SFF-TIR, LLC v. Stephenson

MEMORANDUM OPINION AND ORDER

James 0 Browning, UNITED STATES DISTRICT JUDGE

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

FACTUAL BACKGROUND

The Court adopts the factual background it previously stated in its Memorandum Opinion and Order, filed April 25, 2017 (Doc. 274). Defendant “Charles Stephenson is the owner of Regent Private Capital.” Defendants’ Motion for Summary Judgment on Acquiescence Defense and Brief in Support ¶ 1, at 7, filed April 3, 2015 (Doc. 83)(“Defendants’ Acquiescence *1153 MSJ”)(stating this fact). 1 See Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment on Acquiescence Defense ¶ 1, at 8, filed April 20, 2015 (Doc. 84)(“Response to Defendants’ Acquiescence MSJ”)(not disputing this fact). “Defendant Cynthia Field is the daughter of Defendant Charles Stephenson.” Plaintiffs’ Memorandum of Law in Support of Motion for Partial Summary Judgment on Breach of Fiduciary Claims ¶ 1, at 3, filed September 14, 2015 (Doc. 157)(“Plaintiffs’ MSJ”)(stating this fact). See Defendants’ Response in Opposition to Plaintiffs’ Motion for Partial Summary Judgment on Breach of Fiduciary Duty Claims (Doc. 157), at 2, filed October 5, 2015 (Doc. 170)(“Response to Plaintiffs’ MSJ”)(not disputing this fact). “Defendant Lawrence Field is the husband of Defendant Cynthia Field and the son-in-law of Defendant Charles Stephenson.” Plaintiffs’ MSJ ¶ 2, at 3 (stating this fact). See Response to Plaintiffs MSJ at 2 (not disputing this fact). “Defendant CEP-TIR, LLC[’s] ... principals are Defendants Stephenson, Cynthia Field and Peter Boylan, [sic] III.” Plaintiffs’ MSJ ¶ 3, at 3 (stating this fact). 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 *1154 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 ‘seasoned, successful, long-term investor with more than 40 years’ experience in business development, investment management, and corporate governance.’ ” Defendants’ Acquiescence MSJ ¶ 4, at 7 (stating this fact). 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, at 7 (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, *1155 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, 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)(brackets added). See Response to Defendants’ Acquiescence MSJ ¶ 1, at 8 (not disputing this fact). “In 2013, two TIR Inc. directors (Alan Stuart on the one hand and Lawrence Field on the other hand) [sought] to acquire control of TIR Inc.” Defendants’ Acquiescence MSJ ¶ 11, at 8 (stating this fact)(relying on Videotape Deposition of Rodney Reynolds Taken on Behalf of the Defendants (taken November 17, 2014), filed April 3, 2016 (Doc. 83-ll)(“Reynolds Depo.”). 10 “In June 2013, the Defendants [completed] the bidding *1156 process to acquire control of TIR Inc.” Defendants’ Acquiescence MSJ ¶ 13, at 8 (stating this fact)(relying on Affidavit of Randall Lorett, filed April 3, 2015 (Doc. 83-2)(“Lorett Aff.”). 11

“On June 26, 2013, Defendant CEP-TIR, LLC acquired 26.45 shares of TIR from certain other shareholders, known as the Pooled Shareholders, in voluntary sales transactions.” Plaintiffs’ MSJ ¶ 4, at 3 (emphasis in the original)(stating this fact). See Response to Plaintiffs’ MSJ at 2 (not disputing this fact). “Defendants subsequently referred to this share acquisition as the ‘Control Acquisition.’” Plaintiffs’ MSJ ¶ 5, at 3 (stating this fact). See Response to Plaintiffs MSJ at 2 (not disputing this fact). “Between June 2013 and October 2013, CEP-TIR LLC also [acquired] certain other outstanding shares of TIR.” Plaintiffs’ MSJ ¶ 6, at 3 (stating this fact). 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 *1157 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-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 “[T]he Plaintiffs, led by Alan Stuart, attempted to negotiate a sale of their minority block of shares to Cypress for a substantially higher share price.” Defendants’ Acquiescence MSJ. ¶ 19, at 9 (stating this fact). 16

“Following the June 26, 2013 Control Acquisition, and after certain resignations, *1158 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 (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 Ténder Offer [Letter from Cypress Energy Partners to Shareholders of Tulsa Inspection Resources, Inc. (dated October 31, 2013), filed September 15, 2016 (Doc. 158-3)(Terider Offer)] to TIR Inc.’s remaining shareholders, including the Plaintiffs, for $451,000.” Defendants’ Acquiescence MSJ ¶ 22, at 9 (stating this fact). See Response to Defendants’ Acquiescence MSJ ¶ 1, at 8 (not disputing this fact).

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

Defendants’ Acquiescence MSJ ¶23, at 9 (stating this fact)(relying on Videotaped Deposition of Anurag Agarwal (taken September 29, 2014), filed April 3, 2016(Doc. 83-20)(“Agarwal Depo. Ex. I”). 19 In a sec *1159 tion called “Certain Conflicts of Interest,” the Tender Offer states:

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

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

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

Plaintiffs’ MSJ ¶ 12, at 4 (stating, this fact)(internal citation omitted). See Response to Plaintiffs’ MSJ at 2 (not disputing this fact)..The merger between TIR, Inc. and TIR, LLC “enabled the Controlling Shareholder Defendants to exchange their own TIR shares for equity in the new entity, Defendant TIR LLC, in proportion to their prior shareholders in TIR.” Plaintiffs’ MSJ ¶ 15, at 4 (stating this fact). See Response to Plaintiffs’ MSJ at 2 (not disputing this fact). “The Merger was approved and carried out by the following Defendants: [ (i) ] The Controlling Shareholder Defendants, ie., Defendants CEP-T1R, LLC, Stephenson, and Cynthia Field; and [ (ii) ] TIR Directors Lawrence Field and Peter Boylan III ...Plaintiffs’ MSJ ¶ 16, at 4-5 (bullets and internal citations omitted)(stating this fact). See Response to Plaintiffs’ MSJ at 2 (not disputing this fact). “TIR’s Rule 30(b)(6) witness, Dan *1160 O’Keefe, admitted that because the Board composition had mot changed, the same conflicts of interest that existed at the time of the Tender Offer also existed at the time of the Merger.” Plaintiffs’ MSJ ¶ 18, at 5 (stating this fact). See Response to Plaintiffs’ MSJ at 2 (not disputing this fact). ’ •

'' “On November 13, 2013, Cypress Energy’s SEC Registration Statement containing the prospectus for the sale of partnership units in the master limited partnership became public.” Defendants’ Acquiescence MSJ ¶ 24, at 9 (stating this fact). See Response to Defendants’ Acquiescence MSJ ¶ 1, 8 (not disputing this fact). “Shortly after November 13, 2013, the Plaintiffs analyzed or had analyzed by one or more of their representatives the Registration Statement.” Defendants’ Acquiescence MSJ ¶ 25, at 9 (stating this fact). 20 “By November 26, 2013, the Plaintiffs had received and either personally reviewed the October 31 Tender Offer or had the October 31 Tender Offer reviewed by legal counsel or SFF-TIR, LLC on their behalf.” Defendants’ Acquiescence MSJ- ¶26, -at 9 (stating this fact). 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 111, at 8 (not disputing this fact). “The Plaintiffs could not have tendered their shares in response to the Tender Offer no matter what the Offer said or did not say; the Plaintiffs had contractually agreed prior to the Tender Offer not to sell their" TIR Inc. shares for less than $654,632.” Defendants’ Acquiescence MSJ ¶28, at 9 (stating this fact). 22 “By November 26, 2013, the Plaintiffs had received and either (i) per *1161 sonally reviewed or (ii) had reviewed by legal counsel or SFF-TIR, LLC on their behalf the Cypress Energy Partners Limited Partnership registration Statement.” Defendants’ Acquiescence MSJ ¶ 29, at 10 (stating this fact). 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 *1162 all were [sic] the ’highest numbers ■ [TIR] had historically” as of that time. Plaintiffs MSJ ¶ 26, at 6 (last set of bracketed material in the original)(stating this fact)(eiting O’Keefe Depo. at 297:16-299:13). See Response to Plaintiffs’ MSJ at 2 (not disputing1'this fact). “TIR did not do a valuation [to inform] its merger consideration offer.” Plaintiffs’ MSJ ¶ 27, at 6 (internal quotation marks omitted)(stating this- fact). 25 “Defendants- did not disclose to Plaintiffs TIR’s internal October and November 2013 financial statements ... showing record-breaking revenues or TIR’s November 16, 2013 management projections ... of even higher revenues through 2018.” Plaintiffs’ MSJ ¶ 28, at 6 (internal citations omittedXstating this fact). See Response'to Plaintiffs’ MSJ at 2 (not disputing this fact), “On November 26, 2013, the plaintiffs claimed each share of TIR Inc. was worth- $660,000,” Defendants’ Acquiescence MSJ ¶ 32j at 10 (stating this fact). 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 ‘

*1163 “The TIR Board unanimously approved the Merger in a consent dated December 9, 2013 signed by all three Directors.” Plaintiffs’ MSJ ¶ 19, at 5 (stating this fact). See Response to Plaintiffs’ MSJ at 2 (not disputing this fact). “CEP-TIR, LLC, Stephenson, and Cynthia Field, the majority shareholders in TIR, approved the Merger in a similar consent dated December 9, 2013 signed by all three of the majority shareholders.” Plaintiffs’ MSJ ¶20, at 5 (stating this fact). See Response to Plaintiffs’ MSJ at 2 (not disputing' this fact). “Plaintiffs were all minority shareholders of TIR at the time of the Merger, owning the 32.882 outstanding shares that were canceled by the Merger.” Plaintiffs’ MSJ ¶ 21, at 5 (stating this fact). See Response to Plaintiff’s MSJ at 2 (not disputing this fact). “The Merger Agreement stated in its ‘Governing Lav/ provision ... that ‘the provisions of this Agreement relating to mechanics or the effects of the Merger under Delaware law shall be governed by and construed and enforced in accordance with the laws of the State of Delaware.’ ” Plaintiffs’ MSJ ¶22, at 5 (stating this factXquoting Merger Agreement at § 8.04). 28

“On December 9,2013, Cypress and TIR exercised their statutory right to cash-out the Plaintiffs —” Defendants’ Acquiescence MSJ ¶ 34, at 10 (stating this fact)(relying on Notice to Former Shareholders of Tulsa Inspection Resources, Inc. of Shareholder Action and Appraisal Rights (dated December 11, 2013), filed April 3, 2015 (Doc. 83-27). 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 April 3, 2015 (Doc. 83-27), provides that:

For the avoidance of doubt, any former shareholder who surrenders his, her or its share certificate (or acceptable evidence of share ownership for payment of Merger Consideration pursuant to Section 2.02 [payment provisions], shall be deemed to have (a) accepted the Merger Consideration and (b) forever waived any appraisal rights pursuant to this Section 2.03 [provisions, respecting dissenting share], Section 1091 of the *1164 [Oklahoma General corporation Act], or otherwise.

Defendants’ Acquiescence MSJ ¶ 38, at 11 (citing Ágarwal Depo. Ex. 7)(stating this fact). See Response to Defendants’ Acquiescence MSJ ¶ 1, at 8 (not disputing this fact). “On December 18-20, 2013, each Plaintiff delivered his or its TIR Inc. share certificates to the Defendant CEP-TIR, along with stock powers, pursuant to the provisions of the Merger Agreement.” Defendants’ Acquiescence MSJ ¶39, at 11 (stating this fact). 30 “On December' 23, 2013, the Defendant TIR LLC paid ... Plaintiffs ... the $451,000 per share Merger Consideration.” -Defendants’ Acquiescence MSJ ¶'40, at 11 (stating this fact). 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 *1165 9, 2013 (the date on which the Merger was consummated) and as of December 18-20, 2013 (the date on which the Plaintiffs surrendered their TIR Inc. shares ...), the Plaintiffs knew the transactions by which the Defendants acquired controlling shares of TIR, Inc. and the prices paid for those shares.” Defendants’ Acquiescence MSJ ¶ 42, at 11 (stating this fact). 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 faet)(relying on Allen Depo. at 108:3—112:3). 34

*1166 As of December 9, 2013 (the date on which the Merger was consummated) and as of December' 18-20, 2013 (the date on which the Plaintiffs surrendered their TIR Inc, shares .-..), the Plaintiffs knew the intentions of the Defendants respecting the organization of a master limited partnership, the exchange of shares of TIR Inc. for units of owner? ship in the. master limited partnership, and an initial public offering of units of ownership in the master limited partnership.

Defendants’ Acquiescence MSJ ¶ 44, at 12 (stating, this fact)(relying on Allen Depo. at 191:8-193:4). 35

*1167 As of December 9, 2013 (the date on which the Merger was consummated) and as of December 18-20, 2013 (the date on which the Plaintiffs surrendered their TIR Inc. shares ...), the Plaintiffs knew the Defendants had not performed or commissioned any appraisal, or engaged any independent financial advisor or other third party to perform any valuation analysis or provide any opinion respecting the value of the TIR, Inc. shares.

Defendants’ Acquiescence, MSJ ¶ 45, at 12 (stating this fact)(relying on Alíen Depo. at 99:5-104:24, Agarwal Depo. at 42:1—44:17, and Agarwal Depo. Ex. I). 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, *1168 2013 (the date on which the Merger was consummated) and as of December 18-20, 2013 (the date on which the Plaintiffs surrendered their TIR Inc. shares ...), the Plaintiffs knew the Defendants had not formed a special committee to consider the proposed Merger.” Defendants’ Aequies-cence MSJ ¶ 47, at 12 (stating this fact)(relying on Allen Depo. at 272:3-273:17). 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 state *1169 ments of TIR Inc. for 2011 and 2012, and for the nine month period ending September 30, 2013.

Defendants’ Acquiescence MSJ ¶ 48, at 12 (stating this fact)(relying on Allen Depo.- at 83:18-84:1, 223:21-224:3). 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 Inc. shares to obtain the Merger consideration), the Plaintiffs had received the Registration Statement.” Defendants’ Acquiescence MSJ ¶ 49, at 12 (stating this fact)(relying on Allen Depo. at 194:2-11). 40

*1170 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 fact)(relying on Complaint, filed July 3,2014 (Doc. I)). 42

*1171 On February 4, 2014, Plaintiff SFF-TIR, ■ LLC by its Managing Member, Alan Stuart, sent a letter to the investors in Plaintiff SFF-TIR in the form and content of [Letter from Alan Stuart to SFF-TIR, LLC investors (dated February 12, 2014), filed April 3, 2015 (Doc. 83-31)(“Letter to SFF-TIR, LLC Investors”) ], which stated, in part, as follows

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

Defendants’ Acquiescence MSJ ¶ 53, at 13 (stating this fact)(quoting Letter to SFF-TIR, LLC Investors 1, filed April 3, 2015 (Doc. 83—32)). 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 60.1% of the member interest in TIR LLC to Cypress Energy Partners Limited Partnership, and Cypress Energy Partners Limited Partnership effected a sale of partnership units to the public pursuant to the Registration Statement.

