# SFF-TIR, LLC v. Stephenson

> District Court, N.D. Oklahoma · April 25, 2017 · 250 F. Supp. 3d 856

URL: https://www.frixlaw.com/law-library/cases/7243346

## Case

- **Full name:** SFF-TIR, LLC Stuart Family Foundation, Inc. Alan Stuart 2012 GST Family Trust Stuart 2005 GST Family Trust Celebration, LLC Anurag Agarwal Peter Buckley Vincent Signorello and Rodney M. Reynolds v. Charles C. STEPHENSON, Jr. Cynthia A. Field Peter Boylan, III Lawrence Field Cypress Energy Partners-TIR, LLC CEP Capital Partners, LLC Cypress Energy Holdings, LLC and Tulsa Inspection Resources, LLC
- **Court:** District Court, N.D. Oklahoma
- **Decided:** April 25, 2017
- **Citations:** 250 F. Supp. 3d 856; 2017 U.S. Dist. LEXIS 62790; 2017 WL 1487439
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Browning
- **Judges:** Browning
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7243346

## How later opinions describe it (automated extraction)

- holding that plaintiff’s free speech and assembly rights had been violated but not plaintiff’s free exercise rights
- noting that unless a complaint pleads specific dates, the Court will not resolve the statute of limitations issue on a motion to dismiss

## Opinion text

MEMORANDUM OPINION AND ORDER
James O. Browning, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on: (i) the requests in the Plaintiffs’ Mo *867 tion to Strike Affirmative Defenses, filed November 4, 2015 (Doc. 191)(“Plaintiffs’ Motion to Strike Affirmative Defenses”); (ii) the requests in the Defendants’ Motion for Summary Judgment on Acquiescence Defense and Brief in Support, filed April 3, 2015 (Doc. 83)(“Defendants’ Acquiescence MSJ”); (iii) the requests in the Defendants’ Second Motion for Summary Judgment and Brief in Support Thereof, filed September 14, 2015 (Doc. 154)(“Defen-dants’ Estoppel MSJ”); (iv) the requests in the 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”); (v) the requests in the Plaintiffs’ Motion to Strike, filed April 20, 2015 (Doc. 86), and the requests in the Plaintiffs’ Motion to Strike Affidavit of Randall Lorett and Memorandum of Law in Support Thereof, filed April 20, 2015 (Doc. 87)(collectively “Motion to Strike Lorett Affidavit”); and (vi) the requests in the Plaintiffs’ Motion in Limine to Preclude Evidence of Plaintiffs’ Conduct, and Brief in Support, filed October 26, 2015 (Doc. 182)(“Motion in Limine”). The Court held a hearing on December 27 and 28, 2016.
The Court sua sponte assesses whether it has jurisdiction over the case. The primary issues that the parties raise and that the Court resolves in this Memorandum Opinion are whether: (i) the Court should strike, or not allow evidence at trial regarding, the Defendants’ affirmative defenses of acquiescence, unclean hands, estoppel, and waiver; (ii) Delaware or Oklahoma law governs the Plaintiffs’ claims and the Defendants’ affirmative defenses; (iii) the Plaintiffs’ claims are barred under the theory of acquiescence; (iv) the Oklahoma common-law clean hands doctrine bars the Plaintiffs’ claims; (v) the Oklahoma common law of waiver bars the Plaintiffs’ claims; (vi) the Oklahoma common law of estoppel bars the Plaintiffs’ claims; (vii) the Court should expand Securities Exchange Commission rule 10b-5 to include the force-seller doctrine; (viii) the entire fairness standard governs the Plaintiffs’ claims for breach of fiduciary duty; (ix) the Defendants bear the burden of proof that the cash-out merger was entirely fair to the minority shareholders; (x) the Defendants are liable for breaching their duty of entire fairness; (xi) the Court should strike the affidavit of Randall Lorett; (xii) the Court should preclude evidence at trial of the Akin Gump Letter and other letters that the Plaintiffs and the Plaintiffs’ counsel exchanged with the Defendants between September, 2013, and December, 2013; (xiii) the Court should preclude evidence at trial of letters sent to and received from the Triangle Capital mezzanine lenders; and (xiv) the Court should preclude the Defendants from mentioning during trial that the Plaintiffs’ are residents of states other than Oklahoma.
The Court finds it advisable, because of this opinion’s length and complexity, to summarize and clarify its holdings before it lays out the case’s facts in the next section. In the Court’s analysis’ first section, as a preliminary threshold issue, the Court examines sua sponte whether it has jurisdiction over this case. The Court concludes that it exercises federal question jurisdiction over the federal securities claims. The Court further concludes that it exercises federal diversity jurisdiction over the ease’s entirety even if the securities claims do not survive a motion for summary judgment against the securities claims.
In the Court’s analysis’ second section, the Court examines Oklahoma choice-of-law rules to determine whether it should apply Delaware or Oklahoma law to the claims and defenses in the case. The Court concludes that: (i) Delaware law applies to the Plaintiffs’ claims regarding the cash- *868 out merger, which entails consideration of the defense of acquiescence in accordance with Delaware law; and (ii) Oklahoma law applies to the Defendants’ other contract defenses of equitable estoppel, waiver, and unclean hands.
In the Court’s analysis’ third section, the Court evaluates the Defendants’ Acquiescence MSJ. The Court'concludes that: (i) the Defendants did not set up a well-functioning committee of independent directors to examine and approve the merger; (ii) a fully-informed majority of the minority shareholders never voted to approve the merger; (iii) the evidentiary burden to prove the merger’s entire fairness remains with the Defendants; (iv) when' the Court interprets the facts in the light'most favorable to the Plaintiffs, the Defendants do not meet this evidentiary burden; and (v) Delaware common law requires the Court to allow any case where the Defendant bears the burden to prove entire fairness to proceed to trial so that the entire fairness of the transaction can be evaluated. Accordingly, the Court denies the Defendants’ Acquiescence MSJ.
Because the Court denies the Defendants’ Acquiescence MSJ, in the Court’s analysis’ fourth section, the Court assesses the Defendants’ Estoppel MSJ. The Court concludes that: (i) the Defendants’ Estop-pel MSJ largely duplicates the Defendants’ Acquiescence MSJ’s facts; (ii) the Defendants fail to demonstrate that they reasonably relied on the Plaintiffs’ merger acceptance or that the alleged reliance caused the' Defendants to suffer a detrimental change of position; (iii) the Defendants fail to demonstrate that the Plaintiffs waived their right to challenge the entire fairness of the contested merger transaction; (iv) the Defendants fail to demonstrate that the Plaintiffs undertook the allegedly fraudulent and deceitful conduct of which they complain, thereby failing.to show that the Plaintiffs have unclean hands; (v) the Tenth Circuit is unlikely to support the Plaintiffs’ contention that the forced-seller doctrine is 'good law within the Tenth Circuit,- and therefore the Court should- not expand SEC rule 10b-5 to include the forced-seller doctrine and should dismiss the Plaintiffs’ federal securities claims; and (vi) the Supreme Court of Oklahoma likely would dismiss the Plaintiffs’ state securities claims and the Court, under the Erie doctrine’s required deference’ to a state’s supreme court, should dismiss the Plaintiffs’ state securities claims. Accordingly, the Court: (i) denies the Defendants’ Estoppel MSJ in part as it relates to the Oklahoma common-law clean hands doctrine, the Oklahoma common law of waiver, and the Oklahoma common law of estoppel; and (ii) grants the Defendants’ Estoppel MSJ in part as it'relates to 'securities claims, dismissing the securities claims.
Because the Court only grants in part the Defendants’ Estoppel MSJ, in the Court’s analysis’ fifth section, the Court adjudges the Plaintiffs’ MSJ. The Court concludes 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 fairnéss, because the undisputed material facts show that the Defendants did not. put into place sufficient safeguards protecting minority shareholder rights to meet this burden. Accordingly, the Court grants in part the Plaintiffs’ MSJ with respect to liability underthe entire fairness standard. The Court, however, leaves determination of damages—and only damages—to be resolved at trial.
The Court sixth investigates and adjudges the Plaintiffs’ Motion to Strike Affirmative-Defenses. The Court concludes that: (i) rule 12(f) motions to strike are disfa *869 vored and should be denied unless the challenged allegations have no possible relation or logical connection to the controversy’s subject matter; and (ii) the Court •will not “strike” Defendants’ affirmative defenses of acquiescence, unclean hands, 'estoppel, and waiver have a possible relation or logical connection to the controversy’s subject matter. Accordingly, the Court denies the Plaintiffs’ Motion to Strike Affirmative Defenses. Nevertheless, given the unique procedural history and posture of this case,- the Court further concludes that, because the entire fairness doctrine applies, the Defendants are precluded from raising these defenses at trial.
Further, because the Court grants the Plaintiffs’ MSJ with respect to the Defendants’ • liability under the entire fairness standard, leaving only the determination of damages for the trial, in the Court’s analysis’ seventh section, the Court appraises the Plaintiffs’ Motion to Strike Lorett. Affidavit. The Court concludes that: (i) the Lorett Affidavit is not a pleading; (ii) the Lorett Affidavit is not redundant, immaterial, impertinent, or scandalous; and (iii) that the Court therefore cannot strike the Lorett Affidavit under rule 56 of the Federal Rules of Civil Procedure. Accordingly, the Court denies the Plaintiffs! Motion to Strike Lorett Affidavit.
