IN RE DOLLAR THRIFTY SHAREHOLDER LITIGATION

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No. Cons. C.A. No. 5458-VCS.

Attorney(S)

Jay W. Eisenhofer, Esquire, Michael J. Barry, Esquire, Stephen G. Grygiel, Esquire, Grant Eisenhofer P.A., Wilmington, Delaware; Joel Friedlander, Esquire, Sean M. Brennecke, Esquire, Bouchard Margules Friedlander, P.A., Wilmington, Delaware; Mark Lebovitch, Esquire, Amy Miller, Esquire, Jeremy Friedman, Esquire, Bernstein Litowitz Berger Grossman LLP, New York, New York; Marc A. Topaz, Esquire, Lee D. Rudy, Esquire, Michael C. Wagner, Esquire, James H. Miller, Esquire, Barroway Topaz Kessler Meltzer Check, LLP, Radnor, Pennsylvania; Darren J. Robbins, Esquire, Randall J. Baron, Esquire, David T. Wissbroecker, Esquire, Robbins Geller Rudman Dowd LLP, San Diego, California; Joseph H. Weiss, Mark D. Smilow, Esquire, Weiss Lurie, New York, New York; Harwood Feffer LLP, New York, New York; Glancy Binkow Goldberg LLP, Los Angeles, California; Carmella P. Keener, Esquire, Jessica Zeldin, Esquire, Rosenthal, Monhait Goddess, P.A., Wilmington, Delaware; Counsel for Plaintiffs. Donald J. Wolfe, Jr., Esquire, Matthew E. Fischer, Esquire, Dawn M. Jones, Esquire, Meghan M. Dougherty, Esquire, William E. Green, Jr., Esquire, Potter Anderson Corroon LLP, Wilmington, Delaware; Mitchell A. Lowenthal, Esquire, Deborah Buell, Esquire, Cleary Gottlieb Steen Hamilton LLP, New York, New York, Attorneys for Defendants Scott L. Thompson, Thomas P. Capo, Maryann N. Keller, Edward C. Lumley, Richard W. Neu, John C. Pope, and Dollar Thrifty Automotive Group, Inc. Raymond J. DiCamillo, Esquire, Kevin M. Gallagher, Esquire, Richards Layton Finger, P.A., Wilmington, Delaware; Joseph P. Moodhe, Esquire, Gary W. Kubek, Esquire, Courtney M. Dankworth, Esquire, Debevoise Plimpton LLP, New York, New York, Attorneys for Defendants Hertz Global Holdings Inc. and HDTMS, Inc.

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In re DOLLAR THRIFTY SHAREHOLDER LITIGATION.

MEMORANDUM

DAVID NOCE, Magistrate Judge

This action is before the court on the motion of defendants Linda Hirner, Carla Lawson, David Lawson, Barb Powell, and Brian Young for summary judgment. (Doc. 47.) The parties have consented to the exercise of plenary authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 52.) Oral arguments were heard on August 25, 2010.

The court thanks Christopher D. Baucom, Esq., and Jennifer S. Kingston, Esq. for their service as appointed counsel representing plaintiff William Holden in this matter.

I. BACKGROUND

Plaintiff, William Holden, brought this action against Linda Hirner, Carla Lawson, David Lawson, Barb Powell, Brian Young, Jimmy Shinn, Unknown Robertson, Scott Unknown, Bill Unknown, George Shotick, Peggy Porter, Thomas Reddington, and Judge Robert Clayton, alleging they violated his civil rights under 42 U.S.C. § 1983. (Doc. 1.)

On January 6, 2009, Jimmy Shinn, Unknown Robertson, Bill Unknown, Thomas Reddington, and Judge Robert Clayton were dismissed from the suit without prejudice. (Doc. 7.) On November 4, 2009, this court granted the voluntary dismissal of Peggy Porter and George Shotick. (Docs. 39, 41.) On February 25, 2010, this court granted the voluntary dismissal of Scott Unknown. (Docs. 48, 51.)

According to the complaint, on October 15, 2007, while under pretrial detention in the Protective Custody Pod in Marion County Jail, three other detainees assaulted Holden. (Doc. 1 at 8, ¶¶ 1-2.) Holden alleges that he suffered numerous injuries stemming from the assault, including pain in his back, legs, knees, ankles, genitals, toes, neck, shoulders, chest, teeth, and mouth. (Doc. 1 at 9-10, ¶ 5.) According to the complaint, Linda Hirner, the Jail Administrator, along with Carla Lawson, David Lawson, Barb Powell, and Brian Young, all officers and employees of Marion County Jail, oversaw and permitted the housing of Holden with violent detainees and denied Holden medical care after the incident. (Doc. 1 at 8-14, ¶¶ 3-4, 6, 9, 11.)

In his complaint, Holden alleges that defendants failed to protect him from the danger posed by other detainees. (Doc. 1 at 8, 16-17, ¶¶ 2, 19(a).) Holden also alleges that defendants showed deliberate indifference to his medical needs after the assault. (Doc. 1 at 10-17, ¶¶ 6-18, 19(b), (c), (d).)

II. MOTION FOR SUMMARY JUDGMENT

Defendants move for summary judgment on all claims. (Doc. 47.) Defendants argue that Holden did not face a substantial risk of serious harm by being placed with the other detainees, and that even if there was a substantial risk, defendants were unaware of it. (Doc. 47-1 at 10-11.) Defendants also argue that Holden only complained of suffering from pain, which was treated by the resident medical staff, and did not exhibit any symptoms of an objectively serious medical need. (Id. at 7-8.) Defendants further argue that even if Holden did suffer from a serious medical condition, they were not deliberately indifferent because they took all the available steps to diagnose and treat Holden's injuries. (Id. at 8-9.) In addition, defendants argue that they are entitled to qualified immunity for claims against them in their individual capacity because they did not violate a clearly established constitutional right. (Id. at 6.) Finally, defendants argue that the claims against them in their official capacity are barred due to the lack of a policy or custom which violated Holden's constitutional rights. (Id. at 11-12.)

In response, Holden argues that material facts are in dispute, and thus that summary judgment is inappropriate. (Doc. 62.) Holden argues that defendants were aware of the high danger of assault against sex offenders by other detainees, and that defendants were recklessly indifferent specifically to the threat posed by another detainee, who assaulted another sex offender before assaulting Holden. (Id. at 6-8.) Holden also argues that his tooth pain was a serious medical need, and that he was repeatedly denied dental care. (Id. at 9-10.) Holden further argues that his claims against defendants in their official capacities are not barred because it was prison policy that subjected him to assault and denied him dental care. (Id. at 10.)

III. STATEMENT OF UNDISPUTED FACTS

On August 23, 2007, William Holden was arrested, detained, and placed in the custody of Marion County Jail for failing to report a change of address as a convicted sex offender. (Docs. 47-2 at ¶ 1; 47-9; 62 at 7.) Holden was a pretrial detainee the majority of the time he was in custody at the Marion County Jail. (Doc. 47-2 at ¶ 2.) Holden was housed in the protective custody pod, which is used to provide protection for inmates who have a greater likelihood of being assaulted by other inmates. Other inmates housed in the protective custody pod included Adrian Jones, Nathan Brown, and Steve Kelso. (Doc. 1 at 8, ¶ 2; Doc. 47-1 at 11.)

The protective custody pod has a glass front, which allows prison personnel to observe certain inmates more closely. (Doc. 47-1 at 10; Doc. 62 at 7.)