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

PROCEDURAL BACKGROUND

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

*1172 1. Plaintiffs’ Motion for Partial Summary Judgment on Breach of Fiduciary Duty Claims.

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

In relation to these claims, the Plaintiffs first petition the Court to grant partial summary judgment holding that the entire-fairness standard governs the merger, because the merger was a self-dealing transaction. 44 See Plaintiffs’ MSJ at 9-10. The Plaintiffs insist that a showing of self-dealing suffices to require the Court to apply the entire-fairness doctrine, see Plaintiffs’ MSJ at 11, and that the undisputed material evidence shows that the merger was self-dealing, as corporate fiduciaries stood on both sides of the transaction and—the Plaintiffs assert—did nothing to disable themselves from this conflict, See Plaintiffs’ MSJ at 12-13. The need for the entire-fairness standard to apply is especially acute in this case, the Plaintiffs contend, because (i) the Defendants had a direct interest in making the “fair value” as low as possible as owners and directors of the surviving entity, Plaintiffs’ MSJ at 13; and (ii) the Defendants made a determination to allocate different consideration to themselves and to the Plaintiffs when they obtained for themselves the benefit of TIR, Inc.’s rapidly increasing cash flow as qualified income for the profitable MLP 45 IPO they *1173 planned to conduct and to award themselves equity in that public entity while denying the same benefit to the Plaintiffs, see Plaintiffs’ MSJ at 13-14.

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

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

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

The Defendants filed the Defendants’ Response in Opposition to Plaintiffs’ Mo *1174 tion for- Partial Summary Judgment on Breach of Fiduciary Duty Claims (Doc, 157) on October 5, 2015. See Defendants’ Response in Opposition to Plaintiffs’Motion for Partial Summary Judgment on Breach of Fiduciary Duty Claims, filed October 6, 2015 (Doc. 170)(“Response to Plaintiffs MSJ”). The Defendants argue that the Court should deny the Plaintiffs’ MSJ for four reasons: (i) the Plaintiffs, being fully informed, acquiesced in the merger and cannot now be heard to challenge it; (ii) the undisputed facts establish that the merger process was fair' as a result of the statutory appraisal which was the Plaintiffs’ exclusive remedy; (iii) Oklahoma common-law clean-hands doctrine and the Oklahoma common law of éstoppel bar the Plaintiffs’ breach-of-fiduciary-duty claims; and (iv) the Plaintiffs have waived their breach-of-fiduciary-duty claims contractually and by conduct under the Oklahoma common law of waiver. See Response to Plaintiffs’ MSJ at 7.

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

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

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

*1175 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)). 46 The Defendants insist that Stuart orchestrated the litigation after having (i) illicitly vied for TIR, Inc.’s control of in 2012 and 2013; (ii) directly solicited TIR, Inc.’s shareholders; (iii) attempted' to hold the merger hostage with the end of extracting a higher price; and (iv) delivering his shares—with braggadocio—when he discovered that he lacked veto power over the merger. See Response to Plaintiffs’ MSJ at 17. The Defendants urge the Court not to lend its aid to one who allegedly “has been guilty of such inequitable conduct.” Response to Plaintiffs’ MSJ at 17.

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

As the Defendants see it, the Plaintiffs also waived their breach-of-fiduciary-duty claims contractually and by conduct under the Oklahoma common law of waiver. See Response to Plaintiffs’ MSJ at 18. Under Oklahoma law, the Defendants say, waiver is the “intentional relinquishment of a known right.” Response to Plaintiffs’ MSJ at 18 (citing Barringer v. Baptist Healthcare of Okla., 2001 OK 29 , 22 P.3d 695, 700 ). Dusting off a Supreme Court of Oklahoma case from nearly a century ago, the Defendants explicate that waiver “may be achieved contractually, provided that the contract is founded on a valuable consideration and made by the party whose benefit is being waived.” Response to Plaintiffs’ MSJ at 18 (citing Smith v. Minneapolis Threshing Mach. Co., 1923 OK 84 , 89 Okla. 156 , 214 P. 178 , 214 P.2d 178 , 180). The Defendants then intone their, earlier repeated assertion that, in December, 2013, *1176 the Plaintiffs delivered their share certificates to the Defendants “to induce the Defendants to pay the Merger consideration,” and in accordance with a merger agreement that expressly provided that any former shareholder who surrendered share certificates would be deemed to have forever waived any appraisal rights “pursuant to the Oklahoma appraisal statute or otherwise.” Response to Plaintiffs’ MSJ at 18. Extending their argument on this point, the Defendants insist that the Plaintiffs'even waived their right to a quasi-appraisal under Oklahoma common law, as delivering the share certificates and accepting merger consideration for them constitutes an implied waiver in Oklahoma. See Response to Plaintiffs’ MSJ at 19 (citing Barringer v. Baptist, 22 P.3d at 701 ).

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

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

Turning to the fair price issue, the Plaintiffs insist that fair price is relevant only to the amount of damages which the Defendants must pay on account of their failure to deal fairly with the Plaintiffs. See Reply to Plaintiffs’ MSJ at 6. For three reasons, the Plaintiffs insist, the fair price issue is not before the Court on the Plaintiffs’ MSJ or on any other pending motion, and must abide trial. See Reply to Plaintiffs’ MSJ at 6. First, the Plaintiffs note, neither the Plaintiffs nor the Defendants has moved for summary judgment on fair price, and fan- value is “a quintessentially factual—and sharply-disputed— issue, which can only be resolved at trial by expert testimony.” Reply to Plaintiffs’ MSJ at 6. Second, the Plaintiffs contend, the Defendants fail to address the underlying procedure used to adopt the merger. See Reply to Plaintiffs’ MSJ at 6. Third, the Plaintiffs emphasize, fiduciaries em *1177 ploying grossly inadequate process can be found liable even if the transaction price might otherwise be considered fair. See Reply to Plaintiffs’ MSJ at 6 (citing In re Nine Sys. Corp. S’Holders Litig., 2014 WL 4383127 , at *47 (Del. Ch. Sept. 4, 2014)).

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

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

4. December. 28, 2016 Hearing.

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

*1178 The Court first asked the Plaintiffs what the factual basis is for the Plaintiffs’ MSJ. See Tr. at' 508:10-12 (Court). The Plaintiffs responded that the Plaintiffs’ MSJ is based entirely on undisputed facts, but they did not immediately accept the Court’s invitation to describe what those facts are. See Tr. at 508:21-509:25 . (Kagen), Instead, the Plaintiffs summarized for the Court the three orders that they were seeking to obtain in the Plaintiffs’ MSJ. See Tr, at 509:1-510:5 (Kagen). First, the Plaintiffs said, they wanted an order that says that the entire-fairness standard governs the Plaintiffs’ claims for breach of fiduciary duty—standard that the Plaintiffs asserted the Defendants have conceded applies. See Tr. at 509:1-9 (Kagen). Second, the Plaintiffs indicated, they want an order that the Defendants bear the burden of proof that the merger was entirely fair to the minority shareholders, he., that it was the product of both fair dealing and fair price. See Tr. at 509:10-15 (Kagen). (Third, the Plaintiffs stated, they want an order that the Defendants are liable for breaching their duty of entire fairness, because the undisputed material facts shows that the Defendants have not and cannot meet their burden to show fair dealing. See Tr. at 509:22-510:2 (Kagen). According to the Plaintiffs, they séek to reserve for trial the issue of damages resulting from that breach of fiduciary duty. See Tr. at 510:2-5 (Kagen).

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

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

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

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

MR. DEMURO: Correct.

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

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

Tr. at 510:23-511:8 (Court, DeMuro). Inquiring about the Defendants’ assertion that'they might still quibble what the jury instruction looks like regarding the entire fairness standard and from-what specific case law the jury ■ instruction would be pulled, the Court asked the Defendants whether their quibble would just be about the Defendants’ liability under,'the entire-fairness standard. See Tr. at 511:9-10 (Court). The Defendants responded “that’s the claim, yes.” Tr. at 511:11 (DeMuro). The Court then turned to the Plaintiffs and asked whether, in writing its opinion, it could subsume all the facts relevant to the Plaintiffs’ MSJ into the factual sections combined from the Defendants’ two summary judgment -motions so that it might *1179 write one opinion to decide all the motions which the Court had heard over the previous two days. See Tr. at 511:18-513:7 (Court). The Defendants asserted that the Court could not glean sufficient facts about the merger’s history from the. Defendants’ summary judgment motions to accomplish that feat; the Court, the Plaintiffs asserted, needs also to incorporate facts from Plaintiffs’ MSJ. See Tr. at 512:8-516:24 (Kagen). As one example, the Plaintiffs said, if entire fairness rather than the business-judgment rule applies, then the burden to prove entire fairness shifts to the Defendants from the case’s beginning to its ' end. See Tr. at 518:10-521:4 (Ka-gen)(citing In re Nine Systems, affirmed in Fuchs v. Wren Holdings, LLC, 129 A.3d 882 (Del. 2015). 47 As another example, the Plaintiffs continued, the facts in the Defendants’ two summary judgment motions do not provide sufficient detail about the parties involved for the Court to see—or in the Plaintiffs’ opinion, to show—how none of the individual Defendants was a disinterested actor in the merger transaction. See Tr. at 521:5-523:19 (Kagen).

Veering a bit from the question at that point, the Plaintiffs began to delve into their legal arguments regarding the liability issue in Plaintiffs’ MSJ. See Tr. at 523:20 (Kagen). The Plaintiffs asserted that, because the Defendants were not disinterested actors in the merger transaction, Delaware law required them to put into place protections to safeguard minority shareholders’ rights at the time of the merger on December 9,'2013. See Tr. at 524:4-546:13 (Kagen)(citing In re Cornerstone Therapeutics Inc., Stockholder Litig., 115 A.3d 1173 (Del. 2015); In re Sunbelt Beverage Corp. S’holder Litig., 2010 WL 26539 (Del. Ch. Jan. 5, 2010)(Chandler, C.), as revised Feb. 15, 2010; Weinberger v. UOP, Inc., 457 A.2d 701 (Del. 1983); Zutrau v. Jansing, 2014 WL 3772859 (Del. Ch. July 31, 2014)(Parsons, V.C.); and Rice 48 ). The Plaintiffs, maintained that the Defendants did not “have to follow a particular recipe” when it came to designing or implementing these protections, but that the Defendants needed to take some protections to avoid entire-fairness review. Tr. at 526:14-18 (Kagen). The Plaintiffs alleged, however, that the Defendants took no prophylactic actions to protect minority shareholders’ rights at all, See Tr. at 526:18-24 (Kagen). On account of this lack of prophylactic action and what the Plaintiffs asserted is the Defendants’ inability to demonstrate fair process, the Plaintiffs contended that Delaware law says that liability attaches to the Defendants. See Tr. at 527:10-528:23 (Ka-gen)(citing In re Trados Inc. S’holder Litig., 73 A.3d 17 (Del. Ch. 2013)(Laster, V.C.); Owen v. Cannon, 2015 WL 3819204 (Del. Ch. June 17, 2015)(Bouchard, C.); In re Celera Corp.; and Lampton Welding Supply Co. v. Stobaugh, 2012 WL 5398790 (N.D. Okla. Nov. 2, 2012)(Kern, J.))). After offering the Court, their thoughts on how the opinion should .be structured, the Plaintiffs then concluded their argument. See Tr. at 530:1 (Kagen). The Court then asked the Defendants the same question it had asked the Plaintiffs—whether the Defendants objected to the Court’s plan to pull the facts from the-Plaintiffs’ MSJ into one factual pool along with the facts from the Defendants’ two summary judgment motions. See Tr. at 530:5-13 (Court). The Defendants responded that this approach *1180 is identical to the approach that they would take were they the Court. See Tr. at 530:14-533:2 (DeMuro).

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

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

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

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

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

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

5. Memorandum Order and Opinion.

The Court published the Memorandum Opinion and Order which the Defendants move the Court to reconsider on April 25, 2017. See SFF-TIR, LLC v. Stephenson, 250 F.Supp.3d 856, 867 , 2017 WL 1487439, *1181 at *1 (D.N.M. April 25, 2017)(Browning, J.)(“MO”). The MO resolved six motions, turning therefore to an analysis of the Plaintiffs’ MSJ on the MO’s page 308. See MO at 303, 250 F.Supp.3d at 1045-46 , 2017 WL 1487439, at *133 . The Court granted the Plaintiffs’ request for summary judgment, concluding that: (i) the entire fairness standard governs the Plaintiffs’ claims for breach of fiduciary duty; (ii) the Defendants bear the burden of proof that the merger was entirely fair to the minority shareholders; and (iii) the Defendants are liable for breaching their duty of entire fairness, because the undisputed material facts show that the Defendants did not put into place sufficient safeguards protecting minority shareholder rights to meet this burden. See MO at 303, 250 F.Supp.3d at 1045-46 , 2017 WL 1487439, at *133 . The Court concluded, however, that the Plaintiffs’ and the Defendants’ competing valuation assumptions, models, projections, and experts do not allow the Court to calculate damages at the time the Court issued the MO. See MO at 303, 250 F.Supp.3d at 1045-46 , 2017 WL 1487439, at *133 . Accordingly, the Court left a determination of damages to be resolved at trial. See MO at 303, 250 F.Supp.3d at 1045-46 , 2017 WL 1487439, at *133 .

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

The Court then assessed the Delaware Supreme Court’s holding four years after Weinberger v. UOP, Inc. in Bershad v. Curtiss-Wright Corp., 535 A.2d 840 (1987). See MO at 278, 250 F.Supp.3d at 1031-32 , 2017 WL 1487439, at *122 . Contrasting the defendants in Weinberger v. UOP, Inc. with the defendants in Bershad, the Court indicated that the defendant company in Bershad took multiple steps to safeguard minority shareholders’ rights during the merger process before they were cashed out. See MO at 278, 250 F.Supp.3d at 1031-32 , 2017 WL 1487439, at *122 (citing Bershad, 535 A.2d passim). The Court recounted that at the same meeting in which the defendant board of directors in. Bershad decided that a merger might be beneficial, it hired a nationally-recognized investment bank the proposed cash-out share offer price’s fairness. See MO at 278, 250 F.Supp.3d at 1031-32 , 2017 WL 1487439, at *122 . After the investment bank had reported its independent opinion that the cash-out share offer price was fair, the Court continued, the defendant board of directors in Bershad scheduled a shareholder meeting at which a large majority of the. company’s minority shareholders approved of the merger. See MO at 278-79, 250 F.Supp.3d at 1031-32 , 2017 *1182 WL 1487439, at *122 (citing Bershad, 535 A.2d at 843 ).

