IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

IN RE APPRAISAL OF DELL INC.

 

) Consol. C.A. No. 9322-VCL

MEMORANDUM OPINION

Date Submitted: May 11, 2015

Date Decided: July 13, 2015

Stuart M. Grant, Michael J. Barry, Christine M. Mackinstosh, Jennifer A. Williams, 

Rebecca A. Musarra, GRANT & EISENHOFER P.A., Wilmington, Delaware; Attorneys 

for Petitioners Curtiss-Wright Corporation Retirement Plan; Manulife US Large Cap 

Value Equity Fund; The Milliken Retirement Plan; Northwestern Mutual Series Fund, 

Inc., on behalf of its Equity Income Portfolio; and T. Rowe Price Funds SICAV US Large 

Cap Value Equity Fund.

Gregory P. Williams, John D. Hendershot, Susan M. Hannigan, Andrew J. Peach, 

RICHARDS, LAYTON & FINGER, P.A., Wilmington, Delaware; John L. Latham, 

Susan E. Hurd, ALSTON & BIRD LLP, Atlanta, Georgia; Gideon M. Caine, ALSTON 

& BIRD LLP, East Palo Alto, California; Charles W. Cox, ALSTON & BIRD LLP, Los 

Angeles, California; Attorneys for Respondent Dell Inc.

LASTER, Vice Chancellor.
1

The petitioners are five institutions1 who owned common stock of Dell, Inc. They 

sought appraisal after Dell announced a going-private merger. Dell contends that they did 

not hold their shares continuously through the effective date of the merger and therefore 

lost their appraisal rights. 

The Funds held their shares through custodial banks. By virtue of this relationship, 

the Funds did not have legal title to the shares; they were beneficial owners. But the 

custodial banks did not have legal title either. The shares they held were registered in the 

name of Cede & Co., which is the nominee of the Depository Trust Company (―DTC‖).

2

DTC‘s place in the ownership structure results from the federal response to a 

paperwork crisis on Wall Street during the late 1960s and early 1970s. Increased trading 

volume in the securities markets overwhelmed the back offices of brokerage firms and 

the capabilities of transfer agents. No one could cope with the burdens of documenting 

 

1

The five institutions are (i) the Northwestern Mutual Series Fund, Inc. Equity 

Income Portfolio (―Northwestern‖), (ii) the Manulife US Large Cap Value Equity Fund

(―Manulife‖), (iii) the T. Rowe Price Funds SICAV US Large Cap Value Equity Fund

(―T. Rowe Price‖), (iv) the Milliken Retirement Plan (―Milliken‖), and (v) the CurtissWright Corporation Retirement Plan (―Curtiss-Wright‖). Although three are ―funds‖ and 

two are ―plans,‖ this decision refers to them as the Funds. The collective referent is 

purely for convenience.

2

Technically, both the Funds and the custodial banks were ―entitlement holders.‖ 

This term defined is under Article 8 of the Delaware Uniform Commercial Code as a 

―person identified in the records of a securities intermediary as the person having a 

security entitlement against the securities intermediary.‖ 6 Del. C. § 8-102(a)(7). The 

term ―securities intermediary‖ means either ―a clearing corporation,‖ i.e. DTC , or ―a 

person, including a bank or broker, that in the ordinary course of its business maintains 

securities accounts for others and is acting in that capacity,‖ i.e., the custodial banks. Id. § 

8-102(a)(14).
2

stock trades using paper certificates. The markets were forced to declare trading holidays 

so administrators could catch up. With trading volumes continuing to climb, it was 

obvious that reform was needed. Congress directed the SEC to evaluate alternatives that 

would facilitate trading.

After studying the issue, the SEC adopted a national policy of share 

immobilization. To carry out its policy, the SEC placed a new entity—the depository 

institution—at the bottom the ownership chain. DTC emerged as the only domestic 

depository. Over 800 custodial banks and brokers are participating members of DTC and 

maintain accounts with that institution. DTC holds shares on their behalf in fungible bulk, 

meaning that none of the shares are issued in the names of DTC‘s participants. Instead, 

all of the shares are issued in the name of Cede. Through a Fast Automated Securities 

Transfer account (the ―FAST Account‖), DTC uses an electronic book entry system to 

track the number of shares of stock that each participant holds. 

By adding DTC to the bottom of the ownership chain, the SEC eliminated the 

need for the overwhelming majority of legal transfers. Before share immobilization, 

custodial banks and brokers held shares through their own nominees, so new certificates 

had to be issued frequently when shares traded. With share immobilization, legal title 

remains with Cede. No new certificates are required.

Although the depository system solved the paperwork crisis, it complicated other 

aspects of the legal system. Appraisal is one of those areas. When a transaction triggers 

appraisal rights, Section 262 of the Delaware General Corporation Law (the ―DGCL‖) 

permits ―[a]ny stockholder of a corporation‖ who complies with its requirements to 
3

litigate a proceeding that will result in a judicial determination of the ―fair value of the 

shares.‖ 8 Del. C. §§ 262(a) & (h). The statute states that ―[a]s used in this section, the 

word  ̳stockholder‘ means a holder of record of stock in a corporation.‖ Id. § 262(a) (the 

―Record Holder Requirement‖). One of the statutory requirements is that a stockholder 

who wishes to pursue appraisal must ―continuously hold[] such shares through the 

effective date of the merger.‖ Id. (the ―Continuous Holder Requirement‖).

Many appraisal decisions have involved disputes over these requirements. In one 

recurring scenario, companies argued that a petitioner had lost its appraisal rights when 

DTC followed its usual procedures, surrendered the shares held in fungible bulk for the 

merger consideration, and distributed the merger consideration to its participants, who 

then deposited it in their customers‘ accounts.3In Alabama By-Products Corp. v. Cede & 

Co., 657 A.2d 254 (Del. 1995), the Delaware Supreme Court held that if a petitioner had

 

3

See, e.g., S. Prod. Co. v. Sabah, 87 A.2d 128 (Del. 1952); Roam-Tel P’rs v. 

AT&T Mobility Wireless Op. Hldgs. Inc., 2010 WL 5276991 (Del. Ch. Dec. 17, 2010) 

(Strine, V.C.); Matter of Enstar Corp., 513 A.2d 206 (Del. Ch. 1986); LeCompte v. 

Oakbrook Consol., Inc., 1986 WL 2827 (Del. Ch. Mar. 7, 1986); Engel v. Magnavox Co., 

1976 WL 1705 (Del. Ch. Feb. 5, 1976); Abraham & Co. v. Olivetti Underwood Corp., 

204 A.2d 740 (Del. Ch. 1964), aff’d sub nom. Olivetti Underwood Corp. v. Jacques Coe 

& Co., 217 A.2d 683 (Del. 1966). See generally 1 R. Franklin Balotti & Jesse A. 

Finkelstein, The Delaware Law of Corporations & Business Organizations § 9.44, at 9-

116 (3d ed. 2014) (―Prior to the Delaware Supreme Court‘s ruling in Alabama ByProducts Corp. v. Cede & Co., appraisal rights could be forfeited through any tender at 

any time, even if the tender was inadvertent and an appraisal petition had been filed.‖ 

(footnote omitted)). The Delaware cases traditionally treated the receipt of the transaction 

consideration as something inadvertent. Under Article 8 of the UCC, a securities 

intermediary is required by law to ―take action to obtain a payment or distribution made 

by the issuer of a financial asset‖ and is ―obligated to its entitlement holder for a payment 

or distribution made by the issuer of a financial asset if the payment or distribution is 

received by the securities intermediary.‖ 6 Del. C. § 8-505(a) & (b). 
4

properly perfected its appraisal rights through Cede, then the petitioner would not lose its 

appraisal rights if DTC surrendered the shares in exchange for the merger consideration. 

The court reached this conclusion because the surrender did not comply with the 

appraisal statute‘s requirements for withdrawing or settling a properly perfected appraisal 

claim. The practical effect of this decision was to ―impose upon the corporation the 

responsibility of overseeing the surrender of shares after a merger.‖ Id. at 263.

To help issuers oversee the surrender of shares, DTC modified its procedures. 

Now, when a beneficial owner causes Cede to demand appraisal, DTC removes the 

shares covered by the demand from the fungible bulk tracked in the FAST Account. DTC 

does this by causing the issuer‘s transfer agent to issue a paper stock certificate for the 

number of shares held by the beneficial owner. The paper certificate is issued in Cede‘s 

name, so the same record holder continues to hold the shares for purposes of the 

Continuous Holder Requirement.

In this case, DTC followed its procedures and issued paper stock certificates in 

Cede‘s name for the Funds‘ shares. DTC then contacted the custodial banks to make 

arrangements for delivering the resulting valuable pieces of paper. But here another backoffice procedure kicked in. For various understandable business reasons (insurance

requirements, recordkeeping for internal audit, mitigating risk of theft, etc.), some banks 

and brokers only hold stock certificates that are issued in the names of their own 

nominees. The Funds‘ custodial banks followed this policy.

When DTC contacted the custodial banks, each instructed Dell‘s transfer agent to 

record a transfer of the shares to its nominee and issue a certificate in its nominee‘s name. 
5

Dell‘s transfer agent complied. The Funds remained the beneficial owners. The 

custodians remained the custodians. But now there were new nominees on the stock 

ledger.

Dell has moved for summary judgment, arguing that these back-office steps 

resulted in new record holders and broke the chain of title for purposes of the Continuous 

Holder Requirement. Under Delaware cases that pre-dated the federal policy of share 

immobilization, the record holder for purposes of the DGCL was the person that appeared

on the stock ledger. After the SEC created the depository system, the Delaware courts 

adhered to this rule. They did not distinguish the voluntary relationship between a client 

and its custodial bank or broker (the ―broker level‖ of ownership) from the federally 

mandated relationship between the custodial bank or broker and DTC (the ―depository 

level‖ of ownership). Delaware cases simply treated Cede as the holder of record and 

applied the Continuous Holder Requirement strictly. Under these decisions, the motion 

must be granted.

A different approach is possible and, in my view, preferable. Federal law looks 

through Cede and recognizes the custodial banks and brokers as record holders, just as 

before the federal mandate. If Delaware law took a similar approach, the Funds would 

retain their appraisal rights, because ownership by the relevant DTC participants never 

changed. Were I writing on a blank slate, I would account for the federal policy of share 

immobilization by interpreting the term ―stockholder of record‖ as used in Section 262(a) 

to parallel its content under the federal securities laws. In other words, the term 

―stockholder of record‖ would include a DTC participant. But that is not how our cases 
6

have interpreted the statutory term, and this court is bound by those precedents. Dell‘s 

motion for summary judgment is therefore granted.

I. FACTUAL BACKGROUND

The facts are drawn from the parties‘ submissions in connection with Dell‘s 

motion for summary judgment. There are no disputes of material fact about the Funds‘ 

exercise of their appraisal rights or the re-titling of their shares. 

A. The Funds’ Ownership Of Dell Shares

On February 5, 2013, Dell agreed to a merger in which each publicly held share of 

Dell common stock would be converted into the right to receive $13.75 in cash, subject to 

the right of stockholders to seek appraisal. The Funds held at least 922,975 shares of Dell 

common stock. Like most investors, the Funds did not hold legal title to their shares. The 

Funds owned the shares indirectly through accounts at custodial banks. Two of the Funds 

used J.P. Morgan Chase (―JP Morgan‖) as their custodian. The others used The Bank of 

New York Mellon (―BONY‖). 

The custodial banks did not own record title either. JP Morgan and BONY are two 

of more than 800 custodial banks and brokers who are participating members of DTC.

The vast majority of publicly traded shares in the United States are 

registered on the companies‘ books not in the name of beneficial owners—

i.e., those investors who paid for, and have the right to vote and dispose of, 

the shares—but rather in the name of ―Cede & Co.,‖ the name used by The 

Depository Trust Company (―DTC‖).