Again, because the Court leaves only the determination of damages for trial, in the Court’s analysis’ eighth and final section, the Court also evaluates the Plaintiffs’ Motion in Limine. The Court concludes that: (i) the Akin Gump letter’s - plain language and 1 other letters that the Plaintiffs and the Plaintiffs’ counsel exchanged with the Defendants between September, 2013, and November, 2013, reflect that they are compromise offers under rule 408 of the Federal Rules of Evidence; (ii) -the Akin Gump letter and other letters that-the Plaintiffs and the Plaintiffs’ counsel exchanged with the’ Defendants between September, 2013, and November, 2013 do not fall into any of the rule 408(b) exceptions that permit a court to admit compromise-offer evidence; (iii) letters sent to and received from Triangle Capital are not compromise offers between the Plaintiffs and the Defendants; and (iv) the Triangle Capital correspondence is not irrelevant to a determination of the TIR shares’ fair price and is not likely to mislead or confuse the jury. Accordingly, the Court: (i) grants the Plaintiffs’ Motion In Limine in part, precluding entry into evidence of the Akin Gump letter and other letters that the Plaintiffs and the Plaintiffs’ counsel exchanged with the Defendants between September, 2013, and November, 2013; and (ii) denies the' Motion In Limine in part, allowing letters sent to and received from Triangle Capital to come into evidence during the trial.
FACTUAL BACKGROUND
“Charles Stephenson is -the, owner of Regent Private Capital.” Defendants’ Acquiescence MSJ ¶ 1, at 7 (stating this fact). 1 See Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for *870 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 Pai'tial 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). 2 “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). 3 “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). 4 “Alan Stuart is a ‘sea *871 soned, 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). 5 “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 (stating this fact). 6 “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). 7 “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). 8 “On May 16, 2013, *872 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). 9 “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). 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 Nov! 17, 2014), filed Apr. 3, 2015 (Doc. 83-ll)(“Reynolds Depo.”). 10 “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 Apr. 3, 2015 (Doc. 83-2)(“Lorett Aff.”). 11
*873 “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)(statiiig 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). See Response to Plaintiffs’ MSJ at 2 (not disputing this fact). 12 “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). 13 “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). 14 “Each of the individual Plaintiffs executed and delivered a proxy to SFF- *874 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). 15 “[Tjhe 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). 16
“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). 17 “On September 20, 2013, Cypress Energy Partners Limited Partnership filed a Registration Statement *875 (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). 18 “On October 31, 2013, Cypress and TIR Inc. made a Tender Offer [Letter from Cypress Energy Partners to Shareholders of Tulsa Inspection Resources, Inc. (dated Oct. 31, 2013), filed Sept. 15, 2015 (Doc. 158-3)(“Tender 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 Exhibit 1 to Videotaped Deposition of Anurag Agarwal (taken Sept. 29, 2014), filed Apr. 3, 2015(Doc. 83-20)(“Agarwal Depo. Ex. I”). 19 *876 In a section called “Certain Conflicts of Interest,” the Tender Offer stated:
“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). 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-TIR, 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 not 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 6 (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’ Ac *877 quiescence 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), 20 “By November 26, 2013, the Plaintiffs had received and either personally reviewed the October 31 Tender Offer or had had the October 31 Tender Offer reviewed by legal counsel or SFF-TlR, LLC on their behalf.” Defendants’ Acquiescence MSJ ¶ 26, at 9 (stating this fact). 21 “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 ¶ 1, ■ 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). 22 “By November 26, 2013, the Plaintiffs had received and either (i) per *878 sonally reviewed or (ii) had 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). 23
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.). 24 “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 had historically’ as of that time.” Plaintiffs MSJ ¶ 26, at 6 (last set of bracketed material in the original)(stating this fact)(citing O’Keefe Depo. at 297:16-299:13). See Response to Plaintiffs’ MSJ at 2 (not disputing 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). 25 “Defendants did not disclose to *879 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 omitted)(stating ' 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 ¶ 32, at 10 (stating this fact). 26 “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). 27
“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 6 (stating this fact). See Response to Plaintiffs’ MSJ at 2 (not disputing this fact). *880 “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 Plaintiffs MSJ at 2 (not disputing this fact)., “The Merger Agreement stated in its ‘Governing Law’ 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). 28 and so does not materially affect the Plaintiffs’ admission of the fact.
“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, filed Apr. 3, 2015(Dóc. 83-27)(“Agarwal Depo. Ex. 7”). 29 “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 Apr. 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 Agarwal 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 *881 (stating this fact). 30 “On December 23, 2013, the Defendant TIR LLO paid ... Plaintiffs ... the $451,000 per share Merger Consideration.” Defendants’ Acquiescence MSJ ¶ 40, at 11 (stating this fact). 31 , 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). 32 “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 sur *882 rendered 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). 33
“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 fact)(relying on Allen Depo. at 108:3-112:3). 34
*883 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 ownership 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). 35
*884 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 ¶ 46, at 12 (stating this fact)(relying on Allen Depo. at 99:6104:24, Agarwal Depo. at 42:1-44:17, and Agarwal Depo. Ex. I). 36
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). 37 “As of December 9, *885 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’ Acquiescence MSJ ¶ 47, at 12 (stating this fact)(relying on Allen Depo. at 272:3-273:17). 38
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.
*886 Defendants’ Acquiescence MSJ ¶ 48, at 12 (stating this fact)(relying on Allen Depo. at 83:1884:1, 223:21-224:3). 39 “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 Ine. 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). 40
*887 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). 41
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 faet)(relying on Complaint, filed July 3,2014 (Doc. I)). 42
*888 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 Ex. 26, Allen Deposition, Ex. 116 [Letter to SFF-TIR, LLC Investors (dated Feb, 12, 2014), filed Apr. 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)). 43
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 50.1% 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). 44 “On July 3, 2014, the Plain *889 tiffs 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 Opinion, the Court resolves and decides six of the motions that the parties have filed in this case and that the parties argued during motion hearings on December 27-28, 2016. The Court’s analysis, infra, will reorder the motions so that they progress logically from one argument to the next argument. To increase reader comprehension, however, the Court orders the motions in this part based on the order in which the parties argued them at the hearing.’ First, the Defendants’ Acquiescence MSJ asks the Court to grant the Defendants summary judgment on the theory that the Plaintiffs acquiesced to the merger when the Plaintiffs took merger consideration. Second, the Defendants’ Estoppel MSJ asks the Court to grant the Defendants summary judgment on the theory that (i) the Oklahoma common-law clean hands doctrine; (ii) the Oklahoma common law of waiver; or (iii) the Oklahoma common law of estop-pel bars the Plaintiffs’ claims. Third, the Plaintiffs’ Motion'to Strike Lorett Affidavit moves for the Court to strike the Lorett Aff. on the grounds of alleged inconsistencies between the Lorett Aff. and the Lor-ett Depo. Fourth, the Plaintiffs’ Motion to Strike Affirmative Defenses petitions the Court to strike the Defendants’ affirmative defenses from their two summary judgment motions—acquiescence, unclean hands, waiver, and estoppel—under rule 12(f) of the Federal Rules of Civil Procedure. Fifth, the Plaintiffs’ MSJ asks the Court to grant the Plaintiffs partial summary judgment on breach of fiduciary duty claims. Sixth and last, the Plaintiffs’ Motion in Limine moves for the Court to preclude evidence of (i) a letter from .Akin Gump' and all letters between the Plaintiffs’ and Plaintiffs’ counsel and the Defendants from September, 2013, to December, 2013; (ii) all letters sent to or received from Triangle Capital; and (iii) any mention during trial that the Plaintiffs reside outside of'Oklahoma. In this section’s remainder, the Court will summarize each motion and the response and reply to it, along with the transcript of two days of hearings that the Court heard on these six motions.
1. Defendants’ Motion for Summary Judgment on Acquiescence Defense and Brief in Support.
On April 3, 2015, the Defendants filed Defendants’ Acquiescence MSJ. According to the Defendants, the dispositive facts are relatively simple. See Defendants Acquiescence MSJ at 1. The Defendants say that six months after having obtained and accepted payment of the Merger consideration, the Plaintiffs filed this action. See Defendants’ Acquiescence MSJ at 2. The Defendants maintain that all eight claims alleged in the . Plaintiffs’ Complaint are predicated on four core allegations “repeated time after time throughout the *890 Complaint’s 212 paragraphs .... ” Defendants’ Acquiescence MSJ at 2. As the Defendants distill them, these four core allegations are as follows:
(i) in June 2012, the Defendants misled a group of minority shareholder (the “Pooled Shareholders”) to gain control of the TIR, Inc.; (ii) in November, 2013, the Plaintiffs were misled by a Tender Offer, which the Plaintiffs rejected; (iii) in December, 2013, the Merger Notice contained false representations upon which the Plaintiffs relied; and (iv) the Defendants did not obtain an independent appraisal of TIR Inc. or the approval of a majority of the minority shareholders or take other steps to protect the Plaintiffs.
Defendants’ Acquiescence MSJ at 2-3. The Defendants respond that the equitable doctrine of acquiescence precludes the Plaintiffs from challenging the merger on these four core allegations for six different reasons. See Defendants’ Acquiescence MSJ at 14. First, the Defendants insist, the Plaintiffs “engaged in an agreed competition with the Defendants to acquire control of TIR Inc.” Defendants’ Acquiescence MSJ at 14. Second, the Defendants contend, the Plaintiffs “lost the competition.” Defendants’ Acquiescence MSJ at 14. Third, the Defendants assert, the Plaintiffs “were represented by legal counsel.” Defendants’ Acquiescence MSJ at 14. Fourth, the Defendants aver, the Plaintiffs “were fully advised of all material facts, including all TIR Inc. financial information and the organization of, and initial public offering of limited partnerships in, Cypress Energy Partners Limited Partnership.” Defendants’ Acquiescence MSJ at 14. Fifth, the Defendants asseverate, the Plaintiffs “surrendered their shares in order to obtain the Merger consideration.” Defendants’ Acquiescence MSJ at 14. Sixth, the Defendants argue, the Plaintiffs “surrendered their shares pursuant to a Merger Agreement that expressly provided that the Plaintiffs would he deemed, by such surrender, to have accepted the Merger consideration and waived all appraisal rights, whether pursuant to the appraisal statute or otherwise.” Defendants’ Acquiescence MSJ at 14.
