SFF-TIR, LLC v. Stephenson (264 F. Supp. 3d 1148, 2017)

MEMORANDUM OPINION AND ORDER

James 0 Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Defendants’ Motion for Reconsideration of Order Granting Plaintiffs’ Motion for Partial Summary Judgment on Breach of Fiduciary Duty (Doc. 272) and Memorandum Opinion and Order (Doc. 274), filed May 9, 2017 (Doc. 280)(“Motion for Reconsideration”). The Court held hearings on April 26, 2017, and June 29-30, 2017. The primary issues are: (i) whether the Court erred in its interpretation and application of Delaware’s entire-fairness standard in its Order, filed April 12, 2017 (Doc. 272), and in its Memorandum Opinion, filed April 25, 2017 (Doc. 274)(“MO”); and (ii) whether the Court correspondingly erred when it granted the Plaintiffs’ request for partial summary judgment on breach of fiduciary duty. The Court analyzes the Defendants’ Motion for Reconsideration under the United States Court of Appeals for the Tenth Circuit’s multifactor test in Servants of the Paraclete v. Does, 204 F.3d 1005 (10th Cir. 2000), and takes the further step of using its permitted discretion to examine an interlocutory order using de novo review. The Court concludes that this analysis provides no sound reason for the Court to grant the Defendants’ Motion for Reconsideration. The Court, accordingly, denies the Motion for Reconsideration.

FACTUAL BACKGROUND

The Court adopts the factual background it previously stated in its Memorandum Opinion and Order, filed April 25, 2017 (Doc. 274). Defendant “Charles Stephenson is the owner of Regent Private Capital.” Defendants’ Motion for Summary Judgment on Acquiescence Defense and Brief in Support ¶ 1, at 7, filed April 3, 2015 (Doc. 83)(“Defendants’ Acquiescence MSJ”)(stating this fact). See Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment on Acquiescence Defense ¶ 1, at 8, filed April 20, 2015 (Doc. 84)(“Response to Defendants’ Acquiescence MSJ”)(not disputing this fact). “Defendant Cynthia Field is the daughter of Defendant Charles Stephenson.” Plaintiffs’ Memorandum of Law in Support of Motion for Partial Summary Judgment on Breach of Fiduciary Claims ¶ 1, at 3, filed September 14, 2015 (Doc. 157)(“Plaintiffs’ MSJ”)(stating this fact). See Defendants’ Response in Opposition to Plaintiffs’ Motion for Partial Summary Judgment on Breach of Fiduciary Duty Claims (Doc. 157), at 2, filed October 5, 2015 (Doc. 170)(“Response to Plaintiffs’ MSJ”)(not disputing this fact). “Defendant Lawrence Field is the husband of Defendant Cynthia Field and the son-in-law of Defendant Charles Stephenson.” Plaintiffs’ MSJ ¶ 2, at 3 (stating this fact). See Response to Plaintiffs MSJ at 2 (not disputing this fact). “Defendant CEP-TIR, LLC[’s] ... principals are Defendants Stephenson, Cynthia Field and Peter Boylan, [sic] III.” Plaintiffs’ MSJ ¶ 3, at 3 (stating this fact). “In 2009, Regent and Mr. Stephenson individually became together TIR Inc.’s largest shareholder owning approximately 40% of the TIR Inc. shares.” Defendants’ Acquiescence MSJ ¶ 1, at 7 (stating this fact). “At the same time a number of the Plaintiffs associated with Alan Stuart acquired a minority interest in TIR Inc,”.. Defendants’ Acquiescence MSJ ¶ 3, at 7 (stating this fact). “Alan Stuart is a ‘seasoned, successful, long-term investor with more than 40 years’ experience in business development, investment management, and corporate governance.’ ” Defendants’ Acquiescence MSJ ¶ 4, at 7 (stating this fact). “The Defendant Lawrence Field, the son-in-law of Mr. Stephenson and an officer of Regent, became the chairman, and Alan Stuart became a member of the board of directors of TIR Inc.” Defendants’ Acquiescence MSJ ¶ 5, at 7 (stating this fact). See Response to Defendants’ Acquiescence MSJ ¶ 1, at 8 (not disputing this fact).- “In February- 2013, Alan Stuart prepared a proposal for Mr. Field, which he named ‘Project Poirot’ to acquire control of TIR, Inc. at $369,507 per share which he later increased to $385,175.” Defendants’ Acquiescence MSJ ¶ 6, at 7 (stating this fact). “On February 11, 2013, Stuart purchased individual shareholder J.W. Lorett’s TIR Inc. shares for $275,000 per share.” Defendants’ Acquiescence MSJ ¶ 7, at 7 (stating this fact). “On March 21, 2013, Stuart presented an offer to the TIR board for TIR Inc. shares of $380,382 per share.” Defendants’ Acquiescence MSJ ¶ 8, at 7 (stating this fact). “On May 16, 2013, Alan Stuart revised his offer to the board, increasing the repurchase price to $413,143 per share.” Defendants’ Acquiescence MSJ ¶ 9, at 8 (stating this fact). “The Defendants [Charles C.] Stephenson, * [Peter] Boylan, and [Cynthia A.] Field were principals in Cypress Energy Partners-TIR, LLC (“Cypress Energy Partners”). Defendants’ Acquiescence MSJ ¶ 10, at 8 (stating this fact)(brackets added). See Response to Defendants’ Acquiescence MSJ ¶ 1, at 8 (not disputing this fact). “In 2013, two TIR Inc. directors (Alan Stuart on the one hand and Lawrence Field on the other hand) [sought] to acquire control of TIR Inc.” Defendants’ Acquiescence MSJ ¶ 11, at 8 (stating this fact)(relying on Videotape Deposition of Rodney Reynolds Taken on Behalf of the Defendants (taken November 17, 2014), filed April 3, 2016 (Doc. 83-ll)(“Reynolds Depo.”). “In June 2013, the Defendants [completed] the bidding process to acquire control of TIR Inc.” Defendants’ Acquiescence MSJ ¶ 13, at 8 (stating this fact)(relying on Affidavit of Randall Lorett, filed April 3, 2015 (Doc. 83-2)(“Lorett Aff.”).

“On June 26, 2013, Defendant CEP-TIR, LLC acquired 26.45 shares of TIR from certain other shareholders, known as the Pooled Shareholders, in voluntary sales transactions.” Plaintiffs’ MSJ ¶ 4, at 3 (emphasis in the original)(stating this fact). See Response to Plaintiffs’ MSJ at 2 (not disputing this fact). “Defendants subsequently referred to this share acquisition as the ‘Control Acquisition.’” Plaintiffs’ MSJ ¶ 5, at 3 (stating this fact). See Response to Plaintiffs MSJ at 2 (not disputing this fact). “Between June 2013 and October 2013, CEP-TIR LLC also [acquired] certain other outstanding shares of TIR.” Plaintiffs’ MSJ ¶ 6, at 3 (stating this fact). “As a result of these transactions, Defendants CEP-TIR, LLC, Stephenson, and Cynthia Field ... became, collectively, the majority shareholders of TIR, owning at least 69.4% of the outstanding shares.” Plaintiffs’ MSJ ¶ 7, at 3 (stating this fact). See Response to Plaintiffs’ MSJ at 2 (not disputing this fact). CEP-TIR, LLC, Stephenson, and Field “thereby collectively gained control of TIR.” Plaintiffs’ MSJ ¶ 8, at 4 (stating this fact). See Response to Plaintiffs’ MSJ at 2 (not disputing this fact).