Shares registered in this manner are commonly referred to as being held in 

―street name.‖ . . . DTC holds the shares on behalf of banks and brokers, 

which in turn hold on behalf of their clients (who are the underlying 

beneficial owners or other intermediaries).
7

John C. Wilcox, John J. Purcell III, & Hye-Won Choi, “Street Name” Registration & 

The Proxy Solicitation Process, in A Practical Guide to SEC Proxy and Compensation 

Rules 10-3, 10-3 (Amy Goodman et al. eds., 4th ed. 2007 & 2008 Supp.) [hereinafter 

Street Name] (footnote omitted).

The history of how we arrived at this ownership structure is important and 

informative.4

Prior to 1970, negotiation was the most common method used to transfer 

stock in the United States. The owner would endorse the physical certificate 

to the name of the assignee on the back of the certificate. This endorsement 

instruct[ed] the corporation, upon notification, [about] the change in 

ownership of the shares on its corporate books. If the parties used the 

services of a broker, the seller would transfer the certificate to his brokerage 

firm. The brokerage firm representing the customer buying the security 

would receive the physical certificate and transfer it to the buyer as the new 

record owner of the security. Occasionally, the new owner might request 

that the physical certificate remain at the street address of the brokerage 

firm to facilitate the transfer of the certificate in a subsequent sale.

 

4 A variety of sources provide consistent accounts of the origins of the depository 

system. See, e.g., Securities and Exchange Commission, Study Of Unsafe And Unsound 

Practices Of Brokers And Dealers, H.R. Doc. No. 92-231, 92d Cong., 2d Sess. 9-10 

(1971) [hereinafter SEC Study]; Uniform Commercial Code, Prefatory Note to Article 8 

(revised 1994) [hereinafter Prefatory Note]; Street Name at 10-6 n.5; Teresa Carnell & 

James J. Hanks, Jr., Shareholder Voting and Proxy Solicitation: The Fundamentals, 

Maryland Bar Journal 23, 26 (Jan./Feb. 2004); David C. Donald, Heart of Darkness: The 

Problem at the Core of the U.S. Proxy System and Its Solution, 6 Va. L. & Bus. Rev. 41, 

45, 50-61 (2011); Marcel Kahan & Edward Rock, The Hanging Chads of Corporate 

Voting, 96 Geo. L. J. 1227, 1237-38 & nn.45-50, 1273-74 (2008); Emily I. Osiecki, 

Alabama By-Products Corp. v. Cede & Co.: Shareholder Protection Through Strict 

Statutory Construction, 22 Del. J. Corp. L. 221, 223-28 (1997); Suellen M. Wolfe, 

Escheat and the Challenge of Apportionment: A Bright Line Test To Slice A Shadow, 27 

Ariz. St. L.J. 173, 178-88 (1995); Businesses & Subsidiaries-The Depository Trust 

Company (DTC), http://www.dtcc.com/about/businesses-and-subsidiaries/dtc.aspx (last 

visited June 5, 2015).
8

Wolfe, supra, at 180 (footnotes omitted).

Transfer of securities in the traditional certificate-based system was a 

complicated, labor-intensive process. Each time securities were traded, the 

physical certificates had to be delivered from the seller to the buyer, and in 

the case of registered securities the certificates had to be surrendered to the 

issuer or its transfer agent for registration of transfer.

Prefatory Note at 2.

By the late 1960s, increased trading rendered the certificate system obsolete. The 

paperwork burden reached ―crisis proportions.‖ Id.

Stock certificates and related documents were piled ―halfway to the ceiling‖ 

in some offices; clerical personnel were working overtime, six and seven 

days a week, with some firms using a second or even a third shift to process 

each day‘s transaction. Hours of trading on the exchange and over the 

counter were curtailed to give back offices additional time after the closing 

bell. Deliveries to customers and similar activities dropped seriously 

behind, and the number of errors in brokers‘ records, as well as the time to 

trace and correct these errors, exacerbated the crisis.

Wolfe, supra, at 181 n.49 (quoting SEC Study at 219 n.1). ―The difficulty that brokers 

and dealers experienced in keeping their records due to the volume of transactions and 

their thin capitalization caused many brokerage firms to declare bankruptcy and many 

investors to realize losses.‖ Id. at 182.

Congress responded by passing the Securities Investor Protection Act of 1970, 

which directed the SEC to study the practices leading to the growing crisis in securities 

transfer. 15 U.S.C. § 78kkk(g). The SEC recommended discontinuing the physical 

movement of certificates and adopting a depository system. Wolfe, supra, at 182 n.58 

(citing SEC Study at 13). Congress then passed the Securities Acts Amendments of 1975,

which directed the SEC to ―use its authority under this chapter to end the physical 
9

movement of securities certificates in connection with the settlement among brokers and 

dealers of transactions in securities consummated by means of the mails or any means or 

instrumentalities of interstate commerce.‖ 15 U.S.C. § 78q-1(e). In a resulting report, the 

SEC found that ―registering securities in other than the name of the beneficial owner‖ 

was essential to establishing ―a national system for the prompt and accurate clearance and 

settlement of securities transactions.‖ Kahan & Rock, supra, at 1237 n.49.

Thus was born the federal policy of immobilizing share certificates through a 

depository system. ―Congress called for a more efficient process for comparison, 

clearing, and settlement in a national market system, and for the end of the physical 

movement of securities certificates in connection with the settlement of transactions 

among brokers and dealers.‖ Egon Guttman, Transfer of Securities: State and Federal 

Interaction, 12 Cardozo L. Rev. 437, 447 (1990); accord S. REP. NO. 94-75 at 5 (1975) 

(―A national clearance and settlement system is clearly needed.‖). To comply, 

―[b]rokerages and banks created [depositories] to allow them to deposit certificates 

centrally (so-called  ̳jumbo certificates,‘ often representing tens or hundreds of thousands 

of shares) and leave them at rest.‖ Larry T. Garvin, The Changed (And Changing?) 

Uniform Commercial Code, 26 Fla. St. U. L. Rev. 285, 315 (1999).

In 1973, just after the paperwork crisis and with the federal writing on the wall, 

the members of the New York Stock Exchange created DTC to serve as a depository and 

clearing agency. Originally there were three regional depositories in addition to DTC: the 

Midwest Securities Depository Trust Company, which held through its nominee, Kray & 

Co.; the Pacific Securities Depository Trust Company, which held through its nominee, 
10

Pacific & Co; and the Philadelphia Depository Trust Company, which held through its 

nominee, Philadep & Co. ―[I]n the 1990‘s DTC . . . assumed the activities of the [other] 

depositories.‖ Carnell & Hanks, supra, at 26. Today DTC is the world‘s largest securities 

depository and the only domestic depository. Kahan & Rock, supra, at 1238 n.50. ―DTC 

is owned by its  ̳participants,‘ which are the member organizations of the various national 

stock exchanges (e.g., State Street Bank, Merrill Lynch, Goldman Sachs & Co.).‖ Street 

Name at 10-6 to 10-7. 

DTC has been estimated to hold ―about three-quarters of [the] shares in publicly 

traded companies.‖ Garvin, supra, at 315; accord Kahan & Rock, supra, at 1236; Street 

Name at 10-4 n.2. ―The shares of each company held by DTC are typically represented 

by only one or more  ̳immobilized‘ jumbo stock certificates held in DTC‘s vaults.‖ Street 

Name at 10-7. ―The immobilized jumbo certificates are the direct result of Section 17A(e) 

of the Exchange Act, in which Congress instructed the SEC to  ̳use its authority . . . to 

end the physical movement of securities certificates . . . .‘‖ Id. at 10-7 n.10.

The depository system is what enables public trading of securities to take place. In 

2014, the NYSE reported average daily volume of approximately 1 billion shares and 

approximately 4 million separate trades. See NYSE Factbook, 

http://www.nysedata.com/factbook (last visited June 19, 2015). The failure of the 

certificate-based system to keep up with much lower trading volumes in the 1960s 

demonstrates that it cannot meet current demand. Prefatory Note at 2. Without 

immobilization and DTC, ―implementing a system to settle securities within five business 

days (T+5), much less today‘s norm of T+3 or the current goals of T+1 or T+0, would 
11

simply be impossible.‖ Kahan & Rock, supra, at 1238. Trading at current levels is only 

possible because of share immobilization and DTC. Street Name at 10-7; accord Garvin, 

supra, at 315-16; Prefatory Note at 2-3.

Because of the federal policy of share immobilization, it is now Cede—not the 

ultimate beneficial owner and not the DTC-participant banks and brokers—that appears 

on the stock ledger of a Delaware corporation. Cede is typically the largest holder on the 

stock ledger of most publicly traded Delaware corporations. Street Name at 10-6. To 

preserve the pre-immobilization status quo—at least at the federal level—the SEC 

provided that for purposes of federal law, the custodial banks and brokers remain the 

record holders. Depositories are defined as ―clearing agencies.‖ 15 U.S.C. § 78c(23)(A).

The term ―record holder‖ is defined as ―any broker, dealer, voting trustee, bank, 

association or other entity that exercises fiduciary powers which holds securities of 

record in nominee name or otherwise or as a participant in a clearing agency registered 

pursuant to section 17A of the Act.‖ 17 C.F.R. § 240.14c–1(i). The term ―entity that 

exercises fiduciary powers‖ is similarly defined as ―any entity that holds securities in 

nominee name or otherwise on behalf of a beneficial owner but does not include a 

clearing agency registered pursuant to section 17A of the Act or a broker or a dealer.‖ Id.

§ 240.14c–1(c). Federal law thus looks through DTC when determining a corporation‘s 

record holders. For example, when determining whether an issuer has 500 or more record 

holders of a class of its equity securities such that it must register under 15 U.S.C. § 

78l(g), DTC does not count as a single holder of record. Each DTC participant member 
12

counts as a holder of record. Michael K. Molitor, Will More Sunlight Fade The Pink 

Sheets?, 39 Ind. L. Rev. 309, 315-16 (2006) (citing SEC interpretive releases). 

The federal regulations also ensure that a corporation can easily find out the 

identities of the banks and brokers who hold shares through DTC. Federal regulations 

require that DTC ―furnish a securities position listing promptly to each issuer whose 

securities are held in the name of the clearing agency or its nominee.‖ 17 C.F.R. § 

240.17Ad–8(b). The participant listing is known colloquially as the ―Cede breakdown,‖

and it identifies for a particular date the custodial banks and brokers that hold shares in 

fungible bulk as of that date along with the number of shares held. A Delaware 

corporation can obtain a Cede breakdown with ease. In 1981, this court noted that a Cede 

breakdown could be obtained in a matter of minutes. Hatleigh Corp. v. Lane Bryant, Inc.,

428 A.2d 350, 354 (Del. Ch. 1981). A Cede breakdown can now be obtained through 

DTC‘s website or by calling the DTC ―Proxy Services Hotline.‖ Issuers use the Cede 

breakdown to understand their stockholder profile, and proxy solicitors use it when 

advising clients. Commentary regards the information as reliable. Handbook for the 

Conduct of Shareholders’ Meetings 40 (ABA Business Law Section, Corporate 

Governance Committee ed., 2000) (identifying the ―lists of holders obtained from 

depositories‖ as one of the documents that can be relied on in ―determining the shares 

entitled to vote and tabulating the vote‖).

A publicly traded corporation cannot avoid going through DTC. Federal law 

requires that when submitting a matter for a stockholder vote, an issuer must send a 

broker search card at least twenty business days prior to the record date to any ―broker, 
13

dealer, voting trustee, bank, association, or other entity that exercises fiduciary powers in 

nominee name‖ that the company ―knows‖ is holding shares for beneficial owners. 17 

C.F.R. § 240.14a–13(a). Rule 14a–13 provides that ―[i]f the registrant‘s list of security 

holders indicates that some of its securities are registered in the name of a clearing 

agency registered pursuant to Section 17A of the Act (e.g.,  ̳Cede & Co.,‘ nominee for 

Depository Trust Company), the registrant shall make appropriate inquiry of the clearing 

agency and thereafter of the participants in such clearing agency.‖ Id. § 240.14a–13(a) 

n.1 (emphasis added). An issuer cannot look only at its own records and treat Cede as a 

single, monolithic owner.

