Full opinion text
MEMORANDUM OPINION AND ORDER CASTILLO, District Judge. This is a class action securities fraud suit brought by the plaintiffs on behalf of all persons who sold Allegis common stock or puts in Allegis common stock between October 29, 1987 and December 8, 1987. The suit arises out of defendant UAL Corporation’s (“UAL”) public announcement on October 29, 1987, that it would distribute the proceeds of the divestiture of certain of its non-core businesses as a special dividend. No such dividend was declared. Instead, defendant’s Board subsequently announced that it would repurchase outstanding shares of its stock with the proceeds. The essence of plaintiffs’ complaint is that UAL committed fraud when it made its dividend announcement by failing to disclose (i) that its largest shareholder had demanded that the divestiture proceeds be distributed in the form of a stock repurchase (also referred to herein as a “self-tender” or “buy back”) and that it was engaged in negotiations with that shareholder relating to the stock repurchase, and (ii) that it had not yet completed its analysis of the preferred method of distributing the proceeds (particularly, through a special dividend or a stock repurchase). Counts I and II of plaintiffs’ first amended complaint each assert claims under Section 10(b) of the Securities Exchange Act of 1934 (“SEA”), 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated thereunder (“Rule 10b-5”), 17 C.F.R. §.240.10b-5. Counts III-VI invoke the Court’s supplemental jurisdiction and assert state-law claims of common law fraud (counts III and IV) and violation of Illinois’ Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 et seq., (counts V and VI) based on the same underlying conduct. Defendant’s motion for summary judgment is presently before the Court. For the following reasons, the motion is granted. FACTUAL HISTORY Our recitation of the facts begins with a discussion of the (relatively) undisputed facts that provide an overview of the dispute; then, we turn to a consideration of the evidence surrounding the more hotly disputed facts. The plaintiffs in this class action consist of persons selling Allegis common stock and or put options on Allegis common stock between October 29 and December 8, 1987. In May of 1987, Conisten Partners (“Coni-sten”) acquired a substantial interest in Al-legis. Specifically, Conisten purchased approximately 7.7 million shares (over 13%) of Allegis common stock, making Conisten Al-legis’ largest shareholder. Def.’s Facts ¶ 16. Conisten announced that it would solicit shareholder consents in order to obtain majority representation on Allegis’ board with an eye toward divesting Allegis of, among other things, its non-core businesses. Id. ¶¶ 18-21. Defendant hired the First Boston Corporation to advise the Board of Directors on issues raised by Coniston’s consent solicitation, and, later, to carry out the divestiture program; the law firm of Davis, Polk & Wardwell (“Davis Polk”) was retained to serve as principal legal advisor. Id. ¶¶ 11, 12. At a special meeting of the Allegis Board on June 9, 1987, Allegis’ Board requested and accepted the resignation of its Chairman and CEO, Richard Ferris, and elected Frank Olson to replace Ferris. Id. ¶¶7, 20. At that same meeting, Olson suggested that the company’s financial advisors, First Boston and Morgan Stanley, reconsider proposals to restructure the company, presuming that such a plan would include the sale of Hertz, Westin, and Hilton. Id. ¶ 21; Def.’s Facts, Special Meeting Minutes at 12. UAL intimates that this action was not forced by Coniston’s hand but instead merely reflected a sound business decision of the Board. This position is belied by the record. Allegis’ General Counsel Ed Hoenicke testified that in deciding not to move forward with a debt capitalization plan that was under consideration but instead to sell off the non-airline assets, [t]he board decided that they would essentially accede to the demands of the Coni-sten partners and the shareholders because they had been advised that an informal poll of the shareholders indicated that there was no way that United or Allegis would win any consent vote and, therefore, they accepted the inevitable and were very reluctantly willing to sell off the non-airline assets with the purpose of retaining as strong an airline company as possible. Hoenicke Dep. at 30. In elaborating on the Board’s reluctance to sell off some of Allegis’ non-airline assets, Hoenicke observed, this board had previously approved the diversification plan, the purchase of Hertz, and the purchase of Hilton International. They were very enamored of the hotel business having been associated with Wes-tin for a long period of time. Some of the directors were the chief executives of these subsidiaries, so that selling them off was like cutting off ... their right arms. Id. at 30-31. In a related vein, plaintiffs also note that Allegis had just closed on its purchase of the Hilton subsidiary less than three months before its announcement that it would sell Hilton. See Pis.’ Facts ¶22. In view of what Conisten perceived to be Allegis’ commitment to this restructuring program, Conisten, in turn, announced that it would terminate its planned solicitation of consents for replacement of the existing Al-legis Board. Def.’s Facts ¶ 23. Defendants seize on the use of the word “terminate” in Coniston’s announcement to suggest that thereafter the specter of a Conisten proxy solicitation was absent. Plaintiffs contend that the threat of a solicitation was always present and available in the event that Coni-sten did not get its way. Robert Calhoun and Harry Pinson were the First Boston team members with principal responsibility for devising a plan for the divestiture and distribution of Allegis’ non-airline assets and discussing related issues with the Allegis Board. Pinson Dep. at 16, 19. At an Allegis Board meeting on June 25, 1987, Calhoun presented a plan to sell Hertz, Westin, and Hilton and distribute the proceeds to shareholders. In its presentation, First Boston referred to the potential distributions as “dividends” and did not refer to any other possible distribution method. Id. ¶24. Following the June 25, 1987 Board meeting, Olson distributed a letter to Allegis’ shareholders announcing that Allegis would sell its non-airline businesses and distribute the proceeds to shareholders. Id. ¶ 26. Olson’s letter states, in pertinent part: ‘We have determined to proceed immediately with the sale of all of our non-airline businesses — Hertz, Westin and Hilton International — and to distribute the net proceeds from those sales to stockholders.” Def.’s Facts, Ex. 13. Allegis subsequently entered into agreements for the sale of its non-airline businesses. The sales closed between October 1987 and January 1988. Id. ¶ 27. On October 19, 1987, the stock market dropped almost 500 points, the greatest daily drop since the Great Depression. Id. 40. The price of Allegis common stock dropped from $93.875 to $66 per share. Id. In response, the Allegis Executive Committee met twice and the Allegis Board met once during the period from October 20 through October 29, 1987, to discuss, among other things, the impact of the crash, the decline in Allegis stock prices, and the status of the sales of Allegis’ non-airline businesses. Id. ¶ 41. On October 20, 1987, the Executive Committee authorized