On October 15, 2007, a fight erupted between Holden and Jones, Brown, and Kelso. (Doc. 1 at 8, ¶ 2; Doc. 47-2 at ¶ 7.) Roughly one minute after the fight started, Brian Young, a Marion County Jail employee, discovered and ended the fight. (Doc. 47-5, Young aff. at ¶¶ 5-6.) After breaking up the fight, Young gave Holden a change of clothes and examined Holden for injuries. (Id. at ¶ 7.) Young's immediate examination revealed minor swelling of Holden's leg, some bruising, and a small cut and minor abrasion on Holden's lip. (Id.) None of Holden's injuries required stitches, and there was no significant bleeding. (Id. at ¶ 12.) Holden was not knocked unconscious during the fight. (Id.) Holden was not bleeding from his gums, and did not have a loose tooth after the fight. (Id. at ¶ 9) Holden walked around without any noticeable difficulty. (Doc. 47-5, Young aff. at ¶ 10; Doc. 47-7, Hirner. aff. at ¶ 5.)

In the hours following the fight, Holden complained of increased pain, locking up and cramping of the neck and shoulders, lower back pain, a loose tooth, dizziness and lightheadedness, and swelling and discoloration on several areas of his body. (Doc. 1 at 10, ¶ 6.) Holden was offered an ice pack for the pain and told to elevate his leg, but refused the ice pack. (Doc. 47-5, Young. aff. at ¶ 11.)

The next day, Peggy Porter, a licensed practical nurse and employee of Marion County Jail, received a Sick Call Request Form from Holden, in which Holden complained of pain. (Doc. 47-11, Porter aff. at ¶ 10(m).) Specifically, Holden complained that a sudden pain shot through his entire lower back and inner right leg up to his groin. (Id.) Holden also complained that his back went out, almost causing him to fall to the floor, and that the pain was spreading to his front side. (Id.) Nurse Porter examined Holden, at which time Nurse Porter evaluated Holden's vital signs, head, ears, nose, throat, lungs, heart, and musculoskeletal system, all of which were normal. (Id.) Accordingly, Nurse Porter directed Holden to use an ice pack, rest his right leg and back, and take ibuprofen for five days. (Id.)

On October 21, 2007 and October 23, 2007, Holden complained of pain. (Doc. 47-9 at 44; Doc. 47-11, Porter aff. at ¶ 10(n).) The next day, an examination revealed a right knee contusion and sprain. (Doc. 47-11, Porter aff. at ¶ 10(n)) He was given Ibuprofen for seven days, and directed to refrain from activities that would strain his knee, such as lifting. (Id.)

In the months following the assault, Holden made multiple complaints of pain, received medical attention and ibuprofen, and was observed walking without any noticeable pain or discomfort. (Doc. 47-2 at ¶¶ 17, 19-20; Doc. 47-11, Porter aff. at ¶¶ 10(q)-(pp), 11.)

Holden also made multiple complaints about an ache in his lower front tooth. (Doc. 47-11, Porter aff. at ¶ 10(p).) Along with his other complaints of pain, Holden sought dental treatment on October 23, 2007, for pain in his lower front tooth. (Doc. 47-9 at 36.) Holden sought dental treatment for his tooth pain again on October 28, 2007, and November 4, 2007. (Id. at 38, 40.) In response, Nurse Porter told Holden multiple times that Marion County Jail did not have a dentist, and could only treat the symptoms of toothache. (Id. at 40; Doc. 47-11, Porter aff. at ¶ 10(p).) When given the opportunity to have a dentist extract the damaged tooth on June 20, 2008, Holden refused. (Doc. 66-1 at 1.) The tooth ultimately was extracted on October 13, 2008. (Doc. 62-8, Ex. H.)

Throughout his remaining time at Marion County Jail after the fight, Holden changed cells, and was not placed with Jones, Brown, or Kelso again. (Doc. 47-5, Young. aff. at ¶ 14.) On April 29, 2008, Holden was transferred from Marion County Jail to the Department of Corrections. (Doc. 1 at 16, ¶ 18.)

IV. MOTION FOR SUMMARY JUDGMENT STANDARD

Summary judgment must be granted when the pleadings and proffer of evidence demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Citrate, 477 U.S. 317, 322 (1986); Devin v. Schwan's Home Serv., Inc., 491 F.3d 778, 785 (8th Cir. 2007). The court must view the evidence in the light most favorable to the nonmoving party and accord it the benefit of all reasonable inferences. Devin, 491 F.3d at 785. A fact is "material" if it could affect the ultimate disposition of the case, and a factual dispute is "genuine" if there is substantial evidence to support a reasonable jury verdict in favor of the non-moving party. Die-Cutting Diversified, Inc. v. United Nat'l Ins. Co., 353 F. Supp. 2d 1053, 1054-55 (E.D. Mo. 2004).

Initially, the moving party must demonstrate the absence of an issue for trial. Celotex, 477 U.S. at 323. Once a motion is properly made and supported, the nonmoving party may not rest upon the allegations in its pleadings or in general denials of the movant's assertions, but must instead proffer admissible evidence that demonstrates a genuine issue of material fact. Fed.R.Civ.P. 56(e); Howard v. Columbia Pub. Sch. Dist., 363 F.3d 797, 800 (8th Cir. 2004); Krein v. DBA Corp., 327 F.3d 723, 726 (8th Cir. 2003); Essex Ins. Co. v. Stone, No. 1:09 cv 1 SNLJ, 2010 WL 330328, at *2 (E.D.Mo. Jan. 21, 2010).

V. DISCUSSION

Section 1983 provides a civil cause of action against any person who, under color of state law, causes a deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States. 42 U.S.C. § 1983; McRaven v. Sanders, 577 F.3d 974, 979 (8th Cir. 2009).

A. Failure to Protect

Prison officials have an Eighth Amendment duty to "provide humane conditions of confinement." Farmer v. Brennan, 511 U.S. 825, 832 (1994). To fulfill that duty, prison officials must "take reasonable measures to guarantee the safety of the inmates," which include "protect[ing] prisoners from violence at the hands of other prisoners." Id. This is because "being subjected to violent assaults is not `part of the penalty that criminal offenders pay for their offenses. . . .'" Jensen v. Clarke, 94 F.3d 1191, 1197 (8th Cir. 1996) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).

To establish a claim of failure to protect, a plaintiff must prove two things: First, the plaintiff must prove that he or she was "incarcerated under conditions posing a substantial risk of serious harm." Farmer, 511 U.S. at 834. This is an objective requirement which "ensures that the deprivation is sufficiently serious to amount to a deprivation of constitutional dimension."Jensen, 94 F.3d at 1197. Second, the plaintiff must show that the prison official had a state of mind that was one of "deliberate indifference" to inmate health or safety. Farmer, 511 U.S. at 834. This is a subjective requirement, which mandates that the plaintiff prove that the prison official both knew of and disregarded "an excessive risk to inmate health or safety." Id. at 837.

Holden argues that defendants failed to protect him from other detainees. (Doc. 1 at 8-9, ¶¶ 2-4.) Holden argues that defendants were aware of the danger sex offenders face in prison, and failed to take necessary precautions. (Id.) More specifically, Holden argues that after Adrian Jones assaulted another detainee, defendants should have, but failed to, move Holden away from Jones. (Id.) Defendants argue that they were unaware of any substantial risk posed by the other detainees specifically to Holden. (Doc. 47-1 at 10-11.) Defendants also argue that they took all available reasonable steps to protect Holden from any violence. (Id.)

