                                                         FILED
                                                      Jun 22 2012, 9:02 am
FOR PUBLICATION
                                                              CLERK
                                                            of the supreme court,
                                                            court of appeals and
                                                                   tax court



ATTORNEYS FOR APPELLANT:                     ATTORNEYS FOR APPELLEES:

RICHARD E. SHEVITZ                           JOSEPH H. YEAGER, JR.
SCOTT D. GILCHRIST                           MATTHEW T. ALBAUGH
Cohen & Malad LLP                            Baker & Daniels LLP
Indianapolis, Indiana                        Indianapolis, Indiana

                                             WALTER C. CARLSON
                                             KRISTEN R. SEEGER
                                             Sidley Austin LLP
                                             Chicago, Illinois


                           IN THE
                 COURT OF APPEALS OF INDIANA

WILLIAM T. CARTER, derivatively on behalf of )
CNO FINANCIAL GROUP, INC.,                   )
                                             )
      Appellant-Plaintiff,                   )
                                             )
             vs.                             )     No. 49A02-1106-PL-582
                                             )
R. GLENN HILLIARD, et al.,                   )
                                             )
      Appellees-Defendants.                  )


                  APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable David J. Dreyer, Judge
                         Cause No. 49D10-1006-PL-24523



                                   June 22, 2012


                          OPINION - FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

      William T. Carter, derivatively on behalf of CNO Financial Group, Inc. (“CNO”

or “the Company”), formerly known as Conseco, Inc. (“Conseco,” where applicable),

filed a complaint and later an amended complaint (“Amended Complaint”) against R.

Glenn Hilliard, Donna A. James, R. Keith Long, Debra J. Perry, C. James Prieur, Neal C.

Schneider, Michael T. Tokarz, John G. Turner, William Kirsch, Eugene Bullis, Michael

Dubes, James Hohmann, Edward Bonach, Ali Inanilan, and John Wells (collectively “the

Defendants”) alleging breach of Defendants’ fiduciary and good faith duties, unjust

enrichment, abuse of control, gross mismanagement, and waste of corporate assets. The

Defendants filed a motion to dismiss the Amended Complaint on the ground that Carter

had failed to allege claims showing that pre-suit demand on CNO’s Board of Directors

was futile, as required by Delaware Chancery Court Rule 23.1. Following a hearing, the

trial court granted the motion and dismissed the Amended Complaint. Carter presents

several issues for review, which we consolidate and restate as:

      1.     Whether Carter has alleged particularized facts to show that pre-suit
             demand was excused under Delaware law.

      2.     Whether Carter has alleged particularized facts to show bad faith by
             the Director Defendants so as to excuse pre-suit demand pursuant to
             the standard set by the exculpatory clause in the corporate charter.

      We conclude that Carter has not alleged particularized facts to show that the

Director Defendants face a substantial likelihood of liability for the conduct described in

the Amended Complaint, nor has he alleged particularized facts to show that the Director

Defendants breached their duties of good faith and loyalty. Therefore, Carter has not

shown under Delaware law that pre-suit demand on the Board would have been futile.
                                            2
As such, we conclude that the trial court did not err when it granted CNO’s motion to

dismiss for failure to make pre-suit demand on the board of directors. We affirm.1

                          FACTS AND PROCEDURAL HISTORY

      The facts in this case are not contested.                The trial court’s Order Granting

Defendants’ Motion to Dismiss describes the parties:

             Plaintiff Carter is a shareholder of CNO. CNO is a publicly[ ]traded
      insurance holding company headquartered in Carmel, Indiana, and is a
      Delaware corporation. At the time this suit was filed, CNO’s Board of
      Directors consisted of ten individuals, nine of whom were independent,
      outside Board members. Eight of those ten Board members were named as
      defendants: Hilliard, James, Long, Perry, Prieur, Schneider, Tokarz, and
      Turner. Of those eight, Hilliard, James, Long, Perry, Schneider, Tokarz,
      and Turner are non-employee, outside directors (collectively, the “Outside
      Directors”). In addition to serving as a director, Prieur is CNO’s Chief
      Executive Officer. Defendant Bonach is a current officer of CNO.[2] The
      remaining defendants are former officers of CNO.

Appellant’s App. at 14.

      On June 2, 2010, Carter filed a purported shareholder derivative action against the

Defendants, current and former CNO directors and officers. Hilliard, James, Long, Perry,

Prieur, Schneider, Tokarz, and Turner are currently CNO directors (“Director

Defendants”), and Kirsch, Bullis, Dubes, Hohmann, Bonach, Inanilan, and Wells are

former or present CNO officers (“Officer Defendants”). Carter had not made a demand

on CNO’s board of directors (“the Board”) before filing the complaint. On July 26,

Defendants filed a motion to dismiss for failure to make pre-suit demand on the Board.

On November 1, Carter filed the Amended Complaint.                   Regarding Defendants, the

Amended Complaint alleges, in relevant part:

      1
          We heard oral argument in this case on April 19, 2012.
      2
          Since the Amended Complaint was filed, Bonach has become the CEO of the Company.
                                                   3
57. By reason of their positions as officers, directors, and/or fiduciaries of
CNO and because of their ability to control the business and corporate
affairs of CNO, Defendants owed CNO and its shareholders fiduciary
obligations of good faith, loyalty, and candor, and were and are required to
use their utmost ability to control and manage CNO in a fair, just, honest,
and equitable manner. Defendants were and are required to act in
furtherance of the best interests of CNO and its shareholders so as to
benefit all shareholders equally and not in furtherance of their personal
interest or benefit. Each director and officer of the Company owes to CNO
and its shareholders a fiduciary duty to exercise good faith and diligence in
the administration of the affairs of the Company and in the use and
preservation of its property and assets, and the highest obligation of fair
dealing.

58. Defendants, because of their positions of control and authority as
directors and/or officers of CNO, were able to and did, directly and/or
indirectly, exercise control over the wrongful acts complained of herein.
Because of their advisory, executive, managerial, and directorial positions
with CNO, each of the Defendants had knowledge of material non-public
information regarding the Company.

59. To discharge their duties, the officers and directors of CNO were
required to exercise reasonable and prudent supervision over the
management, policies, practices and controls of the Company. By virtue of
such duties, the officers and directors of CNO were required to, among
other things:

       a.     Exercise good faith to ensure that the affairs of the
       Company were conducted in an efficient, business-like
       manner so as to make it possible to provide the highest
       quality performance of their business;
       b.     Exercise good faith to ensure that the Company was
       operated in a diligent, honest and prudent manner and
       complied with all applicable federal and state laws, rules,
       regulations and requirements, and all contractual obligations
       including acting only within the scope of its legal authority;
       c.     When put on notice of problems with the Company’s
       business practices and operations, exercise good faith in
       taking appropriate action to correct the misconduct and
       prevent its recurrence; and
       d.     Assure that a corporate information and reporting
       system was in place, which the Board concluded is adequate
       and is designed to provide senior management and the Board
       with timely, accurate information sufficient to allow
                                      4
      management and the Board to reach informed judgments
      concerning the Company’s compliance with applicable laws
      and its business performance.