The Defendants further insist that, even assuming that all of the Plaintiffs’ allegations are true “no matter how untrue they may be,” the acquiescence defense “renders the questions whether the merger process was fair and whether the value paid to the Plaintiffs was fair moot.” Defendants Acquiescence MSJ at 15. Moreover, the Defendants insist, acquiescence bars all claims that the Plaintiffs allege in the Complaint, see Defendants’ Acquiescence MSJ at 15, including unjust enrichment claims and implied causes of action that the Plaintiffs brought pursuant to SEC Rule 10b-5, see Defendants’ Acquiescence MSJ at 15-16. The Defendants highlight three options that they believe the Plaintiffs had vis-á-vis the merger: (i) surrender their shares and receive the merger consideration in accordance with the merger agreement’s terms and conditions; (ii) keep their shares and exercise their statutory appraisal rights as the merger agreement provides; or (iii) keep their shares and, as the Plaintiffs have done in this action, sue for an appraisal. See Defendants’ Acquiescence MSJ at 16. According to the Defendants, the acquiescence doctrine makes options 1 and 3 mutually exclusive; the Plaintiffs could not surrender their shares for merger consideration and then sue. See Defendants’ Acquiescence MSJ at 16. The Defendants finally observe that the merger agreement expressly provides that any shareholder who surrenders his or her shares shall be deemed to have waived appraisal rights, “whether pursuant to the appraisal statute or otherwise.” Defendants’ Acquiescence MSJ at 16.
*891 2. Plaintiffs’ Response to the Defendants’ Acquiescence MSJ.
On April 20, 2015, the Plaintiffs filed the Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment on Acquiescence Defense. See Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment on Acquiescence Defense, filed April 20, 2015 (Doc. 84)(“Re-sponse to Defendants’ Acquiescence MSJ). Abstracting their argument, the Plaintiffs start by asserting that, under settled law, “acquiescence plays no role in the self-interested cash-out merger, which is scrutinized solely under Delaware’s ‘entire fairness’ standard—its most exacting standard of review.” Response to Defendants’ Acquiescence MSJ at 1 (quoting Kahn v. Lynch Communication Systems, Inc., 638 A.2d 1110, 1116-17 (Del. 1994)(“Kahn v. Lynch”)). According to the Plaintiffs, the entire fairness doctrine imposes on the Defendants a fiduciary duty to ensure that the transaction is entirely fair to the Plaintiffs in two respects: (i) the use of fair procedure to protect the minority shareholders’ interests; and (ii) offer of a price that is entirely fair to minority shareholders. Response to Defendants’ Acquiescence MSJ at 1. That doctrine, the Plaintiffs insist, imposes on the Defendants the evidentiary burden of proving, at trial, each of these aspects of entire fairness. See Response to Defendants’ Acquiescence MSJ at 1. The Plaintiffs maintain that this showing is a threshold legal burden that the Defendants must satisfy. See Response to Defendants’ Acquiescence MSJ at 1. As the Plaintiffs see it, the Defendants admit in the Defendants’ Acquiescence MSJ that they cannot satisfy this exacting burden. See Response to Defendants’ Acquiescence MSJ at 2.
According to the Plaintiffs, the Defendants ignore settled law when they assert that the Plaintiffs forewent statutory appraisal rights and acquiesced in the Defendants’ “self-dealing conduct” when they received merger consideration. Response to Defendants’ Acquiescence MSJ at 2. The Plaintiffs maintain that this assertion is incorrect and that the entire fairness standard still applies for two reasons. See Response to Defendants’ Acquiescence MSJ at 2. First, under settled law as the Plaintiffs read it, the Defendants cannot relieve themselves of'their burden to establish the transaction’s entire fairness by pointing to the Plaintiffs’ conduct, as such conduct cannot establish fair procedure or fair price as Kahn v. Lynch requires. See Response to Defendants’ Acquiescence MSJ at 2 (citing Kahn v. Lynch, 638 A.2d at 1110 ). The Plaintiffs insist that the doctrine of acquiescence has no role to play in the determination of fair procedure or fair price, particularly with respect to shareholders who had no say in the cash-out decision and were presented with a fait accompli. See Response to Defendants’ Acquiescence MSJ at 2. Second, under settled law as the Plaintiffs read it, statutory appraisal against a corporation is only a non-exclusive remedy, i.e., by foregoing appraisal, the Plaintiffs did not forego their separate claims against the Defendants for breach of their duties of entire fairness. See Response to Defendants’ Acquiescence MSJ at 2.
The Plaintiffs further maintain that the Defendants do not address and cannot establish the elements of acquiescence, which the Defendants insist require a clear and decisive showing that (i) the Defendants disclosed all material facts; (ii) the Defendants gave the Plaintiffs a meaningful choice; and (iii) the Plaintiffs unequivocally approved the challenged conduct. See Response to Defendants’ Acquiescence MSJ at 2. To the contrary, the Plaintiffs assert, in addition to giving the Plaintiffs no say in the merger, the Defendants omitted material information required for an *892 informed decision, e.g., the equity value in the Merger Sub 45 that they received on cancelling the Plaintiffs’ shares. See -Response to Defendants’ Acquiescence MSJ at 2. The Plaintiffs conclude that the foregoing facts “doom” the Defendants’Acquiescence MSJ. See Response to Defendants’ Acquiescence MSJ'at 3.
3. Reply to the Defendants’ Acquies- . cence MSJ.
The Defendants filed the Defendants’ Reply in Support of Motion for Summary Judgment on Acquiescence Defense on April 24, 2015. See Defendants’ Reply in Support of Motion for Summary Judgment on Acquiescence Defense, filed April 24, 2015 (Doc. 93)(“Reply to Defendants’ Acquiescence MSJ”). The Defendants assert that the undisputed facts present the Court with a question of law regarding the acquiescence defense. See Reply to Defendants’ Acquiescence MSJ at 1. Asserting that the Plaintiffs respond to a motion that the Defendants did not file—“a motion for summary judgment on the question whether the TIR Inc. merger process was fair”—the Defendants assert that all of the Plaintiffs’ arguments in the response are for naught. Reply to Defendants’ Acquiescence MSJ at 1-2.
As the Defendants see it, the only relevant facts with regard to the Defendants’ Acquiescence MSJ are the facts establishing the Plaintiffs’ knowledge when they surrendered their shares in exchange for merger consideration on December 18-20, 2013. See Reply to Defendants’ Acquiescence MSJ at 2. The Defendants insist that the acquiescence defense bars the Plaintiffs’ claims if the Plaintiffs had knowledge of the facts they allege in their Complaint on the date when the Plaintiffs surrendered their shares. See Reply to Defendants’ Acquiescence MSJ at 2. The Defendants’ further insist that the single issue before the Court is one of Oklahoma common law, viz. whether the Plaintiffs may both surrender their .shares “in order to induce payment of the Merger consideration by the Defendants,” and “sue for rescission -and rescissionary damages.” Reply to Defendants’ Acquiescence MSJ at 2. The Defendants assert that Delaware law applies only to provisions relating’ the merger’s mechanics or effects. See Reply to Defendants’ Acquiescence MSJ at 3. As the Defendants see it, none of the Plaintiffs’ eight claims' relates to the merger’s mechanics or effects, and, consequently, all eight claims are subject to the acquiescence defense. See Reply to Defendants’ Acquiescence MSJ at 3-4.
The Defendants maintain that the Plaintiffs can challenge the applicability of neither Oklahoma law nor the acquiescence defense. See Reply to Defendants’ Acquiescence MSJ at 8. According to the Defendants, the Plaintiffs obtained the merger consideration “knowing every fact material to their decision and intending to obtain payment.” Reply to Defendants’Acquiescence MSJ at 8. The Defendants aver.that the Plaintiffs knew, thanks to the Merger Agreement, that the merger consideration would not be paid unless they surrendered their stock certificates along with executed powers of attorney. See Reply to Defendants’ Acquiescence MSJ at 8. Thus, the Defendants assert, the Plaintiffs had only four options open to them. See Reply to Defendants!. Acquiescence MSJ at 8. The Plaintiffs could (i) obtain payment of the merger consideration; (ii) have their shares appraised; (iii) simultaneously seek *893 a statutory appraisal of their share and sue for rescission arid rescissionary' damages; or (iv) file suit seeking rescission and rescissionary damages. See Reply to Defendants’ Acquiescence MSJ at 8. The Defendants argue that the Plaintiffs could not “deceitfully obtain payment of the Merger consideration pursuant to the Merger Agreement -and, after eight months’ delay, file suit seeking rescission and rescissionary damages.” Reply to Defendants’ Acquiescence MSJ at 8 (emphasis in the original)(citing Bershad at 848 (Del. 1987)). According to the Defendants, because the Plaintiffs “voluntarily rejected each of the four [options] in order to inequitably obtain payment of the Merger consideration prior to filing this action,” the Plaintiffs acquiesced in the transaction, and the Defendants are entitled to summary judgment. Reply to Defendants’ Acquiescence MSJ at 10 (emphasis in the original).
4. The Defendants’ Estoppel MSJ.
The Defendants filed, the • Defendants’ Estoppel MSJ on September 14, 2015, The Defendants argue that the Plaintiffs delivered their share certificates to induce the Defendants to pay the merger consideration once the Plaintiffs discovered that they had no legal ability to block the merger. See Defendants’ Estoppel MSJ at 16. The Defendants then argue that: (i)-they established an independent committee, which secured neither an appraisal nor a majority vote of the minority shareholders necessary for the. cash ‘out to satisfy fair process. See Defendants’ Estoppel MSJ at 17. Furthermore, the Defendants contend, the Plaintiffs engaged in “legal blackmail to extract a premium price” after having failed to acquire control of TIR in a competitive bidding war, and then bragging about the price they received as a result of the cash out. Defendants’ Estoppel MSJ at 17.
According to the Defendants, the Defen-' dants had a statutory right to effect -a cash-out merger with after-the-fact notice, and 'the Plaintiffs received notice of their appraisal rights. See Defendants’ Estoppel MSJ at 17. The Defendants insist that the Plaintiffs’ claims regarding the Defendants’ alleged breach of fiduciary duty and unjust enrichment therefore fail under settled Oklahoma law, because: (i) the Oklahoma common-law -clean hands doctrine bars the claims; (ii) the Oklahoma common law of waiver bars the claims; arid (iii) the Oklahoma common law of estoppel bars the claims. See Defendants’ Estoppel- MSJ at 17-18. The Defendants further assert that the Plaintiffs’ claims under the Oklahoma Securities Act fail,' because: (i) the Plaintiffs have no private right of action; and (ii) the Oklahoma common law of unclean hands, waiver, and estoppel bar the claims. See Defendants’ Estoppel MSJ at 18. Finally, the Defendants maintain that the Oklahoma common law of unclean hands, waiver, and estoppel also bar the Plaintiffs’ claims under 'the Securities Exchange Act of 1934. See Defendants’ Es-toppel MSJ at 18.