“From June 2013 through December 23, 2013, the Plaintiff SFF-TIR, LLC was represented by legal counsel.” Defendants’ Acquiescence MSJ ¶ 14, at 8 (stating this fact). “From June 2013 through December 23, 2013, the Plaintiffs Stuart Family Foundation, Inc.; Alan Stuart 2012 GST Family Trust; Stuart 2005 GST Family Trust; and Celebration, LLC were represented by legal counsel.” Defendants’ Acquiescence MSJ ¶ 15, at 8 (stating this fact). “Each of the individual Plaintiffs executed and delivered a proxy to SFF-TIR, LLC to act on his or her behalf with respect to his or its TIR Inc. shares which proxies were in effect on November 2, 2013.” Defendants’ Acquiescence MSJ ¶ 16, at 8 (stating this fact). “[T]he Plaintiffs, led by Alan Stuart, attempted to negotiate a sale of their minority block of shares to Cypress for a substantially higher share price.” Defendants’ Acquiescence MSJ. ¶ 19, at 9 (stating this fact).

“Following the June 26, 2013 Control Acquisition, and after certain resignations, TIR’s Board of Directors had three members as of October 31, 2013: Defendant Lawrence Field, Defendant Peter Boylan, and Randall Lorett, the President and CEO of TIR.” Plaintiffs’ MSJ ¶ 10, at 4 (stating this fact). “On September 20, 2013, Cypress Energy Partners Limited Partnership filed a Registration Statement (including the prospectus) for the public offering of partnership units of TIR shares, pursuant to .the confidentiality provisions-of the Jumpstart Our Business Startups Act.” Defendants’ Acquiescence MSJ ¶ 20, at 9 (stating this fact). See Response to Defendants’ Acquiescence MSJ ¶ 1, at, 8 (not disputing this fact). “As of November 2, 2013, all plaintiffs had granted proxies to Plaintiff SFF-TIR to vote their .TIR Inc. shares and agreed among themselves not to sell their TIR Inc. shares for less than $654,632.” Defendants’ Acquiescence MSJ ¶ 21, at 9 (stating this fact). “On October 31, 2013, Cypress and TIR Inc. made a Ténder Offer [Letter from Cypress Energy Partners to Shareholders of Tulsa Inspection Resources, Inc. (dated October 31, 2013), filed September 15, 2016 (Doc. 158-3)(Terider Offer)] to TIR Inc.’s remaining shareholders, including the Plaintiffs, for $451,000.” Defendants’ Acquiescence MSJ ¶ 22, at 9 (stating this fact). See Response to Defendants’ Acquiescence MSJ ¶ 1, at 8 (not disputing this fact).

The Tender Offer disclosed (i) that the Registration Statement had been filed, (ii) that Cypress Energy intended to enter into an underwriting agreement for the public offering of master limited partnership units and that the equity of TIR Inc, might be dropped into the new publicly traded entity, and (iii).the purchase of shares (and share, prices) by which the Defendants acquired TIR Inc. shares. .

Defendants’ Acquiescence MSJ ¶23, at 9 (stating this fact)(relying on Videotaped Deposition of Anurag Agarwal (taken September 29, 2014), filed April 3, 2016(Doc. 83-20)(“Agarwal Depo. Ex. I”). In a section called “Certain Conflicts of Interest,” the Tender Offer states:

“As a result of the June Acquisition, Mr. Boylan, and Mr. Field (who is affiliated with Mr, Stephenson and Ms. Field) may each be deemed to have a conflict of interest related to this Offer.” Id. [Tender Offer] at 2,

“As a result of the foregoing potential conflicts of interest, the TIR Board has not been asked to and is not making any recommendation to you regarding this Offer.” Id. [Tender Offer at 2]

“None of the Purchasers, nor any of their respective affiliates has performed or commissioned any appraisal, or engaged any independent financial advisor or other third party to perform any valuation analysis or provide any opinion respecting the value of the Shares in connection with this Offer.” Id. [Tender Offer at 2]

Plaintiffs’ MSJ ¶ 12, at 4 (stating, this fact)(internal citation omitted). See Response to Plaintiffs’ MSJ at 2 (not disputing this fact)..The merger between TIR, Inc. and TIR, LLC “enabled the Controlling Shareholder Defendants to exchange their own TIR shares for equity in the new entity, Defendant TIR LLC, in proportion to their prior shareholders in TIR.” Plaintiffs’ MSJ ¶ 15, at 4 (stating this fact). See Response to Plaintiffs’ MSJ at 2 (not disputing this fact). “The Merger was approved and carried out by the following Defendants: [ (i) ] The Controlling Shareholder Defendants, ie., Defendants CEP-T1R, LLC, Stephenson, and Cynthia Field; and [ (ii) ] TIR Directors Lawrence Field and Peter Boylan III ...Plaintiffs’ MSJ ¶ 16, at 4-5 (bullets and internal citations omitted)(stating this fact). See Response to Plaintiffs’ MSJ at 2 (not disputing this fact). “TIR’s Rule 30(b)(6) witness, Dan O’Keefe, admitted that because the Board composition had mot changed, the same conflicts of interest that existed at the time of the Tender Offer also existed at the time of the Merger.” Plaintiffs’ MSJ ¶ 18, at 5 (stating this fact). See Response to Plaintiffs’ MSJ at 2 (not disputing this fact). ’ •

'' “On November 13, 2013, Cypress Energy’s SEC Registration Statement containing the prospectus for the sale of partnership units in the master limited partnership became public.” Defendants’ Acquiescence MSJ ¶ 24, at 9 (stating this fact). See Response to Defendants’ Acquiescence MSJ ¶ 1, 8 (not disputing this fact). “Shortly after November 13, 2013, the Plaintiffs analyzed or had analyzed by one or more of their representatives the Registration Statement.” Defendants’ Acquiescence MSJ ¶ 25, at 9 (stating this fact). “By November 26, 2013, the Plaintiffs had received and either personally reviewed the October 31 Tender Offer or had the October 31 Tender Offer reviewed by legal counsel or SFF-TIR, LLC on their behalf.” Defendants’ Acquiescence MSJ- ¶26, -at 9 (stating this fact). “The Plaintiffs did not accept the October 31 Tender Offer.” Defendants’ Acquiescence MSJ ¶ 27, at 9 (stating this fact). See Response to Defendants’ Acquiescence MSJ 111, at 8 (not disputing this fact). “The Plaintiffs could not have tendered their shares in response to the Tender Offer no matter what the Offer said or did not say; the Plaintiffs had contractually agreed prior to the Tender Offer not to sell their" TIR Inc. shares for less than $654,632.” Defendants’ Acquiescence MSJ ¶28, at 9 (stating this fact). “By November 26, 2013, the Plaintiffs had received and either (i) personally reviewed or (ii) had reviewed by legal counsel or SFF-TIR, LLC on their behalf the Cypress Energy Partners Limited Partnership registration Statement.” Defendants’ Acquiescence MSJ ¶ 29, at 10 (stating this fact).

The SEC Registration Statement included the following information respecting Cypress Energy Partners Limited Partnership and the Initial Public Offering: (a) Prospectus; (b) List of risks to its business; (c) Capitalization; (d) Cash distribution policy, projections and partnership agreement provisions relating to cash distributions; (e) Historical and projected financial data: (f) Management discussion and analysis of financial condition; (g) detailed descriptions of the industries in which Cypress Energy Partners was engaged, Cypress’ business and Cypress’ management; (h) Cypress Energy Partners’ partnership agreement; (i) Underwriting information; (j) complete audited financial statements (as of September 30, 2013).

