Here there are two sophisticated parties dealing with commercial matters with which each is concededly familiar. Although most provisions, including the one concerning arbitration, are predetermined and incorporated into the standard form contract, a promoter has a clear choice. He can either agree to accept the contract with all its terms or he can refuse and decline to promote the concert. The consequences to the promoter of refusal to accept the contract are not as severe as those incurred by the weaker party in a true <mask> case. Here the promoter simply foregoes his opportunity to engage in a profit-making enterprise. If he continues to refrain from these engagements, he may have to terminate his role as music entrepreneur and assume a new livelihood. Certainly, the choice of changing one’s line of business is not to be taken lightly. However, it is not so severe as to be considered no real choice at all.


First, there is some dispute whether qualified nonunion musicians are available. Even assuming that petitioner is correct that nonunion musicians are virtually nonexistent, this is not an appropriate case to apply the <mask> doctrine. Adhesion contracts traditionally involve parties of vastly different bargaining positions, with the *26stronger party exercising his power in such a way as to take advantage of the weaker party’s lack of sophistication in such matters. (Jones v Star Credit Corp., 59 Misc 2d 189.)


In January 2017, Nielsen filed a complaint against Applied and its two subsidiaries (AUCRA and CIC) (collectively defendants). Nielsen sought a declaration that the RPA is void and its provisions are unconscionable, and sought damages for defendants' misrepresentations and breach of the implied covenant of good faith and fair dealing. Nielsen alleged the RPA is an <mask> with unfair and unconscionable terms; the RPA was written and structured to purposely mislead Nielsen and to intentionally avoid and circumvent California insurance laws; and the RPA is an illegal contract because it was not filed with or approved by the California Department of Insurance (Insurance Department), as required by Insurance Code section 11658 and title 10 of the California Code of Regulations section 2268.1 Nielsen alleged "EquityComp is the brainchild of Applied," which caused CIC to issue an approved guaranteed-cost workers' compensation insurance policy "to give the appearance of compliance with the California insurance regulations, although CIC is never responsible for making payment on claims using its own money."


This is language which is typically contained in an “<mask>.” The phrase “adhesion contract” is shorthand descriptive of standard form printed contracts prepared by one party and submitted to the other on a “take it or leave it” basis. The law has recognized that there is often no true equality of bargaining power in such contracts and has accommodated that reality in construing them (see Kessler, Contracts of Adhesion, 43 Col L Rev 629).


In Tunkl , supra , 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, our high court identified six characteristics typical of contracts affecting the public interest: " '[1] It concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized <mask> of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.' " ( Id. at pp. 98-101, 32 Cal.Rptr. 33, 383 P.2d 441, fns. omitted.) Not all of these factors need to be present for an exculpatory contract to be voided as affecting the public interest. ( Id. at p. 98, 32 Cal.Rptr. 33, 383 P.2d 441.) However, in Tunkl , the Supreme Court found all six factors were implicated and, on that basis, concluded that a release from liability for future negligence imposed as a condition for admission to a charitable research hospital affected the public interest and was thus invalid. ( Id. at pp. 94, 101-102, 32 Cal.Rptr. 33, 383 P.2d 441.) In making this determination, our high court found "hardly open to question" the fact that "the services of the hospital to those members of the public who are in special need of the particular skill of its staff and facilities constitute a practical and crucial necessity." ( Id. at p. 101, 32 Cal.Rptr. 33, 383 P.2d 441.)


The fact that the Public Service Law and Public Service Commission exist underscores the public interest in the relationship between Con Ed and its customers (People ex rel. Delaware & Hudson Co. v Stevens, 197 NY 1, 9). However, I must evaluate the nature and extent of that public interest in *134order to determine whether Con Ed’s exculpatory clause is void because it violates the public policy of this State. The scope of such an analysis was best enunciated in the case of Tunkl v Regents of Univ. of Cal. (60 Cal 2d 92). There the court considered (pp 98-101) the following six criteria as indicators that an exemption must be declared invalid: (1) "[The contract] concerns a business of a type generally thought suitable for public regulation.” (2) "The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.” (3) "The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.” (4) "As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.” (5) "In exercising a superior bargaining power the party confronts the public with a standardized <mask> of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.” (6) "[A]s a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.”


The Legislature has a goal to foster cooperative housing; this is not in conflict with the appellate decisions to include all leases under Real Property Law § 235-b. Cooperative tenants whose leaseholds are for extended terms and whose monthly charges are based on the actual or projected costs of maintaining the building should be held to their obligations under the lease, just as the owning corporation is held to its obligations. Placing the burden to remove the violations on the owner where the tenant either refuses or insists on enforcing his or her rights is a means of enforcing the housing standards set forth in the HMC. Placing the ultimate burden of repair expenses on the party who has freely agreed to bear them is not an injustice and does not impinge on the rights of a tenant to decent housing. It is common knowledge in New York that cooperative apartments are not necessarily inexpensive. Indeed, petitioner paid over $100,000 for her apartment. It cannot be said that the lease at issue is an <mask> from which the tenant needs protection.


While Bartolata calls the plan a contract of adhesion, she in *1014effect points to the more central question of its legal significance. (A finding that the plan was an <mask> would not benefit her, because even the strictest construction of the plan’s terms would leave her liable for draws.) It is settled law that without a specific provision in the contract of employment a commissioned employee cannot be required to repay draws when his employment ends (see, Posner v Precision Shapes, 271 App Div 435, 439; Carter v Bradlee, 245 App Div 49, 52, affd 269 NY 664). When an employee in a negative draw position executes an agreement to repay that draw, the agreement is void as lacking consideration (Hebberd & Co. v Blake, 175 NYS 478).


The <mask> doctrine is intended to protect the innocent consumer who has no real choice but to accept terms even if unreasonable to acquire items fundamental to a decent standard of living. This does not apply to a sophisticated music promoter in a commercial situation. Here, the alternative to the contract is lost profit; in a consumer’s case, the alternative is a diminished standard of living. While New York’s application of the adhesion contract doctrine to invalidate a grossly unfair contract or contractual provision has been extended somewhat beyond the necessities of life’s situation from which it originated, it has not reached the type of sophisticated business dealings involved here.


In Chandler v Aero Mayflower Tr. Co. (supra), the court said (p 135): "In cases where, as in the instant controversy, questions of mistake and fraud are raised in connection with the formation of contracts limiting the liability of a common carrier, relevant circumstances and policies call for a not so strict application of pertinent principles of contract law to afford reasonable protection to the shipper. This is so because arrangements limiting liability contravene a strong public policy expressed in the common law come within a carefully defined exception to the general thrust of Section 20 (11) of *999the Interstate Commerce Act placing on the carrier absolute liability for damage, and are in operation attended by characteristics of an <mask>.”


Finally, just as the trial court here found the carriers' form contract was not controlling on the issue of independent contractor/employment status because it was an <mask> that the carriers entered into "on a take-it-or-leave it basis," the Gonzalez court noted "there was no indication that [the carrier] had any real choice of terms of employment or contract." ( Gonzalez, supra , 46 Cal.App.4th at p. 1594, 54 Cal.Rptr.2d 308.) The Gonzalez court concluded: "The totality of the circumstances substantiates the ... conclusion that [the publisher's] carrier agreement, which purported to 'disavow' an employer-employee relationship, was a subterfuge to avoid the workers' compensation laws of California. 'The label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced.' " ( Ibid. , quoting Borello, supra , 48 Cal.3d at p. 349, 256 Cal.Rptr. 543, 769 P.2d 399.)


earlier form of consumer <mask>. See Berkson v. Gogo LLC, 97 F. Supp. 3d 359, 366 n.1 (E.D.N.Y. 2015). A shrinkwrap agreement differs from the four online “wrap” agreement types in that “[a]ssent to a shrinkwrap agreement is not demonstrated at the time of purchase (like in the clickwrap context), and instead the customer’s actions after receiving the product or service demonstrates his assent.” Savetsky v. Pre-Paid Legal Servs., Inc., 2015 U.S. Dist. LEXIS 17591, at *8 (N.D. Cal. Feb. 12, 2015). “A classic shrinkwrap agreement generally involves ‘(1) notice of a


ETS adhered to its stated internal policies and procedures by offering to Brian the options provided for in their contract, but by failing to make even rudimentary efforts to evaluate or investigate the information furnished by Brian, information that was clearly relevant to a rational decision-making process, ETS reduced its contractual undertaking to an exercise in form over substance. ETS, therefore, breached its <mask> with Brian by failing to act in good faith in the course of determining whether there was reason to question the validity of Brian’s SAT score. Under these circumstances, Brian is entitled to the benefit of his contract with ETS and since the subject matter of that contract is undeniably unique, specific performance is the proper remedy. The court, therefore, directs ETS to release, without comment or qualification, the November 2, 1991 SAT scores of Brian Dalton.


The parties have agreed that the law of the state of Washington will govern their agreement. We must ascertain whether the parties' choice-of-law provision should be given effect. A court analyzes the enforceability of a choice-of-law provision in a consumer <mask> by applying the approach adopted by the Supreme Court in Nedlloyd Lines B.V. v. Superior Court (1992) 3 Cal.4th 459, 11 Cal.Rptr.2d 330, 834 P.2d 1148 (Nedlloyd) with respect to arm's-length negotiated contracts. (Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 917-918, 103 Cal.Rptr.2d 320, 15 P.3d 1071.) "California ... has no public policy against the enforcement of choice-of-law provisions contained in contracts of adhesion where *14they are otherwise appropriate. [Citations.] More importantly, Nedlloyd's analysis contains safeguards to protect contracting parties, including consumers, against choice-of-law agreements that are unreasonable or in contravention of a fundamental California policy." (Id. at p. 917, 103 Cal.Rptr.2d 320, 15 P.3d 1071.)


