In re Pure Resources, Inc., Shareholders Litigation

OPINION

This is the court’s decision on a motion for preliminary injunction. The lead plaintiff in the case holds a large block of stock in Pure Resources, Inc., 65% of the shares of which are owned by Unocal Corporation. The lead plaintiff and its fellow plaintiffs seek to enjoin a now-pending exchange offer (the “Offer”) by which Unocal hopes to acquire the rest of the shares of Pure in exchange for shares of its own stock.

The plaintiffs believe that the Offer is inadequate and is subject to entire fairness review, consistent with the rationale of Kahn v. Lynch Communication Systems, Inc.1 and its progeny. Moreover, they claim that the defendants, who include Unocal and Pure’s board of directors, have not made adequate and non-misleading disclosure of the material facts necessary for Pure stockholders to make an informed decision whether to tender into the Offer.

By contrast, the defendants argue that the Offer is a non-coercive one that is accompanied by complete disclosure of all material facts. As such, they argue that the Offer is not subject to the entire fairness standard, but to the standards set forth in cases like Solomon v. Pathe Communications Corp.,2 standards which they argue have been fully met.

In this opinion, I conclude that the Offer is subject, as a general matter, to the Solomon standards, rather than the Lynch entire fairness standard. I conclude, however, that many of the concerns that justify the Lynch standard are implicated by tender offers initiated by controlling stockholders, which have as their goal the acquisition of the rest of the subsidiary’s shares.3 These concerns should be accommodated within the Solomon form of review, by requiring that tender offers by controlling shareholders be structured in a manner that reduces the distorting effect of the tendering process on free stockholder choice and by ensuring minority stockholders a candid and unfettered tendering recommendation from the independent directors of the target board. In this case, the Offer for the most part meets this standard, with one exception that Unocal may cure.

*425But I also find that the Offer must be preliminarily enjoined because material information relevant to the Pure stockholders’ decision-making process has not been fairly disclosed. Therefore, I issue an injunction against the Offer pending an alteration of its terms to eliminate its coercive structure and to correct the inadequate disclosures.

I

These are the key facts as I find them for purposes of deciding this preliminary injunction motion.

A.

Unocal Corporation is a large independent natural gas and crude oil exploration and production company with far-flung operations. In the United States, its most important operations are currently in the Gulf of Mexico. Before May 2000, Unocal also had operations in the Permian Basin of western Texas and southeastern New Mexico. During that month, Unocal spun off its Permian Basin unit and combined it with Titan Exploration, Inc. Titan was an oil and gas company operating in the Permian Basin, south central Texas, and the central Gulf Coast region of Texas. It also owned mineral interests in the southern Gulf Coast.

The entity that resulted from that combination was Pure Resources, Inc. Following the creation of Pure, Unocal owned 65.4% of Pure’s issued and outstanding common stock. The remaining 34.6% of Pure was held by Titan’s former stockholders, including its managers who stayed on to run Pure. The largest of these stockholders was Jack D. Hightower, Pure’s Chairman and Chief Executive Officer, who now owns 6.1% of Pure’s outstanding stock before the exercise of options. As a group, Pure’s management controls between a quarter and a third of the Pure stock not owned by Unocal, when options are considered.

B.

Several important agreements were entered into when Pure was formed. The first is a Stockholders Voting Agreement. That Agreement requires Unocal and Hightower to vote their shares to elect to the Pure board five persons designated by Unocal (so long as Unocal owns greater than 50% of Pure’s common stock), two persons designated by Hightower, and one person to be jointly agreed upon by Unocal and Hightower. Currently, the board resulting from the implementation of the Voting Agreement is comprised as follows:

Unocal Designees:

• Darry D. Chessum — Chessum is Unocal’s Treasurer and is the owner of one share of Pure stock.

%75 Timothy H. Ling — Ling is President, Chief Operating Officer, and director of Unocal. He owns one share of Pure stock.

• Graydon H. Laughbaum, Jr. — Laughb-aum was an executive for 34 years at Unocal before retiring at the beginning of 1999. For most of the next three years, he provided consulting services to Unocal. Laughbaum owns 1,301 shares of Pure stock.

• HD Maxwell — Maxwell was an executive for many years at Unocal before 1992. Maxwell owns one share of Pure stock.

• Herbert C. Williamson, III — Williamson has no material ties to Unocal. He owns 3,364 shares of Pure stock.

Hightower Designees:

• Jack D. Hightower — As mentioned, he is Pure’s CEO and its largest stockholder, aside from Unocal.

