CHARLOTTE, N.C. -- A judge will now decide if Wachovia shareholders can stop all or part of the Wells Fargo/Wachovia merger deal. 

A shareholder from New York, Irving Erhenhaus, filed the preliminary injunction in Mecklenburg County court. It questions whether the Board of Directors lived up to their fiduciary duty while making the deal.

Specifically, it focuses on a provision that gives Wells Fargo a 39.9 percent vote in approving the merger. Attorneys for Erhenhaus argue shareholders have little to no say because of it.

"It's stacking the deck so impermissibly, it's incredible," Chet Waldman, attorney for the plaintiff, argued.

He says the precedent it sets for future mergers is dangerous.

Wachovia argues, in part, these aren't typical times. Given the fragility of the markets and the financial system, their attorneys argued that threatening the terms of the merger threatens the company.

When Wells Fargo and Wachovia announced their merger plans in October, the deal was cheered on both sides as a win-win. Wachovia had been slated to be sold in parts to Citigroup. The Wells deal was favored by the government, by employees and by shareholders. It works out to about $7 per share total in a time when Wachovia had been worth about $10. 

Waldman says his client, and the shareholders he represents, aren't asking the judge to judge the value of the deal. They question the ability of shareholders to truly have a say in its final implementation.

Wachovia's attorneys argue that the deal Wells Fargo offered was a vast improvement over the deal they abandoned with Citigroup. They said given the time constraints and the threat of government intervention, the deal is still in the best interest of shareholders.