22 

Generally speaking, an appraisal-rights closing condition allows the purchaser 

to terminate the transaction if a specified number of shares demands appraisal.23 

Although the Proxy does not disclose the contours of Brookfield’s demand or the 

19 Id. at 70, App. to Opening Br. at A98. 

20 Id. 

21 Id. at 71, App. to Opening Br. at A99. 

22 Proxy at 72, App. to Opening Br. at A100. 

23 See, e.g., In re Books-A-Million, Inc. S’holders Litig., 2016 WL 5874974, at *5 (Del. Ch. Oct. 

10, 2016), aff’d, 164 A.3d 56 (Del. 2017); see also Charles Korsmo & Minor Myers, Reforming 

Modern Appraisal Litigation, 41 Del. J. Corp. L. 279, 327–28 (2017) (“[A]n acquirer that is 

worried about potential appraisal liability can quite easily address that liability directly by putting 

a closing condition in the merger agreement that allows the buyer to walk away in the event more 

than, say, 10% of the shares demand appraisal.”). 
11

threshold at which the appraisal-rights closing condition would have been triggered, 

it does disclose that the Special Committee actively fought the inclusion of such a 

condition. On March 10—three days after receiving Brookfield’s latest draft 

agreement—the Special Committee requested “the deletion of the proposed 

appraisal rights closing condition[.]”

24

 Undeterred, Brookfield on March 13 sent 

back a draft agreement proposing that “the closing would be subject to the previously 

proposed appraisal rights closing condition[.]”25 In response, the Special Committee 

met to discuss five specified open issues, one of which was “the proposed appraisal 

rights closing condition[.]”26 The Special Committee refused to budge on this point 

and, on March 19, “sent a revised draft of the merger agreement . . . , which did not 

reflect any material concessions on the material open issues.”27 

According to the Proxy, after the appraisal-rights closing condition failed to 

stick, the parties hammered out a small number of other open items. Negotiators 

cleared these issues during the week of March 19, and on March 26, the Special 

Committee met to consider the fairness of Brookfield’s final proposal (the “Final 

Offer”), which offered stockholders $23.50 in cash or one unit of either BPY or the 

new BRP REIT, subject to proration, and did not contain an appraisal-rights closing 

24 Proxy at 73, App. to Opening Br. at A101. 

25 Id. at 74, App. to Opening Br. at A102. 

26 Id.

27 Proxy at 76, App. to Opening Br. at A104; Compl. ¶ 304, App. to Answering Br. at B163. 
12

condition.

28

 At this meeting, the Special Committee’s financial adviser, Goldman 

Sachs, opined that 

the aggregate amount of the pre-closing dividend in the 

form of cash and shares of class A stock (or, at the election 

of GGP common stockholders, BPY units) and merger 

consideration to be paid to the GGP common stockholders 

(other than BPY and its affiliates) pursuant to the merger 

agreement was fair from a financial point of view to such 

holders.29

The Proxy does not describe any substantive negotiations between the Special 

Committee and Brookfield about the pre-closing dividend. Instead, the 

“Background of the Transactions” section of the Proxy notes that Brookfield’s 2017 

Offer proposed “consideration per share of . . . $23.00,”30 while the Final Offer was 

for “consideration per share of . . . up to $23.50 in cash[.]”31

Shortly after Goldman’s presentation, and still on March 26, the Special 

Committee determined that Brookfield’s offer was fair and formally recommended 

that the GGP Board support it.32 Immediately following the Special Committee’s 

28 Compl. ¶¶ 166, 304, App. to Answering Br. at B97, B163; GGP common stockholders received 

“a combination of cash, representing 61% of the deal consideration, and either [a BPY unit or a 

BRP unit], representing the other 39%.” Compl. ¶ 167, App. to Answering Br. at B97. During the 

week of March 19, the parties heavily negotiated the right of GGP shareholders to exchange shares 

in BRP REIT for shares in BPY if they so desired after the close of the merger. These negotiations 

are not directly relevant to this appeal. See Proxy at 75–78, App. to Answering Br. at A103–106. 

29 Id. at 78, App. to Opening Br. at A106. 

30 Id. at 60, App. to Opening Br. at A88. 

31 Id. at 70, App. to Opening Br. at A98. Both the 2017 Offer and the Final Offer proposed that 

GGP stockholders could also elect to receive equity compensation, subject to mandatory proration. 

Additionally, the Proxy notes that the final “blended offer price” was slightly lower than $23.50 

after all required adjustments were made. Id. This difference is not relevant to our analysis. 

32 Id. at 79, App. to Opening Br. at A107. 
13

meeting and recommendation, GGP’s Audit Committee and the GGP Board 

approved the Final Offer.

33

 GGP and Brookfield executed the merger agreement on 

March 26, 2018. 

B

The Transaction required approval by GGP’s stockholders. Accordingly, 

Brookfield and GGP worked together to prepare the Proxy, which they filed on June 

27, 2018.

34 The Proxy is 344 pages—not including the introductory letter, selected 

definitions, or the various exhibits—and is a deeply challenging read. It explained 

that, upon receipt of the required shareholder approvals, Brookfield would acquire 

GGP through a multi-step process headlined by a large pre-closing dividend (the 

“Pre-Closing Dividend”).

35

 The Pre-Closing Dividend would be funded by 

Brookfield36 and become payable to all eligible stockholders after GGP adopted 

various charter amendments (the “Charter Amendments”), which facilitated the 

Transaction by, among other things, allowing GGP to issue new classes of equity.

37

33 Id. 

34 Compl. ¶ 3, App. to Answering Br. at B10; GGP, 2021 WL 2102326, at *2. 

35 Proxy at 56, App. to Opening Br. at A84. “Under the terms of the merger agreement, BPY will 

acquire GGP through a series of transactions including (i) the Brookfield affiliate exchange; (ii) 

the pre-closing dividend; (iii) the charter amendments; (iv) the bylaws amendments; (v) the 

partnership agreement amendment and restatement; (vi) the pre-closing transactions as BPY may 

request, including recapitalization or financing transactions; and (vii) the merger.” Id. 

36 Proxy at iii, App. to Opening Br. at A19 (“‘aggregate cash dividend amount’ refers to the amount 

designated by BPY to GGP that constitutes the aggregate amount of cash that GGP will pay as the 

pre-closing dividend[.]”); see also Opening Br. at 19–20.

37 Compl. ¶ 206(b), App. to Answering Br. at B115; Proxy at 56, App. to Opening Br. at A84. 
14

The Pre-Closing Dividend was to be followed, the next day, by the closing of the 

Transaction, which would trigger the right to the “per share merger consideration” 

(the “Per-Share Merger Consideration”).

38

 According to the Merger Agreement, 

which was attached to the Proxy as Exhibit A, the Pre-Closing Dividend was an 

automatic payment, while the Per-Share Merger Consideration would be paid only 

upon surrender of certificates of share ownership to a payment agent.39

The Court of Chancery summarized the mechanics of the Transaction: 

[s]tructurally, the deal consideration would be paid in two 

parts: (1) a pre-closing dividend of cash and shares, 

amounting to about 98.5% of the deal consideration (the 

“Pre-Closing Dividend”), and (2) $0.312 per share in cash 

at closing, representing the balance of the deal 

38 App. to Opening Br. at A399–40; Ch. Dkt. No. 118, Ex. 17 at 2 [hereinafter “Aug. 24, 2018 

BPR Form 8-K at _”] (reporting that the Transaction closed at 8:00 am on August 28, 2018, and 

that the Pre-Closing Dividend “became payable on August 27, 2018[.]” The form is dated August 

24 because that was the date of the earliest event reported.); accord Ch. Dkt. No. 118, Ex. 8 at 1 

(Brookfield press release announcing that “[i]t is expected that the payment date for the pre-closing 

dividend will be August 27, 2018, and that the closing of the transaction will occur on August 28, 

2018, subject to customary closing conditions.”). 

39 Id. at A408. (“[2](c) Payment Procedures. Promptly following the Pre-Closing Dividend 

Date . . . the Company or the Surviving Corporation . . . shall cause the Payment Agent to make 

payment to each holder of Company Shares that is entitled to receive the Pre-Closing Dividend. . . . 

Promptly following the Merger Effective Time . . . Parent and the Surviving Corporation shall 

cause the Payment Agent to mail to each holder of record . . . a certificate or certificates (the 

“Certificates”) which immediately prior to the Merger Effective Time represented outstanding 

Company Shares . . . whose shares were converted into the right to receive the Merger 

Consideration . . . . Upon surrender of Certificates for cancellation to the Payment Agent . . . the 

holders of such Certificates shall be entitled to receive in exchange therefor an amount in cash 

equal to the product obtained by multiplying (x) the aggregate number of Company Shares 

represented by such Certificates . . . by (y) the Per Share Merger Consideration[.]”); see also 

Answering Br. at 15 (“Delaware law required GGP to pay the Pre-Closing Dividend to any GGP 

stockholders who demanded appraisal. Indeed, it is black-letter law that directors may not 

discriminate among stockholders of the same class or series in the payment of a dividend[.]”) 

(internal citations and quotation marks omitted). 
15

consideration, capped at $200 million [the Per-Share 

Merger Consideration].

40

These exact figures were not ascertainable from the Proxy. Instead, the Proxy used 

161 words to define Per-Share Merger Consideration41 and noted that the final 

amount of that payment would be determined after the effective time of the merger.42 

That said, stockholders who strung together the various defined terms and followed 

the Proxy’s dense descriptions would have learned that the deal price was $23.50-

per-share, that the Per-Share Merger Consideration would be tiny, and that the PreClosing Dividend would make up the lion’s share of the consideration delivered in 

the merger—including more than $9 billion of the $9.25 billion in cash on offer.

43

In two hypotheticals included to illustrate the mechanics of the transaction, the Proxy 

40 GGP, 2021 WL 2102326, at *1; Compl. ¶ 4, App. to Answering Br. at B11. 

41 Proxy at vi, App. to Opening Br. at A22. “‘per share merger consideration” refers to an amount 

of cash equal to the quotient of (i) $9,250,000,000 less (a) the aggregate cash payment required to 

be made pursuant to the GGPOP partnership agreement to holders of common units of GGPOP as 

a result of the Transactions at any time following the Brookfield affiliate exchange through and 

including the effective time of the merger, less (b) the aggregate cash payment required to be made 

pursuant to the GGPOP partnership agreement, to holders of the class of units designated under 

the GGPOP partnership agreement as “LTIP units,” as a result of the Transactions at any time 

following the Brookfield affiliate exchange through and including the effective time of the merger, 

less (c) the aggregate cash consideration to be paid with respect to shares of GGP restricted stock 

as a result of the Transactions through and including the effective time of the merger and less (d) 

the aggregate cash dividend amount, divided by (ii) the merger share number[.]” Id. 

42 Proxy at 7–8, App. to Opening Br. at A35–6; Compl. ¶ 166, App. to Answering Br. at B97. 

43 By this, we mean that the Pre-Closing Dividend would constitute most—but not all—of the 

consideration delivered in the Transaction. We recognize, however, that in Aesop’s fable “The 

Lion’s Share,” from which the idiom is derived, the king of the beasts, having gone a-hunting with 

a fox, a jackal, and a wolf, appropriated the entire spoil of the hunt, much to the chagrin of his 

fellows. 
16

assumed that the Per-Share Merger Consideration would be $0.20 and the PreClosing Dividend would be $23.30.44

 

This distinction between the two types of consideration was central to the 

entire Proxy. While, in some places, the Proxy discussed the various steps of the 

sale collectively as “the Transactions,” it defined the Per-Share Merger 

Consideration and Pre-Closing Dividend as completely separate from each other.45 

Keeping with this distinction, the Proxy defined “merger consideration” as “the per 

share merger consideration multiplied by the merger share number,” i.e., not 

including the Pre-Closing Dividend.46 Likewise, the Proxy said that the “merger”—

which it defined as “the merger of Goldfinch [the acquisition vehicle] with and into 

GGP, with GGP surviving the merger”47—would occur after the declaration of the 

Pre-Closing Dividend and the execution of the Charter Amendments.

48

 

44 Proxy at 7, App. to Opening Br. at A35. 

45 Id. at vi, App. to Opening Br. at A22. “‘pre-closing dividend’ refers to the special dividend 

declared by GGP, following receipt of the requisite stockholder approval at the special meeting, 

payable to the unaffiliated GGP common stockholders (not including holders of GGP restricted 

stock, but including certain holders of GGP options who are deemed stockholders), as of the record 

date of the pre-closing dividend, which is expected to be July 27, 2018, consisting of either cash 

or class A stock, at the election of such GGP common stockholders (with deemed stockholders 

being deemed to have elected cash) and subject to proration, with a payment date of the charter 

amendments closing[.]” Id. 

46 Id.

47 Id.; id. at 56, App. to Opening Br. at A84 (“At the effective time of the merger, Goldfinch will 

merge with and into GGP, with GGP surviving the merger.”). 

48 Id. at 56, App. to Opening Br. at A84. The Merger Agreement, attached to the Proxy as Exhibit 

A, explained that the Merger Closing Date would be “the first (1st) Business Day following the 

Charter Closing Date.” App to Opening Br. at A399–40. The Charter Closing Date was also the 

payment date of the Pre-Closing Dividend. Id. The Complaint alleges that these steps, along with 
17

The distinction between types of consideration was also prominent in the 

Proxy’s discussion of appraisal rights, which is central to this appeal. In a section 

entitled “Appraisal Rights in the Merger,” the Proxy explained that:

If the Transactions are completed, GGP common 

stockholders who comply exactly with the applicable 

requirements and procedures of Section 262 of the DGCL 

will be entitled to demand appraisal of their GGP common 

stock and receive in lieu of the per share merger 

consideration a cash payment equal to the “fair value” of 

their GGP common stock, as determined by the Court of 

Chancery, in accordance with Section 262 of the DGCL, 

plus interest, if any, on the amount determined to be the 

fair value, subject to the provisions of Section 262 of the 

DGCL. Such appraised value may be greater than, the 

same as or less than the per share merger consideration.49

This opinion refers to the above-quoted text, together with the entire “Appraisal 

Rights in the Merger” section appearing at pages 335–39 of the Proxy, as the 

“Appraisal Rights Notice.” 