B. The Funds Seek Appraisal, And DTC Certificates The Shares.

Dell was a publicly traded company and the merger involved a stockholder vote, 

so Dell had to go through the federally mandated process to identify the custodial banks 

and brokers that held its shares through DTC, then send information through them to the 

beneficial holders. The list of DTC-participants included JP Morgan and BONY. 

Through JP Morgan and BONY, information reached the Funds.

The Funds exercised appraisal rights for the 922,975 shares that are the subject of 

this motion. Because they owned their shares in street name through their custodial 

banks, the Funds caused Cede to demand appraisal on their behalf. On July 12, 2013, 

before the vote on the merger, Cede made appraisal demands for the Funds.

DTC held all of the Dell shares registered in street name in fungible bulk, which 

enabled DTC to track their ownership through electronic bookkeeping entries in the 

FAST Account. When the Funds caused Cede to make appraisal demands for their 
14

shares, DTC moved a corresponding number of shares out of the FAST Account by 

directing Dell‘s transfer agent to issue uniquely numbered certificates. By issuing paper 

certificates, DTC sought to avoid inadvertently surrendering the shares for the merger 

consideration along with other shares in the FAST Account. This procedure protected 

Dell, which effectively had ―the responsibility of overseeing the surrender of shares after 

a merger.‖ Ala. By-Prods., 857 A.2d at 263. 

Dell‘s transfer agent is the American Stock Transfer & Trust Company, LLC (the 

―Transfer Agent‖). On July 24, 2013, at DTC‘s request, the Transfer Agent issued paper 

stock certificates in Cede‘s name for the shares owned beneficially by the Funds

C. DTC Delivers The Certificates To The Custodians, Who Re-Title Them.

As a matter of course, DTC does not act as a custodian of paper stock certificates 

for its participants, even if those certificates are issued in Cede‘s name. A participant can 

pay to have a vault at DTC for its certificates, but that is a separate service. Unless a 

participant has arranged for a vault, DTC will contact the participant and deliver the 

paper certificate to the participant for safekeeping. 

JP Morgan and BONY do not have vaults at DTC. Therefore, after the Transfer 

Agent delivered the paper certificates for the Funds‘ shares, DTC made arrangements to 

deliver them to JP Morgan and BONY. 

When a DTC participant receives a paper certificate from DTC, procedures differ. 

Some leave the certificates in Cede‘s name and place them in their vaults. Others require 

that the certificates be re-registered in the names of their own nominees. JP Morgan‘s and

BONY‘s internal policies do not permit them to hold paper certificates unless the shares 
15

are titled in the names of their own nominees. The custodial banks therefore instructed 

Cede to authorize the shares to be re-titled in the names of their nominees. 

On August 5, 2014, Cede endorsed the Funds‘ certificates to the custodial banks. 

Over the next three weeks, the custodial banks arranged for the Transfer Agent to reissue 

the shares in the names of their nominees. The Transfer Agent reissued the shares held 

for Milliken and Manulife in the name of Hare & Co. and the shares held for CurtissWright in the name of Mac & Co., which are BONY‘s nominees. The Transfer Agent 

reissued the shares held for T. Rowe Price in the name of Kane & Co. and the shares held 

for Northwestern in the name of Cudd & Co., which are JP Morgan‘s nominees.

There was an additional hiccough at BONY. Shortly after the Transfer Agent

reissued the shares, BONY conducted a routine weekly sweep of its vault. BONY found 

the stock certificates for the shares beneficially owned by Manulife and Milliken and redeposited them with DTC in the FAST Account.

On September 12, 2013, a majority of Dell‘s shares voted in favor of the merger.

A few weeks later, on October 4, BONY realized that the shares beneficially owned by 

Manulife and Milliken had been re-deposited in the FAST Account. BONY withdrew 

them from DTC and had new certificates issued in the name of Hare & Co.

Other than taking steps to cause DTC to demand appraisal for their shares through 

Cede, the Funds had no involvement in any of the transfers. The Funds did not explicitly 

approve any or the transfers or cause any of them to take place. The Funds concede that 

under their agreements with their custodial banks, they gave their custodians authority to 

make these types of back-office transfers.
16

D. The Merger Closes, And The Funds Seek Appraisal.

The merger closed on October 29, 2013. The Funds filed timely petitions seeking 

appraisal. They disclosed the issues relating to the re-titling of their shares. Dell moved 

for summary judgment.

II. LEGAL ANALYSIS

Under Court of Chancery Rule 56, summary judgment ―shall be rendered 

forthwith if . . . there is no genuine issue as to any material fact and . . . the moving party 

is entitled to a judgment as a matter of law.‖ Ct. Ch. R. 56(c). The facts underlying the 

motion are undisputed, and its outcome turns purely on the following question of law: 

Does the Continuous Holder Requirement bar a beneficial owner from pursuing appraisal 

if there has been an administrative transfer at the depository level? Under current law, the 

answer is yes. 

Read together, the Continuous Holder Requirement and the Record Holder 

Requirement mandate that an appraisal petitioner ―continuously hold‖ the shares for 

which appraisal is sought as a ―holder of record‖ through the effective date of the merger. 

8 Del. C. § 262(a). There is no dispute that the Funds continuously held their shares as 

beneficial owners through the effective date of the merger. There is also no dispute that 

the Funds‘ custodial banks continuously held the shares on behalf of the Funds through 

the effective date of the merger. The outcome of the motion turns on the implications of a 

single event for ―holder of record‖ status: a change in the name on the shares from DTC‘s 

nominee to the custodial banks‘ nominees.
17

The appraisal statute does not define what it means to be a ―holder of record.‖ No 

other provision of the DGCL defines what it means to be a ―holder of record.‖ The 

current interpretation is circular: ―The appraisal statute confers the right to an appraisal 

only upon the stockholder of record in the corporation. Consequently, only the person 

appearing on the corporate records as the owner of stock in the corporation may qualify 

for an appraisal . . . .‖ Engel v. Magnavox Co., 1976 WL 1705, at *1 (Del. Ch. Apr. 22, 

1976). But that statement begs the question: What are the records of the corporation for 

purposes of determining legal ownership?

In a simplified model of a Delaware corporation, the corporate secretary maintains 

a document called the stock ledger. From the corporation‘s standpoint, the stock ledger 

identifies all of the legally relevant transactions in the corporation‘s shares, including the 

date when any person acquires shares and the number of shares acquired, and the date 

when any person transfers shares and the number of shares sold. If a holder transfers 

shares without notifying the corporation, the corporation is not required to discover that 

fact, nor need the corporation voluntarily treat the new holder as the legal owner. The 

corporation can rely on its records until a stockholder takes proper steps to transfer title to 

the shares. Under this system, a paper stock certificate is not actually a share of stock. It 

is only evidence of ownership of a share of stock.5

 

5

See 8 Del. C. § 158 (―The shares of a corporation shall be represented by 

certificates, provided that the board of directors of the corporation may provide by 

resolution or resolutions that some or all of any or all classes or series of its stock shall be 

uncertificated shares.‖) (emphasis added); Testa v. Jarvis, 1994 WL 30517, at *6 (Del. 

Ch. Jan. 12, 1994) (Allen, C.) (noting that ―possession of a certificate does not itself 
18

If the corporation needs to determine who its current stockholders are as of a 

particular date, the corporate secretary uses the stock ledger to prepare a stock list. The 

stock list identifies those stockholders who own stock as of a given date, together with 

the number and type of shares owned, based on the records. See 8 Del. C. § 219(a) & (c). 

Evidencing the connection between this process and the concept of a record holder, the 

date used for preparing the stock list is called the ―record date.‖6

For most contemporary public corporations, the simplified model no longer holds. 

Virtually all public corporations have outsourced the maintaining of the stock ledger to a 

transfer agent, as Dell did. The stock ledger and the stock list as of a particular record 

date are corporate records, but they exist and are maintained outside the corporation.

 

constitute ownership of shares‖); Haskell v. Middle States Petroleum Corp., 165 A. 562, 

563 (Del. Ch. 1933) (―[A] person may be the legal owner of stock even though he has 

received no certificate; therefore, the certificate is only evidence of ownership.‖); Smith 

v. Universal Serv. Motors Co., 147 A. 247, 248 (Del. Ch. 1929) (―The status of 

stockholder in a corporation is not dependent on the issuance to him of a certificate of 

stock. The certificate is only an evidence of ownership—a muniment of title.‖); Mau v. 

Mont. Pac. Oil Co., 141 A. 828, 831 (Del. Ch. 1928) (―Possession of a certificate is not 

essential to the ownership of stock.‖); Baker v. Bankers’ Mortg. Co., 135 A. 486, 488 

(Del. Ch. 1926) (―Certificates of stock are themselves only evidence of shares. They are 

not the shares.‖) (Wolcott, Jos., C.), aff’d sub nom. Sohland v. Baker, 141 A. 277 (Del. 

1927). 

6

See id. § 213 (establishing procedures for fixing a record date for determining the 

stockholders of record entitled (i) to notice of any meeting of stockholders (§ 213(a)), (ii) 

to vote at any meeting of stockholders (§ 213(a)), (iii) to act by written consent without a 

meeting (§ 213(b)), or (iv) to receive a dividend or other distribution or allotment of 

rights (§ 213(c))).
19

A. Existing Delaware Law Applied To This Case

If the only relevant records are those maintained by Dell or the Transfer Agent, 

then summary judgment must be granted in favor of Dell. Under existing precedent, Cede 

was the stockholder of record for purposes of the Funds‘ shares and therefore made the 

appraisal demand. ―The record holder must . . . continuously hold such shares [seeking 

appraisal] through the effective date of the merger . . . .‖ In re Appraisal of Transkaryotic 

Therapies, Inc., 2007 WL 1378345, at *3 (Del. Ch. May 2, 2007). It is the ―record 

holder—not the beneficial owner—[that] is subject to the statutory requirements for 

showing entitlement to appraisal and demonstrating perfection of appraisal rights under 

Sections 262(a) and (d).‖ In re Ancestry.com, Inc., 2015 WL 66825, at *8 (Del. Ch. Jan. 

5, 2015). The re-titling of a certificated share after the demand but before the effective 

date violates the Continuous Holder Requirement by causing record ownership to change. 

See Nelson v. Frank E. Best Inc., 768 A.2d 473, 477 (Del. Ch. 2000) (Strine, V.C.) 

(noting that after Cede transferred record ownership of shares seeking appraisal to

appraisal petitioner ―Cede‘s demand was invalid, because Cede would not  ̳continuously‘ 

be the holder of record between the . . . date of Cede‘s demand and the effective date of 

the Merger, as is required by 8 Del. C. § 262(a).‖). 

There is no dispute that on Dell‘s records as maintained by the Transfer Agent, 

legal ownership of Funds‘ shares changed from Cede to the four current nominees: Mac 

& Co., Kane & Co., Hare & Co., and Cudd & Co. When the shares were re-titled, the 

Funds lost their appraisal rights.
20

In an effort avoid this result, the Funds cite Alabama By-Products and contend that 

―because the right to appraisal vests at the time of perfection, the redemption of the 

beneficial owners‘ shares by the custodian and record holder without the knowledge of 

the beneficial owners [does] not extinguish the beneficial owners‘ right to appraisal of the 

fair value of their shares.‖ Petitioners‘ Br. at 13. The issue in Alabama By-Products was 

whether the surrender by DTC of the appraisal petitioners‘ shares and the subsequent 

distribution of the merger consideration deprived the appraisal petitioners of properly 

perfected appraisal rights. At the time of the surrender, more than sixty days had elapsed

since the closing of the merger, and an appraisal petition had been filed within the 

statutory time period. Under the appraisal statute, a stockholder cannot unilaterally 

withdraw an appraisal demand more than sixty days after the merger closes, and any 

withdrawal after the filing of a petition requires court approval. 8 Del. C. § 262(h). The 

Delaware Supreme Court held that DTC‘s surrender of the shares more than sixty days 

after the merger closed, post petition, and without court approval did not compromise the 

petitioners‘ appraisal rights because the surrender did not satisfy the statutory 

requirements.