60. Pursuant to the Company’s Corporate Governance Guidelines (the
“Governance Guidelines”), each member of the Board is specifically
responsible for “monitoring management’s performance and adherence to
corporate standards.” Further, according to the Governance Guidelines,
each member of the Board is responsible for understanding, reviewing, and
monitoring implementation of the Company’s strategic plans, capital plans,
operating plans, and budgets to assure effective:

      *      Capital allocation
      *      Debt levels and structure
      *      Investment policies and practices
      *      Risk and vulnerability assessment and management
      *      Growth opportunities
      *      Engagement on central issues facing company
      *      Grasp of tradeoffs at the heart of the company

61. Moreover, pursuant to the Governance Guidelines, each member of the
Board is specifically responsible for “focusing on the integrity, quality and
clarity of the corporation’s financial reports and public disclosures and the
processes that produce them” and is also duty-bound to “review the
adequacy of the corporation’s compliance and reporting systems.” Once
again, in order to adequately fulfill these duties (and their duties under
Delaware law), the Board was required to ensure that sufficient information
reporting systems were designed and implemented such that they could
adequately fulfill their oversight responsibilities.

62. Pursuant to the Audit Committee’s Charter, the members of the Audit
Committee are specifically required, inter alia, to:

      a.     Review the adequacy of the Company’s internal
      controls that could materially affect the Company’s financial
      statements;
      b.     Review and discuss, prior to public dissemination, the
      annual audited and quarterly unaudited financial statements
      with management;
      c.     Review and discuss earnings releases;
      d.     Review the results of internal audits and discuss
      related significant internal control matters with the internal
      auditors and management, including significant reports to


                                     5
             management prepared by the internal auditors and
             management’s responses;
             e.     Review significant accounting and reporting issues and
             discuss with management and the independent auditor their
             impact on the Company financial statements; and
             f.     Review the adequacy and effectiveness of the
             Company’s procedures to ensure compliance with legal and
             regulatory requirements.

      63. Pursuant to the Governance Committee’s Charter, the members of the
      Governance Committee are specifically required, inter alia, to:

             a.      Consider matters of corporate governance and to
             create, maintain and periodically review the Company’s
             corporate governance principles and code of ethics;
             b.      Adopt policies designed to encourage the highest
             levels of corporate conduct by the Board, the Company and
             its officers, employees, and agents; and
             c.      Consider the Company’s corporate strategy, including
             the evaluation of any significant acquisitions or divestitures
             or other material transactions involving the Company.

      64. Pursuant to the Compensation Committee’s Charter, the members of
      the Compensation Committee are specifically required, inter alia, to:

             a.     Establish annual and long-term corporate and
             individual performance goals and objectives for the
             Company’s executive officers and key senior officers;
             b.     Recommend to the Board the compensation of the
             CEO;
             c.     Approve the compensation for other executive officers
             and key senior officers; and
             d.     Approve the overall compensation policy including
             cash-based incentive compensation plans and equity-based
             compensation plans.

Id. at 38-44. After detailing certain aspects of Defendants’ conduct beginning in 2003,

Carter made the following allegations to show that demand is excused in this case:

      227.a. A majority of the members of the Board were aware of, or should
      have been aware of, numerous red flags regarding the Company’s serious
      problems with its LTC [Long Term Care] business segment, including
      claims documentation issues, the failure to adequately set reserves, data
                                            6
integrity issues, budget problems, and market conduct violations. As such,
a majority of the current Board knew[] or was recklessly indifferent to the
facts that, among other things: (i) multiple internal control failures caused
claim loss/reserve data to be inherently unreliable; and (ii) Defendants were
systematically understating reserves; which (iii) caused the Company’s
financial statements to be artificially and materially overstated. Notably,
half of the Company’s current directors (defendants Hilliard, Schneider,
Tokarz, Turner, and Perry) have served as directors of the Company since
2004 or prior to 2004. In particular, as alleged herein, by 2003, the Board
was meeting on a quarterly basis in the “War Room,” to specifically discuss
issues with LTC with the Company’s senior officers, and these meetings
began to occur with increasing frequency in 2005. DW1 [confidential
Defense Witness 1] has also stated that LTC Reports prepared by LTC
personnel regarding the LTC business containing a range of information
including claims issues, reserve issues, budget problems, and market
conduct violations were regularly provided to the Board in connection with
the War Room meetings, along with comprehensive compliance reports
personally prepared by DW1 (which “often” dealt, at least in part, with the
Company’s ongoing LTC issues). Moreover, as discussed above, during a
nine[-]month period spanning between [sic] 2004 and 2005, a
comprehensive internal audit of the LTC segment was performed, and after
the audit was concluded sometime in 2005, as Audit Committee members,
defendants Schneider, Perry, and Turner received detailed results of this
audit. Despite clearly being placed on notice of serious issues regarding
LTC which were causing the Company’s reserves to be inadequately set,
defendants Hilliard, Schneider, Tokarz, Perry, and Turner consciously
disregarded their fiduciary duties to CNO when, under their direction, the
Company’s ongoing LTC issues were not addressed and the Company
continued to inadequately set reserves over a multi-year period. Thus,
demand was not required upon Hilliard, Schneider, Tokarz, Perry, and
Turner. Because Hilliard, Schneider, Perry and Turner comprise a majority
of the directors on the Board (for demand futility purposes), demand is
excused;

227.b. Defendants Hilliard, Schneider, Tokarz, Turner, and Perry are also
interested in a demand because they engaged in conduct which is not
protected by the business judgment rule in connection with their decision to
not remedy the serious problems known to them through the various “red
flags” described above. These directors were clearly placed on notice for
years of the Company’s problems, yet chose to do nothing to remedy them.
Thus, demand is excused as to Hilliard, Schneider, Tokarz, Turner, and
Perry, and because they comprise a majority of the Board, demand is
excused;


                                     7
227.c. Demand is further excused because the Board failed to exercise its
good faith judgment to ensure that the Company’s information and
reporting system was in concept and design adequate to assure the Board
that appropriate information will come to its attention in a timely manner as
a matter of ordinary operations. In particular, it is unquestioned that the
Board had actual knowledge of the Company’s LTC problems and failed to
do anything to prevent and/or remedy them[;] however[,] this knowledge
did not come as a result of an adequate system of information[-]reporting
during the ordinary course of operations. Rather[,] this information came
to the Board’s attention as a result of various audits, special meetings, and
government investigations. Had the Board properly ensured that an
adequate information[-]reporting system was in place from the beginning,
as they were required to do under Delaware law, the serious problems with
the Company’s LTC segment could have been remedied before the
Company suffered the substantial harm alleged herein. Thus, demand is
futile;

