Epstein

Opinion by Judge WILLIAM A. NORRIS; Dissent by Judge O’SCANNLAIN, Circuit Judges.

This case is before us on remand from the United States Supreme Court. In Matsushita Electric Industrial Co. v. Epstein, — U.S. --, 116 S.Ct. 873 , 134 L.Ed.2d 6 (1996) (“Matsushita”), the Court reversed our judgment in Epstein v. MCA, Inc., 50 F.3d 644 (9th Cir.1995) (“Epstein I”), and remanded “for proceedings consistent with this opinion.” Matsushita, — U.S. at-, 116 S.Ct. at 884 .

The ease is a class action brought by former MCA shareholders who surrendered their stock in response to a tender offer by Matsushita. In Epstein I, the named plaintiffs (“the Epstein plaintiffs”) contended, inter alia, that Matsushita’s tender offer violated the so-called “all-holder, best-price” rule of SEC Rule 14d-10 1 by paying a premium for the stock of MCA’s chairman and chief executive officer, Lew Wasserman, and MCA’s chief operating officer, Sidney Sheinberg. 2 The district court awarded summary judgment to the defendants, and the Epstein plaintiffs appealed.

In Epstein I we reversed the summary judgment for Matsushita, holding that its agreement to- purchase Mr. Wasserman’s stock for consideration…

dissenting:

Because I wholeheartedly agree with the Supreme Court’s determination that the ádequaey of representation issue was fully and fairly litigated and necessarily decided in the Delaware courts, I must respectfully dissent from the opinion this court announces today. In fashioning its own version of the events as they unfolded before the Delaware courts, the majority posits that the plaintiffs’ adequacy claims were neither “actually litigated” before the Chancery Court nor “finally decided” by that court. With all deference, I believe that the undisputed facts tell a different story.

I

The argument urged upon us by the Epstein plaintiffs certainly engenders sympathy and has some force. Irrespective of whether the Delaware attorneys’ conduct in the state court rose to the level of constitutional deprivation, their act of referring, in a single breath, to their own clients’ claims as “fraught with uncertainty,” “weak,” and “horrendous” suggests less than dynamic advocacy. Regrettably, however, and unlike my colleagues, I do not believe that we are in a position to pass judgment on the merits of this appeal. The very issue presented to our court for decision today —…