Again, the Per-Share Merger Consideration—ultimately valued at 31 cents—

was a tiny portion of the overall deal price. It would become payable immediately 

following the completion of the sale process’s final step, which the Proxy referred 

to as the “merger.”50 This was all distinct from the Pre-Closing Dividend, which 

the other elements of the Transaction, occurred “virtually simultaneously between Monday, 

August 27, 2018, after securities markets closed, and August 28, 2018, before markets opened[.]” 

Compl. ¶ 206, App. to Answering Br. at B115. 

49 Proxy at 335, App. to Opening Br. at A384.

50 Id. at 56, App. to Opening Br. at A363.
18

was worth about 98.5 percent of the consideration and would become payable the 

day before the closing.

51

 

The Appraisal Rights Notice—and its guidance that the fair value of each 

share of GGP, a multi-billion-dollar company being sold for $23.50-per-share, “may 

be greater than, the same as or less than” 31 cents—was not a scrivener’s error or a 

one off. Elsewhere, the Proxy reiterated to stockholders that they were “entitled to 

exercise appraisal rights solely in connection with the merger.”52 The Proxy’s 

introductory letter said the same thing.53 And an election form, which was

distributed after the stockholder vote had succeeded and the appraisal deadline had 

passed, directed stockholders to review the Proxy and stated that “[a]ppraisal is only 

available with respect to the Merger Consideration.”54 Each of these notices was 

consistent with the manner in which the Proxy and its exhibits described the closing 

process, which was that the Pre-Closing Dividend would become payable before the 

51 Id.; see App. to Opening Br. at A399–40. 

52 Proxy at 15, App. to Opening Br. at A43. 

53 App. to Opening Br. at A13 (“As discussed in the attached joint proxy statement/prospectus, 

GGP common stockholders are entitled to appraisal rights solely in connection with the merger.”). 

54 Ch. Dkt. 127, Ex. C at 6; see GGP, 2021 WL 2102326, at *32. We agree with the Court of 

Chancery’s observation that the election form “could not have misled any stockholder into 

foregoing appraisal because it was disseminated after the stockholder vote when the time to seek 

appraisal had expired.” Id. (emphasis in original). Even so, the election form presents an 

instructive example of how the Company viewed—and described—the Transaction. GGP 

concedes that “the Election Form . . . was consistent with the Proxy.” Answering Br. at 31. 
19

“merger,” with the separately defined Per-Share Merger Consideration becoming

payable upon closing.

55

Notably, in its detailed reasons for recommending the approval of the Final 

Offer, the Special Committee appeared to take a different view of appraisal rights 

than the rest of the Proxy. The Special Committee told stockholders that counting 

in favor of approval was

the availability of appraisal rights under Delaware law 

. . . which provides those eligible GGP common 

stockholders with an opportunity to have the Court of 

Chancery determine the fair value of their shares of GGP 

common stock, which may be more than, less than, or the 

same as the consideration to be received in the 

Transactions[.]

56

Thus, while the Appraisal Rights Notice told stockholders that GGP’s fair value 

would be “greater than, the same as or less than” 31 cents, the Special Committee’s 

reasons for approving the Final Offer included that the fair value would be “greater 

than, the same as or less than the consideration to be received in the Transactions,” 

which was $23.50. 

55 See Proxy at 56, App. to Opening Br. at 84. 

56 Proxy at 86, A114 (emphasis added). 
20

C

1

Ninety-four percent of stockholders unaffiliated with Brookfield approved the 

Transaction on July 26, 2018.

57

 On August 27, the Pre-Closing Dividend became 

payable by GGP with Brookfield’s funds.58 On August 28, the Transaction closed, 

and the Per-Share Merger Consideration became payable.59 The Plaintiffs allege 

that GGP stockholders received both payments together in the same wire or check.60

The Plaintiffs filed their original Complaint in April 2018, shortly after the 

Transaction—then just a merger agreement subject to ratification—was 

announced.61 They filed their operative Third Amended Complaint, which this 

decision refers to as the Complaint, in May 2020.62 During the intervening period, 

Plaintiff Randy Kosinski “sought books and records under Section 220 of the 

Delaware General Corporation Law to investigate possible wrongdoing in 

connection with the merger.”63 The Court of Chancery described Kosinski as “the 

quintessential main street investor,” found that he had stated a credible basis and 

proper purpose for his investigation, and ordered GGP to produce records essential 

57 GGP, 2021 WL 2102326, at *2; Compl. ¶ 229, App. to Answering Br. at B129. 

58 Compl. ¶ 206, App. to Answering Br. at B115; Proxy at iii, App. to Opening Br. at A19; see 

also Opening Br. at 19–20. 

59 Compl. ¶ 206, App. to Answering Br. at B115; Aug. 24, 2018 BPR Form 8-K at 2. 

60 Compl, ¶ 207, App. to Answering Br. at B117–18. 

61 Ch. Dkt. No. 1. 

62 Ch. Dkt. No. 109. 

63 Kosinski, 214 A.3d at 946–47. 
21

to his inspection demand.64 GGP eventually “produced documents including Board 

and Special Committee meeting minutes and materials, director questionnaires, as 

well as emails.”65

The Plaintiffs’ Complaint draws on certain of those books and records, as well 

as the public Proxy. It alleges six causes of action. The Court of Chancery dismissed 

each count, and on appeal the Plaintiffs press only two. Count III asserts that the 

Defendants designed the large Pre-Closing Dividend to improperly eviscerate GGP 

stockholders’ appraisal rights.66 Count III also alleges that the Defendants “breached 

their fiduciary duty of loyalty by failing to provide GGP stockholders with a fair 

summary of their appraisal rights and [not] disclosing all material information 

relevant to GGP stockholders asked to vote in favor of the Buyout or pursue 

appraisal.”67 

Count VI alleges that Brookfield aided and abetted the Director Defendants’ 

fiduciary breaches because it helped design the Transaction and “co-authored, cofiled, and disseminated the misleading and deficient Proxy to GGP’s 

stockholders.”68 Count VI is relevant on appeal because the Court of Chancery 

64 Id. at 957–58. 

65 GGP, 2021 WL 2102326, at *10. 

66 Compl. ¶ 305, App. to Answering Br. at B163. 

67 Id. ¶ 303, App. to Answering Br. at B163. The Complaint also alleges that the Defendants had 

“a statutory duty to provide a fair summary of appraisal rights,” presumably referring to 8 Del. 

C. § 262(d)(1). Compl. ¶ 232, App. to Answering Br. at B130. 

68 Id. ¶ 329, App. to Answering Br. at B168. GGP, 2021 WL 2102326, at *35. 
22

found that Brookfield was not a controller and therefore did not owe fiduciary duties 

to GGP’s stockholders. That said, “it is well settled that a third party who knowingly 

participates in the breach of a fiduciary’s duty becomes liable to the beneficiaries of 

the trust relationship.”

69

Key to the Plaintiffs’ disclosure claim is their allegation that “Defendants’ 

misleading statements and omissions . . . would have dissuaded any rational 

stockholder from seeking appraisal.”70 The Plaintiffs also assert that, by telling 

stockholders that the fair value of GGP would be “greater than, the same as or less 

than” the Per-Share Merger Consideration of 31 cents, the Appraisal Rights Notice 

erroneously gave the impression that a dissenter would “only place[] a de minimis

part of GGP’s supposed pre-Buyout value at issue.”71 According to the Complaint:

Defendants’ conduct was intentional, a contrived scheme 

to dissuade Class members from exercising appraisal 

69 Malpiede v. Townson, 780 A.2d 1075, 1096 & n.75 (Del. 2001) (quoting Gilbert v. El Paso Co., 

490 A.2d 1050, 1057 (Del. 1984)); see also Jackson v. Smith, 254 U.S. 586, 589 (1921) (holding 

that those “who knowingly join a fiduciary” in an enterprise which constitutes a breach of fiduciary 

duty “become jointly and severally liable with him for such profits.”). 

70 Compl. ¶ 209, App. to Answering Br. at B118–19.

71 Id. ¶ 225–26, App. to Answering Br. at B128; see also App. to Opening Br. at A900 (“‘What 

truly occurred’ is that Defendants structured the transaction such that an economically rational 

stockholder would never opt for appraisal rights. Further, ‘what truly occurred’ is that 

stockholders were denied the right to appraisal for all but a de minimis portion of the value of their 

shares.”) (emphasis removed)); see also Manti Holdings, LLC v. Authentix Acquisition Co., Inc., 

261 A.3d 1199, 1224 (Del. 2021) (“Section 262(g) provides a de minimis exception from appraisal 

rights for stockholders of publicly-traded corporations.”); and see id. at 1250 n.94 (Valihura, J., 

dissenting) (“The Majority cites the de minimis exception from appraisal rights for stockholders 

of public-traded corporations. . . . The amendment to Section 262(g) was designed to address the 

concern that certain potential appraisal petitioners were targeting corporations and demanding 

settlements to address threatened appraisal claims, even non-meritorious claims. Some referred to 

this phenomenon as ‘appraisal arbitrage.’”). 
23

rights that BPY was actively trying to limit in negotiations 

with the Special Committee. While the Special Committee 

rejected the appraisal right condition BPY sought in the 

Buyout, Defendants were nonetheless successful in 

presenting GGP stockholders with an option no reasonable 

stockholder would accept – pursue the appraisal for only 

1.5% of the consideration put in controversy by the 

Buyout.72

As a remedy for the Defendants’ alleged breaches of the duty of loyalty, the 

Complaint requests quasi-appraisal damages.

73

 

2

After oral argument, the Court of Chancery ordered supplemental briefing on 

Count III, asking the parties to address three questions.74 First, the court inquired as 

to whether the Transaction’s structure violated Section 262 by stripping most of 

GGP’s value out via the Pre-Closing Dividend shortly before the merger.75 Second, 

it requested that the parties specify, based on the structure of the Transaction, “what 

specifically was a GGP stockholder entitled to have the Court appraise[.]”

76 Third, 

the court asked if the definitions of Per-Share Merger Consideration, Pre-Closing 

Dividend, and “merger consideration” were materially misleading. The parties 

72 Compl. ¶ 304, App. to Answering Br. at B163; see also id. ¶¶ 209–234. 

73 Id. ¶ 307, App. to Answering Br. at B164. 

74 Ch. Dkt. No. 143. 

75 Id. at 4. 

76 Id. at 4–5. 
24

submitted supplemental briefing in response to these questions on February 18, 

2021.77

In an opinion issued on May 25, 2021, the Court of Chancery found that the 

Plaintiffs had failed to state a non-exculpated claim against the Defendants. As to 

Count III, the court first determined that the Pre-Closing Dividend did not 

unlawfully deprive stockholders of their appraisal rights because, in a hypothetical 

appraisal, the Court of Chancery would have had the “flexibility” to consider the 

Pre-Closing Dividend as a “relevant factor” and adjust its fair-value determination 

accordingly.78 Second, the court determined that, although “the Proxy could have 

been more clearly drafted” and “the stockholders may have been better served had 

Defendants capitalized the defined term ‘merger consideration’ and tightened up its 

definition,” the Complaint failed to allege an actionable disclosure violation.79 

According to the court, the Proxy adequately disclosed that stockholders had the 

“right to an appraisal of their shares” and was not required to entertain hypotheticals 

presented by the Transaction’s structure.80

77 Ch. Dkt. Nos. 146–47. 

78 GGP, 2021 WL 2102326, at *31. 

79 Id. at *33. 

80 Id. at *32. 
25

II

The Plaintiffs have appealed the Court of Chancery’s dismissal of the 

Complaint.81 We review a trial court’s ruling on a motion to dismiss de novo.

82

 We

“(1) accept all well pleaded factual allegations as true, (2) accept even vague 

allegations as ‘well pleaded’ if they give the opposing party notice of the claim, (3) 

draw all reasonable inferences in favor of the non-moving party, and (4) do not 

affirm a dismissal unless the plaintiff would not be entitled to recover under any 

reasonably conceivable set of circumstances.”

83

 Naturally, our review recognizes 

that stockholder plaintiffs often have the ability under Section 220 to obtain 

corporate documents in support of their claims, as the Plaintiffs did here.84 These 

documents, and other public materials that the Plaintiffs refer to, like the Proxy, 

necessarily shape the range of “reasonably conceivable” outcomes. 