The Court consequently determined that the Bershad court did not diverge from Weinberger v. UOP, Inc.’s rule that the entire fairness test should apply in cash-out mergers, instead holding that the entire fairness -standard is. necessary to ‘“protect those rights of minority shareholders which have been, tainted with unfairness.’” MO at 279, 250 F.Supp.3d at 1032 , 2017 WL 1487439, at *122 (quoting Bershad, 535 A.2d at 848 ). The Court nevertheless identified a twist in Bershad, i.e., that in a merger case in which the defendant company put substantial structures in place to ensure that a controlling shareholder did not steamroll minority shareholders, the defendants ‘“retain the burden of proving complete disclosure of ail material facts relevant to the merger vote.’ ” MO at 279, 250 F.Supp.3d at 1032 , 2017 WL 1487439, at *122 (quoting Bershad, 535 A.2d at 846 ). The Court read Bershad to shift the entire-fairness burden onto a case’s plaintiffs, however, if a case’s defendants prove complete disclosure of all material facts relevant to the merger-vote. See MO at 279, 250 F.Supp.3d at 1031-32 , 2017 WL 1487439, at *122 (citing Bershad, 535 A.2d at 846 ), Phrasing the same conclusion another way, the Court said that a case’s plaintiff must—under such circumstances—bear the burden of proving that the challenged merger was not entirely fair. See MO at 279, 250 F.Supp.3d at 1031-32 , 2017 WL 1487439, at *122 (citing Bershad, 535 A.2d at 846 ).

Analyzing twenty-eight subsequent cases from the Delaware Courts of Chan-eery, the Court concluded that three decades of Supreme Court of Delaware and Delaware Court .of Chancery cases show that Bershad has withstood the test of time. See MO at 279-282, 250 F.Supp.3d at 1031-33 , 2017 WL 1487439, at *122-23 . The Court considered it telling,-however, that the Supreme Court of Delaware also had not dismantled limits on Bershad that nineteen Delaware Courts of Chancery cases had placed on the Bershad opinion over a span of thirty years. See MO at 281-282, 250 F.Supp.3d at 1032-33 , 2017 WL 1487439, at *123 . The Court interpreted that silence as a textbook example of the dog that did not bark. 49 See MO at 282, 250 F.Supp.3d at 1031 -32 & n.101, 2017 WL 1487439 , at *122 & n.101. The Court accordingly determined that both the Ber-shad frame and subsequent Delaware Court of Chancery decisions that filled in the jigsaw puzzle of Delaware cash-out merger law indicate that the Court needed to apply the entire-fairness standard when it assesses the-merger that the Plaintiffs’ contest in this case. See MO at 282, 250 F.Supp.3d at 1032-33 , 2017 WL 1487439, at *123 .

The Court then concluded that under Delaware’s entire-fairness standard, the burden of proving that the merger transaction was the product of both fair price and fair dealing defaults to the Defendants. See MO at 282, 250 F.Supp.3d at 1033-34 , 2017 WL 1487439, at *124 . The Court then listed two conditions under which the Court may shift the burden of evidence for proving entire fairness to a plaintiff: (i) the defendants set up a well- *1183 functioning committee of independent directors to examine and approve the merger; or (ii) a fully informed majority of the minority shareholders vote to approve the merger. See MO at 282, 250 F.Supp.3d at 1033-34 , 2017 WL 1487439, at *124 (citing Kahn v. Lynch Communication Systems, Inc., 638 A.2d 1110 (Del. 2014); In re PNB Holding Co. Shareholders Litigation, 32 Del. J. Corp. L. 654 (2006)(Strine, J.); Clements v. Rogers, 790 A.2d 1222 (2001)(Strine, J.)) Noting that this case’s Defendants satisfied neither criterion that the Court deemed necessary to shift the evidentiary burden, the Court concluded that the evidentiary burden for proving the merger’s entire fairness remains with the Defendants. See MO at 283, 250 F.Supp.3d at 1033-34 , 2017 WL 1487439, at *124 .

■ The Court then highlighted that the Defendants had agreed with the Plaintiffs at the December, 2016 motion hearing that, if the Court were to deny the Defendants’ Acquiescence MSJ' outright, that the entire-fairness standard applies to the Plaintiffs’ fiduciary duty claims. See MO at 304, 250 F.Supp.3d at 1046-47 , 2017 WL 1487439, at *134 (citing Transcript of Hearing Before the Honorable James O. Browning, United States District Judge, December 28, 2016, at 510:10-19 (DeMu-ro), filed January 23. 2017 (Doc. 250)). The Court then reproduced the following short exchange from the December, 20Í6 hearing on this point, deeming that exchange to be important:

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

MR. DEMURO: Correct.

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

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

MO at 304, 250 F.Supp.3d at 1046-47 , 2017 WL 1487439, at *134 (quoting Dec. Tr. at 510:23-511:8 (Court, DeMuro)). The Court then recounted that when it inquired about the Defendants’ assertion that they might still quibble what the jury instruction looks like regarding the entire-fairness standard and from what specific case law the jury instruction would be pulled, the Court had asked the Defendants whether their quibble would just be about the Defendants’ liability under the entire-fairness standard. See MO at 304, 250 F.Supp.3d at 1046-47 , 2017 WL 1487439, at *134 (citing Dec. Tr. at 511:9-10 (Court)). The Court noted that the Defendants confirmed that this characterization was correct. See MO at 305, 250 F.Supp.3d at 1046-47 , 2017 WL 1487439, at *134 (citing Dec. Tr. at 511:11 (DeMuro)). Seeing “no sound reason to manufacture a controversy or disagreement between the parties,” see MO at 305, 250 F.Supp.3d at 1046-47 , 2017 WL 1487439, at *134 , the Court concluded that: (i) the entire-fairness standard applies to the Plaintiffs’ fiduciary duty claims; and (ii) the Defendants bear the burden of proving that the merger satisfies the entire-fairness standard with respect to the Plaintiffs’ fiduciary-duty claims, see MO at 305, 250 F.Supp.3d at 1046-47 , 2017 WL 1487439, at *134 .

Applying the entire-fairness standard to the case’s facts, the Court then determined that the Defendants are liable “for breaching their duty of entire fairness, because the undisputed material facts show that the Defendants did not put into place sufficient safeguards protecting minority shareholder rights.” MO at 305, 250 F.Supp.3d at 1046 , 2017 WL 1487439, at *134 (capitalization omitted). The Court noted that.a breach of fiduciary duty, un *1184 der Delaware law, requires proof both that (i) a fiduciary duty existed; and (ii) the defendant breached that duty. See MO at 305, 250 F.Supp.3d at 1046-47 , 2017 WL 1487439, at *134 (citing In re Mobilactive Media, LLC, 2013 WL 297950 (Del. Ch. January 25, 2013)(Parsons, V.C.); Palmer v. Reali, 211 F.Supp.3d 655, 665 (D. Del. September 29, 2016)(Robinson, J.)(applying Delaware law)). Describing these two elements in greater detail, the Court explained:

The entire fairness standard satisfies the first element by requiring a company to ensure that minority shareholders receive fair dealing and a fair price is the company cashes out their shares in a merger’s wake. The Defendants can only avoid satisfying the second element in this case if they plausibly can show that they offered the Plaintiffs both fair dealing and fair price in the merger transaction. Under the entire fairness standard, the Defendants could show fair dealing under the following conditions: (i) the Defendants set up a well-functioning committee of independent directors to examine and approve the merger; or (ii) a fully-informed majority of the minority shareholders voted to approve the merger.

MO at 305-06, 250 F.Supp.3d at 1047 , 2017 WL 1487439, at *134 (citing Kahn v. Lynch Communication Systems, Inc., 638 A.2d 1110 (Del. 1994); In re PNB Holding Co. Shareholder Litigation, 32 Del. J. Corp. L. 654 (2006)(Strine, J.); Clements v. Rogers, 790 A.2d 1222 (2001)(Strine, J.)). The Court then concluded that the Defendants satisfied neither criterion needed to shift the evidentiary burden. See MO at 306, 250 F.Supp.3d at 1048-49 , 2017 WL 1487439, at *135 . The Court noted that the Defendants did not form a special committee to consider the merger or schedule and hold a minority shareholder vote on the merger. See MO at 306, 250 F.Supp.3d at 1048-49 , 2017 WL 1487439, at *135 . Accordingly, the Court granted the Plaintiffs’ request for summary judgment on the Defendants’ liability for breaching their “fiduciary duty of fair dealing with respect to the merger transaction.” MO at 307, 250 F.Supp.3d at 1048 , 2017 WL 1487439, at *135 .

The Court was not ready, however, to grant the Plaintiffs’ request for summary judgment on damages, indicating that the Plaintiffs’ and Defendants’ competing valuation assumptions, models, projections, and experts did not allow the Court to calculate damages at the time it issued the MO. See MO at 307, 250 F.Supp.3d at 1048-49 , 2017 WL 1487439, at *135 . The Court wrote that the Defendants failed to hire an investment bank to appraise TIR, Inc. shares’ fair value at the time the merger was effected and that the Plaintiffs involuntarily cashed out their shares. See MO at 307, 250 F.Supp.3d at 1048-49 , 2017 WL 1487439, at *135 (citing Dec. Tr. at 138:10-12 (DeMuro)). Complicating proper valuation further, the Court said, were TIR, Inc.’s rapid growth after the time of the board member bidding war and contestable assumptions and classifications built in the parties’ competing discounted cash flow models:

Delaware requires the discounted cash flow model, because it looks at the company’s future earning value in a systematic and methodical way, and then discounts that value to net present value, discounting the money’s time value and capital’s weighted average cost. In this case, however, the share valuation math is less clear cut than the share valuation law. The DCF model incorporates substantial amounts of math complete with a fraternity’s worth of Greek letters to camouflage relatively straightforward computation. The final summation is at best only as precise, however, as its least precise input. Moreover, precision is not the same as accuracy. This lack of equivalence between precision and accu *1185 racy is especially probable when a model uses multiple inputs, the parameters, values, or weights of which incorporate an element of subjective choice.

The valuation issue in this case therefore presents an analytical challenge, because (i) each variable in the DCF model leaves an appraiser with a degree of discretion to choose rates or coefficients that he or she concludes best fits [sic] present data and future trends; and (ii) TIR’s status as a pipeline inspection company within the oil and gas industry leaves some [question] as to the proper SIC code for appraisers to use when computing TIR’s cost of capital.

MO at 308, 250 F.Supp.3d at 1048-49 , 2017 WL 1487439, at *135-36 (citations omitted).

6. Motion for Reconsideration.

The Defendants filed their Motion for Reconsideration on May 9, 2017, requesting that the Court reconsider its (i) Order; and (ii) Memorandum Opinion and Order to the extent relevant to the Defendants’ alleged breach of fiduciary duty. See Motion for Reconsideration at 1. According to the Defendants, the Court committed three errors of law in its Order and MO. See Motion for Reconsideration at 1. First, the Defendants assert, the Order and MO “implicitly and erroneously assume the entire fairness doctrine is a liability-imposing device rather than a burden of proof shifting standard of review.” Motion for Reconsideration at 1. Second, the Defendants maintain, the Order and MO

implicitly reject the settled law that the entire fairness doctrine is a unitary test based upon an analysis of both the fairness of the process and the fairness of the price, with: (i) fairness of price being the predominant consideration; and (ii) a finding of a “grossly unfair” process being a condition precedent to breach of fiduciary duty where the price is fair.

Motion for Reconsideration at 1 (emphases in original). Third, the Defendants contend, the Order and MO fail, on a motion for summary judgment, to: (i) “resolve all reasonable inferences and doubts in Defendants’ favor; and (ii) construe all evidence in the light most favorable to Defendants.” Motion for Reconsideration at 1.

In a quick preface, they maintain that they never have shied away from their burden to establish the merger’s fairness under the entire fairness doctrine. See Motion for Reconsideration at 2. That asserted alacrity notwithstanding, the Defendants maintain that they do not accept the Court’s conclusion that the Defendants have breached a fiduciary duty, because they did not (i) “buy” an independent appraisal; (ii) establish a fully functioning independent committee; or (iii) obtain a majority of a minority vote. Motion for Reconsideration at 2. The Defendants do not dispute that they failed to convene an independent committee immediately before the Merger, but insist that TIR, Inc. appointed an independent committee to represent TIR, Inc.’s and shareholders’ interests in connection with the 2013 auction between Stuart and Cypress Energy Partners. See Motion for Reconsideration at 2 n.4. The Defendants also do not dispute that they failed to hold a vote of the minority shareholders immediately before the Merger, averring nonetheless that, “for all practical purposes, a majority of the minority did approve the cash-out merger” insofar as “a majority of all TIR shareholders (excluding Defendants) voluntarily sold their shares to Defendants at, or below, the premium $451,000 cash-out merger price.” Motion for Reconsideration at 2 n.5.

The Defendants then contend that they exercised their statutory right to effect a merger in which the Plaintiffs were cashed out by written consent and after-the-fact *1186 written notice to the Plaintiffs. See Motion for Reconsideration at 2. The Defendants report that Oklahoma law expressly grants their right to conduct a cash-out merger in such a way. See Motion for Reconsideration ¡at 2-3. The Defendants reason that they especially had a right to exercise their statutory right , where the Plaintiffs, being fully informed of all material facts: (i) had been offered the opportunity to participate in the Cypress Energy Partners IPO business plan; (ii) rejected the Cypress Energy Partners MLP IPO business plan; (iii) agreed to a winner-take-all auction and then reneged on their' agreement; (iv) attempted and failed to take control of TIR, Inc.; (v) attempted to’ extract a premium for their TIR, Inc. shares, erroneously thinking they had the power to block the Cypress Energy Partners business plan; and (vi) were offered a premium tender price for-their TIR, Inc. shares and rejected the offer. See Motion for Reconsideration at 3. The Defendants further reason that, having exercised what they characterize as their undeniable statutory-right, they breached no duty to the Plaintiffs as long as the Plaintiffs received fair value for their shares. See Motion for Reconsideration at 3. According to the Defendants, no statute provides, and no case has ever held, that a defendant exercising its. statutory right to conduct a merger, who has paid the plaintiff a fair price, has breached a duty to a plaintiff just by: (i) not “buying” an appraisal; (ii) not establishing an independent committee; and (iii) not obtaining a vote of a majority of the minority. See Motion for Reconsideration at 3-4. The Defendants contend that the Court is the first court so to decide and that this decision therefore constitutes an error which the Court should reconsider. See Motion for Reconsideration at 4. The Defendants assert that, in “a minute fraction of Delaware chancery proceedings applying the entire fairness standard,” some chancellors have—after conducting a full trial—found a fair price but have nevertheless awarded attorney fees, costs, or other remedies when the defendants in those cases acted egregiously. Motion for Reconsideration at 4. The Defendants protest that no reading of this case’s facts could lead 'the Court to conclude- on a summary judgment motion that the Defendants completed the Merger in such a -grossly unfair manner. See Motion for Reconsideration at 4-5.