*426• George G. Staley — Staley is Pure’s Chief Operating Officer and also a large stockholder, controlling 625,261 shares.

Joint Designee of Unocal and Hightower:

• Keith A. Covington — Covington’s only tie to Unocal is that he is a close personal friend of Ling, having gone to business school with him. He owns 2,401 Pure shares.

As part of the consideration it received in the Titan combination, Unocal extracted a “Business Opportunities Agreement” (“BOA”) from Titan. So long as Unocal owns at least 35% of Pure, the BOA limits Pure to the oil and gas exploration and production business in certain designated areas, which were essentially co-extensive with the territories covered by Titan and the Permian Basin operations of Unocal as of the time of the combination. The BOA includes an acknowledgement by Pure that it has no business expectancy in opportunities outside the limits set by the contract. This limitation is not reciprocal, however.

By contrast, the BOA expressly states that Unocal may compete with Pure in its areas of operation. Indeed, it implies that Pure board members affiliated with Unocal may bring a corporate opportunity in Pure’s area of operation to Unocal for exploitation, but may not pursue the opportunity personally.

Another protection Unocal secured in the combination was a Non-Dilution Agreement. That Agreement provides Unocal with a preemptive right to maintain its proportionate ownership in the event that Pure issues new shares or undertakes certain other transactions.

Finally, members of Pure’s management team entered into “Put Agreements” with Unocal at the time of the combination. The Put Agreements give the managers-— including Hightower and Staley — the right to put their Pure stock to Unocal upon the occurrence of certain triggering events— among which would be consummation of Unocal’s Offer.

The Put Agreements require Unocal to pay the managers the “per share net asset value” or “NAY” of Pure, in the event the managers exercise their Put rights within a certain period after a triggering event. One triggering event is a transaction in which Unocal obtains 85% of Pure’s shares, which could include the Offer if it results in Unocal obtaining that level of ownership. The NAV of Pure is determined under a complex formula dependent largely on Pure’s energy reserves and debt. Notably, Pure’s NAV for purposes of the Put Agreement could fall below or exceed the price of a triggering transaction, but in the latter event the triggering transaction would provide the Put holders with the right to receive the higher NAV. Although it is not clear whether the Put holders can tender themselves into the Offer in order to create a triggering transaction and receive the higher of the Offer price or the NAV, it is clear that the Put Agreements can create materially different incentives for the holders than if they were simply holders of Pure common stock.

In addition to the Put Agreements, senior members of Pure’s management team have severance agreements that will (if they choose) be triggered in the event the Offer succeeds. In his case, Hightower will be eligible for a severance payment of three times his annual salary and bonus, or nearly four million dollars, an amount that while quite large, is not substantial in comparison to the economic consequences of the treatment of his equity interest in Pure. Staley has a smaller, but similar package, and the economic consequences of the treatment of his equity also appear *427to be more consequential than any incentive to receive severance.

II.

A.

With these agreements in mind, I now turn to the course of events leading up to Unocal’s offer.

From its formation, Pure’s future as an independent entity was a subject of discussion within its board. Although Pure’s operations were successful, its status as a controlled subsidiary of another player in the oil and gas business suggested that the day would come when Pure either had to become wholly-owned by Unocal or independent of it.

This reality was made manifest as Pure’s management undertook to expand its business. On several occasions, this resulted in requests by Pure for limited waivers of the BOA to enable Pure to take advantage of opportunities beyond the areas designated in that contract. Unocal granted these waivers in each case. Another aspect of this subject also arose, as Unocal considered re-entering areas of geographical operation core to Pure’s operations. Concerns arose in the minds of Unocal’s lawyers about the extent to which the BOA could truly protect those Unocal officers (ie., Chessum and Ling) who sat on the Pure board from claims of breach of fiduciary duty in the event that Unocal were to pursue, for example, an opportunity in the Permian Basin. Because Unocal owed an indemnification obligation to Chessum and Ling and because it would be difficult to get officers to serve on subsidiary boards if Unocal did not back them, Unocal obviously was attentive to this uncertainty. Stated summarily, some, if not all, the complications that the BOA was designed to address remained a concern — a concern that would be eradicated if Unocal purchased the rest of Pure.

The aggressive nature of Pure’s top management also fed this furnace. High-tower is an assertive deal-maker with plans to make Pure grow. To his mind, Unocal should decide on a course of action: either let Pure expand as much it could profitably do or buy the rest of Pure. In one of the negotiations over a limited waiver of the BOA, Hightower put this choice to Unocal in more or less these terms.