a stock repurchase plan to stabilize the market for Allegis shares and take advantage of the low price at which Allegis stock was then trading. Def.’s Facts ¶42. The Board’s Executive Committee met on October 28,1987. The minutes of that meeting state, in pertinent part: Messrs. Pinson and Calhoun outlined First Boston’s recommendations and timetable on the distribution to shareholders of net proceeds from the sale of the Corporation’s non-airline assets. After discussion, the Executive Committee recommended that the Board of Directors make an announcement of the Board’s intention to declare a dividend of the net proceeds of the sale of Hilton International in several weeks, and to declare dividends of the net proceeds of the sales of Hertz and Westin as these sales close. Def.’s Facts, Ex. 2, Oct. 28, 1987 Exec.Comm.Minutes at 4. The minutes of the full Board meeting on October 29, 1987 reflect that Chairman Olson reported on the Executive Committee meeting, including the discussion of the “special dividend distribution to shareholders.” Id., Ex. 4, Oct. 29 Board Minutes at 3. The minutes further state: At the invitation of the Chairman, Messrs. Pinson and Calhoun of The First Boston Corporation reviewed the possibility of a special dividend distribution or distributions to shareholders resulting from the sales of Hilton International, Hertz and Westin.... After discussion, the Board of Directors unanimously approved the issuance of a press release by the Corporation concerning the Board’s intention to distribute to stockholders the net proceeds of the sales of the Corporation’s subsidiaries. Id. at 5. Following the October 29, 1987 Board meeting, the Board released the following public announcement: The Board of Directors of Allegis Corporation today reaffirmed the previously announced plan to distribute to shareholders the net proceeds from the sales primarily of its non-airline assets_ The Board of Allegis elected to declare distributions after the closing of each transaction and after completion of necessary refinancing arrangements. The first dividend declaration is expected in early December. Subsequent declarations will follow.... Id. ¶ 46. At a meeting on December 7, 1987, the Executive Committee reviewed and approved a recommendation made by First Boston that the Board consider a tender offer as an alternative to the dividend distribution. Id. ¶56. First Boston’s Robert Calhoun reviewed with the Executive Committee two basic advantages of a tender offer over a dividend: (1) a tender offer would have less adverse tax consequences to most stockholders because their gain would be capital gain, rather than ordinary income, and the gain would be partially offset by their basis in the stock; and (2) a tender offer would result in less pressure on the value of Allegis stock, because a dividend declaration would likely result in much tax selling of the stock and could force the price of the stock down. See Def.’s Facts, Ex. 6, Exec.Comm.Minutes at 2. On December 9, 1987, the Board formally considered the self-tender alternative. Id. ¶ 57. Following its meeting of December 9, 1987, the Board issued a press release announcing that: as a result of recent changes in stock market conditions and in consultation with its financial advisor, The First Boston Corporation, it is considering a tender offer for a substantial number of shares as an alternative to the previously announced intention to declare a dividend ... [with] a final decision ... expected to be made in January. Id. ¶ 58. Following the Board’s announcement on October 29, and prior to the December 9 announcement, plaintiffs sold shares of Allegis common stock and/or put options on Allegis common stock. At a meeting on January 28, 1988, the Allegis Board rejected the dividend option and authorized a self-tender offer for 35.5 million shares. On February 17,1988, Alleg-is filed, and formally issued, an offer to purchase the shares at $80 per share. Id. ¶ 59. The foregoing is generally not materially disputed by the parties. What is disputed— sharply — is the extent, if any, to which Coni-sten “demanded,” prior to October 29, 1987, that Allegis distribute the divestiture proceeds in a form other than a dividend and whether Conisten was engaged in negotiations with Allegis over such a demand on that date — when the Allegis Board announced that it would distribute the proceeds in the form of a special dividend. Plaintiffs contend that Conisten had made such a demand and that Allegis and Conisten were negotiating this demand; UAL contests both that such a demand was made and that any negotiations were ongoing. The parties also dispute whether any analysis of distribution methods by Allegis was ongoing as of October 29, 1987. Plaintiffs contend that such analysis was ongoing. UAL denies this, maintaining that by September 1987, it had concluded that nondividend distribution methods were not viable. UAL further contends that this issue was not reconsidered until after the stock market crash. We now consider the evidence relied upon by the parties in support of their respective positions. As an initial matter, UAL disputes plaintiffs’ contention that Conisten demanded a self-tender offer prior to the October 29,1987 divestiture announcement. At most, UAL contends, Conisten expressed a preference for, or suggested, a self-tender offer as a means of distributing the divestiture proceeds; however, such a preference or suggestion did not rise to the level of a demand and UAL was not negotiating with Conisten over this suggestion at the time of the October 29,1987 announcement. UAL offers the following evidence. First, during his deposition, one of Coni-ston’s principals, Augustus (Gus) Oliver, questioned the proposition that Conisten “suggested” a nondividend type of distribution: Q. Sometime in 1987 Conisten suggested a nondividend transaction; is that right? A. I am not sure I would use the word “suggest.” A capital gains type of transaction was certainly discussed. Oliver Dep. at 50. Also, when asked directly whether Conisten had requested that Allegis utilize a self-tender prior to the crash, Oliver responded that he could not recall “any specific discussions about this issue prior to some time after the crash.” Id. at 40. In a related vein, discussing Coniston’s preference for a self-tender prior to the October 19,1987 stock market crash, Oliver stated: [M]y recollection is that until the crash, the form of the distribution, while of some interest to us, was not really a critical question, and that there was some discussion of that question prior to that time, but that it wasn’t until some time after the crash that the issue became significantly more important to us. Id. at 38; see also id. at 42 (Oliver’s testimony that prior to the crash, the form of the distribution “really wasn’t that big an issue for us”); id. at 52 (Oliver’s testimony that prior to the crash, “the issue of being forced to sell in the market [to avoid the tax consequences of a dividend and achieve capital gains treatment], if it arose at all, was not a very consequential issue” and if the issue was considered “we didn’t consider it to be a matter of great consequence”). Similarly, Keith Gollust, another Conisten principal, testified that during June, July and August Conisten was “relatively indifferent between a cash tender offer or a dividend.” Gollust Dep. at 116. Elaborating