Dive Brief:

• A Delaware Court of Chancery judge has rejected a motion from activist investor HoldCo Asset Management that sought to legally block Fifth Third’s acquisition of Comerica.
• On Jan. 14 – the day after the deal had received all necessary regulatory approvals and a Feb. 1 closing date was set – HoldCo filed an emergency motion for temporary restraining order to stall the merger’s closing. Vice Chancellor Morgan T. Zurn denied HoldCo’s motion Friday.
• “Enjoining a premium merger on the eve of closing will introduce substantial delay and uncertainty,” Zurn wrote in a Monday filing explaining her denial. “While HoldCo mourns a topping bid that never appeared, an injunction may very well deprive stockholders of Fifth Third’s certain premium that they chose to accept.”

Dive Insight:

In her explanation, Zurn referred to a temporary restraining order as “an extraordinary remedy” that is “not granted lightly.” 

HoldCo would have needed to demonstrate that the merger agreement’s deal protection provisions “are colorably illegal or inequitable; and that closing a premium deal approved by Comerica’s stockholders, in the absence of any other bidder, would irreparably harm those stockholders rather than benefit them,” Zurn wrote. 

“HoldCo fails to clear that high hurdle,” Zurn said. 

HoldCo founders Vik Ghei and Misha Zaitzeff didn’t respond to a request for comment. 

In July 2025, Fort Lauderdale, Florida-based HoldCo pushed Comerica to sell itself to a larger bank, accusing the lender of making “disastrous decisions” and having “objectively poor performance.” The hedge fund named Cincinnati-based Fifth Third as a potential buyer.

In October, Fifth Third announced it would acquire Comerica for $10.9 billion. But HoldCo blasted Comerica over the merger agreement and faulted the Dallas-based bank for ignoring a bid from another suitor, reported to be Regions. 

HoldCo then sued Comerica and Fifth Third in November, alleging Comerica’s board breached its fiduciary duty by agreeing to the Fifth Third deal and its “draconian” provisions. The activist investor also accused Fifth Third of aiding and abetting.

HoldCo additionally accused Comerica of leaving out material information from disclosures related to the deal. In December, Comerica provided more information after the judge ordered the bank to do so. 

Despite HoldCo’s urging to reject the deal, Comerica shareholders overwhelmingly backed the acquisition Jan. 6, with 97% of votes cast in favor. 

Zurn said HoldCo’s assertion about would-be topping bidders rests on speculation, which isn’t enough to warrant the temporary order. “The facts on the ground” don’t support the hedge fund’s assertions of imminent and irreparable harm to Comerica shareholders, she said. 

HoldCo contended that the Feb. 1 closing date was a “maneuver to short-circuit discovery” it sought from the banks in the case, but Zurn said the date aligned with provisions of the merger agreement. 

“One way to read HoldCo’s motion is as an ask to enjoin a merger so that HoldCo can obtain more discovery to support its claim to enjoin that merger,” Zurn wrote. “But HoldCo must meet its burden with what it has now. I have assessed HoldCo’s request for relief based on what HoldCo has shown, not what it would like to explore if given the chance.”

HoldCo can’t demonstrate the deal protections were preclusive or coercive, she said, and the $500 million termination fee was “not oppressive.” And Comerica shareholders “had a meaningful ability” to reject the merger, Zurn wrote.  

Zurn also disagreed with HoldCo’s assertion that the Comerica board tied its hands for a year. 

“Nothing prevented Comerica’s board from considering, negotiating, or pursuing alternative transactions if it believed, in good faith, that failing to do so would be inconsistent with its fiduciary duties,” she wrote. “Comerica and Fifth Third ‘agreed to mutually reciprocal provisions to protect the deal from interference.’”

Additionally, Zurn noted a concern “that HoldCo and its counsel have taken excessive liberties with the facts.”

Fifth Third and Comerica declined to comment.

Wachtell, Lipton, Rosen & Katz, the law firm representing Fifth Third in the lawsuit, applauded Zurn’s opinion, saying the judge “thoughtfully reviewed and rejected each of HoldCo’s complaints about mutual deal protection terms that have long been standard for U.S. bank mergers.”

“Bank boards and executive management should take comfort in this opinion, which affirms the basic judicial deference to carefully exercised business judgment,” Wachtell attorneys wrote in a Monday memo seen by Banking Dive.

The deal received approval from the Federal Reserve, the Office of the Comptroller of the Currency and the Texas Department of Banking. The combined bank is set to have about $290 billion in assets.