OPINION
Presently before the Court is Defendant’s Motion To Dismiss The Amended Consolidated Complaint Or, In The Alternative, Stay This Action. (D.I. 21.) For the reasons discussed, the Court will grant Defendant’s Motion to the extent it seeks dismissal with prejudice of Plaintiffs Amended Complaint (D.I. 15) for failure to adequately plead demand futility pursuant to Rule 23.1 of the Federal Rules of Civil Procedure.
I. Procedural Background
Plaintiff Martin Smilow brought this derivative lawsuit against former and current members of the Board of Directors (the “Board”) of Intel Corporation (“Intel”), alleging that they failed to prevent the company from committing anti-competitive practices to monopolize the microprocessor market. (See D.I. 15.) On September 5, 2008, Defendants filed the instant Motion To Dismiss based on (1) failure to adequately plead demand futility, (2) failure to state a claim, (3) the statute of limitations, or (4) failure to plead contemporaneous ownership. In the alternative, Defendants requested that the Court stay this action pending the outcome of parallel antitrust litigation between Advanced Micro Devices, Inc. (“AMD”) and Intel. (See generally D.I. 21; D.I. 22.)
II. Factual Background
This action stems from Intel’s alleged unfair domination of the x86 microprocessor market through anti-competitive and monopolistic practices. Plaintiff points to a number of ongoing investigations pertaining to Intel’s trade practices as evidence of Intel’s anti-competitive behavior:
• In 2001, the European Commission (“EC”) began looking into claims by Advanced Micro Devices, Inc. (“AMD”) that Intel used unfair trade practices. In July 2007, the EC issued a press release stating it had reached a “preliminary view that Intel has infringed the EC treaty rules on abuse of a dominant position.... ” (D.I. 15 ¶ 71.) Roughly one year later, the Wall Street Journal reported that European Union antitrust regulators had made new charges against Intel, including that Intel paid a computer manufacturer to delay the launch of certain AMD-based machines and awarded rebates conditioned upon the manufacturers’ use of only Intel chips. (Id. ¶ 81.)
• In April 2004, Japan’s Fair Trade Commission (“JFTC”) began investigating the sales and marketing activities of a Japanese subsidiary of Intel. In March, 2005, the JFTC issued a report concluding, among other things, that since May 2002 the Intel subsidiary “has made the five major Japanese OEMs refrain from adopting competitors’ CPUs for all or most of the PCs manufactured and sold by them....” (Id. ¶69.)
• In June 2005, the South Korean Fair Trade Commission (“SKFTC”) inquired into the marketing and rebate programs of Intel’s Korean subsidiary. In June 2008, the Wall Street Journal reported that the SKFTC fined Intel $25.4 million based on its conclusion that Intel had violated South Korean antitrust laws. (Id. ¶ 79.)
• In January 2008, Business Week reported that the New York State Attorney General sought information from Intel and AMD regarding whether Intel “stifled competition and hurt consumers by illegally coercing computer makers to use its chips.” (Id. ¶ 74.) The article further reported that the Federal Trade Commission had begun an investigation into alleged anti competitive behavior by Intel. (Id.)
According to Plaintiff, these investigations constitute “red flags signaling persistent corporate malfeasance” that the Defendants have ignored in violation of their fiduciary duty of loyalty to Intel. (Id. ¶ 86(h).) Plaintiff, an Intel shareholder, thus initiated this derivative lawsuit in February 2008 to recover for these alleged breaches of fiduciary duty.
Federal Rule of Civil Procedure 28.1 requires a plaintiff to “allege with particularity the efforts, if any, made by the plaintiff to obtain the action the plaintiff desires from the directors ... and the reasons for the plaintiffs failure to obtain the action or for not making the effort.” Fed.R.Civ.P. 23.1. Rule 23.1 only goes to the adequacy of a plaintiffs pleadings; however, “the substantive requirements of demand are a matter of state law.”
Blasband v. Rales,
Under Delaware law, “the entire question of demand futility is inextricably bound to issues of business judgment and the standards of that doctrine’s applicability.”
Aronson v. Lewis,
Under the first prong, “directorial interest exists whenever divided loyalties are present, or where the director stands to receive a personal financial benefit from the transaction not equally shared by the shareholders.”
Blasband,
If the first prong is not satisfied, there is a presumption that the Board’s actions were the product of a valid exercise of business judgment.