Circling back through these sets of claims, the Defendants argue that the Oklahoma common law of unclean hands bars the Plaintiffs’ claims on the grounds that Stuart orchestrated this litigation despite (i) having attempted to seize control of TIR, Inc.; (ii) having entered into an agreement with the other Plaintiffs to attempt to extract an unjustified premium for the Plaintiffs’, shares; and (iii) filing false allegations against the Defendants in an .attempt to justify a trial on their surrendered shares’ value. See Defendants’ Estoppel MSJ at 19-20. The Defendants then argue .that Oklahoma common law of waiver indicates that ■ a contract may achieve waiver provided that the contract is founded on a valuable consideration and made by a party.whose benefit is being *894 waived. See Defendants’ Estoppel MSJ at 20. According to the Defendants, the Plaintiffs delivered their share certificates to the Defendants to induce the Defendants to pay the merger consideration, and in accordance with the merger agreement’s express provision that any former shareholder who surrendered his or her share certificates would be deemed to have forever waived any appraisal rights or quasi-appraisal rights pursuant to the Oklahoma appraisal statute or otherwise. See Defendants’ Estoppel MSJ at 21. The Defendants then argue that the Plaintiffs are equitably estopped from unwinding the merger, because, in reliance on the Plaintiffs’ voluntary and knowing surrender of their share certificates, the Plaintiffs: (i) consummated the merger of TIR, Inc. and TIR LLC; (ii) contributed 50.1% of their member interests in TIR LLC to Cypress Energy Partners L.P.; and (iii) effected a sale of partnership units to the public pursuant to the Registration Statement. See Defendants’ Estoppel MSJ at 22. With regard to the Plaintiffs’ federal securities claims, the Defendants assert that the Plaintiffs must allege and prove both a misleading statement or omission of a material fact and reliance to have a claim under Securities and Exchange Act § 10(b) and rule 10b-5. See Defendants’ Estoppel MSJ at 23-24. According to the Defendants, the Plaintiffs’ federal securities claims fail, because the Plaintiffs do not satisfy the reliance requirement. See Defendants’ Estoppel MSJ at 23-24.
5. The Plaintiffs’ Response to Defendants’ Estoppel MSJ.
The Defendants filed the Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Second Motion for Summary Judgment on October 12, 2015. See Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Second Motion for Summary Judgment, filed October 12, 2015 (Doc. 171)(“Response to Defendants’ Estoppel MSJ”). The Defendants argue that, separate and apart from the fact that the Defendants’ affirmative defenses are barred as a matter of law, the Defendants fail to establish any of the elements of waiver, estoppel, or unclean hands. Responding to the Defendants’ arguments out of order, the Plaintiffs first contend that the Defendants cannot satisfy waiver elements, because the Plaintiffs did not voluntarily and intentionally release each of the Defendants from personal liability either under common law or under securities law. See Response to Defendants’ Estoppel MSJ at 13. According to the Plaintiffs, the Defendants ignore settled law that “a stockholder who ... accepts the consideration from ... a merger effected by a controlling stockholder is not barred by the doctrine of ... waiver ... from challenging the fairness of the merger in an equitable action.” Response to Defendants’ Estoppel MSJ at 13 (emphasis in the original)(quoting In re JCC Holding Co., Inc., 843 A.2d 713, 723 (Del. Ch. 2003)(Strine, V.C.)). The Plaintiffs argue that the Defendants’ argument also fails on its own terms, because (i) waiver requires the “voluntary and intentional relinquishment of a known right,” Response to Defendants’ Estoppel MSJ at 13 (quoting Barringer v. Baptist Healthcare of Oklahoma, 22 P.3d 695, 700-01 (Okla. 2001)); and (ii) a contractual waiver requires a “ ‘contract ... made by the party whose benefit is being waived.’ ” Response to Defendants’ Estoppel MSJ at 13 (quoting Smith v. Minneapolis Threshing Mach. Co., 89 Okla. 156 , 214 P. 178, 180 (1923)). The Plaintiffs maintain that they did not enter a contract with the Defendants; rather, the Defendants unilaterally cancelled the Plaintiffs’ shares. See Response to Defendants’ Estoppel MSJ at 13-14. Moreover, the Plaintiffs say, 18 O.S. § 1091 leaves the Plaintiffs free to exercise, or decline to exercise, statutory appraisal rights, a decision not to exercise *895 the appraisal rights has no effect with regard to waiver. See Response to Defendants’ Estoppel MSJ at 14. In summary, the Plaintiffs contend that the waiver defense fails on three grounds: (i) nothing in the merger notice declared such a broad waiver; (ii) 18 O.S. § 1091 does not impose a waiver; and (iii) settled law holds that foregoing an appraisal does not immunize the Defendants from liability for any breach of their duty of entire fairness in undertaking a self-interested merger transaction. See Response to Defendants’ Estoppel MSJ at 15.
The Plaintiffs argue that the Defendants’ estoppel argument also fails. See Response to Defendants’ Estoppel MSJ at 16-17. Again invoking In re JCC Holding Co., Inc., the Plaintiffs say that settled law is that acceptance of merger consideration does not allow an estoppel defense to bar challenges to a self-interested merger’s entire fairness. See Response to Defendants’ Estoppel MSJ at 16. Furthermore, the Plaintiffs maintain, the Defendants cannot satisfy estoppel’s core elements: (i) that the Plaintiffs intended to induce a detrimental chance of position; (ii) that a detrimental chance of position in fact occurred; and (iii) that reasonable reliance upon a belief that the Plaintiffs inculcated induced the detrimental change. See Response to Defendants’ Estoppel MSJ at 16 (citing Spaulding v. United Transp. Union, 279 F.3d 901 , 909-10 (10th Cir. 2002)). First, according to the Plaintiffs, the Defendants were committed to paying the merger consideration upon demand regardless what the Defendants believed or did not believe about their personal liability. See Response to Defendants’' Estoppel MSJ at 17. Second, according to the Plaintiffs, 18 O.S. § 1090.2(B)(3) required the Defendants to fix the merger consideration as part of any freeze-out merger. See Response to Defendants’ Estoppel MSJ at 17. The Plaintiffs assert that these two facts left Defendants with no choice whether to pay the merger consideration, and the Plaintiffs therefore could have induced neither belief nor reasonable reliance in the Defendants See Response to Defendants’ Estoppel MSJ at 17.
Turning to the Defendants’ unclean-hands argument, the Plaintiffs contend that the Defendants cannot show unclean hands, because (i) the Plaintiffs’ conduct did not cause the Defendants’ unilateral adoption, execution, and implementation of the freeze-out merger; and (ii) the Plaintiffs did not commit fraud or deceit. See Response to Defendants’ Estoppel MSJ at 18. As a threshold argument, the Plaintiffs again invoke In. re JCC Holding, saying that case disallows defendants from asserting any equitable doctrine to avoid entire fairness review, a prohibition that the Plaintiffs insist includes the unclean hands defense. See Response to Defendants’ Es-toppel MSJ at 18. Regardless, the Plaintiffs continue, the Defendants’ argument fails on its own merits. See Response to Defendants’ Estoppel MSJ at 18. First, the Plaintiffs insist, the Defendants make no showing that the Plaintiffs tainted the transaction that they are challenging by undertaking the very “fraudulent and deceitful conduct ” of which they complain. Response to Defendants’ Estoppel MSJ at 18 (quoting Yeager v. Fort Knox Sec. Products, 602 Fed.Appx. 423, 429 (10th Cir. 2015))(emphasis added in Response to Defendants’ Estoppel MSJ). According to the Plaintiffs, they did not induce the Defendants’- payment of the required merger consideration, through fraud and deceit or otherwise. See Response to Defendants’ Estoppel MSJ at 18. Consequently, the Plaintiffs say, the unclean hands doctrine cannot apply or block an entire fairness review. See Response to Defendants’ Es-toppel MSJ at 18-19.
The Plaintiffs then attack the Defendants’ securities claim arguments as a *896 straw man. See Response to Defendants’ Estoppel MSJ at 19. The Plaintiffs assert that their securities claims rest only on the forced-seller doctrine, which the Plaintiffs maintain provides a cause of action under securities laws to plaintiffs who are forced to convert their shares or to sell their shares for consideration, and there has been deception in the transaction. See Response to Defendants’ Estoppel MSJ at 19-20. According to the Plaintiffs, the Defendants practiced deception when they omitted material facts concerning the MLP IPO when inducing the pooled shareholders to sell their shares to the Defendants. See Response to Defendants’ Estoppel MSJ at 21-22. Furthermore, the Plaintiffs assert, the Defendants materially misrepresented (i) the Plaintiffs’ competing offer to the pooled shareholders; and (ii) the- payments and employment provisions offered to TIR, Inc. management. See Response to Defendants’ Estop-pel MSJ at 22-23. The Plaintiffs contend that the misrepresentations amassed the Defendants enough shares to enact the cash-out merger of the Plaintiffs, thereby making the Defendants guilty .of securities fraud and liable to the Plaintiffs under the forced seller doctrine. See Response to Defendants’ Estoppel MSJ at 22-24.