In the case of the Con Ed tariff, the consumer is confronted with a contract of adhesion which makes no provision whereby a purchaser may buy additional protection against negligence (Danna v Con Edison Co., 71 Misc 2d 1029). Were such additional protection available, the evils of an <mask> would be vitiated because the bargaining positions of the parties would be equalized in a manner approved by our courts. In Weld v Postal Tel.-Cable Co. (199 NY 88, supra), the Court of Appeals held that a telegraph company could exempt itself from liability for ordinary negligence which occurs in the course of sending messages at the regular rate because the sender had the option to purchase greater protection, up to and including insurance protection for an improperly transmitted message. Weld is relied upon by defendant, and has been cited in a number of lower court cases to sustain the validity of exculpatory clauses (see, e.g., Abraham v New York Tel. Co., 85 Misc 2d 677, supra; Held v New York Tel Co., 73 Misc 2d 582; Warren v New York Tel. Co., 67 Misc 2d 348; Mortenson v New York Tel. Co., 179 Misc 289). However, the significance of Weld is better understood by an examination of the second Weld opinion (210 NY 59, 78, supra), where the court held "The conclusions reached in this case do not tend to subject the public to the mercy of a telegraph company. While such a corporation is invested with certain privileges to be exercised by it for the public benefit, its liability must be measured by reasonable limitations. The opportunity is afforded to one doing business with it to protect himself from danger incident to error likely to arise. A failure to exercise the privilege extended at a small expense may result in a loss which might have been obviated by the injured party in the first instance.” In other words, the message sender had the choice to purchase greater responsibility; the fact that he was effectively left remediless was the result of his own conscious waiver of his right to purchase greater protection and not *137because the company had unilaterally exempted itself from all liability for negligence. On the same theory, a railroad’s exemption from negligence was enforced where the railroad offered a full price ticket with complete protection and a reduced price ticket with no protection (Anderson v Erie R. R. Co., 223 NY 277; cf. Lebron v New York City Tr. Auth., 44 NY2d 782; Restatement, Contracts, § 575, subd [1], par [b]; subd [2]), while an airline’s attempt to limit its liability for negligence by terms printed on the purchased ticket without offering various rates with corresponding degrees of liability was held invalid (Conklin v Canadian-Colonial Airways, 266 NY 244). Another exception was recognized in Hamilton Employment Serv. v New York Tel. Co. (253 NY 468, supra), where the telephone company was charged with negligence in the preparation of its directories. Although in Hamilton the defendant offered its customers no choice of rates for listing in the telephone directory, the Court of Appeals upheld the exemption from liability on the ground that the activity involved was only a subordinate function of the public service corporation (Hamilton Employment Serv. v New York Tel. Co., supra, p 471; see, also, Santa Fe Ry. v Grant Bros., 228 US 177, 184-188). The decision then added as an analogy (p 471) that "[c]ourts do not hold a carrier to the same degree of liability for mistakes in time tables as for negligence in operation of trains”. Thus, Hamilton does not depart from Weld, which involved the primary function of a telegraph company and a choice of rates.


There is no evidence that the claimant complied with the 180-day clause of the contract. Although the clause does not discuss the ability of the customer to commence a cause of action against E-Z Pass, the parties can by contract incorporate into their agreement a clause that would give E-Z Pass the opportunity to investigate challenges to billings before a customer could commence a suit. The court will not deal with the issue of whether or not this “Agreement” is an <mask> and to what degree, if any, a customer can negotiate the terms of the agreement. Although the court somehow doubts that the customer can negotiate any of the terms of the agreement beyond what appears in the standard form.


The issue of surprise is less clear-cut, but it is by no means absent. The Agreement *517seems intended as a parody of the classic <mask>. Written in a single block, without paragraphs to delineate different topics, the arbitration clause is visually impenetrable. Because the entire Agreement occupies less than two pages, there was no practical need for One Toyota to choose a small typeface. Yet the font chosen is so small as to challenge the limits of legibility. Further, the language is legalistic, and the text is complex. The second sentence of the arbitration clause manages to occupy 11 lines of text, notwithstanding the tiny typeface. Some of the language, such as the reference to Code of Civil Procedure section 1284.2, requires a specialist's legal training to understand. It cannot be said that One Toyota was attempting to hide the ball by burying the arbitration clause in an otherwise prolix agreement, since the Agreement consists almost entirely of the arbitration clause. Yet the Agreement is drafted and composed in a manner, again, to *709thwart rather than promote understanding.7 For these reasons, we conclude that the degree of procedural unconscionability was extraordinarily high.


The Agreement indicates the parties are described as having an independent contractor relationship, and the trial court relied on this feature considerably for its decision. However, plaintiff testified he had to sign the Agreement as stated because otherwise defendant would not have provided him with a job. The Agreement was drafted by defendant and plaintiff had no say in its content. The Agreement thus has the appearance of an <mask> in that it was not the product of bargaining between the parties. There are several cases that note the mere fact the employment *773agreement characterizes the relationship of the parties in a particular way is not determinative of the actual legal status of the parties. ( Borello , supra , 48 Cal.3d at p. 349, 256 Cal.Rptr. 543, 769 P.2d 399 ; Estrada , supra , 154 Cal.App.4th at pp. 10-11, 64 Cal.Rptr.3d 327.) Rather than assume the relationship *1223from the content of an agreement that was drafted exclusively by defendant, the court was obligated to delve deeper into the parties' actual conduct and the economic realities of their relationship.


The essential elements to establish a case for fraud are “representation of a material existing fact, falsity, scienter, deception and injury.” (New York Univ. v Continental Ins. Co., 87 NY2d 308, 318 [1995] [emphasis and internal quotation marks omitted].) “[D]uress is a species of fraud in which compulsion in some form takes the place of deception in accomplishing an injury.” (Candid Prods. v SFM Media Serv. Corp., 51 AD2d 943, 944 [1st Dept 1976].) To establish duress, a party needs to show “actual or threatened violence or restraint contrary to law.” (Id.) New York appellate courts do not distinguish between duress and coercion as torts. (See, e.g., Paull v First UNUM Life Ins. Co., 295 AD2d 982, 983 [4th Dept 2002]; Matter of Wilson v Jackson, 161 AD2d 652, 653 [2d Dept 1990]; Perl v Perl, 126 AD2d 91, 93-94 [1st Dept 1987].) Inasmuch as coercion is a tort distinct from duress, however, it also requires as an element that the defendant have acted illegally. (Grandonico v Consortium Communications Intl., Inc., 566 F Supp 1288, 1293 [SD NY 1983].) A claim that an agreement is unenforceable as an <mask> requires a showing that “the party seeking to *411enforce the contract has used high pressure tactics or deceptive language in the contract and [that] there is inequality of bargaining power between the parties.” (Morris v Snappy Car Rental, 84 NY2d 21, 30 [1994] [internal quotation marks omitted].)


“Contracts of adhesion” are contracts prepared by one party and presented to another, in a disadvantageous bargaining position, on a “take it or leave it” basis. (Barrette v Home Lines, 168 F Supp 141,143, n 4; Standard Oil Co. of Calif. v Perkins, 347d 379, 383, n 5.) However, where parties voluntarily deal at arm’s length or in a competitive marketplace, no <mask> exists. (Equitable Lbr. Corp. v IPA Land Dev. Corp., 38 NY2d 516, 523.) Nor does the defense of contract of adhesion apply to publicity bid contracts, in the absence of extraordinary circumstances. (Meaott Constr. Corp. v Ross, 100 Misc 2d 767, 772.) Since the supplier of the services, Moran, was under no obligation to enter a bid, the City’s acceptance of Moran’s voluntary offer constituted a binding agreement, untainted by being one of adhesion.


hospital. The admission room of a hospital contains no bargaining table where, as in a private business transaction, the parties can debate the terms of their contract. As a result, we cannot but conclude that the instant agreement manifested the characteristics of the so-called <mask>. . . .’ ” (Wheeler, 63 Cal.App.3d at pp. 356-357.) Here, Haupt admits Dameron requires all patients it treats--or their family members--to sign the COAs. Thus, the COAs are adhesion contracts.


Initially, the court rejects the petitioner’s contention that the arbitration agreement is unenforceable because it constitutes a contract of adhesion. The essence of an <mask> is that it is offered on a take it or leave it basis to a consumer who has no realistic bargaining strength and cannot obtain the desired services or goods elsewhere without consenting to the identical contract terms (Matter of K. D. v Educational Testing Serv., 87 Misc 2d 657, 662). That is not the case here. The petitioner, not confronted with a medical emergency, could have obtained an elective abortion elsewhere at countless other health facilities in the metropolitan area without being compelled to arbitrate any alleged malpractice claim arising from its performance.


For this reason, the majority's assurance that an identical arbitration provision "might pass muster under less coercive circumstances" (maj. opn., ante , 251 Cal.Rptr.3d at p. 735, 447 P.3d at p. 697) rings hollow. Because of the economic pressures faced by *147prospective and existing employees, the majority's finding of unconscionability will surely be the rule in the vast majority of cases in the employment context, regardless of the other circumstances the majority cites. In other words, with few exceptions, as to employees presented with a "sign or you're unemployed" choice, the ability to read, reflect, and understand the agreement does not make the situation *744"less coercive" in any meaningful sense. (Maj. opn., ante , 251 Cal.Rptr.3d at pp. 733-734, 447 P.3d at p. 696.) More broadly, because it would not be difficult for a court to find a "relatively low degree of substantive" unfairness in an <mask> (maj. opn., ante , 251 Cal.Rptr.3d at p. 729, 447 P.3d at p. 693), the majority's new rule casts significant doubt on the enforceability of many contractual terms in the employment context, not just arbitration provisions.


This same degree of "procedural surprise" does not appear to exist under the circumstances of this case, and we are not convinced that California courts would agree with the Brown court's application of California law (see, e.g., Lane, supra, 224 Cal.App.4th at pp. 691-692, 168 Cal.Rptr.3d 800 [no procedural unconscionability despite <mask> referencing AAA rules but not including rules]; Peng v. First Republic Bank (2013) 219 Cal.App.4th 1462, 1472, 162 Cal.Rptr.3d 545 ["failure to attach the AAA rules, standing alone, is insufficient grounds to support a finding of procedural unconscionability"]; Bigler v. Harker School (2013) 213 Cal.App.4th 727, 737, 153 Cal.Rptr.3d 78 [no procedural unconscionability despite failure to attach AAA rules, and even in earlier cases, failure to attach rules was of "minor significance" in analysis] ), or that the Washington Supreme Court would see the issue the same way if it were to interpret Washington law in circumstances such as those before us.