During the summer of 2001, Unocal explored the feasibility of acquiring the rest of Pure. On behalf of Unocal, Pure directors Maxwell and Laughbaum collected non-public information about Pure’s reserves, production capabilities, and geographic assets and reported back to Unocal. This was done with the permission of Pure’s management. By September 2001, it appeared that Unocal might well propose a merger, but the tragic events of that month and other more mundane factors resulted in the postponement of any proposal. Unocal’s Chief Financial Officer informed Hightower of Unocal’s decision not to proceed and that “all evaluation work on such a transaction ha[d] ceased.” 4

That last statement was only fleetingly true. The record contains substantial evidence that Unocal’s management and board soon renewed their consideration of taking Pure private. Pure director Ling knew that this renewed evaluation was going on, but it appears that he never shared that information with his fellow Pure directors. Nor did Unocal ever communicate to Pure that its September 2001 representation that all evaluation work had ceased was no longer correct. Nonetheless, during this period, Unocal continued *428to have access to non-public information from Pure.

Supplementing the pressure for a transaction that was generated by Hightower’s expansion plans was a specific financing vehicle that Hightower sought to have the Pure board pursue. In the spring of 2002, Pure’s management began seriously considering the creation of a “Royalty Trust.” The Royalty Trust would monetize the value of certain mineral rights owned by Pure by selling portions of those interests to third parties. This would generate a cash infusion that would reduce Pure’s debt and potentially give it capital to expand. By August of 2002, Hightower was prepared to push hard for this transaction, subject to ensuring that it could be accounted for on a favorable basis with integrity and would not have adverse tax effects.

For its part, Unocal appears to have harbored genuine concerns about the transaction, in addition to its shared concern about the accounting and tax implications of the Royalty Trust. Among its worries was that the Royalty Trust would simply inflate the value of the Put rights of management by delivering Pure (and increasing its NAV) without necessarily increasing its stock price. The Royalty Trust also complicated any future acquisition of Pure because the formation of the Trust would leave Unocal entangled with the third-parties who invested in it, who might be classified as holding a form of equity in Pure.

Although the record is not without doubt on the point, it appears that the Pure board decided to pursue consideration of the Royalty Trust during mid-August 2002. During these meetings, however, Chessum raised a host of issues that needed to be resolved favorably before the board could ultimately agree to consummate a Royalty Trust transaction. The plaintiffs argue that Chessum was buying time and trying to throw sand in the gears. Although I believe Unocal was worried about the transaction’s effect, I am not prepared to say that Chessum’s concerns were illegitimate. Indeed, many of them were shared by Hightower. Nonetheless, what is more evident is that the Royalty Trust discussions put pressure on Unocal to decide whether to proceed with an acquisition offer and that the Royalty Trust was likely not the method of financing that Unocal would use if it wholly owned Pure.5

I infer that Hightower knew this. Simultaneous with pushing the Royalty Trust, Hightower encouraged Unocal to make an offer for the rest of Pure. High-tower suggested that Unocal proceed by way of a tender offer, because he believed that his Put rights complicated the Pure board’s ability to act on a merger proposal.

B.

Despite his entreaties, Hightower was surprisingly surprised by what came next, as were the members of the Pure board not affiliated with Unocal. On August 20, 2002, Unocal sent the Pure board a letter that stated in pertinent part that:

It has become clear to us that the best interests of our respective stockholders will be served by Unocal’s acquisition of the shares of Pure Resources that we do not already own....

Unocal recognizes that a strong and stable on-shore, North America production base will facilitate the execution of its North American gas strategy. The skills and technology required to maximize the benefits to be realized from that strategy are now divided between Union *429Oil and Pure. Sound business strategy calls for bringing those assets together, under one management, so that they may be deployed to their highest and best use. For those reasons, we are not interested in selling our shares in Pure. Moreover, if the two companies are combined, important cost savings should be realized and potential conflicts of interest will be avoided.

Consequently, our Board of Directors has authorized us to make an exchange offer pursuant to which the stockholders of Pure (other than Union Oil) will be offered 0.6527 shares of common stock of Unocal for each outstanding share of Pure common stock they own in a transaction designed to be tax-free. Based on the $34.09 closing price of Unocal’s shares on August 20, 2002, our offer provides a value of approximately $22.25 per share of Pure common stock and a 27% premium to the closing price of Pure common stock on that date.

Unocal’s offer is being made directly to Pure’s stockholders....

