Seagate Technology, Inc., Successor in Interest to Seagate Peripherals, Inc., f.k.a. Conner Peripherals, Inc.. - Page 12




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               Neither party has advanced evidence or affidavits completely           
          resolving, as a factual matter, the question of whether arm’s-              
          length parties to a similar transaction would share the cost of             
          employee stock options.  There are also questions about whether             
          the options had any cost to petitioner at the time of issuance              
          and/or the appropriate time to measure the cost of the stock                
          options.  Under these circumstances, we are compelled to hold               
          that there is a genuine dispute about material facts.  We cannot            
          say that either party has presented or had the opportunity to               
          fully present facts or other evidence adequately addressing, for            
          the benefit of a fact finder, whether the regulatory standard has           
          been met.  Accordingly, this matter is not ripe for summary                 
          adjudication, and further development and/or a trial may be                 
          necessary to resolve the disputed factual aspects of this case.             
               As to petitioner’s argument that there is no genuine dispute           
          about a material fact because respondent relies solely on opinion           
          evidence, we disagree with petitioner’s perspective.  Petitioner            
          chooses to focus on the means by which respondent may attempt to            
          convince the Court that his determination is well founded and/or            
          that his determination is based on conditions that are comparable           
          to those that would have been adopted by unrelated parties                  
          similarly situated had they entered into such an arrangement.               
          Even though an expert’s opinion may be hearsay (i.e., not based             
          on the expert’s personal knowledge but on his perception of the             






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