Law360 quotes arguments by Steven M. Hecht, Vice Chair of the Appraisal Rights practice, made to the Delaware Supreme Court in the appeal of In re: Appraisal of Stillwater Mining Co. Delaware's Chief Justice noted his concern about the trial court’s failure to capture the company’s increase in value between the time of the M&A deal’s signing and closing in this $2.2 billion appraisal case. As counsel for the appellants, stockholder affiliates of Brigade Capital Management LP, Hecht argues that the trial court’s decision "eviscerated the appraisal statute with a judge-made ruling.” He agrees with Chief Justice Collins J. Seitz Jr.’s expression of concern, stating: "I think we should all be troubled that the trial court said this is a plausible case for an upward adjustment beyond inflation. How does a trial court say that and not do it on the premise that we didn't ask for it?"

Lowenstein’s clients challenged Stillwater’s assessment of fair value based on post-signing, pre-closing gains in commodity pricing which would have upwards of $45.7 million and $69 million for the combined holdings of the funds. The stockholders are asking for consideration of the $4.45 per share or $2.95 per share addition or, alternatively, that the case be sent back for a full remand with a direction that fair value not be set at merger price. Lawrence M. Rolnick and Hecht represent the petitioners in this matter.