To bring themselves within the scope of Alabama By-Products, the Funds describe 

their appraisal rights as ―perfected,‖ but the only step in the statutory process that had 

been completed at the time of the re-titling was the making of a demand. The merger had 

not yet closed, the time for unilateral withdrawals had not yet elapsed, and no appraisal 

petition had been filed. When the Funds‘ shares were re-titled, their appraisal rights 

remained fragile and easily lost through voluntary action by the holder. The custodial 
21

banks instructed DTC and the Transfer Agent to re-title the shares, and under current law, 

ownership changes driven by DTC‘s role in the depository system are regarded as 

voluntary transfers. At the stage when the re-titling occurred, the statutory provisions 

found controlling in Alabama By-Products did not yet apply.

The Funds also contend that the Continuous Holder Requirement should be 

―liberally construed for the protection of objecting stockholders, within the boundaries of 

orderly corporate procedures and the purpose of the requirement,‖ which is a passage 

quoted from Raab v. Villager Industries, Inc., 355 A.2d 888, 891 (Del. 1976). But as the 

language of this passage shows, Raab addressed the procedure for making objections 

under the version of the appraisal statute that existed before 1976. In that statutory 

scheme, a stockholder who wanted to exercise appraisal rights had to send a written 

objection to the corporation before the merger vote, then submit a written demand for 

appraisal after the merger vote. See 2 Balotti & Finkelstein, supra, § 262 at IX-159. The 

purpose of the first step—the written objection—was ―merely to give notice.‖ Zeeb v. 

Atlas Powder Co., 87 A.2d 123, 127 (Del. 1952). The Delaware Supreme Court 

construed the objection requirement more liberally than the demand requirement because 

―[t]he purpose of the objection [was] of lesser importance than the demand for payment.‖ 

Raab, 355 A.2d at 891. 

Stockholders seeking appraisal no longer have to make a separate objection, so 

Raab‘s language regarding the ―liberal construction‖ of this requirement is no longer 

relevant. Delaware decisions have not generally construed other aspects of the appraisal 

statute liberally in favor of stockholders. See generally Jesse A. Finkelstein & John D. 
22

Hendershot, Appraisal Rights in Mergers & Consolidations at A-97 (5th ed. 2010)

(collecting cases). The Delaware Supreme Court has endorsed a principle of strict 

construction, explaining that ―[b]y exacting strict compliance . . . , the appraisal statute 

ensures the expedient and certain appraisal of stock.‖ Ala. By-Prods., 657 A.2d at 263. In 

subsequently re-affirming its adherence to the principle, the Delaware Supreme Court 

cautioned that strict construction should be applied ―even-handedly, not as a one-way 

street.‖ Berger v. Pubco Corp., 976 A.2d 132, 144 (Del. 2009). In other words, both 

petitioners and the corporation must adhere strictly to the appraisal statute‘s 

requirements; neither gets the benefit of the doubt under more a lenient rule of ―liberal 

construction.‖ Given these pronouncements and existing precedent, the Funds cannot rely 

on a principle of liberal construction to preserve their appraisal rights.

Finally, the Funds have pointed to the fact that they did not know about or approve 

the nominee-level transfers. It is undisputed that their agreements with their custodial 

banks permitted the banks to re-title the shares. Our law currently treats ownership 

changes driven by the depository system as voluntary transfers, making this a risk that the 

Funds accepted. By choosing to hold through intermediaries, the Funds assumed the risk 

that the intermediaries might ―act contrary to [their] interests.‖ Ala. By-Prods., 657 A.2d 

at 262.

B. The Possibility Of A Different Approach

There is another possible interpretation of the Record Holder Requirement. When 

Congress and the SEC created the depository system, they added DTC at the bottom of 

the ownership chain and introduced Cede as the new omnibus record holder, but the 
23

identities of the custodial banks and brokers did not go away. They continue to appear on 

the DTC participant list. As discussed in the Factual Background, the DTC participant list 

is an integral part of the federally mandated ownership scheme. A publicly traded 

corporation cannot avoid going through DTC. See 17 C.F.R. § 240.14a–13(a). Rule 14a–

13 requires that the issuer ―make appropriate inquiry‖ of DTC to identify the custodial 

banks and brokers who own shares through Cede. Id. § 240.14a–13(a) n.1. An issuer 

cannot rely on the stock ledger maintained by its transfer agent, pretend that Cede is a 

single record holder, and ignore the Cede breakdown. For purposes of federal law, Cede 

is not a record holder. 15 U.S.C. § 78c(23)(A). The record holders are the banks and 

brokers on the DTC participant list. 17 C.F.R. § 240.14c–1(i).

Were I writing on a blank slate, I would hold that the ―records‖ of the corporation 

for purposes of determining who is a ―stockholder of record‖ include the DTC participant 

list. Under this interpretation, the custodial banks and brokers who appear on the DTC 

participant list would be stockholders of record for purposes of Delaware law, just as they 

are for federal law and just as they were before share immobilization. If that rule applied, 

then the motion for summary judgment would be denied, because there was no change of 

ownership at the DTC participant level.

In my view, this interpretation better reflects current reality. Viewed 

pragmatically, the federal policy of share immobilization compelled publicly traded 

Delaware corporations to outsource one part of the stock ledger—the DTC participant 

list—to DTC, just as Delaware corporations have chosen to outsource other parts of the 

stock ledger to transfer agents. Before share immobilization, banks and brokers appeared 
24

on the stock ledger as registered holders. After share immobilization, the same banks and 

brokers appear on the stock ledger indirectly through DTC and the Cede breakdown. Just 

as Delaware law treats the outsourced stock ledger as a record of the corporation, albeit 

one maintained by a third party, Delaware law likewise should treat the outsourced DTC 

participant list as a record of the corporation, albeit one maintained by DTC.

Adopting this approach would recognize that the changes in ownership driven by 

the role of DTC in the depository system result from the federal policy of share 

immobilization. This case provides a fitting example. But for the federal mandate, JP 

Morgan and BONY would have appeared through their nominees on the stock ledger 

maintained by the Transfer Agent. There would have been no need to re-title the shares. 

The Funds lost their appraisal rights because of a system imposed by federal law.

But in light of existing precedent, I do not believe that this court is free to interpret 

the ―holder of record‖ language in this manner. I previously advocated treating DTC 

participants as holders of record for purposes of analyzing whether the shares they held 

could be voted without a DTC omnibus proxy. See Kurz v. Holbrook, 989 A.2d 140 (Del. 

Ch.), aff’d in part, rev’d on other grounds sub nom. Crown EMAK P’rs, LLC v. Kurz, 

992 A.2d 377 (Del. 2010). The Kurz decision posited that recognizing DTC participants 

as record owners would have beneficial effects for other areas of Delaware law, including 

appraisal. See Kurz, 989 A.2d at 174 (―In some circumstances, Delaware corporations 

should benefit from looking through DTC to the holdings of the participant banks and 

brokers. Reducing the number of shares available for appraisal arbitrage is one area that 

springs to mind.‖). 
25

On appeal, the Delaware Supreme Court reversed the Kurz decision on other 

grounds, rendering it unnecessary for the high court to consider whether DTC 

participants should be treated as record holders. The Delaware Supreme Court 

nevertheless characterized the discussion of the DTC participant list as ―obiter dictum‖ 

that was ―without precedential effect.‖7The high court stated that 

a legislative cure is preferable. The DGCL is a comprehensive and carefully 

crafted statutory scheme that is periodically reviewed by the General 

Assembly. Indeed, the General Assembly made coordinated amendments to 

section 219 and section 220 in 2003. Any adjustment to the intricate 

scheme of which section 219 is but a part should be accomplished by the 

General Assembly through a coordinated amendment process.

 

7

EMAK P’rs, 992 A.2d at 398. There is perhaps some irony in using dictum to 

characterize a portion of a decision as dictum, although perhaps greater irony in using 

dictum to instruct trial judges not to use dictum. See Gatz Props., LLC v. Auriga Capital 

Corp., 59 A.3d 1206 (Del. 2012). See generally Mohsen Manesh, Damning Dictum: The 

Default Duty Debate In Delaware, 39 J. Corp. L. 35, 54-63 (2013) (exploring tensions in 

Gatz). My discussion of an alternative approach to the Record Holder Requirement is 

admittedly dictum. I considered the alternative of setting forth these views in a law 

review article or speech, as Gatz suggested, but it seemed to me that to the extent a trial 

judge wished to suggest to an alternative approach that the Delaware Supreme Court 

might consider, a judicial opinion that could be reviewed by the Delaware Supreme Court 

would provide an appropriate and efficient vehicle. See, e.g., In re Cox Commc’ns, Inc. 

S’holder Litig., 879 A.2d 604, 642-48 (Del. Ch. 2005) (Strine, V.C.) (recommending 

change in standard of review for controller squeeze-outs); Agostino v. Hicks, 845 A.2d 

1110, 1121 (Del. Ch. 2004) (recommending change in standard for distinguishing 

between direct and derivative actions); In re Caremark Int’l Inc. Deriv. Litig., 698 A.2d 

959, 967-70 (Del. Ch. 1996) (Allen, C.) (recommending change in the law‘s approach to 

the duty of oversight). One obvious benefit is that in the event of an appeal, should there 

by one, the Delaware Supreme Court will have all of the arguments before it in one place. 

Unless and until the alternative approach discussed in this opinion is adopted by the 

Delaware Supreme Court, no one should be misled into believing that it has precedential 

effect. Cf. Gotham P’rs, L.P. v. Hallwood Realty P’rs, L.P., 817 A.2d 160, 167 (Del. 

2002) (expressing concern that dictum in trial court opinion ―should not be ignored 

because it could be misinterpreted in future cases as a correct rule of law‖ and ―could be 

relied upon adversely by courts, commentators and practitioners in the future‖).
26

EMAK P’rs, 992 A.2d at 398.

I respectfully disagree with expressed preference for a legislative cure. In my 

view, the question of what constitutes the records of the corporation for purposes of 

determining who is a ―holder of record‖ is a quintessential issue of statutory 

interpretation appropriate for the judiciary to address. As the Delaware Supreme Court 

has explained, ―[i]n our constitutional system, this court‘s role is to interpret the statutory 

language that the General Assembly actually adopts, even if unclear and explain what we 

ascertain to be the legislative intent without rewriting the statute to fit a particular policy 

position.‖ Taylor v. Diamond State Port Corp., 14 A.3d 536, 542 (Del. 2011). ―[T]he 

Constitution invests the Judiciary, not the Legislature, with the final power to construe 

the law.‖ Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 325 (1992). The 

interpretation of statutory text is ―one of the Judiciary‘s characteristic roles.‖ Japan 

Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221, 230 (1986).

The Delaware courts play a particularly significant role in the corporate arena.8

Historically the judiciary, rather than the General Assembly, has taken the lead when 

 

8

Lawrence Hamermesh, How We Make Law in Delaware, and What to Expect 

from Us in the Future, 2 J. Bus. & Tech. L. 409, 409 (2007) (―The best-known of the 

principal policymakers in Delaware are the members of the judiciary.‖); Marcel Kahan & 

Edward Rock, Symbiotic Federalism and the Structure of Corporate Law, 58 Vand. L. 

Rev. 1573, 1591 (2005) (―The most noteworthy trait of Delaware‘s corporate law is the 

extent to which important and controversial legal rules are promulgated by the judiciary, 

rather than enacted by the legislature.‖); Jill E. Fisch, The Peculiar Role of the Delaware 

Courts in the Competition for Corporate Charters, 68 U. Cin. L. Rev. 1061, 1075 (2000) 

(―Delaware corporate law relies on judicial lawmaking to a greater extent than other 

states.‖).
27

addressing corporate law issues.