6. The Defendants’ Reply to the Defendants’ Estoppel MSJ.
The Defendants filed the. Defendants’ Reply . in Support of Second Motion for Summary Judgment (Doc. 154) on October 23, 2015. See Defendants’ Reply in Support of Second Motion for Summary Judgment (Doc. 154), filed October 23, 2015 (Doc. 178)(“Reply to Defendants’ Estoppel MSJ”). The Defendants répeat their assertion that the mergbr process was fair, that the Plaintiffs engaged in legal blackmail in an attempt to block the merger they opposed, and that the Plaintiffs bragged about how good the merger price they received was. See Reply to Defendants’ Estoppel MSJ at 3. Furthermore, the Defendants assert, the Plaintiffs were fully informed and knowingly induced the Defendants to pay the merger consideration. See Reply to Defendants’ Estoppel MSJ at 3. As a consequence, the Defendants maintain, the Oklahoma clean-hands doctrine, equitable estoppel, and waiver all bar the Plaintiffs from attacking the merger’s entire fairness. See Reply to Defendants’ Estoppel MSJ at 3. The Defendants then seem to make a concession to the Plaintiffs:
Plaintiffs’ only response [to the Defendants’ Oklahoma equity and waiver arguments] is to argue this well-settled Oklahoma law is an acquiescence defense in another, dress. So be it. To the extent this Court determines Oklahoma law should follow Delaware law, Bershad v. Curtis-Wright [Curtiss-Wright] Corp., 525 [535] A.2d 840, 842, 848 (Del. 1987) is controlling.
Reply to Defendants’ Estoppel MSJ at 3-4 (emphasis added). The Defendants then shortly restate acquiescence defense arguments from the Defendants’ Acquiescence MSJ and Reply to' Defendants’ Acquiescence MSJ. See Reply to Defendants’ Es-toppel MSJ at 3.
The Defendants then tackle the Plaintiffs’ securities arguments, highlighting that the Plaintiffs concede that their securities claims rest entirely on the forced-seller doctrine—a doctrine that the Defendants insist the United States Court of Appeals for the Tenth Circuit twice has declined to apply and that does not apply under the Oklahoma Uniform Securities Act. See Reply to Defendants’ Estoppel MSJ at 4-6 (citing Katz v. Gerardi, 655 F.3d 1212 , 1221 n.8 (10th Cir. 2011), and Anderson v. Dixon, 86 F.3d 1166 , **2-3 (10th Cir. 1996)(unpublished)). Moreover, the Defendants assert, the United States Court of Appeals for the Seventh Circuit, *897 in an opinion that then-Chief Judge Pos-ner -wrote and Judges Cummings and Manion joined, held that the forced-seller doctrine is inconsistent with basic federal securities precedents, because it penalizes conduct that is too remote from the fraud to be actionable, i.e., does not induce a third party to do anything. See Reply to Defendants’ Estoppel MSJ at 5-6 (citing Isquith v. Caremark International, Inc., 136 F.3d 531 (7th Cir. 1998)). The Defendants also note that the forced-seller doctrine appears to be losing credence among the district courts even in circuits in which it previously has been recognized. See Reply to Defendants’ Estoppel MSJ at 6 n. 8 (citing Howe v. Bank for Intern, Settlements, 194 F.Supp.2d 6, 11 (D. Mass. 2002)(Lindsay, J.) 46 ; Koppel v. 4987 Corp., 1999 WL 608783 , at *4 (S.D.N.Y. Aug. 11, 1999)(Carter, J.); Sarafianos v. Shandong Tada Auto-Parking Co., Ltd., 2014 WL 7238339 , at *4 (S.D.N.Y. Dec; 19, 2014)(Scheindlin, J.); and Gunter v. Ridgewood Energy Corp., 32 F.Supp.2d 166, 178 (D.N.J. 1998)(Walls, J.)). The Defendants say that the Plaintiffs’ securities claims also fail, because the Plaintiffs premise them on the pooled shareholders’ implausible and demonstrably false allegations. See Reply to Defendants’ Estoppel MSJ at 7. According to the Defendants, rule 10b-5 requires that the Defendants failed to advise the pooled shareholders of their business plan with scienter. See Reply to Defendants’ Estoppel MSJ at 7. The Defendants assert that they “disclosed and openly advocated their business plan to the Pooled Shareholders as they competed with Plaintiffs to acquire control of TIR.” Reply to Defendants’ Estoppel MSJ at 10. Consequently, the Defendants maintain, (i) there is no rule 10b-5 material misrepresentation or omission; (ii) there is no rule 10b-5 scienter; and (iii) the pooled shareholders had a proven ability to know of the Defendants business plan. See Reply to Defendants’ Estoppel MSJ at 10. The Defendants argue that they therefore are entitled to summary judgment in the Defendants’ Estoppel MSJ. See Reply to Defendants’ Estoppel MSJ at 11.
7. The Plaintiffs’ Motion to Strike Lorett Affidavit.
The Plaintiffs filed Plaintiffs’ Motion to Strike Lorett Affidavit on April 20, 2015. The Plaintiffs argue that the Defendants’ Acquiescence MSJ
relies on an Affidavit by Randall Lorett, the President and CEO of Defendant Tulsa Inspection Resources, LLC containing numerous sworn statements which, by the affiant’s own admission under oath at his deposition nine days after swearing the Affidavit, were in fact wholly beyond his personal knowledge, and about which he was not competent to testify;
Motion to Strike at 1. According to the Plaintiffs, the Lorett Aff. purports to provide the Court with testimony concerning critical issues, including' that: (i) $451,000.00 was the fair value for TIR’s shares, including as of June 26, 2013; October 2013; and December 2013, when the Plaintiffs were cashed out; (ii) TIR was experiencing slow collections in Canada at the time of the October, 2013, Tender Offer; (iii) around the same time, TIR also continued to contend with a large amount of factoring debt, which created a drag on the company’s value; (iv) the Plaintiffs did not tender their share in response to a tender offer issued October 21, 2013; and (v) the Plaintiffs were promptly paid $451,000.00 per share.' See Motion- to Strike at 1 (internal quotation marks and *898 citations omitted). The Plaintiffs assert that, in his deposition, R. Lorett admitted that he had no personal knowledge of any of these statements. See Motion to Strike at 1. The Plaintiffs therefore urge the Court (i) to strike these statements; (ii) to disregard them in deciding the Defendants’ Acquiescence MSJ; and (iii) to award the Plaintiffs expenses and attorney fees related to filing this motion. See Motion to Strike at 2.
Delving into their argument, the Plaintiffs insist that the Federal Rules of Civil Procedure require any affidavit to be considered with regard to a motion for summary judgment to “be made on personal knowledge, [to] set out facts that would be admissible in evidence, and [to] show that the affiant or declarant is competent to testify on the matters stated.” Motion to Strike at 2 (citing Fed. R. Civ. P. 56(c)(4))(emphasis added in the Motion to Strike). According to the Plaintiffs, the Lorett Aff. satisfies none of the three requirements. See Motion to Strike at 2. The Plaintiffs assert that R. Lorett has no personal knowledge regarding: (i) TIR shares’ fair value, see Motion to Strike at 3-6; (ii) TIR’s purportedly slow collections in Canada, see Motion to Strike at 6-7; (iii) factoring debt, see Motion to Strike at 7-8; or (iv) how much the Plaintiffs were paid for their shares, see Motion to Strike at 9. The Defendants therefore urge the Court to strike the statements in Lorett Aff. ¶¶ 19, 23, 24, 25, and 27, together with such other and further relief as the Court deems just. See Motion to Strike at 9.
8. The Defendants’ Response to Plaintiffs’ Motion to Strike Lorett Affidavit.
The Defendants filed the Defendants’ Response to Plaintiffs’ Motion Strike Affidavit of Randall Lorett on May 7, 2015. See Defendants’ Response to Plaintiffs’ Motion Strike Affidavit of Randall Lorett, filed May 7, 2015 (Doc. 101)(“Response to Motion to Strike Lorett Affidavit”). The Defendants dismiss the Motion to Strike as a vain attempt to defeat the Defendant’s Acquiescence MSJ in roundabout fashion. Response to Motion to Strike Lorett Affidavit at 2. According to the Defendants, the Lorett Aff. supports only four of the undisputed facts on which the Defendants’ acquiescence defense is bottomed, and the Motion to Strike implicates only limited parts of five of the Lorett Aff.’s twenty-seven paragraphs. See Response to Motion to Strike Lorett Affidavit at 2. Furthermore, the Defendants maintain, none of the Plaintiffs five challenges to the Lorett Aff. implicate facts specifically material to the Defendants’ Acquiescence MSJ. See Response to Motion to Strike Lorett Affidavit at 3-5.
In any event, the Defendants argue, none of the limited parts of those paragraphs that the Plaintiffs challenge contradict R. Lorett’s deposition testimony. See Response to Motion to Strike Lorett Affidavit at 5 (referring to R. Lorett Dep. 51:11-22 (taken Apr. 9, 2015), filed MMDDYY). According to the Defendants, the deposition testimony is not incompatible with the Aff. ¶ 19, which states: “Knowing all that I knew about TIR, I believed $451,000 was more than fair value for a share of TIR stock at that time. I believe it was a premium over fail’ value resulting from the competition between the Cypress and Stuart groups to gain control of TIR.” Response to Motion to Strike Lorett Affidavit at 6. The Defendants highlight that R. Lorett spoke of his “belief,” which the Defendants maintains is almost inescapably what others have said to someone. See Response to Motion to Strike Lorett Affidavit at 6. Casting R. Lorett’s statements in a more favorable light, the Defendants insist “that Mr. Lor-ett does not express an opinion of fair value as contemplated by the Oklahoma appraisal statute is not probative whether Mr. Lorett believed $451,000 represented *899 a premium over fair value in the colloquial sense.” Response to Motion to Strike at 6. In the Defendants’ estimation, the “Plaintiffs’ counsel has hoisted himself by his own petard.” Response to Motion to Strike Lorett Affidavit at 6.
The Defendants also insist that nothing in R. Lorett’s deposition is at odds with ¶ 23 of his affidavit, which states:
During the same time period, TIR became aware of serious problems with Trent Foley and the TIR-Canada/Foley Inspection Services management team. I and U.S. management learned that in addition to continuing slow collections in Canada, Mr. Foley had been focusing much of his attention on his own company, which shared office space with TIR-Canada and Foley. Extended involvement with TIR counsel was needed to negotiate a solution and resolve those disputes.
