   IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

PARK EMPLOYEES’ AND                )
RETIREMENT BOARD EMPLOYEES’        )
ANNUITY AND BENEFIT FUND OF        )
CHICAGO,                           )
                                   )
                Plaintiff,         )
                                   )
       v.                          ) C.A. No. 11000-VCG
                                   )
RICHARD M. SMITH, MYRON Z.         )
HOLUBIAK, CHARLOTTE W.             )
COLLINS, SAMUEL L. ROBBINS,        )
STUART A. SAMUELS, GORDON H.       )
WOODWARD, KIMBERLEE C. SEAH, )
HAI V. TRAN, PATRICIA BOGUSZ,      )
KOHLBERG & CO., L.L.C.,            )
KOHLBERG MANAGEMENT V,             )
L.L.C., KOHLBERG INVESTORS V,      )
L.P., KOHLBERG PARTNERS, V, L.P., )
KOHLBERG TE INVESTORS V, L.P., )
KOCO INVESTORS V, L.P., and        )
JEFFERIES LLC,                     )
                                   )
                Defendants,        )
                                   )
      and                          )
                                   )
BIOSCRIP, INC.,                    )
                                   )
                Nominal Defendant. )

                      MEMORANDUM OPINION

                    Date Submitted: February 12, 2016
                      Date Decided: May 31, 2016

Pamela S. Tikellis, A. Zachary Naylor, and Vera G. Belger, of CHIMICLES &
TIKELLIS LLP, Wilmington, Delaware; Catherine Pratsinakis, of CHIMICLES &
TIKELLIS LLP, Haverford, PA; OF COUNSEL: Carol V. Gilden, of COHEN
MILSTEIN SELLERS & TOLL PLLC, Chicago, Illinois; Richard A. Speirs and
Kenneth M. Rehns, of COHEN MILSTEIN SELLERS & TOLL PLLC, New York,
New York, Attorneys for Plaintiff Park Employees’ and Retirement Board
Employees’ Annuity and Benefit Fund of Chicago.

Stephen P. Lamb and Matthew D. Stachel, of PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP, Wilmington, Delaware; OF COUNSEL: Leslie
Gordon Fagen, Daniel J. Kramer, and Robert N. Kravitz, of PAUL, WEISS,
RIFKIND, WHARTON & GARRISON LLP, New York, New York, Attorneys for
Defendants Kohlberg & Co., L.L.C., Kohlberg Management V, L.L.C., Kohlberg
Investors V, L.P., Kohlberg Partners V, L.P., Kohlberg TE Investors V, L.P., and
KOCO Investors V, L.P.

David C. McBride, Martin S. Lessner, Tammy L. Mercer, and Nicholas J. Rohrer,
of YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, Delaware;
OF COUNSEL: Jonathan Rosenberg and William J. Sushon, of O’MELVENY &
MYERS LLP, New York, New York, Attorneys for Defendant Jefferies LLC.

Gregory P. Williams, Brock E. Czeschin, and Sarah A. Clark, of RICHARDS,
LAYTON & FINGER, P.A., Wilmington, Delaware; OF COUNSEL: Jay
Lefkowitz, P.C., Joseph Serino, Jr., P.C., and Shireen A. Barday, of KIRKLAND &
ELLIS LLP, New York, New York, Attorneys for Nominal Defendant BioScrip, Inc.
and Defendants Richard M. Smith, Myron Z. Holubiak, Charlotte W. Collins, Samuel
P. Frieder, David R. Hubers, Richard L. Robbins, Stuart A. Samuels, Gordon H.
Woodward, Kimberlee C. Seah, Hai V. Tran, and Patricia Bogusz.




GLASSCOCK, Vice Chancellor
      This case presents a twist on the usual requirement under Rule 23.1 that an

individual stockholder intending to bring a suit derivatively on behalf of his

corporation first make a demand that the board of directors pursue the cause of

action, or demonstrate that the board, as then constituted, would be incapable of

acting in the corporate interest, thus excusing demand. In order to properly apply

this requirement to the instant facts, I find it helpful to revisit the unique nature of

derivative litigation.

      Under our corporate model, it is the corporate directors—and not the owners

themselves, the stockholders—who control disposition of a corporation’s assets.

This distinction between ownership and control is, along with limited liability, the

essential heart of the corporate form; it allows all the positive wealth-creating

attributes of corporations and also is the font of the many agency problems that are

litigated in this Court. As with corporate assets in general, so it is with choses in

action: potentially valuable assets owned by the corporation, which, generally, the

board may pursue or eschew as it finds in the corporate interest.

      The concept of derivative litigation is meant to address an exception to this

generally beneficent rule: what to do when the directors, because of self-interest,

domination, or conflict, are unable to put a litigation asset to its best use on behalf

of the corporation. In other words, how can corporate wealth be maximized where

the board is incapable of applying its business judgement on behalf of the

                                           1
corporation?

          The answer to this conundrum offered by our law is the derivative action,

under which a stockholder is permitted to take control of the litigation asset and

attempt to employ it on behalf of the corporation. Looked at in this way, derivative

litigation is a kind of necessary evil;1 because it departs from the fundamental tenet

that the directors control the corporation and its assets, it must be employed only

where the established corporate model cannot exploit, and risks forfeiting the value

of, the litigation asset. To ensure that derivative litigation is kept within the

appropriate limited confines, our courts, through rules and case law, have established

that a stockholder–plaintiff may proceed derivatively, and without a demand on the

board of directors, but only where he pleads specific facts raising a reasonable doubt

that the directors would be able to bring their business judgment to bear on behalf of

the corporation, with respect to the litigation at issue.