81 Sup. Ct. Dkt. No. 1. 

82 Central Mortg. Co. v. Morgan Stanley Mortg. Cap. Holdings LLC, 27 A.3d 531, 535 (Del. 2011).

83 Id. (citing Savor, Inc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002)).

84 AmerisourceBergen Corp. v. Lebanon Cnty. Employees’ Ret. Fund, 243 A.3d 417, 426 n.33 

(Del. 2020) (quoting Ca. State Teachers’ Ret. Sys. v. Alvarez, 179 A.3d 824, 839 (Del. 2018)); see 

also Lawrence A. Hamermesh & Michael L. Wachter, The Importance of Being Dismissive: The 

Efficiency Role of Pleading Stage Evaluation of Shareholder Litigation, 42 J. Corp. L. 603 (2017) 

(observing that “Delaware’s system affirmatively encourages reliance on factually specific 

pleadings as a basis for substantive evaluation of shareholder litigation at an early stage of the 

proceedings” and that “the Delaware system provides or depends on mechanisms that enable and 

encourage the plaintiff and the defendants as well to supply relevant information that meaningfully 

assists the courts in improving the fairness and utility of that substantive, pleading stage 

evaluation.”). 
26

III

The threshold question in this appeal is whether the Transaction’s use of the 

Pre-Closing Dividend to shift consideration from the purchaser, Brookfield, to 

GGP’s stockholders violated Delaware law by improperly restricting or eliminating 

appraisal rights.85 We conclude that it did not. In Part III.A, we offer a brief history 

of the appraisal remedy in Delaware as well as a description of the remedy’s 

characteristics as relevant here. In Part III.B, we hold that dividends that are 

conditioned on the consummation of a merger are treated as merger consideration 

under Delaware law, meaning that the fair value of an entity that declares a 

conditional dividend—such as the Pre-Closing Dividend—is appraised as if the 

dividend had not been declared. In Part III.C, we hold that receiving a conditional 

dividend that is merger consideration as a matter of law does not result in the 

abandonment of a stockholder’s appraisal right. This is because Section 262 does 

not prohibit the receipt of dividends payable before the effective date of the merger,

and our settled prohibition of the “acceptance” of merger consideration does not 

apply to the choiceless receipt of a mandatory payment such as the Pre-Closing 

Dividend. After explaining these conclusions about how GGP would have been 

appraised, we turn in Part IV to the Plaintiffs’ claim that GGP’s directors violated 

their fiduciary duty of disclosure. 

85 Opening Br. at 15–31. 
27

A

Before the Delaware appraisal statute, now located at 8 Del. C. § 262, was 

enacted in 1899, a consolidation or merger of corporations required unanimous 

stockholder approval.86 This effectively gave individual stockholders a veto right 

over any transaction with which they disagreed. This form of minority protection 

led to nuisance blocking, threatening stockholder democracy.87 To curb nuisance 

blocking, the Delaware General Assembly enacted statutes that “permit[ted] the 

consolidation or merger of two or more corporations without the consent of all the 

stockholders. . . .”

88

 At the same time, the General Assembly protected dissenting 

minority stockholders by creating appraisal rights.89 In an appraisal proceeding, the 

stockholder receives her pro rata share of the fair value of the appraised company—

as calculated by the Court of Chancery—instead of accepting the consideration 

offered in the approved transaction. “Accordingly, the Court of Chancery’s task in 

an appraisal proceeding is to value what has been taken from the shareholder, i.e., 

the proportionate interest in the going concern.”

90

 

86 Solera Ins. Coverage Appeals, 240 A.3d 1121, 1133 (Del. 2020) (citing Dell, Inc. v. Magnetar 

Global Event Driven Master Fund Ltd., 177 A.3d 1, 19)).

87 Schenley Indus., Inc. v. Curtis, 152 A.2d 300, 301 (Del. 1956) (“This, at times, brought about 

an intolerable situation, since one or more minority stockholders, if he or they desired to do so, 

could impede the action of all the other stockholders.”).

88 Id.

89 Id.

90 Cede & Co. v. Technicolor, Inc., 684 A.2d 289, 298 (Del. 1996) (“Technicolor IV”). 
28

Section 262 is implicated when the terms of a merger or consolidation require 

stockholders “to accept any consideration other than shares of stock in the surviving 

company, shares of stock listed on a national securities exchange [or held of record 

by more than 2,000 holders], [] cash received as payment for fractional shares,”91 or 

any combination of shares of stock and cash received for fractional shares.92 Here, 

GGP stockholders received a combination of cash, representing 61 percent of the 

consideration delivered in the Transaction, and equity in one of two entities, 

representing the remaining 39 percent.93 All parties agree that this structure 

triggered Section 262, allowing dissenting stockholders to seek a judicial appraisal 

of the fair value of their stock. 

To perfect appraisal rights, stockholders must strictly comply with the 

requirements of Section 262. Section 262(a) provides that the right to seek appraisal 

extends only to each stockholder who (1) “holds shares of stock on the date of the 

making of a demand” for appraisal, (2) “continuously holds such shares through the 

effective date of the merger,” and (3) “has neither voted in favor of the merger 

. . . nor consented thereto in writing[.]” Section 262 does not explicitly forbid 

dissenting stockholders from receiving merger consideration, but the general rule is 

91 La. Mun. Police Employees’ Ret. Sys. v. Crawford, 918 A.2d 1172, 1191 (Del. Ch. 2007) (citing 

8 Del. C. § 262).

92 8 Del. C. § 262(b).

93 Compl. ¶ 167, App. to Answering Br. at B97. 
29

that “[a]cceptance of the merger consideration is simply an abandonment of the 

appraisal right, no more and no less, at least in the usual case.”94 

When determining the fair value of a dissenting stockholder’s shares under 

Section 262, the Court of Chancery must “take into account all relevant factors,” 

which include “market value, asset value, dividends, earning prospects, the nature 

of the enterprise and any other facts which were known or which could be 

ascertained as of the date of merger and which throw any light on future prospects 

of the merged corporation[.]”

95

 The court calculates a per-share valuation by first 

“envisag[ing] the entire pre-merger company as a ‘going concern.’”96 “‘[T]he 

corporation must be viewed as an on-going enterprise, occupying a particular market 

position in the light of future prospects.”

97

 “The valuation should reflect the 

‘“operative reality” of the company as of the time of the merger,’” but it should not 

consider a minority discount or any synergies or value arising from the merger.98

94 In re PNB Holding Co. S’holders Litig., 2006 WL 2403999, at *22 (Del. Ch. Aug. 18, 2006) 

(Strine, VC). 

95 Tri-Continental Corp. v. Battye, 74 A.2d 71, 72 (Del. 1950).

96 Dell, 177 A.3d at 20.

97 Id.; see also William T. Allen & Reiner Kraakman, Commentaries and Cases on the Law of 

Business Organizations 492 (2016) (“The appraisal right is a put option—an opportunity to sell 

shares back to the firm at a price equal to their ‘fair value’ immediately prior to the transaction 

triggering the right. Thus, there are two dimensions to appraisals: (1) the definition of the 

shareholder’s claim (i.e., what it is specifically that the court is supposed to value) and (2) the 

technique for determining the value.”). 

98 Dell, 177 A.3d at 20. Section 262(h) directs the court to “determine the fair value of the shares 

exclusive of any element of value arising from the accomplishment or expectation of the merger 

or consolidation.” We have described this as a “very narrow” exclusion. Technicolor IV, 684 

A.2d at 299 (“The ‘accomplishment or expectation’ of the merger exception in Section 262 is very 
30

Section 262 also places strict compliance requirements on corporations. 

Within certain time periods outlined in the statute, corporations must notify 

stockholders of record of their right to seek appraisal and attach a copy of Section 

262 to that notice.99 Additionally, when disclosing appraisal rights to stockholders, 

corporate directors must provide all material information necessary to make an 

informed decision to either approve the merger or dissent and seek appraisal.100 If 

the directors provide notice that violates the fiduciary duty of disclosure, 

stockholders may, subject to affirmative defenses and exculpation under Section 

102(b)(7), be entitled to a “quasi-appraisal,” a term this Court coined in Weinberger 

v. UOP.

101

 

As we explained in Berger v. Pubco Corp., in a quasi-appraisal, the Court of 

Chancery determines the fair value of the corporation and, if it exceeds the deal 

price, awards the balance as damages to an opt-out class of the former corporation’s 

narrow, ‘designed to eliminate use of pro forma data and projections of a speculative variety 

relating to the completion of a merger.’ Weinberger v. UOP, Inc., 457 A.2d [701, 713 (Del. 1983).]

That narrow exclusion does not encompass known elements of value, including those which exist 

on the date of the merger because of a majority acquiror’s interim action in a two-step cash-out 

transaction.”). 

99 8 Del. C. § 262(d)(1). 

100 Skeen v. Jo-Ann Stores, Inc., 750 A.2d 1170, 1174 (Del. 2000); Nagy v. Bistricer, 770 A.2d 43, 

59 (Del. Ch. 2000); Turner v. Bernstein, 776 A.2d 530, 541-52 (Del. Ch. 2000) (Turner I); see 

also In re Orchard Enters., Inc. S’Holder Litig., 88 A.3d 1, 47 (Del. Ch. 2014) (Laster, VC) (“The 

fiduciaries who serve the entity owe fiduciary duties; the entity that is served does not.”) (citing 

A.W. Fin. Servs., S.A. v. Empire Resources, Inc., 981 A.2d 1114, 1127 n.36 (Del. 2009)). 

101 Weinberger v. UOP, 457 A.2d 701, 714–15 (Del. 1983) (granting plaintiff stockholder a “quasiappraisal remedy” after buyer-affiliated directors of target failed to disclose internal valuation of 

target that was significantly higher than the approved deal price). 
31

stockholders.102 Berger concerned a “short-form” merger under 8 Del. C. § 253, but 

decisions issued before and after Berger support the application of the quasiappraisal remedy to other mergers as well.103

 Indeed, “[o]ne cause of action where 

the Delaware Supreme Court and the Court of Chancery consistently have held that 

quasi-appraisal damages are available is when a fiduciary breaches its duty of 

disclosure in connection with a transaction that requires a stockholder vote.”104 The 

Plaintiffs in this case allege that GGP’s directors violated their disclosure duties and 

seek quasi-appraisal as a remedy. GGP argues that no fiduciary violation occurred

but does not contest the availability of quasi-appraisal as a remedy. 

To summarize, Delaware law requires the Court of Chancery, when 

conducting an appraisal, to determine the value of the corporation at the time of the 

102 Berger v. Pubco Corp., 976 A.2d 132, 138–45 (Del. 2009). 

103 Orchard Enters, 88 A.3d at 47 (“As these decisions show, quasi-appraisal damages are one 

possible remedy for breaches of the duty of disclosure, and the availability of the quasi-appraisal 

damages measure is not limited to short-form mergers.”). In Orchard Enterprises, Vice 

Chancellor Laster exhaustively surveyed the development of quasi-appraisal, which he dated back 

to our decision in Weinberger. Id. at 42–43. He explained that the term “‘[q]uasi-appraisal’ is 

simply a short-hand description of a measure of damages” that, like other types of compensatory 

damages, is “measured by the harm inflicted on the plaintiff at the time of the wrong.” Id. at 42. 

See also Weinberger, 457 A.2d at 714–15; Turner v. Bernstein, 768 A.2d 24, 28–9 (Del. 2000) 

(Strine, VC) (Tuner II) (holding that quasi-appraisal was available after third-party merger where 

directors “breached their fiduciary duties by failing to disclose all the material facts that [] 

stockholders needed to determine whether to accept the merger consideration or seek 

appraisal[.]”); and see PNB Holding Co., 2006 WL 2403999, at *32 (ordering a “quasi-appraisal 

award” of damages to estate that suffered from former executor’s “failure as a fiduciary” that 

caused estate to fail to perfect appraisal rights.). 

104 Orchard Enters., 88 A.3d at 42. “The premise for the award is that without the disclosure of 

false or misleading information, or the failure to disclose material information, stockholders could 

have voted down the transaction and retained their proportionate share of the equity in the 

corporation as a going concern. Quasi-appraisal damages serve as a monetary substitute for the 

proportionate share of the equity that the stockholders otherwise would have retained.” Id. 
32

merger as if it had not occurred and the company had continued as a going 

concern.105 Once this fair value is determined, each petitioner is entitled to his pro 

rata portion of the appraised company’s value, plus interest.106 And, although 

stockholders must comply exactly with Section 262 to secure the appraisal remedy, 

they may be entitled to a quasi-appraisal if they can show that the corporation’s 

directors violated their fiduciary duty of disclosure when they sought stockholder 

approval of the deal. 

B

Our review of Delaware appraisal law frames the question of how an appraisal 

proceeding conducted under Section 262 would consider a transaction, such as the 

one at issue here, that utilizes a large dividend to transfer consideration to 

stockholders shortly before closing. The Defendants have argued throughout this 

case that the answer is uncertain and that they left stockholders to figure out how an 

appraisal would view the Transaction GGP and Brookfield designed.107 Repeatedly 

noting that they advised GGP’s stockholders to retain lawyers to help them navigate 

105 Technicolor IV, 684 A.2d at 298; see also Paskill Corp. v. Alcoma Corp., 747 A.2d 549, 553 

(Del. 2000) (“The underlying assumption in an appraisal valuation is that the dissenting 

shareholders would be willing to maintain their investment position had the merger not 

occurred.”).

106 See 8 Del. C. § 262(h).

107 Answering Br. at 29 (“Plaintiffs’ contention that GGP should have disclosed its subjective 

views on how the Court of Chancery would treat the dividend in determining ‘fair value’ is simply 

not the law.”). 
33

the appraisal process,108 the Defendants explain that a dissenter “would have been 

free to make any argument and submit any evidence she (and her experts) wished as 

to how the court should treat the Pre-Closing Dividend.”109 The Court of Chancery 

agreed, holding that the Pre-Closing Dividend was a “relevant factor” that the 

appraising court could—or could not—consider under Section 262(h).110

The Plaintiffs argue that the Pre-Closing Dividend was “part of the Merger,” 

such that any appraisal proceeding would have measured GGP’s value before the 

payment was made.111 They observe that the Pre-Closing Dividend was detailed in 

the section of the Merger Agreement entitled “THE MERGER,” that it was 

dependent on stockholder approval of the Transaction, and that it was paid with 

Brookfield’s funds in the same check or wire as the Per-Share Merger 

Consideration.