9

Two leading commentators have noted that the 

Delaware Supreme Court has not traditionally deferred to the prospect of legislative 

action. Rather, ―the Delaware Supreme Court has shown a certain degree of discomfort 

with, perhaps even hostility to, legislative intrusions into its domain.‖

10

The significant role played by the Delaware courts stems from the fact that, contra 

EMAK, the DGCL has not been viewed traditionally as a comprehensive code, but rather 

as a broadly enabling statute that leaves ample room for private ordering and 

interpretation.11 In an article written while serving as a Vice Chancellor, Chief Justice 

 

9

See, e.g., Hamermesh, supra, at 414 (―[W]e view the courts as the first line of 

defense, the first responders in dealing with complex situations. When drafting 

legislation, we abstain from addressing complicated matters that are hard to figure out, 

allowing them to develop through the common law.‖); Omari Scott Simmons, Branding 

the Small Wonder: Delaware’s Dominance and the Market for Corporate Law, 42 U. 

Rich. L. Rev. 1129, 1159 (2008) (―As a result of the legislature‘s preference against 

regulatory prescription and its deference to the judicial branch, Delaware courts are often 

the first responders to corporate law controversies.‖); see also Lawrence A. Hamermesh 

& Norman M. Monhait, A Delaware Response to Delaware‘s Choice, 39 Del. J. Corp. L. 

71, 75 (2014) (agreeing that the Corporation Law Council and the General Assembly 

―have often subscribed to a . . .  ̳wait-and-see approach‘ proposing and enacting, 

respectively, amendments to the DGCL only when there are persuasive reasons to do so‖ 

and endorsing a continuing policy of ―reticence to initiate legislative action‖).

10 Kahan & Rock, Symbiotic Federalism, supra, at 1594. The commentators 

referred to ―numerous examples of this tendency‖ and provided five examples. Id. at 

1594-96. All involved statutory interpretation. Id. One involved the interpretation of the 

appraisal statute. Id. (citing the narrow interpretation given to language in 8 Del. C. § 

262(h) in Weinberger v. UOP, Inc., 457 A.2d 701, 713 (Del. 1983)).

11 See, e.g., Shintom Co. v. Audiovox Corp., 888 A.2d 225, 227 (Del. 2005) 

(describing the DGCL as ―an enabling statute that provides great flexibility for creating 

the capital structure of a Delaware corporation.‖); In re Topps Co. S’holders Litig., 924 

A.2d 951, 958 (Del. Ch. 2007) (Strine, V.C.) (describing the DGCL as ―a broadly

enabling statute‖); Jones Apparel Gp., Inc. v. Maxwell Shoe Co., 883 A.2d 837, 845 (Del. 
28

Strine distinguished between the ―Delaware Model,‖ in which the statute is ―largely 

enabling and provides a wide realm for private ordering,‖ and the ―Mandatory Statutory 

Model,‖ under which the corporate code would be ―quite detailed and prescriptive.‖ Leo 

E. Strine, Jr., Delaware’s Corporate-Law System: Is Corporate America Buying an 

Exquisite Jewel or A Diamond in the Rough? A Response to Kahan & Kamar’s Price 

Discrimination in the Market for Corporate Law, 86 Cornell L. Rev. 1257, 1260 (2001).

Because the latter type of statute ―would dictate how things should happen, there would 

be less room for judicial interpretation, but also less space for director choice.‖ Id. Chief 

Justice Veasey has drawn a similar distinction in his own scholarly writings:

A flexible or indeterminate regime, such as we have had in Delaware, is 

distinct from a rigid codification system that prevails in many systems 

outside the United States. That is part of the genius of our law. Life in the 

boardroom is not black and white; directors and officers make decisions in 

shades of gray all the time. A ―clear‖ law, in the sense of one that is 

codified, is simply not realistic . . . . There can be no viable corporate

governance regime that is founded on a ―one size fits all‖ notion. 

 

Ch. 2004) (Strine, V.C.) (noting that the DGCL is ―is widely regarded as the most 

flexible in the nation because it leaves the parties to the corporate contract (managers and 

stockholders) with great leeway to structure their relations, subject to relatively loose 

statutory constraints‖); Matter of Appraisal of Ford Hldgs., Inc. Preferred Stock, 698 

A.2d 973, 976 (Del. Ch. 1997) (Allen, C.) (explaining that ―unlike the corporation law of 

the nineteenth century, modern corporation law contains few mandatory terms; it is 

largely enabling in character‖); accord E. Norman Veasey & Christine T. Di Guglielmo, 

History Informs American Corporate Law: The Necessity of Maintaining A Delicate 

Balance in the Federal “Ecosystem”, 1 Va. L. & Bus. Rev. 201, 204 (2006) (―Corporate 

statutes, like the Delaware General Corporation Law, continue to take an enabling 

approach and allow wide latitude for private ordering.‖); Edward P. Welch & Robert S. 

Saunders, Freedom and Its Limits in the Delaware General Corporation Law, 33 Del. J. 

Corp. L. 845, 847 (2008) (―The DGCL gives incorporators enormous freedom to adopt 

the terms they believe are most appropriate for the organization, finance, and governance 

of their particular enterprise.‖).
29

E. Norman Veasey & Christine T. Di Guglielmo, What Happened in Delaware 

Corporate Law and Governance from 1992-2004? A Retrospective on Some Key 

Developments, 153 U. Pa. L. Rev. 1399, 1412-13 (2005) (footnotes omitted). The 

―skeletal framework‖ set forth in the flexible DGCL necessarily requires judicial 

interpretation. Id. at 1411.

A review of applicable precedent teaches that for purposes of the issue discussed 

in this case, there is ample room for a continuing judicial role. A statutory amendment is 

one method of modernizing the law, but it is not the only way. 

1. The Creation Of The Record Holder Requirement

The statutory appraisal remedy dates back to the adoption of the DGCL in 1899. 

The original statute contained a section that stated:

If any stockholder in either corporation consolidating aforesaid, who 

objected thereto in writing, shall within twenty days after the agreement of 

consolidation has been filed and recorded, as aforesaid, demand in writing 

from the consolidated corporation payment of his stock, such consolidated 

corporation shall, within three months thereafter, pay to him the value of 

the stock at the date of consolidation.

21 Del. Laws c. 273 § 56 (1899). The provision referred only to the right of ―any 

stockholder‖ to seek payment of the value of his stock, without specifying whether the 

stockholder had to be a holder of record. 

Nearly five decades later, despite a series of intervening amendments, the 

Delaware appraisal statute continued to refer to ―any stockholder‖ having the right to 

seek appraisal. The question of whether a beneficial owner could seek appraisal was 

finally raised in a proceeding arising out of the merger between Salt Dome Oil 
30

Corporation and Gulfboard Oil Corporation. See Schenck v. Salt Dome Oil Corp., 34 

A.2d 249 (Del. Ch. 1943), rev’d, 41 A.2d 583 (Del. 1945). 

William Schenck and his fellow petitioners owned a total of 7,100 shares of Salt 

Dome common stock, which were registered on its books in the name of Guido 

Pantaleoni, Jr. They also owned a total of 10,000 shares of Gulfboard common stock, 

which were registered on its books in the name of Berberich & Co. The petitioners made 

timely objections to the merger and submitted timely demands for appraisal. They did so 

in their own names, although their objections and demands identified the record holders 

and the number of shares for which appraisal was sought. The respondent corporations 

argued that the petitioners could not seek appraisal unless their names appeared on the 

stock ledger, regardless of whatever other information they might provide or 

documentation they might introduce to substantiate their ownership. 

Chancellor Harrington rejected this argument, reasoning that on the facts 

presented, a court of equity could recognize the petitioners as the real owners of the 

shares. Schenck, 34 A.2d at 252. He declined to construe the term stockholder ―in a 

strictly legal sense‖ as limited to holders of record. Id. Instead, he reasoned that ―Section 

61 of the General Corporation Law [the appraisal statute] is clearly for the protection of 

objecting shareholders [and] should be liberally construed to that end.‖ Id. Although the 

Chancellor acknowledged that a corporation can only look to its stock list to determine 

who its stockholders are, he concluded that ―the real owner of the shares, nevertheless, 

has substantial rights that may be materially affected by a corporate consolidation.‖ Id.
31

The companies appealed, and the Delaware Supreme Court took the opposite 

view. In reaching its conclusion, the high court discussed (i) the nature of the appraisal 

remedy, which it regarded as an action at law rather than a proceeding in equity, (ii) 

existing authorities which said that a corporation could rely exclusively on the 

information in its records to determine stockholder status, and (iii) a balancing of 

competing public policies, in which the importance of certainty and predictability 

prevailed, particularly given the absence of any benefit to the corporation from the thenprevailing system of beneficial ownership.

First, the Delaware Supreme Court viewed the appraisal proceeding as a legal

rather than equitable proceeding. Because appraisal was a statutory remedy, the high 

court reasoned that ―[t]he right of an unregistered transferee of stock to object to a 

proposed agreement of merger must be looked for in the statute.‖ Salt Dome, 41 A.2d at 

587. The court found ―nothing in the language of the statute that makes clear the 

legislative intent to bestow the remedy provided upon an equitable owner of stock, but 

much, indeed, to the contrary.‖ Id. at 588. Rather than an equitable action for breach of 

fiduciary duty, the appraisal proceeding resembled a debt collection action. A stockholder 

could collect an appraisal award ―as other debts are by law collectible, that is, by suit at 

law, judgment at law, and by the usual legal process.‖ Id.

Second, the Delaware Supreme Court summarized existing authorities addressing 

the rights that a beneficial owner had at law:

The term,  ̳stockholder‘, ordinarily, is taken to apply to the holder of the 

legal title to shares of stock. In most jurisdictions registration, or its 

equivalent, is essential to pass the legal title as against the corporation; and 
32

the unregistered transferee is not entitled to the rights and privileges of a 

stockholder in his relations with the corporation. Whatever may be the 

equitable rights that may arise by a delivery of the stock certificate 

accompanied with a power of attorney for its transfer, the legal title and 

legal rights and liabilities of the stockholder of record remain unchanged 

until the transfer is actually accomplished. The record owner may be but the 

nominal owner, and, technically, a trustee for the holder of the certificate, 

but legally he is still a stockholder, and may be treated as the owner by the 

corporation.

Id. at 585 (citations omitted). After reviewing Delaware authorities addressing other 

stockholder rights, most notably the right to vote, the court concluded that only a 

registered stockholder was entitled to exercise legal rights and be treated as a stockholder 

by the corporation. See id. at 585-89.

Third, the Salt Dome court turned to considerations of public policy:

With respect to matters intracorporate affecting the internal economy of the 

corporation, or involving a change in the relationship which the members 

bear to the corporation, there must be order and certainty, and a sure source 

of information, so that the corporation may know who its members are and 

with whom it must treat, and that the members may know, in a proper case, 

who their associates are. Especially is this true in a merger proceeding 

which is essentially an intracorporate affair. The merging corporations are 

entitled to know who the objecting stockholders are so that the amount of 

money to be paid to them may be provided. The stockholders in general are 

entitled to know the dissentients and the extent of the dissent. The 

corporation ought not to be involved in possible misunderstandings or 

clashes of opinion between the non-registered and registered holder of 

shares. It may rightfully look to the corporate books as the sole evidence of 

membership.

Id. at 589 (citation omitted). The Supreme Court reasoned that the relationship between 

the customer and the broker was a voluntary one, making it appropriate to place any 

attendant risk on the stockholder: ―If, for any reason, [a stockholder] chooses to allow his 

shares to be registered on the corporate books in the name of another, it is not a denial of 
33

his right of actual ownership to require him to establish his rights and pursue his remedy 

through the nominee of his own selection.‖ Salt Dome, 41 A.2d at 589. The high court 

therefore held that ―only the registered holder of stock is a  ̳stockholder‘ within the sense

of the word as used in‖ the appraisal statute. Id. 

