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SMACHLO v. BIRKELO

Civ. A. No. 83-233-JLL.

576 F.Supp. 1439 (1983)

Walter SMACHLO, as a Trustee of Consultants Retirement Trust suing derivatively as a stockholder in the right and for the benefit of The El Paso Company, Plaintiff, v. Ralph J. BIRKELO, Howard Boyd, Michael W. Curry, Robert N. Harbor, William V. Holik, Jr., John R. Hubbard, Ben F. Love, David F. Mackie, Jack D. McCarthy, John B. Megahon, Richard S. Morris, E.G. Najaiko, W.D. Noel, Travis H. Petty, Willard R. Rockwell, Jr., Billy B. Ross, Kenneth Rush, Eli Wackstein, R-H Holdings Corporation, Burlington Northern Inc., and The El Paso Company, Defendants.

United States District Court, D. Delaware.

December 27, 1983.

Attorney(s) appearing for the Case

Steven D. Goldberg and Michael Goodrick of Theisen, Lank, Mulford & Goldberg, Wilmington, Del., Edward Nathan, New York City, of counsel, for plaintiff.

A. Gilchrist Sparks, III, and Lawrence Hamermesh of Morris, Nichols, Arsht & Tunnell, Wilmington, Del., Marc P. Cherno, Stephen D. Alexander and Stuart A. Blander of Fried, Frank, Harris, Shriver & Jacobson, New York City, of counsel, for defendants Burlington Northern, Inc. and R-H Holdings Corp.

Robert K. Payson of Potter, Anderson & Corroon, Wilmington, Del., Mudge, Rose, Guthrie, Alexander & Ferdon, Wachtell, Lipton, Rosen & Katz, New York, N.Y., of counsel, for defendants The El Paso Co. and individual defendants.

OPINION

LATCHUM, Senior District Judge.

It was approximately one year ago that Burlington Northern, Inc. ("Burlington"), a Delaware corporation with its principal place of business in Seattle, Washington, made a successful tender offer for 21 million shares of the El Paso Company ("El Paso"), a Delaware corporation with its principal place of business in Houston, Texas. One result of this tender offer has been a flood of litigation in the Delaware state...

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