Id.
at 1049. Thus, to satisfy the second prong, a plaintiff must plead sufficient particularized facts to “raise (1) a reason to doubt that the action was taken honestly and in good faith or (2) a reason to doubt that the board was adequately informed in making the decision.”
In re J.P. Morgan Chase & Co.,
However, “where the subject of a derivative suit is not a business decision of the Board but rather a violation of the Board’s oversight duties,” the trial court must apply the
Rales
test.
Wood,
THE PARTIES’ CONTENTIONS
Defendants contend that under either the
Aronson
or
Rales
test, Plaintiff has failed to plead particularized facts establishing demand futility. Defendants raise six separate points in support of this position. First, Defendants contend that there is no basis to conclude that Board members lack independence or objectivity such that their ability to consider a shareholder demand would be impaired. Defendants note, among other things, that none of the twelve directors are alleged to have been a party to any antitrust violations. With respect specifically to outside directors, Defendants contend that none of them are alleged to have received any benefits other than his or her director compensation and that the Complaint includes no facts suggesting that they were controlled by management or any other individual involved in the alleged antitrust violations.
(See
D.I. 22 at 9.) Second, to the extent the Complaint pleads a failure of the Directors’ duty of oversight, Defendants contend that the pleading standard is extraordinarily high and that, although Plaintiff identifies alleged “red flags” in the form of ongoing antitrust investigations, the Complaint still fails to meet the pleading standard because it includes no facts regarding Intel’s oversight mechanisms and/or any allegations that the Directors consciously and in bad faith ignored their oversight duties.
(Id.
at 13-14.) Third, Defendants note that under Intel’s certificate of incorporation, Board members are immunized from personal liability except for intentional fraud, bad faith, or breach of the duty of loyalty. In these circumstances, Delaware law requires Plaintiff to plead facts demonstrating that Defendants acted with scienter, and Defendants contend that Plaintiff has failed to do this.
(Id.
at 15.) Fourth, to the extent the Complaint alleges that demand is futile because the Intel Directors would be required to sue themselves, Defendants point to Delaware authority rejecting this theory of demand futility.
(Id.
at 16.) Fifth, with regard to Plaintiffs allegation that the “known principal wrongdoers” controlled the Board through payment of “high annual and monthly fees,” Defendants maintain that Plaintiff has failed to even identify the “known principal wrongdoers” and that, under the law, allegations that the Directors’ compensation compromises their independence are insufficiently particularized to establish demand futility.
(Id.
at 17-18.) Finally, though Plaintiff appears to plead a theory of liability based on a failure of oversight, to the extent the Complaint can be construed as alleging conscious inaction by Defendants, Defendants contend that Plaintiff has failed to plead particularized facts that negate the appli
Plaintiff responds that his Complaint satisfies both the Rales and Aronson test. With respect to the Rales test, Plaintiff contends, first, that the news of repeated alleged anti-competitive activities involving Intel’s business constituted “red flags” that should have alerted the Board to illegal conduct, the continuation of which demonstrates an actionable lack of Board oversight. (See D.I. 26 at 12-14.) Second, Plaintiff contends that because these “red flags” took place over the course of years and are geographically widespread, they have a “magnitude and duration” that clearly demonstrates a lack of oversight. (Id. at 14-15.)
As to the Aronson test and the issue of whether the Directors are entitled to invoke the protections of the business judgment rule, Plaintiff maintains that given the duration and scope of the alleged “illegal monopoly scheme,” it can be inferred under the totality of the circumstances that Defendants consciously determined not to take any responsive action and are thus not entitled to the protections of the business judgment rule. (Id. at 17-18.) Plaintiff further contends that the continuing investigations into Intel’s alleged anti-competitive activity render the Board interested because these investigations pose a “substantial likelihood” of liability for Board members, in particular inside directors and those who sit on Board committees such as the Audit or Corporate Governance committees. (Id. at 19-21.)
In Reply, Defendants challenge Plaintiffs contention that the Board members face a “substantial likelihood” of personal liability for Intel’s alleged anti-competitive activity. In particular, Defendants maintain that the ongoing investigations into Intel’s business practices pose not a “substantial likelihood” of activity, but a “mere threat” of liability, which, as a matter of law, is insufficient to establish demand futility. (See D.I. 32 at 5-6.) Indeed, the ongoing investigations, Defendants contend, are only allegations of wrongdoing and not firm findings of wrongdoing. (See id. at 6-7.) With respect to Plaintiffs position that membership on a Board committee, such as the Audit committee, tends to establish a “substantial likelihood” of liability, Defendants note, first, that Plaintiff failed to plead these allegations and, second, that Delaware law dictates that these considerations do not meaningfully contribute to establishing demand futility. (Id. at 14-15.)