Holden cites cases from the Tenth Circuit for the proposition that child molesters face substantial risks of serious harm while imprisoned. (Doc. 62 at 6-7.) See, e.g., Brown v. Narvais, No. CIV-06-228-F, 2009 WL 736674, at *4 (W.D. Okla. Mar. 17, 2009) (recognizing that "it is well known that convicted child molesters may be in danger in a general prison population") (internal quotations omitted). However, Holden was not in the general prison population when the assault occurred. (Doc. 1 at 8, ¶ 1.) Rather, Holden was placed in the protective custody pod, which is used to provide protection for those inmates who have a greater likelihood of being assaulted by other inmates.

Thus, even if Holden would have faced a "substantial risk of serious harm" in the general prison population, defendants protected Holden by placing him in the protective custody pod. Holden points to defendants' affidavits to show that they knew of the dangers sex offenders faced in the general prison population. (Doc. 62 at 8; Doc. 62, Ex. A-E.) However, whether or not Holden would have been in danger in the general prison population is irrelevant. In sum, Holden did not face a "substantial risk of serious harm" while in the protective custody pod solely because he was a sex offender.

Holden has also failed to proffer any evidence that defendants knew Adrian Jones assaulted another inmate four days prior to assaulting Holden and why Jones committed the earlier assault. The only evidence Holden has submitted to show defendants' knowledge is an incident report. (Doc. 62, Ex. F.) The incident report, written by Officer Anna, only states that Officer Anna observed Jones hitting another inmate, William Hopkins, because Hopkins refused to say what his charges were. (Id.) The report does not state that Hopkins was a sex offender, or that Jones assaulted him because he was a sex offender. (Id.) Holden has not proffered any evidence that any defendants were aware of motivation for the assault. Defendants have produced affidavits supporting their contention that they had no knowledge of any specific danger posed to Holden by Jones while in the protective custody pod. (Doc. 47-3, C. Lawson aff. at ¶ 10; Doc. 47-4, D. Lawson aff. at ¶ 5; Doc. 47-5, Young aff. at ¶ 8; Doc. 47-6, Powell aff. at ¶ 7; Doc. 47-7, Hirner aff. at ¶ 7.) Therefore, because Holden has not shown that he faced a substantial risk of serious harm in the protective custody pod, Holden has failed to satisfy the first element of his failure to protect claim.

Even if Holden did face a "substantial risk of serious harm" while in the protective custody pod, Holden has failed to produce any evidence showing defendants were deliberately indifferent to the danger. Holden has not proffered any evidence that any defendant had knowledge of the danger Jones posed to Holden, nor any evidence that any defendant deliberately chose to ignore the danger. (Id.) As discussed above, defendants took reasonable, routine precautions by placing Holden in the protective custody pod for additional safety and greater observation. (Doc. 1 at 8, ¶ 1, Doc. 62, Ex. A-E.) Thus, because Holden has neither submitted any evidence showing that defendants actually knew the details of, nor that they consciously ignored, the danger posed by Jones, Holden failed to satisfy the second element of his failure to protect claim.

Furthermore, defendants cite Norman v. Schuetzle, 585 F.3d 1097 (8th Cir. 2009), where the Eighth Circuit held that an inmate's history of violence alone was insufficient to impute to prison officials subjective knowledge of the inmate's danger to all other inmates. The court reasoned that while a fact-finder could determine that a prison official knew of a substantial risk because the risk was obvious, "the fact remains that the prison official must still draw the inference." Id. at 1105. The court also held that a prison official who learned, two weeks prior to the assault, that someone was looking to hire an inmate to assault the victim was not liable because that information alone was insufficient to establish subjective knowledge of danger and that preventative measures could have been taken but were not.Id. at 1107-08.

As discussed above, here, like the victim-inmate in Norman, Holden has not proffered any evidence that defendants were subjectively aware of the risk posed by Jones. Even though defendants released Jones from segregation only days after he assaulted another inmate, Norman recognized that prison officials need not indefinitely segregate all inmates who engage in violence while incarcerated. Id. at 1105. Courts "must give substantial deference to prison officials to determine the best methods for dealing with dangerous inmates in the volatile environment that is prison life." Id. Placing Holden and Jones in the protective custody pod, which provided greater supervision and protection, was a logical means of preventing violence. Id. at 1105-07.

Therefore, summary judgment is appropriate on Holden's failure to protect claim.

B. Deliberate Indifference to a Serious Medical Condition

"Deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment." McRaven, 577 F.3d at 979 (quotations omitted). "This is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Id. (quoting Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)). Deliberate indifference to a prisoner's medical needs is actionable under Section 1983. McRaven, 577 F.3d at 979.

Pretrial detainee § 1983 claims are analyzed under the Fourteenth Amendment's Due Process Clause, rather than the Eighth Amendment prohibition against cruel and unusual punishment. Kahle v. Leonard, 477 F.3d 544, 550 (8th Cir. 2007), cert. denied, 552 U.S. 826 (2007). "This makes little difference as a practical matter, though: Pretrial detainees are entitled to the same protection under the Fourteenth Amendment as imprisoned convicts receive under the Eighth Amendment." Id. at 979-80.

To prevail on a deliberate indifference claim, a plaintiff must show "(1) he suffered from an objectively serious medical need, and (2) defendants knew of the need yet deliberately disregarded it."Hartsfield v. Colburn, 371 F.3d 454, 457 (8th Cir. 2004). A serious medical need is "one that has been diagnosed by a physician as requiring treatment, or one that is so obvious that even a layperson would easily recognize the necessity for a doctor's attention." Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997). To prevail, a plaintiff must establish that the defendant acted with a level of culpability equal to criminal recklessness. Jenkins v. Cnty. of Hennepin, 557 F.3d 628, 632 (8th Cir. 2009).

Although Holden alleged in his complaint deliberate indifference arising out of the medical care given to all of his injuries, in his response to defendants' Motion for Summary Judgment, Holden only responds to and proffers evidence in support of his tooth pain. (Doc. 62 at 9-10.) Defendants have submitted multiple affidavits and Holden's medical file to rebut any possible claims arising out of the medical care given to Holden beyond that relating to his tooth. (Docs. 47-3, 47-4, 47-5, 47-6, 47-7, 47-9.) In addition, Holden did not include any relevant medical-related facts in his own statement of uncontroverted material facts. (Doc. 62 at 4-5.)

Therefore, summary judgment is appropriate on the deliberate indifference claim arising out of injuries not relating to Holden's tooth pain. See Morlock v. West Cent. Educ. Dist., 46 F. Supp. 2d 892, 924 (D. Minn. 1999) (granting summary judgment for defendants on claims raised in plaintiffs complaint but not argued by plaintiff in her opposition to summary judgment brief).

Holden alleges that his tooth pain was a serious medical need, and that defendants were deliberately indifferent to it. (Doc. 62 at 9-10.) An inmate's complaints of dental pain can be a serious medical need. McAlphin v. Toney, 281 F.3d 709, 711 (8th Cir. 2002) (plaintiff who had five tooth extractions, needed two more, and had an infection spreading in his mouth had shown serious medical need for dental care); Hartsfield, 491 F.3d at 397 (8th Cir. 2007) (plaintiff who "suffered extreme pain from loose and infected teeth, which caused blood to seep from his gums, swelling, and difficulty sleeping and eating" had a serious medical need for dental care); Boyd v. Knox, 47 F.3d 966, 969 (8th Cir. 1995) (holding that "[a] three-week delay in dental care, coupled with knowledge of the inmate-patient's suffering, can support a finding of an Eighth Amendment violation under section 1983").