Importantly for present purposes, Salt Dome only addressed the broker level of the 

beneficial ownership chain. The decision obviously pre-dated the federal policy of share 

immobilization—still three decades in the future—so the Delaware Supreme Court could 

not have considered whether any distinctions were warranted at the depository level of 

ownership, the competing policy considerations raised by the federal response to Wall 

Street‘s paperwork crisis, or the benefits that the system provided to issuers. At the time, 

the decision to hold in street name properly could be regarded as a matter of choice, 

rather than involving at least one level of beneficial ownership (the depository level) that 

resulted from federal law. The Delaware Supreme Court also could regard exclusive 

reliance on the stock ledger as promoting ―order and certainty‖ and providing a ―sure 

source of information.‖ After the federal policy of share immobilization, a legal rule that 

looks no further than Cede has the opposite effect. It masks the implications of beneficial 

ownership and promotes uncertainty.

Perhaps most important, the Salt Dome decision did not pre-judge what documents 

might encompass the appropriate records for determining registered status and whether, 

after the adoption of the depository system, those records should include the DTC 

participant list. What the Salt Dome decision does show, however, is that interpreting the 
34

appraisal statute to determine which stockholders are entitled to appraisal is an 

appropriate subject for the courts.

2. Post-Salt Dome, Pre-Codification Cases

After Salt Dome, the Delaware Supreme Court adhered to the Record Holder 

Requirement in Olivetti Underwood Corp. v. Jacques Coe & Co., 217 A.2d 683 (Del. 

1966) and Carl M. Loeb, Rhoades & Co. v. Hilton Hotels Corp., 222 A.2d 789 (Del. 

1966). The Court of Chancery applied it in Application of General Realty & Utilities 

Corp., 42 A.2d 24 (Del. Ch. 1945). The Olivetti decision is noteworthy because it reframed the corporation‘s prerogative to rely on its records as a restriction on the 

corporation‘s ability to look any further than its records.

The petitioners in Olivetti were brokers who were registered stockholders of 

Olivetti Underwood Corporation. The brokers made appraisal demands in which they 

notified Olivetti that they were record holders and did not beneficially own the stock 

registered in their names. Underwood moved to dismiss the petitions, arguing that the 

brokers failed to submit proof of their authority to act for the beneficial owners. Citing 

Salt Dome, the Court of Chancery reasoned that the corporation ―ha[d] no right to raise 

any issue as to the right of a registered owner to seek a statutory appraisal and such a 

stockholder has no duty to supply proof as to that issue.‖ Abraham & Co. v. Olivetti 

Underwood Corp., 204 A.2d 740, 741 (Del. Ch. 1964). Underwood appealed.

The Delaware Supreme Court affirmed. After quoting Salt Dome at length, the 

high court summarized ―the rule of the Salt Dome case‖ as follows: ―[T]here is no 

recognizable stockowner under the merger-appraisal provisions of our Corporation Law 
35

except a registered stockholder.‖ Olivetti, 217 A.2d at 686. By restating the holding of the 

earlier decision in this fashion, the Delaware Supreme Court expanded the rule. Where 

the Salt Dome decision permitted a corporation to confine itself to dealing with registered 

stockholders in intra-corporate affairs, the Olivetti opinion required it. The court went 

further and stated that the corporation ―should avoid becoming involved in the affairs of 

registered stockholders vis-á-vis beneficial owners,‖ admonishing that ―the relationship 

between, and the rights and obligations of, a registered stockholder and his beneficial 

owner are not relevant issues in a proceeding of this kind.‖ Id. at 686, 687.

3. The Codification Of The Record Holder Requirement

During the 1967 revisions to the DGCL, the General Assembly codified the 

Record Holder Requirement. The new version of the appraisal statute included the 

following language:

When used in this section, the word ―stockholder‖ means a holder of record 

of stock in a stock corporation and as a member of record of a non-stock 

corporation; the words ―stock‖ and ―share‖ mean and include what is 

ordinarily meant by those words and also membership or membership 

interest of a member of a non-stock corporation.

56 Del. Laws c. 50 § 262(a) (1967). In his landmark treatise, Professor Folk explained the 

purpose of the new text.

Section 262(a), as revised in 1967, defines ―stockholder,‖ for purposes of 

the appraisal remedy, as a holder of record. Although the prior statute was 

not couched in terms so confined, the prior cases consistently limited the 

remedy to record owners on the theory that a corporation should, in 

estimating the number of dissenters, be able to rely exclusively upon 

corporate records of stock ownership and should not become involved in 

disputes between registered and nonregistered stockholders. Moreover, the 

unregistered stockholder is not harmed, since it is within the power to 

obtain the advantages of record ownership by a transfer into his own name. 
36

Ernest L. Folk, III, The Delaware General Corporation Law: A Commentary and 

Analysis 373 (1972) (footnotes omitted). Professor Folk also warned that the concept of 

record ownership did not operate only as an impediment to appraisal petitioners: ―The 

registered stockholder requirement cuts both ways. Not only is the corporation entitled to 

look solely to record ownership, but in fact it may ordinarily not inquire into the authority 

of a registered holder to act for beneficial owners.‖ Id. at 374 (footnotes omitted).

All of the qualifications and limitations of the common law version of the Record 

Holder Requirement apply to the statutory version. The amendment pre-dated the federal 

policy of share immobilization, although that initiative soon would loom on the horizon. 

Because the depository system had not yet been established, the General Assembly had 

no ability to consider the depository level of ownership or the competing policy 

considerations that led to its creation. Notably, the language of the statutory provision 

only required that the stockholder be ―a holder of record of stock in a stock corporation 

and as a member of record of a non-stock corporation . . . .‖ It did not specify what 

documents might encompass the appropriate records for determining registered status and 

whether, after the adoption of the depository system, those records should include the 

DTC participant list.

4. Delaware’s Limited Acknowledgement Of Share Immobilization

During the mid-1970s, the SEC implemented the federal policy of share 

immobilization. Delaware decisions largely ignored this development. Rather than 

distinguishing between the broker level and the depository level, they treated both as a 
37

matter of convenience that resulted exclusively from the private contractual relationship 

between a broker and its clients. That perception was inaccurate.

A representative decision is Carico v. McCrory Corp., 4 Del. J. Corp. L. 595 (Del. 

Ch. July 13, 1978). The defendant corporation received a timely written objection from 

the beneficial holder of the corporation‘s stock. The objection failed to disclose the 

identity of the record holder, Cede. The corporation objected to the claim on the ground 

that a proper written objection was not received from or on behalf of the record holder of 

the stock in issue. This court agreed, noting that ―[t]t is well established that an objection 

which does not enable the resulting corporation to identify the actual record holder is 

insufficient.‖ Id. at 598. The court reasoned similarly in Engel v. Magnavox Co., 1976 

WL 1705, as did the Delaware Supreme Court in Raab. In fairness, these decisions 

involved merger objections made by beneficial owners at the top of the ownership chain, 

so it did not matter whether the record owner was Cede or a broker or custodial bank. In 

either case, the wrong party made the objection.

In contrast to these decisions, when considering actions brought under a different 

section of the DGCL, the Court of Chancery showed greater sensitivity to the depository 

revolution. When stockholders sought to obtain a stock list under Section 220, Delaware 

decisions held that the Cede breakdown was part of the list.12 Ever since, Delaware 

 

12 See Hatleigh Corp. v. Lane Bryant, Inc., 428 A.2d 350 (Del. Ch. 1981); 

Giovanini v. Horizon Corp., 1979 WL 178568 (Del. Ch. Sept. 10, 1979). 
38

decisions have ordered the production of a Cede breakdown as part of the stock list.13 The 

decisions did not limit stockholder status to the names appearing on the stock ledger, in 

which case the inquiry would have stopped with Cede and the breakdown would have 

been irrelevant. See Olson v. Buffington, 1985 WL 11575, at *3 (Del. Ch. July 17, 1985)

(―This Court has recognized that a party entitled to a stocklist pursuant to § 220 is also 

entitled to a Cede breakdown even though technically Cede is the record holder on the 

company‘s books.‖).

5. An Opportunity Lost: The Enstar Decisions

An opportunity to confront the implications of the depository system for appraisal 

finally arose in litigation arising out of a merger involving Enstar Corporation. See In re 

Appraisal of Enstar Corp. (Enstar I), 1986 WL 8062 (Del. Ch. July 17, 1986), rev’d sub 

nom. Enstar Corp. v. Senouf (Enstar II), 535 A.2d 1351 (Del. 1987). The litigation began 

as an appraisal proceeding, but Enstar reached a global settlement of the appraisal 

litigation. After Enstar refused to pay two of the appraisal petitioners, the matter 

transformed itself into a breach of contract case, with the petitioners seeking to enforce 

their entitlement to the settlement consideration.

 

13 E.g., Berger v. Pubco Corp., 2008 WL 4173860, at *3 (Del. Ch. Sept. 8, 2008);

Wynnefield P’rs Small Cap Value, L.P. v. Niagara Corp., 2006 WL 2521434, at *2 (Del. 

Ch. Aug. 9, 2006); Envtl. Diagnostics, Inc. v. Disease Detection Intern., Inc., 1988 WL 

909658, at *3 (Del. Ch. July 15, 1988) (Allen, C.); RB Assocs. of N.J., L.P. v. Gillette 

Co., 1988 WL 27731, at *2 (Del. Ch. Mar. 22, 1988) (Allen, C.); Shamrock Assocs. v. 

Tex. Am. Energy Corp., 517 A.2d 658, 661 (Del. Ch. 1986); Weiss v. Anderson, Clayton 

& Co., 1986 WL 5970, at *4 (Del. Ch. May 22, 1986) (Allen, C.).
39

One petitioner was Lucie Senouf. Before the merger, she held 10,441 shares in an 

account with Drexel Burnham Lambert Incorporated, which in turn held them through 

DTC. The other petitioner was Margaret Earle. Before the merger, she held 20,000 shares 

in an account with Prudential-Bache Securities Inc., which in turn held them through 

DTC. Neither Senouf nor Earle caused Cede to make an appraisal demand. An individual 

named Mr. Champy made the demand for Senouf. Prudential-Bache made a demand for 

Earle. Enstar argued that neither petitioner had validly perfected appraisal rights and was 

not entitled to participate in the settlement.

Senouf and Earle sought to take advantage of the settlement, and the case went to 

trial before then-Vice Chancellor, later Justice Hartnett. The petitioners did not argue 

that, by virtue of the depository system and the DTC participant list, Drexel and 

Prudential-Bache should be considered stockholders of record. Instead, they contended 

that the disclosures in Enstar‘s proxy statement did not accurately describe the role of 

DTC and Cede and misleadingly stated that ―[a] record holder such as a broker who 

holds Common Shares . . . as nominee for beneficial owners . . . must exercise appraisal 

rights on behalf of such beneficial owners . . . .‖ Enstar I, 1986 WL 8062, at *4 

(emphasis added). 

Vice Chancellor Hartnett held that on the facts presented, Senouf and Earle had 

satisfied the Record Holder Requirement. He described the depository system in some 

detail, although predominantly as a voluntary choice by brokers. To get the flavor, it is 

worth quoting his description at length:
40

CEDE & Co. is a partnership used by The Depository Trust Company as its 

nominee to hold securities for its participants—all of which are brokerage 

firms, banks and other financial institutions. Neither The Depository Trust 

Company nor CEDE & CO. hold any shares for themselves but only hold 

shares as nominees for the participants in The Depository Trust Company. 

At the time of the merger CEDE & Co. was listed on the books of 

ENSTAR as holding over 7 million shares of its stock and there was no 

breakdown on the books of ENSTAR of the actual beneficial ownership of 

the CEDE holdings.

The use of CEDE & Co. and similar central security depositories to hold 

shares for stockbrokers, which shares are in turn held by the stockbrokers 

for their customers, has emerged as a major, if not dominant, method for 

the holding of shares of publicly traded corporations. The function 

performed by the central security depositories is to provide a central facility 

for the storage of enormous numbers of stock certificates and to provide a 

means for the transfer of shares without the actual transfer of certificates.