DISCUSSION 1
I. Whether The Court Should Apply The Aronson Or Rales Test
It is unclear to the Court whether Plaintiff is alleging a claim based on a simple failure to monitor, a conscious decision by the Board not to take action, or both. On the one hand, the Amended Complaint states that “[t]here was a sustained and systematic failure of the Board to exercise oversight,” which suggests that Plaintiffs claim is based simply on a negligent dereliction of duty. (D.I. 15 ¶ 86(h).) On the other hand, the Amended Complaint states that “[t]he directors’
decision
not to act was not made in good faith and
The only authority cited by Plaintiff for the proposition that the
Aronson
test should be applied to an allegation of “conscious inaction” is the Seventh Circuit decision
In re Abbott Labs. Deriv. S’holders Litig.,
II. Whether Plaintiff Has Alleged Particularized Facts Satisfying The Rales Standard For Demand Futility
Plaintiff sets forth his reasons
for
failing to make a demand on the Board in paragraph 86 of his Amended Complaint. Briefly, these reasons include (1) that the Board failed to bring remedial action against “wrongdoers,” including Chairman and CEO Craig R. Barrett, (2) that the Board failed to respond to “red flags,” (3) that the Board was dominated by “principal wrongdoers,” (4) that the Board members would have been required to sue themselves, and (5) that the Board members received “substantial benefits, and other emoluments” by virtue of being on the Board.
(See
D.I. 15 ¶ 86.) Under
Rales,
these allegations must establish a reason to doubt that the Board could have properly exercised its independent and dis
A. Whether Defendants Face A Substantial Likelihood Of Liability For Ignoring Red Flags
Of Plaintiffs reasons for failing to make demand, the one that is alleged with most particularity pertains to the Board’s alleged indifference to “red flags,” specifically the ongoing investigations into Intel’s alleged anti-competitive business practices.
{See, e.g.,
Part II of this Memorandum Opinion.) Through this allegation, Plaintiff aims to establish that the directors face a “substantial likelihood” of personal liability by their alleged failure of oversight in the face of these “red flags.” Under
Caremark
and its progeny, liability for such a failure to oversee requires a showing that the directors
knew
they were not discharging their fiduciary obligations or that they demonstrated a
conscious
disregard for their duties.
See, e.g., In re Citigroup Inc. S’holder Derivative Litig.,
Plaintiff has not alleged particularized facts sufficient to show a “substantial likelihood” of liability under this high standard. Indeed, what is most notable about Plaintiffs “red flags” allegation, and the Complaint generally, is what is lacking. Though Plaintiff identifies a number of so-called “red flags,” Plaintiff fails to identify what the Directors actually knew about the “red flags” and how they responded to them. For instance, there are no allegations regarding how often the Board met, if at all, to discuss the alleged anti-competitive activity and no allegations that the Board approved any such “red flag” activity. Similarly, there are no allegations as to how often and by whom the Board was advised regarding the “red flags.” There is no allegation that any of the Directors is a party to any of the proceedings or investigations that Plaintiff alleges is a “red flag.” At most, the Complaint notes that nine of the Defendants signed Intel’s 2005 and 2006 10-K’s, which publicly reported the ongoing investigations, and that the Board has not “acted in any way.”
{See
D.I. 15 ¶¶ 86(i), 86(ii)(e).) In the Court’s view, this allegation is insufficient for the Court to draw the significant inference that the Directors had constructive knowledge that an alleged failure to respond to the “red flags” would be a breach of their fiduciary duties, which is required under Delaware law.
See Wood,
The only Director for whom the Complaint includes any particularized allegations is Director Craig R. Barrett. Specifically, the Complaint alleges that in September 2003 Barrett personally participated in wrongful anti-competitive activity when he told the Chairman and CEO of computer manufacturer Acer that Acer would suffer “severe consequences” if it publicly supported the launch of AMD’s Athlon64 processor. (D.I. 15 ¶ 50.) However, even if the Court were to conclude that this allegation established a “substantial likelihood” of personal liability for Barrett, Delaware law is clear that demand will not be excused when a Complaint includes particularized allegations
Simply put, when it comes to “red flags,” Plaintiffs approach is little more than to catalog the ongoing investigations into Intel’s alleged wrongdoing, and then assert that the thickness of the catalog demonstrates that Intel’s conduct was so egregious and widespread that the Directors certainly must now face at least a “substantial likelihood” of personal liability for having ignored the “red flags.” However, setting aside Plaintiffs failure to allege facts suggesting that Defendants knew they were not discharging their duties, the Court is unable to conclude that the alleged “red flags” are so compelling that the Defendants now face a “substantial likelihood” of liability.