Viewing the evidence in the light most favorable to the plaintiff, Holden has failed to show that defendants were deliberately indifferent to his tooth pain. The Supreme Court has explained that for liability to attach to a prison official in a deliberate indifference claim, "the official must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. Holden has not proffered any evidence that any of the remaining defendants were actually aware of or responsible for his dental care. The only relevant evidence indicates that none of the defendants were aware of any serious injuries Holden might have had, (Docs. 47-3, 47-4, 47-5, 47-6, 47-7, 47-9), and that defendants complied with Holden's requests to courier his Sick Call Request Forms to Nurse Porter. (Doc. 66-1, Young depo. at 31-34; Doc. 66-1, D. Lawson depo. at 13-14; Doc. 66-1, C. Lawson depo. at 17-18.) Defendants fulfilled their duties in this regard, and cannot be held liable for the diagnostic decisions of the medical staff regarding Holden's dental care, as defendants lacked medical expertise. Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995) ("Moreover, because [the defendants] lacked medical expertise, they cannot be held liable for the medical staff's diagnostic decision not to refer [the inmate] to a doctor to treat his shoulder injury."). See also Box v. Dwyer, No. 1:05CV6 HEA, 2006 WL 2850528, at *2 (E.D. Mo. Sept. 29, 2006) ("Standing alone, [evidence that the defendant signed the inmate's grievance form] is insufficient to establish that defendant was aware of plaintiff's medical needs and deliberately disregarded those needs; defendant, an individual with no medical training, is entitled to rely on the medical decisions of medical personnel.").

Nurse Peggy Porter and Dr. George Shotick, the Marion County Jail medical staff members who diagnosed and treated Holden, were originally named as defendants in this suit, but this court granted Holden's motion to voluntarily dismiss Nurse Porter and Dr. Shotick on November 4, 2009. (Docs. 39, 41.)

In addition, although Holden complained of tooth pain on October 23, October 28, and November 4, 2007, (Doc. 47-9 at 36, 38, 40), Nurse Porter told Holden that Marion County Jail did not have a dentist, and could only treat the pain. (Id. at 40; Doc. 47-11, Porter aff. at ¶ 10(p).) When the opportunity arose on June 20, 2008 to have the tooth extracted, Holden refused. (Doc. 66-1 at 1.) Refusing medical treatment can undermine an inmate's claim of deliberate indifference. See Logan v. Clarke, 119 F.3d 647, 649-50 (8th Cir. 1997) (holding that a prison's offer of pain treatment, even though the inmate refused, "demonstrate[d] the doctors were not consciously disregarding [plaintiff's] need."); Williams v. Chandler, No. 4:05CV00661 ERW, 2006 WL 2795382, at *7 (E.D. Mo. Sept. 27, 2006) (holding that a plaintiffs "refusal of medical evaluations and treatment made available to him" supported summary judgment against the plaintiff). Here, all available steps were taken to relieve Holden's tooth pain and when given the opportunity to completely rid himself of the pain via tooth extraction, Holden refused.

Summary judgment is therefore appropriate on Holden's deliberate indifference claim.

C. Qualified Immunity

Defendants argue that they are entitled to qualified immunity because Holden cannot establish the violation of a clearly established constitutional right. (Doc. 47-1 at 6.)

"Qualified immunity shields government officials `from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Crow v. Montgomery, 403 F.3d 598, 601 (8th Cir. 2005) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity may be invoked by a public official being sued in his or her individual capacity.Serna v. Goodno, 567 F.3d 944, 952 (8th Cir. 2009). Qualified immunity "protects all but the plainly incompetent or those who knowingly violate the law." McRaven, 577 F.3d at 979 (internal quotations omitted).

To overcome the defense of qualified immunity, a plaintiff must prove that (1) the facts, viewed in a light most favorable to the plaintiff, show a deprivation of a constitutional right, and (2) the right was clearly established at the time of the deprivation.Vaughn v. Gray, 557 F.3d 904, 908 (8th Cir. 2009).

As discussed above, even when viewed in the light most favorable to the plaintiff, Holden has failed to establish a deprivation of his constitutional rights. As such, defendants are entitled to qualified immunity.

The court notes that both a pretrial detainee's right to medical care and right to protection from violence from other inmates are clearly established. Boswell v. Sherburne County, 849 F.2d 1117, 1121 (8th Cir. 1988) (medical care); Foulks v. Cole Cnty., 991 F.2d 454, 456-57 (8th Cir. 1993) (medical care);Miller v. Schoenen, 75 F.3d 1305, 1308 (8th Cir. 1996) (protection from violence from other inmates). However, because Holden has not proffered any evidence of suffering a deprivation of a constitutional right, defendants are entitled to qualified immunity. See Bradford v. Huckabee, 394 F.3d 1012, 1015 (8th Cir. 2005) ("The better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all."); Abdouch v. Burger, 426 F.3d 982, 987 (8th Cir. 2005) ("In the present case, we need not reach this second step of the qualified immunity analysis because we conclude that the defendants' conduct, viewed in a light most favorable to the plaintiff, did not violate a constitutional right.").

D. Official Capacities

A suit against an individual in his or her official capacity is treated as a suit against the entity that employs the individual.Hafer v. Melo, 502 U.S. 21, 25 (1991). See also Kentucky v. Graham, 473 U.S. 159, 166 (1985) ("[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity."). A municipality cannot be held vicariously liable under Section 1983 for the actions of its agents. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). Thus, to succeed in an official-capacity suit, the plaintiff must show that the entity's policy or custom caused his or her injury. Id. at 694.

A policy is an "official policy, a deliberate choice of a guiding principle or procedure made by the municipal official who has final authority regarding such matters." Bechtel v. City of Belton, 250 F.3d 1157, 1160 (8th Cir. 2001). To be actionable, the policy must have been the "moving force of the constitutional violation." Monell, 436 U.S. at 694.

A custom involves "a pattern of persistent and widespread practices which become so permanent and well settled as to have the effect and force of law." Brockinton v. City of Sherwood, 503 F.3d 667, 674 (8th Cir. 2007) (internal quotations omitted). To establish a custom, a plaintiff must proffer evidence of a "continuing, widespread, persistent pattern of unconstitutional misconduct," along with evidence that either "policymakers were deliberately indifferent to the misconduct or that they tacitly authorized it." Jenkins, 557 F.3d at 634 (8th Cir. 2009) (internal quotations omitted).

As discussed above, defendants are entitled to summary judgment on both claims against them in their individual capacities, because Holden has failed to show a constitutional violation. Because Holden has failed to show legally sufficient evidence that he was deprived of any of his constitutional rights, his claims against defendants in their official capacities also fail.

VI. MOTION TO STRIKE

Holden moves to strike all references to defendants' requests for admission made in defendants' memoranda in support of summary judgment. (Doc. 68.) The court considered defendants' motion for summary judgment without the use of the disputed requests for admissions and nevertheless found summary judgment appropriate for defendants. Therefore, Holden's motion to strike is moot.

VII. CONCLUSION

An appropriate judgment order is issued herewith denying as moot the motion of plaintiff to strike defendants' citation to requests for admission (Doc. 68) and sustaining the motion of defendants for summary judgment (Doc. 47).

