(MTD Br. at 64 (citing Del. Code Ann. tit. 8, § 141(c)(1)).) But having Case 1:14-cv-00144-MSK-KLM Document 143 Filed 06/09/17 USDC Colorado Page 65 of 70 58 the time Western Union admitted to willfully violating federal law by continuing to grant large compensation packages to the Company’s management based heavily on revenue and profit that would be jeopardized by AML compliance.35 Demand is, therefore, excused as to the Committee Defendants.36 VI.

Most actions for breach of fiduciary duty assert claims against the board because a corporation is controlled by its directors. See 8 Del. C. §141(a). Yet only one of the directors from the period in question is a named defendant here.

2 The decision to cast Defendants as scapegoats is particularly curious given Plaintiff's failure to sue the majority of the board. It is elementary that a corporation is controlled by its directors (see 8 Del. C. §141(a)); accordingly, most actions for breach of fiduciary duty assert claims against the board. Yet only one of the directors from the period in question is a named defendant here.

(MTD Br. at 49 (citing Del. Code Ann. tit. 8, § 141(c)(1)).) But having been made aware of the “obvious and problematic occurrences, that support an inference that [Western Union’s] directors knew that there were material weaknesses in [Western Union’s internal policies] and failed to correct such weaknesses[,]” Defendants were obligated to take remedial action.

As a result, the ANF Board is empowered to decide whether to pursue both alleged and potential derivative claims and whether such claims should be settled. See South v. Baker, 62 A.3d 1, 13 (Del. Ch. 2012) (Del. Code Ann. tit. 8, § 141(a) “vests statutory authority in the board of directors to determine what action the corporation will take with its litigation assets” (citing Zapata Corp. v. Maldonado, 430 A.2d 779, 782 (Del. 1981))); see also Donald J. Wolfe, Jr. & Michael A. Pittenger, Corporate and Commercial Practice in the Delaware Court of Chancery § (cont’d) Case: 2:14-cv-01380-JLG-NMK Doc #: 17 Filed: 09/30/14 Page: 8 of 13 PAGEID #: 355 7 ANF Board members joined the Board after the occurrence of the wrongdoing alleged in the Complaint. See Compl.

8 Del. C. §141(e); 4 see also AIG, Inc. Consolidated Derivative Litig., 965 A.2d 763, 807, 831 (Del. Ch. 2009) (8 Del. C. §141(e) protects directors). In addition, senior executives, such as the defendants in the Demand Refused Action, cannot claim the benefits of the indemnification/safe harbor provision of Section 102(b)(7) of Delaware’s General Corporation Law because it is limited to “breach of fiduciary duty as a director….”

See 8 Del. C. § 141(e) (permitting board members to rely upon professionals and experts). Lead Plaintiff's shop-worn allegation that HP's advisors were compensated for their services fails to call into doubt the good faith reliance by the HP Board and Mr. Lane on the received advice.

ARGUMENT It is a "cardinal precept" of Delaware corporation law3 that "directors, rather than shareholders, manage the business and affairs of the corporation." Aronson v. Lewis, 473 A.2d 805, 811 (Del. 1984); see 8 Del. C. § 141 1(a). "The decision to bring a law suit or to refrain from litigating a claim on behalf of a corporation is a decision concerning the management of the corporation," and is thus among the decisions prototypically entrusted to a board of directors.

Failing to make a demand of the Board undermines the “cardinal precept” that “directors, rather than shareholders, manage the business and affairs of the corporation.” Aronson v. Lewis, 473 A.2d 805, 811 (Del. 1984) (citing 8 Del. C. § 141(a)). Plaintiff’s failure to make a demand upon the Board is particularly troubling here because—as specifically set out in the Company’s March 30, 2012 Proxy Statement cited in Plaintiff’s Complaint—seven out of the eight Director Defendants are independent directors and thus well- suited to ferreting out problems within the Company.

Litig., 964 A.2d 106, 132 (Del. Ch. 2009) (“directors of Delaware corporations are fully protected in relying in good faith on the reports of officers and experts”). Under the Delaware Code: “A member of the board of directors, or a member of any committee designated by the board of directors, shall, in the performance of such member’s duties, be fully protected in relying in good faith upon the records of the corporation and upon such information, opinions, reports or statements presented to the corporation by any of the corporation’s officers or employees, or committees of the board of directors . . .” 8 Del. C. § 141(e); see also In re Walt Disney Co. Deriv.