Defendants’ Acquiescence MSJ ¶ 30, at 10 (stating this fact)(relying on Austin Aff.). “As of November 2013, TIR had (a) revenues of $346.6 million, which was and [sic] 28 percent higher than TIR’s budgeted figure; (b) pretax profits of $1.6 million; and (c) $9 million year to date, which were all were [sic] the ’highest numbers ■ [TIR] had historically” as of that time. Plaintiffs MSJ ¶ 26, at 6 (last set of bracketed material in the original)(stating this fact)(eiting O’Keefe Depo. at 297:16-299:13). See Response to Plaintiffs’ MSJ at 2 (not disputing1'this fact). “TIR did not do a valuation [to inform] its merger consideration offer.” Plaintiffs’ MSJ ¶ 27, at 6 (internal quotation marks omitted)(stating this- fact). “Defendants- did not disclose to Plaintiffs TIR’s internal October and November 2013 financial statements ... showing record-breaking revenues or TIR’s November 16, 2013 management projections ... of even higher revenues through 2018.” Plaintiffs’ MSJ ¶ 28, at 6 (internal citations omittedXstating this fact). See Response'to Plaintiffs’ MSJ at 2 (not disputing this fact), “On November 26, 2013, the plaintiffs claimed each share of TIR Inc. was worth- $660,000,” Defendants’ Acquiescence MSJ ¶ 32j at 10 (stating this fact). “On November 29,'2013, Defendants advised that the Defendants could not negotiate any purchase during the tender offer period.” Defendants’ Acquiescence MSJ ¶33, at 10 (stating this fact). ‘

“The TIR Board unanimously approved the Merger in a consent dated December 9, 2013 signed by all three Directors.” Plaintiffs’ MSJ ¶ 19, at 5 (stating this fact). See Response to Plaintiffs’ MSJ at 2 (not disputing this fact). “CEP-TIR, LLC, Stephenson, and Cynthia Field, the majority shareholders in TIR, approved the Merger in a similar consent dated December 9, 2013 signed by all three of the majority shareholders.” Plaintiffs’ MSJ ¶20, at 5 (stating this fact). See Response to Plaintiffs’ MSJ at 2 (not disputing' this fact). “Plaintiffs were all minority shareholders of TIR at the time of the Merger, owning the 32.882 outstanding shares that were canceled by the Merger.” Plaintiffs’ MSJ ¶ 21, at 5 (stating this fact). See Response to Plaintiff’s MSJ at 2 (not disputing this fact). “The Merger Agreement stated in its ‘Governing Lav/ provision ... that ‘the provisions of this Agreement relating to mechanics or the effects of the Merger under Delaware law shall be governed by and construed and enforced in accordance with the laws of the State of Delaware.’ ” Plaintiffs’ MSJ ¶22, at 5 (stating this factXquoting Merger Agreement at § 8.04).

“On December 9,2013, Cypress and TIR exercised their statutory right to cash-out the Plaintiffs —” Defendants’ Acquiescence MSJ ¶ 34, at 10 (stating this fact)(relying on Notice to Former Shareholders of Tulsa Inspection Resources, Inc. of Shareholder Action and Appraisal Rights (dated December 11, 2013), filed April 3, 2015 (Doc. 83-27). “On December 11, 2013, the Plaintiffs received timely after-the-fact notice of the Merger and their appraisal rights in accordance with the Oklahoma statutes.” Defendants’ Acquiescence MSJ ¶ 37, at 11 (stating this fact). See Response to Defendants’ Acquiescence MSJ ¶ 1, at 8 (not disputing this fact). “The Merger Agreement (dated December 9, 2013), filed April 3, 2015 (Doc. 83-27), provides that:

For the avoidance of doubt, any former shareholder who surrenders his, her or its share certificate (or acceptable evidence of share ownership for payment of Merger Consideration pursuant to Section 2.02 [payment provisions], shall be deemed to have (a) accepted the Merger Consideration and (b) forever waived any appraisal rights pursuant to this Section 2.03 [provisions, respecting dissenting share], Section 1091 of the [Oklahoma General corporation Act], or otherwise.

Defendants’ Acquiescence MSJ ¶ 38, at 11 (citing Ágarwal Depo. Ex. 7)(stating this fact). See Response to Defendants’ Acquiescence MSJ ¶ 1, at 8 (not disputing this fact). “On December 18-20, 2013, each Plaintiff delivered his or its TIR Inc. share certificates to the Defendant CEP-TIR, along with stock powers, pursuant to the provisions of the Merger Agreement.” Defendants’ Acquiescence MSJ ¶39, at 11 (stating this fact). “On December' 23, 2013, the Defendant TIR LLC paid ... Plaintiffs ... the $451,000 per share Merger Consideration.” -Defendants’ Acquiescence MSJ ¶'40, at 11 (stating this fact). “As of December 9, 2013 (the date on which the Merger was consummated) and as of December 18-20, 2013 (the date on which the Plaintiffs surrendered their TIR Inc. shares ...),. the Plaintiffs knew the Defendants had acquired control of TIR Inc.” Defendants’ Acquiescence MSJ ¶41, at 11 (stating this fact). “As of December 9, 2013 (the date on which the Merger was consummated) and as of December 18-20, 2013 (the date on which the Plaintiffs surrendered their TIR Inc. shares ...), the Plaintiffs knew the transactions by which the Defendants acquired controlling shares of TIR, Inc. and the prices paid for those shares.” Defendants’ Acquiescence MSJ ¶ 42, at 11 (stating this fact).

“Defendants admit that they did not: [ (i) ] Form a special committee of disinterested directors or other disinterested persons to consider the proposed merger; [ (ii) ] Engage any independent financial advisor or other third party valuation analysis; or [ (iii) ] Require a majority-of-the-minority vote for the Merger to be approved.” Plaintiffs’ MSJ ¶ 23, at 5-6 (bullets and internal citations omitted)(stating this fact). See Response to Plaintiffs’ MSJ at 3 (not disputing this fact). “There is no other evidence that Defendants employed any of the above devices at the time of, and in connection with, the Merger.” Plaintiffs’ MSJ ¶ 24, at 6 (stating this fact). See Response to Plaintiffs’ MSJ at 3 (not disputing this fact).

As of December 9, 2013 (the date on which the Merger was consummated) and as of December 18-20, 2013 (the date on which the Plaintiffs surrendered their TIR Inc. shares ...), the Plaintiffs knew the Defendants’ conflicts of interest between their positions as officers, directors and shareholders of TIR Inc. and their positions as officers, directors, and equity owners of Cypress Energy and its Affiliates.

Defendants’ Acquiescence MSJ ¶ 43, at 11 (stating this faet)(relying on Allen Depo. at 108:3—112:3).

As of December 9, 2013 (the date on which the Merger was consummated) and as of December' 18-20, 2013 (the date on which the Plaintiffs surrendered their TIR Inc, shares .-..), the Plaintiffs knew the intentions of the Defendants respecting the organization of a master limited partnership, the exchange of shares of TIR Inc. for units of owner? ship in the. master limited partnership, and an initial public offering of units of ownership in the master limited partnership.

Defendants’ Acquiescence MSJ ¶ 44, at 12 (stating, this fact)(relying on Allen Depo. at 191:8-193:4).

As of December 9, 2013 (the date on which the Merger was consummated) and as of December 18-20, 2013 (the date on which the Plaintiffs surrendered their TIR Inc. shares ...), the Plaintiffs knew the Defendants had not performed or commissioned any appraisal, or engaged any independent financial advisor or other third party to perform any valuation analysis or provide any opinion respecting the value of the TIR, Inc. shares.

