Filed May 23, 2014
More fundamentally, there are no allegations that the repurchases were “so one sided that no business person of ordinary, sound judgment could conclude that the corporation has received adequate consideration.” Citigroup, 964 A.2d at 137 (internal quotation marks and citation omitted). Plaintiffs fail to excuse demand based on the stock repurchases.
Filed March 21, 2011
; see also In re Intel Corp. Deriv. Litig., 621 F. Supp. 2d 165, 174 (D. Del. 2009) (substantial likelihood of liability not alleged and demand not excused where plaintiff identified “red flags” but “fail[ed] to identify what the Directors actually knew about the ‘red flags’ and how they responded to them”); In re Citigroup, 964 A.2d at 129 (plaintiffs failed to allege demand futility based on oversight failure where plaintiffs did not “adequately explain what the director defendants actually did or failed to do”). In sum, plaintiffs fail to allege particularized facts specific to each member of BP’s Board of Directors demonstrating that a majority of the Board could not have exercised independent and disinterested business judgment in responding to a demand to bring this action.
Filed March 21, 2011
15 In this regard, under Delaware law, the Directors “are fully protected in relying in good faith on the reports of officers and experts.” Citigroup, 964 A.2d at 134 (quoting Del. Ann. tit. 8 § 141(e)). Case5:10-cv-02935-JW Document38 Filed03/21/11 Page18 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REPLY ISO CELERA CORP.’S MOTION TO DISMISS 10-CV-02935-JV sf-2969023 14 d. Plaintiffs’ “core operations” argument is without merit.
Filed October 28, 2016
If "the director defendants are exculpated from liability for certain conduct, then a serious threat of liability may only be found to exist if the plaintiff pleads a non-exculpated claim against the directors based on particularized facts." Citigroup, 964 A.2d at 124–25. Plaintiff has failed to plead a non-exculpated claim of breach of the duty of loyalty, and if the Court were to treat that claim instead as a breach of the duty of care, such claim would be exculpated by the clause in the charter.
Filed October 21, 2016
If "the director defendants are exculpated from liability for certain conduct, then a serious threat of liability may only be found to exist if the plaintiff pleads a non-exculpated claim against the directors based on particularized facts." Citigroup, 964 A.2d at 124–25. As shown above, Plaintiff has failed to plead a non-exculpated claim of breach of the duty of loyalty, and if the Court were to treat that claim instead as a breach of the duty of care, such claim would be exculpated by the clause in the charter.
Filed December 14, 2009
Thus, plaintiffs have not alleged with any particularity that the contested transactions were “so one sided that no business person of ordinary, sound judgment could conclude that the corporation has received adequate consideration.” Citigroup, 964 A.2d at 136. Plaintiffs’ conclusory allegations regarding the Company’s purchase of real estate therefore do not establish that that the Outside Directors face a substantial likelihood of liability for plaintiffs’ corporate waste claim.
Filed May 20, 2009
These conclusory allegations, which are governed by In re Caremark International, Inc. Derivative Litigation, 698 A.2d 959, 971 (Del. Ch. 1996),33 are precisely the type courts routinely reject as too conclusory to state a claim. See In re Citigroup, 964 A.2d at 130 (dismissing claims where plaintiffs alleged "since the Company suffered large losses, and since a properly functioning risk management system would have avoided such losses, the directors must have breached their fiduciary duties").34 C. Plaintiffs' Breach Of Contract Claim Should Be Dismissed Because Plaintiffs Fail To Identify The Breach Of Any Contractual Duty
Filed December 16, 2016
” That is an astonishing statement because Defendants were running a business that depended upon Title IV funds for 90% of its revenues and if they really were freely drawing down DOE funds without being “aware of the regulatory implications under any DOE rule,” then they have just admitted that they breached their fiduciary duty by “consciously disregard[ing] an obligation to be reasonably informed about the business.” Citigroup, 964 A.2d at 125. D. At a Minimum, the Complaint States a Caremark Claim
Filed April 20, 2009
In these circumstances, the court held, the plaintiffs were suing the directors, in essence, simply for exercising their business judgment in making the subprime investments at issue. See Citigroup, 964 A.2d at 124. Thus, the claim was a nothing more than a traditional duty of care claim subject to numerous defenses, including in the demand futility analysis.
Filed April 10, 2015
20 likelihood of director liability because there are no particularized facts showing that a majority of the Board knew that any internal controls were ineffective at any time. See In re Citigroup, 964 A.2d at 132–35 (such knowledge is required for a duty-of-disclosure claim); South, 62 A.3d at 14–15 (such knowledge is required for a Caremark claim). In this regard, the Complaint is entirely conclusory—it makes no attempt to identify with particularity what internal controls were allegedly ineffective, how they were ineffective, when they were ineffective, or when the Board supposedly learned that.