On September 7, 2018, Vice Chancellor Joseph R. Slights III of the Delaware Court of Chancery denied a motion to exclude certain documents relating to Jarden Corporation’s (“Jarden”) post-signing financial performance offered as evidence during a statutory appraisal trial. In re Appraisal of Jarden Corporation, C.A. No. 12456-VCS (Del. Ch. Sep. 7, 2018). Newell Rubbermaid, Inc. (“Newell”) acquired Jarden pursuant to a merger agreement executed on December 13, 2015, in a deal that closed on April 15, 2016. Petitioners filed for appraisal on June 14, 2016. At trial, petitioners objected to the admission of certain documents relating to Jarden’s post-signing financial performance. Rejecting petitioners’ relevancy objection, the Court determined that “[t]he post-signing financial documents address the condition of Jarden during a timeframe relevant to the ‘fair value’ determination.” In making the relevancy determination, the Court relied on prior cases indicating that a change in value between signing and closing should be addressed in an appraisal analysis because “fair value” must be measured by the “operative reality” of the corporation at the effective time of the merger. However, the Court highlighted that it had not yet determined “[w]hat weight, if any, the evidence will be given in the Court’s deliberations.”
Addressing petitioners’ other objections, the Court found that there was no unfair surprise and the documents were not subject to exclusion on hearsay grounds. The Court explained that while Jarden did not identify the post-signing documents in response to certain interrogatories during discovery, it did produce them and its experts “referred to them in their reports and discussed them at their depositions.” As to the hearsay objection, the Court noted that the evidence fell within the “business records” exception and was similar to hundreds of other documents that were offered and admitted by both parties without objection.