Our offer will be conditioned on the tender of a sufficient number of shares of Pure common stock such that, after the offer is completed, we will own at least 90% of the outstanding shares of Pure common stock and other customary conditions.... Assuming that the conditions to the offer are satisfied and that the offer is completed, we will then effect a “short form” merger of Pure with a subsidiary of Unocal as soon as practicable thereafter. In this merger, the remaining Pure public stockholders will receive the same consideration as in the exchange offer, except for those stockholders who choose to exercise their appraisal rights.

We intend to file our offering materials with the Securities and Exchange Commission and commence our exchange offer on or about September 5, 2002. Unocal is not seeking, and as the offer is being made directly to Pure’s stockholders, Delaware law does not require approval of the offer from Pure’s Board of Directors. We, however, encourage you to consult with your outside counsel as to the obligations of Pure’s Board of Directors under the U.S. tender offer rules to advise the stockholders of your recommendation with respect to our offer.... 6

Unocal management asked Ling and Chessum to make calls to the Pure board about the Offer. In their talking points, Ling and Chessum were instructed to suggest that any Special Committee formed by Pure should have powers “limited to hiring independent advisors (bank and lawyers) and to coming up with a recommendation to the Pure shareholders as to whether or not to accept UCL’s offer; any greater delegation is not warranted”.7

The next day the Pure board met to consider this event. Hightower suggested that Chessum and Ling recuse themselves from the Pure board’s consideration of the Offer. They agreed to do so. After that, the Pure board voted to establish a Special Committee comprised of Williamson and Covington to respond to the Unocal bid. Maxwell and Laughbaum were omitted from the Committee because of their substantial employment histories with Unocal. Despite their work with Unocal in assessing the advisability of a bid for Pure in 2001, however, Maxwell and Laughbaum did not recuse themselves generally from the Pure board’s process of reacting to the Offer. Hightower and Staley were excluded from the Committee because there *430were circumstances in which the Put Agreements could provide them with incentive to support the procession of the Offer, not because the Offer was at the most favorable price, but because it would trigger their right to receive a higher price under the NAY formula in the Put Agreements.

The precise authority of the Special Committee to act on behalf of Pure was left hazy at first, but seemed to consist solely of the power to retain independent advisors, to take a position on the offer’s advisability on behalf of Pure, and to negotiate with Unocal to see if it would increase its bid. Aside from this last point, this constrained degree of authority comported with the limited power that Unocal had desired.

During the early days of its operation, the Special Committee was aided by company counsel, Thompson & Knight, and management in retaining its own advisors and getting started. Soon, though, the Special Committee had retained two financial advisors and legal advisors to help it.

For financial advisors, the Special Committee hired Credit Suisse First Boston (“First Boston”), the investment bank assisting Pure with its consideration of the Royalty Trust, and Petrie Parkman & Co., Inc., a smaller firm very experienced in the energy field. The Committee felt that the knowledge that First Boston had gleaned from its Royalty Trust work would be of great help to the Committee, especially in the short time frame required to respond to the Offer, which was scheduled to expire at midnight on October 2, 2002.

For legal advisors, the Committee retained Baker Botts and Potter Anderson & Corroon. Baker Botts had handled certain toxic tort litigation for Unocal and was active as lead counsel in representing an energy consortium of which Unocal is a major participant in a major piece of litigation. Nonetheless, the Committee apparently concluded that these matters did not materially compromise Baker Botts’ ability to act aggressively towards Unocal.

After the formation of the Special Committee, Unocal formally commenced its Offer, which had these key features:

• An exchange ratio of 0.6527 of a Unocal share for each Pure share.

• A non-waivable majority of the minority tender provision, which required a majority of shares not owned by Unocal to tender. Management of Pure, including Hightower and Staley, are considered part of the minority for purposes of this condition, not to mention Maxwell, Laughbaum, Chessum, and Ling.

• A waivable condition that a sufficient number of tenders be received to enable Unocal to own 90% of Pure and to effect a short-form merger under 8 DelC. § 253.

• A statement by Unocal that it intends, if it obtains 90%, to consummate a short-form merger as soon as practicable at the same exchange ratio.

As of this time, this litigation had been filed and a preliminary injunction hearing was soon scheduled. Among the issues raised was the adequacy of the Special Committee’s scope of authority.

Thereafter, the Special Committee sought to, in its words, “clarify” its authority. The clarity it sought was clear: the Special Committee wanted to be delegated the full authority of the board under Delaware law to respond to the Offer. With such authority, the Special Committee could have searched for alternative transactions, speeded up consummation of the Royalty Trust, evaluated the feasibility of a self-tender, and put in place a shareholder rights plan (a.ka., poison pill) to block the Offer.