Defendants’ Acquiescence, MSJ ¶ 45, at 12 (stating this fact)(relying on Alíen Depo. at 99:5-104:24, Agarwal Depo. at 42:1—44:17, and Agarwal Depo. Ex. I).

As of December 9, 2013 (the date on which the Merger was consummated) and as of December 18-20, 2013 (the date on which the Plaintiffs surrendered their TIR Inc. shares ...), the Plaintiffs knew the Defendants had not obtained the approval of a majority of the minority in effecting the Merger: the Plaintiffs were the remaining TIR Inc. minority shareholders. As a group, the Plaintiffs had demanded in September to sell their shares for a price in excess of $600,000 per share, and in November had agreed amongst themselves, not to accept the Tender Offer.

Defendants’ Acquiescence-MSJ ¶46, at 12 (stating this "fact). “As of December 9, 2013 (the date on which the Merger was consummated) and as of December 18-20, 2013 (the date on which the Plaintiffs surrendered their TIR Inc. shares ...), the Plaintiffs knew the Defendants had not formed a special committee to consider the proposed Merger.” Defendants’ Aequies-cence MSJ ¶ 47, at 12 (stating this fact)(relying on Allen Depo. at 272:3-273:17).

As of December 9, 2013 (the date on which the Merger was consummated) and as of December 18-20, 2013 (the date on which the Plaintiffs surrendered their TIR Inc. shares ..,), the Plaintiffs had been provided the financial statements of TIR Inc. for 2011 and 2012, and for the nine month period ending September 30, 2013.

Defendants’ Acquiescence MSJ ¶ 48, at 12 (stating this fact)(relying on Allen Depo.- at 83:18-84:1, 223:21-224:3). “As of December 9, 2013 (the date on which the Merger was consummated) and as of December 18-20, 2013 (the date on which the Plaintiffs surrendered their TIR Inc. shares to obtain the Merger consideration), the Plaintiffs had received the Registration Statement.” Defendants’ Acquiescence MSJ ¶ 49, at 12 (stating this fact)(relying on Allen Depo. at 194:2-11).

As of December 9, 2013 (the date on ■which the Merger was consummated) and as of December 18-20, 2013 (the date on which the Plaintiffs surrendered their TIR Inc. shares ...), the Plaintiffs believed that the Defendants did not believe (and- had no reasonable basis to believe) that $451,100 per TIR Inc. share represented a premium over the fair value of such shares.

Defendants’ Acquiescence MSJ ¶ 50, at 13 (stating this fact)(relying on Allen Depo. at 206:11-208:25).

As of December 9, 2013 (the date on which the Merger was consummated) and as of December 18-20, 2013 (the dates on which the Plaintiffs surrendered their TIR Inc. shares ...), Plaintiffs believed both Plaintiffs’ financial ■presentations and Defendants’ financial presentations showed the- TIR Inc. shares were worth several multiples of $451,000.

Defendants’ Acquiescence MSJ ¶ 51, at 13 (stating this fact)(relying on Complaint, filed July 3,2014 (Doc. I)).

On February 4, 2014, Plaintiff SFF-TIR, ■ LLC by its Managing Member, Alan Stuart, sent a letter to the investors in Plaintiff SFF-TIR in the form and content of [Letter from Alan Stuart to SFF-TIR, LLC investors (dated February 12, 2014), filed April 3, 2015 (Doc. 83-31)(“Letter to SFF-TIR, LLC Investors”) ], which stated, in part, as follows

“We are pleased to inform our investors in SFF-TIR, LLC (‘SFF[-]TIR’) we were able to liquidate our equity position in Tulsa Inspection Resources, Inc. (‘TIR’). On December 23, 2013 we received cash consideration of $451,000 per share for a total cash consideration of $5,763,780. The investment in TIR has generated 2.47x our original investment with a net annualized IRR of 40.42%.”

Defendants’ Acquiescence MSJ ¶ 53, at 13 (stating this fact)(quoting Letter to SFF-TIR, LLC Investors 1, filed April 3, 2015 (Doc. 83—32)).

After ... December 18-20, 2013, Defendants CEP-TIR, Charles Stephenson, and Cynthia Field, believing the Plaintiffs to have waived all claims to additional consideration for their shares, contributed 60.1% of the member interest in TIR LLC to Cypress Energy Partners Limited Partnership, and Cypress Energy Partners Limited Partnership effected a sale of partnership units to the public pursuant to the Registration Statement.

Defendants’ Acquiescence MSJ ¶ 54, at 13 (stating this fact)(relying on Austin Aff. ¶ 5, at 2-3). “On July 3, 2014, the Plaintiffs filed this action.” Defendants’ Acquiescence MSJ ¶ 55, at 13 (stating this fact)(relying on Complaint). See Response to Defendants’ Acquiescence MSJ ,¶ 1, .at. 8 (not disputing this fact).

PROCEDURAL BACKGROUND

With this Memorandum and Opinion, the Court resolves and decides the Defendants’ Motion for Reconsideration. In this section, thq Court will summarize the Motion for Reconsideration, the Plaintiffs’ response, and the Defendants’ reply. The Court also recapitulates the parties’ arguments during the motion hearing, during which the parties largely adhered to the points and arguments they raised in their briefings.

1. Plaintiffs’ Motion for Partial Summary Judgment on Breach of Fiduciary Duty Claims.

The Plaintiffs filed Plaintiffs’ Memorandum of Law in Support of Motion for Partial Summary Judgment on Breach of Fiduciary Duty Claims on September 14, 2015. See Plaintiffs’ Memorandum of Law in Support of Motion for Partial Summary Judgment on Breach of Fiduciary Duty Claims, filed September 14, 2015 (Doc. 157)(“Plaintiffs’ MSJ”). With this motion, the Plaintiffs seek partial summary judgment on two claims: (i) the Plaintiffs’ First Claim for Relief against the Controlling Shareholder Defendants; and (ii) the Plaintiffs’ Second Claim for Relief against the Director Defendants, for breach of fiduciary duty. See Plaintiffs’ MSJ at 7.

In relation to these claims, the Plaintiffs first petition the Court to grant partial summary judgment holding that the entire-fairness standard governs the merger, because the merger was a self-dealing transaction. See Plaintiffs’ MSJ at 9-10. The Plaintiffs insist that a showing of self-dealing suffices to require the Court to apply the entire-fairness doctrine, see Plaintiffs’ MSJ at 11, and that the undisputed material evidence shows that the merger was self-dealing, as corporate fiduciaries stood on both sides of the transaction and—the Plaintiffs assert—did nothing to disable themselves from this conflict, See Plaintiffs’ MSJ at 12-13. The need for the entire-fairness standard to apply is especially acute in this case, the Plaintiffs contend, because (i) the Defendants had a direct interest in making the “fair value” as low as possible as owners and directors of the surviving entity, Plaintiffs’ MSJ at 13; and (ii) the Defendants made a determination to allocate different consideration to themselves and to the Plaintiffs when they obtained for themselves the benefit of TIR, Inc.’s rapidly increasing cash flow as qualified income for the profitable MLP IPO they planned to conduct and to award themselves equity in that public entity while denying the same benefit to the Plaintiffs, see Plaintiffs’ MSJ at 13-14.

