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1. E.g., CAL. CORP. CODE § 1001 (West 1977 & Supp. 1984); DEL. CODE ANN. tit. 8, §§ 251, 253 (1983); N.Y. Bus. CORP. LAW § 902 (McKinney 1963 & Supp. 1983-1984); MODEL Bus. CORP. ACT § 71 (1979). The evolution of state merger statutes is traced by Balotti, The Elimination of the Minority Interests by Mergers Pursuant to Section 251 of the General Corporation Law of Delaware, I DEL. J. CORP. L. 63 (1976); Carney, Fundamental Corporate Changes, Minority Shareholders, and Business Purposes, 1980 Am. B. FOUND. RESEARCH J. 69; Weiss, The Law of Take Out Mergers: A Historical Perspective, 56 N.Y.U. L. REV. 624 (1981) [hereinafter cited as Weiss, Historical Perspective]; Weiss, The Law of Take Out Mergers: Weinberger v. UOP, Inc. Ushers in Phase Six, 4 CARDOZO L. REV. 254 (1983) [hereinafter cited as Weiss, Phase Six]. 2. Because mergers are quickly executed and difficult to undo, preliminary injunctions and rescissions are rarely granted. See Weinberger v. UOP, Inc., 457 A.2d 701, 714 (Del. 1983) ("this long completed transaction is too involved to undo"); Klein v. Soundesign Corp., Nos. 6636, 6643 (Del. Ch. Jan. 21, 1982), reprinted in 7 Del. J. Corp. L. 332, 336 (1982) ("A preliminary injunction will not issue unless a plaintiff has established a reasonable probability of ultimate success on final hearing .... "); Lynch v. Vickers Energy Corp., 429 A.2d 497, 501 (Del. 1981) ("Rescission is the preferable remedy . . . [but] is not feasible at this late date. TransOcean has been merged into Esmark and time has brought other corporate changes."). Whatever the initial form of the complaint, the plaintiff's usual objective is rescissory damages, a remedy that requires defendant to pay plaintiff a pro rata share of the gains actually realized from the merger as of the date judgment is entered. See id. The Delaware appraisal remedy, as liberally construed by the court in Weinberger, permits rescissory damages, despite the statutory language excluding "any element of value arising from the accomplishment or expectation of the merger," DEL. CODE ANN. tit. 8, § 262(h) (1983), provided that the gains are not speculative. 457 A.2d at 714 (appraisal may include "elements of rescissory damages if the Chancellor considers them susceptible of proof and a remedy appropriate to all the issues of fairness before him"). In cases where the appraisal remedy does not by its terms apply (e.g., a tender offer or a sale of assets, instead of a merger) or limits recovery (e.g., to pre-merger values), courts are increasingly willing to expand it in the exercise of their equitable discretion. See Lynch v. Vickers Energy Corp., 402 A.2d 5 (Del. Ch. 1979): [A]though the Delaware Corporation Law makes no statutory provision for . . . damages arising as a consequence of an alleged unfair offer of a parent corporation to buy the stock of its subsidiary's minority stockholders for an inadequate consideration . . . I conclude that a proceeding analogous to an appraisal hearing such as is provided for in merger cases is appropriate here. Id. at 11. In Delaware, suits for breach of fiduciary duty are now subsumed by the appraisal hearing and analogous judicial proceedings. See Weinberger v. UOP, Inc., 457 A.2d at 714 (in cases where appraisal is not adequate, "the Chancellor's powers are complete to fashion any form of equitable and monetary relief as may be appropriate, including rescissory damages"). Criticism of appraisal as a limited or mechanical remedy is thus no longer warranted. For examples of such criticism applied to the pre-Weinberger appraisal remedy, see Brudney & Chirelstein, Fair Shares in Corporate Mergers and Takeovers, 88 HARV. L. Rrnv. 297, 304-07 (1974); Manning, The Shareholder's Appraisal Remedy: An Essay for Frank Coker, 72 YALE L.J. 223 (1962); Vorenberg, Exclusiveness of the Dissenting Stockholder's Appraisal Right, 77 HARV. L. REV. 1189 (1964).

Approval of Take-Out Mergers by Minority Shareholders: From Substantive to Procedural Fairness