Response to Motion to Strike Lorett Affidavit at 7. The Defendants insist that the “paragraph 23 challenge occurs when there is no issue before the Court with respect to which the Court can determine whether the paragraph is or is not prohibited hearsay.” Response to Motion to Strike Lorett Affidavit at 7. The Defendants indicate that the Lorett Aff. “provides the general background of, and puts in' context, the substantive matters of which Mr. Lorett does have personal knowledge. Mr. Lorett testified to the matters which management learned. That management learned those matters is separate and apart from the question whether what they learned was true.” Response to Motion to Strike Lorett Affidavit at 8 (emphases in the original). Lest they be misunderstood, the Defendants concede that the Plaintiffs have every right to challenge the truth of what management learned if and when the truth of what management learned is challenged before the Court. See Response to Motion to Strike Lorett Affidavit at 8. At the same time, the Defendants remind the Court that the Plaintiffs bear a burden to prove that the belief of those tendering the offer was false. See Response to Motion to Strike Lorett Affidavit at 8. As the Defendants see it, to the extent that R. Lorett’s belief can establish the belief of those who tendered the offer, what R. Lorett learned from others is “clearly probative and admissible.” Response to Motion to Strike Lorett Affidavit at 8.
Turning then to ¶ 24, the Defendants insist that paragraph is unrelated to any issue before the Court. See Response to Motion to Strike Lorett Affidavit at 8. The Defendants assert that R. Lorett testified that he knew what factoring is, but does not know what factoring debt is. See Response to Motion to Strike Lorett Affidavit at 8. The Defendants’ adjudge that “[t]he squabble is not worth the Court’s time. Whether TIR is burdened by ‘factoring its receivables’ or burdened by ‘factoring debt’ is immaterial, and hardly serves as a matter deserving of the attention of this Court, much less an order striking the Lorett Affidavit.” Response to Motion to Strike Lorett Affidavit at 8.
The Defendants’ next tackle ¶ 25, which states:
In October 2013, Cypress came to agreement with Triangle Capital[ 47 ] and pur *900 chased the mezzanine lenders” ordinary-shares of TIR for $451,000 each. The $451,000 share price had been more than the share value in June, and given the personnel, accounting and financing issues the company faced, the price continued to be more than fair in October.
Response to Motion to Strike Lorett Affidavit at 9. The Defendants assert that, in context, “it is perfectly clear that, in this paragraph, Mr. Lorett is referring to the $451,000 price to which reference is made twice in line three of the paragraph.” Response to Motion to Strike Lorett Affidavit at 9. The Defendants also insist that it “is also clear that that price continued to be fair.” Response to Motion to Strike Lorett Affidavit at 9 (emphasis in the original). Disregarding “the difference between Mr. Lorett’s belief as to the fairness of $451,000 as a price, and Plaintiffs’ questioning concerning fair value in an appraisal action discussed with respect to paragraph 19,” the Defendants assert that the Motion to Strike is “an absurd abuse of the Court’s time.” Response to Motion to Strike Lorett Affidavit at 9.
Turning to ¶ 27, the Defendants note that it states:
After the plaintiffs did not tender their shares in response to a tender offer issued October 31, 2013, Tulsa Inspection Resources, Inc. merged with Tulsa Inspection Resources, LLC, and the plaintiffs were offered $451,000 for each of their shares. The plaintiffs returned their shares to the company, and they were promptly paid $451,000 per share just as the other shareholders had been. I believe this price was more than fair value for the shares. I was very surprised, six months later, to see that the plaintiffs filed this lawsuit.
Response to Motion to Strike Lorett Affidavit at 9. The Defendants portray the Plaintiffs as arguing that, because R. Lor-ett was not involved in the tender offer pursuant to which the Plaintiffs were offered $451,000.00 per share for their shares, the Court should strike each sentence in ¶ 27. See Response to Motion to Strike Lorett Affidavit at 9. According to the Defendants, that argument is “frivolous” for five reasons. Response to Motion to Strike Lorett Affidavit at 9. First, the Defendants contend, the Plaintiffs admit and all accept that the tender offer was made. See Response to Motion to Strike Lorett Affidavit at 9. Second, the Defendants aver, the Plaintiffs admit and all accept that the tender price was $451,000.00 per share. See Response to Motion to Strike Lorett Affidavit at 9. Third, the Defendants maintain, the Plaintiffs admit and all accept that the Plaintiffs returned their shares to the company, See Response to Motion to Strike Lorett Affidavit at 9. Fourth, the Defendants attest, the Plaintiffs admit and all accept that the Plaintiffs were promptly paid $451,000,00 per share. See Response to Motion to Strike Lorett Affidavit at 9. Fifth, the Defendants avouch, the Plaintiffs do not and cannot challenge that R. Lorett was surprised when the Plaintiffs filed this action six months after they had accepted the merger consideration. See Response to Motion to Strike Lorett Affidavit at 9-10, Broadly speaking, the Defendants assert that, when R. Lorett expressed his belief that $451,000.00 per share was a fair price, he is entitled to state both what he *901 learned, and what all generally know and accept to be true. See Response to Motion to Strike Lorett Affidavit at 10. As the Defendants see it, the Plaintiffs can cross-examine R. Lorett at trial in an effort to impeach his credibility if they believe he lacks personal knowledge of any fact. See Response to Motion to Strike Lorett Affidavit at 10. To challenge R. Lorett’s credibility at this stage in the case, the Defendants pronounce, it both irrelevant and quixotic. See Response to Motion to Strike Lorett Affidavit at 10. Quickly recapitulating their argument, the Defendants close with an observation that none of the Plaintiffs’ five challenges to the Lorett Aff. implicate any undisputed fact material to the Defendants’ Acquiescence MSJ. See Response to Motion to Strike Lorett Affidavit at 10. Moreover, the Defendants assure the Court, nothing in the ¶¶ that the Plaintiff challenge contradicts anything in R. Lorett’s Depo. testimony. See Response to Motion to Strike Lorett Affidavit at 11. The Defendants, therefore, conclude that the Motion to Strike, “lacks sufficient merit to be worth the Court’s attention and should be summarily denied.” Response to Motion to Strike Lorett Affidavit at 11.
9. Plaintiffs Reply to the Motion to Strike Lorett Affidavit.
The Plaintiffs filed Reply Memorandum of Law in Further Support of Plaintiffs’ Motion to Strike Affidavit of Randall Lor-ett on May 21, 2015. See Reply Memorandum of Law in Further Support of Plaintiffs’ Motion to Strike Affidavit of Randall Lorett, filed May 21, 2015 (Doc. 108)(“Re-ply to Motion to Strike Lorett Affidavit”). The Plaintiffs reiterate their position that, “despite swearing under penalty of perjury to his personal knowledge of certain facts in an Affidavit submitted in support of Defendants’ motion for summary judgment,” R. Lorett “in fact lacked any personal knowledge with regard to -a series of those averments.” Reply to Motion to Strike Lorett Affidavit at 1: The Plaintiffs, believing that they have exposed the Defendants submitting an improper affidavit, ridicule the Defendants’ defense that the challenged statements are irrelevant and do hot implicate the facts on which their summary judgment lie's. See Reply to Motion to Strike Lorett Affidavit at 1. Although the Plaintiffs concede that a court ordinarily' should not decide witness credibility on a motion to dismiss, the Plaintiffs insist that a court cannot credit a witness’ testimony for purposes of summary judgment if it had been exposed as incompetent or false. See Reply to Motion to Strike Lorett Affidavit at 1.
Expanding on this core argument, the Plaintiffs assert that R. Lorett admitted in his Depo. that he did not have an opinion—or even the tools to formulate such an opinion—about the TIR stock’s fair value. See Reply to Motion to Strike Lorett Affidavit at 2. The Defendants’ assertions to the contrary notwithstanding, the Plaintiffs contend that R. Lorett’s belief cannot be based on what other told him, for two reasons. See Reply to Motion to Strike Lorett Affidavit at 2. First, the Plaintiffs aver, the Defendants’ response is directly contrary to R. Lorett’s testimony. See Reply to Motion to Strike Lorett Affidavit at 3. Second, the Defendants press, for a statement to be considered on summary judgment, it must be shown to rest on concrete facts “grounded in the affiant’s own observation, perception, and recollection.” Reply to Motion to Strike Lorett Affidavit at 3 (citing Tavery v. United States, 32 F.3d 1423 , 1427 n.4 (10th Cir. 1994)(“[S]tatements of mere belief must be disregarded[.]”)). The Defendants, therefore, argue that the Court should strike Lorett Aff. ¶¶ 19, 25, and 27 and preclude R. Lorett from testifying on the fair price issue. See Reply to Motion to Strike Lor-ett Affidavit at 3.
*902 Regarding Lorett Aff. ¶ 23, the Plaintiffs contend that the Defendants admit in their Response to the Motion to Strike Lorett Affidavit that R. Lorett’s statement is hearsay. Reply to Motion to Strike Lorett Affidavit at 3. Accordingly, the Plaintiffs assert, the statement (i) has no bearing on the factual issues; (ii) cannot be used to establish the absence of any disputed factual issue for summary judgment purposes; and (iii) must be stricken. See Reply to Motion to Strike Lorett Affidavit at 4-5. Regarding Lorett Aff. ¶ 24, the Plaintiffs purport that R. Lorett admitted at his deposition that he had never heard the phrase “factoring debt” and that he does not know what it means. Reply to Motion to Strike Lorett Affidavit at 5. The Plaintiffs argue that, because ¶ 24 uses the term despite R. Lorett’s professed ignorance of it, the Court should strike Lorett Aff. ¶ 24 and prevent R. Lorett from testifying on the issue of factoring debt. See Reply to Motion to Strike Lorett Affidavit at 5. Turning to ¶ 27, the Plaintiffs assert that the Court should strike R. Lorett’s reference to a tender offer, because R. Lorett admitted in his deposition that he was not involved in the tender offer and does not understand the tender offer. See Reply to Motion to Strike Lorett Affidavit at 6. Also with regard to paragraph 27, the Plaintiffs urge the Court to strike R. Lorett’s statement concerning how much the Plaintiffs were paid for their shares. See Reply to Motion to Strike Lorett Affidavit at 6. According to the Plaintiffs, R. Lorett lacks any personal knowledge concerning the merger consideration paid for the shares and admitted during his Depo. that he relied on Boylan for this information. See Reply to Motion to Strike Lorett Affidavit at 6. The Defendants insist that the Court therefore strike R. Lorett’s statement about the payment amount and preclude R. Lorett from testifying at trial about the issue. See Reply to Motion to Strike Lor-ett Affidavit at 6.