227.d. Demand is also excused because, as detailed herein, the Board
intentionally misled the Multistate Examiners or permitted others to do so,
thus clearly illustrating their hostility to the relief sought in this action.
Accordingly, a reasonable stockholder would not believe, based on the
confidential witness testimony detailed above, that the Board would have
been able to properly and impartially consider a demand in good faith.
Thus, demand is futile;

227.e. Every member of the Board is required to comply with the
Company’s Corporate Governance Guidelines. The Corporate Governance
Guidelines require each of the Company’s directors to monitor
“management’s performance and adherence to corporate standards.”
Further, the Corporate Governance Guidelines requires [sic] directors to
focus “on the integrity, quality and clarity of the corporation’s financial
reports and public disclosures and the processes that produce them.”
Therefore, defendants Hilliard, James, Long, Perry, Prieur, Schneider,
Tokarz, and Turner face a substantial likelihood of liability for their
breaches of fiduciary duties and any demand upon them is futile;

227.f. At times relevant hereto, defendants Long, Schneider, and Turner
served as members of the Audit Committee. Pursuant to the Audit
Committee Charter, members of the Audit Committee are charged with
oversight of the integrity of the Company’s financial statements, public
disclosures and financial reporting process. Defendants Long, Schneider,
and Turner breached their fiduciary duties of due care, loyalty, and good
faith, because the Audit Committee permitted the above false and
misleading statements to be made, which eventually led to a restatement.
                                      8
       Therefore, defendants Long, Schneider, and Turner face a substantial
       likelihood of liability for their breach of fiduciary duties and any demand
       upon them is futile;

       227.g. At times relevant hereto, defendants Perry and Tokarz served as
       members of the Governance Committee. Pursuant to the Governance
       Committee Charter, members of the Governance Committee are charged
       with adopting policies designed to encourage the highest levels of corporate
       conduct by the Board, the Company and its officers, employees and agents.
       Defendants Perry and Tokarz breached their fiduciary duties of due care,
       loyalty, and good faith because the Governance Committee permitted the
       pervasive misconduct described above to go undisclosed. Therefore,
       defendants Perry and Tokarz face a substantial likelihood of liability for
       their breach of fiduciary duties and any demand upon them is futile;

       227.h. Defendants Tokarz, Perry, and James are interested as a result of
       their conduct on the Compensation Committee. Pursuant to the Company’s
       Compensation Committee Charter, directors on the Compensation
       Committee are responsible for, inter alia, reviewing and approving the
       compensation of the Company’s senior officers in conduction with
       previously established performance metrics. Defendants Tokarz, Perry, and
       James breached their fiduciary duties of due care, loyalty, and good faith,
       because the Compensation Committee, inter alia, awarded the above-
       discussed compensation based on admittedly false financial results as
       evidenced by the Company’s need for a restatement. Further, the
       Compensation Committee has done nothing to rectify its above failures.
       Therefore, defendants Tokarz, Perry, and James (if not the entire Board)
       each face a substantial likelihood of liability for their breach of fiduciary
       duties and any demand upon them is futile; and

       227.i. The principal professional occupation of defendant Prieur is his
       employment with CNO as its CEO, pursuant to which he has received and
       continues to receive substantial monetary compensation and other valuable
       benefits. As a result, in the Company’s most recent annual proxy statement
       filed in April 2010, the Board has conceded that Prieur is a non-
       independent director.       Thus, defendant Prieur lacks independence,
       rendering him incapable of impartially considering a demand to commence
       and vigorously prosecute this action.

Id. at 103-08.

       On December 17, Defendants filed a motion to dismiss the Amended Complaint

under Delaware and Indiana law, alleging that Carter had not shown that pre-suit demand
                                            9
was excused. On April 21, 2011, the trial court held oral argument on the motion to

dismiss. And on June 2, the trial court entered its order granting that motion and

dismissing the Amended Complaint (“the Order”). The Order provides, in relevant part:

             B.     The Allegations

              CNO, through its subsidiaries, engages in the development,
      marketing, and administration of supplemental health insurance, annuity,
      individual life insurance, and other insurance products for senior and
      middle-income markets in the United States. Carter’s Amended Complaint
      focuses principally on the Company’s Long Term Care run-off business
      (“LTC”) during the period from August 2005 through March 2008. Among
      other things, Carter claims that Defendants concealed problems with the
      Company’s claims handling process[] and that those problems impacted
      CNO’s ability to accurately determine its liabilities and establish reserves.
      Carter alleges that numerous improper claims practices occurred in the LTC
      business, which in turn distorted and understated the Company’s true
      claims exposure. Carter further alleges that the [D]efendants issued a series
      of false and misleading statements.

                                          ***

              On February 25, 2008, CNO announced that it would delay the filing
      of its Form 10-K for the year ended December 31, 2007, and restate its
      financial results for 2005 and 2006. On March 28, 2008[,] CNO finalized
      its restatement. Thereafter, CNO announced on August 11, 2008[,] its plan
      to transfer LTC to an independent trust and contributed capital to the trust
      when LTC was transferred.

              Carter alleges that the Company was harmed by these events. He
      further alleges that he did not make a demand on CNO’s Board before
      filing suit because it would have been futile to do so.

             C.     The Related Federal Securities Litigation

             Carter based this shareholder derivative litigation largely on prior
      pending federal securities litigation filed in the United States District Court
      for the Southern District of New York. That litigation is styled Plumbers &
      Pipefitters Local Union No. 719 Pension Trust Fund v. Conseco, Inc., No.
      09-CV-6966 (S.D.N.Y.). The majority of Carter’s confidential witness
      allegations are taken from the Plumbers complaint. . . . Plumbers names
      only the officer defendants from this litigation. It does not name any of the
                                            10
       Outside Directors as defendants or direct any of its confidential witness
       allegations at those individuals.[fn]

              [Footnote: Defendants point out that Carter modified all
              but one of the confidential witness allegations from Plumbers
              when he incorporated them into the complaints he has filed
              here, changing the subject of the allegations to include the
              Outside Director defendants.]

               The Plumbers matter was dismissed March 30, 2011. In dismissing
       that litigation, United States District Court Judge John G. Koetl held that
       the information that the CNO officer defendants allegedly possessed
       relating to LTC’s prospects, reserves, and record keeping did not “support[]
       a strong and plausible inference that the [defendants] made any of the
       challenged public statements with knowledge that they were false or with
       reckless indifference[.] . . . To the contrary, nearly all of this information
       was addressed in some form in the company’s lengthy and thorough public
       disclosures.” Plumbers & Pipefitters Local Union No. 719 Pension Trust
       Fund v. Conseco, Inc., 09 Civ. 6966 (JGK), 2011 U.S. Dist. LEXIS 34241,
       at *57 (S.D.N.Y. Mar. 30, 2011). Judge Koetl further held that the
       Plumbers complaint was “wholly devoid of any particularized allegation
       connecting the individual defendants to information suggesting unlawful
       activity within the company[,]” (id. at *62-*63), and did not support the
       inference that anyone knowingly made material misstatements[,] (id. at
       *64-*65). Judge Koetl also detailed inadequacies of the confidential
       witness allegations on which Carter heavily relies here.

