Time for a rant. Some of you may not notice the difference; I’m told that almost everything I write seems like a rant, even when I think I’m being restrained.

Today’s topic is misleading comparisons—in common parlance, comparing apples and oranges—and today’s example comes from the Delaware Supreme Court in the famous case of Weinberger v. UOP, Inc., 457 A.2d 701 (1983).

Weinberger, for those of you who may not remember, involved a challenge to a cash-out merger between UOP and its controlling shareholder, Signal. The merger price was $21 a share, but a report prepared by Signal (not disclosed to UOP and its shareholders) indicated that any price up to $24 a share would be a good investment for Signal. The Supreme Court reversed the Chancery Court’s determination that the transaction met the fairness test.

I have no quarrel with either the result or the general analysis in Weinberger. It’s a good opinion, and it makes several important contributions to Delaware corporate law. It expounds on the meaning of “fairness” in duty-of-loyalty situations and lays out a roadmap for controlling shareholders to follow to avoid duty-of-loyalty challenges. It eliminates the “business purpose” requirement in cash-out mergers. And it gets rid of the much-criticized Delaware block method for determining fair value in appraisal proceedings.

I also have nothing against former Justice Moore, the author of the opinion. He was a capable Delaware Supreme Court justice who wrote some of the court’s most memorable and lasting opinions, including Unocal and Revlon. But he also wrote one sentence that irks me every time I read it, as I recently did for my Mergers and Acquisitions class.

Here’s the language that drives me batty:

The Arledge-Chitiea report . . . shows that a return on the investment at $21 would be 15.7% versus 15.5% at $24 per share. This was a difference of only two-tenths of one percent, while it meant over $17,000,000 to the minority.

457 A.2d at 709 (emphasis added).

Justice Moore is comparing two different units, percentage points of return and dollars. Rewrite it so that both parts of the sentence are in the same units and you see how meaningless it is:

This was a difference of over $17,000,000 [to Signal], while it meant over $17,000,000 to the minority.

Every extra penny to the minority shareholders is a penny less to Signal—no more, no less. That doesn’t mean Signal shouldn’t have had to pay more pennies, only that the sentence in question, once you’re comparing equivalent units, provides absolutely no support to the result. It sounds like something I might say to tease my three-year-old grandson: “I’ll give you 100 pennies if you give me only 1 dollar.”

Once you’re looking for it, it’s amazing how often you see this kind of reasoning. It’s very common in politics: “This bill will only add an average of 20 cents to the tax bill of each taxpayer, but it will provide over $25 million to fight [insert latest cause here].” The amount you’re taking from taxpayers is the same as what you’re spending, but the units being compared are different: cost per taxpayer versus overall spending.

Usually an apple-and-oranges comparison like this is the sign of a weak argument. That’s what makes its use in Weinberger even more irksome: it wasn’t needed. The opinion stood quite well on its own without it.

It’s only one sentence, but it doesn’t take much to irritate me. Ask my wife.