The choice offered to minority shareholders in a <mask> situation should be contrasted with the "freezeout” (or "cash-out”) merger method of takeover, which eliminates the interest of minority shareholders without choice on their part. In a freezeout merger, the target corporation is merged into a wholly owned subsidiary of the acquirer and the minority shareholders in the target corporation are forced to surrender *78their shares, either for the price of a prior tender offer or for a price determined by a special court appraisal proceeding (6 Cavitch, Business Organizations § 127.10 [1], [6]). "Freezeouts, by definition, are coercive: minority stockholders are bound by minority rule to accept cash or debt in exchange for their common shares, even though the price they receive may be less than the value they assign to those shares” (Brudney and Chirelstein, A Restatement of Corporate Freezeouts, 87 Yale LJ 1354, 1357).


. It is of no moment that in the letter and attached redemption notice, CHE and the trustee took the position that tendered bonds would remain outstanding. That was an erroneous legal position. The indenture mandates that all bonds purchased are required to be canceled, meaning that bonds purchased by CHE in a <mask> are not outstanding. That CHE and its bond counsel said otherwise in their pre-transaction written correspondence does not make it so.


It must be remembered that a <mask> is fundamentally a simple invitation by the offeror to buy the stock of a corporation within a specified period of time at a specified price (see, 8 Cavitch, Business Organizations § 166A.01; Note, The Developing Meaning of ”Tender Offer” Under the Securities Exchange Act of 1934, 86 Harv L Rev 1250-1251). Because the stockholder is under no compulsion to turn over possession of his shares in response to a tender offer, the majority shareholder’s duty when making a tender offer is generally limited to full disclosure (see, Joseph v Shell Oil Co., 482 A2d 335, 341 [Del Ch 1984]).


. The word “purchased” in section 308 is not defined. However, it is not ambiguous. When CHE acquired bonds in the <mask>, it purchased them from bondholders. That a tender offer itself is not specifically discussed in the indenture is of no moment. A tender offer is simply an offer to purchase bonds at a specific price and, therefore, falls within the purview of section 308. Indeed, the legal opinion letter on which CHE relies described the tender offer as a purchase. (See document No. 17 at 35 [“the proposed implementation of the Tender Offer whereby CHE purchases the Tendered Defeased Bonds” (emphasis added)].)


In his complaint, the plaintiff alleges that the defendants, two publicly owned corporations and various members of their board of directors, with intent to deceive and defraud him and a class of 3,000 other holders, of an estimated 300,000 shares of the common stock of Elgin National Industries, falsely and fraudulently advertised the value, and facts which affected the value, of the stock of the corporation, and thereby induced him and other stockholders to sell their shares to the corporation, at a loss to the class in the sum of 18 million dollars. Plaintiff has commenced this class action on behalf of himself and other persons who tendered their shares of stock of Elgin National Industries, Inc., in response to the aforesaid misleading <mask> on and after March, 1976. The plaintiff also claims that by disseminating the alleged false information the defendants violated sections 339-a and 352-c of the General Business Law.


This premise is erroneous. Section 308 provides that “[a]ll Bonds paid, redeemed or purchased, either at or before maturity, when such payment, redemption or purchase is made, shall thereupon be cancelled by the Trustee and shall not be reissued but shall thereupon be destroyed by the Trustee.” (See document No. 12 at 45 [emphasis added].) Consequently, it does not matter if CHE redeemed the bonds or purchased11 them in a <mask>. In either event, the bonds, once acquired by CHE, had to be canceled by the trustee and could not be resold. CHE’s total return swap transaction with Merrill therefore violated section 308. It also does not matter that CHE technically did not sell or reissue the bonds, as opposed to retaining title while synthetically selling to Merrill via a total return swap. The indenture is clear that the bonds, once acquired by CHE, “shall thereupon be destroyed by the Trustee,” making the Merrill transaction impossible12 without violating the indenture.


Turning to the plaintiff’s assertions of specific proof of negligence, the only evidence which might support such a finding is the plaintiff’s testimony in rebuttal that Braver, the employee of the defendant with whom the plaintiff dealt, ‘ ‘ spoke to me after May 13th, and he says to me, ‘ Mr. Teichberg, your papers, your <mask> papers, were found on the floor.’ This Mr. Braver said to me.” When cross-examined on the point, both Braver and Miss Farhi (neither of whom is an employee of the defendant any longer), expressly denied that such an incident had ever taken place or that -such a conversation was had.


Seven months after the commencement of this action, on January 26, 1976, plaintiff served an amended complaint objecting to the proposed merger between UFS and Libby, seeking compensatory and punitive damages, accounting for unjust enrichment, a rescission of sales of stock made pursuant to the <mask> and an injunction against the proposed merger. Concomitant with the amended complaint plaintiff moved for a preliminary injunction to restrain the defendants *170from taking any further steps to consummate the UFS-Libby merger.


Nestle and its affiliates began purchasing Libby shares in 1960 and have been the principal shareholders of Libby since 1967, when they acquired 36% of the outstanding common *169stock. In 1970, its holdings increased to 51%, and they stood at 61% on May 29, 1975. On that date UFS, the Nestle affiliate holding the Libby shares, announced a cash <mask> to purchase the remaining outstanding shares of Libby common stock at 8 Vs (it . was then trading on the stock exchange at 4%), and its $1,000 convertible debentures at $700 (trading about $580 at market). In the offer to purchase, UFS announced that if it acquired more than 90% of the Libby common stock, it intended, "as soon as reasonably practicable” to merge Libby into UFS, which under Maine law could then be done without any meeting or vote of shareholders. Shareholders remaining at the merger would be paid 8 Vs per share, with dissenting shareholders having the right to appraisal and judicial determination of the fair value of their shares if they thought they were worth more.


. This, too, is essentially the converse of a question posed by CHE’s counsel during oral argument. («See document No. 43, July 28, 2015 tr at 20 [“The point is, what would (plaintiffs) have done if (CHE) followed the letter of the contract”].) The answer, of course, is not lose their bonds since CHE would not have done the transaction if it thought the tendered bonds were unavailable to be used to transact with Merrill. CHE’s arguments that the marginal act of redeeming plaintiffs’ bonds was legal or that CHE was planning on redeeming those bonds regardless of the outcome of the <mask> are, therefore, unavailing. Had CHE not contravened the indenture, they would never have tendered or called any bonds. This renders plaintiffs’ damages claim to not be speculative. In any event, as plaintiffs correctly argue, “[n]ominal damages are always available in breach of contract actions.” (Kronos, Inc. v AVX Corp., 81 NY2d 90, 95 [1993].)


By letter dated March 29, 2011 (the letter), CHE notified bondholders that it “has directed the Bond Trustee to call all of the Bonds for redemption at 100% on May 18, 2011, except for those Bonds tendered to us and purchased during our <mask>, which is described in this letter and in the enclosed materials.” (See document No. 15 at 2.) The letter explained that “the call for redemption is irrevocable” and that “[a] 11 un-tendered Bonds will be redeemed at par, and this redemption is not contingent upon the success of our tender offer.” {See id. [italics removed].) The letter then sets forth CHE’s tender offer, stating that all bondholders who tendered their bonds by April 26, 20115 would be paid 101% of the principal amount. Payment would .be made on May 18, 2011. All bonds not tendered would be redeemed at the price set forth in section 301 of the indenture: 100% of the principal amount. The redemption would also occur on May 18, 2011, immediately after the tender offer was consummated. Thus, the bondholders could either tender their bonds at 101% or see them redeemed at 100%. In the notice of redemption attached to the letter, the trustee made clear that


A reverse stock split of 1-600 was arranged in October, 1976, to facilitate going private by removing the lowest 5% of the equity held by CCI’s smallest shareholders. A <mask> of $3.25 was then made, a sum in excess of that recommended by the outside expert appraiser and substantially more than the market price for the two prior years. The reverse stock split was effected and 95% of CCI’s shares then remained in the hands of 61 shareholders. The tender offer was a success and was accepted by all minority shareholders except Cross. On October 28, 1976, Cross wrote Shore complaining of the reverse stock split.


The <mask> circular sets forth the variables considered and the valuation estimates made on behalf of Montedison by financial analyst Morgan Stanley & Co. (Morgan Stanley) regarding the estimated value of Ausimont’s shares under various circumstances. The different possible scenarios considered resulted in estimates ranging from the "low $20s” per share to a high of $46 per share (if the company were sold as a whole or in parts to a strategic buyer).


As mentioned previously, the defendants concede that a legal duty of reasonableness and fairness must be imposed upon Montedison (Dutch Civ Code arts 7, 8). While this court is not apprised of any Dutch case law to assist in applying that duty in this instance, I note that even the defendants cite and rely on United States case law to explain and apply the duty of reasonableness and fairness. For instance, the defendants agree that encompassed in this duty is the obligation to disclose in the <mask> any material information. By definition, material information is anything substantially likely to be considered important by a reasonable shareholder in deciding what action to take (see, State of New York v Rachmani Corp., 71 NY2d 718, 726). The omission of such material information renders the selling minority shareholder unable to make an informed decision, resulting in a fundamentally unfair sale (see, Mader v Armel, 402d 158 [6th Cir 1969], cert denied sub nom. Young v Mader, 394 US 930).


In Lowenschuss v Kane (367 F Supp 911 [SD NY 1973]) defendants made a <mask> for shares of stock without a "litigation-out” clause. The offer was challenged on grounds of securities and antitrust violations and defendants were enjoined by the court from proceeding with the offer. Plaintiff had tendered shares and sued to complete the transaction. Defendants urged impossibility as a defense. The District Court accepted that argument finding that the defendants committed no purposeful act to thwart the deal and vigorously defended the tender offer in the injunction proceeding. The complaint was dismissed. This was reversed by the Second Circuit Court of Appeals (520d 255 [1975]). That court concluded that an issue of fact existed, requiring discovery, concerning defendants’ conduct which led to the injunction because if defendants *281made the tender offer with knowledge of sufficient facts that would result in the offer being enjoined, that knowledge might constitute fault and abrogate the defense of impossibility of performance.