Appellant’s App. at 14-17 (some alterations in original). In sum, the trial court granted

the motion to dismiss, finding that Carter had not shown that demand was futile as

required by Delaware law. Carter now appeals.

                            DISCUSSION AND DECISION

       Derivative actions are suits “‘asserted by a shareholder on the corporation’s behalf

against a third party . . . because of the corporation’s failure to take some action against

the third party.’”   G&N Aircraft, Inc. v. Boehm, 743 N.E.2d 227, 234 (Ind. 2001)

(quoting Black’s Law Dictionary 455 (7th Ed. 1999)). They are brought “to redress an

injury sustained by, or enforce a duty owed to, a corporation.” Id. (citation and internal
                                            11
quotation marks omitted). Derivative actions are brought in the name of the corporation

and are usually governed by Trial Rule 23.1 and Indiana Code Section 23-1-32-1.

       Before filing a derivative action, a plaintiff must make a demand on the board of

directors to take action against the third party on behalf of the corporation as sought in

the complaint. Indiana Trial Rule 23.1 provides: “[T]he complaint shall also allege with

particularity the efforts, if any, made by the plaintiff, to obtain the action he desires from

the directors or comparable authority and the reasons for his failure to obtain the action or

for not making the effort.” The issues presented in this case turn on whether the plaintiff

in a shareholder derivative action has pleaded facts sufficient to avoid the requirement

that he make a demand on the board before filing suit.

       The substantive law on demand is the law of the state of incorporation. Piven v.

ITT Corp. (In re ITT Derivative Litig.), 932 N.E.2d 664, 667 (Ind. 2010) (citing Kamen

v. Kemper Fin. Servs. Inc., 500 U.S. 90 (1991)). CNO Financial is incorporated in

Delaware. Therefore, while we apply the procedural rules of Indiana, we must consider

Delaware substantive law to determine whether demand is excused in this case. See id.

Delaware Court of Chancery Rule 23.1 is almost identical to Indiana Trial Rule 23.1 and

also requires the shareholder in a derivative action to make a demand on the board before

filing suit. That rule, which is part of the substantive law of Delaware on demand futility,

provides in relevant part:

       In a derivative action brought by one or more shareholders or members to
       enforce a right of a corporation . . . , the corporation . . . having failed to
       enforce a right which may properly be asserted by it, the complaint . . .
       shall also allege with particularity the efforts, if any, made by the plaintiff
       to obtain the action the plaintiff desires from the directors or comparable


                                             12
       authority and the reasons for his failure to obtain the action or for not
       making the effort.

Del. Ch. Ct. R. 23.1. The Delaware Supreme Court has explained the reason for that rule:

              It is a fundamental principle of the Delaware General Corporation
       Law that “[t]he business and affairs of every corporation organized under
       this chapter shall be managed by or under the direction of a board of
       directors . . . .” Thus, “by its very nature [a] derivative action impinges on
       the managerial freedom of directors.” Therefore, the right of a stockholder
       to prosecute a derivative suit is limited to situations where either the
       stockholder has demanded the directors pursue a corporate claim and the
       directors have wrongfully refused to do so, or where demand is excused
       because the directors are incapable of making an impartial decision
       regarding whether to institute such litigation.

Stone v. Ritter, 911 A.2d 362, 366-67 (Del. 2006) (alterations in original) (citations

omitted).

       Appellate review of decisions applying Delaware Chancery Court Rule 23.1 is de

novo. Brehm v. Eisner, 746 A.2d 244, 254 (Del. 2000). Here, the Defendants used a

Rule 12(b)(6) motion to dismiss as the vehicle for alleging Carter’s failure to meet the

pleading requirements discussed below. Our review of a trial court’s grant or denial of a

motion      to   dismiss   for   failure   to   state   a   claim   is   similarly   de   novo.

PricewaterhouseCoopers, LLP v. Massey, 860 N.E.2d 1252, 1256 (Ind. Ct. App. 2007),

trans. denied.

                                       Pleading Burden

       A plaintiff seeking to avoid the demand requirement of Delaware Chancery Court

Rule 23.1 faces a high pleading burden. That burden has been described as follows:

       The demand requirement is not a mere procedural formality, but rather an
       important stricture of substantive law. Court of Chancery Rule 23.1
       requires that the complaint allege “with particularity” the reasons for the
       plaintiff’s failure to make a demand on the board. This standard is more
                                                13
       stringent than the pleading standard under Court of Chancery Rule
       12(b)(6). Thus, it is plaintiff’s burden to plead, with allegations of
       particularized facts, why making a demand would have been futile.

Edward P. Welch et al., Folk on the Delaware General Corporation Law § 327.4.2.2, at

GCL-XIII-83 to -84 (5th ed. 2012) (footnotes omitted). Conclusory allegations of fact or

law that are not supported by allegations of specific fact may not be taken as true.

Brehm, 746 A.2d at 254.

       Rule 23.1 is not satisfied by conclusory statements or mere notice pleading.
       On the other hand, the pleader is not required to plead evidence. What the
       pleader must set forth are particularized factual statements that are essential
       to the claim. Such facts are sometimes referred to as “ultimate facts,”
       “principal facts” or “elemental facts.” Nevertheless, the particularized
       factual statements that are required to comply with the Rule 23.1 pleading
       rules must also comply with the mandate of Chancery Rule 8(e) that they
       be “simple, concise and direct.” A prolix complaint larded with conclusory
       language . . . does not comply with these fundamental pleading mandates.

Id. (footnotes omitted).

               Nevertheless, the “reasonable doubt” standard of Aronson[ v. Lewis,
       473 A.2d 805 (Del. 1984), discussed below,] unavoidably calls upon the
       trial court to make a decision that is highly particular and involves informed
       judgment. That judgment will be factual in nature and will determine
       whether the accumulation of all relevant factors pleaded creates a
       reasonable doubt as to the availability of business judgment protection.
       Delaware courts have refused to establish a particular “reasonable doubt”
       standard, but instead employ an objective analysis to determine whether a
       plaintiff’s complaint contains the facts necessary to support a finding of
       reasonable doubt.

Welch, supra, § 327.4.2.2, at GCL-XIII-84 (footnotes omitted). “The pre-suit demand

futility analysis must be conducted for each claim in a stockholder derivative action.” Id.

at GCL-XIII-85.