Moving to their second argument, the Defendants next aver that, even if the Court were to determine that the merger process was grossly unfair, such a determination would not entitle the Court to conclude that the Defendants failed to meet their burden of proving the merger’s entire fairness. See Motion for Reconsideration at 5. According to the Defendants, the determination of entire fairness is “contextual and unitary.” Motion-for Reconsideration at 5. In other words, the Defendants say, the Court may not conclude that the Defendants breached their fiduciary duty unless and until the fair price issue is determined as well. See Motion for Reconsideration at 5. Furthermore, the Defendants contend, they have proffered substantial evidence—creating genuine disputes as to material facts—that they erected sufficient safeguards to protect the Plaintiffs. See Motion for Reconsideration at' 5.

Circling back to their first argument, the Defendants reassert that entire fairness defines .only the Defendants’ burden of proof and not the legal duty that the Defendants owed to the Plaintiffs, See Motion for Reconsideration .at 6. The'Defen-, dants contend that entire fairness is the burden of proof a defendant director-or controlling shareholder must meet in an action challenging a merger in which the director or controlling shareholder stands on both sides of the transaction. See Mo *1187 tion for Reconsideration at 6 (citing Kahn v. Lynch Communication Systems, Inc., 638 A.2d 1110, 1115-17 (Del. 1994)). According to the Defendants, the entire-fairness doctrine holds a director and controlling shareholder ordinarily entitled to the business judgment rule’s protection to a higher standard of proof when he or she stands on both sides of a transaction. See Motion for Reconsideration at 6. The Defendants insist, however, that the higher standard of proof does not make the director or controlling shareholder liable. See Motion for Reconsideration at 6 (citing Kahn v. Lynch Communication Systems, Inc., 638 A.2d at 1115-17 ). As the Defendants read Delaware case law, the Delaware courts have held that a defendant can avoid this shift of the burden of proof to the defendant if the defendant undertakes one or more procedural safeguards, including: (i) a fully functioning committee of independent directors; or (ii) a vote by the majority of the minority shareholders to approve the challenged merger. See Motion for Reconsideration at 6 (citing Kahn v. M&F Worldwide Corp., 88 A.3d 635, 644-45 (Del. 2014)).

The Defendants concede that they did not use any of the established procedural safeguards that would enable them to avoid the shift of the burden of proof to them to prove the merger’s entire fairness. See Motion for Reconsideration at 6. This concession notwithstanding, the Defendants emphasize that the entire-fairness standard is a burden of proof and not a burden of per se liability. See Motion for Reconsideration at 7 (citing Cinerama v. Technicolor, 663 A.2d 1156, 1162 (Del. 1995)). The Defendants assert that, under Delaware law:

Because the decision that the procedural presumption of the business judgment rule has been rebutted does not establish substantive liability under the entire fairness standard, such a ruling does not necessarily present an insurmountable obstacle for a board of directors to overcome. Thus, an initial judicial determination that a given breach of a board’s fiduciary duties has rebutted the presumption of the business judgment rule does not preclude a subsequent judicial determination that the board action was entirely fair, and is, therefore, not outcome-determinative per se. To avoid substantive liability, riotwithstanding the quantum of adverse evidence that has defeated the business judgment rule’s protective procedural presumption, the board will have to demonstrate entire fairness by presenting evidence of the cumulative manner by which it otherwise discharged all of its fiduciary duties.

Motion for Reconsideration at 7 (quoting Cinerama v. Technicolor, 663 A.2d at 1163 )(emphases in Cinerama v. Technicolor). The Defendants then reinforce this same position with citations to two subsequent Delaware .Court of Chancery cases. See Motion for Reconsideration at 7 (citing Reis v. Hazelett Strip-Casting Corp., 28 A.3d 442, 465 (Del. Ch. 2011); In re Trados Inc. Shareholder Litigation, 73 A.3d 17, 79 (Del. Ch. 2013)). The Defendants assert, therefore, that, even if the Court assumes that the Defendants did not use sufficient safeguards, that assumption does not of itself establish that the Defendants breached a fiduciary duty;' it only establishes that the Defendants bear the burden to show the merger was fair. See Motion for Reconsideration at 7-8. The Defendants therefore maintain that the Court erred when it concluded in its Order and Opinion that the Defendants breached a fiduciary duty by failing the entire fairness standard. See Motion for Reconsideration at 8.

Circling back to their second argument, the Defendants then reasserted that the entire-fairness standard is a unitary test which precludes a finding of breach of *1188 fiduciary duty before a .trial on fair price. See Motion for Reconsideration at 8. The Defendants contend that, entire fairness requires a determination of both fair process and fair price, with fair price being the predominant factor. See Motion for Reconsideration at 8. The Defendants stress that there is no authority for the conclusion that a procedural device such as an appraisal, an independent committee of independent, directors, or approval of a majority of the minority is the only way to establish entire fairness. See Motion for Reconsideration at 8. According to the Defendants, logic rejects such a conclusion, because it' would convert the entire-fairness doctrine into a liability test rather than a standard of review. See Motion for Reconsideration at 8-9.

The Defendants maintain that it is clear that fair process “embraces questions of when the transaction was timed, how it was initiated, structured, negotiated, disclosed- to the directors, and ■ how the approvals of the directors and the stockholders were obtained.” Motion for Reconsideration at 9 (quoting Weinberger, 457 A.2d at 711 ). As -the Defendants understand it, these considerations extend far beyond the question whether directors employed one or more procedural devices to encompass the entire merger process. See Motion for Reconsideration at 9 (citing Kahn v. Lynch, 638 A.2d 1110, 1112-13 (Del. 1994)). Moreover, the Defendants contend, the Plaintiffs have acknowledged on the record that the specific procedural devices mentioned above are hot the exclusive means to prove a fair process. See Motion for Reconsideration at 9 (citing Transcript of Motion Hearing December Tr. at 68:21-69:7 (Kagen)). The Defendants therefore conclude that the absence of these particular safeguards does not and cannot by itself justify a finding of unfair process—much less ■ a finding of a breach of fiduciary, duty— without consideration of fair ■ price. See Motion for Reconsideration at 10.

The Defendants then aver that fair price is the predominant factor in the entire-fairness analysis, so that a court cannot find a breach of. fiduciary duty without first analyzing price. See Motion for Reconsideration at 20. Referring the Court to the Supreme Court of Delaware’s decision in Gatz Properties, L.L.C. v. Auriga Capital Corp., 59 A.3d 1206 (Del. 2012), the Defendants assert that the test for entire fairness “is not a bifurcated one as between fair dealing and fair price. All aspects of.-the use must be examined as a whole, since the question is one of entire fairness.- Thus, all aspects of the transaction must be considered before making an [sic] unitary determination.” Motion for Reconsideration at 10 (quoting Gatz Properties, L.L.C. v. Auriga Capital Corp., 59 A.3d at 1214 ). Recapitulating their argument on this point as they framed it at the case’s February motion hearing, the Defendants quote verbatim from the hearing transcript:

In the Trados decision, your Honor, the court held that the court cannot make a finding of breach of fiduciary duty solely on the basis of finding that there was an unfair process and that the analysis is unitary. Therefore, until the jury or the finder of fact has an opportunity to analyze the entire process, which means price and process, it would be error for this Court, in my view, based upon the Trados case ... to find a breach of fiduciary duty until the trier of fact also considered whether there was a fair price.

Motion for Reconsideration at 10 (quoting Transcript of Hearing Before the Honorable James O. Browning, United States District Judge 554:2-11, filed February 26, 2017 (Doc. 255)(“February Tr.”)(DeMuro). Digging more deeply into In re Trados, *1189 the Defendants assert that, in that case, Vice Chancellor Noble addressed the situation where, after a trial, the process was deemed unfair but the merger price fair. See Motion for Reconsideration at 10. The Defendants maintain that the In re Trados court determined that the fair price satisfied that case’s defendants’ fiduciary duties, even though the merger process was unfair on account of a lack of sufficient safeguards. See Motion for Reconsideration at 10. Then invoking a separate decision by Vice Chancellor Noble, the Defendants contend that In re Nine Systems Corporation Shareholders Litigation, 2014 WL 4383127 (Del. Ch. April 11, 2014)(“In re Nine Systems”), confirms that the entire-fairness doctrine is a unitary test based on an analysis of process and price, with price fairness being the predominant consideration. See Motion for Reconsideration at 10. The Defendants recount that the In re Nine Systems decision came only after an eleven-day trial, and that Vice Chancellor Noble concluded that the defendants who breached their fiduciary duties were not liable for monetary damages even though he granted the plaintiffs leave to petition the court for an award of attorneys’ fees and costs on the grounds that

[tjhe entire fairness standard of review has long mandated a dual inquiry into ‘fair dealing mid. fair price’ that this Court should weigh as appropriate to reach a ‘unitary’ conclusion on the entire fairness of the transaction at issue. Delaware courts have contemplated this issue before. What united the resulting range of explications of this area of Delaware law is the principle that the entire fairness standard of review is principally contextual. That is, there is no bright-line rule on what is entirely fair.

Motion for Reconsideration at 12 (quoting In re Nine Systems, 2014 WL 4383127 , at *1)(italicized emphasis in original, underlined emphasis added, and internal footnotes omitted). The Defendants assert that, taken together, Trados and In re Nine Systems stand for the proposition that, even though there may be an exception when the unfair process is grossly unfair, the entire-fairness standard is a unitary test. See Motion for Reconsideration at 12-13. The Defendants therefore ask the Court to reconsider pages 305-307 of its MO. See Motion for Reconsideration at 14.

Circling at that point to their third proposition, the Defendants contend that they have adduced substantial evidence to establish that the merger process was fair. See Motion for Reconsideration at 14. The Defendants first remind the Court that, when deciding a summary judgment motion, it must: (i) resolve all reasonable inferences and doubts in the favor of the nonmovant party; (ii) construe all evidence in the light most favorable to the nonmov-ant party; and (iii) refrain from deciding credibility issues. See Motion for Reconsideration at 15. Reciting their version of the merger story, the Defendants assert that overwhelming evidence exists that TIR, Inc. had engaged in a “more than fair process” to determine the company’s value before the cash out. Motion for Reconsideration at 16 (emphasis omitted). According to the Defendants, they offered the Plaintiffs an opportunity to participate in the merger and established an independent special committee to establish an auction process before the alleged bidding war between fully-informed rival camps of shareholders. See Motion for Reconsideration at 16-21. The Defendants maintain that these facts establish—at least to the standard that summary judgment requires—that the Defendants employed a more than adequate procedural substitute for an independent committee at the time of the merger. See Motion for Reconsideration at 21. The Defendants insist that a minority shareholder vote at the time of *1190 the merger would have been futile, because the Plaintiffs—the only remaining minority shareholders—had contractually bound themselves to accept no share price less than $654,632.00. See Motion for Reconsideration at 22. The Defendants reason that, construing all facts in the light most favorable to the Defendants and resolving all inferences in the Defendants’ favor, the .Court cannot- conclude as a matter of law that the process leading up to the Merger was unfair to the Plaintiffs. See Motion for Reconsideration at 22.

7. Response to Motion for Reconsideration.

The Plaintiffs fíled Plaintiffs’ Brief in Opposition to Defendants’ Motion .for Reconsideration on May 30, 2017, See Plaintiffs’ Brief in Opposition to Defendants’ Motion for Reconsideration, filed May 30, 2017 (Doc. 281)(“Response to Motion for Reconsideration”). The Plaintiffs insist' that the Court should deny the Motion 'for Reconsideration. See Response to Motion for Reconsideration at 3. According to the Plaintiffs, the Court must restrict its review of a motion to reconsider an interlocutory order using three standards. See Response to Motion for Reconsideration at 3. First, the Plaintiffs assert, the Court must limit its review in proportion to how thoroughly the earlier ruling addressed the specific findings or conclusions that a motion to reconsider challenges. See Response to Motion for Reconsideration at 3. Second, the Plaintiffs contend, the Court must consider the case’s overall progress and posture, the motion for reconsideration’s timeliness relative to the ruling it challenges, ■ and whether parties have significantly relied on the'Court’s ruling. See Response to Motion for Reconsideration at 3. Third, the Plaintiffs maintain, the Court must consider the holding of Servants of the Paraclete v. Does, 204 F.3d 1005 (10th Cir. 2000), which suggests that a court should grant motions for reconsideration only when the movant presents: (i) new controlling authority; (ii) new evidence; or (iii) a clear indication that the Court erred. See Response to Motion for Reconsideration at 3 (citing New Mexico v. Valley Meat Co., LLC, 2015 WL 9703255 , at *19 (D.N.M. 2015)(Browning, J.)(citing Servants of the Paraclete v. Does, 204 F.3d at 1005 )). According to the Plaintiffs, the Court should deny the Motion for Reconsideration under those standards. See Response to Motion for Reconsideration at 3.

Scrutinizing the Motion for Reconsideration under the first standard, the Plaintiffs argue that the Court’s MO thoroughly addresses the specific conclusions that the Defendants challenge. See Response to Motion for Reconsideration at 3. The Plaintiffs note' that the Court’s MO (i) makes thirty-nine pages of extensive factual findings that the record evidence supports; (ii) dédicates twenty-six pages to describing the arguments that the parties made in their respective briefs; (iii) spends eighty-seven pages recounting the arguments' that the parties’ counsel made at oral argument; (iv) extensively discusses case law governing the entire-fairness standard and minority shareholder rights in the context of a cash-out merger; ahd (v) explains its determination of liability in an orderly and logical process. See Response to Motion for Reconsideration at 3. Descrying a forest from these trees, the Plaintiffs opine that the Court thoroughly considered—and rejected—the Defendants’ arguments on the issues it now moves the Court to reconsider. See Response to Motion for Reconsideration at 3-4.