112

 The significance of labeling the Pre-Closing Dividend as legal 

merger consideration—“part of the Merger”—is, according to the Plaintiffs, this: 

108 Id. at 3, 26–30. 

109 Id. at 16. The Defendants also acknowledged that they might well have fought to limit any 

appraisal action to valuing GGP after payment of the Pre-Closing Dividend. As Counsel for GGP 

explained: 

“You’re accepting [the Pre-Closing Dividend], to the extent that was merger 

consideration, but you’re not accepting the $0.312, and that’s the part that you’re 

forfeiting, and then you can go into court and you can say to the judge whatever 

you want, you can say ‘you should take into account both the dividend and the 

$0.312 in valuing my shares,’ [or] ‘you should only take into account the $0.312,’ 

perhaps a defendant would say. Anything could be argued in the appraisal court.” 

March 9, 2022 Oral Argument at 38:00–39:00, In re GGP, Inc. S’holder Litig. (No. 202, 2021)

https://livestream.com/accounts/5969852/events/10198573/videos/229793264.

110 GGP, 2021 WL 2102326, at *31. 

111 Opening Br. at 6, 17. 

112 Id. at 18–20; Compl, ¶ 207, App. to Answering Br. at B117–18. 
34

“[i]f the Dividend was part of the Merger, then the fair value determination would 

be based on GGP as it stood pre-Dividend but if, as the Proxy said, the Dividend was 

separate from the Merger, then fair value would be determined post-Dividend.”113 

We agree with the Plaintiffs: the Pre-Closing Dividend was, as a matter of 

Delaware law, merger consideration in the Transaction, just like the Per-Share 

Merger Consideration. The Defendants’ careful efforts to divide the deal price into 

two payments—while no doubt confusing to the stockholders who attempted to read 

the Proxy—do not change the object of the Court of Chancery’s appraisal. That is to 

say, the court would have been required to determine the fair value of GGP as an 

entity before both payments were made. 

Although the Transaction hardly exhibits a common structure, its use of a 

large conditional dividend is similar to the merger Chancellor Chandler considered 

in Louisiana Municipal Police Employees Retirement System v. Crawford.

114

 

Crawford dealt with a stock-for-stock merger of equals between Caremark and 

CVS.115 After Express Scripts made an unsolicited offer to acquire Caremark, CVS 

sweetened its offer by agreeing to a conditional dividend of $6-per-share.

116

Caremark and CVS then scheduled a stockholders’ meeting for the approval of the 

113 Reply Br. at 2; Opening Br. at 6, 22–23. 

114 Crawford, 918 A.2d at 1179.

115 Id.

116 Id. at 1182–83.
35

merger, but certain Caremark stockholders sued to enjoin the meeting because the 

disclosures did not inform stockholders of their appraisal rights.117 Caremark and 

CVS responded that the dividend had “independent legal significance preventing it 

from being recognized as merger consideration.”118 Thus, they argued, the merger 

did not trigger appraisal rights.

119

The Court of Chancery rejected that argument and determined that the 

conditional dividend was, as matter of law, merger consideration.120 The court 

elaborated that the dividend was “simply cash consideration dressed up in a nonetoo-convincing disguise.”121 The court reached this conclusion because the dividend 

was being paid to Caremark stockholders on behalf of CVS and was conditioned on 

the approval of the merger.

122 The Chancellor therefore held that payment of the 

cash dividend as part of the merger consideration triggered the stockholders’ 

appraisal rights under Section 262(b).123

The Defendants argue that Crawford is not applicable here because it held

only that conditional dividends trigger appraisal rights, not that conditional 

117 Id. at 1183–84, 1192.

118 Id. at 1191. 

119 Id.

120 Id. at 1192 (“In this case, the label ‘special dividend’ is simply cash consideration dressed up 

in a none-too-convincing disguise. When merger consideration includes partial cash and stock 

payments, shareholders are entitled to appraisal rights.”). 

121 Id.

122 Id. at 1191.

123 Id. at 1192.
36

dividends are part of the merger consideration for purposes of an appraisal action.

124

Thus, the Defendants contend that, to the extent Crawford is relevant, they satisfied 

it by disclosing in the Proxy that GGP stockholders had the right to seek appraisal 

of their shares.125 But the obvious application of Crawford’s holding is that the PreClosing Dividend is merger consideration not only for the purpose of triggering 

appraisal rights but also for the purpose of framing the scope of the appraisal 

proceeding under Section 262. Because such proceedings determine the value of the 

corporation at the time of the merger as if it had not occurred, dividends expressly 

conditioned on the merger—like all other merger consideration—must be treated as 

if they had not been paid. 

We therefore hold that the Pre-Closing Dividend was, as a matter of Delaware 

law, merger consideration in the Transaction. This is because it was conditioned on 

the Transaction’s approval and, according to the Complaint, paid with Brookfield’s 

funds in the same wire as the Per-Share Merger Consideration. Thus, a properly 

conducted appraisal of GGP would have valued the Company as if the Pre-Closing 

Dividend and Per-Share Merger Consideration had not been paid. 

124 Answering Br. at 18–19.

125 Id. at 19.
37

C

Because we have held that the Pre-Closing Dividend was merger 

consideration under Delaware law, we must now decide whether each GGP 

stockholder’s receipt of this payment effected a forfeiture of the right to seek 

appraisal. If the Transaction operated in this way, we must also determine if it was

consistent with our law.126 Writing as Vice Chancellor, former Chief Justice Strine 

explained the general rule: “Acceptance of the merger consideration is simply an 

abandonment of the appraisal right, no more and no less, at least in the usual case.”127 

But this is not the general or usual case. The Transaction designed by Brookfield 

and the Director Defendants featured the large Pre-Closing Dividend, which was 

worth 98.5 percent of the deal price and automatically became payable the day 

before closing, and the tiny Per-Share Merger Consideration, which was worth 1.5 

percent of the offer and became payable upon closing.128 In our view, receipt of the 

Pre-Closing Dividend did not effect a waiver of appraisal rights. 

We start our analysis with the text of Section 262.129 Delaware’s appraisal 

statute does not contain a specific textual prohibition against receiving consideration 

126 Opening Br. at 15–33. 

127 PNB Holding, 2006 WL 2403999, at *22. 

128 See Aug. 24, 2018 BPR Form 8-K at 2 (reporting that the Transaction closed at 8:00 am on 

August 28, 2018, and that the Pre-Closing Dividend “became payable on August 27, 2018[.]”). 

129 Noranda Aluminum Holding Co. v. XL Insur. Am., Inc., 269 A.3d 974, 977–78 (Del. 2021) 

(“When interpreting a statute, our goal is ‘to ascertain and give effect to the intent of the legislators, 

as expressed in the statute.’”) (quoting Dewey Beach Enters., Inc. v. Bd. of Adjustment of Town of 

Dewey Beach, 1 A.3d 305, 307 (Del. 2010)).
38

offered in a merger. Instead, Section 262(a) provides that appraisal is only available 

to the stockholder, otherwise eligible, who “has neither voted in favor of the 

merger . . . nor consented thereto in writing[.]”130 Receipt of the Pre-Closing 

Dividend does not offend this prohibition because it was payable to supporting and 

dissenting GGP stockholders alike the day before the Transaction closed.131

Nor does the Pre-Closing Dividend contravene Section 262(k). According to 

that subsection, dissenting stockholders may not “receive payment of dividends or 

other distributions on the stock (except dividends or other distributions payable to 

stockholders of record at a date which is prior to the effective date of the merger or 

consolidation)[.]”

132

 Thus, Section 262 creates an express exception allowing 

stockholders to receive dividends payable before the “effective date of the merger.” 

Here, that day was August 28, 2018, and the Pre-Closing Dividend became payable 

on August 27.133 

130 8 Del. C. § 262(a); see also id. § 262(d)(1) (“Within 10 days after the effective date of such 

merger or consolidation, the surviving or resulting corporation shall notify each stockholder of 

each constituent corporation who has complied with this subsection and has not voted in favor of 

or consented to the merger or consolidation of the date that the merger or consolidation has become 

effective[.]”) (emphasis added). 

131 Aug. 24, 2018 BPR Form 8-K at 2; App. to Opening Br. at A399 (“The Company shall declare 

a special dividend payable to the holders of record of Company Shares (other than to holders of 

Company Restricted Stock, but including to each holder of an In-the-Money Company Option, 

with respect to the number of Company Shares that are deemed issued in respect of such Company 

Option under Section 2.07(d)(i)) as of the end of trading on the NYSE on the Charter Closing Date, 

with a payment date of the Charter Closing Date (the “Pre-Closing Dividend”).”); see also 

Answering Br. at 15 (“Delaware law required GGP to pay the Pre-Closing Dividend to any GGP 

stockholders who demanded appraisal.”). 

132 8 Del. C. § 262(k) (emphasis added). 

133 Aug. 24, 2018 BPR Form 8-K at 2. 
39

Again, it is true that, in more traditional mergers where the deal consideration 

is not surgically bifurcated into separate payments, acceptance of that consideration 

effects a waiver of the appraisal right. We have explained as much, as has the Court 

of Chancery.134 In these more typical scenarios, taking the merger consideration 

means that the stockholder is no longer dissenting and has accepted the terms of the 

transaction. But we have also explained that “the basic principle underlying the 

appraisal statute [is] that an investor make an election either to accept the merger 

consideration or to pursue an appraisal of his shares.”135 Here, qualifying GGP 

stockholders had no choice: they all received the Pre-Closing Dividend, and the only 

election they could make was whether it came in prorated cash or stock.136 This did 

not constitute acceptance of the Transaction’s terms and, as a result, did not operate 

to waive appraisal rights. 

In sum, we have concluded that the Pre-Closing Dividend was merger 

consideration for appraisal purposes under Delaware law and that receipt of this 

134 See, e.g., Berger, 976 A.2d at 138 & n.17 (“[A] stockholder who seeks appraisal must forego 

all of the transactional consideration and essentially place his investment in limbo until the 

appraisal action is resolved.”) (quoting Turner I, 776 A.2d at 547–48); see also PNB Holding, 

2006 WL 2403999, at *22; and see Aspen Advisors LLC v. United Artists Theatre Co., 843 A.2d 

697, 712 (Del. Ch. 2004) (in a statutory appraisal, “the key trade-off inherent in that legislative 

remedy [is] the required eschewal of the merger consideration.”). 

135 Alabama By-Prod. Corp. v. Cede & Co., 657 A.2d 254, 262 (Del. 1995) (emphasis added) 

(citing Smith v. Shell Petroleum, Inc., 1990 WL 186446 (Del. Ch. Nov. 26, 1990)). 

136 See March 9, 2022 Oral Argument at 28:15–29:10, In re GGP, Inc. S’holder Litig. (No. 202, 

2021) https://livestream.com/accounts/5969852/events/10198573/videos/229793264 (COUNSEL 

FOR DEFENDANTS: “What we are telling you is that, because of the nature of this transaction, 

because there’s cash involved, you can forgo the per share merger consideration, you can’t forgo 

the dividend—you’re going to get that—and you can seek appraisal of your shares.”). 
40

payment did not violate the eligibility requirements established by Section 262 or 

our doctrine. We therefore hold that the Transaction did not improperly eviscerate 

the appraisal rights of GGP stockholders. A properly conducted appraisal would 

have allowed otherwise eligible dissenters to participate, despite their receipt of the 

Pre-Closing Dividend, and would have valued GGP as if none of the steps of the 

Transaction—including the Pre-Closing Dividend, the Charter Amendments, and 

the Per-Share Merger Consideration—had taken place. With this established, we 

turn next to the Plaintiffs’ claim that GGP’s directors violated their fiduciary duty of 

disclosure when they drafted the Appraisal Rights Notice and the rest of the Proxy. 

IV

The Complaint alleges that the Defendants made materially misleading 

disclosures regarding the GGP stockholders’ appraisal rights.137 According to the 

Plaintiffs, these flawed disclosures were part of an intentional effort to structure and 

describe the Transaction in a way that would mislead stockholders and dissuade 

them from dissenting from the Transaction and exercising their appraisal rights.138

137 Compl. ¶ 303, App. to Answering Br. at B163; Opening Br. at 31, 34–42. 

138 Compl. ¶ 17, App. to Answering Br. at B22 (“The only rational inference from the false notice 

of appraisal rights and material omissions is that Defendants intentionally and coercively presented 

appraisal as a non-rational economic choice because it applied to almost none of the value of the 

GGP shares.”); id. ¶ 217, App. to Answering Br. B124 (“Defendants intentionally excluded from 

the definition of merger consideration payments required by Section 2.03 of the Merger 

Agreement, which includes the Pre-Closing Dividend. The exclusion of the dividend from the 

definition of “merger consideration” in the Merger Agreement renders Defendants’ notice of 

appraisal rights in the Proxy contrary to Delaware law because it falsely describes the right to 

appraisal.”). 
41

This objective, the Plaintiffs assert, was consistent with Brookfield’s repeated 

demand of an appraisal-rights closing condition, which the Special Committee 

ultimately rejected.

139 Accepting, as we must, all well pleaded factual allegations in 

the Complaint as true, and drawing all reasonable inferences in the Plaintiffs’ favor, 

we conclude that the Plaintiffs have stated a claim that the Director Defendants 

violated their fiduciary duty of disclosure with Brookfield’s support. 