* * *

The publicly held corporations are well aware of the system and it is 

obviously to their advantage to have their shares held by central security 

depositories because this aids capital formation and it relieves the 

corporation of the paperwork which would be required if every owner of a 

share of stock had his shares listed in his own name on the books of the 

corporation.

Id. at *1-2. 

Vice Chancellor Hartnett contrasted the petitioners‘ knowledge about Cede with 

what Enstar knew. In short, he found that neither Senouf nor Earle knew that her broker 

was a DTC participant or that her shares were registered in Cede‘s name. By contrast, 

there was 

no question that ENSTAR knew that a large number of its shares were held 

in the name of CEDE . . . and that CEDE . . . was a nominee used by [DTC] 

which in turn held the shares for [its] participants—stock brokerage firms, 

banks and other financial institutions which in turn held them for their 

customers, the actual beneficial owners.

Id. at *2. He also discussed the Cede breakdown, finding that 
41

ENSTAR received a monthly breakdown from [DTC] of all the shares held 

in CEDE[‘s] name which showed the name of the stock broker, etc., for 

whom the shares were being held and which purportedly listed the number 

of shares held for each broker. ENSTAR was also entitled to receive, on 

request, supplementary lists. 

Id. At the time of the merger, Enstar knew from participant list that Cede ―held 379,268 

shares for customers of Prudential-Bache and 40,169 shares for customers of DrexelBurnham Lambert.‖ Id. Vice Chancellor Hartnett stressed that despite knowing about 

Cede, Enstar‘s proxy materials made no mention of it. 

Vice Chancellor Hartnett ultimately resolved the case on equitable grounds. He 

concluded that 

[w]hen the totality of the circumstances present here are considered, it is 

clear that ENSTAR had reasonable constructive notice that Mrs. Earle‘s 

and Mrs. Senouf‘s shares were listed on the corporation records under the 

name ―CEDE & CO.‖ and that its refusal to permit Mrs. Earle and Mrs. 

Senouf to receive the settlement consideration [provided to appraisal 

claimants] is based on impermissible hypertechnicalities.

Id. at *7. He thus ordered Enstar to pay the settlement consideration to the petitioners.

Enstar appealed, and the Delaware Supreme Court reversed. The high court 

viewed the case as a traditional dispute involving beneficial holder status, rather than a 

new scenario resulting from the depository system. The high court thus relied 

predominantly on existing precedent, such as Salt Dome, and subsequent cases 

interpreting the statutory language of the Record Holder Requirement. Enstar II, 535 

A.2d at 1354. The court also observed that requiring record holder status was consistent 

with cases interpreting of other sections of the DGCL, including 8 Del. C. § 219(c), and 

that the rule was ―harmonious with the Uniform Commercial Code,‖ which permits a 
42

corporation to ―treat the registered owner as the person exclusively entitled to vote, to 

receive notifications and otherwise to exercise all the rights and powers of an owner.‖ Id. 

(emphasis in original) (quoting 6 Del. C. § 8-207(1)). The court does not appear to have 

been presented with the argument that by virtue of the DTC participant list, Drexel and 

Prudential-Bache should have been considered registered owners.

Although the Delaware Supreme Court touched on the practice of holding through 

DTC, the high court did not consider the origins of the requirement or the overlay of 

federal law. The Supreme Court regarded DTC as simply a new form of doing business, 

observing that that ―[t]he use of security depositories by brokerage firms now is a 

common practice.‖ Id. Of particular note, the court commented that ―[t]he decision [to 

use DTC] is a matter which is strictly between the broker and its clients.‖ Id. As support 

for this proposition, the Supreme Court cited the testimony of Mr. Karasek, an employee 

of Prudential-Bache who signed the appraisal demand for Earle. He had testified that

[i]f the client wants their (sic) stock in street name, then Prudential–Bache 

will buy the securities for the client ...; the client has determined she wants

it in street name. That‘s how it‘s done.

* * *

The choice is up to the client.

Id. (alterations in original). Reflecting on Mr. Karasek‘s testimony and citing Delaware 

cases pre-dating share immobilization, the high court commented that ―[i]n making that 

choice [i.e., the choice to hold in street name], the burden must be upon the stockholder 

to obtain the advantages of record ownership. The legal and practical effects of having 

one‘s stock registered in street name cannot be visited upon the issuer. The attendant 
43

risks are those of the stockholder, and where appropriate, the broker.‖ Id. (citations 

omitted).

Later in the decision, the Supreme Court reiterated its view that Cede‘s role in the 

case resulted from a private decision made by the petitioners and their brokers:

Here, the problem is one between the plaintiffs and their brokers. Enstar 

cannot, and should not, be blamed for the failure of a nominee or broker to 

correctly perfect appraisal rights for a beneficial owner. Several other 

brokers properly instructed CEDE & Co. to demand an appraisal on behalf 

of their customers. The failures of Prudential–Bache or Drexel in that 

regard should not be shifted to, or borne by, Enstar. The dispute, if any, is 

between these brokers and their clients.

Enstar II, 535 A.2d at 1355. Elsewhere, the Supreme Court quoted at length from Salt 

Dome and held:

Thus, in the interest of promoting certainty in the appraisal process . . ., a 

valid demand must be executed by or on behalf of the holder of record, 

whether that holder is the beneficial owner, a trustee, agent or nominee. 

Any other result would embroil merging corporations in a morass of 

confusion and uncertainty, none of which was of their making.

Id. at 1356.

Finally, the Delaware Supreme Court rejected the argument that Enstar‘s 

disclosures about perfecting appraisal rights were misleading. The high court held that 

the disclosures gave proper instructions for perfecting appraisal rights and that ―the 

relationship between a beneficial stockholder and a nominee are not relevant matters of 

concern to the merging corporations.‖ Id. at 1357.

In my view, the Delaware Supreme Court‘s decision in Enstar II reflected 

incorrect assumptions about the depository system. First, Enstar II assumed that custodial 

banks and brokers freely chose to move to the depository system for their own 
44

convenience.14 To the contrary, the depository system was a necessary response to the 

late 1960s paperwork crisis and embodied in a federal mandate. The Enstar II court 

similarly treated the holding of shares through depositaries as something that is optional 

for end-users, i.e., actual investors. While it is true theoretically that any particular 

investor could opt out of the depository system and chose to hold in record name,15 only a 

few could do so before the system would break down. Just as some individuals can 

choose not to receive vaccinations and free ride on the immunity of the group, so too can 

a small minority of stockholders elect to hold shares directly. But without widespread 

 

14 See Enstar II, 535 A.2d at 1354 (―The decision [to use DTC] is a matter which 

is strictly between the broker and its clients.‖). Other Delaware decisions during this 

period reflected the same assumption. See, e.g., RB Assocs., 1988 WL 27731, at *3 

(describing DTC system as a ―mechanism of convenience for the brokerage firms‖); 

Olson, 1985 WL 11575, at *3 (describing Cede as ―but a name used for the convenience 

of the brokerage houses‖); Hatleigh, 428 A.2d at 353 (remarking that DTC exists ―for the 

benefit of those firms participating in the Depository Trust Company so as to simplify 

their stock transfer transactions on behalf of their customers‖); Giovanini, 1979 WL 

178568, at *1 (describing Cede as a ―mechanism of convenience for the brokerage 

firms‖).

15 See, e.g., 6 Del. C. § 8-508 (―A securities intermediary shall act at the direction 

of an entitlement holder to change a security entitlement into another available form of 

holding for which the entitlement holder is eligible, or to cause the financial asset to be 

transferred to a securities account of the entitlement holder with another securities 

intermediary.‖); id. cmt. 1 (―If security certificates in registered form are issued for the 

security, and individuals are eligible to have the security registered in their own name, the 

entitlement holder can request that the intermediary deliver or cause to be delivered to the 

entitlement holder a certificate registered in the name of the entitlement holder or a 

certificate indorsed in blank or specially indorsed to the entitlement holder . . . . If the 

security can be held by individuals directly in uncertificated form, the entitlement holder 

can request that the security be registered in its name.‖); see also 8 Del. C. § 158 (―Every 

holder of stock represented by a certificate shall be entitled to have a certificate . . . 

representing the number of shares registered in certificate form.‖).
45

participation in the depository system, securities markets would again drown in 

paperwork. The system was imposed by Congress and the SEC, and almost-universal 

participation is a de facto requirement. 

Second, Enstar II assumed that the depository system imposes only costs on 

issuers and yielded them no benefits.16 Yet by the time of the Enstar II decision, the 

depository system was what enabled public trading of securities to take place. Issuers 

could not undertake an initial public offering or otherwise access the equity markets 

without depository ownership. Being able to raise capital through the public markets is an 

obvious benefit to issuers. So is avoiding the costly paperwork burdens that previously 

brought the markets to a stop. See Part I.A., supra. These benefits have only grown more 

profound since Enstar II.

Third, Enstar II reiterated the Salt Dome decision‘s concern about the uncertainty 

and practical difficulties a Delaware corporation would face in identifying its 

stockholders if asked to look beyond the stock ledger. With the Cede breakdown, those 

concerns do not exist. When Enstar II was written, a Cede breakdown could be obtained 

easily, and it provided a reliable listing of the depository institutions that held through 

 

16 See Enstar II, 535 A.2d at 1353 n.2 (―Whether a beneficial stockholder 

participates in a depository system is a matter between the beneficial stockholder and his 

broker, and is not a consideration for issuers.‖); accord Wynnefield P’rs Small Cap Value 

L.P. v. Niagara Corp., 2006 WL 1737862, at *3 (Del. Ch. June 19, 2006) (same), rev’d 

on other grounds, 907 A.2d 146 (Del. 2006) (ORDER); Am. Hardware Corp. v. Savage 

Arms Co., 136 A.2d 690, 692 (Del. 1957) (―If an owner of stock chooses to register his 

shares in the name of a nominee, he takes the risks attendant upon such an arrangement . . 

. .‖).
46

DTC. Today, it is even easier to obtain a Cede breakdown, and because trades are now 

tracked in real time rather than awaiting an end-of-the-day netting-out process, the list is 

even more accurate.

Finally, Enstar II asserted at several points that the nominee relationship was not a 

matter of concern for the merging corporation.17 That is not accurate either. Under federal 

law, the corporation whose stockholders would vote on the merger—and who could be 

eligible for appraisal rights—must go through DTC to identify its custodian banks and 

brokers for purposes of mailing out proxy materials. The issuer cannot ignore DTC and 

pretend that Cede is a single holder of record.

Notably, Enstar II did not address whether DTC participants should be regarded as 

record holders for purposes of Delaware law, as they are for federal law. No one seems to 

have made the argument, and neither court considered it. Although Enstar II seems to 

have collapsed the distinction between the broker level of beneficial ownership and the 

depository level, it did so on the assumption that the pertinent legislative facts had not 

changed since Salt Dome.

18 In my view, that was misguided. 

 

17 Enstar II, 535 A.2d at 1354 (―The legal and practical effects of having one‘s 

stock registered in street name cannot be visited upon the issuer. The attendant risks are 

those of the stockholder, and where appropriate, the broker.‖); id. at 1355 (―Here, the 

problem is one between the plaintiffs and their brokers. Enstar cannot, and should not, be 

blamed for the failure of a nominee or broker to correctly perfect appraisal rights for a 

beneficial owner . . . . The dispute, if any, is between these brokers and their clients.‖)

18 The concept of ―legislative facts‖ refers to the empirical assumptions about the 

world that courts necessarily make when deciding cases. See In re Oracle Corp. Deriv. 

Litig., 824 A.2d 917, 940 (Del. Ch. 2003) (Strine, V.C.) (deploying concept and citing 

Kenneth Culp Davis, An Approach to Problems of Evidence in the Administrative 
47

Enstar II does appear to have regarded construing the Record Holder Requirement 

as an appropriate exercise of judicial authority. As I see it, the question of whether DTC 

participants should be regarded as holders of record remains open for the Delaware 

Supreme Court to decide, should it wish to do so.