■ Examining the Motion for Reconsideration under the second standard, the Plaintiffs then contend that reopening the liability determination would cause delay and confusion. See Response to Motion for Reconsideration at 4. The Plaintiffs maintain *1191 that the decision whether to reconsider an earlier ruling is properly affected by the stage a proceeding has reached. See Response to Motion for Reconsideration at .4. Asserting that stability becomes increasingly important as the proceeding nears final disposition lest reopening issues cause further delay or confusion, the Plaintiffs remind the Court that they filed Plaintiffs’ MSJ more- than twenty months ago. See Response to Motion for Reconsideration at 4. The Plaintiffs aver that both the “parties and the Court have poured massive amounts of time, energy and money into getting the liability determination right the first time.” Response to Motion for Reconsideration at 4. According to the Plaintiffs, they have begun to prepare for trial in anticipation of the pending pretrial conference, and reopening the liability determination would significantly broaden the scope of issues to be tried. See Response to Motion for Reconsideration at 4. This broadening, the Plaintiffs maintain, in turn potentially would require the parties to revisit other pretrial motions that they argued and that the Court decided in conjunction with the liability determination, thereby further delaying what already has been a highly-protracted process. See Response to Motion for Reconsideration at 4. The Plaintiffs therefore conclude that the proceeding’s late- stage, the exhaustive opportunities which the Defendants have had to present their arguments, and the delay and confusion that would result were the liability determination reopened counsel against granting the Motion for Reconsideration. See Response to Motion for Reconsideration at 4.

Evaluating the Motion for Reconsideration under the third standard, the Plaintiffs insist that none of the factors which Servants of the Paraclete v. Does requires are present. See Response to Motion for Reconsideration at 4. The Plaintiffs assert that the Defendants do not present any new law or facts to support their motion, bottoming their Motion for. Reconsideration on what the Plaintiffs contend are specious arguments that the Court committed three errors of law. See Response to Motion for Reconsideration at 4. .According to the Plaintiffs, each supposed error of law is chimerical. See Response to Motion for Reconsideration at 4.

With regard to the Court’s first supposed-error of law—that the “order and Opinion implicitly and erroneously assume the entire fairness doctrine is a liability-imposing device rather than a burden of proof shifting standard, of review,” Response to Motion for Reconsideration at 5 (quoting Motion for Reconsideration at l)(emphasis added in the Response to Motion for Reconsideration), the Plaintiffs maintain that the Defendants misread the Court’s MO. See Response to Motion for Reconsideration at 5. The Plaintiffs agree with the Defendants that .the entire-fairness standard is a test that seeks to determine whether a director or controlling shareholder has complied with his or her fiduciary duties. See Response to Motion for Reconsideration at 5 (citing Reis v. Hazelett Strip-Casting Corp., 28 A.3d 442, 465 (Del. Ch. 2011)). The Plaintiffs then say that finding that a transaction is not entirely fair subjects an interested party to liability for breach of his or her duty of loyalty. See Response to Motion for Reconsideration at 5 (citing In re Cornerstone Therapeutics Inc. Stockholder Litigation, 115 A.3d 1173 , 1180-81 & n.30 (Del. 2015)). The Plaintiffs read the MO to conclude that ■ Stephenson, Boylan, C. Field, 'and L. Field breached that-duty, because the merger was not entirely fair to- the Plaintiffs. See Response to Motion for Reconsideration at 5. According to the Plaintiffs, the MO’s text makes it evident that the Court correctly applied the entire-fairness doctrine. See Response to Motion for Reconsideration at 5. The Plaintiffs insist that the MO correctly describes what must *1192 be proven to sátisfy the entire fairness standard and who bears the burden of proof, stating:

Under Delaware’s entire-fairness standard, the burden of proving that the merger transaction was the product of both fair price and fair dealing defaults to the Defendants. The Court may shift the burden of evidence for proving entire fairness to the plaintiff -under the following conditions: ©'defendants set up a well-functioning committee of independent directors to examine and approve the merger; and (ii) a fully informed majority of the minority shareholders voted to approve 'the merger.

Response.to Motion for Reconsideration at 5 (quoting MO at 306, 250 F.Supp.3d at 1034-35 , 2017 WL 1487439, at *124 ). The Plaintiffs assert that the Court does not implicitly assume that the Defendants’ failure to implement these burden-shifting procedures established per se liability. See Response to Motion for Reconsideration at 5. Instead, the Plaintiffs maintain, the MO cites this failure as a factor evincing unfair dealing. See Response to Motion for Reconsideration at 5 (citing MO at 306, 250 F.Supp.3d at 1034-35 , 2017 WL 1487439, at *124 ). ©he Plaintiffs report that the Delaware Court of Chancery, has taken the same approach in similar circumstances. See Response to Motion for Reconsideration at 5-6 (citing Seagraves v. Urstact Property Co., Inc., 1996 WL 159626 , at *5 (Del. Ch. April 1, 1996)

It is undisputed that the defendants did not institute any procedural safeguards designed to' replicate arm’s length bargaining or to assure that the interests of minority stockholders would be adequately protected.... [The] board’s failure to implement any of these procedural safeguards is a factor evidencing] the absence of fair dealing.

The Plaintiffs also note that the MO observes that the Defendants did not give Plaintiffs advance notice of the merger, characterizing this observation as another factor evidencing the absence of fair dealing, because advance notice is a fundamental fair process which cannot be dispensed with. See Response to Motion for Reconsideration at 6 (citing MO at 306, 250 F.Supp.3d at 1034-35 , 2017 WL 1487439, at *124 ; Cole v. Kershaw, 2000 WL 1206672 , at *8 (Del. Ch. August 15, 2000); Ross Holding and Management Co. v. Advance Realty Group, LLC, 2014 WL 4374261 , at *19 (Del. Ch. 2014)).

The Plaintiffs assert that the liability determination also finds support in the MO’s conclusions that: (i) the Defendants did not obtain a fairness opinion in connection with the Merger; and (ii) as a result, the Defendants were in the dark about a fair cash-out share price. See Response to Motion for Reconsideration at 6. Quoting at length from the MO, the Plaintiffs note that the Court said:

The Defendants, did not hire an investment bank to conduct a discounted cash flow analysis at the time of the merger. Indeed, the Defendants did not contend that it [sic] hired an investment bank to calculate a fair price at the time of the merger at all. The. Defendants asserted at the motion -hearing that this was a fiduciary choice, as the Defendants did not wish to pay a substantial amount of money for an investment bank fairness opinion that (i) would duplicate the Halifax[ ] Group[’s] December 2012 appraisal; and (ii) would solicit whatever valuation the Defendants[ ] want[ed] to hear.” Were this the case about the merger of a mature corporation with little change in its market capitalization over short periods of time,- the Defendants’ argument might withstand some scrutiny. As corporate financials demonstrate,- however, revenues grew rapidly in the year *1193 after the December, 2012 appraisal, sprinting forward at an uneven pace month by month but generally running at a sixty percent year-on-year YTD growth. To borrow a management consulting term, TIR was a rare corporate “star.” TIR’s choice not to commission an updated investment bank fairness opinion kept even the Defendants in the dark about a fair cash-out price even if the Court were to interpret the facts in the light most favorable to Defendants.

Response to Motion for Reconsideration at 6-7 (quoting MO at 285-86, 250 F.Supp.3d at 1034-35 , 2017 WL 1487439, at *124 )(em-phasis added, internal citations omitted). According to the Plaintiffs, failure to obtain a fairness opinion is a recognized factor that may evidence unfair dealing. See Response to Motion for Reconsideration at 7 (citing Cole v. Kershaw, 2000 WL 1206672 , at *8). Likewise, the Plaintiffs continue, a director’s failure to be adequately informed about the basis for the price paid in a transaction subject to entire-fairness review, is another factor that may evidence unfair dealing. See Response to Motion for Reconsideration at 7 (citing In re Nine Systems Corp. Shareholders Litigation, 2014 WL 4383127 , at *36). Summarizing, the Plaintiffs assert that the MO’s liability determination rests on conclusions 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 did not vote to approve the Merger; (iii) the Defendants did not give the Plaintiffs advance notice of the Merger; (iv) the Defendants did not commission a fairness opinion in connection with the Merger; and (v) Defendants were in the dark about a fair cash-out share price. See Response to Motion for Reconsideration at 7. The Plaintiffs maintain that, based on these conclusions, the MO concludes that the “ ‘Defendants did not put into place sufficient safeguards protecting minority shareholder right to meet’ ” their “ ‘burden of proof that the merger was entirely fair to the minority shareholders.’” Response to Motion for Reconsideration at 7 (quoting Opinion at 303). According :to the Plaintiffs, this holding has ample support in case law imposing liability where the defendants failed to implement adequate safeguards to protect minority shareholders’ interest. See Response to Motion for Reconsideration at 7-8 (citing In re Sunbelt Beverage Corp. Shareholder Litig., 2010 WL 26539 , at *5 (Del. Ch. 2010)(Chandler, C.); Reis, 28 A.3d at.464; Oliver v. Boston Univ., 2006 WL 1064169 , at *25 & n.38 (Del. Ch. 2006)(Noble, V.C.)).

The Plaintiffs then argue that the Court may determine entire fairness without a trial on fair price. See Response to Motion for Reconsideration at 8. According to the Plaintiffs, it is well established that, once entire fairness applies, a defendant must establish “‘to the court’s satisfaction that the transaction was the product of both fair dealing and fair price.’ ” Response to Motion for Reconsideration at 8 (quoting Cinerama, Inc. v. Technicolor, Inc., 663 A.2d 1156, 1163 (Del. 1995))(emphasis in original)(intemal citation omitted in Response to Motion for Reconsideration). The Plaintiffs insist that Delaware courts “ ‘examine the transaction as a whole and both aspects of the test must be satisfied; a party does not meet the entire fairness standard simply by showing that the. price fell within a reasonable range that would be considered fair.’” Response to Motion for Reconsideration at 8 (quoting William Penn Partnership v. Saliba, 13 A.3d 749, 756-57 (Del. 2011)). The Plaintiffs maintain that Delaware courts accordingly oftentimes conclude that fairly priced transactions are not entirely fair on account of the absence of fair dealing. See Response to Motion for Reconsideration at 8-9 (citing *1194 Oliver, 2006 WL 1064169 , at *21-25 & n.238; Ross, 2014 WL 4374261 , at *34; In re Nine Systems, 2014 WL 4383127 , at *47; In re Dole Food Co., Inc. Stockholder Litigation, 2015 WL 5052214 , at *2 & *38 (Del. Oh. 2015)).

Furthermore, the Plaintiffs contend, fair price is not necessarily the preponderant consideration in an entire-fairness analysis; See Response to Motion for Reconsideration' at 9. According to the Plaintiffs, the Supreme Court of Delaware clarified its decision in Weinberger v. UOP, Inc., 457 A.2d 701, 710-11 (Del. 1983), two years later in Rabkin v. Philip A. Hunt Chem. Corp., 498 A.2d 1099 (Del. 1985), in which it explained:

“While this duty of fairness certainly incorporates the principle: that a cash-out merger must be free of fraud or misrepresentation, Weinberger’s mandate of fair dealing does not turn solely on issues of deception. We particularly noted broader concerns respecting the matter of procedural fairness. Thus, while ‘in a non-fraudulent transaction ,.. price may be the preponderant consideration,’ it -is not necessarily so.”. ■

Response to Motion for Reconsideration- at 10 (quoting Rabkin v. Philip A. Hunt Chem. Corp., 498 A.2d at 1104-05 )(emphasis in Rabkin v. Philip A. Hunt Chem. Corp.). The Plaintiffs then refer the Court to the Supreme Court of Delaware’s opinion in International Telecharge, Inc. v. Bomarko, 766 A.2d 437 (Del. 2000), in which the Supreme Court of Delaware doubled down on Rabkin v. Philip A. Hunt Chem. Corp., indicating: ‘“When making a determination of a transaction’s entire fairness[,] courts examine the transaction as a whole[,] looking at both fair price'and fair dealing, without focusing on one component over another.’ ” Response to Motion for Reconsideration" at 10 (quoting International Telecharge, Inc. v. Bomarko, 766 A.2d at 440 ).

The Plaintiffs then note that the Defendants assert that a finding of grossly unfair process is the sole exception to a general rule that a court may not find a breach of fiduciary duty without first determining whether the price was fair. See Response to Motion for Reconsideration at 10. According to the Plaintiffs, the cases that the Defendants proffer in support of their position undermines it. See Response to Motion for Reconsideration at 10. In neither of the two cases, the Plaintiffs argue, did Vice Chancellor Noble assert that such gross unfairness is the only exception to the rule. See Response to Motion for Reconsideration at 10. The Plaintiffs insist that Vice Chancellor Noble rather held" that gross fairness may be sufficient -but is not necessary'to such a liability finding. See Response to Motion for Reconsideration at 10-11. The Plaintiffs then propose that other Delaware courts’ opinions echo Vice Chancellor Noble’s position. See Response to Motion for Reconsideration at 11 (citing Oliver, 2006 WL 1064169 , at *25; Ross, 2014 WL 4374261 , at *33-34). As the Plaintiffs see it, in this" case, as in Oliver, the Defendants have failed to prove' fair dealing, because “‘théy did not put into place sufficient safeguards protecting minority shareholder rights.’ ” Response to Motion for Reconsideration at 11 (quoting MO at 303, 250 F.Supp.3d at Í046, 2017 WL 1487439, at *133 ). Consequently, the Plaintiffs contend, the MO’s liability determination fully comports with the normative and policy considerations animating similar decisions in the Delaware Court of Chancery. See Response to Motion for Reconsideration at 11-12.

The Plaintiffs then aver that a liability determination may, notwithstanding -the Defendants’ protestations, be • made on summary judgment.- See Response to Motion for Reconsideration at 12. The Plaintiffs argue that the Defendants, cite no *1195 authority to the contrary, and that courts repeatedly have made liability determinations on summary judgment based on a defendant’s failure to demonstrate fair dealing. See Response to Motion for Reconsideration at 12 (citing Merritt v. Colonial Foods, Inc., 505 A.2d 757, 765 (Del. Ch. 1986)(Allen, C.); Pereira v. Cogan, 267 B.R. 500, 509 (S.D.N.Y. 2001)(Sweet, J.)). Threading a needle, the Plaintiffs insist that, even though “a unitary analysis of both fair price and fair dealing must be undertaken, it is not necessary to decide, on summary judgment or even after trial, whether the fair price prong-is satisfied, because a finding of liability may be based on an absence of fair dealing alone.” Response to Motion for Reconsideration at 12. In a footnote, the Plaintiffs then accuse the Defendants of misquoting the case on which they rely to argue to the contrary—Gatz Properties, L.L.C. v. Aguriga Capital Corp. See Response to Motion for Reconsideration at 12 n.5. According to the Plaintiffs, the Defendants altered the .Supreme Court of Delaware’s opinion by “erroneously inserting into the quote the following non-grammatical sentence: ‘Thus, all aspects of the transaction must be considered before making an [sic] unitary determination.’ ” Response to Motion for Reconsideration at 12 n.5 (quoting Motion for Reconsideration at 10). The Plaintiffs insist that the “phrase ‘unitary determination’ was authored by Defendants, not the Gatz court.” Response to Motion for Reconsideration at 12 n.5 (emphasis added in the Motion for Reconsideration).

