In Morrison v. Berry, No. 12808-VCG (Del. Ch. Sept. 28, 2017), the plaintiff shareholder sued the Board of Directors of The Fresh Market, a food store chain.  The plaintiff alleged that the Directors breached their fiduciary duty by failing to disclose material information about a proposed acquisition of The Fresh Market by Apollo Management L.P.  Specifically, the plaintiff alleged that the auction process engaged in by The Fresh Market was a sham because one of the largest shareholders– who also was a Director of The Fresh Market – had, without the Board’s knowledge, pre-arranged for Apollo to win the auction.  In defense of the completed acquisition, the Board members argued that the pre-acquisition discussions with Apollo were disclosed prior to an informed vote of the shareholders, which approved the acquisition.  The Morrison court explained that where there was an “uncoerced tender of the majority of shares” in support of a merger, the plaintiff’s burden was to “plead facts from which it is reasonably conceivable that the potentially ratifying tender was materially uninformed.”  Concluding that the plaintiffs’ theories were “self-defeating” because they were, themselves, based on information disclosed by the Fresh Market in public filings, the Court granted the defendants’ motion to dismiss.