Signed on September 7, 2010.

to be more than rationally bullish. This tendency is born out by the data suggesting that "buy" recommendations are far more prevalent than "sell" recommendations. See e.g., Brad M. Barber, Reuven Lehavy, Maureen McNichols Brett Trueman, Buys, Holds, and Sells: The Distribution of Investment Banks' Stock Ratings and the Implications for the Profitability of Analysts' Recommendations (September 2005) available at http://papers.ssrn.com/so13/papers.cfm?abstract_id=495882 (noting that although new stock exchange rules had the effect of decreasing "buy" recommendations from their 2000 high-water mark of 74%, as of June 2003 they still accounted for 42% of all recommendations compared to 17% for "sell" recommendations).

Travis Keath's views about company value have been presented to this court before. In the case of In re Lear S'holder Litig., 926 A.2d 94 (Del.Ch. 2007), Keath concluded that Lear's stock price's fair value was in the upper $30s to mid $40s. Based on that analysis, Keath opined that Carl Icahn's all-cash, all-shares offer of $36.00 per share was unfair. Although this court denied the plaintiffs' motion for a preliminary injunction, the stockholders largely agreed with Keath's assessment and declined to accept Icahn's 2007 enhanced bid of $37.25. They might regret the decision not to get out at the top, rather than the bottom. Lear's fortunes soon declined until its stock price dropped to $0.88 by the end of June 2009. Lear eventually filed for bankruptcy on July 7, 2009.

PX-41 (Keath Declaration) at 14-15.

Id.

In re Dollar Thrifty S'holder Litig., C.A. No. 5458-VCS at 167-68 (Del. Ch. Aug. 25, 2010) (TRANSCRIPT).

In considering whether to lock in something like that value as a floor, the Board considered the possibility of holding out until Dollar Thrifty announced its first quarter earnings, on the hope that the market reaction would impel Hertz to stretch even more. Of course, by waiting, Dollar Thrifty risked having Hertz actually go through with its expressed intention to walk away if Dollar Thrifty waited until after the companies' respective earnings announcements to sign up a deal. Dollar Thrifty also risked a market yawn. Although its earning announcement was positive in the sense that its reported EBITDA would be greater than expected, the company's revenues were actually down. Dollar Thrifty was capitalizing on its strategy of exposing its rental car fleet to the ups and downs of a now booming used-car market, but it was not making greater sales than estimated. The Board feared that it was reaching the top of its ability to wring profits from the used-car market, and that the company still lacked a long-run growth story, lacking the capacity to go international, and facing ongoing competition from larger industry players.

PX-31 (Thompson) at 51 ("On the EBITDA line there's no question that we were performing significantly above [Wall Street's] expectation, but actually on the revenue line we actually missed the revenue forecast in the first quarter.").

See PX-31 (Thompson) at 109-10 (admitting that Dollar Thrifty needs a new "growth leg," is currently looking for one, but has been unable to find one); see also PX-50 (Buster) at 197 (stating that Dollar Thrifty is not expanding its market share and that the rental car market is "fairly static."); Id. at 198-99 (discussing that there are three possible growth areas: on-airport markets, which are difficult to grow because the market is basically saturated; off-airport markets (the rental replacement business), which is dominated by Enterprise and which Dollar Thrifty had unsuccessfully tried to enter in the past; and international markets, which have major barriers to entry, especially for a small player like Dollar Thrifty).

Rather than play a further game of chicken, the Board decided to extract further concessions from Hertz as a condition to signing up a deal before the earnings announcements. Thus, Hertz moved its bid up to $41 from $40. Importantly, Hertz also offered up an additional $75 million of divestiture commitments to obtain antitrust approval.

Admittedly, this left Dollar Thrifty with a deal where stockholders would get a mere 5.5% premium over the current market price of $38.85 on the day before announcement. Of course, a 5.5% one day return is not a trifle when it allows the company to consider further bids and when it sets a much firmer floor on the company's stock price.

The record persuades me that the Board's decision to sign up the Merger Agreement was a reasonable approach to value maximization given the circumstances. The Board had a firm handle on the company's prospects and had considered its fundamental value. The Board had bargained aggressively with Hertz throughout the process, having been willing to make discussions chillier and to even terminate them when necessary to extract concessions from Hertz. The Board also knew that Hertz had been willing to pull out of merger talks at much lower prices in the past.

The plaintiffs would have me fault the Board for not following blindly some crude rendition of the semi-strong form of the efficient capital markets hypothesis, one in which any board should treat the current market price as a reliable guidepost to decisionmaking. My understanding of ECMH is that it makes much less drastic claims. The plaintiffs appear to embrace the view that the Dollar Thrifty Board would have done a great job if it could have sold Dollar Thrifty to Hertz in February 2009 for $3.50 per share, a 298% premium over market, rather than for $41 a share in April 2010. Of course, there are some more traditional and conservative views of good trading that involve the notion of selling an asset when it is fully valued — i.e., at or near the top of the market — rather than when it is beat up.

Michael L. Wachter, Takeover Defenses When Financial Markets Are (Only) Relatively Efficient, 161 U. PA. L. REV. 787, 792 (2003) ("Specifically, when financial markets are relatively efficient, while investors cannot expect to outperform the market on an ongoing basis, individual stock prices can still be incorrect at any point in time — either under or overestimating the value of the corporation.") (citing JOHN Y. CAMPBELL, ANDREW W. LO AND A. CRAIG MACKINLAY, THE ECONOMETRICS OF FINANCIAL MARKETS 24-25 (Princeton Univ. Press, 1997)); Lynn A. Stout, Inefficient Markets and the New Finance, 7 (Univ. of Cal. Research Paper No. 05-11 2005), available at http://ssrn.com/abstract=729224 ("[I]n a world of disagreement we must question whether securities markets can be efficient in a fundamental value sense. As noted earlier, however, fundamental value efficiency is not the only possible understanding of efficiency. Many theorists who speak of `efficient markets' seem to be relying on the alternate idea of informational efficiency — that prices respond so quickly to new information it is impossible for traders to make profits on the basis of the information. Indeed, it has become common for finance economists whose faith in fundamental value efficiency has been beaten out of them by market events and the accumulating evidence on anomalies to retreat to this intellectual position [Brealey Meyers (200, p. 377); Malkiel (1999, p. 270-74)]. It is important to understand that when economists define market efficiency in terms of the difficulty of making arbitrage profits, they have abandoned the intoxicating and powerful claim that efficient markets produce accurate prices. A market can respond near-instantaneously to new information without producing prices that mirror fundamental value.") (brackets in original); RICHARD A. BREALEY STEWART C. MEYERS, PRINCIPLES OF CORPORATE FINANCE 368 (Irwin/McGraw-Hill 9th ed. 2008) ("[M]ost of the tests of market efficiency are concerned with relative prices and focus on whether there are easy profits to be made. It is almost impossible to test whether stocks are correctly valued, because no one can measure true value with any precision.") (emphasis in original).

See generally, BENJAMIN GRAHAM, THE INTELLIGENT INVESTOR (Harper Collins 2005) (1949) (arguing that a prudent investor, in deciding how to proceed, should not be concerned with the erratic fluctuations in market price, but instead should be concerned with the fundamental or "central" value of the firm).

The reality is that if the stock market is actually pricing Dollar Thrifty on its future expected cash flows, the market has had a rather rapidly shifting sense of what those future cash flows are. With no fundamental changes in Dollar Thrifty's outlook, except for the possibility of an M A deal, Dollar Thrifty's stock price rose from $26.97 in December 2009, to $38.85 in April 2010. The $41 represented a 52% premium to the December 22, 2009 price (the day that Hertz made its $30 offer) and a 4659% premium to the February 24, 2009 price (the day that Hertz made its final offer before that earlier round of negotiations broke down). More importantly, the Board was entitled, indeed arguably required by Van Gorkom, to consider the attractiveness of $41 per share in light of the company's fundamental value. Reasonable minds can and do differ about how reliably stock prices predict the future performance of particular corporations. But, our law does not require a well-motivated board to simply sell the company whenever a high market premium is available (such as selling at a distress sale) or to eschew selling when a sales price is attractive in the board's view, but the market premium is comparatively low, because the board believes the company is being valued quite fully.