Thus, it would appear that plaintiff, despite the provisions of subdivision (b) of section 624, has a right under the common law to inspect Prudent’s stockholder list regardless of the extent or duration of its ownership, so long as inspection is sought "for a valid purpose”. With respect to this latter point, although earlier lower court decisions had held to the contrary, the Court of Appeals has recently held in Matter of Crane Co. v Anaconda Co. (39 NY2d 14, 17) that inspection of a shareholder list by a shareholder for the purpose of ascertaining the identity of his fellow shareholders in order to inform them of a <mask> is a proper purpose. Nor does the fact that plaintiff seeks its inspection on the day the tender offer began, or that its original tender offer (which expired on March 23, 1979) gave stockholders only 10 days in which to accept it, render the inspection improper. Significantly, defendants’ efforts to enjoin the offer, both in this court and in Federal court, on the ground that it was violative of both State and Federal law, have been unsuccessful.


On June 10, 1975, just three days before the expiration of the <mask>, the plaintiff, as the owner of 50 shares of Libby common stock purchased in August, 1973, brought this action on behalf of itself and all other common shareholders. The original complaint sought monetary damages alone, premised upon the alleged inadequacy of the tender offer, and sought no injunctive relief. In addition to this action, the court has been informed that there are seven other class actions prompted by the tender offer, four involving debenture holders and three involving shareholders. Five of the actions are pending in the United States District Court, Southern District, one in the New York State Supreme Court, Nassau County, and one in the Superior Court of California.


In support, plaintiffs allege that, due to Wells’ improving financial condition at the time of the acquisition, Wells was worth substantially more than the <mask> made. Despite this, defendants concluded the acquisition, allegedly receiving unconscionably large executive compensation arrangements of long-term employment and consultation agreements from BIS in exchange for abetting the sale. In reality, plaintiffs allege, these excessive compensation packages, also known as “golden parachutes” and worth a minimum of $1,250,000 were simply vehicles of taking moneys allocated by BIS, to buy the stock of Wells, *56and payable all to Wells’ shareholders, to divert such funds to the individual defendants. Plaintiffs further allege that such tender offer document itself was deceptive and misleading in that the individual defendants, in collusion with BIS, breached their fiduciary duty to the shareholders by diverting those funds to themselves and by failing to make proper disclosures in the tender offer document.


However, the presence of the amendment prior to the *669election may be sufficiently relevant to the shareholders to strongly affect the outcome. Shareholders, aware of section 23, know that if they vote for BNY’s slate and a two-thirds vote is not achieved, the directors, then elected, will not, under the amendment, have the power to redeem the rights for 10 years. Therefore, any shareholder who would desire to accept this or any future <mask> and elect a board other than the current board or those approved by it, may be deterred from doing this at the meeting for fear that a majority vote less than two thirds would position a board incapable of any future negotiations for 10 years.


The sort of omission which meets the materiality standard is presented in Joseph v Shell Oil Co. (482 A2d 335, supra). There, the appraiser hired by the majority shareholder to estimate the value of the company’s shares, although informed of the existence of certain "probable oil reserves” owned by the company, was not furnished with any of the available detailed information relating to the value of those probable reserves. Nor did the offering circular disclose this omission, but rather it merely related that the appraiser’s *81estimate was based solely on publicly disclosed information. The court held that the majority shareholder’s failure to disclose available data relating to the value of the probable reserves, and its further failure to disclose that this essential and necessary information had been withheld from the appraiser, violated the duty of complete and candid disclosure (Joseph v Shell Oil Co., 482 A2d 335, 341, supra). This and other troublesome failures of disclosure led the court to preliminarily enjoin a <mask> (supra, at 345).


Plaintiffs alleged that Merrill tortiously interfered with the indenture because it induced CHE to couple the <mask> with a redemption (the transaction). Plaintiffs claimed (and it appears undisputed) that Merrill was the impetus for the transaction. As discussed further below, since the bonds were *1064defeased, a tender offer or redemption, on their own, had no value to CHE and, actually, cost money to effectuate. However, in light of the significant decline in interest rates between 1994, when the bonds were issued, and 2011, when the transaction occurred, the market value of the bonds had risen. CHE, allegedly acting on the advice of Merrill, sought to induce bondholders to tender their bonds by offering them 1% more than the amount they would receive in a redemption. After the transaction closed, CHE synthetically sold the bonds to Merrill through a “total return swap.”7


With respect to the LIPA Act, however, Chief Judge Mun-son found no subterfuge, holding, instead, that its purposes were legitimate and that, while it "obviously singles out LILCO * * * such a classification is closely related, and in fact necessary, to the achievement of the statute’s aims”. (Supra, at 425.) Those aims, as outlined in his decision, were "assuring that dependable and affordable sources of energy exist for residents and industry in LILCO’s service area, and creating a publicly owned power authority to acquire LILCO either through negotiation, a <mask> or the exercise of * * * eminent domain if such acquisition would realize ratepayer savings for residents and industry on Long Island”. (Supra, at 425.)


Looking first at the request for preliminary injunctive relief, it is readily apparent that plaintiffs’ motion is, at best, premature. Essential to any application for such a drastic provisional remedy are the likelihood of the movant’s ultimate success in the action in which the motion is made and the danger that, in the event of its denial, the movant will be irreparably harmed (Matter of Town of Stony Point v New York State Off. of Mental Retardation & Developmental Disabilities, 78 AD2d 858; Matter of Nelson, 110 AD2d 535, 536). At this juncture, defendants have taken no steps which would indicate the imminence of a <mask> so as to create a basis for urgent intervention by this court. Indeed, as of the date of argument of this motion, the results of the feasibility study *748required by LIPA Act (Public Authorities Law) § 1020-h (2) as a prerequisite to LIPA’s acquisition of LILCO or any of its securities or assets had not been published and the absence of urgency would appear to have been conceded by plaintiffs when, in connection with the instant application, they did not seek the issuance of a temporary restraining order. Under the circumstances, a present danger of irreparable harm has not been demonstrated and, therefore, the motion for a preliminary injunction is denied.


Plaintiffs herein contend defendants breached their fiduciary duty by wrongfully approving subject <mask>, diverting tender offer funds to themselves and failing to properly disclose the facts in the tender offer document. Said claims are clearly typical of all claims that would be asserted by other class members in this class action (Klakis v National Leisure Corp., 73 AD2d 521).


On October 20, 2006, AirTran Holdings, Inc. approached MAG’s board of directors with a private offer to purchase the company for $11.25 per share. MAG’s board refused the offer on December 7, 2006. On January 9, 2007, AirTran New York, LLC registered with the New York State Department of State, Division of Corporations. On January 11, 2007, in its attempt to purchase shares directly from MAG’s shareholders for $13.25 per share, AirTran announced a <mask> for MAG’s outstanding shares, and submitted a form S-4 to the Securities and Exchange Commission (SEC) explaining the offer. The SEC form S-4 stated that AirTran intends “to acquire control, and ultimately the entire interest in” MAG through a two-step process. First, AirTran seeks to exchange cash and shares of Air-Tran common stock for outstanding MAG shares. Second, it seeks to merge with and into Galena or another wholly-owned subsidiary of AirTran and to convert remaining MAG shares into the “right to receive the same number of shares of AirTran common stock and the same amount of cash per Midwest Share as paid in the offer.”


“An attempt by an outside corporation or group, *549usually called the aggressor or ‘insurgent,’ to wrest control away from incumbent management of target corporation. A takeover bid may involve purchase of shares, a <mask>, a sale of assets or a proposal that the target merge voluntarily into the aggressor.” (Black’s Law Dictionary 1454 [6th ed 1990].) Petitioner argues that the transaction at issue herein is governed by article 16, despite the fact that respondents allege that the purchase of shares was authorized by Business Corporation Law § 505 (d). Section 505 (d) states:


After an extensive and illuminating tracing of the rather sinuous judicial history of the Fourteenth Amendment’s equal protection prohibition over the past half century, Chief Judge Munson concluded that the Used and Useful Act was in violation of the constitutional mandate. While not questioning the legitimacy of the legislative purpose adopted at the time of the act’s passage, namely, the assurance to utility customers that they would not "bear the staggering costs associated with a nuclear power plant that fails to commence or continue commercial operation by requiring the [Public Service Commission] to apply traditional used and useful rate-setting *752principles”, he found the classification drawn to further that purpose to be "so under-inclusive that it must be deemed irrational.” (Long Is. Light. Co. v Cuomo, 666 F Supp 370, 423, supra.) He further determined that there was evidence that "the articulated purpose * * * underlying the Used and Useful Act was a mere pretext for an impermissible purpose offending specific prohibitions of the Constitution” (supra, at 424), namely, to cause a decline in the market value of LILCO stock to facilitate a <mask> at lower prices than would be required in the absence of the legislation. It was his conclusion that, "under all of the circumstances, an impartial legislator could not have logically concluded that the classification drawn by the Used and Useful Act 'would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class.’ [City of] Cleburne [v Cleburne Living Center], 473 U.S. [432,] at 452 * * * (Stevens, J., concurring) (footnote omitted).” (Supra, at 425.)


*856On March 29, 2011, acting on the advice of Merrill, CHE sent letters to all holders of the bonds, stating that it would purchase any bonds tendered to it by April 26, 2011 for 101% of par value, plus accrued interest (id. 11 28; joint statement of material facts II 5). In the same letter, CHE announced that any bonds not tendered to it by April 26 would be redeemed on May 18, 2011, at 100% of par value, plus interest (SAC 1Í1Í 29-30; joint statement 11 9). CHE subsequently extended the <mask> period to May 3 (SAC 11 32). The trustee consummated the tender transactions; on May 18, approximately 34.3% of the bonds (including those owned by plaintiffs) were redeemed (id. 1111 33-34; joint statement H 14).