                                             14
                                             Aronson Test

        In cases based on a particular decision or transaction of a board of directors, the

test for determining whether demand is excused is set out in Aronson v. Lewis.3 Under

that test, demand will be excused only if the plaintiff alleges in the complaint

particularized facts creating a reasonable doubt that “(1) the directors are disinterested

and independent [or that] (2) the challenged transaction was otherwise the product of a

valid exercise of business judgment.”             473 A.2d at 814.         Under the first prong of

Aronson, a director is “‘interested if he will be materially affected, either to his benefit or

detriment, by a decision of the board, in a manner not shared by the corporation and the

stockholders.’”     Welch, supra, § 327.4.2.4.1., at GCL-XIII-89 (quoting Seminaris v.

Landa, 662 A.2d 1350, 1354 (Del. Ch. 1995)).4 Under the second prong of the Aronson

test, the shareholder plaintiff must demonstrate a reasonable doubt that the challenged

transaction was otherwise the product of a valid exercise of business judgment. Aronson,

473 A.2d at 814.

                                              Rales Test

        In some cases, the conduct complained of in the derivative action may not be

based on a particular business decision or transaction. For example, the shareholder

plaintiff may allege that the corporation has been damaged by the board’s failure to act.

“Where there is no conscious decision by directors to act or refrain from acting, the


        3
            Carter does not point to one or more particular transactions as the basis for his claims.
Therefore, the Aronson test does not apply. However, it is described here because it is the foundation for
the evolution of the pleading standard tests that followed.
        4
         With the exception of Prieur, Carter does not contend that the Director Defendants were not
independent, only that they are interested.
                                                   15
business judgment rule has no application.” Rales v. Blasband, 634 A.2d 927, 934 (Del.

1993), abrogated on other grounds by Hamilton Partners, L.P. v. England, 11 A.3d 1180,

1207 (Del. Ch. 2010), (citing Aronson, 473 A.2d at 813). “Instead, it is appropriate in

these situations to examine whether the board that would be addressing the demand can

impartially consider its merits without being influenced by improper considerations.”

Rales, 634 A.2d at 934. In such cases, the court

       must determine whether or not the particularized factual allegations of a
       derivative stockholder complaint create a reasonable doubt that, as of the
       time the complaint is filed, the board of directors could have properly
       exercised its independent and disinterested business judgment in
       responding to a demand. If the derivative plaintiff satisfies this burden,
       then demand will be excused as futile.

Id. at 935. The parties agree that the Rales test applies in this case.

                               Issue One:    Demand Futility

       In paragraph 227 of the Amended Complaint, Carter sets out nine reasons that

demand on the board was not required before filing his complaint. We consider each of

the demand futility allegations in turn under the Rales test. Again, under that test we

must determine whether Carter’s Amended Complaint alleges particularized factual

allegations creating a reasonable doubt that, as of the time the Amended Complaint was

filed, a majority of the Director Defendants could have properly exercised their

independent and disinterested business judgment in responding to a demand. See id. at

935. In other words, here we must review the Amended Complaint to determine whether

Carter has made particularized factual allegations to show a reasonable doubt that a

majority of the ten-member Board, at least six of them, could have impartially considered



                                              16
the merits of demand without being influenced by improper considerations. See id. at

934.

       “A director is considered interested where he or she will receive a personal

financial benefit from a transaction that is not equally shared by the stockholders.” Rales,

634 A.2d at 936. “Directorial interest also exists where a corporate decision will have a

materially detrimental impact on a director, but not on the corporation and the

stockholders.” Id. Additionally, the mere threat of personal liability is insufficient to

show that a director is interested. See id. But a director’s interest may be demonstrated

by showing that that director faces a substantial likelihood of liability. See id.

       Carter first contends that demand on the board was excused because:

       227.a. A majority of the members of the Board were aware of, or should
       have been aware of, numerous red flags regarding the Company’s serious
       problems with its LTC business segment, including claims documentation
       issues, the failure to adequately set reserves, data integrity issues, budget
       problems, and market conduct violations. As such, a majority of the
       current Board knew[] or was recklessly indifferent to facts that, among
       other things: (i) multiple internal control failures caused claim loss/reserve
       data to be inherently unreliable; and (ii) Defendants were systematically
       understating reserves; which (iii) caused the Company’s financial
       statements to be artificially and materially overstated. Notably, half of the
       Company’s current directors (defendants Hilliard, Schneider, Tokarz,
       Turner, and Perry) have served as directors of the Company since 2004 or
       prior to 2004. In particular, as alleged herein, by 2003, the Board was
       meeting on a quarterly basis in the “War Room,” to specifically discuss
       issues with LTC with the Company’s senior officers, and these meetings
       began to occur with increasing frequency in 2005. [Confidential Defense
       Witness 1 (“DW1”)] has also stated that LTC Reports prepared by LTC
       personnel regarding the LTC business containing a range of information
       including claims issues, reserve issues, budget problems, and market
       conduct violations were regularly provided to the Board in connection with
       the War Room meetings, along with comprehensive compliance reports
       personally prepared by DW1 (which “often” dealt, at least in part, with the
       Company’s ongoing LTC issues). Moreover, as discussed above, during
       the nine[-]month period spanning between [sic] 2004 and 2005, a
                                              17
      comprehensive internal audit of the LTC segment was performed, and after
      the audit was concluded sometime in 2005, as Audit Committee members,
      defendants Schneider, Perry, and Turner received detailed results of this
      audit. Despite clearly being placed on notice of serious issues regarding
      LTC which were causing the Company’s reserves to be inadequately set,
      defendants Hilliard, Schneider, Tokarz, Perry, and Turner consciously
      disregarded their fiduciary duties to CNO when, under their direction, the
      Company’s ongoing LTC issues were not addressed and the Company
      continued to inadequately set reserves over a multi-year period. Thus,
      demand was not required upon Hilliard, Schneider, Tokarz, Perry and
      Turner. Because Hilliard, Schneider, Tokarz, Perry and Turner comprise a
      majority of the directors on the Board (for demand futility purposes),
      demand is excused[.]

      227.b. Defendants Hilliard, Schneider, Tokarz, Perry and Turner are also
      interested in demand because they engaged in conduct which is not
      protected by the business judgment rule in connection with their decision
      not to remedy the serious problems known to them through the various “red
      flags” described above. These directors were clearly placed on notice for
      years of the Company’s problems, yet chose to do nothing to remedy them.
      This decision is not a protected business judgment. Thus, demand is
      excused as to Hilliard, Schneider, Tokarz, Turner, and Perry, and because
      they comprise a majority of the Board, demand is excused[.]