*431What exactly happened at this point is shrouded by invocations of privilege. But this much is clear. Having recused themselves from the Pure board process before, Chessum and Ling reentered it in full glory when the Special Committee asked for more authority. Chessum took the lead in raising concerns and engaged Unocal’s in-house and outside counsel to pare down the resolution proposed by the Special Committee. After discussions between Counsel for Unocal and the Special Committee, the bold resolution drafted by Special Committee counsel was whittled down to take out any ability on the part of the Special Committee to do anything other than study the Offer, negotiate it, and make a recommendation on behalf of Pure in the required 14D-9.

The record does not illuminate exactly why the Special Committee did not make this their Alamo. It is certain that the Special Committee never pressed the issue to a board vote and it appears that the Pure directors never seriously debated the issue at the board table itself. The Special Committee never demanded that Chessum and Ling recuse themselves from consideration of this issue, much less Maxwell and Laughbum.

At best, the record supports the inference that the Special Committee believed some of the broader options technically open to them under their preferred resolution {e.g., finding another buyer) were not practicable. As to their failure to insist on the power to deploy a poison pill — the by-now de rigeur tool of a board responding to a third-party tender offer — the record is obscure. The Special Committee’s brief suggests that the Committee believed that the pill could not be deployed consistently with the Non-Dilution Agreement protecting Unocal, but nowhere indicates how Unocal’s contractual right to preserve its 65% position precluded a rights plan designed solely to keep it at that level. The Special Committee also argues that the pill was unnecessary because the Committee’s ability to make a negative recommendation — coupled with Hightower’s and Sta-ley’s by-then apparent opposition to the Offer — were leverage and protection enough.

My ability to have confidence in these justifications has been compromised by the Special Committee’s odd decision to invoke the attorney-client privilege as to its discussion of these issues. Because the Committee delegated to its legal advisors the duty of negotiating the scope of the Committee’s authority and seems to have acquiesced in their acceptance of defeat at the hands of Unocal’s lawyers, invocation of the privilege renders it impossible for me know what really went on.8

The most reasonable inference that can be drawn from the record is that the Special Committee was unwilling to confront Unocal as aggressively as it would have confronted a third-party bidder. No doubt Unocal’s talented counsel made much of its client’s majority status and argued that *432Pure would be on uncertain legal ground in interposing itself — by way of a rights plan — between Unocal and Pure’s stockholders. Realizing that Unocal would not stand for this broader authority and sensitive to the expected etiquette of subsidiary-parent relations, the Pure board therefore decided not to vote on the issue, and the Special Committee’s fleeting act of boldness was obscured in the rhetoric of discussions about “clarifying its authority.”

Contemporaneous with these events, the Special Committee met on a more or less continuous basis. On a few occasions, the Special Committee met with Unocal and tried to persuade it to increase its offer. On September 10, for example, the Special Committee asked Unocal to increase the exchange ratio from 0.6527 to 0.787. Substantive presentations were made by the Special Committee’s financial advisors in support of this overture.

After these meetings, Unocal remained unmoved and made no counteroffer.9 Therefore, on September 17, 2002, the Special Committee voted not to recommend the Offer, based on its analysis and the advice of its financial advisors. The Special Committee prepared the 14D-9 on behalf of Pure, which contained the board’s recommendation not to tender into the Offer. Hightower and Staley also announced their personal present intentions not to tender, intentions that if adhered to would make it nearly impossible for Unocal to obtain 90% of Pure’s shares in the Offer.

During the discovery process, a representative of the lead plaintiff, which is an investment fund, testified that he did not feel coerced by the Offer. The discovery record also reveals that a great deal of the Pure stock held by the public is in the hands of institutional investors.

III. The Plaintiffs’ Demand For A Preliminary Injunction

A. The Merits

The plaintiffs advance an array of arguments, not all of which can be dealt with in the time allotted to me for decision. As a result, I concentrate on those of the plaintiffs’ claims that are most important and that might, if meritorious, justify injunc-tive relief. For the most part, Unocal has taken the lead in responding most comprehensively on behalf of the defendants, who also include all the members of the Pure board. The director-defendants mostly confine themselves to defending their own actions and to responding to the plaintiffs’ allegation that Pure’s 14D-9 omits and misstates material information.

Distilled to the bare minimum, the plaintiffs argue that the Offer should be enjoined because: (i) the Offer is subject to the entire fairness standard and the record supports the inference that the transaction cannot survive a fairness review; (ii) in any event, the Offer is actionably coercive and should be enjoined on that ground; and (iii) the disclosures provided to the Pure stockholders in connection with the Offer are materially incomplete and misleading.