Second, it is clear that the plaintiffs are attempting to characterize this situation, by implication, as analogous to the so-called "two-tier tender offer” or "two-step merger”. The first tier of a two-step merger involves a <mask> at a premium price in order to obtain a controlling interest in the target corporation. The second tier, which takes place once the offeror has gained control of a majority of the shares, is a freezeout merger for the minimum possible fair price — with the right to an appraisal proceeding the minority from an unfair second-tier price (see, Note, Protecting Shareholders Against Partial and Two-Tiered Takeovers: The "Poison Pill” Preferred, 97 Harv L Rev 1964, 1966; Brudney and Chirelstein, A Restatement of Corporate Freezeouts, 87 Yale LJ 1354, 1360). In many respects, Ausimont’s situation is comparable to a two-step merger: although Montedison already holds a majority of the target’s shares, it seeks to obtain a greater percentage of the corporate stock in order to be able to cash-out the remaining minority shareholders. In both types of two-step plans, an attempt to pressure the minority shareholders to tender their shares is an element of the plan. However, although such a two-step plan is by definition coercive (see, Note, Protecting Shareholders, op. cit., 97 Harv L Rev, at *801966), the coercive element in a two-step merger plan as a whole is not enough to render the first step, or the plan as a whole, illegal or improper. Rather, the law in this country offers its protection to the shareholders by the means previously discussed: the imposition of fiduciary obligations of fairness and the appraisal remedy (see, Weinberger v UOP, Inc., supra).


Ausimont N.V. (Ausimont) is a Netherlands corporation whose common stock is traded on the New York Stock Exchange. Defendant Montedison S.p.A. (Montedison) is an Ital*74ian company which currently owns 72.6% of Ausimont’s shares, and which from Ausimont’s inception has been its majority shareholder. Montedison now seeks, by <mask>, to purchase all the outstanding shares of Ausimont. The plaintiffs are minority shareholders of Ausimont, who have commenced this action by order to show cause seeking to enjoin Montedison from proceeding with the tender offer for Ausimont’s publicly held shares. They challenge the sufficiency and propriety of the tender offer circular dated January 20, 1989 by which Montedison offers to purchase the shares at a price of $35. The plaintiffs claim that the offering price is grossly inadequate, that the tender offer circular is materially deficient, and moreover that the circular is structured so as to coerce the minority shareholders to tender their shares at an inadequate price.


“any Bonds tendered to [CHE] for purchase at a purchase price of 101% of their principal amount pursuant to the <mask> shall not be subject to redemption at par on the Redemption Date, shall be excluded from such redemption, shall be purchased by [CHE] at a purchase price of 1019^ and shall remain outstanding under the Prior Bonds Instrument and shall continue to be defeased pursuant to, and secured solely by, the Escrow Agreement.” {See document No. 15 at 13-14 [emphasis added].) One month after the letter was issued (and four days before the deadline to tender), by letter dated April 29, 2011, Emmet wrote to the trustee objecting that coupling a tender offer with *1063a redemption is violative of the indenture. (See document No. 35.) On May 3, 2011, FMC also sent a letter of objection to the trustee. (See document No. 40.) On May 4, 2011, CHE distributed an acceptance notice, indicating that it had accepted the tender of 54.52% of the bonds’ par amount outstanding. (See document No. 36.)6


About the same time, the Weinstein’s engaged the underwriting firm of Shearson Hayden Stone Inc. to render an appraisal for a proposed tender-offering merger. The appraisal resulted in a figure of $3 a share. It appears that the appraiser was the son of a director of Concord. In early February of this year, a <mask> was actually made to the public shareholders of Concord by AFW. Litigation which ensued, however, forced withdrawal of the tender offer. Instead, a notice of meeting was called by Concord to approve a plan of merger at a meeting scheduled for April 10, 1975. The proxy statement, accompanying the notice, unabashedly states that the purpose of the proposed merger of AFW into Concord "is to return the Company to the status of a privately-held corporation owned by the Weinstein family. Upon consummation of the merger, the Weinstein’s will be the sole stockholders and directors of the Company, and will thus be able to *122determine all policies of the Company, such as salaries for themselves and others, dividends and business activities, without public scrutiny and solely with regard to their own interests.” The plan also advised minority shareholders that they must either accept $3 per share for their stock, or resort to judicial proceedings as contemplated under section 910 of the Business Corporation Law for appraisal of their holdings. It is also stated in the plan of merger that "AFW owns more than the percentage of the Company’s Common Stock required to approve the merger and intends to vote such stock in favor of the merger. Accordingly, the other shareholders of the Company will be unable to defeat approval of the merger by voting against it and thus may either accept $3 per share in cash or exercise their appraisal rights.”


CHE is wrong. CHE conflates the concept of notifying bondholders of the redemption pursuant to section 306 and actually redeeming 100% of the bonds pursuant to section 304. While tender offers are not specifically addressed by the indenture, as discussed below, a <mask> is a common way in which companies repurchase stocks and bonds from investors. Indeed, prior to the transaction, CHE itself did not believe a tender offer to be the equivalent of a redemption. CHE was relying on there being a difference between tender and redemption, and made this quite clear in the redemption notice, which stated that “Bonds that are tendered to [CHE] for purchase pursuant to the Tender Offer will be excluded from the redemption of the Bonds.” (See document No. 15 at 13.) Also, in the very next sentence, CHE concedes that it did not redeem 100% of the bonds since “any Bonds tendered to [CHE] for purchase . . . shall not be subject to redemption at par on the Redemption Date, shall be excluded from such redemption, shall be purchased by [CHE] at a purchase price of 101%, and shall remain outstanding.” (See id. at 13-14.) Hence, CHE’s claim that it actually redeemed 100% of the bonds directly contradicts its statements in the redemption notice. Furthermore, as discussed below, CHE actually treated the tendered bonds differently than the redeemed bonds.


On January 8, 1988, plaintiffs brought a fraudulent conveyance action in California Supreme Court seeking, inter alia, an injunction enjoining defendants from taking any steps to use the assets or property of United to consummate the *986restructuring program. Plaintiffs did not seek a temporary restraining order (TRO). Defendants promptly moved to dismiss or stay the California action on the grounds of forum non conveniens. That motion was granted on February 29, 1988. Plaintiffs were granted leave to commence a new action in either Illinois, Delaware or New York. On March 24, 1988, nine days after the expiration of the <mask>, plaintiffs commenced this action. Plaintiffs did not seek a TRO here.


. CHE claims (and plaintiffs dispute) that the transaction is quite common and has occurred approximately 50 times without controversy. It should be noted that CHE has not cited a single example of another such transaction despite repeatedly making this representation in both this action and the prior action. The court’s independent research, however, reveals that coupling a <mask> with the threat of redemption is not a new concept, *1072although the issuer’s reasons for doing so are often different than CHE’s motivations in this case. (See e.g. Upinder S. Dhillon et al., Bond Calls, Credible Commitment, and Equity Dilution: A Theoretical and Clinical Analysis of Simultaneous Tender and Call [STAC] Offers, Journal of Financial Economics, Vol. 60 [2-3], 573-611 [Feb. 2001], available at http:// www.researchgate.net/publication/4978548.) Moreover, even if this type of transaction has occurred up to now without challenge, it does not mean the transaction is permissible under the terms of the specific indenture at issue here.


The plaintiffs challenge this <mask> on several grounds and contend that the offer must be enjoined to prevent irreparable harm to the minority shareholders. Their arguments develop as follows: (1) The price offered by the defendant is grossly inadequate; (2) By including in the circular the information that Montedison hopes to invoke the automatic transfer proceeding available under Dutch law, the circular will have a coercive effect on minority shareholders. They reason that shareholders will feel compelled to tender since if they do not and if Montedison obtains 95% of the shares, their shares will be rendered unmarketable and thus valueless during the period in which the Dutch court evaluates their shares, a period which may extend up to or beyond 18 months; (3) The plaintiffs allege that in several respects the circular omits material information that minority shareholders must have in order to evaluate the adequacy of the offer. For instance, they contend that Montedison should have included the special committee’s reasons for rejecting the $35 offer, should have explained how Morgan Stanley arrived at its evaluation of each individual asset owned by Ausimont, and in particular should have elaborated on the value of Dutral, Ausimont’s subsidiary, to Montedison.


Despite petitioner’s contentions, it is this court’s determination that Business Corporation Law § 505 (d) does not require compliance with Business Corporation Law article 16. The evidence before this court reveals that respondent Krasnicki’s purchase of the subject shares arose from his employment relationship with OSC, and not as a result of a <mask> or request or invitation for tenders. Petitioner provides no authority to the contrary.


In the original <mask>, its purpose was stated very simply: "The purpose of this Offer is to purchase all the outstanding shares of Common Stock of the Company not presently owned by the Purchaser and all the outstanding debentures. Except as stated below, the Purchaser does not have any plan or proposal to liquidate the Company, to sell its assets, to merge with any other person or make any other major change in its management or business. The Purchaser reserves the right, however, to adopt and implement any such plan or proposal or make any such change.”


Interestingly, upon defendants eliminating this ground of *180complaint, and spelling out clearly that there would be no corporate indebtedness for the cost of acquisition, plaintiff then charged that this was evidence of Nestle’s duplicity and fraud. Plaintiff argues that it was advantageous for UFS to represent in the <mask> that it would incur substantial indebtedness since the Libby stockholders, desiring not to carry the burden of the debt resulting from the acquisition of Libby’s securities, were much more ready to sell their shares at the tender price. Now, it appearing that the UFS-Libby corporation will not be burdened with any such debt, plaintiff shouts "fraud”. The simple answer is that the court is confronted only with the application to enjoin the merger. The tender offer is over and done with. There was no application to restrain that. If any shareholder sold out at the tender price because he was misled to his detriment, his remedy is monetary damages. So far as injunctive relief is concerned, no remaining shareholder, such as plaintiff, is in a position to claim that the merger is a device to facilitate a raid on corporate assets when it is clear that those assets would be left undisturbed. A comparison of Libby’s December, 1975 balance sheet with the pro forma post merger contemplated balance sheet indicates that except for the preferred stock and common stock, Libby’s finances will remain untouched.