6. The Rise Of Appraisal Arbitrage

The most recent decisions to consider the role of DTC have involved the practice 

of appraisal arbitrage, a strategy in which investors purchase shares in order to pursue 

appraisal. In Transkaryotic, this court held that funds who bought shares after the record 

date for a merger could seek an appraisal for the shares purchased after the record date, 

without having to show that the shares were not voted in favor of the merger. 2007 WL 

1378345, at *3. Subsequent decisions have followed Transkaryotic.19

The outcome in Transkaryotic turned on the role of Cede as the omnibus holder of 

record. On the record date for the merger, Cede held 29,720,074 shares. Acting in 

accordance with the instructions of its participants, Cede voted 12,882,000 shares in 

favor of the merger, leaving 16,838,074 shares eligible for appraisal. The petitioners 

beneficially owned 2,901,433 shares on the record date and acquired another 8,071,217 

shares after the record date. They sought appraisal for all 10,972,650 shares, which was 

 

Process, 55 Harv. L. Rev. 364, 402-403 (1942)). See generally Leo E. Strine, Jr., The 

Inescapably Empirical Foundation of the Common Law of Corporations, 27 Del. J. Corp. 

L. 499, 502-503 (2002) (describing concept at greater length).

19 See, e.g., Merion Capital LP v. BMC Software, Inc., 2015 WL 67586 (Del. Ch. 

Jan. 5, 2015); Ancestry.com, 2015 WL 66825.
48

less than the total number of appraisal-eligible shares. This court regarded that fact as 

dispositive because under Olivetti, ―the actions of the beneficial holders are irrelevant,‖ 

and only ―the record holder‘s actions determine perfection of the right to seek appraisal.‖ 

Id. at *4, *3. Elaborating, the court explained that 

[t]he issue here mirrors that in Olivetti . . . . [Transkaryotic] seeks to 

examine relationships between Cede (the record holder) and certain nonregistered, beneficial holders in order to determine the existence of 

appraisal rights. But the Supreme Court has already deemed this 

relationship to be an improper and impermissible subject of inquiry in the 

context of an appraisal. The law is unequivocal. A corporation need not and 

should not delve into the intricacies of the relationship between the record 

holder and the beneficial holder and, instead, must rely on its records as the 

sole determinant of membership in the context of appraisal.

Id. at *4. 

In my view, the rise of appraisal arbitrage suggests the need for a more realistic 

assessment of the depository system that looks through Cede to the DTC participants. But 

first, a caveat: Looking through DTC would not eliminate the ability of appraisal 

petitioners to seek appraisal for shares acquired after the record date, which is an 

outcome that opponents of appraisal arbitrage frequently advocate. As to that possibility, 

it is not clear to me why the law should treat a stockholder‘s right to seek an appraisal 

differently than how it treats other legal rights. An appraisal claim is simply a chose in 

action. As such, the claim passes with the shares.20 In a market economy, the ability to 

 

20 See generally In re Activision Blizzard Inc. S’holder Litig., ___ A.3d ___, 2015 

WL 2438067, *13-25 (Del. Ch. May 21, 2015). Choses in action are transferrable under 

Delaware law when they are the types of claims that would survive the death of the 

transferor and pass to his personal representative. See Indus. Trust Co. v. Stidham, 33 

A.2d 159, 160-61 (Del. Super. 1942). By statute in Delaware, ―[a]ll causes of action, 
49

transfer property, including intangible property, is generally thought to be a good thing; it 

allows the property to flow to the highest-valuing holder, thereby increasing societal 

wealth. For creditors, the ability to sell a bundle of property rights that the buyer can 

enforce is unquestioned. When a creditor assigns a loan, even one in default, the right to 

enforce the loan passes to the new holder. No one objects that the assignee purchased a 

lawsuit. It is not apparent to me why a right held by the equity side of the capital structure 

should be treated differently, particularly when the right to bring an appraisal proceeding 

has been compared by the Delaware Supreme Court to a debt collection action.21

Consequently, no one should view my arguments in favor of looking through DTC as a 

way to eliminate appraisal arbitrage entirely—itself a debatable policy goal.

22 Custodial 

 

except actions for defamation, malicious prosecution, or upon penal statutes, shall 

survive. . . .‖ 10 Del. C. § 3701.

21 See Salt Dome, 41 A.2d at 588. Indeed, even the right to control how shares vote 

transfers with the shares, notwithstanding the legal expedient of the record date, because 

the subsequent holder can compel the seller to issue him a proxy (assuming the seller can 

be identified). Commonwealth Assocs. v. Providence Health Care, Inc., 641 A.2d 155, 

158 (Del. Ch. 1993) (Allen, C.); In re Giant Portland Cement Co., 21 A.2d 697, 701 

(Del. Ch. 1941); In re Canal Constr. Co., 182 A. 545, 547-48 (Del. 1936) (Wolcott, Jos., 

C.); Italo Petroleum Corp. of Am. v. Producers’ Oil Corp. of Am., 174 A. 276, 280 (Del. 

Ch. 1934) (Wolcott, Jos., C.).

22 Strong arguments can be made that appraisal represents a more rational and 

efficient alternative to traditional fiduciary duty litigation. See Charles R. Korsmo & 

Minor Myers, Competition and the Future of M&A Litigation, 100 Iowa L. Rev. Bull. 19, 

25-28 (2015); Charles R. Korsmo & Minor Myers, Appraisal Arbitrage and the Future of 

Public Company M&A, 92 Wash U. L. Rev. (forthcoming 2015); Charles Korsmo & 

Minor Myers, The Structure of Stockholder Litigation: When Do The Merits Matter, 75 

Ohio State L.J. 829, 859-67 (2014). At one point, the Delaware Supreme Court appeared 

to prioritize appraisal over fiduciary duty litigation by holding that ―a plaintiff‘s monetary 

remedy [following a merger] ordinarily should be confined to the more liberalized 
50

banks and brokers still could buy shares after the record date and seek appraisal for those 

shares. And of course, even under a regime that denied appraisal rights to shares 

purchased after the record date, investors still could accumulate large appraisal-eligible 

stakes between the time of deal announcement and the record date. See Salomon Bros. 

Inc. v. Interstate Bakeries Corp., 576 A.2d 650, 654 (Del. Ch. 1989) (finding ―nothing 

inequitable about an investor purchasing stock in a company after a merger has been 

announced with the thought that, if the merger is consummated on the announced terms, 

the investor may seek appraisal‖).

Nevertheless, in my view, looking through Cede to the DTC participants would be 

an improvement. Under the appraisal statute, a record holder is only supposed to be able 

to seek appraisal for shares (i) owned on the date of statutorily compliant demand for 

appraisal, (ii) held continuously through the effective date of the merger, and (iii) not 

voted in favor of the merger. Ancestry.com, 2015 WL 66825, at *4. Taken together, 

Cede‘s dominant holdings and the current one-size-fits-all interpretation of the Record 

Holder Requirement prevent courts from applying these requirements effectively. Cede 

owns too many shares, and with share immobilization, ownership does not change. 

 

appraisal proceeding herein established.‖ Weinberger v. UOP, Inc., 457 A.2d 701, 714 

(Del. 1983). That promise did not survive the decisions in Rabkin v. Philip A. Hunt 

Chemical Corp., 498 A.2d 1099 (Del. 1985), and Cede & Co. v. Technicolor, Inc., 542 

A.2d 1182 (Del. 1988). See generally Andra v. Blount, 772 A.2d 183, 192 (Del. Ch. 

2000) (Strine, V.C.) (explaining that Rabkin and Cede effectively overruled the appraisalas-basic-remedy aspect of Weinberger).
51

By contrast, if the focus were to move beyond Cede, it should be possible to 

develop a more nuanced jurisprudence. The number of shares held by banks and brokers 

does change, and those changes may have legal salience. Or situations may arise that lend 

themselves to specific rulings, such as if a broker acquires a large block of shares after 

the record date in a negotiated transaction. In that case, the seller should be readily 

identifiable, and it should be an easy matter to determine how the shares were voted. The 

federal securities laws require that banks and brokers obtain voting instructions from their 

clients, and banks and brokers satisfy this requirement by sending out voting instruction 

forms. See generally Keir D. Gumbs et al., Debunking the Myths Behind Voting 

Instruction Forms and Vote Reporting, 21 Corp. Gov. Adv. 1 (July/Aug. 2013). It also 

may be possible to use voter instruction forms for other purposes, such as confirming

whether or not particular shares held by an appraisal claimant on the record date were 

voted in favor of the merger. And as this case shows, there also may be records at the 

broker level which, if examined, would allow the courts to apply other statutory 

limitations more accurately. We already make these types of distinctions when dealing 

with the right to vote, which was the principal right relied on by analogy in Salt Dome for 

the creation of the Record Holder Requirement.

23 Under this more flexible approach, the 

 

23 See, supra, n.19 (citing cases in which court permitted post-record date acquirer 

of shares to determine how shares were voted, notwithstanding legal ownership on stock 

list); Preston v. Allison, 650 A.2d 646, 649 (Del. 1994) (looking through name of 

registered holder on stock list and recognizing voting rights of beneficial owners where 

form of ownership was mandated by federal law); Sutter Opportunity Fund 2 LLC v. 

Cede & Co., 838 A.2d 1123, 1129 (Del. Ch. 2003) (permitting issuer to look through 

Cede for purposes of analyzing whether proponents of a proposal for a matter to be 
52

corporation ―generally is entitled to rely on its own stock list,‖ but the list is not 

conclusive; questions of ownership and the ability to exercise associated rights can be the 

subject of proof. Preston, 650 A.2d at 649.

It would have been preferable, in my view, to begin developing this case law in 

2010. See Kurz, 989 A.2d at 174 (arguing that treating DTC participants as holders of 

record could help ―[r]educ[e] the number of shares available for appraisal arbitrage‖). Yet

the need for a more flexible approach has not gone away. Looking through Cede is 

obviously imperfect, but until share tracing becomes possible, the perfect should not be 

the enemy of the good. Viewed pragmatically, looking through Cede to the custodial 

banks and brokers on the participant list merely returns Delaware law to the state in 

which it existed before the federal policy of share immobilization, restoring the 

conditions that prevailed when Salt Dome was written and later when the Record Holder 

Requirement was codified.

 

submitted to a vote met a 10% minimum threshold in partnership agreement); Seidman &

Assocs., L.L.C. v. G.A. Fin., Inc., 837 A.2d 21, 29 (Del. Ch. 2003) (same); In re Ne.

Water Co., 38 A.2d 918, 923 (Del. Ch. 1944) (treating statutory reference to stockholder 

status being determined by name on stock list as ―a limited but practical rule of evidence 

for the ready ascertainment of persons entitled to notice of and to vote at a stockholders‘

meeting‖ but not dispositive in all cases); In re Diamond State Brewery, Inc., 2 A.2d 254, 

257 (Del. Ch. 1938) (Wolcott, Jos., C.) (―The court is not bound in a review proceeding 

[of an election] by the showing of stockholders made on the corporation‘s books.‖); cf. 

Rainbow Navigation, Inc. v. Pan Ocean Navigation, Inc., 535 A.2d 1357, 1359 (Del. 

1987) (―We now hold that when the stock ledger is blank or non-existent, the Court of 

Chancery has the power to consider other evidence to ascertain and establish stockholder 

status.‖).
53

III. CONCLUSION

Under current law, Dell‘s motion for summary judgment must be granted. The 

Funds lost their appraisal rights when their shares were re-titled in the names of their 

custodial banks‘ nominees. Were it up to me, I would hold that the concept of a 

―stockholder of record‖ includes the custodial banks and brokers on the DTC participant 

list. But given existing precedent, I believe that only the Delaware Supreme Court can 

change how our case law interprets the Record Holder Requirement. This court obviously 

has no ability to tell the Delaware Supreme Court what to do. This decision has attempted 

only to present the reasons why one trial judge believes that a different approach would 

be superior.