In order to prevail on this motion, the plaintiffs must convince me that one or more of its merits arguments have a reasonable probability of success, that the Pure stockholders face irreparable injury in the absence of an injunction, and that the balance of hardships weighs in favor of an injunction.10

*433B. The Plaintiffs’ Substantive Attack on the Offer

1.

The primary argument of the plaintiffs is that the Offer should be governed by the entire fairness standard of review. In their view, the structural power of Unocal over Pure and its board, as well as Unocal’s involvement in determining the scope of the Special Committee’s authority, make the Offer other than a voluntary, non-coercive transaction. In the plaintiffs’ mind, the Offer poses the same threat of (what I will call) “inherent coercion” that motivated the Supreme Court in Kahn v. Lynch Communication Systems, Inc.11 to impose the entire fairness standard of review on any interested merger involving a controlling stockholder, even when the merger was approved by an independent board majority, negotiated by an independent special committee, and subject to a majority of the minority vote condition.

In support of their argument, the plaintiffs contend that the tender offer method of acquisition poses, if anything, a greater threat of unfairness to minority stockholders and should be subject to the same equitable constraints. More case-specifically, they claim that Unocal has used inside information from Pure to foist an inadequate bid on Pure stockholders at a time advantageous to Unocal. Then, Unocal acted self-interestedly to keep the Pure Special Committee from obtaining all the authority necessary to respond to the Offer. As a result, the plaintiffs argue, Unocal has breached its fiduciary duties as majority stockholder, and the Pure board has breached its duties by either acting on behalf of Unocal (in the case of Chessum and Ling) or by acting supinely in response to Unocal’s inadequate offer (the Special Committee and the rest of the board). Instead of wielding the power to stop Unocal in its tracks and make it really negotiate, the Pure board has taken only the insufficient course of telling the Pure minority to say no.

In response to these arguments, Unocal asserts that the plaintiffs misunderstand the relevant legal principles. Because Unocal has proceeded by way of an exchange offer and not a negotiated merger, the rule of Lynch is inapplicable. Instead, Unocal is free to make a tender offer at whatever price it chooses so long as it does not: i) “structurally coerce” the Pure minority by suggesting explicitly or implicitly that injurious events will occur to those stockholders who fail to tender; or ii) mislead the Pure minority into tendering by concealing or misstating the material facts. This is the rule of law articulated by, among other cases, Solomon v. Pathe Communications Corp.12 Because Unocal has conditioned its Offer on a majority of the minority provision and intends to consummate a short-form merger at the same price, it argues that the Offer poses no threat of structural coercion and that the Pure minority can make a voluntary decision. Because the Pure minority has a negative recommendation from the Pure Special Committee and because there has been full disclosure (including of any material information Unocal received from Pure in formulating its bid), Unocal submits that the Pure minority will be able to make an informed decision whether to tender. For these reasons, Unocal asserts that no meritorious claim of breach of fiduciary duty exists against it or the Pure directors.

2.

This case therefore involves an aspect of Delaware law fraught with doctrinal ten*434sion: what equitable standard of fiduciary conduct applies when a controlling shareholder seeks to acquire the rest of the company’s shares? In considering this issue, it is useful to pause over the word “equitable” and to capture its full import.

The key inquiry is not what statutory procedures must be adhered to when a controlling stockholder attempts to acquire the rest of the company’s shares. Controlling stockholders counseled by experienced lawyers rarely trip over the legal hurdles imposed by legislation.

Nor is the doctrine of independent legal significance of relevance here. That doctrine stands only for the proposition that the mere fact that a transaction cannot be accomplished under one statutory provision does not invalidate it if - a different statutory method of consummation exists. Nothing about that doctrine alters the fundamental rule that inequitable actions in technical conformity with statutory law can be restrained by equity.13

This is not to say that the statutory method by which a controlling stockholder proceeds is not relevant to determining the equitable standard of conduct that a court must apply. To the contrary, the structure and statutory rubric employed to consummate transactions are highly influential to courts shaping the common law of corporations. There are good reasons why this is so. A statute’s own terms might foreclose (explicitly or implicitly) the application of traditional concepts of fiduciary duty, thereby requiring judges to subordinate default principles of the common law to the superior mandate of legislation.14 The relevant statutory technique might also be one that does not foreclose common law equitable review altogether, but that has certain characteristics that influence the judiciary’s formulation of the extent and nature of the duties owed by the fiduciaries involved in the transaction. Much of the judicial carpentry in -the corporate law occurs in this context, in which judges must supplement the broadly enabling features of statutory corporation law with equitable principles sufficient to protect against abuse and unfairness, but not so rigid as to stifle useful transactions that could increase the shareholder and societal wealth generated by the corporate form.