Appellant’s App. at 103-05. Details supporting these allegations are found earlier in the

Amended Complaint. But Carter has not stated anywhere in the Amended Complaint

particularized facts on which we could conclude that a majority of the Board members, or

any of them, received a personal financial benefit or detriment not shared by the

stockholders. Nor does the Amended Complaint allege facts to show that the named

directors face a substantial likelihood of liability arising from their alleged failure to

“remedy serious problems known to them through the various ‘red flags’ described

above.” Id.

      In sum, the conclusory allegations in these sub-paragraphs are insufficient to

satisfy the Rales test. To the extent Carter contends that the business judgment rule


                                           18
offers no protection, that rule has no application under the Rales test in any event. Rales,

634 A.2d at 934.       Sub-paragraphs 227.a. and 227.b. do not contain particularized

allegations of fact to show that the Director Defendants were not disinterested or faced a

substantial risk of liability for their performance as directors. Therefore, Carter has not

shown in sub-paragraphs 227.a. or 227.b. that demand was futile.

       Carter next contends:

       227.c. Demand is further excused because the Board failed to exercise its
       good faith judgment to ensure that the Company’s information and
       reporting system was in concept and design adequate to assure the Board
       that appropriate information will come to its attention in a timely manner as
       a matter of ordinary operations. In particular, it is unquestioned that the
       Board had actual knowledge of the Company’s LTC problems and failed to
       do anything to prevent and/or remedy them[;] however[,] this knowledge
       did not come as a result of an adequate system of information[-]reporting
       during the ordinary course of operations. Rather[,] this information came
       to the Board’s attention as a result of various audits, special meetings, and
       government investigations. Had the Board properly ensured that an
       adequate information[-]reporting system was in place from the beginning,
       as they were required to do under Delaware law, the serious problems with
       the Company’s LTC segment could have been remedied before the
       Company suffered the substantial harm alleged herein. Thus, demand is
       futile[.]

Appellant’s App. at 105-06. Again, Carter has not alleged, here or elsewhere in the

Amended Complaint, that a majority of the Directors were interested or faced a

substantial likelihood of liability for the conduct described in sub-paragraph 227.c. Nor

does this sub-paragraph summarize conduct that is detailed elsewhere in the Amended

Complaint for which we could conclude that the Directors were interested or faced a

substantial likelihood of liability. Thus, the demand futility allegations in sub-paragraph

227.c. also fail the Rales test.

       Carter further contends that:
                                            19
       227.d. Demand is also excused because, as detailed herein, the Board
       intentionally misled the Multistate Examiners or permitted others to do so,
       thus clearly illustrating their hostility to the relief sought in this action.
       Accordingly, a reasonable stockholder would not believe, based on the
       confidential witness testimony detailed above, that the Board would have
       been able to properly and impartially consider a demand in good faith.
       Thus, demand is futile[.]

Appellant’s App. at 106. With regard to the Multistate Examination, Carter alleges that

“false and misleading information was provided to the Multistate Examiners,” and he

details the nature of the misinformation in paragraphs 165 through 170 of the Amended

Complaint.     Id. at 75.    There Carter alleges that “Defendants falsely reported”

information to the Multistate Examiners and “misrepresented . . . that the inappropriate

use of [a certain claims processing method, the No Letter Close,] was discontinued by

May 2007[.]” Id. at 78. But the complaint does not allege that the Board’s duties

included providing information to or in any way interacting with the Multistate

Examiners. Such work was likely the responsibility of the Company’s senior officers and

their subordinates. And the Complaint does not allege with particularity facts to show

that the Board was aware and “permitted others” to mislead or misinform the Multistate

Examiners. Id. at 106.

       The allegations in sub-paragraph 227.d. are conclusory and do not show that the

Director Defendants were interested or faced a substantial risk of liability with regard to

the Multistate Examination. And the Multistate Examiners did not find any particular

person or persons liable for the problems they found at Conseco. As such, Carter has not

shown that demand is excused as to the Board’s conduct regarding the Multistate

Examination.


                                            20
       With regard to the Board’s duties under the corporate Governance Guidelines,

Carter alleges:

       227.e. Every member of the Board is required to comply with the
       Company’s Corporate Governance Guidelines. The Corporate Governance
       Guidelines require each of the Company’s directors to monitor
       “management’s performance and adherence to corporate standards.”
       Further, the Corporate Governance Guidelines requires [sic] directors to
       focus “on the integrity, quality and clarity of the corporation’s financial
       reports and public disclosures and the processes that produce them.”
       Therefore, defendants Hilliard, James, Long, Perry, Prieur, Schneider,
       Tokarz, and Turner face a substantial likelihood of liability for their
       breaches of fiduciary duties and any demand upon them is futile[.]

Appellant’s App. at 106. In sum, Carter alleges that the named Director Defendants

faced a substantial risk of liability because they did not perform their duties on the board

in compliance with the Corporate Governance Guidelines. But elsewhere the Amended

Complaint alleges that the Board was aware of and met to find solutions for the problems

plaguing the LTC segment. Specifically, beginning in 2003 the Director Defendants met

quarterly “to address[] multiple and serious problems with LTC[.]” Id. at 63. Those

meetings increased in frequency beginning in 2005.          The meetings to address the

problems in the LTC segment demonstrate that the Board was attempting to monitor

“management’s performance and adherence to corporate standards.” Id. Moreover,

following the Multistate Examination, the company agreed to a settlement under which it

agreed to pay more than $32 million in fines and costs, $30 million of which was

dedicated to claims-handling improvements and restitution. Again, Carter has not alleged

with particularity facts to show that the Director Defendants did not perform their duties

in compliance with the Corporate Governance Guidelines. As such, Carter has not shown

that the Director Defendants are subject to a substantial likelihood of liability for the
                                            21
conduct described in sub-paragraph 227.e. and, therefore, that sub-paragraph does not

show that demand was excused.

      Finally, Carter asserts the following three claims based on the named Directors’

memberships on the Governance Committee, the Audit Committee, and the

Compensation Committee respectively as bases for excusing demand:

      227.f. At times relevant hereto, defendants Long, Schneider, and Turner
      served as members of the Audit Committee. Pursuant to the Audit
      Committee Charter, members of the Audit Committee are charged with
      oversight of the integrity of the Company’s financial statements, public
      disclosures and financial reporting process. Defendants Long, Schneider,
      and Turner breached their fiduciary duties of due care, loyalty, and good
      faith, because the Audit Committee permitted the above false and
      misleading statements to be made, which eventually led to a restatement.
      Therefore, defendants Long, Schneider, and Turner face a substantial
      likelihood of liability for their breach of fiduciary duties and any demand
      upon them is futile[.]