This New York court must examine the “totality of factual circumstances”, based upon a fully developed record to determine whether or not it can or should, having sufficient policy interest herein (see Miner v Gillette Co., supra) exercise personal jurisdiction (under the “minimum contacts” test, flexibly applied under procedural due process) over all or a substantial number of class members. In addition, such a fully developed record is necessary to determine whether New York is the most appropriate forum under the doctrine of forum non conveniens. Thus, the parties are directed to continue CPLR article 31 precertification disclosure to specifically ascertain: (1) the exact size of the potential class; (2) the precise number of resident and nonresident class members and the number of shares each owns; (3) whether any potential class members have sued defendants in any other class or nonclass action, and, if so, what if any, was the disposition; (4) the geographic residential locations, distribution and distance from New York of the nonresidents; (5) the number of potential class members and shares owned by individuals, corporate and institutional investors together with their principal places of business; (6) when Wells (in New York) and BIS (in Delaware) were incorporated, the location(s) and duration of their principal offices, headquarters and operations; (7) the residence of the individual defendants, the places or sites of negotiations, execution, delivery and filing of documents in connection with the <mask>; (8) and to the extent feasible the number of nonresidents who would submit to this court’s jurisdiction to participate in subject class action or be subject to an equal or more appropriate jurisdiction. (Reis v Club Med, supra; Smith v Atlas Int. Tours, 80 AD2d 762; see, also, Simon v Cunard Line, supra; Klakis v National Leisure Corp., 73 AD2d 521, supra; Spatz v Wide World Travel Serv., 70 AD2d 835; Gottlieb v March Shipping Passenger Servs., supra.)


Similarly, in New York, the forum State, the Court of Appeals has imposed upon a majority shareholder the duty to offer a fair price in a case where minority shareholders challenged an attempted freezeout merger as unfair (see, Alpert v 28 Williams St. Corp., 63 NY2d 557). In Alpert, the Court of Appeals made clear that the majority shareholder’s fiduciary duty with regard to fair price is imposed because "the merger seeks to cancel the minority’s shares in exchange for cash” (see, Alpert v 28 Williams St. Corp., supra, at 571), and further that the fiduciary duty of a majority shareholder is altered depending on the nature of the corporate transaction (Alpert v 28 Williams St. Corp., supra, at 569). Thus, in the context of freezeout merger, New York law imposes on the majority, inter alia, a duty to offer a fair price. It is by no means apparent, however, that in the context of a <mask> by a majority shareholder, any duty to offer a fair price would be imposed by the Court of Appeals upon the offeror. No such case has been cited by the plaintiffs, nor has research disclosed any.


The alleged failures of disclosure raised here by the plaintiffs do not rise to the level of materiality demonstrated in Joseph v Shell Oil (supra). Montedison properly disclosed the substantial range of values estimated by its appraiser Morgan Stanley and disclosed that the special committee had rejected the $35 per share offer as inadequate. These pieces of information represent the heart of the information needed by the minority shareholders to arrive at an informed decision; its disclosure sufficed to satisfy Montedison’s obligation. The specific problems ascribed to the circular by plaintiffs are either inconsequential or inappropriate to demand from a <mask> circular. For instance, the offeror need not include in the circular the reasons why the special committee rejected the offer — indeed, it does not appear that Montedison had any way of knowing the committee’s reasons. Similarly, an asserted belief on the part of certain special committee members that Montedison might be willing to pay $36.25, or that during negotiation Montedison indicated it might pay that amount, does not shed additional light on the value of the shares and was irrelevant to the circular’s purpose.


Defendants cast this action in a different light. They portray it as an attempt by the Union to obtain an economic advantage for its members which it was unable to obtain from United through the ordinary and recently concluded collective bargaining process. Defendants assert that the Union is attempting to obtain benefits in litigation which it could not achieve at the bargaining table by attacking the corporate restructuring of Allegis in which a self-<mask> for approximately 63% of Allegis’ outstanding shares (at $80 per share) was completed at a cost of approximately $2.8 billion on March 28, 1988.


One of the indicia of possible fraud is whether the dominant stockholders are using their own funds for the acquisition of total control, or whether they are using their control of the corporation to obtain corporate funds to finance their own acquisition. In this case, as has been indicated, up to the time of the <mask> Nestle continued to use its funds in the acquisition of Libby shares. The tender offer contemplated that the cost of acquisition of the outstanding minority interests of common stock and convertible debentures would be approximately $43 million. UFS, which had no assets other than the Libby shares which were transferred to it by Nestle and its affiliates, borrowed $8,500,000 from a Swiss bank and $25,230,000 from Nestle. Nestle repaid the Swiss bank loan, so all sums are presently owed to Nestle. It was originally contemplated that the sums owed by UFS to Nestle would be treated as a long-term debt, it being anticipated that upon maturity Nestle could make a capital contribution of the sum, extend the maturity date, or place the UFS debt with a third party. In the light of the recent Federal court rulings in Green and Marshel, defendants seem to have shifted their position somewhat. In the February 26, 1976 notice to the remaining shareholders about the merger, it is now indicated that Nestle will contribute to UFS the indebtedness incurred in connection with the acquisition pursuant to the tender offer, and will make a cash capital contribution for such remaining funds as would be required. No debt, even of a long-term nature, will be carried by the UFS-Libby merged corporation, and no Libby funds or Libby credit will have been used for stock acquisition. It was clear that this would not have been possible in any event since Libby did not have sufficient cash or liquid assets available for such use. In view of Libby’s previous financial difficulty, a requirement that it or the corporation into which it would merge should pay for the stock acquisition would cripple or bankrupt it and leave the defendants with an empty shell. The possibility that Nestle would ultimately make a capital contribution was not remote, and it now appears, in accordance with the merger notice, that any indebtedness of the merged corporation because of the cost of acquisition will be eliminated.


“(a) ‘Takeover bids’ means the acquisition of or offer to acquire by an offeror from an offeree, pursuant to a <mask> or request or invitation for tenders, any equity security of a target company, if after acquisition thereof the offeror would, directly or indirectly, be a beneficial owner of more than five percent of any class of the issued and outstanding equity securities of a target company.” (Business Corporation Law § 1601 [a].) Black’s Law Dictionary also provides a definition of “Takeover bid”:


The plaintiffs, however, do not offer, from either Dutch case law or statute any such measuring standard; rather, their arguments in this regard are derived from an amalgam of standards enunciated under the case law of Delaware and New York. Upon this basis the plaintiffs advance a standard which includes a duty to offer a fair price. On the other hand, the defendants have submitted an uncontroverted expert’s affidavit which explains that neither Dutch statutory law nor Dutch case law imposes on a majority shareholder a duty to offer a fair price in a <mask> for the purchase of minority owned shares. Rather, Dutch law imposes simply a duty of reasonableness and fairness (Dutch Civ Code arts 7, 8). Indeed, the prospectus filed with the SEC by Ausimont’s predecessor, Ausimont Compo, N.V., specifically advises prospective shareholders that


*77Under Delaware law, the fiduciary duty of a majority stockholder making a <mask> is generally limited to the duty of full disclosure (see, Lynch v Vickers Energy Corp., 383 A2d 278 [Del 1977]). In Lynch the owner of a majority of the outstanding common stock of TransOcean Oil, Inc., made a tender offer to purchase all of TransOcean’s outstanding common stock at $12 per share. As a result of the offer, Vickers obtained some four million additional shares. Thereafter, the plaintiff, a former TransOcean minority shareholder, commenced a class action for money damages contending that Vickers had violated its fiduciary duty toward the minority shareholders. A dismissal of that action was reversed by the Supreme Court of Delaware which explained that "the limited function of the Court was to determine whether defendants had disclosed all information in their possession germane to the transaction * * * [i.e.,] information such as a reasonable shareholder would consider important in deciding whether to sell or retain stock” (see, Lynch v Vickers Energy Corp., 383 A2d 278, 281, supra). The court concluded that although Vickers had accurately disclosed that TransOcean’s net asset value had been estimated at " 'not less than $200,000,000 ...’*** 'and could be substantially greater’ ”, that disclosure was not completely candid as it failed to disclose a second, more optimistic estimate in Vickers’ possession, which estimate fixed the net asset value at $250.8 million (supra, at 280).


The order was presented for signature to a Justice of this court, not assigned to the Commercial Division, at 8:00 a.m. yesterday, without having the papers processed either by the Ex Parte Support Office or the Commercial Division Support Office. The application was not made on notice to counsel for Starrett, even though plaintiff knew the law firm that had been representing Starrett during the negotiations. The temporary restraints preclude Starrett from taking any steps with respect to the sale of the shares to any person including but not limited to, the commencement of a <mask> on Thursday, October 23, 1997. Startt was not made a party to this action, even though its identity was known, and the effect of the temporary restraining order was to preclude the commencement of the tender offer which had already been publicly announced and that, therefore, was required to be commenced no later than October 23, pursuant to Federal statutes and regulations.


. It, therefore, should be noted that whether the transaction was (as plaintiffs allege) improperly coercive is beside the point. The problem here is not the level of coercion. It is that the transaction should not have occurred since it could not be effectuated without violating section 308. In this regard, it should be noted that the redemption notice stated, “All holders that elect to tender their Bonds pursuant to such <mask> . . . shall agree [to] waive any and all inconsistent provisions of the [indenture].” (See document No. 15 at 13.) Plaintiffs, who did not tender their bonds, did not agree to such a waiver.


The facts underlying this action are as follows: On July 24, 1973 Canadian Development Corporation, hereinafter referred to as CDC, made a stock <mask> to purchase 10 million shares of defendant corporation ’s common stock from shareholders, for $29 per share. Plaintiffs, who were holders of 2,021 shares of Texas Gulf stock, tendered such shares to CDC prior to August 17, 1973 pursuant to the tender offer. The gravamen of plaintiffs’ complaint is, that defendants, by obtaining a temporary restraining order on a lawsuit they commenced in an attempt to prevent CDC from consummating its offer, hampered and delayed plaintiffs in the receipt of the purchase price due. As a result of this alleged breach of fiduciary duty by defendants, who are directors of Texas Gulf, the plaintiffs then instituted this action for the loss of the use of their money during the time the culmination of the tender was allegedly delayed.