on this point, Gol-lust noted that after Allegis announced that it would sell off the non-airline assets and distribute the proceeds to shareholders, the stock responded very favorably and Conisten had a big gain in position, therefore: [I]f the company chose to pay a dividend, we could have easily sold our stock in the market. I mean ... in light of the fact that this plan was underway, the stock was way up, there was huge trade in volume in the stock, it would have been very simple for us to sell our stock in the market and take a capital gain. Conversely, if they made a cash tender offer, we could either sell our stock in the market or participate in the cash tender offer. In either event, the tax treatment would have been the same. Gollust Dep. at 117; see also Oliver Dep. at 56, 58-59 (testifying that the resulting taxable income for Conisten would have been the same for either type of distribution). Later in his deposition, Gollust reiterated this view but noted that the crash altered things: although [capital gains treatment] was an issue which had relevance to us before the crash, before the crash, we felt that while it was always the case that we preferred a share repurchase program, we had the flexibility of selling our stock in the open market in the event the company declared a dividend. After the crash, the circumstances differed. So we had a strong preference for a share repurchase program after the crash. Gollust Dep. at 182. Also, it is undisputed that the Allegis Board met four times between June 25 and October 29, 1987, and that none of the minutes of any of those meetings even mentions a distribution method other than dividends. Def.’s Facts ¶ 45. And, every Board member who was asked denied having any recollection that Allegis’ advisors (the law firm of Davis Polk and the First Boston investment firm) ever mentioned Coniston’s proposal or preference for capital gains treatment on or before October 29, 1987. See Olson Dep. at 49, 68, 67, 76, 89, 91, 141 (testifying that from “early on” the Board was advised that the distribution would be in the form of a dividend and that it was not until December 1987 that a tender-offer alternative was raised to the Board); DeWindt Dep. at 57-58 (testifying that, with respect to any time in 1987, he had no recollection that Coniston had raised a question as to how the divestiture proceeds would be distributed and that, to his knowledge, as of August 19, 1987, Allegis was not considering any distribution method other than a dividend); McGillicuddy Dep. at 45-46 (testifying that to the best of his recollection the Allegis Board was not informed that Coniston had raised a question, in August of 1987, as to the form of the divestiture distribution); O’Connor Dep. at 66-67, 70-71 (testifying that with respect to the period between June and October 1987, he had no recollection of First Boston informing the Board as to the pros and cons of various distribution methods nor did the Board review any studies or recommendations regarding distribution methods; also testifying that he had no recollection of the Board ever being advised, in or about August 1987, that Coniston had taken a position of preferring capital gains treatment, or receiving the divestiture proceeds by means other than a dividend); Armstrong Dep. at 45-46 (not recalling any discussion in July and August or late summer and fall about the form of the distribution; not recalling seeing any documents from Allegis’ advisors discussing the manner of distribution). In a related vein, Allegis’ General Counsel Hoenicke testified that he did not think he ever discussed the “issue of a dividend versus a tender offer or ordinary income versus capital gains income” with any member of the Board prior to December of 1987. Hoen-icke Dep. at 131-32. And, First Boston’s Harry Pinson testified that prior to October 1987, he never discussed the different tax consequences of a self-tender versus a dividend with the Board because First Boston had “thought that in general, the tax consequences would be either the same for broad classes of shareholders or ... they could employ trading strategies to get the tax consequences that they wanted.” Pinson Dep. at 98. Robert Calhoun, also of First Boston, similarly testified: Prior to October 19th, which is the date of the stock market crash, I don’t believe there was any specific attention paid to their — to the tax consequences to Coniston other than the discussion earlier about put rights. Q. What do you mean by that, do you mean you had other plans? A. We listened to them but we didn’t pay too much attention to them. Q. And why is that? A. The Board was much more comfortable with the dividend scheme, it was simple, it was fair, at least from their vantage point. We didn’t believe that, aside from Coniston, there was much attention being paid one way or the other to the form of distribution. And when the stock was selling at a hundred or over, the tax consequences, as far as we were concerned, was very mixed, one method was not compelling over another. Calhoun Dep. at 57-58. Finally, with respect to whether Coniston had ever made a demand regarding the form of distribution, Calhoun testified as follows: Q. Did Conisten ever suggest that unless capital gains treatment were accorded the distribution, that they would take certain actions against the companies? Mr. Silver [counsel for First Boston]: What time period? Mr. Barnhill [plaintiffs’ counsel]: November, October — September, October, November. A. No. Calhoun Dep. at 98. UAL management also denied knowledge of Coniston’s inquiries before October 29, 1987. Allegis’ General Counsel Ed Hoenicke testified that although attorneys from Davis Polk reported to him quite regularly about any contact they had with Conisten and although Davis Polk kept him very well informed, he had no recollection of discussing with Davis Polk in August or September of 1987 that Conisten was looking for a capital gains transaction. Hoenicke Dep. at 58-59; see also Kane Dep. at 59 (testimony of Alleg-is Vice President and Secretary that he was never aware at any time prior to December 1987 that Conisten had proposed a method of distribution other than a dividend); Hobor Dep. at 41, 72 (testimony of Allegis Director of Investor Relations that the Board began to consider alternative methods of distribution in December 1987 and she was not aware that the Board considered such alternatives prior to that time; also testifying that she was not aware in August of 1987 that Conisten was requesting distribution by self-tender or put options). Finally, UAL notes that Davis Polk attorney Diane Kerr testified that “in the fall or late summer [of 1987], they [Conisten] were on a program of a dividend.... It was later that, you know, late fall, winter, where they became very interested in a tender offer.” Kerr Dep. at 32. Davis Polk attorney Richard Spizzirri (who was supervising Kerr’s work) testified that he was not aware of Davis Polk conducting any research subsequent to August 19, 1987 (the date of Kerr’s initial memorandum) and before October 29, 1987 to determine whether a self-tender option was viable. Spizzirri Dep. at 35. Spizzirri also testified that he was not aware of any negotiations or discussions in late October between Conisten and any lawyers at Davis Polk concerning the method of distributing the divestiture proceeds. Id. at 49. Plaintiffs maintain that Conisten consistently supported a self-tender beginning in August 1987. We leave aside for the moment discussion of whether “supporting” (or “expressing a preference” for) a form of distribution is equivalent to “demanding” that form of distribution and whether this distinction is material to our 10b-5 analysis. Instead, we turn to consider the actual evidence which supports plaintiffs’ position. First, plaintiffs point to Allegis’ Offer to Purchase, issued in February 1988, which states in pertinent part: Throughout the Summer and Fall of 1987, representatives of the Company and First Boston met from time to time with representatives of the Conisten Group to discuss the status of the Divestitures and the method for distributing to stockholders an amount equal to the net proceeds of the Divestitures, as well as the business of the Company. The Conisten Group supported the making of a cash tender offer for a significant portion of the Shares rather than payment of a dividend. Pls.’ Facts ¶ 30(A). Second, plaintiffs rely on the following testimony of Conisten principal Keith Gollust: I don’t have any specific recollection of any ... communications [between Conisten and the Board or its advisors in the summer of 1987].... I know that our position during the summer of 1987 was that, all things considered, we had a preference for a share repurchase program. Gollust Dep. at 160; and: Q. Do you recall ever deciding within Co-nisten that a dividend was preferable to a tender offer at any time? A. I don’t believe that there was ever a time when we believed that, for Conisten, a dividend would be preferable to a transaction that would result in capital gains treatment. Q. Did you ... always believe, for one reason or another, that a tender offer was preferable to a dividend for Conisten? A. Yes. Id. at 163. Gollust also testified that after the Allegis Board announced on October 29, 1987 that it was going to distribute the proceeds of the divestiture through a dividend, Conisten “stepped up our own efforts to lobby on behalf of a self tender offer.” Gollust Dep. at 128 (also stating that his reaction to the announcement was that Conisten “ought to work harder on” the issue.) Plaintiffs argue that Gollust’s statement that Conisten “stepped up” its lobbying efforts implies that lobbying efforts were already underway at the time of the October 29, 1987 announcement. Further, plaintiffs note that Gollust testified that “it wasn’t until the press release dated October 29th that there was any hint that the payout might be in the form of a dividend,” id. at 182-83, and “even after we saw the press release ... indicating that the distribution would be in the form of a dividend ... it was our belief that upon a more thorough consideration, a decision would be made to do a self-tender.” Id. at 138. Plaintiffs also rely heavily on First Boston President Calhoun’s testimony. Calhoun testified that “[Conisten] made it clear that they preferred nondividend treatment from day one until the end of the time period. They talked to us at various points through this nine-month process [the nine-month period ending with the announcement of the self-tender in February 1988] about the distributions.” Calhoun Dep. at 201; see also id at 76 (“I don’t recall them specifically asking us to explore a tender offer. They made it clear early on they preferred a capital gains treatment.”); see also id. at 200 (testifying that, at some unspecified point in 1987, Conisten asked Allegis to distribute the divestiture proceeds in such a manner that would result in Conisten receiving capital gains treatment). Calhoun also indicated that in August or September of 1987, Conisten recommended that First Boston consider put rights (another means to obtain capital gains treatment) as a mechanism for distributing the divestiture proceeds. Id. at 47-49. When asked what First Boston did in the fall of 1987 in connection with reviewing whether a tender offer should be employed as the means by which to distribute the divestiture proceeds, Calhoun testified: A. I can’t remember anything that was done. Harry [Pinson] gave a presentation in July. I assumed we talked about this at every board meeting. Q. That is the manner of distribution? A. Yes, the timings, the amount. Id. at 56. Shortly thereafter, Calhoun was asked whether First Boston had “gone over with the Board the pros and cons of the dividend versus the tender offer prior to mid-October?” Calhoun replied, “I don’t recall specifically but I am sure that we generally spoke to them about the subject at every Board meeting that we attended starting in July.” Id. at 78. Regarding Coniston’s preference for a non-dividend distribution, the following exchange took place: Q. [W]hat about Conisten itself ... would they have been disadvantaged by a dividend versus a tender offer in September to mid-October 1987? A. I don’t believe so.... Prior to the crash, they weren’t terribly concerned with the form of the distribution. Q. Except for the fact, as I understand it, they always asked for capital gains treatment, is that correct? A. Not always. I don’t think they always asked for it. I think they made it clear to us that they preferred it but I wouldn’t characterize the conversations as always asked for it. Q. I take it the Board was aware at the time it was occurring, the manner of distribution, that Conisten preferred capital gains treatment is that correct? [At which point, the time frame from September to October 19th was established] A. I don’t generally recall. I know we discussed the put right notion with the Board whenever that came up and at that stage, the Board would have been aware of it. Q. That is it would have been aware, at the stage you discussed the put rights, that Conisten preferred capital gains treatment, is that right? A. Correct. Id. at 64-65. Other evidence to which plaintiffs point as evidence “that Conisten consistently supported a self-tender and opposed a dividend ‘throughout the summer and fall of 1987,’ ” Pls.’ Facts ¶ 30(C), derives from the activities of Allegis’ lawyers at Davis Polk. Davis Polk’s Diane Kerr drafted an eight page memorandum addressed to two other partners at Davis Polk (Messrs. King and Spizzirri) dated August 19, 1987, which begins: As you have heard, Conisten has raised a question as to how the divestiture proceeds might be distributed to Allegis’ stockholders in a manner that would be tax efficient for Coniston’s partners.... I thought that it would be useful to summarize for you Coniston’s proposal, as well as some of the issues that are raised by the proposal. At some point after both Davis Polk and First Boston have completed their analysis of the issues, we will have to decide whether Allegis and its advisors should sit down with Conisten and try to work out a solution for the Conisten tax problem or whether we think that Allegis should simply continue its plans to distribute the proceeds of the divestitures as a dividend in respect of its common stock. Def.’s Facts, Ex. 16, Kerr Mem. at 1. Kerr goes on to note that “Conisten has suggested that Allegis distribute to its shareholders ‘put rights’ in respect of its common stock,” id. at 2, and, “Conisten also suggested that Allegis use a self tender as a means of distributing the divestiture proceeds.” Id. at 7. Kerr’s memorandum identifies problems with both of Coniston’s proposals and states: [A]fter both Davis Polk and First Boston have completed their analysis of the issues, we will have to decide whether Allegis and its advisors should sit down with Conisten and try to work out a solution for the Conisten tax problem or whether we think that Allegis should simply continue its plans to distribute the proceeds of the divestiture as a dividend in respect of its common stock. Id. at 1. Plaintiffs further point to the existence of two other memoranda prepared by Davis Polk attorneys during September 1987 as evidencing Coniston’s opposition to a dividend and support for a tender. The first is a four page memorandum examining whether the distribution of put rights would constitute a distribution of appreciated property under the Internal Revenue Code. See Pis.’ Facts, Ex. 4, Sept. 9, 1987 Rubenstein Mem. (stating “Allegis Corporation ... is considering the issuance to its shareholders of a one-half put right ... per share of its outstanding common stock”). The other examines whether the issuance of unlisted transferrable put rights by Allegis to its shareholders must be registered under the 1933 or 1934 Securities Acts. Id., Ex. 5, Sept. 19, 1987 Hansen Mem. UAL observes that these memoranda are fully compatible with its position that it considered Coniston’s suggestions concerning alternative distribution methods in August and September, and found the alternatives not viable by sometime in September. Plaintiffs specifically rely on a miscellany of Davis Polk time sheet entries reflecting work relating to tax issues raised by the divestiture distribution program. See e.g. Pls.’ Facts, Ex. 12, Davis Polk Time Sheets at 10 (evidencing 4.8 hours of work by Kerr on 9/14/87 on “[r]esearch on various distribution mechanisms”); 32 (evidencing 10/6/87 conference between Gifford, Brillembourg, and Rubenstein re Conisten); 38 (evidencing 10/19/87 conference between Davis Polk attorneys [Kess, Kerr, Gifford, Rubenstein and others] and First Boston’s Mack Rosoff, who was scheduled to meet the next day with Coniston’s Keith Gollust to discuss tax implications of the distribution to UAL shareholders); 41 (evidencing Kess’ legal research on 10/21/87 “re w/h on self tender”). Finally, plaintiffs note Gollust’s testimony that it was self-evident that a majority of Coniston’s partners could have incurred less tax liability if the divestiture proceeds were distributed in a form other than a dividend and that Conisten was considering this as early as June of 1987. Gollust Dep. at 74-75. Similarly, Calhoun testified that it was no mystery that a “high tax basis” shareholder such as Conisten would incur a lower tax through a capital gain, rather than dividend, transaction. Calhoun Dep. at 55-56. Plaintiffs also note Oliver’s testimony that the focus of Coniston’s investment efforts had never before been to force a company to pay an extraordinary dividend. Oliver Dep. at 35. Plaintiffs also note the existence of a memorandum prepared by First Boston sometime in January 1988 that among other things reviews “the last ten recapitalization distributions similar to this one” and notes that “seven have been effected through self-tenders in order to afford capital gains tax treatment.” Pis.’ Facts, Ex. 14, First Boston Mem. ANALYSIS Summary Judgment Standards Summary judgment is proper only if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue for trial exists only when “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The court must view all evidence in a light most favorable to the non-moving party, Valley Liquors, Inc. v. Renfield Importers, Ltd., 822 F.2d 656, 659 (7th Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 488, 98 L.Ed.2d 486 (1987), and draw all inferences in the non-movant’s favor. Santiago v. Lane, 894 F.2d 218, 221 (7th Cir.1990). However, if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. at 2510-11; Flip Side Productions, Inc. v. Jam Productions, Ltd., 843 F.2d 1024, 1032 (7th Cir.), cert. denied, 488 U.S. 909, 109 S.Ct. 261, 102 L.Ed.2d 249 (1988). In determining whether a genuine issue exists, the court “must view the evidence presented through the prism of the substantive eviden-tiary burden.” Liberty Lobby, 477 U.S. at 254, 106 S.Ct. at 2513. In making its determination, the court’s sole function is to determine whether sufficient evidence exists to support a verdict in the non-movant’s favor. Credibility determinations, weighing evidence, and drawing reasonable inferences are jury functions, not those of a judge when deciding a motion for summary judgment. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513-14. With these standards in mind, we now consider UAL’s challenges to the instant suit. I. Option Trader Standing under Rule 10b-5 UAL’s first challenge to plaintiffs’ complaint presents a purely legal attack. Drawing on Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), and its progeny, UAL contends that the option trading plaintiffs in this action do not have standing to assert claims under Rule 10b-5. In Blue Chip Stamps, the Supreme Court held that potential traders of securities — i.e., persons who neither purchased nor sold securities but merely contemplated such transactions — lack standing to assert claims under Rule 10b — 5; rather, standing only extends to actual purchasers or sellers of securities. See Blue Chip Stamps, 421 U.S. at 725, 730-31, 755, 95 S.Ct. at 1920, 1922-23, 1934-35. UAL correctly observes that in reaching this conclusion the Court was concerned, inter alia, about limiting the undue expansion of the class of plaintiffs who may sue under Rule 10b-5. The- Court noted that the virtue of the rule it adopted “simply stated, in this situation, is that it limits the class of plaintiffs to those who have at least dealt in the security to which the prospectus, representation, or omission relates.” Id. at 747, 95 S.Ct. at 1931. UAL seizes upon this language in arguing that the option trading plaintiffs in this action should be denied standing because they have not traded in the security to which the alleged misrepresentation relates. See Def.’s Mem. at 19. Of course, three pages later in Blue Chip Stamps, the Court leaves no doubt that option holders may have standing as “purchasers” or “sellers” of securities to assert claims under Rule 10b-5: A contract to purchase or sell securities is expressly defined by § 3(a) of the 1934 Act, 15 U.S.C. § 78c(a), as a purchase or sale of securities for the purposes of that Act. Unlike respondent, which had no contractual right or duty to purchase Blue Chip’s securities, the holders of puts, calls, options, and other contractual rights or duties to purchase or sell securities have been recognized as “purchasers” or “sellers” of securities for purposes of Rule 10b-5 ... because the definitional provisions of the 1934 Act themselves grant them such a status. Blue Chip Stamps, 421 U.S. at 750-51, 95 S.Ct. at 1932-33. And, as observed by the Third Circuit in Deutschman v. Beneficial Corp., 841 F.2d 502, 506 (3d Cir.1988), cert. denied, 490 U.S. 1114, 109 S.Ct. 3176, 104 L.Ed.2d 1037 (1989), “[t]he only standing limitation recognized by the Supreme Court with respect to section 10(b) damage actions is the requirement that the plaintiff be a purchaser or seller of a security.” Thus, Blue Chip Stamps did little more than limit the protections of the federal securities laws to actual participants in