A review of all Delaware appraisal cases in the last 20 years shows that the court has consistently established a "fair value" greater than the amount a buyer offered to pay for a stand-alone business. The only cases in which appraised value was less than the merger price — fewer than 20 percent of the decisions — were those in which the buyer was paying for something more than the value of the stand-alone business, such as synergies of a combination with the buyer's existing operations or a resolution of disputes.

These results reflect the Delaware law's definition of "fair value" as the long-term intrinsic value of a company, considered as a stand-alone "going concern," and the state's Supreme Court has recently made it clear in Golden Telecom Inc. v. Global GT LP, 11 A.3d 214, 217-28 (Del. 2010) that the court must make its appraisal independently of current market pricing or auction bids. In this context, it is reasonable to assume that a stand-alone buyer would not have offered to pay more for a company than what it was worth, and that a judge will reach the same conclusion. This logic is especially compelling when the buyer is a well-informed management insider partnering with professional private equity investors.