"Accumulation of interest can be halted by an appropriate tender, sufficient to satisfy the claims prior to commencement of the action. This common law tender must be unconditional, be actually produced and offered, be deposited in court prior to service of an answer and be asserted as an affirmative defense in the answer. Cruikshank v. Gordon, 118 NY 165 (1890); Frankuchen v. Frankuchen, 63 Misc 2d 348 (Civil Ct. New York 1970); 6 Carmody-Wait 2d, <mask>; Payment Into Court, §§ 41:1, 41:12, 41:13, 41:19, 41:24; 72 NY Jur. 2d, Interest & Usury, § 46; 83 NY Jur. 2d, Payment & Tender, §§ 140, 142, 143,166. When the tender meets those standards, it stops interest accrual as of the date of tender. Affiliated Credit Adjustors, Inc. v. Carlucci & Legum, 139 AD2d 611, 613 (2d Dep’t 1988).


By 1974 Nestle’s ownership of Libby common stock had increased to over 60%. In 1975 the decision was made by Nestle, which already controlled Libby for all practical purposes, to eliminate minority shareholders, and to make Libby *178a wholly owned subsidiary. Nestle then transferred all its holdings of Libby stock to UFS, one of its wholly owned subsidiaries, and on May 29, 1975 UFS announced its <mask> to acquire the remaining common stock and convertible debentures. The tender offer explicitly stated that if sufficient shares were acquired, UFS intended to merge Libby with UFS. There was a complete disclosure of all applicable information about Libby, Nestle and UFS, their relationships, the range of stock prices, the book value of Libby stock, and the source of funds to be used to acquire the additional stock. The price offered for the shares was $8,125, which was 65% above the market price, and the highest price at which any stock had changed hands for the preceding three and one-half years. The offering price of the debentures was 20% above the market price. Unlike the situation in Concord and in Green, the offered price was not substantially below what shareholders had paid. In fact, plaintiff had purchased its 50 shares of Libby common stock in August, 1973, when the market price was about $6. As a result of the tender, almost 80% of the still outstanding shares of Libby common stock were surrendered. Since the tender offer, the Libby stock has been trading at a little over $7 per share.


In September 1987 BNY announced its intention to com*666menee a <mask> for all of the outstanding shares of IBC. It is unnecessary here to recite in detail the intricacies of the offer, its several amendments by BNY, and its rejection by the board of directors of IBC. Suffice it to state that the board of directors of IBC believes that acceptance of the offer is not beneficial for IBC’s shareholders, stemming in large part from the fact that Federal regulations limit the number of prospective tender offerors. However, these regulations have recently been modified, which modifications will slowly deregulate the banking system over the next few years. The result of the deregulation may be to allow more large banking institutions, not presently able to bid for IBC, to do so. It is asserted that this will produce an auction type bidding during which, it is believed, a higher price can be negotiated by the board of directors. This argument has presumably been communicated to IBC’s shareholders in response to BNY’s tender offer. On October 9, 1987 the board of IBC adopted a "rights” plan. Pursuant thereto, one right per share of outstanding common stock was made payable to shareholders of record on October 19, 1987. If an acquisition is approved by the board, the rights can be redeemed by the board at .01 per right. The right to redeem is exercisable prior to the time a person or entity obtains ownership or control of 20% or more of stock of IBC.


In fact, the redemption notice accurately portrays CHE’s intentions. It is undisputed that CHE did not want to redeem 100% of the bonds. If it did, it would simply have exercised its unconditional right to call all of the bonds. A tender was more expensive for CHE, since the tender price was 1% more than the redemption price. CHE was willing to pay more by coupling a <mask> with a redemption because it thought it could resell the bonds tendered to Merrill (albeit synthetically via a total return swap), while bonds redeemed had to be canceled *1069pursuant to section 308 of the indenture and paid out with funds from the treasury escrow account. The transaction, therefore, was premised on CHE’s ability to further transact with the tendered bonds.


In this action plaintiffs, Long Island Lighting Company (LILCO), a public service corporation incorporated under the Transportation Law of the State of New York, and Herbert Jaffe (Jaffe), one of its shareholders, challenge the validity of the Long Island Power Authority Act (the LIPA Act [Public Authorities Law, art 5, tit 1-A]) and seek to enjoin its implementation. Before the court at this time is their motion for a preliminary injunction, restraining defendants, pendente lite, from taking any actions to implement the act, including but not limited to any actions to make a <mask> to purchase or exchange LILCO shares of stock for cash or securities for the purpose of enabling the State-created Long Island Power Authority (LIPA) to acquire LILCO’s stock or assets. Plaintiffs also sue as taxpayers pursuant to State Finance Law § 123-b 0).


As noted earlier, plaintiffs contend that CHE redeemed less than 100% of the bonds. They rely on the letter’s description of the transaction, which had two steps: (1) CHE first purchasing bonds voluntarily tendered, which would remain outstanding; and then (2) redeeming the rest of the bonds. Since approximately 45% of the bonds were not tendered, they argue, CHE effectuated a redemption of less than 100% of the bonds. Therefore, plaintiffs contend, CHE did not follow the indenture which required random redemption if less than 100% of the bonds were redeemed. Stated another way, plaintiffs argue that if CHE wanted to redeem plaintiffs’ bonds, which comprised less than all of the outstanding bonds, CHE was required to put its own bonds, acquired in the <mask>, up for selection by lot with the non-tendered bonds.


. This is essentially the converse of the question posed by CHE’s counsel during oral argument (see document No. 43, July 28, 2015 tr at 16-18) — namely, if redemption was a right that CHE had, how could one take the position that redemption, regardless if coupled with a <mask>, would be worthless for CHE? The answer, in this case, is defeasance. Prior to defeasance, a redemption right is the issuer’s hedge against interest rates decreasing. The issuer pays callable bondholders a higher interest rate to compensate them for the risk of redemption. However, after defeasement, there is nothing for the issuer to effectively refinance and a redemption serves no purpose. This, if anything, suggests that defeased callable bonds should trade at an even higher premium (though whether this is empirically true is not a question the court has probed). While redemption is not a right the issuer forgoes by defeasing the bonds, it becomes a right not worth exercising. That is, perhaps, why there was so much of a spread between the bonds’ redemption price and the market rate for CHE to try to capture with the transaction. Nonetheless, for CHE to take the position that the transaction was a manifestation of the redemption risk plaintiffs bargained for is simply inaccurate. Prior to defeasement, the bondholders certainly accepted the risk of redemption. Defeasement was a decision made by CHE for its own benefit, but it happened to effectively devalue CHE’s call option. CHE cannot evade that reality and seek to justify its breach of section 308 by claiming that but for the transaction being permissible, it was not capable of availing itself of the value of its call option.


Krasnicki’s purchase of the subject shares conformed with the requirements of Business Corporation Law § 505 (d), and *550that transaction was approved by a majority of the shareholders. Despite petitioner’s contentions, there is no evidence before this court that respondent Krasnicki acquired the stock pursuant to a “<mask>,” as that term is used in article 16 of the Business Corporation Law.


Miss Farhi, testifying for the defendant, stated that, at the time in question, she was employed in the collateral loan department of the defendant and had been so employed for many years; that her invariable practice, when she received an executed <mask> from a customer (and she testified to receiving hundreds every year), was to attach a memorandum to it, and immediately mail it to the proper bank; and that no tender offer was allowed to remain overnight, but that it was always mailed on the day received. Mailing, she further testified, was not done in an envelope typed at the time, but in a pre-printed envelope made from a printing plate, for any bank with whom the defendant did sufficient business to justify making a plate. Chicago Bank was one such bank, and the tender would thus have been mailed in an envelope already printed with the correct address of the bank thereon, and of its vice-president, to whose attention the letter was directed.


On May 13, 2011, Emmet commenced an action in this court and moved by order to show cause for an injunction enjoining the <mask> and redemption. (See Emmet & Co., Inc. v Catholic Health E., Sup Ct, NY County, index No. 651290/2011 [the prior action].) CHE removed the prior action to federal court on May 16, 2011. By order dated May 18, 2011, the federal court denied the motion. (See Emmet & Co., Inc. v Catholic Health E., 2011 WL 2015533, 2011 US Dist LEXIS 54935 [SD NY, May 18, 2011, No. 11 Civ. 3272 [RMB], Berman, J.].) Judge Berman denied the motion, inter alia, because Em-met failed to establish that it would suffer irreparable harm since, if Emmet ultimately prevailed on liability, it could recover damages. (See 2011 WL 2015533, *1-3, 2011 US Dist LEXIS 54935, *1-9.) Judge Berman further held that “[p]lain-tiffs lengthy delay in requesting injunctive relief — i.e., waiting 45 days to file its complaint such that only 3 work days remained before the scheduled closing — impose [d] unnecessary hardship on Defendants and preclude [d] a grant of equitable relief in Plaintiff’s favor.” (See 2011 WL 2015533, *4, 2011 US Dist LEXIS 54935, *10-11 [emphasis added].) On May 18, 2011, after the injunction motion was denied, the tender offer and redemption were consummated.


The plaintiffs also allege that the challenged <mask> is so coercive as to be improper, in that the specter of the Dutch transfer proceeding, which Montedison says it will initiate if it obtains 95% of Ausimont’s stock, acts to pressure the minority to sell at the inadequate price offered rather than risk owning unmarketable stock. I reject this contention for several reasons. First, there is a good argument to be made that if Montedison failed to disclose this information the failure might be actionable (see, Missouri Portland Cement Co. v Porter Co., 535d 388, 393 [8th Cir 1976]).


A second "conform” machine was then ordered by another subsidiary of Davidson, Industry Court Realty Corp. (Industry Court), which was reflected in purchase order No. M10082 dated May 1, 1984. This purchase order refers to the terms and conditions of BWE’s January 20, 1984 <mask>. BWE again confirmed the purchase order by cover letter dated August 8, 1984 which once more specifically refers to BWE’s conditions of contract accompanying the letter. These conditions of contract contained the same arbitration clause and choice of law clause. The second machine was subsequently shipped to Industry Court.