the securities markets. As an initial matter then, it is beyond peradventure that options are securities and option traders may assert security fraud claims. In recognition of the fact that the Securities Exchange Act includes options within the definition of securities, UAL refines its argument and contends that option traders would have Rule 10b-5 standing, if at all, only where the defendant traded in the same option as the plaintiff or made a false statement (or material omission) about the option. See Def.’s Reply at 5-7. UAL contends that because it neither traded in options on Allegis stock nor made any false statement about such options, the option trading plaintiffs in the instant case should be denied standing. The issue of whether option traders have standing to assert a private cause of action under Rule 10b-5 has been the subject of two appellate court decisions which are split on the issue, compare Laventhall v. General Dynamics Corp., 704 F.2d 407, 412-14 (8th Cir.) (denying option trader standing in a Rule 10b-5 insider trading action), cert. denied, 464 U.S. 846, 104 S.Ct. 150, 78 L.Ed.2d 140 (1983) with Deutschman v. Beneficial Corp., 841 F.2d 502, 506-07 (3d Cir.1988) (recognizing option trader standing in an action involving affirmative misrepresentation, and distinguishing Laventhall as involving “the analytically distinct” issue of insider trading on undisclosed information), cert. denied, 490 U.S. 1114, 109 S.Ct. 3176, 104 L.Ed.2d 1037 (1989), as well as numerous district court opinions which are equally split compare, e.g., Liebhard v. Square D Co., 811 F.Supp. 354 (N.D.Ill.1992) (recognizing option trader standing in affirmative misrepresentation context); Margolis v. Caterpillar, Inc., 815 F.Supp. 1150, 1154-56 (C.D.Ill.1991) (same); In re Adobe Sys., Inc. Sec. Litig., 139 F.R.D. 150 (N.D.Cal.1991); In re Gulf Oil/Cities Serv. Tender Offer Litig., 725 F.Supp. 712 (S.D.N.Y.1989) (recognizing option trader standing in affirmative misrepresentation action); Tolan v. Computervision Corp., 696 F.Supp. 771, 774-76 (D.Mass.1988) (recognizing option trader standing in affirmative misrepresentation action); and In re Digital Equipment Corp. Sec. Litig., 601 F.Supp. 311, 315 (D.Mass.1984) (“the better rule is one that recognizes that options holders have standing to sue for affirmative misrepresentations”); with Bianco v. Texas Instruments, Inc., 627 F.Supp. 154 (N.D.Ill.1985); Lerner v. SciMed Life Sys., Inc., Fed. Sec.L.Rep. (CCH) ¶ 98,232, 1994 WL 374319 (D.Minn.1994) (denying option trader standing in a nondisclosure action under the authority of Laventhall); In re McDonnell Douglas Corp. Sec. Litig., 567 F.Supp. 126 (E.D.Mo.1983) (same); Data Controls North, Inc. v. Financial Corp. of America, Inc., 688 F.Supp. 1047 (D.Md.1988), aff'd without opinion, 875 F.2d 314, 1989 WL 50223 (4th Cir.1989); and Starkman v. Warner Communications, Inc., 671 F.Supp. 297 (S.D.N.Y.1987). As the number of divergent opinions might suggest, the arguments on both sides of this issue have been have been thoroughly framed, and we do not intend to rehash them in detail here. As discussed below, we reject UAL’s position and join with those courts and commentators recognizing option trader standing under Rule 10b-5. Apart from Blue Chip Stamps’ limitation on extending standing to only those who have actually purchased or sold securities, the Supreme Court has recognized, albeit in a different context, that “a section 10(b) action can be brought by a purchaser or seller of ‘any security' against ‘any person’ who has used ‘any manipulative or deceptive device or contrivance’ in connection with the purchase or sale of a security.” Herman & MacLean v. Huddleston, 459 U.S. 375, 386, 103 S.Ct. 683, 689, 74 L.Ed.2d 548 (1983). Courts that have denied standing to option traders have most typically, although not exclusively, done so in the context of insider-trading/nondisclosure actions as opposed to affirmative misrepresentation eases. See, e.g., Laventhall, 704 F.2d at 412-14; but see Bianco, 627 F.Supp. at 161 (declining to recognize a distinction between affirmative misrepresentation cases and nondisclosure cases and therefore applying the same rule in both). In denying option trader standing in La-venthall, the Third Circuit first reasoned that corporations do not stand in a fiduciary relation or other similar position of trust and confidence to option traders; hence, corporate insiders owe no special duty to disclose inside information to option holders. Laventhall, 704 F.2d at 410-11. Thus, under Chiarella v. United States, 445 U.S. 222, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980) (holding that one commits securities fraud by failing to disclose material information prior to the consummation of a transaction only when under a duty to disclose), corporate insiders could not be liable to option holders for failing to disclose material information before trading — they are “complete strangers and ordinarily no duty would be owed.” Laventhall, 704 F.2d at 412. Next the Laventhall court asserted that “[t]he sine qua non in every private action under section 10(b) is unauthorized trading of securities in the same market as the persons damaged.” Laventhall, 704 F.2d at 412. Proceeding from this first premise, the Laventhall court concluded that there is no “transactional nexus” between corporate-insider trading on the stock market and option trading on the options exchange: There is only a speculative relationship between the insider’s trading and the alleged loss caused to the options holder. It may be true that the nondisclosure may have had some indirect effect on the option premium, but the insider’s trading of stock on the stock market has no transactional nexus with the option holder’s loss on the options exchange.... Here defendant’s purchase of stock, if done wrongfully as claimed, could not in any way be asserted as the basis for plaintiffs alleged loss because the parties were not dealing in the same market. Id. Thus, the transactional nexus required by the Laventhall court amounts to trading on the same market by the plaintiff and the insider. Clearly, such a requirement was fashioned, and only makes sense, in the context of an insider trading action. Although it is not at all clear how such an insider-trading requirement would be transposed to the affirmative misrepresentation context in which there are no allegations that the defendant engaged in any trading, UAL contends that Laventhall, and subsequent opinions following it, should guide the decision in the instant case. Because we find the rule articulated in Laventhall to be inapposite outside the insider trading context, we decline to follow it in the instant affirmative misrepresentation case. Instead, we find that the Third Circuit’s opinion recognizing option trader standing in Deutschman v. Beneficial Corp., 841 F.2d 502 (3d Cir.1988), is on-point and reaches the correct result. Deutschman, like the instant case, involved allegations of affirmative misrepresentation and no insider trading. Thus, at the outset, the court distinguished Laventhall: the Laventhall holding, like the Chiarella and Dirks v. S.E.C., 463 U.S. 646, 103 S.Ct. 3255, 77 L.Ed.2d 911 holdings, is simply not relevant to the distinct issue of affirmative misrepresentations affecting a market in securities. No Supreme Court case and no Court of Appeals ease has