The Defendants also petition the Court to grant partial summary judgment holding that the Defendants bear the burden throughout the trial to prove the merger’s entire fairness, because they used no procedural mechanisms to cure their conflict of interest. See Plaintiffs’ MSJ at 9-10,15. As the Plaintiffs read Delaware law, the Defendants may shift the burden .of persuasion on the entire-fairness issue only by either (i) showing that a well-functioning committee of independent directors approved the transaction; or (ii) showing that a majority of the minority shareholders approved the merger transaction via an informed vote. See Plaintiffs’ MSJ at 15. The Plaintiffs insist that the Defendants took neither of these curative measures. See Plaintiffs’ MSJ at 15-17. Accordingly, the Plaintiffs seek for the Court to grant summary judgment that the Defendants bear the burden to prove entire fairness at trial. See Plaintiffs’ MSJ at 17.

Under the entire-fairness standard, the Plaintiffs argue, the undisputed material facts show that the Defendants breached their fiduciary duty of fair dealing. See Plaintiffs’ MSJ at 17. The Plaintiffs allege that the Defendants intentionally structured the merger so that it was not negotiated with the Plaintiffs and never obtained the Plaintiffs’ approval. See Plaintiffs’ MSJ at 18. The Plaintiffs assert that the Defendants intended the merger transaction to eliminate the Plaintiffs as stockholders to prevent them from receiving any benefit from the planned Cypress Energy Partners, L.P. IPO and that the Defendants forced the Plaintiffs out at a price which greatly underestimated the true share value. See Plaintiffs’ MSJ at 18-20. As the Plaintiffs see it, the Defendants’ alleged failure to use any procedures to determine independently fair value, by itself, establishes their breach of duty, even if the Defendants believed that the price they offered is fair. See Plaintiffs’ MSJ at 20-21. The Plaintiffs reject the proposition that the Defendants could have discharged their duties simply by following the statutory merger procedure and offering the Plaintiffs an appraisal. See Plaintiffs’ MSJ at 21. The Defendant, therefore, reiterate their request that the Court grant partial summary judgment that: (i) the entire fairness standard governs the Plaintiffs’ claims for breach of fiduciary duty; and (ii) the Defendants bear the burden of proving that the merger satisfies the entire fairness standard. See Plaintiffs’ MSJ at 22. The Defendants further ask the Court to grant partial summary judgment holding that Defendants CEP-TIR, LLC, Stephenson, C. Field, L. Field, and Boylan are liable for breaches of the duty of entire fairness, reserving for trial the issue of damages. See Plaintiffs’ MSJ at 22.

2. The Defendants’ Response to the Plaintiffs’ MSJ.

The Defendants filed the Defendants’ Response in Opposition to Plaintiffs’ Motion for- Partial Summary Judgment on Breach of Fiduciary Duty Claims (Doc, 157) on October 5, 2015. See Defendants’ Response in Opposition to Plaintiffs’Motion for Partial Summary Judgment on Breach of Fiduciary Duty Claims, filed October 6, 2015 (Doc. 170)(“Response to Plaintiffs MSJ”). The Defendants argue that the Court should deny the Plaintiffs’ MSJ for four reasons: (i) the Plaintiffs, being fully informed, acquiesced in the merger and cannot now be heard to challenge it; (ii) the undisputed facts establish that the merger process was fair' as a result of the statutory appraisal which was the Plaintiffs’ exclusive remedy; (iii) Oklahoma common-law clean-hands doctrine and the Oklahoma common law of éstoppel bar the Plaintiffs’ breach-of-fiduciary-duty claims; and (iv) the Plaintiffs have waived their breach-of-fiduciary-duty claims contractually and by conduct under the Oklahoma common law of waiver. See Response to Plaintiffs’ MSJ at 7.

The Defendants insist, first, that the Plaintiffs, being fully informed, acquiesced in the merger and cannot now be heard to challenge it. See Response to Plaintiffs’ MSJ at 7-9. Referring the, Court to its discussion on this point in the Deféndants’ Acquiescence MSJ, the Defendants maintain that the only facts relevant to .this proposition are the facts establishing the Plaintiffs’ knowledge when they surrendered their share in exchange for the payment of the merger consideration pursuant to the merger agreement’s terms. See Response to Plaintiffs’ MSJ at 8. According to the Defendants, if the Plaintiffs had knowledge of the facts they allege in their Complaint on the date that the Plaintiffs surrendered their shares, the defense of acquiescence bars their claims. See Response to Plaintiffs MSJ at' 8. The Defendants then contend that the Plaintiffs admit having, had such knowledge at that time. See Response to Plaintiffs MSJ at 8.

Revisiting a taxonomy that they had used in earlier briefings, the Defendants indicate that the Plaintiffs had only four choices regarding how to proceed when they confronted a merger which they opposed: (i) obtain payment of the merger consideration; (ii) have their shares appraised; (iii) seek a statutory appraisal of their-shares, and sue for rescission and rescissionary damages; or (iv) file suit seeking'rescission and rescissionary damages. See Response to Plaintiffs’ MSJ at 8-9. The Defendants emphasize that the Plaintiffs did not have thé option to obtain the merger consideration, ■ and then file suit seeking rescission and' rescissionary damages. See Response to Plaintiffs’ MSJ at 9.

Switching gears, the Defendants then assert that the undisputed facts establish that the merger process was fair, and that the alleged lack of an independent committee or appraisal does not “support a claim for a quasi-appraisal trial on the Merger price.” Response to Plaintiffs’ MSJ at 9-10. The Defendants argue that the Plaintiffs fundamentally misconceive the entire fairness doctrine, which the Defendants say shifts the burden to a defendant to prove both fair process and fair price. See Response to Plaintiffs’ MSJ at 10. By definition, the Defendants maintain, entire fairness cannot apply where the undisputed facts show that the merger process was fair. See Response to Plaintiffs’ MSJ at 11. The Defendants insist yet again’that it was fair under Oklahoma law, which expressly grants the majority the right to cash out a merger without the consent of, or even prior notice to, the minority shareholders. See Response to Plaintiffs’ MSJ at 11. According to the Defendants, minority shareholders have a right under Oklahoma law to have a court appraise their shares but hot to the formation of ah independent committee. See Response to Plaintiffs’ MSJ at 11.

After walking the Court through a condensed chronology of the merger and the events leading to it, see Response to Plaintiffs’ MSJ at 11-15, the Defendants turn their attention to the clean-hands doctrine, see Response to Plaintiffs’ MSJ at 16. As the Defendants read the doctrine, Oklahoma common law requires that, to receive equity, a person must do equity. See Response to Plaintiffs’ MSJ at 16 (citing Krumme v. Moody, 910 P.2d 993 (Okla. 1995)). The Defendants insist that Stuart orchestrated the litigation after having (i) illicitly vied for TIR, Inc.’s control of in 2012 and 2013; (ii) directly solicited TIR, Inc.’s shareholders; (iii) attempted' to hold the merger hostage with the end of extracting a higher price; and (iv) delivering his shares—with braggadocio—when he discovered that he lacked veto power over the merger. See Response to Plaintiffs’ MSJ at 17. The Defendants urge the Court not to lend its aid to one who allegedly “has been guilty of such inequitable conduct.” Response to Plaintiffs’ MSJ at 17.