Turning their argument at that point to the summary judgment standards, the Plaintiffs take issue with the Defendants’ argument that the MO and Order fail to (i) resolve all reasonable inferences and doubts in the Defendants’ favor; and (ii) construe all evidence in the light most favorable to the Defendants. See Response to Motion for Reconsideration at 12. The Plaintiffs dismiss the argument as unsound, noting that the MO and Order both determine liability entirely on facts that neither party disputes, save a finding that the Defendants’ failure to obtain a fairness opinion in connection with the merger left the Plaintiffs “‘in the dark about a fair cash-out share price.’” Response to Motion for Reconsideration at 12 (quoting MO at 286, 250 F.Supp.3d at 1036 , 2017 WL 1487439 ,. at *126). According to the, Plaintiffs, the Court made this last conclusion only after interpreting the undisputed facts in the light most favorable to the Defendants. See Response to Motion for Reconsideration at 12. Furthermore, the Plaintiffs: continue, the Defendants, in their Motion for Reconsideration, simply rehash the same arguments that they made or could have made when they responded to Plaintiffs’ MSJ. or during the hearing on the motion. See Response to Motion for Reconsideration at 13. The Plaintiffs urge the Court not to grant the Defendants a “mulligan on their failure to present persuasive argument and evidence” when they initially • opposed the Plaintiffs’ MSJ. Response to Motion for Reconsideration at 14 (quoting New Mexico v. Valley Meat Co., LLC, 2015 WL 9703255 , at *20 (D.N.M. 2015)(Browning, J.)).

As the Plaintiffs see it, the Defendants’ contentions in the Motion .for Reconsideration also are insufficient on their face to warrant reconsideration for two additional reasons. See Response to- Motion for Reconsideration at 14. First, the Plaintiffs say, the Defendants’ assertion that “‘in any reasonable business person’s judgment’ the history of sales of.TIR shares at a price of $451,000 per share was ‘a more than adequate substitute for an appraisal ... [and] independent committee’ ” is irrelevant, because fair dealing is reviewed, not under the business-judgment rule, but rather under the more exacting entire-fairness rule. Response to Motion for Re *1196 consideration at 14-15 (quoting Motion for Reconsideration at 21)(citing Kahn v. Tremont Corp., 694 A.2d 422, 428 (Del. 1997)).

Second, the Plaintiffs argue, the speculative futility of a majority of the minority vote does not excuse the Defendants’ unfair dealing. See Response to Motion for Reconsideration at 15. According to the Plaintiffs, what the Plaintiffs would have done if the Merger had been put to a vote of the minority shareholders is inherently unknowable, and the Delaware Court of Chancery ordinarily declines to engage in such speculation when reviewing a transaction for entire fairness. See Response to Motion for Reconsideration at 16 (citing Dole Food, 2015 WL 5052214 , at *32; Bomarko, Inc. v Int’l Telecharge, Inc., 794 A.2d 1161, 1181-82 (Del. Ch. 1999)). The Plaintiffs furthér contend that the Defendants misconceive how a majority of the minority vote even functions, indicating that such a vote “ ‘only serves as a robust procedural protection when it is a non-waivable pre-condition to a transaction.’” Response to Motion for Reconsideration at 16 (quoting Frank v. Elgamal, 2012 WL 1096090 , at *10 n.71 (Del. Ch. March 30, 2012)(Noble, V.C.)).

Shifting gears, the Plaintiffs then argue that the Court should reaffirm its determination of the Defendants’ liability if it decides to reconsider its Opinion. See Response to Motion for Reconsideration at 17. The Plaintiffs insist that,' the Plaintiffs’ theories notwithstanding, thé history of sales of TIR, Inc. shares is not an appropriate substitute for an independent committee and appraisal. See Response to Motion for Reconsideration at 17. First, the Plaintiffs aver, the Defendants did not come to any well-informed judgment that the cash-out price they paid for TIR, Inc. shares was' fair. See Response to Motion for Reconsideration at 17-21. Second, the Plaintiffs maintain, any reliance that the Defendants had on TIR, Inc. shares’ prior sale prices when they pegged the cash-out price at $451,000.00 per share is further evidence of the Defendants’ unfair dealing, because (i) the Defendants had a duty to consider TIR, Inc.’s going concern value as of the merger date; (ii) the sales price that the Defendants derived from the June, 2013, control transaction was stale; (in.) TIR, Inc.’s shares were not actively traded in a liquid market; and (iv) the control transaction was not a reliable fair value discovery mechanism. See Response to Motion for Reconsideration at 21.

Expanding on this first point, the Plaintiffs note that the Delaware definition of fair value entitles a shareholder to be paid for his or her proportionate interest in a going concern. See Response to Motion for Reconsideration at 22 (citing Merion Capital L.P. v. Lender Processing Services, Inc., 2016 WL 7324170 , at *13 (Del. Ch. December 16, 2016)(Laster, V.C.)). The Plaintiffs insist that the Delaware courts eschew reducing going concern value to market price on any given date. See Response to Motion for Reconsideration at 22 (citing In re Appraisal of Dell, Inc., 2016 WL 3186538 , at *23 (Del. Ch. 2016)(Laster, V.C.)). Reflecting this fact, the Plaintiffs reason, the Defendants had a duty to the minority shareholders to test the market price’s reliability as a proxy for TIR, Inc. shares’ fair value by estimating TIR, Inc.’s fundamental value as a going concern. See Response to Motion for Reconsideration at 22-23. According to the Plaintiffs, the Defendants’ failure to validate the market price’s reliability therefore is evidence of unfair dealing. See Response to Motion for Reconsideration at 23.

Unpacking their second point, the Plaintiffs insist that the cash-out share price that the Defendants derived from the control transaction was stale. See Response to Motion for Reconsideration at 23. After referring to the Court to Sunbelt in sup *1197 port of the proposition that the Delaware courts often have concluded that reliance on outdated valuation data is evidence of unfair dealing, see Response to Motion for Reconsideration at 23 (citing Sunbelt, 2010 WL 26539 , at *6-7), the Plaintiffs observe that TIR, Inc.’s rapid revenue growth between the time of the control transaction and the merger date makes it unlikely that the price negotiated in June, 2013, would be the same as the company’s fair value six months later, see Response to Motion for Reconsideration at 23. As the Plaintiffs see it, the Defendants, at minimum, had a duty of fair dealing to conduct.a more thorough valuation at the time of the merger to determine whether the $451,000.00 per share price still reflected TIR, Inc.’s value. See Response to Motion for Reconsideration at 23-24.

Expounding on their third point, the Plaintiffs then contended that TIR, Inc. shares’ sale price during the control transaction were especially unreliable, because the shares were not actively traded in .a liquid market. See Response to Motion for Reconsideration at 24. Indeed, the Plaintiffs assert, the Delaware Court of Chancery has held that “‘reliance on a price determined in a thinly traded, illiquid[] market is evidence of a price’s unfairness.’ ” Response to Motion for Reconsideration at 24 (quoting Gesoff v. IIC Industries, Inc., 902 A.2d 1130 , 1154 & n.134 (Del. Ch. 2006)(Lamb, V.C.)). Adopting the Gesoff v. IIC Industries, Inc. court’s stance, the Plaintiffs maintain that the Defendants’ similar reliance on inherently unfair prices determined in a thinly traded, illiquid market, over which the Defendants has significant influence, is further evidence of their unfair dealing. See Response to Motion for Reconsideration at 24.

The Plaintiffs then conclude their Response to Motion for Reconsideration by adding a fourth point that they had not previously signposted, partially revisiting their earlier assertion that the control transaction was not a reliable fair value discovery mechanism for two reasons. See Response to Motion for Reconsideration at 24. First, the Plaintiffs posit, neither Cypress Energy Partners nor Stuart was permitted to make a topping bid, with the resulting structural ceiling on the control transaction price making it a poor talisman for fair value in a competitive bidding environment. See Respdnse to Motion for Reconsideration at 24. Second, the Plaintiffs maintain, it is undisputed that the shareholders who sold to Cypress Energy Partners in the control transactio—Le., the pooled shareholders—were not looking to maximize their shares’ value. See Response to Motion for Reconsideration at 25. In analogous circumstance, the Plaintiffs argue, the Delaware Court of Chancery has held that fair value is not evident from such transactions with shareholders eager to sell their shares. See Response to Motion for Reconsideration at 25 (citing In re Appraisal of Dell, Inc., 2016 WL 3186538 , at *37-44 (citing Global GT LP v. Golden Telecom, 993 A.2d 497 (Del Ch. 2010)(Strine, V.C.))).

8. Reply to Motion for Reconsideration.

The Defendants filed the Defendants’ Reply in Further Support of Motion for Reconsideration (Doe. 280) on June 13, 2017. See Defendants’ Reply in Further Support of Motion for Reconsideration (Doc. 280), filed' June 13, 2017 (Doc. 287)(“Reply to Motion for Reconsideration”). Abstracting their argument in emphatic tones at the start of the filing, the Defendants insist that not one case that the Plaintiffs cite in their Response to Motion for Reconsideration supports their argument that entire-fairness may be determined without a trial on fair price. See Reply to Motion for Reconsideration at 1. *1198 Working backward from this conclusion, the Defendants first argue that entire-fairness review requires a two-part analysis to determine liability and cannot be completed without a trial on fair price. See Reply to Motion for Reconsideration- at 1. The Defendants repeat their contention from the Motion for Reconsideration that entire fairness is a two-part unitary standard under Weinberger v. UOP, Inc., maintaining that the Supreme Court of Delaware, has consistently held that entire-fairness review comprises the dual components .of fair dealing and fair price. See Reply to Motion for Reconsideration at. 2. Consequently, the Defendants posit, the Delaware Courts of Chancery repeatedly have held that the fair price aspect of entire fairness review is not a remedial or damage calculation. See. Reply to Motion for Reconsideration at 2 (citing Reis v. Hazelett Strip-Casting Corp., 28 A.3d at 465 ). According to the Defendants, a matter proceeds to the remedial phase in an entire-fairness case •only if the transaction fails the fairness test. See Reply to Motion for Reconsideration at 2.

In contrast, the Defendants assert, the Court’s analysis of entire fairness in the Order and MO rest on an analysis of fair dealing only. See Reply to Motion for Reconsideration at 2. The Defendants quote at.length from the MO in support of this proposition:

Under the entire fairness standard, the Defendants could show fair dealing under , the following conditions: (i) the Defendants set up a well-functioning committee of independent directors to examine and approve the merger; or (ii) a fully-informed majority of the minority shareholders voted to approve the merger..

$ ⅜ ⅜ ⅜

In this case, the Defendants satisfied neither criterion to shift the evidentiary burden.... The Court therefore grants the Plaintiffs’ request for summary judgment on the Defendants’ liability for breaching their fiduciary duty of fair dealing with respect to- the merger transaction.

Reply to Motion for Reconsideration at 2-3 (quoting MO at 306-07, 250 F.Supp.3d at 1046-47 , 2017 WL 1487439, at *134-35 ) (emphasis added in Reply to Motion for Reconsideration). From this language, the Defendants ascertain that the Court clearly made a finding of a breach of fiduciary duty even though: (i) the entire fairness doctrine is only a burden-shifting doctrine, and not a liability doctrine; and (ii) the Gourt has not made any fair price determination. See Reply to Motion for Reconsideration at 3. Accordingly, the Defendants reason, the- Motion for Reconsideration meets the third Servants of the Paraclete v. Does ground, he., that a court should grant' reconsideration when, it manifestly erred. See Reply to Motion for Reconsideration at 3 (citing Servants of the Paraclete v. Does, 204 F.3d at 1005 ).

Delving further into this argument, the Defendants reemphasize that entire fairness cannot be determined before a consideration of fair price. See Reply to Motion for Reconsideration at 3. The Defendants assert that not one of -the -cases that the Plaintiffs proffer in their Response to the Motion for Reconsideration supports their argument that entire fairness may not be determined without a trial on fair price. See Reply to Motion for Reconsideration at 3. -The Defendants contend that, in each of these cases, the court reached a conclusion as to liability only after considering both fair process and fair price. See Reply to Motion for Reconsideration at 3 (citing In re Cornerstone Therapeutics Inc. Stockholder Litigation, 115 A.3d at 1173 ; William Penn Partnership v. Saliba, 13 A.3d at 758 ; Oliver v. Boston Univ., 2006 WL 1064169 , at *25 n.238); Ross, 2014 WL 4374261 , at *17; In re Nine Systems, 2014 *1199 WL 4383127 , at *3; International Telecharge, Inc., 794 A.2d at 1161 ; In re Dole Food Co., Inc. Stockholder Litigation, 2015 WL 5052214 , at *3, *33-38; HMG/Courtland Properties, Inc. v. Gray, 749 A.2d 94, 116 (Del Ch. 1999)(Strine, V.C.)). As the Defendants report it, the courts in these cases found an absence of fair dealing and determined a breach of fiduciary duties only after a trial in which the evidence and full story came to light via examination and cross-examination. See Reply to Motion for Reconsideration at 4.

Building upon this scaffolding, the Defendants then maintained that fair price is not only required but the paramount consideration for any court the question of entire fairness confronts. See Reply to Motion for Reconsideration at 5 (citing In re Dole Food Co., Inc. Stockholder Litigation, 2015 WL 5052214 , at *34)(“The concept of ‘process’ is non-existent, but even under those circumstances, I believe that the controller who proved that the price was indeed fair would not have breached his duties.”) As the Defendants read the Delaware case law, neither Rabkin v. Philip A. Hunt Chem. Corp. nor International Telecharge calls this principle into question, the Plaintiffs’ contentions to the contrary notwithstanding. See Reply to Motion for Reconsideration at 5-6. The Defendants note that Rabking v. Philip A. Hunt Chem. Corp. was decided thirty years before the Supreme Court of Delaware’s decision in Kahn v. M & F Worldwide Corp., and the International Telecharge court focused mainly on the obligation to consider both entire fairness ’ elements together rather than on their importance relative to one another. See Reply to Motion for Reconsideration at 6. Moreover, the Defendants continue, the cases in which liability for rbeach of fiduciary duty rests on a finding of unfair dealing, after the price was found to be fair, universally involve transactions in which material information was withheld from the minority shareholders or the process was grossly, unfair in other regards. See Reply to Motion for Reconsideration at 6-7. The Defendants conclude that the Plaintiffs’ efforts to undermine the importance of the fair-price analysis are fruitless. See Reply to Motion for Reconsideration at 7.