Van Gorkom, 488 A.2d at 881. Cf. Bernard Black and Reiner Kraakman, Delaware's Takeover Law: The Uncertain Search For Hidden Value, 96 NW. L. REV. 521, 552-54 (2002) (suggesting that it is more likely that firm managers can be trusted about the firm's value when they are contending that the company is not being materially undervalued by the market, than when managers say that the company is markedly undervalued by the stock market).

Query, was Dollar Thrifty really worth $1.67 per share on April 14, 2009; $16.00 per share on July 16, 2009; $23.27 per share on August 20, 2009; $30.06 per share on February 17, 2010; $42.32 per share on April 16, 2010, etc.? In one respect, it was in that these prices reflect what a small block of its shares could be bought at in the market. But did Dollar Thrifty really have such disparate earnings-generating potential on these dates to justify these wide disparities in stock prices, or were market players eyeing what others felt about Dollar Thrifty's short-term fate and making decisions on the greater fool theory? See William W. Bratton Michael L. Wachter, The Case Against Shareholder Empowerment, 158 U. PA. L. REV. 653 (2010) (observing that the banks that were heavy participants in the subprime mortgage markets saw their stock prices soar due to market enthusiasm only to have them come crashing down when the market violently readjusted); see also Michael C. Jensen, Agency Costs of Overvalued Equity (Finance Working Paper No. 39/2004), available at http://ssrn.com/abstract=480421 ("In part, the massive over-valuation of equity that occurred in the late 1990s and early 2000s was an understandable market mistake. Society often overvalues what is new — in this case, high-tech, telecommunications, and internet ventures. But that catastrophic overvaluation was also the result of misleading data from managers, large numbers of naive investors, and breakdowns in the agency relationships within companies and within gatekeepers including investment and commercial banks, and audit and law firms (many of whom knowingly contributed to the misinformation and manipulation that fed the overvaluation). Under-or overvaluation of a firm can be due to market inefficiency, or it can occur in a market that is semi-strong form efficient (when the market does not have the information available to managers). It does not matter for my analysis here whether markets are efficient or not. Moreover, there is a simple rule for managers to tell whether their stock price is overvalued: When managers perceive it is impossible for them to meet the performance requirements to justify the current price of their equity, the firm is overvalued.").

Paramount Commc'ns Inc. v. Time Inc., 1989 WL 79880, at *19 (Del.Ch. July 14, 1989) ("But just as the Constitution does not enshrine Mr. Herbert Spencer's social statics, neither does the common law of directors' duties elevate the theory of a single, efficient capital market to the dignity of a sacred text."), aff'd, Paramount Commc'ns Inc. v. Time Inc., 571 A.2d 1140 (Del. 1989).

Here, the Board was entitled to use its reasonable judgment in determining whether it was a good time to sell and at what price. Of course, in signing up a deal without a pre-signing market check, it was incumbent upon the Board to consider whether it had extracted all the value it could and whether it was ensuring the viability of a post-signing market check. The plaintiffs fault the Dollar Thrifty Board on this count, asserting in their brief that the termination fee was a hefty 5.1% of the $1,172 billion value paid by Hertz and that it, along with the matching rights, would deter other bidders. Given the modest premium, why would a reasonable board accede to these terms?

The defendants answer in a convincing fashion. To begin, the defendants correct the plaintiffs' calculation of the termination fee. As the defendants point out, the plaintiffs ignore approximately 2.5 million share-equivalents in the form of options, restricted stock units and performance units in calculating the fee. In the Merger, these share-equivalents have to be paid for by Hertz or any other topping bidder. When this correction alone is made, the termination fee goes down to 4.3 %. Furthermore, the plaintiffs treat a $200 million special dividend that Dollar Thrifty will pay only if the Merger is consummated as not part of the transaction and as thus not part of the transaction value against which the termination fee percentage is calculated. Because the $200 million will be paid only in the event of the Merger, I am not convinced by the plaintiffs' position.

The preclusive aspect of any termination fee is properly measured by the effect it would have on the desire of any potential bidder to make a topping bid. This observation is premised on the elementary notion that a termination fee is the amount a target company must pay to the "topped" bidder in the event that it decides to forgo the bird in hand in favor of the topping bidder's proposal, thereby effectively reducing the value of what the topping bidder is acquiring in any transaction with the target. Therefore, the $44.6 million termination fee, as set forth in the Merger Agreement, must be measured against the entire value of the Merger, which is logically quantified as the amount of consideration flowing into Dollar Thrifty shareholders' pockets — not by the amount of money coming exclusively from Hertz and Hertz alone. Also, because a termination fee's preclusive effect is best measured as the effect it has on a potential topping bidder's desire to make a move and enter the game, it is informative to look at how Avis — the would-be topping bidder — seemingly viewed the situation in the spring of 2010 when it made its bid of $46.50. When it made its July 28 bid of $46.50, Avis accepted that in order to top Hertz's bid, it needed to beat the price of $41.00 per share, a price that included the $200 million dividend. In fact, Avis's own bid itself calls for an identical special dividend of $200 million. Put simply, the $200 million, regardless of the fact that it will be paid from Dollar Thrifty's own assets, must be matched in any topping bid. It is the shareholders who get the $200 million dividend in the transaction with Hertz, and even then only if the Merger is approved and is consummated. Put differently, a topping bidder must offer value to the target shareholders in excess of the value that is currently being offered by the Hertz Merger. Ignoring that reality — and insisting that merger consideration only counts if it comes directly out of the pockets of the acquirer — is simply not in accord with reality. In examining the termination fee's preclusive effect, therefore, the $200 million, as part of the value produced by a consummation of the Hertz deal, must be counted, and the plaintiffs' argument to the contrary — while it serves their cause — is without merit. Thus, I conclude that the termination fee constitutes about 3.5% of the $1,275 billion deal value, and about 3.9% when the additional promise to pay up to $5 million in expenses is taken into account.

In re Toys "R" Us, Inc. S'holder Litig., 877 A.2d 975, 1014-22 (Del.Ch. 2005); see also In re Lear Corp. S'holder Litig., 926 A.2d at 120.

DX-66.

Although that is a relatively robust fee, it still constitutes only $49.6 million when combined with the expenses or about $1.60 per share and is therefore a relatively insubstantial barrier, as the Avis bid demonstrates, to any serious topping bid. In addressing the reasonableness of the fee, the plaintiffs also ignore that Dollar Thrifty attempted, but failed to get Hertz to accept a lower fee. The record shows efforts by Dollar Thrifty to get Hertz to agree to a higher reverse termination than Dollar Thrifty would offer as a standard termination fee. On March 17, Dollar Thrifty suggested that Hertz pay a 5% reverse termination fee and accept for itself only a 3% standard termination fee. Hertz refused and insisted that the standard and reverse termination fees be symmetrical. There is, of course, no necessary logical symmetry between these provisions. But in the give and take of negotiation, bidders often demand such symmetry. As part of an overall package that included a price bump and a substantial increase in Hertz's obligation to divest assets if necessary to secure antitrust approval, Dollar Thrifty accepted the 3.9% termination fee. That is, by contrast to the plaintiffs' arguments, the Board did bargain for value in negotiating the deal protections and only acceded to the termination fee when it reached terms regarding price and deal certainty that it viewed as attractive.