A

The fiduciary duty of disclosure is a sharpened application of corporate 

directors’ omnipresent duties of care and loyalty that obtains when directors seek 

stockholder action, such as the approval of a proposed merger, asset sale, or charter 

amendment.140 In these situations, directors have “a fiduciary duty to disclose fully 

and fairly all material information within the board’s control[.]”141 This specific 

disclosure duty is independent from a corporation’s statutory obligation to notify its 

stockholders of their appraisal rights under Section 262. It is also distinct from a 

139 Compl. ¶ 304, App. to Answering Br. at B163. 

140 Malone v. Brincat, 722 A.2d 5, 10 (Del. 1998); Skeen v. Jo-Ann Stores, Inc., 750 A.2d 1170, 

1172 (Del. 2000) (“The duty of disclosure is a specific formulation of those general duties that 

applies when the corporation is seeking stockholder action.”); see also Orchard Enters., 88 A.3d 

at 16–17 (summarizing duty of disclosure doctrine). 

141 Stroud v. Grace, 606 A.2d 75, 84 (Del. 1992); Appel v. Berkman, 180 A.3d 1055, 1057 (Del. 

2018) (“Precisely because Delaware law gives important effect to an informed stockholder 

decision, Delaware law also requires that the disclosures the board makes to stockholders contain 

the material facts and not describe events in a materially misleading way.”) (internal citation 

omitted) (citing 2 Stephen A. Radin, The Business Judgment Rule 1715 (6th ed. 2009)).
42

director’s fiduciary duty to avoid misleading partial disclosures.142 Of course, these 

separate obligations may overlap, especially where, as here, corporate directors seek 

stockholder ratification of a proposed transaction that triggers the statutory appraisal 

remedy. 

When a stockholder asserts a disclosure violation linked to a request for her 

vote, “the essential inquiry . . . is whether the alleged omission or misrepresentation 

is material,” and the stockholder need not prove reliance, causation, or damages.143 

Information is considered material “if there is a substantial likelihood that a 

reasonable stockholder would consider it important in deciding how to vote.”144 

Stated another way, there must be “a substantial likelihood that the disclosure of the 

omitted fact would have been viewed by the reasonable stockholder as having 

significantly altered the ‘total mix’ of information made available.”145 Notably, “the 

question is not whether the information would have changed the stockholder’s 

142 Zirn v. VLI Corp., 681 A2d 1050, 1056 (Del. 1996); see also Arnold v. Society for Sav. Bancorp, 

Inc., 650 A.2d 1270, 1280 (Del. 1994) (“[O]nce defendants traveled down the road of partial 

disclosure of the history leading up to the Merger and used the vague language described, they had 

an obligation to provide the stockholders with an accurate, full, and fair characterization of those 

historic events”). 

143 Malone, 722 A.2d at 12 (“An action for a breach of fiduciary duty arising out of disclosure 

violations in connection with a request for stockholder action does not include the elements of 

reliance, causation and actual quantifiable monetary damages.”). 

144 Louden v. Archer–Daniels–Midland Co., 700 A.2d 135, 142 (Del. 1997); In re Walt Disney Co. 

Deriv. Litig., 731 A.2d 342, 376 (Del. Ch. 1998), rev’d in part on other grounds sub nom. Brehm 

v. Eisner, 746 A.2d 244 (Del. 2000); see also Rosenblatt v. Getty Oil Co., 493 A. 2d 929 (Del. 

1985), in which this Court adopted the United States Supreme Court’s articulation of the 

materiality standard in TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976). 

145 Skeen, 750 A.2d at 1172.
43

decision to accept the merger consideration, but whether ‘the fact in question would 

have been relevant to him.’”

146

Because the duty of disclosure sounds in the fiduciary duties of both care and 

loyalty, certain violations fall within the coverage of exculpatory charter provisions

authorized by 8 Del. C. § 102(b)(7). Section 102(b)(7) allows stockholders, via a 

provision in the corporate charter, to eliminate or limit “the personal liability of a 

director to the corporation or its stockholders for monetary damages for breach of 

fiduciary duty as director[.]”147 Critically, Section 102(b)(7) provisions may not 

exculpate directors for their breaches of the duty of loyalty or “acts or omissions not 

in good faith or which involve intentional misconduct or a knowing violation of 

law[.]”148

Thus, “[a] good faith erroneous judgment as to the proper scope or content of 

required disclosure implicates the duty of care rather than the duty of loyalty” and 

may be exculpated.

149

 However, “where a complaint alleges or pleads facts 

sufficient to support the inference that the disclosure violation was made in bad faith, 

knowingly or intentionally, the alleged violation implicates the duty of loyalty” and 

146 Shell Petroleum, Inc. v. Smith, 606 A.2d 112, 115 (Del. 1992) (citing Barkan v. Amsted Indus., 

567 A.2d 1279, 1289 (Del. 1989).

147 8 Del. C. § 102(b)(7). 

148 Id. Two other categories also may not be exculpated: violations of 8 Del. C. § 174 and 

violations relating to “any transaction from which the director derived an improper personal 

benefit.” Id. 

149 Zirn, 681 A.2d at 1062. 
44

may not be exculpated.150 Here, GGP’s charter includes a provision that exculpates 

directors to the fullest extent authorized by Section 102(b)(7).151 The Plaintiffs 

allege that this does not protect the Director Defendants because they intentionally 

misled stockholders about their appraisal rights in the Proxy.152 

B 

The Plaintiffs allege in the Complaint that the Director Defendants, aided and 

abetted by Brookfield, violated their fiduciary duty of disclosure by inaccurately 

describing the entity that would be subject to appraisal.153 The Plaintiffs observe 

that the Proxy told stockholders that their appraisal rights were limited to GGP as it 

was positioned after declaring the Pre-Closing Dividend and amending its charter, 

when in fact a properly conducted appraisal would have valued the Company before 

these steps were taken.154 The Plaintiffs allege that this disclosure was “materially 

150 O’Reilly v. Transworld Healthcare, Inc., 745 A.2d 902, 915 (Del. Ch. 1999) (Steele, VC) (citing 

Zirn, 681 A.2d at 1061–62)); Arnold, 650 A.2d at 1287 (“[C]laims alleging disclosure violations 

that do not otherwise fall within any exception are protected by Section 102(b)(7) and any 

certificate of incorporation provision (such as Article XIII) adopted pursuant thereto.”). Writing 

as a Vice Chancellor in O’Reilly, former Chief Justice Steele offered a helpful explanation of the 

pleading dynamic in duty of disclosure cases, explaining that “after Malone[,] knowledge is no 

longer an element” of a duty of disclosure claim, but “knowledge that the statement is false or 

misleading would be relevant to a claim to exempt directors from liability for the breach of the 

duty of disclosure pursuant to exculpatory charter provisions authorized by 8 Del. C. § 102(b)(7).” 

O’Reilly, 745 A.2d at 920 n.34. 

151 App. to Answering Br. at B3. 

152 Compl. ¶ 304, App. to Answering Br. at B163; see also id. ¶¶ 209– 234. 

153 Id. ¶ 233, App. to Answering Br. at B130. 

154 Opening Br. at 6–7, 36–42
45

misleading and incomplete.”155 They also claim that it was intentional and that the 

Defendants hoped to dissuade stockholders from dissenting and seeking appraisal.

156

Contrariwise, the Defendants argue that the Proxy accurately disclosed “that 

GGP stockholders were entitled to seek appraisal of their shares in connection with 

the Transaction[.]”

157

 The Defendants add that, to the extent the Transaction they 

designed implicated uncertainty in our appraisal law, they were not required to 

speculate and offer legal advice about how an appraisal proceeding would operate.158 

We take up these contentions regarding the adequacy of the Director 

Defendants’ disclosures in turn. We hold that the Proxy was materially misleading 

and that the defenses offered by Brookfield and the Director Defendants are without 

merit. 

1

As previously quoted in this decision, the heart of the Appraisal Rights Notice 

in the Proxy explained that 

155 Id. at 42. 

156 Id.

157 Answering Br. at 28 (emphasis in original); see also March 9, 2022 Oral Argument at 22:30–

23:30, In re GGP, Inc. S’holder Litig. (No. 202, 2021) 

https://livestream.com/accounts/5969852/events/10198573/videos/229793264 (COUNSEL FOR 

DEFENDANTS: “[T]he GGP stockholders were entitled, pursuant to the statute and as we 

disclosed in the Proxy, [to] appraisal on their shares. That’s what they were entitled to. It was up 

the appraiser—the Vice Chancellor or Chancellor—to decide how that appraisal proceeding was 

going to work. They were entitled to appraisal of their shares. That’s exactly what the statute 

says, and that’s what the disclosure said.”). 

158 Answering Br. at 28–29. 
46

If the Transactions are completed, GGP common 

stockholders who comply exactly with the applicable 

requirements and procedures of Section 262 of the DGCL 

will be entitled to demand appraisal of their GGP common 

stock and receive in lieu of the per share merger 

consideration a cash payment equal to the “fair value” of 

their GGP common stock, as determined by the Court of 

Chancery, in accordance with Section 262 of the DGCL, 

plus interest, if any, on the amount determined to be the 

fair value, subject to the provisions of Section 262 of the 

DGCL. Such appraised value may be greater than, the 

same as or less than the per share merger 

consideration.

159

Separately, the Proxy defined the “merger” as occurring after GGP’s charter was 

amended and the Pre-Closing Dividend was declared and told the GGP stockholders 

that they were “entitled to exercise their appraisal rights solely in connection with 

the merger.”

160 The fair value available in that proceeding, stockholders were told, 

would be “greater than, the same as or less than” the “per share merger 

consideration.” This decision capitalizes Per-Share Merger Consideration for the 

reader’s convenience; the Proxy defined it in lowercase as the sliver of 

compensation, eventually set at $0.312, that would remain after GGP declared the 

massive Pre-Closing Dividend.161

These disclosures were, in our view, confusing and misleading. As discussed 

above, a properly conducted appraisal would have valued GGP before the Charter 

159 Proxy at 335, App. to Opening Br. at A384 (emphasis added).

160 Id. at 15, App. to Opening Br. at A43.

161 Id. at vi, App. to Opening Br. at A22. 
47

Amendments and the payment of the Pre-Closing Dividend and the Per-Share 

Merger Consideration. It was the fair value of this pre-Transaction entity that 

stockholders were set to part with if they consented to the Transaction, and therefore 

it was this fair value that the stockholders were entitled to in an appraisal. Indeed, 

at the second oral argument in this appeal, the Defendants acknowledged as much: 

You get an appraisal of your shares, you get your pro rata 

share in the company at the effective time of the merger, 

which the court would be free to decide was before any of 

the transaction mechanics began to happen. Before the 

pre-closing dividend was paid, and before the per-share 

merger consideration was paid. What was your pro rata

share of the Company? That’s what the statute says. You 

get appraisal on your shares, and the determination is, 

before anything happened with respect to the merger 

mechanics, what was your pro rata share of the 

company?

162

 

The italicized portion of the above argument is a correct statement of 

Delaware law. The problem for the Defendants is that it is not what they disclosed 

in the Proxy. In contrast to this belated and qualified concession, the Proxy 

repeatedly decoupled the appraisal analysis from everything but the Per-Share 

Merger Consideration. To quote again from the Appraisal Rights Notice, 

stockholders were informed that the appraised fair value of GGP—a company that 

was being sold for $23.50-per-share—would be “greater than, the same as or less 

162 See March 9, 2022 Oral Argument at 25:15–26:10, In re GGP, Inc. S’holder Litig. (No. 202, 

2021) https://livestream.com/accounts/5969852/events/10198573/videos/229793264 (emphasis 

added). 
48

than the per share merger consideration” of $0.312.163 The reason this was so, the 

Proxy explained separately, was that any appraisal would be “solely in connection 

with the merger,” which would occur after declaration of the Pre-Closing Dividend 

and the amendment of GGP’s charter to authorize the issuance of new types of 

equity.164 It is reasonably conceivable, if not reasonably certain, that a GGP 

stockholder who read the Proxy would have taken it at its word and concluded that 

appraisal rights were limited to the fair value of GGP after payment of the PreClosing Dividend. Stockholders who reached this conclusion were misled.

We recognize that the Court of Chancery did not read the Proxy’s appraisal 

disclosures as we have here. Instead, the court understood them to mean that, if 

the Preclosing Dividend plus the closing consideration 

[i.e., the per share merger consideration of $0.312] 

undervalued the dissenting stockholder’s shares. . .[,] the 

dissenting shareholder would receive an appraisal award 

that reflected the difference between what she had 

received in the Pre-Closing Dividend and the adjudicated 

value of her shares.165 

Likewise, the Special Committee, in its evaluation of the benefits of the Transaction 

as recorded in the Proxy, considered the availability of appraisal rights and told 

stockholders that the fair value of GGP’s shares “may be more than, less than, or the 

163 Proxy at 335, App. to Opening Br. at A363. 

164 Id. at 56, App. to Opening Br. at A84. 

165 GGP, 2021 WL 2102326, at *32.
49

same as the consideration to be received in the Transactions,” which included the 

Pre-Closing Dividend.166 

Would that it had been so disclosed in the Appraisal Rights Notice—but, as 

discussed, it was not. Instead, the Appraisal Rights Notice stated that a dissenting 

stockholder would receive not the difference between the fair value of the 

stockholder’s shares as appraised by the court and the already received Pre-Closing 

Dividend, but rather a cash payment “equal to the ‘fair value’” of those shares, and 

explicitly correlated that value to the $0.312 Per-Share Merger Consideration. In 

this way—and unlike the straightforward description of how an appraisal award 

would be determined that was offered by the Court of Chancery and, belatedly, by 

the Defendants at oral argument—the Proxy’s description of appraisal rights was 

misleading.