Shifting to their next main point, the Defendants insist that there are genuine issues of material fact whether the process was fair and that the trial should be a trial on fair process as well as fair value. See Reply to Motion for Reconsideration at 7. The Defendants reiterate that the Court’s MO only identifies the absence of the two Kahn procedural safeguards—independent committee and minority vote—as grounds for concluding that the Defendants are liable for breach of fiduciary duty. See Reply to Motion for Reconsideration at 7 (citing MO at 285-86 & 306, 250 F.Supp.3d at 1034-35, 1046-47 , 2017 WL 1487439, at *124-25, 134-35 ). The Defendants contest both these conclusions, averring that the evidence establishes that: (i) an independent committee was established; (ii) the Plaintiffs obstructed the committee’s operation; and (iii) the Plaintiffs were fully informed. See Reply to Motion for Reconsideration at 7-8. The Defendants reiterate that the evidence also establishes that any effort to obtain a vote would have been in vain, because the Plaintiffs rejected the Cypress Energy Partners business plan, demanded to be cashed out, and formed a pact to extract a price in excess of fair market value, erroneously believing that their minority could block the merger. See Reply to Motion for Reconsideration at 8. According to the Defendants, when these facts are considered in tandem with the fact that the Plaintiffs point to no act of unfairness other than the absence of one or more of the safe harbors, the Defendants are manifestly entitled to a jury trial on the issue of procedural fairness. See Reply to Motion for Reconsideration at 8. *1200 The Defendants emphasize- that the Court may not make this determination about whether the process was fair without hearing directly from the participants, including TIR, Inc.’s co-founder and CEO. See Reply to Motion for Reconsideration at 8. The Defendants assert that the pooled shareholders’ sales , of their shares and warrants provide some- evidence of fair process for the cash.out of the Plaintiffs, demanding that the Court not only backtrack on its liability determination but also reconsider its denial of the Defendants’ right to a jury trial on fair process. See Reply to Motion for Reconsideration at 9-10.

9. April, 2017, Hearing.

The Court held a hearing on April 26, 2017, during which the parties briefly touched upon the Defendants’ intention to file the Motion for Reconsideration. See Transcript of Motion Hearing Before the Honorable James O. Browning United States District Judge, April 26, 2017, filed June 6, 2017 (Doc. 282)(“April Tr.”). Inserting their arguments as a verbal parenthesis within argument on another motion, the Plaintiffs maintained that the Motion for Reconsideration does not meet any of the standards that govern motions for reconsideration. See April Tr. at 260:23-261:2 (Kagen). The Plaintiffs asserted that, to get reconsideration pursuant to the Court’s written MO, the Defendants would need to indicate that the Court has erred with regards to a fact—he., not with regards to the law. See April Tr. at 261:2-5 (Kagen). The Plaintiffs began to protest that the Defendants had surprised them with the Motion for Reconsideration, but the Court interjected with a reminder that the Defendants, in fairness, had not received the Court’s MO until the previous day. See April Tr. at 261:20-22 (Court). The Court then permitted the Defendants to argue their Motion for Reconsideration so that the Plaintiffs could respond to the motion intelligently. See April Tr. at 261:20-22 (Court).

After assuring the Court that it meant no respect with its proposed Motion for Reconsideration, the Defendants insisted that the absence of procedural safeguards that lead to proof of entire fairness does not translate into a finding of liability. See April Tr. at 261:24-262:2-14 (DeMuro). The Court told the Defendants that it was not sure that it agreed with that proposition, explaining:

I guess at the burden-shifting stage, which we, I think, all agreed that you bore that burden, that was when you, I think, needed to come forward, with, evidence of the procedural fairness. And I guess that probably is where we are disagreeing, is that I didn’t think that you showed that.

April Tr. at 262:15-22 (Court). The Defendants suggested that they and the Court may just be describing the same principle in two different ways. See April Tr. at 262:23-25 (DeMuro). The Defendants presented the two positions as faces of the same coin:

If we are saying that even when the entire fairness burden-shifting review is applied, the defendant still gets to come forward and attempt to prove the fairness the entire fairness of the transaction. And I understand Your Honor to say, well, we haven’t done that.

But where that means we are, Your Honor, would be that—that would mean that Your Honor has made a ruling that all inferences in our favor—all inferences to be construed in our favor, number one, what is the process that we’re talking about and what are the factors to be determined?

Well, we know that the process that we’re talking about is the process that led up to the merger which both parties agree started—and by the plaintiffs’ *1201 own admission in their pleadings and their expert—started before the bidding process and that we have to evaluate that process to determine whether it was entirely fair and we don’t have to show—the absence of those procedural devices doesn’t mean that it wasn’t fair. We get to show substitutes. We get to say we didn’t to [sic] that but we did this. And we have the right to show— substitutes to show what, fairness.

April Tr. at 263:2-21 (DeMuro). The Defendants then continued their argument’s main line, saying that fairness is a quintessential fact issue. See April Tr. at 263:22-23 (DeMuro). The Defendants confessed that they could not see how the Court— making all inferences in the Defendants’ favor—can make a finding as a matter of law as to fairness. See April Tr. at 263:23-264:20 (DeMuro). According to the Defendants, they are entitled to prove substitutes, such as the Duff & Phelps auction process that led up to the bid, the arm’s length transactions, and the fully-informed plaintiff group. See April Tr. at 20-24 (De-Muro).

The Defendants then returned to their argument that entire fairness analysis is not bifurcated. See April Tr. at 265:9-266:9 (DeMuro). The Defendants contended that they have a right to make an argument before the jury that the merger process was fair. See April Tr. at 266:9-20 (DeMuro). The Defendants concede that they are foreclosed from using the business-judgment rule and a number of other defenses when the entire-fairness standard of review applies. See April Tr. at 266:21-23 (DeMuro). The Defendants insist, however, that they are not foreclosed from telling their side of the story. See April Tr. at 266:23-267:1 (DeMuro). The Defendants assert that this reading is especially true, because (i) the Plaintiffs purportedly “locked themselves together arm in arm to a contractual price that was higher than [the Defendants] had already given a tender notice for,” thereby making any minority vote inherently futile; and (ii) a premium bidding process and fully informed minority shareholders made an appraisal unnecessary April Tr. at 267:19-268:6 (DeMuro).

The Court then offered the Plaintiffs an opportunity to argue against the Motion for Reconsideration. See April Tr. at 269:2-3 (Court). The Plaintiffs immediately expressed dismay that the “entire tenor and thrust of this argument ... is fundamentally unfair to [the] plaintiffs.” April Tr. at 269:12-15 (Kagen). Clarifying what they meant, the Plaintiffs stated that they filed the Plaintiffs’ MSJ on September 14, 2015, and that the motion was fully briefed by October, 2015. See April Tr. at 269:16-19 (Kagen). The Plaintiffs averred that they were perplexed about how the Defendants could come into court one and a half years later to introduce new arguments, new cases, and new theories. See April Tr. at 269:20-270:10 (Kagen). The Plaintiffs then riposted the Defendants’ contention that the Court had issued its decision granting Plaintiffs’ MSJ with regard to liability just the previous day. See April Tr. at 270:11-12 (Kagen). According to the Plaintiffs, the Court issued the Order on the Plaintiffs’ MSJ on March 31, 2017. See April Tr. at 270:12-19 (Kagen). During subsequent correspondence with the Defendants, the Plaintiffs alleged, the Defendants gave no hint that they intended to argue a motion for reconsideration. See April Tr. at 271:4-272:5 (Kagen). Beyond this purported procedural unfairness in ambushing the Plaintiffs with the Motion for Reconsideration, the Plaintiffs protested, the Court’s previous motion for reconsideration decisions in other cases, such as United States v. DeLeon, 2016 WL 7242579 (D.N.M. October 28, 2016)(Browning, J.), correctly flag three factors that govern when and how a court should adjudge a motion for reconsideration. See *1202 April Tr. at 272:5-273:1 (Kágen). .First, the Plaintiffs maintained, the Court must as-, sess how thoroughly, the earlier ruling ad-, dressed the specific findings. See April Tr. at 273:2-3 (Kagen). According to the Plaintiffs, the Order was clear and thorough, and the MO was “extremely dear and very detailed.” April Tr. at 273:4-6 (Kagen), Second, the Plaintiffs contended, the Court should consider the case’s overall progress and posture. See April Tr. at 273:20-21 (Kagen). With the case rapidly barreling toward trial and the motion having been fully briefed in 2015, the Plaintiffs ascertain that the case’s posture leaves no question that the Defendants are not entitled to a mulligan at this late stage. See April Tr. at 273:21-274:4 (Kagen). Third, the Plaintiffs posited, the Court should. identify whether the movant presents any new controlling authority. See April Tr. at 274:5-8 (Kagen). The Plaintiffs maintained that the Defendants present no such new controlling authority in the Motion for Reconsideration. See April Tr. at 274:9-16 (Kagen).

After asserting that the Defendants had not • satisfied any of the , three United States v. DeLeon criteria, the Plaintiffs reemphasized that countenancing the Motion for Reconsideration would put the Plaintiffs in an unfair and prejudicial spot, because, the Defendants “ambushed” the Plaintiffs with it to “see if they can get this mulligan.” April Tr. at 275:12-21 (Kagen). The. Plaintiffs clarified that, if given adequate time to respond to the Motion for. Reconsideration, their opposition would not rest solely on the ambush, although they wished to hear at least a justification or grounds for the Motion for Reconsideration, or the Defendants’ alleged ambuscade. See April Tr. at 275:22-276:13 (Ka-gen).

The Court then asked the Plaintiffs whether anything it had .concluded in its treatment of the Plaintiffs’ MSJ that the Plaintiffs, standing behind the veil, would find difficult to defend in front of the Tenth Circuit. See April Tr. at 276:20-24 (Court). The Plaintiffs confessed that they saw nothing difficult to defend; adding that “the decision is well-reasoned.” April Tr. at 276:25-277:1 (Kagen). The Plaintiffs-nevertheless then noted: •

Your Honor does refer to the duty of entire fairness. I will tell Your Honor that some Delaware Chancery Court cases refer to it in just that way. And, in fact, I was listening to defense counsel and defense counsel did as well in the course of his argument. He said you found we breached the duty 'of entire fairhess. I think that is a semantic issue at best and I don’t think it raises any qualms. If the Court wants, it could say that it found that they breached their fiduciary duty of fair dealing.

Beyond that, no, I don’t think there’s anything in that decision that would give me discomfort before the Tenth Circuit.

April Tr. at 277:2-13 (Kagen). Pressing the Plaintiffs on this point, the Court posed a hypothetical:

Let’s say we have a jury trial and I’m instructing the jury on basically what I have given either a partial summary judgment or directed verdict. Does Mr. DeMuro have a point that I can’t tell them they violated the fiduciary duty yet because until there’s a determination of the fair price—or the fair value, we can’t yet say there’s a violation of fiduciary duty?

April Tr. at 277:14-20 (Court). The Plaintiffs insisted that they “don’t believe [the Defendants have] a point. The duty of entire fairness has two prongs, the duty of fair dealing and the duty of fair price.” April Tr. at 277:21-24 (Kagen). Caveating that he was arguing this point off-the-cuff, the. Plaintiffs’ counsel asserted that the Defendants’ position that the C.ourt cannot establish breach of fiduciary duty without *1203 first evaluating price is without basis. See April Tr. at 278:10-15 (Kagen). Referring the Court to In re Nine Systems, the Plaintiffs indicated that, in that case, the defendants had no fair dealing whatsoever. See April Tr. at 278:20-21 (Kagen). After trial, the Plaintiffs recounted, the Delaware Court of Chancery found that the defendants had breached fair dealing thoroughly and completely, but also found that the price which the plaintiffs received was a fair price. See April Tr. at 278:21-279:8 (Kagen). Reading the In re Nine Systems tea leaves, the Plaintiffs contended that the case indicts as a matter of law that, in the absence of fair dealing, liability is established. See April Tr. at 279:10-280:3 (Kagen). Therewith^ the Plaintiffs finished their discussion of the Motion for Reconsideration. See April Tr. at 280:25 (Kagen).

On the following day of the hearing, the Court provided the parties with its inclination on the Motion for Reconsideration. See April Tr. at 370:23-371:18 (Court). The Court noted its nuanced position:

I’m not inclined right at the moment to change what I have written but that’s between us lawyers getting ready for trial. I think it’s a different thing—and I have not—I’m not sure it’s necessary ... for me to tell the jury that I have found a breach of fiduciary duty. I think legally I have found that and I’m not inclined to change, but I’m not sure that it’s necessary to tell the jury that. So that may take some of the ... sting out of the opinion that I wrote.

It seems to me that if I can avoid doing that and still write good jury instructions and be fair, I don’t see any reason to get into that because that seems to me to be unfairly prejudicial, and I’d like the jury to focus on ... what their .task is to come up with fair value. And so that ... may be some of [sic] assistance to you as we think and I write jury instructions and talk to this jury in a way that we don’t have to say, this is what I’ve found, how did we get here? You know, I’m not sure we need to go back and tell them how we got there. We just need to focus them on what their job is. , '

April Tr. at 370:23-371:18 (Court). The Defendants thanked the Court for this insight into its thinking,, emphasizing that any instruction or - stipulation to the jury before trial that the Defendants breached the fiduciary duty of loyalty would be insurmountably prejudicial. See April Tr. at 371:19-372:3 (DeMuro). Shortly thereafter, the Court shared with the parties a fuller texture of its current inclination:.

I do think Mr. Kagen was right in the sense that—or at least this struck home with me yesterday and last night as I thought about it and read your three-page document and looked at the cases, I began to look at those case—that it’s hard to—if it’s not bifurcated in the sense that—and it is conjunctive—if you violated one, or if you can’t satisfy one, the fact that you can really satisfy the other doesn’t mean that you have not violated the fiduciary duty. That’s the reason I’m comfortable with what I have said and written. ,

But give that some thought because I think that’s—that’s a good way to think about it, that it is in the conjunctive. It’s not a disjunctive, it’s conjunctive. If you fail on one, you can’t say, well, I got a really fair price, and therefore, that remedies everything. You still have a breach. But, you know, in the end it may not make any difference, the price may be the same, you know. But it—but it is a—it is a conjunctive, rather than a disjunctive •■... and not bifurcated which are some of the cases you cited yesterday.

April. Tr. at 373:2-22 (Court). Not convinced in- the correctness of the Court’s inclination, the Defendants there is no *1204 question that the In re Trados opinion held that the defendants in that case did not breach their fiduciary duty—even though they had unfair process—when common stock had the same value, before and after. See April Tr. at 874:5-375:4 (DeMuro).