In building the common law, judges forced to balance these concerns cannot escape making normative choices, based on imperfect information about the world. This reality clearly pervades the area of corporate law implicated by this case. When a transaction to buy out the minority is proposed, is it more important to the development of strong capital markets to hold controlling stockholders and target boards to very strict (and litigation-intensive) standards of fiduciary conduct? Or is more stockholder wealth generated if less rigorous protections are adopted, which permit acquisitions to proceed so long as *435the majority has not misled or strong-armed the minority? Is such flexibility in fact beneficial to minority stockholders because it encourages liquidity-generating tender offers to them and provides incentives for acquirers to pay hefty premiums to buy control, knowing that control will be accompanied by legal rules that permit a later “going private” transaction to occur in a relatively non-litigious manner?

At present, the Delaware case law has two strands of authority that answer these questions differently. In one strand, which deals with situations in which controlling stockholders negotiate a merger agreement with the target board to buy out the minority, our decisional law emphasizes the protection of minority stockholders against unfairness. In the other strand, which deals with situations when a controlling stockholder seeks to acquire the rest of the company’s shares through a tender offer followed by a short-form merger under 8 Del.C. § 253, Delaware case precedent facilitates the free flow of capital between willing buyers and willing sellers of shares, so long as the consent of the sellers is not procured by inadequate or misleading information or by wrongful compulsion.

These strands appear to treat economically similar transactions as categorically different simply because the method by which the controlling stockholder proceeds varies. This disparity in treatment persists even though the two basic methods (negotiated merger versus tender offer/short-form merger) pose similar threats to minority stockholders. Indeed, it can be argued that the distinction in approach subjects the transaction that is more protective of minority stockholders when implemented with appropriate protective devices — a merger negotiated by an independent committee with the power to say no and conditioned on a majority of the minority vote — to more stringent review than the more dangerous form of a going private deal — an unnegotiated tender offer made by a majority stockholder. The latter transaction is arguably less protective than a merger of the kind described, because the majority stockholder-offeror has access to inside information, and the offer requires disaggregated stockholders to decide whether to tender quickly, pressured by the risk of being squeezed out in a short-form merger at a different price later or being left as part of a much smaller public minority. This disparity creates a possible incoherence in our law.

8.

To illustrate this possible incoherence in our law, it is useful to sketch out these two strands. I begin with negotiated mergers. In Kahn v. Lynch Communication Systems, Inc.,15 the Delaware Supreme Court addressed the standard of review that applies when a controlling stockholder attempts to acquire the rest of the corporation’s shares in a negotiated merger pursuant to 8 DelC. § 251. The Court held that the stringent entire fairness form of review governed regardless of whether: i) the target board was comprised of a majority of independent directors; ii) a special committee of the target’s independent directors was empowered to negotiate and veto the merger; and iii) the merger was made subject to approval by a majority of the disinterested target stockholders.16

*436The Supreme Court concluded that even a gauntlet of protective barriers like those would be insufficient protection because of (what I will term) the “inherent coercion” that exists when a controlling stockholder announces its desire to buy the minority’s shares. In colloquial terms, the Supreme Court saw the controlling stockholder as the 800-pound gorilla whose urgent hunger for the rest of the bananas is likely to frighten less powerful primates like putatively independent directors who might well have been hand-picked by the gorilla (and who at the very least owed their seats on the board to his support).17

The Court also expressed concern that minority stockholders would fear retribution from the gorilla if they defeated the merger and he did not get his way.18 This inherent coercion was felt to exist even when the controlling stockholder had not threatened to take any action adverse to the minority in the event that the merger was voted down and thus was viewed as undermining genuinely free choice by the minority stockholders.19

All in all, the Court was convinced that the powers and influence possessed by controlling stockholders were so formidable and daunting to independent directors and minority stockholders that protective devices like special committees and majority of the minority conditions (even when used in combination with the statutory appraisal remedy) were not trustworthy enough to obviate the need for an entire fairness review.20 The Court did, however, recognize that these safety measures had utility and should be encouraged. Therefore, it held that their deployment could shift the burden of persuasion on the issue of fairness from the controlling stockholders and the target board as proponents of the transaction to shareholder-plaintiffs seeking to invalidate it.21

*437The policy balance struck in Lynch continues to govern negotiated mergers between controlling stockholders and subsidiaries. If anything, later cases have extended the rule in Lynch to a broader array of transactions involving controlling shareholders.22

4.