2

Information is considered material “if there is a substantial likelihood that a 

reasonable stockholder would consider it important in deciding how to vote.”167 At 

this early stage of the proceedings, we believe that it is reasonably conceivable that 

the Proxy’s failure to correctly identify which entity would be subject to appraisal 

was material to stockholders in at least two ways. First, the entity confusion created 

166 Proxy at 86, App. to Opening Br. at A114.

167 Louden, 700 A.2d at 142. 
50

by the Proxy left stockholders to ponder difficult questions about how GGP would 

be valued after declaring the Pre-Closing Dividend, which obligated the Company 

to pay out more than $9 billion in cash.168 Second, it is reasonably conceivable that 

the Proxy’s definitions of Per-Share Merger Consideration and the “merger” led 

some stockholders to believe that they could not qualify for appraisal at all due to 

the operation of Section 262(g) and its de minimis condition.169 

We begin with what should be apparent by now: the Proxy told stockholders 

that they were entitled to an appraisal only of the GGP that remained after the 

Company declared the Pre-Closing Dividend and amended its charter, but this was 

incorrect as a matter of Delaware law. Although it may be possible to envision 

statements of the law that suffer from a technical inaccuracy but are not necessarily 

material to a stockholder’s decision about how to vote, this is not one of them. We 

think it obvious that stockholders would have conceivably found it important to 

know that a properly conducted appraisal would have valued GGP before the 

declaration of the Pre-Closing Dividend and the execution of the Charter 

Amendments. Adequately informed, stockholders could have made a judgment 

about the value of the total consideration offered in the Transaction and their view 

of the fair value of GGP as a going concern. Indeed, this is the precise judgment the 

168 Opening Br. at 6–9, 34–42; Compl. ¶¶ 206, 225, App. to Answering Br. at B115, 128. 

169 Opening Br. at 25–27, 31; Compl. ¶ 226, App. to Answering Br. at B128
51

Special Committee made in recommending the Transaction.170 Instead, stockholders 

were left to guess about how an appraisal would consider the Pre-Closing Dividend 

and the Charter Amendments, and whether the fair value of GGP after these steps 

were taken—when added to the Pre-Closing Dividend—would make them whole. 

Next, it is reasonably conceivable that the Proxy’s defective description of 

appraisal rights was consequential to the stockholders’ evaluation of the eligibility 

criteria laid out in Section 262(g). That subsection provides, in pertinent part, that 

the Court of Chancery must dismiss appraisal proceedings unless the total number 

of dissenting shares is either more than one percent of the total amount of shares 

outstanding or the “value of the consideration provided in the merger . . . for such 

total number of [dissenting] shares exceeds $1 million[.]”171 

At issue here is the second of Section 262(g)’s thresholds, what some call the 

de minimis condition, which provides that dissenters must represent at least $1 

million in “consideration provided in the merger.” Even though the Proxy mirrored 

this statutory text, the Plaintiffs argue that they were misled because the Defendants 

defined Per-Share Merger Consideration to represent just $0.312 out of the total deal 

170 Proxy at 86, App. to Opening Br. at A114 (explaining that stockholders had the “opportunity 

to have the Court of Chancery determine the fair value of their shares of GGP common stock, 

which may be more than, less than, or the same as the consideration to be received in the 

Transactions[.]”). 

171 8 Del. C. § 262(g). 
52

price of $23.50.172 Thus, applying the Defendants’ own defined terms, the Plaintiffs 

maintain that stockholders were left with the impression that they needed to satisfy 

the $1 million threshold by aggregating shares worth $0.312, rather than $23.50. 

The Defendants counter this argument on three grounds. First, they claim that 

the Plaintiffs waived it by failing to advance it in the Court of Chancery. We 

disagree. In their Complaint, the Plaintiffs allege that “the misleading disclosure is 

material because no rational stockholder would dissent on the Buyout and perfect 

his appraisal rights if by doing so he only placed a de minimis part of GGP’s 

supposed pre-Buyout value at issue.”173 The Complaint also asserts that “[u]nder 

Delaware law, the Pre-Closing Dividend would be included as part of ‘the value of 

the consideration provided in the merger’ under Section 262(g).”174 Finally, in their 

briefing to the Court of Chancery, the Plaintiffs argued that “[t]he Proxy falsely 

disclosed (in buried, confusing form) stockholders’ appraisal rights by stating that 

only the [Per-Share Merger Consideration], a de minimis portion of deal 

consideration, could form the basis for recovery in any appraisal proceeding.”175

Second, and on the merits, the Defendants argue that, even if the Proxy was 

confusing or inaccurate, it is “speculative” whether stockholders were harmed 

172 Opening Br. at 27; Compl. ¶ 225–26, App. to Answering Br. at B128; see also App. to Opening 

Br. at A900.

173 Compl. ¶ 226, App. to Answering Br. at B128. 

174 Id. ¶ 218, App. to Answering Br. at B125.

175 App. to Opening Br. at A1104; see also App. to Opening Br. at A900 (“[S]tockholders were 

denied the right to appraisal for all but a de minimis portion of the value of their shares[.]”).
53

because Section 262(g) allows for the aggregation of holdings and “only 0.5% of 

GGP’s outstanding shares would be required to reach” the $1 million de minimis 

threshold. We do not agree. While it may take speculation to conclude that the 

Section 262(g) threshold was factually insurmountable, it is nevertheless reasonably 

conceivable that individual stockholders were harmed when the Proxy misled them 

about the total number of shares that had to dissent in order for appraisal to be 

available. Put differently, by dramatically overstating the number of shares that 

Section 262(g) required for appraisal to be available, the Proxy conceivably 

dissuaded stockholders from seriously considering appraisal at all.176 

Third, at oral argument, the Defendants suggested that the Proxy was not 

misleading at all because stockholders could have disregarded the defined terms and 

come to the independent conclusion that “consideration provided in the merger” 

included both the Pre-Closing Dividend and the Per-Share Merger Consideration, 

As the Defendants argued:177 

176 In their Answering Brief, the Defendants offer that “GGP received multiple appraisal demands 

in connection with the Transaction—including by clients represented by signatories to Plaintiffs’ 

Opening Brief in this appeal.” Answering Br. at 23 n.59 (emphasis in original). At this early stage 

of the case, it is not clear from the pre-discovery record how many demands were made and how 

they were disposed of—be it by settlement, Section 262(g), loss of interest, or otherwise. 

177 See March 9, 2022 Oral Argument at 39:37–41:07, In re GGP, Inc. S’holder Litig. (No. 202, 

2021) https://livestream.com/accounts/5969852/events/10198573/videos/229793264. Counsel 

also argued that “‘the value of the consideration provided in the merger,’ . . . could reasonably 

conceivably be read, and should be read, as including both the pre-closing dividend and the 

$0.312.” Whether or not such a reading is viable, at this stage of the case we “do not affirm a 

dismissal unless the plaintiff would not be entitled to recover under any reasonably conceivable 

set of circumstances.” Central Mortg., 27 A.3d at 535 (citing Savor, 812 A.2d at 896–97).
54

I think the language in 262(g) talks about, and you quoted 

it Your Honor, ‘the value of the merger consideration,’

which one could fairly assume includes both the preclosing dividend and the $0.312, and why would someone 

be dissuaded under those circumstances from seeking 

appraisal?

THE COURT: Well, because you’re telling us the merger 

consideration could include both, but the proxy defines it 

as excluding the dividend. 

As discussed at length, the Proxy persistently separated the Pre-Closing Dividend 

and the Per-Share Merger Consideration. Stockholders were told that the PreClosing Dividend would be declared before the “merger”178 and that appraisal rights 

were available “solely in connection with the merger” and the $0.312 in Per-Share 

Merger Consideration that came with it.179 Given this, stockholders could hardly 

have been expected to conclude that they could satisfy Section 262(g) by adding the 

two types of consideration together. 

We therefore hold that the Proxy’s erroneous statements about which entity 

would be appraised—the GGP before the Transaction or the GGP after the Charter 

Amendments and the payment of the Pre-Closing Dividend—were material because 

they deprived stockholders of necessary information about the fair value available 

in an appraisal proceeding and misled stockholders about the operation of Section 

262(g).

178 Proxy at 56, App. to Opening Br. at A84. 

179 Id. at 15, App. to Opening Br. at A43. 
55

3

As an overarching defense to the Plaintiffs’ duty of disclosure claim, the

Defendants argue that that their disclosure duties did not require them to explain to 

stockholders the implications of the transaction structure on their appraisal rights 

“much less speculate about how a court might decide hypothetical legal issues.”180 

Tellingly, the Defendants maintain that the “hypothetical legal issue” requiring 

speculation is how the Pre-Closing Dividend might be treated in an appraisal 

proceeding.”181 We note here that the conceded presence of a “hypothetical legal 

issue” supports our conclusion that the Proxy disclosure left stockholders in the dark 

about the true nature of their appraisal rights. It also reinforces the inference, 

mentioned previously, that the Defendants were poised to press for a narrow, postdividend valuation in the event that a sufficient number of GGP stockholders 

pursued an appraisal remedy.182

But, from a disclosure perspective, the Defendants’ approach suffers from a 

more fundamental flaw: the Appraisal Rights Notice—read with the Proxy’s defined 

terms—did offer stockholders advice about how an appraisal proceeding would 

operate. It did so by applying the definition of the residual $0.312 payment as the 

180 Answering Br. at 3.

181 Id. at 28. (“Plaintiffs’ argument that the Proxy misled GGP stockholders conflates the 

requirement to disclose the right to an appraisal of shares, which the Proxy accurately did, with a 

desire for disclosure of (or advice on) how the Pre-Closing Dividend might affect a hypothetical 

appraisal proceeding.”) (emphasis in original).

182 See note 109, supra. 
56

“per share merger consideration” and, as previously discussed, closely linking the 

court’s “fair value” determination in a hypothetical appraisal proceeding to the 

residue of GGP represented by that limited consideration. Thus, whether or not the 

Defendants were originally required to tell stockholders how the complex 

Transaction they designed would affect their appraisal rights, once the Defendants 

attempted to offer such an explanation, they were required to be correct and 

complete.183 In other words, they had to tell the stockholders that a properly 

conducted appraisal would determine the value of GGP before the payment of the 

Pre-Closing Dividend and the execution of the Charter Amendments. Because this 

did not happen, the Defendants are left to “face the consequences of a breach of 

fiduciary duty.”184 

4

GGP’s charter contains a Section 102(b)(7) exculpatory provision.185 The 

Plaintiffs argue that it does not apply here because the Director Defendants intended 

to mislead stockholders about the true nature of their appraisal rights.186 At this early 

stage of this case, we “do not affirm a dismissal unless the plaintiff would not be 

entitled to recover under any reasonably conceivable set of circumstances.”

187

 With 

183 Arnold, 65- A.2d at 1280. 

184 Disney, 731 A.2d at 376.

185 App. to Answering Br. at B3. 

186 See Compl. ¶¶ 302–307, App. to Answering Br. at B163–64; Reply Br. at 16–127. 

187 Central Mortg., 27 A.3d at 535 (citing Savor, 812 A.2d at 896–97). 
57

this standard in mind, we conclude that it is reasonably conceivable that the Director 

Defendants, aided and abetted by Brookfield, committed a violation of the fiduciary 

duty of disclosure that may not be exculpated. 

The Complaint alleges that the Director Defendants, with Brookfield’s 

support, “breached their fiduciary duty of loyalty by failing to provide GGP 

stockholders with a fair summary of their appraisal rights and [not] disclosing all 

material information relevant to GGP stockholders” and their decision whether to 

support the Transaction.188 The Plaintiffs also claim that this “conduct was 

intentional, a contrived scheme to dissuade Class members from exercising appraisal 

rights that BPY was actively trying to limit in negotiations with the Special 

Committee.”189 While we do not accept unsupported allegations as true even at the 

pleading stage—after all, stockholder plaintiffs often have the ability to draw on 

public documents and Section 220 books and records in order to fill out their 

complaints—we believe that the Plaintiffs have met their initial burden for at least 

two reasons. 

First, the Complaint observes that Brookfield demanded an appraisal-rights 

closing condition early in its negotiations with the Special Committee.190 As 

188 Compl. ¶ 303, App. to Opening Br. at B163.

189 Id. ¶ 304, App. to Answering Br. at B163; see also id. ¶¶ 209–234; see also Opening Br. at 33 

(“Brookfield’s repeated insistence on a condition permitting it to withdraw if there were significant 

appraisal demands permits an inference that substituting a structure placing 98.5% of the 

consideration in the Dividend was an alternate way of limiting appraisal demands.”). 

190 Compl. ¶ 224, 304, App. to Answering Br. at B128, 163. 
58

discussed above, an appraisal-rights closing condition allows the purchaser to 

terminate the transaction if a specified number of shares demands appraisal.191 The 

Proxy, which the Court of Chancery determined was integral to the Complaint and 

therefore incorporated by reference, supports the Complaint’s allegation.192 It 

indicates that Brookfield twice demanded an appraisal-rights closing condition and 

was rejected by the Special Committee on both occasions.193 After these rejections, 

the parties agreed to bifurcate the deal consideration into two pieces, the large PreClosing Dividend and the tiny Per-Share Merger Consideration. In our view, it is 

reasonably conceivable that the Defendants settled on this structure and the related 

Proxy disclosure as another method of limiting Brookfield’s exposure to appraisal 

demands. 