Telescoping out, the Plaintiffs then-contend that the Court should strike the Lor-ett Aff. in its entirety, because R. Lorett’s multiple incompetent and potentially false statements impeach his credibility. See Reply to Motion to Strike Lorett Affidavit at 7. The Plaintiffs characterize R. Lorett’s affidavit as “untrue” and “without personal knowledge,” and insist that it is basic hornbook law that the Court must deny summaiy judgment and allow the case to proceed to trial if “ ‘the credibility of the movant’s witnesses is challenged the by the [sic] opposing part and specific bases for possible impeachment are shown ....’” Reply to Motion to Strike Lorett Affidavit at 7 (quoting 10A Wright, Miller & Kane, Federal Practice and Procedure 2726, at 446 (3d ed. 1998).
10. Plaintiffs’ Motion to Strike Affirmative Defenses.
The Plaintiffs filed Plaintiffs’ Motion to Strike Affirmative Defenses on November 4, 2015. The Plaintiffs ask the Court to strike the affirmative defenses that the Defendants raise in their two motions for summary judgment: (i) unclean hands; (ii) accord and satisfaction; (iii) acquiescence; (iv) acceptance; (v) waiver; (vi) laches; (vii) estoppel; (viii) and release. See Plaintiffs’ Motion to Strike Affirmative Defenses at 3. According to the Plaintiffs, each defense fails as matter of law, because and cannot succeed under any circumstances, because each depends on a false premise that the Plaintiffs voluntarily relinquished the right to bring breach of fiduciary duty claims when the Plaintiffs accepted the merger consideration in lieu of statutory appraisal. See Plaintiffs’ Motion to Strike Affirmative Defenses at 3. The Plaintiffs argue that the Delaware Court of Chancery held in In re JCC Holding Co. that a corporations’ controlling shareholders, directors, and officers cannot invoke any of the equitable defenses that the Defendants *903 adduce if they have adopted a self-interested merger at the minority shareholders’ expense. See Plaintiffs’ Motion to Strike Affirmative Defenses at B. Invoking In re Best Lock, the Plaintiffs contend that plaintiffs “who cho[o]se to forego the statutory appraisal remedy were entitled to receive the merger consideration for their shares regardless of the resolution of any equitable claims they cho[o]se to bring.” See Plaintiffs’ Motion to Strike Affirmative Defenses at 3 (quoting In re Best Lock, 845 A.2d 1057, 1078 (Del. Ch. 2001)(Chan-dler, V.C.)(emphases omitted). Moreover, the Plaintiffs maintain, the Plaintiffs’ did not waive their state and federal securities law claims, and Oklahoma common-law principles of equity and estoppel do not bar the Plaintiffs’ securities claims. See Plaintiffs’ Motion to Strike Affirmative Defenses at 5. Consequently, the Plaintiffs say, the Court should not only deny the Defendants’ Acquiescence MSJ and Defendants’ Estoppel MSJ, but also strike the Defendants’ affirmative defenses as insufficient as a matter of law under rule 12(f)(1) of the Federal Rules of Civil Procedure. See Plaintiffs’ Motion to Strike Affirmative Defenses at 5-6.
11. Defendants’ Response to Motion to Strike Affirmative Defenses.
The Defendants responded on November 5, 2015. See Defendants’ Response to Plaintiffs’ Motion to Strike Affirmative Defenses (Doc. 191), filed November 5, 2015 (Doc. 192)(“Defendants’ Response to Motion to Strike Affirmative Defenses”). The Defendants take issue with what the Defendants characterize as. the Motion to Strike Affirmative Defense’s untimeliness. See Defendants’ Response to Motion to Strike Affirmative Defenses 1-2.- The Defendants maintain that the Plaintiffs seek to eliminate defenses that have been part of the case since August 5, 2014—even though the rule 12(f)(2) deadline for challenging pleadings’ sufficiency was August 26, 2014—by resetting the clock with an amended complaint. See Defendants’ Response to Motion to Strike Affirmative Defenses at 2. The Defendants argue that the Plaintiffs “cannot reopen the long shut window to file a motion to strike by looking to Defendants’ Amended Answer (containing exactly the same affirmative defenses as pled in the August 2014 Original Answer),” and request that the Court “not permit such a manipulation of the Rules of Civil Procedure.” Defendants’ Response to Motion to Strike Affirmative Defenses 2-3.
The Defendants then highlight and heartily agree with the Plaintiffs’ characterization that the Motion to Strike Affirmative Defenses is “unnecessary.” Defendants’ Response to Motion to Strike Affirmative Defenses at 3 (quoting Motion to Strike Affirmative Defenses at 5 n.2). According to the Defendants, the Plaintiffs’ Motion to Strike Affirmative Defenses merely recites arguments that the Plaintiffs already made in opposing the Defendant's’ summary judgment motions. See Delaware Limited Liability Company Act at 3. The Defendants posit that the Court can strike the Defendants’ affirmative defenses “on its own” when addressing the summary judgment motions. Defendants’ Response to Motion to Strike Affirmative Defenses at 3 (citations omitted). The Defendants thus contend that the “Plaintiffs’ current Motion repeats points already argued, needlessly wastes the time of both parties and the Court, and should be denied for these reasons.” Defendants’ Response to Motion to Strike Affirmative Defenses at 3 (citing E.E.O.C. v. Unit Drilling Co., 2014 WL 2211011 , at *1 (N.D. Okla. 2014)(Kern, J.))(internal quotation marks omitted in- Response). The Defendants add that “a motion to strike is- strongly disfavored as a means of resolving disputes where, as here, facts outside the pleadings, such as those.on which Plaintiffs’ summary judgment briefs rest, need *904 to be considered.” Defendants Response to Motion to Strike Affirmative Defenses at 4.
Dovetailing with this latter argument, the Defendants contend that the Plaintiffs’ Motion to Strike Affirmative Defenses “im-permissibly relies on matters outside the pleadings.” Defendants’ Response to Motion to Strike Affirmative Defenses at 4. .The Defendants note that the Plaintiffs rely on their earlier arguments in response to the summary judgment motions, and assert that, under rule 12(f), a motion to strike defenses “must be based solely on the matters set forth in the pleadings themselves.” Defendants’ Response to Motion to Strike Affirmative Defenses at 4-5 (emphasis in original)(citing 5C Wright & Miller, Federal Practice and Procedure, § 1380, at 404). According to the Defendants, “Plaintiffs’ reliance on the facts they sought to marshal in opposition to Defendants’ summary judgment motions flouts this rule, and their Motion should be denied for this reason as well.” Defendants’ Response to Motion to Strike Affirmative Defenses at 5.
Finally, the Defendants aver that, should the Court consider the Motion to Strike Affirmative Defense’s merits, the Court-should nevertheless deny it. See Defendants’ Response to Motion to Strike Affirmative Defenses at 5. The Defendants posit that “Rule 12(f) permits the Court to strike only a defense that cannot succeed, as a matter of law, under any circumstances.” Defendants’ Response to Motion to Strike Affirmative Defenses at 5 (citing E.E.O.C. v. Unit Drilling Co., 2014 WL 2211011 , at *1). The Defendants note that their answer includes forty-five pages 'of factual allegations and say that, “[w]here factual allegations sufficient to support a defense have been made, it cannot be stricken.” Defendants’ Response to Motion to Strike Affirmative Defenses at 5 (citing Baum v. Faith Technologies, Inc., 2010 WL 2365451 , at *2 (N.D. Okla. 2010)(Eagan, C.J.)). In the Defendants’ view, their lengthy factual allegations “more than adequately support the ten affirmative defenses asserted.” Defendants’ Response to Motion to 'Strike Affirmative Defenses at 6.
12. Plaintiffs’ Reply to Motion to Strike Affirmative Defenses.
• The Plaintiffs replied on November 19, 2015. See Plaintiffs’ Reply Memorandum of Law in Further Support of Plaintiffs’ Motion to Strike Affirmative Defenses, filed November 19, 2015 (Doc. 200)(“Reply to Motion to Strike Affirmative Defenses”). The Plaintiffs contend that the Defendants’ affirmative defenses are foreclosed undér Delaware law, because a stockholder who accepts merger consideration in which they had no say “ ‘is not barred by the doctrine of acquiescence, or any other related equitable doctrine süch as waiver, from challenging the fairness of the merger.’ ” Reply to Motion to Strike Affirmative Defenses- at 1 (quoting In re JCC Holding Co. 843 A.2d 713, 721 (Del. Ch. 2003)(em-phasis omitted). Accordingly, the Plaintiffs contend, the Defendants’ affirmative defenses “are ‘legally unsupported,’ and ‘cannot succeed under any circumstances’ as a defense to Plaintiffs’ claims.” Reply to Motion to Strike Affirmative Defenses at 1 (quoting Birabent v. Hudiburg Auto Grp., Inc., 2012 WL 1438921 , at *2-3 (W.D. Okla. 2012)(Miles-LaGrange, C.J.)). The Plaintiffs assert that the Defendants are “[ujnable to refute that showing” and posit that, as a result, the Defendants instead focus on the Motion to Strike Affirmative Defenses’- timeliness and factual bases, while asserting-that the Motion to Strike Affirmative Defenses is “properly suited for decision via Defendants’ two summary judgment motions.” Reply to Motion to Strike Affirmative Defenses at 2 (quoting Response to Motion to Strike at l-2)(internal quotation marks omitted). The Plaintiffs address these arguments in turn.
