Fairness Opinion

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FAIRNESS OPINIONS: HOW FAIR ARE THEY AND WHAT CAN BE DONE ABOUT IT?
LucIAN ARYE BEBCHUKt
AND MARCEL KAHAN*

INTRODUCTION

Fairness opinions have become a regular feature of every major corporate control transaction. Whether in negotiated mergers,1 freeze-out mergers, 2 hostile tender offers, 3 friendly tender offers,4 self-tenders, 5 leveraged buyouts, 6 negotiated share repurchases, 7 or negotiated sales of treasury stock,8 directors seek the blessing of investment banks before approving transactions or adopting defensive measures. These banks give their blessings in the form of fairness opinions, which usually consist of short letters that state an opinion about whether a proposed transaction is "fair" or "adequate." 9 In addition, the banks often give presentat Professor of Law, Harvard Law Schaool; Faculty Research Fellow, National Bureau of Economic Research. * Visiting John M. Olin Scholar, fall 1988, Harvard aw School; Associate, Kramer, Levin, Nessen, Kamin & Franke. For financial support, both authors are grateful to the Harvard Law School Program in Law and Economics, which is funded by the John M. Olin Foundation. Lucian Bebchuk's work was also supported by the National Science Foundation. The authors thank Irene Khaitman for her helpful research assistance and Andrew…...

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