The Defendants then insist that the Oklahoma common law of estoppel also bars the Plaintiffs’ breach-of-fiduciary-duty claims. See Response to Plaintiffs’ MSJ at 17. As. the Defendants read the law, equitable estoppel prevents a party from taking a legal position inconsistent with an earlier statement or action that places the counterparty at a disadvantage. See Response to Plaintiffs’ MSJ at 17 (citing W. Keeton et al., Prosser and Keeton on the Law of Torts § 05, at 738 (5th ed. 1984)). Drawing on a 1956 case from the Supreme Court of Oklahoma, the Defendants explain that “[e]quitable estoppel holds a person to ... a position assumed, where otherwise inequitable consequences would result to another, who, having a right to do so under the circumstances, has in good faith relied thereon.” Response to Plaintiffs’ MSJ at 17-18 (quoting Apex Siding and Roofing Co. v. First Federal Savings and Loan Ass’n, 1956 OK 195, 195, 301 P.2d 362, 355)(internal quotation marks omitted)(ellipses in the Response to Plaintiffs’ MSJ). According to the Defendants, the Plaintiffs are estopped to unwind the merger, because the Defendants, in reliance on the Plaintiffs’ “voluntary and knowing surrender of their share certificates,” © contributed 50.1% of their member interests in TIR, Inc, LLC to Cypress Energy Partners Limited Partnership; and (ii) effected a sale of partnership units to the public pursuant to the Registration Statement. Response to Plaintiffs’ MSJ at 18.

As the Defendants see it, the Plaintiffs also waived their breach-of-fiduciary-duty claims contractually and by conduct under the Oklahoma common law of waiver. See Response to Plaintiffs’ MSJ at 18. Under Oklahoma law, the Defendants say, waiver is the “intentional relinquishment of a known right.” Response to Plaintiffs’ MSJ at 18 (citing Barringer v. Baptist Healthcare of Okla., 2001 OK 29, 22 P.3d 695, 700). Dusting off a Supreme Court of Oklahoma case from nearly a century ago, the Defendants explicate that waiver “may be achieved contractually, provided that the contract is founded on a valuable consideration and made by the party whose benefit is being waived.” Response to Plaintiffs’ MSJ at 18 (citing Smith v. Minneapolis Threshing Mach. Co., 1923 OK 84, 89 Okla. 156, 214 P. 178, 214 P.2d 178, 180). The Defendants then intone their, earlier repeated assertion that, in December, 2013, the Plaintiffs delivered their share certificates to the Defendants “to induce the Defendants to pay the Merger consideration,” and in accordance with a merger agreement that expressly provided that any former shareholder who surrendered share certificates would be deemed to have forever waived any appraisal rights “pursuant to the Oklahoma appraisal statute or otherwise.” Response to Plaintiffs’ MSJ at 18. Extending their argument on this point, the Defendants insist that the Plaintiffs'even waived their right to a quasi-appraisal under Oklahoma common law, as delivering the share certificates and accepting merger consideration for them constitutes an implied waiver in Oklahoma. See Response to Plaintiffs’ MSJ at 19 (citing Barringer v. Baptist, 22 P.3d at 701).

3. The Plaintiffs’ Reply to the Plaintiffs’ MSJ.

The Plaintiffs filed the Plaintiffs’ Reply Memorandum of Law in Further Support of Motion for Partial Summary Judgment on Breach of Fiduciary Duty Claims on October 19, 2015. See Plaintiffs’ Reply Memorandum of Law in Further Support of Motion for Partial Summary Judgment on Breach of Fiduciary Duty Claims, filed October 19, 2015 (Doc. 177)(“Reply to Plaintiffs’ MSJ”). The Plaintiffs first assert that the undisputed material facts establish that the Plaintiffs are entitled to judgment as a matter of law that the controlling shareholders and director defendants breached their fiduciary duty of fair dealing. Reply to Plaintiffs’ MSJ at 3. According to the Plaintiffs, the Defendants could have created a level playing field designed to protect the Plaintiffs’ interests as minority shareholders by (i) appointing an independent special committee; (ii) engaging an independent financial advisor or other third party to perform a valuation analysis; (iii) condition merger approval on a fully informed vote of the majority of minority shareholders; or (iv) providing an “opportunity for genuine negotiations regarding the merger.” Reply to Plaintiffs’ MSJ at 3 (quoting In re Sunbelt Beverage Corp. S’Holder Litig., 2010 WL 26539, at *5 (Del. Ch. January 5, 2010)(Chandler, C.). The Plaintiffs assert that the Defendants undertook none of these protections and that “[liability inexorably follows,” where the Defendants “approved a squeeze out merger, devoid of procedural protections, as a final means of forcing [the Plaintiffs] out of the company and obtaining [their] ... stake_” Reply to Plaintiffs’ MSJ at 4-5 (bracketed material and first set of ellipses in the Reply to Plaintiffs’ MSJXquoting Sunbelt, 2010 WL 26539, at *5). According to the Plaintiffs, the Defendants admit that they did not go through the motions- of establishing fair dealing and that there is no fact left warranting a trial on the issue, because the “Defendants cannot possibly prove the independence of measures they never took.” Reply to Plaintiffs’ MSJ at 5 (emphatic italics removed).

Turning to the fair price issue, the Plaintiffs insist that fair price is relevant only to the amount of damages which the Defendants must pay on account of their failure to deal fairly with the Plaintiffs. See Reply to Plaintiffs’ MSJ at 6. For three reasons, the Plaintiffs insist, the fair price issue is not before the Court on the Plaintiffs’ MSJ or on any other pending motion, and must abide trial. See Reply to Plaintiffs’ MSJ at 6. First, the Plaintiffs note, neither the Plaintiffs nor the Defendants has moved for summary judgment on fair price, and fan- value is “a quintessentially factual—and sharply-disputed— issue, which can only be resolved at trial by expert testimony.” Reply to Plaintiffs’ MSJ at 6. Second, the Plaintiffs contend, the Defendants fail to address the underlying procedure used to adopt the merger. See Reply to Plaintiffs’ MSJ at 6. Third, the Plaintiffs emphasize, fiduciaries employing grossly inadequate process can be found liable even if the transaction price might otherwise be considered fair. See Reply to Plaintiffs’ MSJ at 6 (citing In re Nine Sys. Corp. S’Holders Litig., 2014 WL 4383127, at *47 (Del. Ch. Sept. 4, 2014)).

The Plaintiffs then dismiss the Defendants’ frequent invocation of the Plaintiffs’ merger consideration acceptance, arguing that the acceptance is irrelevant to and does not meet the Defendants’ burden to prove fair dealing. See Reply to Plaintiffs’ MSJ at 7. According to the Plaintiffs, fair dealing required the Defendants to take prophylactic measures to remove the taint of their own conflict; post-merger conduct, e.g., share surrender when fully informed, is irrelevant to a showing of fair dealing. See Reply to Plaintiffs’ MSJ at 7-8. Likewise, the Plaintiffs insist, the limited exception to entire fairness for short-form mergers that the Defendants invoke—the availability of a statutory appraisal—has no application to this conflicted long-form merger. See Reply to Plaintiffs’ MSJ at 8. According to the Plaintiffs, statutory appraisal, unlike the entire-fairness doctrine, does not provide a complete remedy for unfair dealing. See Reply to Plaintiffs’ MSJ at 8-9. Furthermore, the Plaintiffs insist, statutory appraisal applies only to short-form mergers, and the Defendants admit that the merger in this case was effected pursuant to 18 O.S. § 1090.2—the long-form merger statute. See Reply to Plaintiffs’ MSJ at 9.