Second, and relatedly, the Defendants have not identified an alternative 

justification for the structure they chose. Although it is generally true that corporate 

directors do not have to justify each element of a proposed transaction structure when 

they communicate with stockholders, in this case the Plaintiffs have argued, with 

citation to a Proxy written by the Defendants, that Brookfield’s purchase of GGP 

was designed and disclosed with the explicit aim of curtailing the statutory appraisal 

rights that were triggered by the Transaction’s cash consideration. Facing this 

191 See note 23, supra.

192 GGP, 2021 WL 2102326, at *3 & n.6. 

193 See Proxy at 73–76, App. to Opening Br. at A101–104. 
59

argument in litigation, the Defendants have had every opportunity to explain to this 

Court why the negative inferences proposed by the Plaintiffs are not reasonably 

conceivable. Instead, the Defendants on appeal offer a blanket and summary denial, 

maintaining that “[n]o facts are alleged in the Complaint suggesting that the GGP 

directors’ conduct concerning appraisal rights was ‘deliberate, intentional, unlawful, 

and in bad faith,’ as Plaintiffs contend[.]”194 At this stage, this is not enough to 

defeat the Plaintiffs’ well-pleaded claim that the Defendants committed a knowing 

violation of the fiduciary duty of disclosure. 

V

The judgment of the Court of Chancery dismissing Counts I, II, IV, and V of 

the Complaint is affirmed. The judgment of the Court of Chancery dismissing 

Counts III and VI of the Complaint is reversed, and this matter is remanded for 

further proceedings in accordance with this opinion. 

194 Answering Br. at 32–33. 
60

MONTGOMERY-REEVES, Justice, concurring in part, dissenting in part, joined 

by VAUGHN, Justice:

We agree with the Majority’s decision to affirm the dismissal of the Plaintiffs’ 

claim that the Transaction structure deprived stockholders of their right to seek 

appraisal for two reasons. First, we agree that the Pre-Closing Dividend is merger 

consideration. Second, we agree that stockholders can accept the Pre-Closing 

Dividend and still seek appraisal. However, we depart from our colleagues in the 

majority on their interpretation of the disclosure of appraisal rights. We do not 

believe it is reasonably conceivable that the disclosure is misleading. We also would 

hold that the Plaintiffs waived the Section 262(g) arguments presented on appeal. 

Thus, we would affirm the Court of Chancery’s decision.

The Plaintiffs argue that if the Pre-Closing Dividend is merger consideration 

for appraisal purposes, they state a reasonably conceivable claim that the notice of 

appraisal in the Proxy is misleading.195 The Plaintiffs contend that the Proxy did not 

accurately inform stockholders of the appraisal rights that were available because 

“[i]t told them that appraisal rights were limited to the Merger (excluding the PreClosing Dividend) and that an appraisal proceeding would only determine whether 

fair value post-Dividend was greater than, the same as or less than the $.0312 [sic] 

195 Opening Br. 34-42.
61

merger consideration.”196 In general, the Plaintiffs take issue with the Proxy because 

it

identifies the $0.312 in cash received in the merger 

as “the per share merger consideration” and specifies that 

stockholders perfecting appraisal rights would “receive in 

lieu of the per share merger consideration a cash payment 

equal to the fair value of their GGP common stock,” which 

might be “greater than, the same as or less than the per 

share merger consideration.”197

In other words, the Plaintiffs believe that the Proxy is misleading because it 

“expressly, directly and repeatedly said” “that appraisal would be limited to the [PerShare Merger Consideration].”198

 

Plaintiffs further allege that “in light of Crawford, the notice was not an 

accurate statement of the available appraisal rights” because “under Crawford the 

Dividend might be part of the Merger.”199 And because, according to the Plaintiffs, 

Delaware law requires corporations to provide notice of the scope of an appraisal 

proceeding, the Proxy’s failure to mention that the Dividend would be merger 

consideration for appraisal purposes renders it incomplete and misleading.200

196 Id. at 36.

197 Id. at 37.

198 Id. at 39.

199 Id. at 40, 41.

200 Id. at 40-42.
62

A. Disclosure Obligations Under Delaware Law

“[D]irectors of Delaware corporations are under a fiduciary duty to disclose 

fully and fairly all material information within the board’s control when it seeks 

shareholder action.”

201

 “The duty of disclosure is a judicially imposed fiduciary 

duty”202 that “serves the ultimate goal of informed stockholder decision making.”203 

“The duty of disclosure is, and always has been, a specific application of the general 

fiduciary duty owed by directors”

204 and is “[a] combination of the fiduciary duties 

of care and loyalty.”205“The Delaware fiduciary duty of disclosure is not a fullblown disclosure regime like the one that exists under federal law . . . .”206

 

“Directors of Delaware corporations have a fiduciary duty to shareholders to 

exercise due care, good faith and loyalty whenever they communicate publicly or 

directly with shareholders about the corporation’s affairs.”

207

 “When stockholder 

action is requested, directors are required to provide shareholders with all 

information that is material to the action being requested and ‘to provide a balanced, 

truthful account of all matters disclosed in the communications with 

shareholders.’”

208

201 Stroud v. Grace, 606 A.2d 75, 84 (Del. 1992). 

202 Arnold v. Soc’y for Sav. Bancorp, Inc., 678 A.2d 533, 537 (Del. 1996).

203 Clements v. Rogers, 790 A.2d 1222, 1236 (Del. Ch. 2001).

204 Malone v. Brincat, 722 A.2d 5, 10 (Del. 1998).

205 Cinerama, Inc. v. Technicolor, Inc., 663 A.2d 1156, 1163 (Del. 1995).

206 Id.

207 Emerald Partners v. Berlin, 726 A.2d 1215, 1223 (Del. 1999).

208 Id. (citing Malone, 722 A.2d at 12).
63

“A board can breach its duty of disclosure under Delaware law in a number 

of ways—by making a false statement, by omitting a material fact, or by making 

partial disclosure that is materially misleading.”

209

 “The last of these occurs where 

a board makes a required or even non-obligatory pronouncement on a subject that is 

incomplete and by which shareholders are materially misled.”

210

 Omitted facts are 

considered material “if there is a substantial likelihood that a reasonable stockholder 

would consider [them] important in deciding how to vote.”211 Stated another way, 

there must be “a substantial likelihood that the disclosure of the omitted fact would 

have been viewed by the reasonable stockholder as having significantly altered the 

‘total mix’ of information made available.”212 Therefore, the primary question is 

whether the alleged misrepresentation is material with respect to the stockholder 

action being sought.213 Notably, “the question is not whether the information would 

have changed the stockholder’s decision to accept the merger consideration, but 

whether ‘the fact in question would have been relevant to him.’”

214

209 In re Walt Disney Co. Deriv. Litig., 731 A.2d 342, 376 (Del. Ch. 1998).

210 Id.

211 Louden v. Archer–Daniels–Midland Co., 700 A.2d 135, 142 (Del. 1997).

212 Skeen v. Jo-Ann Stores, Inc., 750 A.2d 1170, 1172 (Del. 2000).

213 Malone, 722 A.2d at 12.

214 Shell Petroleum, Inc. v. Smith, 606 A.2d 112, 115 (Del. 1992) (citing Barkan v. Amsted Indus., 

567 A.2d 1279, 1289 (Del. 1989).
64

“When determining whether there has been a disclosure violation, a proxy 

statement should be read as a whole.”

215

 Thus, it is not dispositive that a sentence 

or particular characterization read in isolation may be misleading if the misleading 

nature of that sentence or characterization cannot be sustained in light of the entire 

proxy statement.216 This concept is grounded in the fact that, “in order to be material, 

the omitted fact must contribute meaningfully to the ‘total mix’ of information 

available to the stockholders.”

217

Under Delaware case law, the corporation’s disclosure of appraisal rights 

must include all material information to allow stockholders to determine whether to 

accept the merger consideration or seek appraisal.218 Thus, the disclosure of 

215 IRA Tr. FBO Bobbie Ahmed v. Crane, 2017 WL 7053964, at *18 (Del. Ch. Dec. 11, 2017); see

In re MONY Grp. Inc. S’holder Litig., 852 A.2d 9, 31 (Del. Ch. 2004) (noting that a proxy 

statement should be read fully when determining whether a proxy statement is misleading); In re 

3Com S’holders Litig., 2009 WL 5173804, at *1 (Del. Ch. Dec. 18, 2009) (“So long as the proxy 

statement, viewed in its entirety, sufficiently discloses and explains the matter to be voted on, the 

omission or inclusion of a particular fact is generally left to management’s business judgment.”).

216 See Crane, 2017 WL 7053964, at *18 (“When the Proxy is read in full, I do not believe the 

‘sunset’ characterization was materially misleading because the Proxy makes clear that the 

Conflicts Committee and the Board believed it was important to Yield’s success that NRG 

continue to be Yield’s controlling stockholder and that NRG would not be in danger of losing 

control any time soon after the Reclassification.”).

217 Ehlen v. Conceptus, Inc., 2013 WL 2285577, at *2 (Del. Ch. May 24, 2013).

218 Shell, 606 A.2d at 114 (“As the majority shareholder, [the parent company] bears the burden of 

showing complete disclosure of all material facts relevant to a minority shareholders’ decision 

whether to accept the short-form merger consideration or seek an appraisal.”); Bershad v. CurtissWright Corp., 535 A.2d 840, 846 (Del. 1987) (“Nonetheless, the defendants retain the burden of 

proving complete disclosure of all material facts relevant to the merger vote.”); see Skeen, 750 

A.2d at 1174 (“We agree that a stockholder deciding whether to seek appraisal should be given 

financial information about the company that will be material to that decision. In this case, 

however, the basic financial data were disclosed and appellants failed to allege any facts indicating 

that the omitted information was material.”).
65

appraisal rights must comply with Section 262’s notice obligations and include all 

material information (i.e., that which meaningfully adds to the total mix of 

information a stockholder takes into account when deciding whether to accept the 

merger consideration or seek appraisal).

B. The Plaintiffs Fail to State a Claim That the Proxy Is False or 

Misleading

The following passage from the Proxy lies at the heart of this appeal: 

If the Transactions are completed, GGP common 

stockholders who comply exactly with the applicable 

requirements and procedures of Section 262 of the DGCL 

will be entitled to demand appraisal of their shares of the 

GGP common stock (i.e., the dissenting shares) and 

receive in lieu of the per share merger consideration a cash 

payment equal to the “fair value” of their GGP common 

stock, as determined by the Court of Chancery, in 

accordance with Section 262 of the DGCL, plus interest, 

if any, on the amount determined to be the fair value, 

subject to the provisions of Section 262 of the DGCL. 

Such appraised value may be greater than, the same as or 

less than the per share merger consideration.219 

The Plaintiffs contend that the Proxy directly states that GGP would be 

appraised after the payment of the Pre-Closing Dividend because the Proxy uses the 

defined term “per share merger consideration.”220 The majority agrees and 

concludes that because the Proxy defines the “merger” as occurring after the PreClosing Dividend was declared, and because the Proxy states that GGP stockholders 

219 App. to the Opening Br. A363 (hereinafter “A__”).

220 Opening Br. at 37-39.
66

are “entitled to exercise their appraisal rights solely in connection with the merger,” 

it is reasonably conceivable that a stockholder would conclude that GGP would be 

appraised after the payment of the Pre-Closing Dividend. We disagree.

1. The Proxy’s use of the term “per share merger 

consideration” 

The Plaintiffs take issue with the Proxy’s use of the defined term “per share 

merger consideration” in the sentences quoted above.221 In particular, the Plaintiffs 

argue that the definition of per share merger consideration, which excludes the PreClosing Dividend, is misleading because it implies that any appraisal proceeding 

would value the corporation after the payment of the Pre-Closing Dividend. We 

disagree and would conclude that the Proxy’s use of that definition simply described 

the mechanics of a potential appraisal proceeding. 

As explained in the majority opinion, although stockholders must forgo the 

merger consideration to demand appraisal, Section 262(k) entitles all stockholders 

of record (even those that demand appraisal) to dividends payable before the 

effective date of the merger. Because the Pre-Closing Dividend was a dividend 

payable prior to the effective date of the Transaction, GGP stockholders who 

demanded appraisal were entitled to that payment. And because the Per-Share 

Merger Consideration did not take the form of a dividend payable prior to the 

221 Id.
67

effective date of the Transaction, stockholders were required to forgo the Per-Share 

Merger Consideration to perfect their appraisal right. Thus, under the mechanics of 

an appraisal proceeding, any payment required by the Court of Chancery would be 

made in place of only the Per-Share Merger Consideration because Section 262(k) 

entitles the stockholder to the Pre-Closing Dividend. In other words, the Proxy’s 

use of “per share merger consideration” accurately reflects that the Per-Share Merger 

Consideration, and not the Pre-Closing Dividend, would be the only consideration 

at risk in an appraisal action. 

Thus, we do not believe that Plaintiffs stated a reasonably conceivable claim 

that the Proxy’s use of “per share merger consideration” was misleading.

2. The Proxy’s use of the term “merger” 

The majority holds that it is reasonably conceivable that a stockholder could 

read the Proxy and conclude that any appraisal proceeding would value the Company 

after payment of the Pre-Closing Dividend because the Proxy states that GGP 

stockholders are “entitled to exercise their appraisal rights solely in connection with 

the merger.”222 And because the Proxy defines the merger as occurring after the 

declaration of the Pre-Closing Dividend, a stockholder could reasonably read the 

Proxy as stating that appraisal would be limited to the approximately one and a half 

222 A43 (emphasis added).
68

percent of the value of the company left at the time it paid the Per-Share Merger 

Consideration. We disagree.

In our view, the phrase “in connection with” qualifies the word “merger.” 