Parenthetically, even if a duty to offer a fair price were imposed by New York law upon a majority shareholder’s <mask>, and even it such law were applicable to Ausimont’s shareholders, I am unable to conclude on the record before me that the $35-per-share offer is unfair, or even to find it reasonably likely that such a finding would ultimately be reached. Reasonable people may differ as to the value of property; indeed, expert appraisers generally do (see, Joseph v Shell Oil Co., 482 A2d 335, 341, supra). Moreover, a court’s *79determination of whether fair value was offered in these circumstances would of necessity be — at best — a loose approximation of an actual appraisal proceeding; if the purchase price is "reasonably related” to the value that might be set by an appraisal proceeding ordered pursuant to Business Corporation Law § 623, the "fair price” duty is satisfied (see, Alpert v 28 Williams St. Corp., 63 NY2d 557, 571, supra). Upon the submissions, I conclude that the $35 offer is not necessarily violative of any fair price duty.


On the strength of these contentions and the supporting documentary submissions, the plaintiffs seek a preliminary injunction staying the <mask>. To obtain a preliminary injunction, the movant must demonstrate (1) the likelihood of ultimate success on the merits, (2) irreparable injury absent the injunctive relief, and (3) a balancing of the equities (Albini v Solork Assocs., 37 AD2d 835). The court’s consideration will therefore focus first on the merits of the plaintiffs’ contentions.


It appears that the gravamen of plaintiffs’ complaint is the breach of their fiduciary obligation by Myron Chefetz (Chefetz) and Martin Krull (Krull), the individual defendants, respectively, Wells’ president and chairman of the board, during the takeover by BIS. Between them Chefetz and Krull owned approximately 210,000 shares or 32% of its stock. At the time of BIS’ <mask> there were a grand total of 672,868 outstanding shares of Wells’ stock, of which 552 other shareholders, including plaintiffs (23,750 shares), held the balance of the remaining 463,304 shares, of whom, according to plaintiff, 268 (48.5%) owning 102,540 (22%) Wells’ shares are nonresidents. On or about January 20, 1978, after negotiations during 1977 between the individual defendants and corporate defendant BIS, the latter through its subsidiary, BIS American Corporation — a French corporation, made a tender offer for all of the outstanding stock of Wells at the price of $5 a share, or approximately $3,364,340 for the total tender offer.


In determining the validity of a contract for sale of religious property, the court, in Church of God of Prospect Plaza (supra), promulgated a two-tier analysis of the proposed sale. This analysis was adopted by the court in Matter of Church of St. Francis De Sales (110 Misc 2d 511, 512 [Sup Ct 1981]), where the court stated that consideration must be given to (1) *471the fairness and reasonableness of the terms of the transaction, as of the "time of the making of the contract”, and (2) whether the sale is in the best interest of the congregation at the time approval of the contract is considered. The critical variable of the contract for the court was timing. The time the contract was entered into was the moment for calculating fair market value. If approval was sought a year later and there was a rise in market value, the contract could not be defeated because the sale price was below market value. The second tier of the formula would allow the court broad discretion in analyzing the terms of the contract and whether it is in the best interest of the religious society. This is determined at the time of application for approval and would allow the court to deny the application if it would not benefit the religious society. Under certain circumstances, there may be protection for the purchaser. Where a religious corporation breaches a contract before receiving court approval, a purchaser may be entitled to recover <mask> expended by him in performance of the contract. (Wilson v Ebenezer Baptist Church, supra.)


In their third and final issue, the Siams argue that the trial court erred in refusing to award damages for the travel expenses, which they allegedly incurred in attempting to perform the contract, in an amount totaling $3,879.89.10 The Siams contend that they presented uncontroverted evidence of those expenses, and that the trial court was therefore required to award them those expenses as <mask>. Because we believe that awarding travel expenses to the Siams in this instance would result in a double recovery, we disagree.


"American law has traditionally recognized three damages measures for breach of contract: expectancy, reliance, and restitution." See Quigley v. Bennett, 227 S.W.3d 51, 56 (Tex. 2007) ; see also Abraxas Petroleum Corp. , 20 S.W.3d at 760 ("Damages for breach of contract protect three interests: a restitution interest, a reliance interest, and an expectation interest."). <mask> entitle a plaintiff to be reimbursed for the out-of-pocket expenditures that were caused by his reliance on the contract, in order to put him in the same position he would have been in if the contract had not been made. Quigley , 227 S.W.3d at 56 n.1 (Brister, J., concurring in part & dissenting in part) (citing *516Restatement (Second) of Contracts § 344 (1981) ); Sharifi v. Steen Auto., LLC , 370 S.W.3d 126, 149 (Tex.App.-Dallas 2012, no pet.) (reliance damages reimburse a plaintiff for expenditures made towards the execution of the contract in order to restore the status quo before the contract). Under this measure of damages, plaintiffs are entitled recover the "expenditures made in preparation for performance or in performance, less any loss that the party in breach can prove with reasonable certainty the injured party would have suffered had the contract been performed." Mistletoe Exp. Serv. of Oklahoma City, Okl. v. Locke, 762 S.W.2d 637, 638 (Tex.App.-Texarkana 1988, no writ) (allowing for the recovery of capital expenditures plaintiff made as reliance damages, which included purchases of vehicles, in furtherance of contract to provide freight services to the defendant, less the amounts the plaintiff recouped by selling the trucks). On the other hand, expectancy damages, similar to benefit-of-the-bargain damages, award damages "for the reasonably expected value of the contract." Sharifi, 370 S.W.3d at 148 (citing Foley v. Parlier, 68 S.W.3d 870, 884 (Tex.App.-Fort Worth 2002, no pet.) ); see also SAVA gumarska in kemijska industria d.d. v. Advanced Polymer Sci., Inc., 128 S.W.3d 304, 317 n.6 (Tex.App.-Dallas 2004, no pet.) (benefit-of-the-bargain damages seek to restore the non-breaching party to the same economic position it would have been in had the contract been performed).


In its conclusions of law, the trial court determined: the contract is valid and enforceable; the contract is not illusory; and based on the clear and unambiguous language of the contract, the parties' intent at the time of formation was for the liquidated damages provision to serve as a reasonable forecast of appellee's expectation damages in the event of breach, not as a reasonable forecast of appellee's <mask> in the event of breach. It further determined that the liquidated damages provision was not a penalty. The liquidated damages provision is enforceable because at the time the contract was signed, damages resulting from material breach were very difficult, if not impossible to determine, and the amount of damages was a reasonable estimate of the harm that would be incurred. See Murphy v. Cintas Corp. , 923 S.W.2d 663, 666 (Tex. App.-Tyler 1996, writ denied) (upholding liquidated damages provision for 50% of the weekly fees for the remainder of the 60-month *316term, noting "[t]o forecast the actual damages to Cintas as a result of Murphy's termination of the contract sixty months in advance would be fraught with uncertainty."); Oetting v. Flake Uniform & Linen Serv., Inc. , 553 S.W.2d 793, 797-98 (Tex. Civ. App.-Fort Worth 1977, no writ) (focusing on anticipated profit margin, court held that 85% cancellation charge reasonable). Here, the evidence of record demonstrated 40% was a reasonable forecast.


However, a plaintiff may not receive both forms of damages; thus, if a plaintiff chooses to recover his <mask> for his out-of-pocket expenses, he may not also recover damages for his expectancy damages, i.e., for the profits or benefits he would have received if the contract had been performed, as allowing for both forms of damages would result in an impermissible double recovery. See Sharifi, 370 S.W.3d at 151 ; Mistletoe Exp. Serv. of Oklahoma City, Okl., 762 S.W.2d at 638 (citing The Restatement (Second) of Contracts § 349 (1981) ). For example, in Sharifi , the plaintiff had entered into a contract with the defendant to purchase an automotive repair business, and in reliance on the contract, the plaintiff incurred expenses for undergoing a training program to prepare him to run the business. Sharifi, 370 S.W.3d at 151-52. The trial court found that the defendant had breached the contract, and awarded the plaintiff the equivalent of the profits he would have received for a year if the contract had been performed, i.e., his lost profits, as well as his out-of-pocket expenses made in reliance on the contract, including his training expenses. Id. at 139. The Dallas Court of Appeals, however, concluded that the plaintiff could not receive compensation for both, as a "party cannot both 'retain all the benefits of the transaction and escape all of the obligations.' " Id. at 151 (citing Foley v Parlier, 68 S.W.3d 870, 885 (Tex.App.-Fort Worth 2002, no pet.)). As the court explained, a "party is entitled to sue and seek damages on alternative theories but is not entitled to recover on both theories; to do so is considered equivalent to a 'double recovery.' " Id. ; see also Mistletoe Exp. Serv., 762 S.W.2d at 638 (recognizing that a nonbreaching party may recover capital investments she made in furtherance of performing a contract, but may not also recover her lost profits under the contract); Foley , 68 S.W.3d at 884-85 (recognizing that a plaintiff seeking damages for breach of contract could not recover both his lost profits for a breach of contract, as well as his reliance damages, such as the moving expenses he had incurred in performing the contract, as doing so would result in an impermissible "double recovery").


The issue thus presented is whether plaintiff has set forth facts to be entitled to a trial on the claim that the City breached its obligation to act in good faith in the negotiations. In commenting on this obligation, Professor Farnsworth noted in his aforementioned article: "Fair dealing has one meaning where negotiations have resulted in an agreement and an aggrieved party seeks to avoid that agreement for unfairness. Here the claim of unfairness goes to the means used to induce agreement. Judicial experience in dealing with unfairness in this context goes back to the earliest claims of fraud and duress. Fair dealing has a quite different meaning where negotiations have failed to result in an agreement and an aggrieved party seeks to recover <mask>. Here the claim of unfairness goes to the means used to obstruct agreement. Courts have paid little attention to the meaning of fair dealing in this context. Those that have held that the parties can impose a duty to negotiate on themselves have often * * * left the meaning of fair dealing for a lower court to determine at a subsequent trial. Scholars, too, have been more concerned with the imposition of the duty than with its content”. (Op. cit., at 269.)