In concluding, the Plaintiffs assert that the Defendants cannot escape their personal liability by mischaracterizing the Plaintiffs’ fiduciary duty claims as claims for “quasi-appraisal.” Reply to Plaintiffs’ MSJ at 10. Distinguishing quasi-appraisal from statutory appraisal, the Plaintiffs maintain that the • former is a damages award at the conclusion of a trial in which a defendant’s liability for breach of fiduciary duty has been established. See Reply to Plaintiffs’ MSJ at 10 (citing In re Orchard Enters., Inc., 88 A.3d 1, 42, 47-48 (Del. Ch. 2014)). The Defendants’ lexical legerdemain, the Plaintiffs assert, is “merely a variant of their failed arguments of acquiescence, estoppel, waiver and unclean hands.” Reply to Plaintiffs’ MSJ at 10. Accordingly, the Plaintiffs repeat their petition from the Plaintiffs’ MSJ that the Court grant partial summary judgment that: (i) the entire fairness standard governs the Plaintiffs’ claims for breach of fiduciary duty; (ii) the Defendants bear the burden of proving that the merger satisfies the entire-fairness standard; and (iii) the Defendants CEP-TIR, LLC, Stephenson, C. Field., L. Field, and Boylan are liable for breaching their duty of entire fairness, reserving for trial the damages issue. See Reply to Plaintiffs’ MSJ at 10.

4. December. 28, 2016 Hearing.

The Court held a hearing on the Plaintiffs’ MSJ on December 28, 2016. See Transcript of Motion .Hearing Before the Honorable James O. Browning United States District Judge at 507:16-543:17, filed January 23,.2017 (Doc. 250)(“Decem-ber Tr.”)(Court, DeMuro, Kagen). The parties argued the Plaintiffs’ MSJ at the end of two days of hearings, and the Court previously had advised the parties that it had a hard deadline for closing the day’s hearing so that it could make the return trip to Albuquerque for a separate case. Noting that the day’s hard deadline was only an hour away, the Plaintiffs conveyed that they were hesitant to begin discussion on a motion that the parties might not have sufficient time to argue fully. See Tr. at 507:19-508:3 (Kagen). The Court then asked whether it could ask the Plaintiffs a few questions about the Plaintiffs’ MSJ then instead of hearing a full-blown argument, and the Plaintiffs readily agreed. See Tr. at 508:4-8 (Court, Kagen).

The Court first asked the Plaintiffs what the factual basis is for the Plaintiffs’ MSJ. See Tr. at' 508:10-12 (Court). The Plaintiffs responded that the Plaintiffs’ MSJ is based entirely on undisputed facts, but they did not immediately accept the Court’s invitation to describe what those facts are. See Tr. at 508:21-509:25 . (Kagen), Instead, the Plaintiffs summarized for the Court the three orders that they were seeking to obtain in the Plaintiffs’ MSJ. See Tr, at 509:1-510:5 (Kagen). First, the Plaintiffs said, they wanted an order that says that the entire-fairness standard governs the Plaintiffs’ claims for breach of fiduciary duty—standard that the Plaintiffs asserted the Defendants have conceded applies. See Tr. at 509:1-9 (Kagen). Second, the Plaintiffs indicated, they want an order that the Defendants bear the burden of proof that the merger was entirely fair to the minority shareholders, he., that it was the product of both fair dealing and fair price. See Tr. at 509:10-15 (Kagen). (Third, the Plaintiffs stated, they want an order that the Defendants are liable for breaching their duty of entire fairness, because the undisputed material facts shows that the Defendants have not and cannot meet their burden to show fair dealing. See Tr. at 509:22-510:2 (Kagen). According to the Plaintiffs, they séek to reserve for trial the issue of damages resulting from that breach of fiduciary duty. See Tr. at 510:2-5 (Kagen).

The Defendants, seemingly returning full circle to their assertion early in the morning of the hearing’s first day that they were bearing tidings of good news, seé supra, told the Court:

I think I can simplify this because Mr. Kagen is correct. We’ve got an area of agreement, which is a great way to end the day for anybody in the courtroom. And that is, we agree that if Your Honor denies the acquiescence motion outright and- says it’s no longer an issue, or even if you submit that to the trial, which we think you should, the trial court at a minimum, that if we don’t get dismissed on acquiescence, okay, and it’s a trial issue,- we agree that the entire fairness standard applies to the fiduciary duty claims.

Tr. at 510:10-19 (DeMuro). To ensure that it correctly interpreted 'What the Defendants were saying, the Court probed the Defendants with a collection of short questions. See Tr, at 510:23-511:19 (Court, DeMuro). Because of the exchange’s importance, the Court recites the exchange verbatim here:

THE COURT: But you would agree with his statement that the entire fairness standard governs Plaintiffs’ claims for breach of fiduciary duty if the acquiescence motion is denied?

MR. DEMURO: Correct.

THE COURT: And would you also agree that the Defendants bear [the] burden of proving that the merger satisfies the entire fairness standard if the acquiescence motion for summary judgment is denied?

MR, DEMURO: As, it pertains to the fiduciary duty claim, yes.

Tr. at 510:23-511:8 (Court, DeMuro). Inquiring about the Defendants’ assertion that'they might still quibble what the jury instruction looks like regarding the entire fairness standard and from-what specific case law the jury ■ instruction would be pulled, the Court asked the Defendants whether their quibble would just be about the Defendants’ liability under,'the entire-fairness standard. See Tr. at 511:9-10 (Court). The Defendants responded “that’s the claim, yes.” Tr. at 511:11 (DeMuro). The Court then turned to the Plaintiffs and asked whether, in writing its opinion, it could subsume all the facts relevant to the Plaintiffs’ MSJ into the factual sections combined from the Defendants’ two summary judgment -motions so that it might write one opinion to decide all the motions which the Court had heard over the previous two days. See Tr. at 511:18-513:7 (Court). The Defendants asserted that the Court could not glean sufficient facts about the merger’s history from the. Defendants’ summary judgment motions to accomplish that feat; the Court, the Plaintiffs asserted, needs also to incorporate facts from Plaintiffs’ MSJ. See Tr. at 512:8-516:24 (Kagen). As one example, the Plaintiffs said, if entire fairness rather than the business-judgment rule applies, then the burden to prove entire fairness shifts to the Defendants from the case’s beginning to its ' end. See Tr. at 518:10-521:4 (Ka-gen)(citing In re Nine Systems, affirmed in Fuchs v. Wren Holdings, LLC, 129 A.3d 882 (Del. 2015). As another example, the Plaintiffs continued, the facts in the Defendants’ two summary judgment motions do not provide sufficient detail about the parties involved for the Court to see—or in the Plaintiffs’ opinion, to show—how none of the individual Defendants was a disinterested actor in the merger transaction. See Tr. at 521:5-523:19 (Kagen).

Veering a bit from the question at that point, the Plaintiffs began to delve into their legal arguments regarding the liability issue in Plaintiffs’ MSJ. See Tr. at 523:20 (Kagen). The Plaintiffs asserted that, because the Defendants were not disinterested actors in the merger transaction, Delaware law required them to put into place protections to safeguard minority shareholders’ rights at the time of the merger on December 9,'2013. See Tr. at 524:4-546:13 (Kagen)(citing In re Cornerstone Therapeutics Inc., Stockholder Litig., 115 A.3d 1173 (Del. 2015); In re Sunbelt Beverage Corp. S’holder Litig., 2010 WL 26539 (Del. Ch. Jan. 5, 2010)(Chandler, C.), as revised Feb. 15, 2010; Weinberger v. UOP, Inc., 457 A.2d 701 (Del. 1983); Zutrau v. Jansing, 2014 WL 3772859 (Del. Ch. July 31, 2014)(Parsons, V.C.); and Rice). The Plaintiffs, maintained that the Defendants did not “have to follow a particular recipe” when it came to designing or implementing these protections, but that the Defendants needed to take some protections to avoid entire-fairness review. Tr. at 526:14-18 (Kagen). The Plaintiffs alleged, however, that the Defendants took no prophylactic actions to protect minority shareholders’ rights at all, See Tr. at 526:18-24 (Kagen). On account of this lack of prophylactic action and what the Plaintiffs asserted is the Defendants’ inability to demonstrate fair process, the Plaintiffs contended that Delaware law says that liability attaches to the Defendants. See Tr. at 527:10-528:23 (Ka-gen)(citing In re Trados Inc. S’holder Litig., 73 A.3d 17 (Del. Ch. 2013)(Laster, V.C.); Owen v. Cannon, 2015 WL 3819204 (Del. Ch. June 17, 2015)(Bouchard, C.); In re Celera Corp.; and Lampton Welding Supply Co. v. Stobaugh, 2012 WL 5398790 (N.D. Okla. Nov. 2, 2012)(Kern, J.))). After offering the Court, their thoughts on how the opinion should .be structured, the Plaintiffs then concluded their argument. See Tr. at 530:1 (Kagen). The Court then asked the Defendants the same question it had asked the Plaintiffs—whether the Defendants objected to the Court’s plan to pull the facts from the-Plaintiffs’ MSJ into one factual pool along with the facts from the Defendants’ two summary judgment motions. See Tr. at 530:5-13 (Court). The Defendants responded that this approach is identical to the approach that they would take were they the Court. See Tr. at 530:14-533:2 (DeMuro).