10. June, 2017, Hearing.

'The Court held another hearing on June 29, 2017, during which the parties again argued the Defendants Motion for Reconsideration. See Transcript of Motion Hearing Béfore the Honorable James 0. Browning United States District Judge, June 29, 2017, filed July 14, 2017 (Doc. 306)(“June Tr.”). While the Defendants were- discussing another motion in the morning, they indicated that their stance and arguments on that motion hinged in part on some guidance on the Motion to Reconsider. See June Tr. at 47:17-19 (De-Muro). The Court obliged, signaling that its inclination had not changed since the April, 2017, hearing:

I think we have to assume I’m not going to grant the motion to reconsider. We’ll see if we have time to argue it. But I have reviewed the materials after I left here and what’s been filed since and I’m not inclined to reverse it. I’ll try to give you a more comprehensive opinion on it at some point. But I think for purposes of planning for the trial, we have to assume that I’m going to stick to the ruling that I gave.

Juñe Tr. at 48:16-23 (Court). After lunch, the Court further illuminated its current position:

I guess just from a simplistic viewpoint ... it seems to me that the entire fairness [standard] is a conjunctive standard; it requires both procedural fairness and a fair price, and if you don’t have one, then you violated the standard. And so it seems to me that once I made a determination that there wasn’t procedural fairness and that there wasn’t a genuine issue of material fact on that score, that I was right to then also say that there was not a satisfaction of the entire fairness standard and that there had been a breach of fiduciary duty.

June Tr. at 101:24-102:8 (Court). The Court then asked the Defendants to explain what “is wrong with that sort of simplistic analysis there and its consistency with Delaware law.” June Tr. at 102:9-10 (Court). The Defendants repeated their position that the entire fairness standard is a unitary analysis. See June Tr. at 102:11-103:10 (DeMuro). The Defendants then presented a three-part proposition for why the Court had erred in granting the Plaintiffs’ MSJ with regard to liability. See June Tr. at 103:12-22 (DeMuro).-First, the Defendants asserted, the Court’s attempt to transport decisional law from the Delaware Court of Chancery into a jury trial context is precise and perilous. See June Tr. at 103:23-104:5 (DeMuro). For example, the Defendants offered:

[I]t is very perilous ... to transport those Chancery Court findings into a summary judgment ruling because- there is no case in Delaware, for example, that says just the absence of an independent appraisal fairness opinion leads to a breach of fair process, a breach of unfair process, because all of those cases—statistically speaking, all of those cases happen after a trial.

June Tr. at 104:5-12 (DeMuro). The Defendants acknowledged that one Delaware court in one case granted partial summary judgment and found a breach of fiduciary duty under entire-fairness review without analyzing price fairness. See June Tr. at 104:13-20 (DeMuro). According to the Defendants, this lone - exception—among “hundreds of eases” that the parties collectively have reviewed—proves the rule that entire fairness is a unitary standard. See June Tr. at 104:19-105:5 (DeMuro). - The *1205 Defendants then advised the Court that its Order and MO put the Court “a lot out on the limb in that respect.” June Tr. at 105:7 (DeMuro). Second, the Defendants insisted, the entire-fairness standard of review is a highly contextual analysis with no “radiant principles” that hallmark a fiduciary breach or lack of a fiduciary breach. June Tr. at 105:8-18 (DeMuro). Third, the Defendants posited that this case’s facts are unique, invoking their lengthy history of the merger transaction. See June Tr. at 106:3-107:13 (DeMuro). Seeming to take the Court to the woodshed on this point, the Defendants continued:

So you’ve got that very unique fact pattern that I don’t think is, number one, appropriate for summary judgment, and I just don’t see in the court’s analysis any weight at all—any analysis at all— given to those two facts other than just reciting them but the Court grappling in any way with that competitive bidding process and how ... the jury should be ... the fact-finder that decides whether the competitive bidding process that resulted in an admittedly premium value ... [is] a sufficient proxy for the procedural protections ... that trigger the entire fairness [standard], not the Court with respect. Similarly, with the fully informed, I don’t see the Court’s analysis of the significance of that fact on summary judgment with all facts decided in our favor.

June Tr. at 107:14-108:5 (DeMuro). The Defendants then explained that entire fairness is a judicial standard of review in the context of a conflicted transaction, with burden-shifting devices within that standard of review. See June Tr. at 108:6-19 (DeMuro). According to the Defendants, the core of the Court’s purported error in the Order and MO, therefore, is that, on pages 305 to 307 of the MO, the Court

essentially equates the absence of those two procedural devices and says, because the defendants didn’t have an independent committee, defendants didn’t have a majority of the minority vote, and therefore—that’s the court’s language— therefore, the court concludes that the defendants failed to meet their burden to prove they satisfied fiduciary duty.

So what Your Honor has done there, with great respect, is collapsed the analysis. If that were the analysis, there would be no—it’s over, we’re done, the case law wouldn’t even go any further. It wouldn’t be a burden-shifting device, it would be a liability-triggering test and that’s decidedly what it is not. We’ve cited the cases, the Reis case, the Cinerama case. There’s case after case which expressly says that the absence of those procedural devices does not trigger liability, it’s not a liability test. That’s exactly what the court has done and that is a big problem with respect to this order.

Essentially, the court’s order as it stands now basically has transformed that burden-shifting test into a liability test and that’s not ... the test _

June Tr. at 108:23-109:18 (DeMuro). The Defendants explained again that the absence of normal safeguards for minority shareholders, such as an appraisal and a minority shareholder vote, only shifts the burden to prove entire fairness rather than imposing liability. See June Tr. at 110:1-111:8 (DeMuro). The Defendants then insisted again that the bidding process is evidence that the Defendants met their burden of proving fair process. See June Tr. at 111:8-117:1 (DeMuro). The Defendants began to repeat their earlier assertion that the Court’s analysis of the entire-fairness standard diverged from how Delaware Court of Chancery had interpreted the standard when the Court interrupted to ask:

But is that because of the nature of them [cases in the Delaware Court of Chancery] all being bench trials rather *1206 than what we have here ... [:] the jury determining some issues? ... I mean, ... you wouldn’t—you couldn’t find a case that’s doing what I’m doing in Delaware; right?

June Tr. at 117:14-19 (Court), The Defendants, -seemingly contrary to their previously stated position, noted that one case in the Delaware Court of Chancery does what the Court did in its MO. See June Tr, at 117:20-22 (DeMuro). According to the Defendants, the court in Merritt v. Colonial Foods, Inc. granted partial summary judgment. See June Tr. at 117:20-22 (DeMuro). Conceding that they were willing to “spot” the Plaintiffs Merritt v. Colonial Foods, Inc., the Defendants agreed with the Court that difficulties accompany importing equitable concepts from the Delaware Court of Chancery into a legal jury trial. See June Tr, at 118:1—4 (DeMuro). In a bit of jujitsu, however, the Defendants insisted that this difficulty demands that the Court be ’exceedingly cautious not to unfairly deprive the Defendants of their summary judgment rights. See June Tr. at 118:5-8 (DeMuro),

Wending to their overarching argument, the Defendants then again emphasized that the entire-fairness standard is a standard of review, not a liability test, and that analysis of it “requires a great deal of thought and nuanced thinking." June Tr. at 118:17-18 (DeMuro). The Defendants granted' that the two entire-fairness prongs—fair process and fair price—are conjunctive: “You’ve got to have both under the entire fairness standard of review.” June Tr. at 118:21-22 (DeMuro). In the next breath, however, the Defendants insisted that “a fair price has to be considered, because it’s a unitary determination _” June Tr. at 118:22-24 (DeMuro),.

The Court interjected at that point, asking what practical .difference it would make,-from an evidentiary standpoint and with regard to the jury trial, if the- Court were to adopt the Defendants’ interpretation of Delaware case law on this issue. See June Tr. at 119:2-9 (Court). The Defendants contended that they worried that the Tenth Circuit might overturn the Court. See June Tr, at 119:10-17 (DeMu-ro). Probing more deeply, the Court inquired whether' the Defendants’ position abrogates a federal court’s authority to grant relief under rule 56 of the-Federal Rules of Civil Procedure for issues and individual claims, See June Tr. at 119:18— 23 (Court), The Defendants responded that their position could abrogate this power, but that this case’s fact pattern is highly unique. See June Tr, at 119:24-120:5 (De-Muro). Returning to its original question, the Court again asked the Defendants what practical difference it would make were the" Court to adopt the Defendants’ position on this issue, given that it also was inclined to not reveal to the jury that it had concluded that the Defendants had breached their fiduciary duty: '‘Because if the jury doesn’t know, or doesn’t have to know, that I have concluded that there’s a breach, of fiduciary duty, that I’ve made a legal determination, I guess I’m still not sure what difference that makes to our trial.” June Tr. ,at 120:8-12 (Court). The Defendants saw two ways that the liability determination would create a difference. See June Tr. at 120:13 (DeMuro). First, the Defendants asserted, a liability determination would cause reputational harm, to the individual Defendants, “who have dedicated their career.to building jobs and building companies in Tulsa as well as other activities ..that we’ve, talked about who now stand adjudged of having a breach of fiduciary duty,” June Tr, at 120:14-18 (DeMuro). Second,, the Defendants posited, the practical effect of summary judgment on liability is that it would erroneously cabin, the discussion of other evidence that can go before the jury, because “process infects and' affects price *1207 and price infects and affects process.” June Tr. at 121:5-13 (DeMuro). The Defendants then concluded their argument on the Motion for Reconsideration, See June Tr. at 126:14-15 (DeMuro).

The Court offered the Plaintiffs an opportunity to respond. See June Tr. at 126:18-19 (Court). The Plaintiffs immediately attacked the Defendants’ arguments in their Motion for Reconsideration as replete with “egregious error.” June Tr. at 126:23-127:1 (Kagen). Invoking Servants of the Paraclete v. Does, the' Plaintiffs asserted that the Defendants do not get a mulligan simply because, despite having no new facts, they disagree with the Court’s thorough and detailed ruling on the Plaintiffs’ MSJ. See June Tr. at 127:1-13 (Kagen). Seeking to parry the Defendants’ contention that the Court applied the law in a way that the Delaware Courts of Chancery have not, the Plaintiffs referred the Court to Merritt v. Colonial Foods, Inc., which the Plaintiffs maintained other courts had cited in subsequent cases. See June Tr. at 127:23-128:3 (Kagen). The Plaintiffs told the Court that the author of Merritt v. Colonial Foods, Inc. is Chancellor William Allen, to whom the Plaintiffs attached a prestigious pedigree: “Professor Allen is not only professor of law and business at the New York University School of Law, he serves of counsel to Wachtell Lipton, and is widely regarded presently as one of the preeminent national authorities on corporate governance.” June Tr. at 128:3-11 (Kagen). The Plaintiffs drew the Court’s attention to the Merritt v. Colonial Foods, Inc. court’s order that the “plaintiffs motion for partial summary judgment on the issue of liability will be granted.” June Tr. at 128:12-19 (Kagen)(quoting Merritt v. Colonial Foods, Inc., 505 A.2d at 766 ), The Plaintiffs contended that they had found the black swan that disproves what they purport to be the Defendants’ core argument, he., that no Delaware court, ever has granted partial summary judgment on process under the entire fairness standard. See June Tr. at 128:18-19 (Kagen). The Plaintiffs then recounted the facts in Merritt v. Colonial Foods, Inc., painting the defendant in that case as having frozen out minority 'shareholders in a self-dealing transaction. See June Tr. at 128:20-129:22 (Kagen). According to the Plaintiffs, the Delaware Court of Chancery concluded that the defendants had employed unfair process and thereby breached their duty of fair dealing. See June Tr. at 129:23-131:14 (Kagen).

The. Court interjected to nudge the Plaintiffs into discussing, the. Defendants’ argument that the bidding process was evidence of fair process.. See June Tr. at 131:20-132:1 (Court). As the Plaintiffs saw it, that argument holds, water like a colander, insofar as the bidding process “was not the process used to freeze out these shareholders” and therefore is outside the scope of the cash-out the Plaintiffs challenge, June Tr. 132:2-8 (Kagen). In a verbal parenthesis, the Plaintiffs continued, multiple individual defendants, in deposition testimony, disclaimed any fiduciary duty that they’had to the minority shareholders whom they forcibly cashed out. See June Tr. at 132:9-133:3 (Kagen). The main takeaway from Merritt v. Colonial Foods, Inc. in the Plaintiffs’ estimation, however, was that “one of the top'national authorities in corporate law, found and granted partial summary judg[ment] on the basis of process alone. He did not deal with the fairness of the price.” June Tr. at 133:4-9 (Kagen). Noting that the Defendants had asserted that the Merritt v. Colonial Foods, Inc, considered price, the Plaintiffs directed the Court to footnote seven in Merritt v. Colonial Foods, Inc., the following portion of which, the Plaintiffs displayed via the document camera:

“I note, for the guidance- of the parties, that disposition of the pending motions has not required me to make any judg *1208 ment concerning the fairness of the $3 per share merger price.” .... “It maybe that such price fully reflected the fair value of the minority shares” ... “even when a proportionate share of any value of-the derivative claims may have had is considered.” ... “That determination cannot be made on this record.”

June Tr. at 134:10-23 (Kagen)(quoting Merritt v. Colonial Foods, Inc., 505 A.2d at 766 n.7). The Plaintiffs then agreed with the Defendants’ conclusion that the case’s facts are unique, but argued that the uniqueness arises from the fact that it is

a rare case indeed where defendants act in such a manner to throw out plaintiffs without even the semblance of a process and are freely and happily able on deposition to admit they didn’t have a fiduciary duty at all and that it’s plaintiffs’ minority shareholders’ responsibility to get their price. It’s ... remarkable and there are almost no cases on that basis because the law is so clear.

June Tr. at 135:1-9 (Kagen).

The Court asked the Plaintiffs whether anything in the MO would make the Plaintiffs uncomfortable if they were in a position where- they needed to defend it in front of the Tenth Circuit. See June Tr. at 135:19-136:1 (Court). The Defendants insisted that they were comfortable with the MO but would phrase two conclusions in it differently. See June Tr. at 136:2-4 (Ka-gen). First, the Plaintiffs said, they would change the MO’s wording when it describes the breach of fiduciary duty: “Your Honor stated that defendants breached the duty of entire fairness. I believe that is the duty of loyalty of which entire fairness is the applicable standard. I would—if it were [up] to me, I would write that they breached the duty of loyalty.” June Tr.- at 136:5-9 (Kagen). When the Court asked for clarification, the Plaintiffs continued:

It is a breach of the fiduciary duty of loyalty. There are two fiduciary duties— three really—a fiduciary duty of good faith, a fiduciary duty of care, and a fiduciary duty of loyalty. They hav

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