E.g., Steven M. Davidoff, The Failure of Private Equity, 82 S. Cal. L.Rcv. 481, 515-16 (2009).

The record also reveals that the Board considered whether the deal protections in the Merger Agreement would deter a serious topping bidder from emerging. The Board believed that the relatively lenient no-shop provision would make it possible for any serious interloper to obtain confidential information, make a superior proposal, and have that proposal fairly considered by the Board. The relatively lengthy time between the signing of the Hertz Merger Agreement and the stockholder vote, and the relatively distant Merger Agreement termination date of April 2011 also increased the time available to a late coming bidder to formulate and present a topping bid. The Board's belief that the Merger Agreement gave adequate room to Avis and others to make a topping offer has turned out to be true. Avis has had access to confidential information since May 4, 2010 — the very day after Nelson sent his letter — and Avis was able to present a proposal to the Dollar Thrifty Board for consideration on July 28, having had three months to amend covenants with its lenders and secure financing.

The Board also believed that a per share termination fee of $1.60 and matching rights would not deter a bidder interested in making a materially higher bid from emerging. That has also turned out to be true, as Avis made a proposal to acquire Hertz for $46.50 a share, a bid that was not conditioned on invalidation of the termination fee. Even if $1.60 per share was deducted from the nominal Avis bid, that bid would be higher than the consideration Hertz will pay if the Merger is consummated.

In fact, there is reason to believe that Avis was impelled by the Merger Agreement to act precisely because it knew that unless it did, Dollar Thrifty would likely be sold to Hertz. Avis did not even own a share of stock in Dollar Thrifty until after the Merger Agreement was signed. Although Avis proclaimed loudly its supposed prior interest in doing a deal, Avis did not secure amendments to its credits agreements from its lenders until July 21, some three months after the Merger Agreement was announced. And, as shall be discussed, Avis still refuses to offer to pay any reverse termination fee if it fails to secure antitrust approval. In view of Avis's meandering history of interest in Dollar Thrifty, the inference arises that the Board's decision to secure a valuable deal and to conduct a passive, post-signing check was a reasonable, indeed perhaps the most savvy, way to induce Avis to decide whether it wanted to make a real deal for Dollar Thrifty. Whether it should be so or not, human beings often value things — even other human beings like romantic partners — more when others might claim them.

In the well known case of Omnicare, Inc. v. NCS Healthcare, Inc., 818 A.2d 914 (Del. 2003) the target, NCS, was insolvent. For a long period of time, an industry rival, Omni-care, had a chance to make an acquisition offer for NCS. Omnicare was never willing to make an offer that paid off all of NCS's debt, much less pay anything for the equity. Indeed, it wanted to pick up NCS in a bankruptcy sale. Only after another industry rival, Genesis, agreed in a binding merger agreement to pay off all of NCS's debt and pay $ 1 per share for the equity did Omnicare express an interest in making a bid that would pay off all the debt and provide a payment to the equity holders, and only made a genuine, unconditional offer several months after the NCS/Genesis merger was executed. Indeed, as here, Omnicare did not buy stock in NCS until after the merger with Genesis was announced. Omnicare, Inc. v. NCS, Healthcare, Inc., 809A.2d 1163, 1169 (Del.Ch. 2002).

PX-37 (Tucker) at 61.

On this record, I simply cannot conclude that the Board's approach to maximizing sale value was unreasonable. Certainly, I cannot call the deal protections preclusive, in that they left any serious bidder with the chance to buy the company while bearing the cost of modest compensation to Dollar Thrifty's jilted first partner.

As important, the deal protections are not in any way coercive. The plaintiffs claim that there is no reason why Dollar Thrifty stockholders would want the deal with Hertz. That may be true if Avis is actually willing to pay more. What the Board did in the Merger Agreement was to give the stockholders the chance to accept a deal with Hertz or the chance to turn it down. While Hertz was bound, that would place a floor, but not a ceiling on Dollar Thrifty's stock price. If no other bidder emerged, the stockholders could make a determination for themselves whether it was, as the Board believed, a good time to sell or whether it was better to bet on Dollar Thrifty's independent prospects. That determination would not be hampered by the termination fee, because the fee would not be paid to Hertz unless there was both a no vote and the acceptance of another more valuable transaction contract within a year.

See In re IBP S'holder Litig., 789 A.2d 14 (Del.Ch. 2001) (target board successfully used the signing of a management buyout to set an above market floor on company stock price and induce strategic bidders to compete to top).

DX-56 (Merger Agreement) § 8.02(a)(i)-(iv), (b).

At this stage, I actually confess to confusion about what the plaintiffs' objective is. The deal protections about which the plaintiffs obsess are clearly not the barrier to a deal with Avis.

As things now stand, what is standing between the stockholders and a deal with Avis is the Board's determination that it will not consider Avis to have made a superior proposal unless it provides a greater promise of closing certainty. I admit to being puzzled that this problem has not been solved if Avis is serious. Avis could reduce its nominal bid of $46.50 per share by $1.60, up its willingness to divest to the same level as Hertz, and offer to pay a reverse termination fee equal to Hertz, and still have a topping bid. One senses that the Board knows how obvious this move is and wonders why Avis, if it is serious, has not made it.

DX-9 (August 3, 2010 Letter from Thompson to Nelson) (conveying that Avis's offer is more favorable financially and is supported by financing that is likely to be obtained, but that it cannot be declared a "superior proposal" because of Avis's failure to give adequate assurances that it would secure regulatory approval and close the deal).

The plaintiffs, however, do not dilate on this point and seem to be totally oblivious to the economic reality that value will not be value unless it is ultimately paid. The stockholders of Honeywell enjoyed the psychic satisfaction of having a more lucrative bid by GE accepted by a well-motivated board, forgoing an alternative available transaction with another industry player, and never receiving the consideration offered by GE when antitrust approval was not received. The stockholders of several corporations in recent years have enjoyed similar psychic, but not financial rewards, as premium-generating deals were papered and not consummated. In the wake of such failed deals, the formerly desired targets have often suffered, both in terms of operating performance and market valuation. To pretend that contractual provisions designed to ensure that the buyer actually pays have no relation to the value of the deal ignores economic reality and common sense. To pretend that there are not dangers in holding out for an even bigger blow out price when the market is fully valuing a target is equally obtuse.

See generally George Stephanov Georgiev, Bridging the Divide? The European Court of First Instance Judgment in GE/Honeywell, 31 Y.J. INT'LL. 518 (2006).

See e.g., Hexion Specialty Chemicals, Inc. v. Huntsman Corp., 965 A.2d 715 (Del.Ch. 2008); United Rentals, Inc. v. RAM Holdings, Inc., 937 A.2d 810 (Del.Ch. 2007); Steven M. Davidoff, The Failure of Private Equity, 82 S. CAL. L. REV. 481 (2009) (chronicling incidents of mergers that fell apart at target companies such as Sallie Mae (SLM Corp.), BCE, Inc., 3Com Corp., and Alliance Data Systems, Inc.).