ever imposed a transactional nexus requirement in a section 10(b) affirmative misrepresentation case. Deutschman, 841 F.2d at 507. We agree with the Third Circuit that the standards articulated in the insider trading context do not generalize to the affirmative misrepresentation context. See Liebhard, 811 F.Supp. at 355-56 (declining to follow district courts that have denied option trader standing in the affirmative misrepresentation context, noting that “their reliance on Laventhall and Chiarella [is] misplaced”); Margolis, 815 F.Supp. at 1156 (recognizing option trader standing in the affirmative misrepresentation context, noting “This Court believes there is a clear distinction between omissions and affirmative misrepresentations.”) Next, the court turned to address the policy argument — advanced by UAL in the instant case — that corporations should “be insulated from liability to option traders because otherwise there would be no end to their potential liability.” Id. at 507. The court rejected this argument as “chimerical,” observing that Blue Chip Stamps “confined section 10(b) liability to members of the precise class for the protection of which the 1934 Act was enacted: participants in the national securities markets. Options traders are participants in those markets.” Id. And, the court further observed that additional protection against unlimited liability is afforded by the proximate cause requirement of Rule 10b-5 liability. We concur with the Third Circuit’s judgment that Blue Chip Stamps has properly set the purchase or sale of a security as the threshold for 10b-5 standing and there is no compelling justification for raising that threshold so as to exclude option traders. We find no sound basis to conclude that recognizing option trader standing represents the sort of undue expansion of civil liability sought to be avoided in Blue Chip Stamps. We are also unpersuaded by UAL’s intimations that, as a matter of policy, option traders should not have standing because they are mere speculators who contribute no equity to the issuing corporation. In the first place, the fact that option traders contribute no equity to the issuing corporation has been used principally as a justification for the conclusion that the issuer owes no fiduciary duty to the option holder. For instance, in Laventhall the court observed: It is fundamental for our understanding that the purchase of the options did not represent contribution of capital to the corporation. ... ‘[T]he options trader has no equity interest in the corporation by virtue of his selling or purchasing an option on the corporation’s stock. He is owed no special duty by the officers and directors of the corporation because, quite simply, the corporation is not run for his benefit. 704 F.2d at 411 (quoting O’Connor & Assocs. v. Dean Witter Reynolds, Inc., 529 F.Supp. 1179, 1184 (S.D.N.Y.1981)). However, as we have seen, the existence vel non of a fiduciary duty is relevant only in the insider trading context, not the affirmative misrepresentation context. Furthermore, the purpose of the antifraud provisions of the SEA is not simply limited to protecting those who contribute equity by purchasing stock on the market; in addition, those provisions are designed to protect the integrity of the market itself. See Superintendent of Ins. v. Bankers Life & Casualty Co., 404 U.S. 6, 12, 92 S.Ct. 165, 168-69, 30 L.Ed.2d 128 (1971); United States v. Brown, 555 F.2d 336, 339 (2d Cir.1977); cf. United States v. Naftalin, 441 U.S. 768, 774, 99 S.Ct. 2077, 2082, 60 L.Ed.2d 624 (1979) (noting that investor protection was not the sole purpose of the Secmities Act, and that an effort to achieve a high standard of business ethics was also a key factor). We find no basis to conclude that the options market is any less deserving of such protection. Indeed, Congress’ 1982 amendment to section 3(a)(10) of the SEA so as to explicitly include “any put, call, straddle, option, or privilege on any security” within the definition of a security militates strongly against such a conclusion. Finally, we note that notwithstanding the derisive characterization — made by several courts and echoed by UAL — of option traders as “speculators,” it is commonly recognized that options markets serve valuable functions vis-a-vis the stock market such as transferring risk from the stock market and increasing the efficiency of the stock market. See, e.g., Deutschman, 841 F.2d at 504 (noting that option contracts “permit investors to hedge against future movements in the market price of securities”); Special Study REPORT, supra note 5, at 107-14 (discussing common strategies for utilizing options, including the use of options as a hedge against loss in the securities market); Rubinstein, supra note 22, at 54, 57 (noting that options provide a mechanism of reducing loss in the securities market and that the options market adds efficiency and liquidity to the stock market); Options Primer, supra note 5, at 13-14 (discussing investment strategies, including the use of options as a hedge against loss in the securities market). Our recognition of the useful functions of options and the options market bolsters our conclusion that option traders are entitled to standing to assert a Rule 10b-5 claim. II. UAL’s Challenges to the Sufficiency of Plaintiffs’ Evidence “In general, to prevail on a Rule 10b-5 claim, a plaintiff must prove that the defendant: 1) made a misstatement or omission, 2) of material fact, 3) with scienter, 4) in connection with the purchase or sale of securities, 5) upon which the plaintiff relied, and 6) that reliance proximately caused the plaintiffs injury.” Stransky v. Cummins Engine Co., 51 F.3d 1329, 1331 (7th Cir.1995). An omitted fact is material if there is “a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information made available.” TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976). In the instant ease, UAL moves for summary judgment contending that (1) there is no evidence that Conisten ever demanded a nondividend distribution or that negotiations over such a demand were ongoing and Allegis’ failure to disclose that Conisten had expressed a preference for a self-tender or put rights was immaterial; (2) there is no evidence that Allegis was analyzing various distribution methods as of October 29, 1987, and in any event, Allegis’ failure to complete an analysis of the best distribution method (and the failure to disclose this fact) is not actionable under Rule 10b-5. 1. UAL’s Failure to Disclose the Coniston Demand and Negotiations Plaintiffs contend that Allegis’ October 29, 1987 announcement was materially misleading because it failed to disclose that Allegis was secretly negotiating with Coniston over Coniston’s demand that the divestiture proceeds be distributed as a buyback of shares rather than a special dividend. UAL disputes that Coniston had made such a demand or that any negotiations over the form of the distribution were ongoing as of October 29, 1987. UAL contends that, although Coniston had suggested (or expressed a preference for) nondividend distribution in August 1987, Allegis’ advisors had rejected such a proposal by September 1987 and no negotiations on this issue were ongoing at the time of the October 29, 1987 announcement. Also, UAL contends that Allegis’ failure to disclose Co-nistoris suggestion (or preference) was immaterial. As the foregoing recitation of facts indicates, although plaintiffs deposed all three of Coniston’s principals — Paul Tierney, Gus Oliver, and Keith Gollust — not one testified that Coniston had demanded a self-tender prior to October 29, 1987. Indeed, Oliver was not even willing to go so far as to say that Coniston “suggested” a self-tender: “I am not sure I would use the word ‘suggest.’ A capital gains type of transaction was certainly discussed.” Also, Gollust testified that prior to the stock market crash, Coniston was “relatively indifferent” to the form of distribution, and Oliver echoed this sentiment stating that before the crash, the form of distribution “was not really a critical question.” The undisputed testimony of these Coniston principals reflects that prior to the crash, Coniston believed, rightly or wrongly, that if Allegis chose to distribute the divestiture proceeds in the form of a dividend, Coniston could achieve the tax treatment it desired simply by selling its shares in what it believed to be a very liquid market. Of course, the stock market crash may have changed the analysis dramatically, but the point remains that the testimony of the Coni-sten principals provides no support for, and in fact flies in the face of, plaintiffs’ contention that Coniston had demanded a self-tender or that the form of distribution was of great moment to Coniston prior to the Board’s announcement on October 29, 1987. Plaintiffs argue that the crash occurred ten days before the Board’s October 29, 1987 announcement and hence Coniston’s position on the form of distribution correspondingly changed prior to the announcement. While that may be the case — we say may because plaintiffs have not directed the Court to any evidence that Coniston evaluated the effect of the market crash on its Allegis position between October 19, 1987 and October 29, 1987 — there is not a shred of evidence in the record suggesting that Coniston communicated with the Allegis Board or its advisors and apprised them of the new significance of the issue during those ten days. In their memorandum opposing defendant’s motion for summary judgment, plaintiffs argue that “a reasonable investor would find Coniston’s two months of continuous opposition to a dividend and support for a tender material.” Pis. Mem. at 42 n. 20. When expressed in this fashion, plaintiffs’ argument appears to have some force; however, that appearance is rendered illusory by the lack of evidence supporting the proposition that Coniston meaningfully opposed a dividend and conveyed that opposition to Al-legis or its advisors. The testimony of the Allegis Board members and management as well as that of Allegis’ advisors at First Boston and Davis Polk also fails, by and large, to support plaintiffs’ position that a demand was made or that negotiations were ongoing. Prior to October 29, 1987, there is no mention in the Board records reflecting the Board’s consideration of alternative forms of distribution; nor is there any hint that Coniston had pressed for a nondividend distribution. All of the Allegis Board members who were deposed in this matter denied any recollection of being informed that Conisten had sought a nondividend distribution prior to the October 29, 1987 announcement. Also, various members of Allegis’ management testified that Allegis did not begin to consider alternative distribution methods until December of 1987. Corroborating the testimony of the Board members and management, General Counsel Hoenicke testified that he did not think he ever discussed the dividend versus tender offer issue with the Board prior to December of 1987. Similarly, First Boston’s Harry Pinson testified that prior to October 1987, he never discussed the different tax consequences of a self-tender versus a dividend with the Board. And First Boston’s Robert Calhoun testified that he did not believe that there was any specific attention paid to Coniston’s tax consequences prior to the stock market crash. Faced with this overwhelming array of damaging testimony, plaintiffs attempt to undermine it by arguing that all of the Allegis Board members, Allegis management, and Allegis agents at First Boston and Davis Polk lack credibility because their interests obviously lie with the defendant. Similarly, plaintiffs attack the credibility of the Coni-ston partners, asserting that they are “motivated to soft-sell” the facts because at the time of their depositions “Coniston remained a large shareholder, had made its peace with defendant and occupied seats on its Board.” Pis.’ Facts ¶ 30H. As the Seventh Circuit has observed, however, “[a] motion for summary judgment cannot be defeated merely by an opposing party’s incantation of lack of credibility over a movant’s supporting affidavit.” Walter v. Fiorenzo, 840 F.2d 427, 434 (7th Cir.1988); see also Trans-Aire Int’l, Inc. v. Northern Adhesive Co., 882 F.2d 1254, 1257 (7th Cir.1989) (citing Walter where credibility of deposition testimony was attacked in opposition to summary judgment motion). Walter and Trans-Aire are not directly applicable, of course, because plaintiffs here do not merely challenge the credibility of the foregoing testimony; in addition, they look to a variety of other evidence which they contend creates a genuine issue of material fact as to whether Coniston demanded a buy-back and whether negotiations over this demand were ongoing as of October 29,1987. We now evaluate that evidence. The most direct evidence in support of plaintiffs’ position is, perhaps, the testimony of First Boston’s Robert Calhoun, who stated that, although he did not “remember specifically,” he was “sure that we generally spoke to them about the subject [the pros and eons of the dividend versus the tender offer] at every board meeting that we attended starting in July.” Calhoun Dep. at 78. Also, Calhoun testified that he “assumed” that First Boston talked about whether a tender offer should take place in connection with the distribution “at every board meeting” in the fall of 1987. Id. at 56. The Court finds Calhoun’s testimony insufficient to raise a genuine issue for a variety of reasons. First, Calhoun himself readily acknowledges that he has no specific recollection of discussing distribution alternatives and that his testimony reflects an assumption as to what was discussed. Second, Calhoun’s lone testimony, at most, raises a question as to whether distribution alternatives were generally discussed at the Board meetings. This, however, is not a material question in the context of this lawsuit. The material questions are whether the Board was advised that Coniston had demanded a self-tender and whether negotiations over such a demand were ongoing as of October 29, 1987. Calhoun’s testimony does not speak to either of these issues and thus does not raise a genuine question as to them. To avoid any confusion, we should note that a fair reading of the record supports plaintiffs’ contentions that the Board was generally aware that a self-tender was available as an alternative means of distributing the divestiture proceeds and that the Board, or at least some members, were apprised by First Boston in about August of 1987 that Coniston had asked First Boston to explore the possibility of distributing the divestiture proceeds through offering put rights. However, the uncontroverted record also indicates that this latter option was explored and re