The Court then permitted the Defendants to present their argument on the liability issue that the Plaintiffs raise in the Plaintiffs’ MSJ, asking first whether the Defendants could point to any case that disputes the Plaintiffs’ assertion that the Defendants’ failure to take prophylactic protections is a per se violation of entire fairness See Tr. at 533:8-13 (Court). The Defendants went even further, indicating that no case exists that supports the Plaintiffs’ position. See Tr. at 533:14-25 (DeMuro). The Defendants insisted that having a burden-shifting rule in entire-fairness standard cases would be nonsensical if failure to take steps to protect the minority shareholders resulted in per se violation of the entire fairness standard. See Tr. at 534:18-535:24 (DeMuro).

The Court asked the Defendants what they would emphasize as proof that their merger process was entirely fair if the burden only shifts rather than that there is a per se violation. See Tr. at 535:25-536:16 (Court). The Defendants adduced (i) the bidding process, by which, the Defendants said, they had established a premium value for the TIR, Inc. shares; (ii) the arm’s-length share sales that the Defendants disclosed to shareholders; and (iii) the Plaintiffs’ concession that they were fully informed of all the material facts regarding the merger. See Tr. at 536:19-537:25 (DeMuro). The Plaintiffs then quickly argued a reply to Plaintiffs’ MSJ, noting that the Court only had twelve minutes left before it would be forced to stop argumentation for the day. See Tr. at 539:14-17 (Kagen). According to the Plaintiffs, their belief that the merger price was fair is insufficient to prevent liability from attaching if the merger transaction and cash-out were not procedurally fair. See Tr. at 539:18-540:24 (Kagen). The Plaintiffs maintained that this insufficiency is evident from In re Nine Systems, in that the minority shareholders in that case “got an amazing price” for their shares, but that the defendant company directors had not provided sufficiently fair process. Tr. at 540:25-541:6 (Kagen). The court in that case, the Plaintiffs contended, decided that the defendant directors still were liable, because of the lack of fair process, ultimately holding that there were no damages to award on account of the fair price but still awarding the plaintiffs millions of dollars in attorney fees. See Tr. at 541:7-13 (Kagen). The Plaintiffs then closed their argument by reiterating and summarizing some of their previous points. See Tr. at 541:22-543:2 (Kagen).

Starting to draw the hearing to a close, the Court divulged to the parties:

I got to look at these cases, ... but I’m inclined to agree what I have read so far with Mr. Kagen, that you got to point to something more than the bidding process and those sort of things, you got to have some reasonable substitute for probably the things that pass for procedural fairness. I’m not seeing them here.

So I think if I stick with the inclinations I’ve had on the two other motions, motions for summary judgment, it’s going to lead me to probably grant the motion that the Plaintiff has here on breach of fiduciary duty, leaving us ... really a valuation trial. So that’s what I’m envisioning right at the present time as I head back to Albuquerque to work on this opinion.

Tr. at 543:4-17 (Court).

5. Memorandum Order and Opinion.

The Court published the Memorandum Opinion and Order which the Defendants move the Court to reconsider on April 25, 2017. See SFF-TIR, LLC v. Stephenson, 250 F.Supp.3d 856, 867, 2017 WL 1487439, at *1 (D.N.M. April 25, 2017)(Browning, J.)(“MO”). The MO resolved six motions, turning therefore to an analysis of the Plaintiffs’ MSJ on the MO’s page 308. See MO at 303, 250 F.Supp.3d at 1045-46, 2017 WL 1487439, at *133. The Court granted the Plaintiffs’ request for summary judgment, concluding that: (i) the entire fairness standard governs the Plaintiffs’ claims for breach of fiduciary duty; (ii) the Defendants bear the burden of proof that the merger was entirely fair to the minority shareholders; and (iii) the Defendants are liable for breaching their duty of entire fairness, because the undisputed material facts show that the Defendants did not put into place sufficient safeguards protecting minority shareholder rights to meet this burden. See MO at 303, 250 F.Supp.3d at 1045-46, 2017 WL 1487439, at *133. The Court concluded, however, that the Plaintiffs’ and the Defendants’ competing valuation assumptions, models, projections, and experts do not allow the Court to calculate damages at the time the Court issued the MO. See MO at 303, 250 F.Supp.3d at 1045-46, 2017 WL 1487439, at *133. Accordingly, the Court left a determination of damages to be resolved at trial. See MO at 303, 250 F.Supp.3d at 1045-46, 2017 WL 1487439, at *133.

As relates to its first conclusion about the entire fairness doctrine’s applicability, the Court determined—through reference to an earlier portion of the MO, see MO at 303, 250 F.Supp.3d at 1045-46, 2017 WL 1487439, at *133—that when the Court sits in a diversity case, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)(“Erie”) requires the Court to interpret state law as the state’s highest court would interpret it. See MO at 277, 250 F.Supp.3d at 1031-32, 2017 WL 1487439, at *122 (citing 304 U.S. at 64, 58 S.Ct. 817). Beginning its analysis with Weinberger v. UOP, Inc., the Court noted that the defendants in that case made no attempt to structure the challenged merger transaction on an arm’s-length basis. See MO at 277, 250 F.Supp.3d at 1031-32, 2017 WL 1487439, at. *122 (citing 457 A.2d at 710). Consequently, the Court wrote, the Delaware Supreme Court had held that: (i) the “lack of structures or procer dures that would keep the merger decision at arm’s length violated the company’s fiduciary duty to its minority shareholders”; (ii) such a violation had no safe harbor under Delaware law; and (iii) the Delaware Supreme Court was required to examine the contested merger under the entire fairness standard. See MO at 277-78, 250 F.Supp.3d at 1031-32, 2017 WL 1487439, at *122.

The Court then assessed the Delaware Supreme Court’s holding four years after Weinberger v. UOP, Inc. in Bershad v. Curtiss-Wright Corp., 535 A.2d 840 (1987). See MO at 278, 250 F.Supp.3d at 1031-32, 2017 WL 1487439, at *122. Contrasting the defendants in Weinberger v. UOP, Inc. with the defendants in Bershad, the Court indicated that the defendant company in Bershad took multiple steps to safeguard minority shareholders’ rights during the merger process before they were cashed out. See MO at 278, 250 F.Supp.3d at 1031-32, 2017 WL 1487439, at *122 (citing Bershad, 535 A.2d passim). The Court recounted that at the same meeting in which t