First, in the Amended Complaint, Plaintiff points to a 1992 $10 million arbitration award that resulted from litigation pertaining to a Technology Exchange agreement with AMD, which Intel allegedly breached as part of a campaign “to install itself as the sole source for the new x86 instruction set processor.” (D.I. 15 ¶¶ 26-27, 86(ii)(a).) 2 However, since this award was made roughly 16 years ago and before nine of the twelve current Directors joined the Board, it is difficult to see how this is a “red flag” that the Directors’ allegedly disregarded at their peril. An additional domestic allegation made by Plaintiff involving AMD pertains to a January 2008 Business Week article suggesting that the New York State Attorney General sought Information from Intel regarding anti-competitive activity and that the FTC is investigating Intel. (Id. ¶ 74.) However, these allegations are vague, not specifically connected to any of the Directors, concern events that ostensibly took place only a few weeks before the Complaint was filed, and allege little more than that the government has sought information from Intel. In the Court’s view, these allegations contribute little, if anything, towards establishing that the Directors now face a “substantial likelihood” of liability for having ignored “red flags.”
Second, Plaintiff points to the commencement of a 2001 EC investigation, which resulted in a corresponding 2007 report having a “preliminary conclusion” that Intel infringed the EC Treaty rules on abuse of a dominant market position. (Id. ¶¶ 71, 86(ii)(b); D.I. 26 at 5.) However, the Court does not place great weight on a “preliminary” finding and therefore cannot conclude that the directors now face a “substantial likelihood” of liability for having allegedly ignored the EC investigation. Indeed, in attempting to fend off Defendants’ statute of limitations defense, Plaintiff even appears to characterize this investigation as having been “dormant” in 2004. (See D.I. 26 at 28.)
Third, with regard to the Korean investigation, Defendants repeatedly note that in June 2008, roughly three years after the SKFTC requested documents from Intel’s Korean subsidiary regarding certain marketing and rebate programs, the SKFTC fined Intel $25.4 million and ordered it to end illegal rebates. (D.I. 15 ¶ 79.) However, to the extent the SKFTC identified an Intel violation of Korean law, it did not do so until approximately six months after this lawsuit was initiated. On these facts, the Court cannot conclude that the directors were impaired in their ability to consider a demand because they faced a “substantial likelihood” of liability for ignoring a “red flag” that was not fully
Finally, with regard to the Japanese investigation, Plaintiff notes that in June 2005 the JFTC issued a recommendation calling for Intel’s Japanese subsidiary to cease and desist violations of Japanese antitrust law, institute antimonopoly training, and operate periodic audits. (Id. ¶ 27.) Though declining to admit wrongdoing, Intel agreed to the remedies proposed by the JFTC. (See D.I. 32 n. 7.) The Complaint includes no allegations that Intel has since violated Japanese antitrust law or the terms of the JFTC recommendation. Though one could reasonably conclude that the JFTC investigation constitutes a “red flag,” the fact that Intel has abided by the JFTC investigation and has not since violated Japanese antitrust laws makes it difficult for the Court to conclude that the Directors now face a “substantial likelihood” of liability for ignoring the JFTC investigation, even against the backdrop of the European and Korean investigations.
In sum, in the Court’s view, the alleged “red flags” identified by Plaintiff are not so severe that the Defendants now face a “substantial likelihood” of liability for allegedly ignoring them. At the very most, the Directors face a “mere threat” of liability, which, as explained above, is insufficient to establish demand futility.
See Aronson,
None of the four cases relied upon by Plaintiff to argue that the directors face a “substantial likelihood” of liability are from Delaware courts. 4 Thus, as authority for the Court to rely upon in forming its decisions in this case, the cited cases are not persuasive. Furthermore, as explained below, after considering the cases cited by Plaintiff, the Court concludes that they are distinguishable from the instant case because they all include a much more compelling collection of “red flags.”
First, in
In re Abbott,
the FDA conducted thirteen inspections of the company to determine whether it was in compliance with FDA regulations, sent four formal warning letters to the company (three of which were sent directly to the chairman of the board), implemented a “Voluntary Compliance Plan” to remedy compliance problems, filed a complaint for an injunction, ordered the company to destroy non-compliant product inventory, and met at least 10 times with company representatives, including the chairman of the board.