*905 First, the Plaintiffs contend that they timely filed .the Motion to Strike Affirmative Defense. See Reply to Motion -to Strike at 2. The Plaintiffs' note ■ that the Defendants answered the Amended Complaint on October 14, 2015, and that the Plaintiffs moved to strike on November 4, 2015, within the 21-day window that rule 12(f)(2) allows for such a motion to be.filed. See Reply to Motion, to Strike Affirmative Defenses at 2. Contrary to the Defendants’ objection, the Plaintiffs assert that rule 12(f) does not qualify the 21-day window in the event that an answer to an amended complaint contains the same affirmative defenses as an answer to an original complaint, and that “the federal courts have resoundingly rejected Defendants’ .contention.” Motion to Strike Affirmative Defenses at 2 (citing, among others, F.D.I.C. v. Bayer, 2015 WL 686952 , at *1 (M.D. Fla. 2015)(Steele, J.)).
Second, the Plaintiffs contend that the Court “need not decide any 'factual issues to strike Defendants’ defenses as legally insufficient.” Reply to Motion to- Strike Affirmative Defenses at 3. Rather, the Plaintiffs argue, the Defendants’ affirmative défenses “must be stricken because they are facially insufficient as a matter of settled and authoritative law” under rule 12(f). Reply to Motion to Strike Affirmative Defenses at 3. The Plaintiffs argue that the Court need only consider (i) the Answer; and (ii) the Merger Agreement and Tender Offer, because those documents’ authenticity is “undisputed” and “are deemed incorporated by reference and properly considered in deciding the motion.” Reply to Motion to Strike Affirmative Defenses at 3 (citing, among others, Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). The Plaintiffs assert that these documents, along with the pleadings, “show that as a matter of law, all of Defendants’ defenses are foreclosed.” Reply to Motion to Strike Affirmative Defenses at 4. The* Plaintiffs reason, for éx-ample, that the acquiescence' defense is foreclosed under the Answer’s factual allegations, because the “Plaintiffs’ -receipt of the merger consideration unilaterally set by the Defendants cannot eliminate their claims against the controlling shareholders and directors charged with a fiduciary duty to protect Plaintiffs’ interests as minority shareholders when they adopted and approved the. transaction.” Reply to Motion to Strike Affirmative Defenses at 4-5 (relying on In re JCC Holding Co., 843 A.2d at 721 )(italics in the original). The Plaintiffs contend that “[njone of the ‘facts’ that Defendants purport to adduce in the pending motions” change that, in these circumstances, Delaware law forecloses equitable defenses' such as acquiescence. Reply to Motion to Strike Affirmative Defenses at 5. The Plaintiffs conclude that “what goes for acquiescence and waiver goes for ‘any other equitable doctrine’ such as unclean hands, accord and satisfaction, acceptance, laches, estoppel, and release.” Reply to Motion to Strike Affirmative Defenses at 6 (bolding omitted)(italics in the original).
Finally, the Plaintiffs argue that the Court should strike the Defendants’ defenses at this stage “to simplify trial.” Reply to Motion to Strike Affirmative Defenses at 7. The Plaintiffs assert that the Defendants’ motions for summary judgment “rest-.upon the same unsustainable legal contention as the affirmative defenses set forth in their Answer,” and that, consequently, “the same law requires striking these defenses also requires denial of Defendants’ motions.” Reply to Motion to Strike Affirmative Defenses at 7 (citations omitted). At the same time, the Plaintiffs contend that “[fit is not sufficient ... merely , to deny the motions.” Reply to Motion to Strike Affirmative Defenses at 7. The Plaintiffs request that the Court “strike the defenses at this juncture under *906 Rule 12(f) to eliminate any jury confusion at trial.” Reply to Motion to Strike Affirmative Defenses at 7 (citing, among others, New England Health Care Emp. Welf. Fund v. iCare Mgmt., LLC, 792 F.Supp.2d 269, 288 (D. Conn. 2011)(Haight, J.)).
13. 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. 48 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’s rapidly increasing cash flow as qualified income for the profitable MLP 49 IPO they planned to *907 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 910, 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, 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 independently determine fair value,' by itself, establishes their breach of duty, even if the Defendants believed that the price they offered was fair.' See Plaintiffs’ MSJ at 20-21. The Defendants 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 *908 trial the issue of damages. See Plaintiffs’ MSJ at 22.
14.. The Defendants’ Response, to the Plaintiffs’ MSJ, .
The Defendants filed Defendants’ Response in Opposition to Plaintiffs’ Motion-for Partial Summary Judgment on Breach of Fiduciary Duty Claims (Doc. 157) on October 6, 2015. See Defendants’ Response in Opposition to Plaintiffs’ Motion for Partial Summary Judgment on Breach, of Fiduciary Duty Claims, filed October 5, 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 estoppel bar the Plaintiffs’ breach-of-flduciary-duty claims; and (iv) the Plaintiffs have waived their breach-of-fíduciary-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 Defendants’ 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 to 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 the 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. *909 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 not to the formation of an 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)), 50 The Defendants insist that Stuart orchestrated the litigation after having (i) illicitly vied for control of TIR in 2012 and 2013; (ii) directly solicited TIR’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 laWj 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 733 (5th ed. 1984)). Drawing on a 1956 case from the Supreme Court of Oklahoma, the Defendants explain' that- “[ejquitable 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 352, 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,” (i) contributed 50.1% of their member interests in TIR LLC to Cypress Energy Partners Limited Partnership; and (ii) effected a sale of partnership units to the public pursuant to the Registration Statement. Respohse 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 con *910 sideration 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, 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 ).
15. 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 war-' ranting 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 fair value is “a quintessentially factual—and sharply-disputed— *911 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 fairnéss 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 Deféndants 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.
16. The Plaintiffs’ Motion in Limine to Preclude Evidence of the Plaintiffs’ Conduct.
The Plaintiffs filed Plaintiffs’ Motion In Limine to Preclude Evidence of Plaintiffs’ Conduct, and Brief in Support on October 26, 2015. See Plaintiffs’ Motion In Limine to Preclude Evidence of Plaintiffs’ Conduct, and Brief in Support, filed October 25, 2015 (Doc. 182)(“Plaintiffs’ Motion in Limine”). The Plaintiffs argue that the Court should preclude the . Defendants from offering, any evidence, testimony, or argument concerning: (i) the. Plaintiffs’ offers to sell their TIR shares to the Defendants, and Triangle Capital’s sales of TIR shares; (ii) alleged '“blackmail” or “threats”; (iii) prices the Plaintiffs paid for their TIR shares and post-merger Plaintiff communications; (iv) “certain irrelevant *912 and pejorative facts about plaintiffs contained in Defendants’ pretrial briefs”; and (v) improper evidence or argument based on the fact that the Plaintiffs were from the New York area rather than from Oklahoma. Plaintiffs’ Motion in Limine at 1. The Plaintiffs assert that the Court should exclude material related to these issue, because: (i) it is irrelevant under rule 402 of the Federal Rules of Evidence; (ii) it has a prejudicial effect that outweighs its probative value under rule 403 of the Federal Rules of Evidence; or (iii) in the alternative on the -specific issue of share sale price offers, it represents a compromise offer under rule 408 of the Federal Rules of Evidence. See Plaintiffs’ Motion in Limine at 1. As a codicil to this request, the Plaintiffs also ask the Court to exclude any settlement evidence that the Defendants may seek to introduce, under rule 408 of the Federal Rules of Evidence. See Plaintiffs’ Motion in Limine at 1-15.
17. The Defendants’ Response to the Plaintiffs’ Motion in Limine.
■ The Defendants filed Defendants’ Response to Plaintiffs’ Motion in Limine to Preclude Evidence of Plaintiffs Conduct (Doc. 193) on November 16, 2015. See Defendants’ Response to Plaintiffs’ Motion in Limine to Preclude Evidence of Plaintiffs Conduct (Doc. 182), filed November 16, 2015 (Doc. 193)(“Response to Plaintiffs’ Motion in Limine”). The Defendants deride the Plaintiffs’ motion as an attempt to Engineer a “one-sided trial in which Plaintiffs are entitled to accuse Defendants of inequitable conduct while Defendants are barred from presenting any evidence of Plaintiffs’ inequitable conduct.” Response to Plaintiffs’ Motion in Limine at 1. As the Defendants see it, the Plaintiffs’ security law claims require the Plaintiffs to establish their reliance on an alleged material misrepresentation, which necessarily involve an examination of the Plaintiffs’ actions, knowledge, and motives before, during, and-immediately after the merger. See Response to Plaintiffs’ Motion in Limine at 2. The Defendants therefore diagnose the Plaintiffs’ Motion in Limine as “dead on arrival,” as each of the broad evidentiary categories that- the Plaintiffs seek to exclude is probative of the Plaintiffs’ actions, knowledge, or motives surrounding the Plaintiffs’ acceptance of the merger consideration. Response to Plaintiffs’ Motion in Limine at 2. According to the Defendants, the Court should refrain from granting a motion in limine unless the moving party meets its burden of showing that the evidence in question is clearly inadmissible on all potential grounds—a burden that the Defendants insist the Plaintiffs do not meet. See Response to Plaintiffs’ Motion in Limine at 3.
Turning first to rule 408 of the Federal Rules of Evidence, the Defendants assert that that rule is inapplicable, because the communications at issue were between arm’s-length commercial parties engaged in business negotiations, i.e., not in settlement discussions in lieu of pending or imminent claims. See Response to Plaintiffs’ Motion in Limine at 4. If the Court were to adopt the Plaintiffs’ proposed scope of rule 408, the Defendants maintain, the Court wouid allow the exclusion to swallow the rule, creating a result in which the exclusion would apply to “virtually all contested commercial negotiations.” Response to Plaintiffs’ Motion in Limine at 4. Specifically regarding the Triangle' Capital’s 51 *913 sale of TIR shares for $451,000.00, the Defendants say that the Plaintiffs cannot ■wield rule 408 to exclude the material, because: (i) the Plaintiffs were not a party to that transaction; (ii) the issues involved are not being litigated.in this c

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7243346. Public record. Not legal advice.