Consideration of the respective fate of the stockholders of Lear Corporation and Inter-Tel, Inc. in 2007, illustrates the point. In Lear, the stockholders turned down an enhanced 2007 offer of $37.25 per share by Carl Icahn, believing that he could, and should, pay more in a very hot market. He would not. The company filed for bankruptcy in July 2009. In re Lear Corp. S'holder Litig., 967 A.2d 640 (Del.Ch. 2008). By contrast, in Mercier v. Inter-Tel (Delaware) Inc., the stockholders were given further time to consider whether to take a $25.60 per share offer when the board believed that the market was turning. Mercier v. Inter-Tel (Delaware) Inc., 2007 WL 3325955, at *29 (Del. Ch. Aug. 14, 2007). After considering additional evidence, including a decline in the financing markets, the Inter-Tel stockholders accepted the deal, which was one of the last premium-generating transactions of 2007.

6. Plaintiff's Have Not Demonstrated A Likelihood Of Success On The Merits

For all these reasons, I find that the plaintiffs have not demonstrated a reasonable probability of success on the merits of their Revlon claim. At bottom, the record depicts a well-motivated and diligent board that responded with openness, rather than resistance, to an expression of interest by a party that had twice before failed to consummate a merger. It had reason to be dubious about Hertz, but it was willing to take a chance, so long as it did not disrupt the company's operations. Rather than rolling over for Hertz, the Board bargained hard, shut down the process a few times, and moved Hertz up from its initial expression of interest at $30 to $41 per share. The Board also extracted real closing certainty, through antitrust divestiture provisions and a reverse termination fee, while leaving room for a likely player like Avis to actually realize that if it didn't move this time, it would never be able to again. By doing what it did, the Board set a floor under the market price of Dollar Thrifty stock, at a level that was very high in comparison to the averages over the prior year and very high in relation to the company's DCF value, left its stockholders with the choice of turning down the deal at relatively low cost, and the chance to reap more from a bidder like Avis who might top.

Although other reasonable approaches might have existed, including one that involved contacting Avis pre-signing and trying to stimulate a pre-signing auction, the question is whether the approach the Board took was unreasonable. On this record, the Board has demonstrated that its approach was a reasonable one, that was the product of considerable deliberation.

Indeed, although I tend toward the Fort Howard view of directors' ability to predict the future as compared to the Omnicare omniscience view, the objective evidence seems to indicate that the Board's strategy worked and made Avis step forward. In that regard, Avis's seriousness about making a viable bid any earlier has to be discounted by its lack of owning one share, its failure to make anything other than a tepid dinner invitation, and the fact that it took it three months to actually get lender approval to make a bid.

In re Fort Howard Corp. S'holder Litig., 1988 WL 83147, at *14 (Del.Ch. Aug. 8, 1988) (" Revlon explicitly recognized that a disinterested board may enter into lockup agreements [and by implication other deal protection devices] if the effect was to promote, not to impede, shareholder interests. (That can only mean if the intended effect is such, for the validity of the agreement itself cannot be made to turn upon how accurately the board did foresee the future).") (emphasis in original).

Omnicare, 818 A.2d at 933 ("The latitude a board will have in either maintaining or using the defensive devices it has adopted to protect the merger it approved will vary according to the degree of benefit or detriment to the stockholders' interests that is presented by the value or terms of the subsequent competing transaction.").

C. The Risks Of An Injunction Outweigh The Benefits To The Shareholders

Finally, on this record, it would be difficult to justify the entry of an injunction even if the plaintiffs' have satisfied, as they must, their merits burden. From all appearances, the risks of an injunction seem to be greater than the benefit, when judged from the standpoint of the Dollar Thrifty stockholders. Although an injunction would not release Hertz at this point, it would introduce a period of uncertainty and delay. Rather than exerting leverage on Avis to actually reach terms with the Board on a better deal, it would leave Dollar Thrifty in a period of limbo in which both Hertz and Avis would have the chance to dicker, while Dollar Thrifty's employees find it hard to concentrate on the job at hand, wondering what the fate of their employer and their jobs will be. On this record, the only thing preventing Avis from being deemed the superior bidder is its failure to offer any form of reverse termination fee whatsoever. The termination fee and matching rights the plaintiffs obsess over are not inhibiting competition, and I am not persuaded that the uncertain effect of a preliminary injunction would produce any benefit to the Dollar Thrifty stockholders, whereas I do fear that an injunction would pose genuine risk to them. If Dollar Thrifty terminates the Merger Agreement to sign up with Avis, it will have to pay Hertz $44.6 million plus up to $5 million in expenses. If Avis does not close because it does not attain antitrust approval, Dollar Thrifty would be out upwards of $44.6 million, receive no compensation from Avis under its proposal, have lost the Hertz deal, suffered the productivity-reducing effects on its work force of a lengthy sales process, and come out at the end with no deal. That scenario poses real risks to Dollar Thrifty's stockholders that the Board is entitled to consider. In other words, the balance of harms tilts against an injunction, especially because the Dollar Thrifty stockholders are free to turn down the Hertz deal for themselves if they are confident that either the company will thrive on its own or that Avis will actually come through with a higher binding deal, secure antitrust approval, and pay the promised consideration.

DX-56 (Merger Agreement) § 7.01(f) (requiring that a party to the Merger Agreement use its reasonable best efforts to get any injunction lifted before being relieved of its obligations under the agreement); In re Dollar Thrifty S'holder Litig., C.A. No. 5458-VCS at 92-94 (Del. Ch. Aug. 25, 2010) (TRANSCRIPT) at 139. The drop dead date of the Merger Agreement is not until April 26, 2011. DX-56 § 8.01; In re Dollar Thrifty S'holder Litig., C.A. No. 5458-VCS at 92-94 (Del. Ch. Aug. 25, 2010) (TRANSCRIPT) at 153.

In recent days, Avis issued a press release indicating its willingness to increase its offer if the Dollar Thrifty stockholders turn down the Hertz deal, but still refusing to offer up any reverse termination fee. The plaintiffs sent this to me for consideration. The press release confirms, rather than undercuts, my belief that an injunction would be imprudent. Rather than justify its refusal to offer a reverse termination fee on economic grounds, Avis says it would be unfair for it to have to offer up a reverse termination fee when it is willing to do a deal in which it gets no termination fee if Dollar Thrifty signs with it and then does another deal with someone else at a higher price. More like a child arguing with a parent about the comparative treatment of his sibling than a determined buyer, Avis says that "fairness" demands that it be treated equally with Hertz. Economic seriousness might suggest a focus on addressing the Dollar Thrifty Board's apparently legitimate concern about closing certainty and not ignoring the reality that Hertz expended resources in the merger negotiation process and bound itself firmly and publicly to a deal several months before Avis even made a financed bid, taking business risks Avis had the chance in prior years to take and never would. Notably, Avis has chosen not to litigate for itself and to subject itself to discovery.

Press Release, Avis Budget Increases Premium Offer for Dollar Thrifty and Sets the Record Straight on Antitrust (Sept. 2, 2010).

Id.

This sort of negotiating dynamic — which is what the Avis letter is — is one best not intruded upon by a judge, when an independent board and the Dollar Thrifty stockholder base are well positioned to address Avis's overtures for themselves. In so stating, it is notable that the current dynamic is obviously exerting pressure on Avis to increase its bid and, at some point, one would think that economics, rather than concerns about symmetrical treatment with Dollar Thrifty's first merger partner, would impel Avis, if it is serious, to address the Board's demand for a reverse termination fee. Avis is, of course, the master of its own bid, though, and the plaintiffs have presented no rational basis for me to conclude that it is unreasonable for the Board to demand a reverse termination fee from Avis.

IV. Conclusion

For all these reasons, the plaintiffs' motion for a preliminary injunction is denied. IT IS SO ORDERED.

In re DOLLAR THRIFTY SHAREHOLDER LITIGATION.

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