In re Abbott,
In
In re Veeco,
another case relied upon by Plaintiff, the plaintiff alleged specific facts regarding the role of the audit committee, including
inter alia
its duties to respond to whistleblowers and oversee regulatory compliance.
In re Veeco,
McCall v. Scott,
Finally, Plaintiff relies upon
In re SFBC Int’l, Inc. Sec. & Derivative Litig.,
In sum, with regard to Plaintiffs non-Delaware cases, the Court finds that they are not convincing authority upon which to find that the Intel Directors now face a “substantial likelihood” of liability for disregard of “red flags.”
B. Whether Plaintiffs Remaining Allegations Establish Reasonable Doubt That The Board Could Have Exercised Disinterested And Independent Judgment
Plaintiffs remaining allegations on demand futility are conclusory and insufficient under the law. The Complaint’s allegations that the directors are “unwilling to bring remedial action against wrongdoers,” (see D.I. 15 ¶¶ 86(i), 86(iv)-(v)), are stated in conclusory fashion with little if any detail as to who the wrongdoers are, what the wrongdoers’ actions were, what action the Board should have taken, and/or how the Board allegedly reached a decision not to take action or consciously ignored wrongdoing. Though the Complaint notes Barrett’s 2003 threat against Acer, for the reasons set forth above, these allegations alone are insufficient to establish demand futility.
Similar remarks may be made with regard to Plaintiffs allegations that “principal wrongdoers are in a position to, and do, dominate and control” the Board. Indeed, the Complaint fails to identify the “principal wrongdoers” and, other than a vague reference to the Directors’ “high annual and monthly fees,” also fails to explain how they supposedly “dominate” the Board.
(Id.
¶ 86(vi).) The Complaint reiterates that the Directors’ “substantial benefits, and other emoluments” would likely prevent the Board from taking action, but puts no meat on this otherwise conclusory allegation.
(See id.
¶ 86(viii).) This is insufficient to establish demand futility.
See In re Walt Disney Co. Derivative Litig.,
Notably, all of the these allegations could be made in any derivative lawsuit with the same level of specificity offered by Plaintiff in this case. Thus, these sorts of allegations cannot meaningfully contribute to establishing demand futility, even when viewed in conjunction with the alleged disregard for “red flags” as discussed above.
CONCLUSION
For the reasons discussed the Court will grant Defendants’ Motion To Dismiss The Amended Consolidated Complaint Or, In The Alternative, Stay This Action (D.I. 21) to the extent it seeks dismissal with for failure to adequately plead futility pursuant to Fed.R.Civ.P. 23.1.
An appropriate Order will be entered.
ORDER
At Wilmington, this 4 day of June 2009, for the reasons set forth in the Memorandum Opinion issued this date;
IT IS HEREBY ORDERED that Motion to Dismiss The Amended Consolidated Complaint Or, In The Stay This Action (D.I. 21) is GRANTED to the extent it seeks dismissal with prejudice of plaintiffs Verified Amended Consolidated Shareholder Complaint for failure to adequately plead demand futility pursuant to Rule 23.1 of the Federal Rules of Civil
Notes
. Because the Court will dismiss the Complaint based on a failure to adequately plead demand futility, the Court will not consider whether the case is time barred or whether Plaintiff has failed to plead contemporaneous ownership. Likewise, the Court will not consider whether this case should be stayed pending completion of the ongoing anti-trust litigation between Intel and AMD.
. Although this award is detailed in the Complaint, Plaintiff does not discuss it in his opposition to Plaintiffs Motion To Dismiss.
. In his Amended Complaint and in his Answering Brief in opposition to the Motion To Dismiss, Plaintiff identifies additional “red flags” that were not available until after this lawsuit was filed. These “red flags” include a February 12, 2008 EC raid of Intel’s Munich offices and a July 17, 2008 Wall Street Journal article reporting new European Union charges against Intel. (See D.I. 15 ¶¶ 76-78, 81.) In addition, Plaintiff has advised the Court that in May 2009 the European Commission decided to fine Intel roughly $1.45 billion for violation of European Community antitrust rules. (D.I. 43.) The Court is similarly unable to fairly consider these post-filing incidents in the demand futility inquiry.
. The cases relied upon by Plaintiff include
In re Abbott Labs. Derivative S’holders Litig.,