There is nothing more connected to the Transaction than the Pre-Closing Dividend—

after all, it makes up 98.5% of the Transaction’s consideration, is conditioned on the 

Transaction’s approval, and is funded by the buyer. That the Pre-Closing Dividend 

was connected to the merger is disclosed throughout the entirety of the Proxy:

• Therefore, as a result of receiving the pre-closing dividend 

and the per share merger consideration, unaffiliated GGP 

common stockholders . . . will be entitled to receive, for 

each share of issued and outstanding GGP common stock 

and each share of GGP common stock deemed held, and 

subject to proration, total consideration of up to $23.50 in 

cash or one (1) share of class A stock, at the election of 

such GGP common stockholders (with deemed 

stockholders being deemed to have elected cash).223

• Q: How do I calculate the value of the total consideration

received in connection with the Transactions?

A: Unaffiliated GGP common stockholders . . . will 

be entitled to receive, for each share of issue and 

outstanding GGP common stock, and subject to proration, 

total consideration of up to $23.50 in cash or one (1) share 

of class A stock, at the election of such GGP common 

stockholders (with deemed stockholders being deemed to 

have elected cash).224

• If the Transactions, including the merger, are not 

completed, GGP common stockholders will not receive 

any consideration in connection with the Transactions.225

223 A34 (emphasis added).

224 A36 (emphasis added).

225 A47 (emphasis added).
69

• [E]quity award average cash amount is the value (rounded 

to the nearest $0.001) of the aggregate cash consideration

that would be paid in respect of each share of GGP 

common stock . . . in connection with (i) the pre-closing 

dividend, assuming that every share makes a cash election 

and the form of consideration is prorated in accordance 

with the merger agreement, and (ii) the per share merger 

consideration.

226

• At a meeting of the special committee held on March 26, 

2018, Goldman Sachs & Co. LLC, which we refer to as 

Goldman Sachs, rendered to the special committee its oral 

opinion, subsequently confirmed in writing, to the effect 

that, as of that date, and based upon and subject to the 

factors and assumptions set forth in Goldman Sachs’ 

written opinion, the aggregate amount of the pre-closing 

dividend in the form of cash and the shares of class A stock 

. . . and merger consideration, which we refer to 

collectively as the aggregate consideration, to be paid to 

GGP common stockholders, pursuant to the merger 

agreement was fair from a financial point of view to such 

holders.227

• As a result, the BPY general partner board revised its 

initial offer that BPY publicly announced on November 

13, 2017 to: (i) increase the cash consideration from 

$23.00 to $23.50 per share of the GGP common stock; (ii) 

increase the aggregate cash consideration by $1.85 billion 

from $7.4 billion to $9.25 billion . . . .228

• [E]ach of the Parent parties and the Brookfield filing 

persons believes that the Transactions are substantively 

and procedurally fair to unaffiliated GGP common 

stockholders based on its consideration of the following 

factors, among others: the consideration per share of GGP 

common stock of up to $23.50 in cash or one (1) share of 

class A stock or one BPY unit, subject to proration, and 

226 A54, 239 (emphasis added).

227 A57-58 (emphasis added).

228 A147 (emphasis added).
70

the other terms and conditions of the merger agreement . . 

. .

229

• [I]n no event shall the Company be obligated to 

consummate the Charter Closing unless the Escrow Agent 

has confirmed to the Company the receipt of an amount at 

least equal to the sum of (i) the Total Cash Amount . . . .

230

o ‘Total Cash Amount’ shall mean 

$9,250,000,000 less (i) the Partnership Common 

Unit Cash Amount, less (ii) the Partnership LTIP 

Unit Cash Amount, less (iii) the Total Restricted 

Stock Cash Consideration.231

And “[w]hen determining whether there has been a disclosure violation, a 

proxy statement should be read as a whole.”

232

 

Similarly, in the same paragraph as the first sentence at issue, the notice of 

appraisal in the Proxy states that “GGP common stockholders should note . . . the 

opinion of Goldman Sachs as to the fairness, from a financial point of view, of the 

consideration payable in a sale transaction, such as the merger consideration . . . .”233 

In other words, the Proxy’s notice of appraisal references Goldman Sachs’ opinion 

as to the fairness of the Transaction value; that opinion concludes that the PreClosing Dividend plus the Per-Share Merger Consideration is a fair price.

234

 Thus, 

229 A150 (emphasis added).

230 A398-99.

231 A393.

232 Crane, 2017 WL 7053964, at *18; see In re MONY Grp. Inc. S’holder Litig., 852 A.2d at 31 

(noting that a proxy statement should be read fully when determining whether a proxy statement 

is misleading); In re 3Com S’holders Litig., 2009 WL 5173804, at *1 (“So long as the proxy 

statement, viewed in its entirety, sufficiently discloses and explains the matter to be voted on, the 

omission or inclusion of a particular fact is generally left to management’s business judgment.”).

233 A363.

234 A57-58.
71

the Goldman Sachs opinion further confirms that the Pre-Closing Dividend is 

connected to the merger.

For these reasons, we do not think it is reasonably conceivable that a 

stockholder would read the entirety of the Proxy and conclude that the Pre-Closing 

Dividend was not declared “in connection with” the merger.

3. The Proxy’s Discussion of the Consideration of the PreClosing Dividend in an Appraisal Action

We also disagree with the appellant and the majority for an additional reason. 

In our opinion, it is not reasonably conceivable that a stockholder would read the 

Proxy, the Agreement, or the statute and conclude that the Company’s value for 

appraisal purposes would be determined after payment of the Pre-Closing Dividend. 

Section 262(h) instructs the Court of Chancery “to determine the fair value of 

the shares exclusive of any element of value arising from the accomplishment or 

expectation of the merger.”235 The Court has held that in an appraisal action, while

“the fair value determination must be measured by the ‘operative reality’ of the 

corporation at the time of the merger,” “the court should first envisage the entire premerger company as a ‘going concern,’ as a standalone entity, and assess its value as 

such” without considering any elements of value (positive or negative) arising from 

235 8 Del. C. § 262(h).
72

the merger.236 In other words, in an appraisal action the court must value the 

company as it would have been had the merger never occurred.

237

 

Traditionally, this has explained why synergies and other elements of value 

arising from the merging of corporations should not be considered in an appraisal 

proceeding. Elements of value arising from the expectation of the merger should be 

backed out of an appraisal proceeding because that value would not arise had the 

merger never occurred. But there is nothing more representative of “value arising 

from the accomplishment or expectation of the merger” than the merger 

consideration itself—the value of the transaction at issue. As the Court of Chancery 

aptly noted in In re Dollar Thrifty Shareholder Litigation, where the use of a $200 

million dividend in a merger gave rise to questions regarding the reasonableness of 

the merger’s termination fee, the “value of the Merger . . . is logically quantified as 

the amount of consideration flowing into [the] shareholders’ pockets.”238 In other 

words, under the statute, which was attached to the notice of appraisal, the Court of 

Chancery would value GGP as if the Pre-Closing Dividend had not been paid 

because value arising from the merger—here, the payment of the Pre-Closing 

236 Brigade Leveraged Cap. Structures Fund Ltd. v. Stillwater Mining Co., 240 A.3d 3, 17 (Del. 

2020); Dell, Inc. v. Magnetar Global Event Driven Master Fund Ltd., 177 A.3d 1, 20 (Del. 2017)

(emphasis added); 8 Del. C. § 262(h).

237 See id.

238 14 A.3d 573, 613 (Del. Ch. 2010) (emphasis added).
73

Dividend to GGP239 and then to its stockholders—would not be part of the 

corporation as a going concern had the merger never occurred. 

Notably, the Plaintiffs agree with this conclusion in their brief, stating, “if, as 

in Crawford, the Dividend was part of the Merger, GGP’s operative reality would 

not include the Dividend and fair value would be based on GGP’s pre-Dividend 

value.”240

Moreover, that the Court of Chancery’s determination of fair value would 

exclude any element of value arising from the accomplishment or expectation of the 

merger was repeated three times in the appraisal notice of the Proxy:

• [H]olders of record of GGP common stock . . . will be 

entitled to have their GGP common stock appraised by 

the Court of Chancery and to receive in lieu of the per 

share merger consideration, a cash payment equal to 

the “fair value” of such shares, exclusive of any element 

of value arising from the accomplishment or 

expectation of the merger . . . .

241

• After determining the stockholders entitled to 

appraisal, the Court of Chancery will appraise the “fair 

value” of the GGP common stock, exclusive of any 

element of value arising from the accomplishment or 

expectation of the merger . . . .242

• Section 262 of the DGCL provides that fair value is to 

be “exclusive of any element of value arising from the 

accomplishment or expectation of the merger.”

243

239 A12, 31 (“(d) the amount designated by BPY to GGP that constitutes that aggregate amount of 

cash that GGP will pay as the pre-closing dividend . . . .”).

240 Opening Br. 23.

241 A363 (emphasis added).

242 A366 (emphasis added).

243 Id. (emphasis added).
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It is not reasonable to read the plain language of the Proxy or the statute244 and 

assume that “any element of value arising from the accomplishment or expectation 

of the merger” would somehow exclude the Pre-Closing Dividend, which, as the 

Plaintiffs note multiple times, makes up 98.5 percent of the Transaction’s value.245 

The use of the word “any” in this context means “each” or “every.” Thus, the plain 

language of the Proxy and statute render unreasonable any reading that the PreClosing Dividend was not included in the definition of value for appraisal purposes, 

which means the appraisal action would value the corporation as if the Pre-Closing 

Dividend was not paid. 

Moreover, we note that in the Plaintiffs’ first argument on appeal, they 

convincingly argue that the Pre-Closing Dividend is merger consideration for 

purposes of an appraisal, pointing to at least two portions of the Proxy that support 

their stance.246 The Plaintiffs cannot have it both ways. They cannot seriously allege 

in the first argument that the Proxy makes clear that the Pre-Closing Dividend is 

merger consideration but contend in the second argument that the Proxy misleads 

244 The Proxy states in capital letters, that the summary is “NOT A COMPLETE STATEMENT 

OF THE LAW PERTAINING TO APPRAISAL RIGHTS UNDER SECTION 262 OF THE 

DGCL AND IS QUALIFIED IN ITS ENTIRETY BY THE FULL TEXT OF SECTION 262 . . . 

.” A363. There, in Section 262(h) the stockholders would find, yet again, that the Court of 

Chancery cannot consider value arising from the expectation of accomplishment of the merger in 

its appraisal of GGP.

245 A363; 8 Del. C. § 262(h) (emphasis added).

246 See Opening Br. 20-21 (“The Proxy confirms the interrelationship of the Dividend and the 

merger consideration.”).
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stockholders into concluding that the Pre-Closing Dividend is not connected to the 

merger for appraisal purposes.

When the Proxy is read in full, the sentences at issue are not misleading

because the whole of the Proxy makes clear that GGP would be valued as if the PreClosing Dividend had not been paid. As such, it is not reasonable for a stockholder 

to conclude that an appraisal action would value the corporation after the distribution 

of the Pre-Closing Dividend. 

Thus, we would affirm the Court of Chancery’s holding that the Plaintiffs did 

not state a reasonably conceivable claim that the Proxy violated Section 262 or 

Delaware disclosure obligations.

C. The Plaintiffs Waived Their De Minimis Argument

Finally, the Plaintiffs contend, and the majority opinion concludes, that it is 

reasonably conceivable that the Proxy’s definitions of Per-Share Merger 

Consideration and the “merger” led some stockholders to believe that they could not 

qualify for appraisal at all due to Section 262(g)’s de minimis condition. 

The majority concludes that this argument is not waived because the 

complaint states, “[T]he misleading disclosure is material because no rational 

stockholder would dissent on the Buyout and perfect his appraisal rights if by doing 

so he only placed a de minimis part of GGP’s supposed pre-Buyout value at issue.”247 

247 App. to Answering Br. B128.
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The majority also relies on the following sentence from the Plaintiffs’ brief below: 

“The Proxy falsely disclosed (in buried, confusing form) stockholders’ appraisal 

rights by stating that only the [Per-Share Merger Consideration], a de minimis

portion of deal consideration, could form the basis for recovery in any appraisal 

proceeding.”248 We disagree.

On appeal, the Plaintiffs argue that the Transaction’s structure effectively 

eliminated appraisal rights because the Pre-Closing Dividend was too small for most 

stockholders to satisfy Section 262(g)’s de minimis requirement. In the complaint, 

the Plaintiffs argue that stockholders likely would not seek appraisal because only a 

de minimis portion of the consideration would be at issue in an appraisal proceeding. 

That is, the Plaintiffs alleged that stockholders were dissuaded from seeking 

appraisal because the small, de minimis amount of money that would have been at 

stake in an appraisal proceeding—the Per-Share Merger Consideration—rendered 

appraisal futile. While we acknowledge that both statements use the term de 

minimis, they convey separate concepts. Their argument on appeal relates to whether 

GGP stockholders could meet Section 262(g)’s de minimis exception. Their 

argument below states only that appraisal would be limited to the small (de minimis) 

Per-Share Merger Consideration. It cannot be enough that a plaintiff merely uses 

the same phrase—a plaintiff must also make the same argument. Thus, we would 

248 A1094.
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hold that under Supreme Court Rule 8, the Plaintiffs waived the de minimis argument 

made on appeal.

In sum, we would hold that the Proxy was not misleading for three reasons: 

(1) the Proxy’s use of the term “per-share merger consideration” in the appraisal 

notice tells the stockholders what is at risk in an appraisal proceeding; (2) the Proxy’s 

use of the term “merger” is qualified by the phrase “in connection with,” and the 

entirety of the Proxy makes clear that the Pre-Closing Dividend is connected to the 

merger; and (3) any appraisal proceeding would exclude any value (positive or 

negative) arising from the Transaction and the Pre-Closing Dividend is value arising 

from the Transaction. We would also hold that the Plaintiffs waived the de minimis

argument they made on appeal.

For these reasons, we respectfully dissent.