      227.g. At times relevant hereto, defendants Perry and Tokarz served as
      members of the Governance Committee. Pursuant to the Governance
      Committee Charter, members of the Governance Committee are charged
      with adopting policies designed to encourage the highest levels of corporate
      conduct by the Board, the Company and its officers, employees and agents.
      Defendants Perry and Tokarz breached their fiduciary duties of due care,
      loyalty, and good faith because the Governance Committee permitted the
      pervasive misconduct described above to go undisclosed. Therefore,
      defendants Perry and Tokarz face a substantial likelihood of liability for
      their breach of fiduciary duties and any demand upon them is futile;

      227.h. Defendants Tokarz, Perry, and James are interested as a result of
      their conduct on the Compensation Committee. Pursuant to the Company’s
      Compensation Committee Charter, directors on the Compensation
      Committee are responsible for, inter alia, reviewing and approving the
      compensation of the Company’s senior officers in conduction with
      previously established performance metrics. Defendants Tokarz, Perry, and
      James breached their fiduciary duties of due care, loyalty, and good faith,
      because the Compensation Committee, inter alia, awarded the above-
      discussed compensation based on admittedly false financial results as
      evidenced by the Company’s need for a restatement. Further, the
      Compensation Committee has done nothing to rectify its above failures.
                                          22
        Therefore, defendants Tokarz, Perry, and James (if not the entire Board)
        each face a substantial likelihood of liability for their breach of fiduciary
        duties and any demand upon them is futile[.]

Id. at 106-08. Even if we were to conclude that the detailed factual allegations preceding

paragraph 227 in the Amended Complaint support Carter’s contention that the named

Directors breached their respective Committee duties, Carter has not alleged with

particularity facts to show that the named Directors faced a substantial likelihood of

liability as a result of such breaches. Therefore, Carter has failed in these sub-paragraphs

to show that demand is excused under Rales.5

        In sum, the Amended Complaint does not include particularized factual allegations

that would create a reasonable doubt as to whether a majority of the Director Defendants

could have properly exercised their disinterested business judgment in responding to a

demand. See Rales, 634 A.2d at 935. Nor do the allegations show that the Director

Defendants face a substantial likelihood of liability for the inadequate conduct set out in

the Amended Complaint. See id. As such, Carter has not shown that demand was

excused under Rales.6



        5
         Carter makes a final allegation regarding demand, namely that demand is excused as to Prieur
because Prieur, as a CEO of the Company, is not independent. Defendants concede that Prieur is not
independent. We conclude that Carter has not shown that any other Directors are interested or not
independent, and demand could not be excused based solely on Prieur not being an independent director.
        6
           In their briefs and at oral argument, the parties also debated whether the Amended Complaint
states oversight claims under In re Caremark International Inc. Derivative Litigation, 698 A.2d 959 (Del.
Ch. 1996). Oversight or Caremark claims arise where a claim is not based on a particular transaction or
decision but, instead, on an “unconsidered failure of the board to act in circumstances in which due
attention would, arguably, have prevented the loss.” Caremark, 698 A.2d at 967. Caremark claims must
satisfy an even higher burden for demand to be excused, namely, “(1) that the directors knew or (2)
should have known that violations of law were occurring and, in either event, (3) that the directors took
no steps in a good faith effort to prevent or remedy that situation, and (4) that such failure proximately
resulted in the losses complained of[.]” Id. at 971. But the Rales test also applies to Caremark claims.
Wood v. Baum, 953 A.2d 136, 140 (Del. 2008). Because we conclude that Carter’s Amended Complaint
                                                   23
                                Issue Two: Exculpatory Provision

        Carter also contends that the trial court erred “by even considering, much less

relying on, CNO’s exculpatory provision in granting the motion” to dismiss. Appellant’s

Brief at 39. As discussed below, where a corporate charter contains an exculpatory

provision, a derivative action plaintiff faces a higher and slightly different burden to

avoid demand than under the Rales test. Carter argues that the burden imposed by the

inclusion of an exculpatory provision in a corporate charter does not apply at the motion

to dismiss stage and, even if that higher burden may be considered, that he has met that

burden. Assuming for the sake of argument that the exculpatory provision applies to the

claims in the Amended Complaint, we consider whether the Amended Complaint alleges

particularized facts to show that demand would have been futile under the higher and

slightly different standard that arises under CNO’s exculpatory clause.7

        CNO’s certificate of incorporation contains an exculpatory provision provided for

in Delaware Code title 8, section 102(b)(7).8 In such cases, director defendants are

“exculpate[d] from personal liability for violations of fiduciary duty, except for, among

has not satisfied the Rales test for excusing demand, we need not consider whether the allegations in the
Amended Complaint satisfy the even higher demand futility burden imposed on oversight claims.
        7
          If we were to conclude that Carter’s Amended Complaint asserts claims that are not subject to
the higher pleading burden under the exculpatory clause, we would be left to evaluate his claims under
Rales. We have already determined that Carter has not shown that demand was futile under Rales.
        8
           Delaware Code title 8, section 102(b)(7) provides, in relevant part, that a certificate of
incorporation may include

        [a] provision eliminating or limiting the personal liability of a director to the corporation
        or its stockholders for monetary damages for breach of fiduciary duty as a director,
        provided that such provision shall not eliminate or limit the liability of a director: (i) For
        any breach of the director’s duty of loyalty to the corporation or its stockholders; (ii) for
        acts or omissions not in good faith or which involve intentional misconduct or a knowing
        violation of law; . . or (iv) for any transaction from which the director derived an
        improper personal benefit. . . . .
                                                     24
other things, breaches of the duty of loyalty or actions or omissions not in good faith or

that involve intentional misconduct or a knowing violation of the law.” In re Citigroup

Inc. S’holder Derivative Litig., 964 A.2d 106, 124 (Del. Ch. 2009). “Such a provision

can exculpate directors from monetary liability for a breach of the duty of care, but not

for conduct that is not in good faith or a breach of the duty of loyalty.” Stone, 911 A.2d

at 367. Where, as here, a corporation has included a § 102(b)(7) exculpatory clause in

the certificate of incorporation, “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.” In re Citigroup, 964 A.2d at 124. “[T]he risk of liability does not disable

[directors] from considering a demand unless particularized pleading permits the court to

conclude that there is a substantial likelihood that the directors’ conduct falls outside the

liability exemption.” Welch, supra, § 327.4.2.4.2, at GCL-XIII-94.

       The standard for assessing oversight liability under Caremark and the standard for

assessing a disinterested director’s decision under the duty of care when the company has

adopted a § 102(b)(7) exculpatory provision are similar. Id. at 125.

       In either case, a plaintiff can show that the director defendants will be liable
       if their acts or omissions constitute bad faith. A plaintiff can show bad
       faith conduct by, for example, properly alleging particularized facts that
       show that a director consciously disregarded an obligation to be reasonably
       informed about the business and its risks or consciously disregarded the
       duty to monitor and oversee the business.”