The second strand of cases involves tender offers made by controlling stockholders — i.e., the kind of transaction Unocal has proposed. The prototypical transaction addressed by this strand involves a tender offer by the controlling stockholder addressed to the minority stockholders. In that offer, the controlling stockholder promises to buy as many shares as the minority will sell but may subject its offer to certain conditions. For example, the controlling stockholder might condition the offer on receiving enough tenders for it to obtain 90% of the subsidiary’s shares, thereby enabling the controlling stockholder to consummate a short-form merger under 8 Del. C. § 253 at either the same or a different price.

As a matter of statutory law, this way of proceeding is different from the negotiated merger approach in an important way: neither the tender offer nor the short-form merger requires any action by the subsidiary’s board of directors. The tender offer takes place between the controlling shareholder and the minority shareholders so long as the offering conditions are met. And, by the explicit terms of § 253, the short-form merger can be effected by the controlling stockholder itself, an option that was of uncertain utility for many years because it was unclear whether § 253 mergers were subject to an equitable requirement of fair process at the subsidiary board level. That uncertainty was recently resolved in Glassman v. Unocal Exploration Corp.,23 an important recent decision, which held that a short-form merger was not reviewable in an action claiming unfair dealing, and that, absent fraud or misleading or inadequate disclosures, could be contested only in an appraisal proceeding that focused solely on the adequacy of the price paid.

Before Glassman, transactional planners had wondered whether the back-end of the tender offer/short-form merger transaction would subject the controlling stockholder to entire fairness review. Glassman seemed to answer that question favorably from the standpoint of controlling stockholders, and to therefore encourage the tender offer/short-form merger form of acquisition as presenting a materially less troublesome method of proceeding than a negotiated merger.

Why? Because the legal rules that governed the front end of the tender offer/short-form merger method of acquisition had already provided a more flexible, less litigious path to acquisition for controlling stockholders than the negotiated merger route. Tender offers are not addressed by the Delaware General Corporation Law (“DGCL”), a factor that has been of great importance in shaping the line of decisional law addressing tender offers by controlling stockholders — but not, as I will discuss, tender offers made by third parties.

Because no consent or involvement of the target board is statutorily mandated for tender offers, our courts have recog*438nized that “[i]n the case of totally voluntary tender offers ... courts do not impose any right of the shareholders to receive a particular price. Delaware law recognizes that, as to allegedly voluntary tender offers (in contrast to cash-out mergers), the determinative factors as to voluntariness are whether coercion is present, or whether there are materially false or misleading disclosures made to stockholders in connection with the offer.”24 In two recent cases, this court has followed Solomon’s articulation of the standards applicable to a tender offer, and held that the “Delaware law does not impose a duty of entire fairness on controlling stockholders making a non-coercive tender or exchange offer to acquire shares directly from the minority holders.”25

The differences between this approach, which I will identify with the Solomon line of cases, and that of Lynch are stark. To begin with, the controlling stockholder is said to have no duty to pay a fair price, irrespective of its power over the subsidiary. Even more striking is the different manner in which the coercion concept is deployed. In the tender offer context addressed by Solomon and its progeny, coercion is defined in the more traditional sense as a wrongful threat that has the effect of forcing stockholders to tender at the wrong price to avoid an even worse fate later on, a type of coercion I will call structural coercion.26 The inherent coercion that Lynch found to exist when controlling stockholders seek to acquire the minority’s stake is not even a cognizable concern for the common law of corporations if the tender offer method is employed.

This latter point is illustrated by those cases that squarely hold that a tender is not actionably coercive if the majority stockholder decides to: (i) condition the closing of the tender offer on support of a majority of the minority and (ii) promise that it would consummate a short-form merger on the same terms as the tender offer.27 In those circumstances, at least, these cases can be read to bar a claim against the majority stockholder even if the price offered is below what would be considered fair in an entire fairness hearing (“fair price”) or an appraisal action (“fair value”). That is, in the tender offer context, our courts consider it sufficient protection against coercion to give effective veto power over the offer to a majority of the minority.28 Yet that very same protection is considered insufficient to dis*439place fairness review in the negotiated merger context.

5.

The parties here cross swords over the arguable doctrinal inconsistency between the Solomon and Lynch lines of cases, with the plaintiffs arguing that it makes no sense and Unocal contending that the distinction is non-foolish in the Emersonian sense. I turn more directly to that dispute now.