Id. That is to say, if, after applying the Rales test a court determines that “‘a majority of

the board is impartial . . . ,’ the court must then ‘consider whether the complaint sets forth

particularized facts that plead a non-exculpated claim of breach of fiduciary duty against

a majority of the board, thereby stripping away their first-blush veneer of impartiality.’”
                                             25
King v. Baldino, 648 F. Supp. 2d 609, 617 (citing Guttman v. Huang, 823 A.2d 492, 501

(Del. Ch. 2003)) (footnote omitted). In Issue One above, we applied the Rales test and

determined that Carter has not shown a reasonable likelihood that the Director

Defendants were interested. Next we must consider whether Carter has shown the lack of

impartiality by demonstrating that the Director Defendants’ conduct constituted a breach

of the duty of good faith or loyalty.

       We first observe that Carter’s entire analysis regarding his burden in light of the

exculpatory clause is found in only two paragraphs of his Appellant’s Brief. And those

paragraphs contain absolutely no citations to the record to point out which claims support

the argument. We remind counsel that analysis of an issue on appeal must be supported

in relevant part by citations to the Appendix or parts of the Record on Appeal relied on,

and failure to do so can result in waiver. Ind. Appellate Rule 46(A)(8)(a). And we will

not search the record to find a basis for a party’s argument. Nealy v. Am. Family Mut.

Ins., 910 N.E.2d 842, 845 n.2 (Ind. Ct. App. 2009), trans. denied.                  Waiver

notwithstanding, we exercise our discretion to consider the merits of Carter’s

Section 102(b)(7) claim.

       Carter contends that “Section 102(b)(7) does not shield Defendants from liability

where, as here, there are allegations of a conscious disregard of one’s responsibilities and

other serious internal control deficiencies.” Appellant’s Brief at 42. Paragraphs 224

through 227 of the Amended Complaint pertain to Carter’s demand allegations, although

the detailed supporting factual allegations are found elsewhere in the complaint. In the




                                            26
demand allegations Carter alleges the following breaches of duty relevant to his claim

that demand was excused notwithstanding the exculpatory provision:

      1. “Despite clearly being placed on notice of serious issues regarding LTC
      which were causing the Company’s reserves to be inadequately set,
      defendants Hilliard, Schneider, Tokarz, Perry, and Turner consciously
      disregarded their fiduciary duties to CNO when, under their direction, the
      Company’s ongoing LTC issues were not addressed and the Company
      continued to inadequately set reserves over a multi-year period.” (¶ 227.a.)

      2. “[T]he Board failed to exercise its good faith judgment to ensure that the
      Company’s information and reporting system was in concept and design
      adequate to assure the Board that appropriate information will come to its
      attention in a timely manner and as a matter of ordinary operations.” (¶
      227.c.)

      3. “[T]he Board intentionally misled the Multistate Examiners or permitted
      others to do so, thus clearly illustrating their hostility to the relief sought in
      this action.” (¶ 227.d.)

      4. Members of the Audit Committee “breached their fiduciary duties of
      due care, loyalty, and good faith, because the Audit Committee permitted
      the above false and misleading statements to be made, which eventually led
      to a [financial] restatement.” (¶ 227.f.)

      5. Members of the Governance Committee “breached their fiduciary duties
      of due care, loyalty, and goof faith, because the Governance Committee
      permitted the pervasive misconduct described above to go undisclosed.” (¶
      227.g.)

      6. Members of the Compensation Committee “breached their fiduciary
      duties of due care, loyalty, and goof faith, because the Compensation
      Committee, inter alia, awarded . . . compensation based on admittedly false
      financial results as evidenced by the Company’s need for a restatement”
      and “has done nothing to rectify its [stated] failures.” (¶ 227.h.)

Appellant’s App. at 104-08.

      We assume without holding that the paragraphs quoted immediately above allege

bad faith by the conscious disregard of duties, the failure to exercise good faith, the

intentional misleading of the Multistate Examiners, and the breach of the duty of good
                                             27
faith constitutes bad faith. But, as we determined in Issue One above, Carter has not

alleged with particularity facts to show that the Directors consciously disregarded or

breached their duties to the corporation, failed to exercise good faith judgment, or misled

the Multistate Examiners. Indeed, Carter acknowledges in the Amended Complaint that

the Director Defendants were aware of the problems in the LTC segment, including the

reserves inadequacies, data integrity problems, and lack of policy records. He also

acknowledges that the Director Defendants met quarterly in “War Room” meetings to

address those issues from 2003, increased the frequency of those meetings in 2005, and

attempted to remedy some of the problems by hiring consultants and implementing

various new internal procedures. And in 2005 CNO’s quarterly financial filing with the

Securities and Exchange Commission disclosed that the LTC segment’s losses had been

larger than expected. Starting in 2006, CNO issued press releases disclosing problems in

the LTC segment and that those problems had affected the company’s overall financial

performance.9

       Carter has not made particularized factual allegations to support his conclusion

that Director Defendants knew or should have known the exact extent of the problems in

the LTC segment. Nor has he made particularized factual allegations to show that they


       9
         In Plumbers & Pipefitters Local Union No. 719 Pension Trust Fund v. Conseco, Inc., 2011 WL
1198712, at *60-*61 (S.D. N.Y.), the district court found that Conseco had made “extensive disclosures”
from which the

       most compelling inference is that the [Conseco officers] actively and diligently sought to
       apprise the market of information relevant to Conseco’s corporate prospects, and the risks
       and prospects of the LTC business and the challenges it faced, particularly with respect to
       reserves. The most compelling inference, in the face of the extensive negative
       information that was disclosed, is that the defendants were unaware of any more severe
       material adverse information[] and that much of what the plaintiff calls inadequate
       disclosures are simply pejorative characterizations of what was disclosed.
                                                   28
hid the fact or extent of those problems from the internal auditors, the Multistate

Examiners, or the public. The facts as alleged in the Amended Complaint point in the

opposite direction. Therefore, we conclude that Carter’s Amended Complaint does not

include particularized facts to support his allegations that the Director Defendants acted

in bad faith in their capacity as members of CNO’s board of directors.

                                       Conclusion

      Pre-suit demand on a board of directors is a prerequisite to filing a derivative

action. Here, to show that demand on the Director Defendants would have been futile,

the Amended Complaint must allege with particularity facts to show either that the

directors could not have made a disinterested decision upon demand or that they faced a

substantial likelihood of liability for their conduct as board members. The Amended

Complaint contains only conclusory allegations on these points. Carter also could have

avoided demand by showing that the Director Defendants had breached their duties of

good faith or loyalty. Again, the Amended Complaint falls short, failing to allege with

particularity facts to show such breaches. Therefore, again, Carter has not shown that

demand would have been futile. As such, the trial court did not err when it granted

Defendants’ motion to dismiss for failure to make pre-suit demand.

      Affirmed.

BAKER, J., and VAIDIK, J., concur.




                                           29