          Such a showing may take various forms; in the one here at issue, the litigation

involves potential liability of the directors themselves. Where there exists a serious

threat of personal liability on the part of a director if litigation is pursued, that

director’s consideration of whether to bring an action for benefit of her corporation

is, self-evidently, compromised, and her exercise of business judgment in that matter

is therefore unreliable. Such a showing justifies derivative litigation. It is just as


1
    See infra note 79.
                                             2
obvious that the pleading requirement in this regard must be rigorous; otherwise, an

unsubstantial allegation of potential liability would be sufficient to wrest control of

the litigation asset away from the board in favor of the stockholder, with potentially

pernicious results for the corporation. A substantial body of case law has thus grown

up regarding the sufficiency of allegations of director liability to excuse demand and

allow litigation to proceed derivatively. Where such a showing cannot be made, the

remedy of a stockholder who believes the corporation is, improvidently, failing to

pursue litigation is to make a demand on the board of directors that they bring the

litigation; the decision to do so remains with the board.2

      Where demand is excused, and a stockholder–plaintiff invests effort and

expense in pursuit of litigation on behalf of the corporation, the litigation takes on

an unusual dual nature. The litigation remains a corporate asset, but it is also an

action by a stockholder to force the corporation to act. Equity recognizes that the

investment in such litigation comes uniquely from one among potentially many

corporate owners, giving that stockholder an equitable interest in the litigation as

well; and that policies that raise the stockholder’s litigation costs can chill litigation

valuable to the corporation as a whole.

      The demand-excusal analysis is complicated by the fact that a wrong done by



2
  Beyond the scope of this Memorandum Opinion is jurisprudence regarding the effect of the
demand and the availability of derivative litigation where demand is wrongfully refused.
                                            3
directors potentially justifying derivative litigation is a fact fixed in time, while

board composition is fluid over time. The question thus arises, when evaluating

whether directors can employ their business judgement to evaluate potential

litigation, which directors must be so evaluated? Consideration of the rationale for

derivative litigation, described above, makes the answer—superficially at

least—obvious: demand is excused if the directors who control the asset at the time

when demand would otherwise be made—that is, at the time the derivative litigation

is filed—are incapable of exercising appropriate judgment on the corporate behalf.

The fact that former directors from whom the current directors are independent3 may

thereby be liable is immaterial to the consideration of demand excusal.

       Typically, this rule is of straightforward application; the Court must analyze

the ability of the board to appropriately respond to a litigation demand as of the time

the suit was filed. As with any equitable rule, however, exceptions arise where

equity dictates; equity drives the rule, not the reverse. Consideration of the various

interests implicated where board composition changes during the course of litigation

must be in light of the dual nature of derivative litigation: both as a corporate asset,

which should be managed by the directors, except where circumstances make that

unavailing; and as a cause of action pursued by an individual stockholder at his own



3
  Of course, whether such independence is real or illusory may itself become an issue in the
analysis.
                                             4
expense, to force corporate action in his interest and those of other stockholders. In

the latter regard, great mischief could be done if change in board composition could

be used by defendants as a tool to raise the cost of appropriate derivative litigation

and to deprive the litigant of the benefits of his effort, and mischief could result even

if innocent changes to board composition have that result. A court faced with the

issue of change in board composition during litigation must recognize that interest,

tempered by the understanding that a corporate asset should be administered by the

directors elected by the stockholders, free from interference by individual

stockholders, except where corporate well-being requires otherwise.

      The instant matter alleges corporate wrongdoing involving, among others,

directors of BioScrip, Inc.     The Plaintiff, a stockholder, appropriately sought

information under a Section 220 request from the corporation while evaluating

whether to allege that demand on these allegedly faithless directors was excused,

and whether to proceed derivatively. At the time the Plaintiff filed this substantive

action, however, it was apparent from public documents that the composition of the

board of directors would change immanently and in a way that would concern the

demand-excusal analysis. The Plaintiff filed a complaint just before this change in

composition in fact occurred. It made allegations intended to demonstrate that

demand against the allegedly faithless directors would be futile. Before service of

the complaint could be made, the anticipated change in board composition took

                                           5
place, such that the majority of the current directors are not the subject of the

allegations of the complaint. If the old board is the operative board, I must consider

whether demand would be futile; if my demand-excusal analysis must consider the

new board, the complaint as pled is insufficient to support a finding of demand

futility.

       The Defendants have moved to dismiss on, among other grounds, the latter

hypothesis. On consideration, I agree that, in these particular circumstances, the

Plaintiff must demonstrate demand futility with respect to the new—that is, the

current—board of directors. In light of this determination, which involves an

application of the Delaware demand requirement to circumstances heretofore

unlitigated, I find it appropriate to defer a ruling on the Defendants’ motions to

dismiss sufficient to allow the Plaintiff an opportunity to consider whether it should

move to amend the complaint.4


                                   I. BACKGROUND5

       A. The Parties

       Nominal Defendant BioScrip, Inc. (“BioScrip” or the “Company”) is a

publicly traded Delaware corporation that operates nationally in two segments of the


4
  Court of Chancery Rule 15(aaa) prohibits amendments to complaints after plaintiffs have
unsuccessfully defended a motion to dismiss, but the rule has a good-cause exception.
5
  For purposes of evaluating the Defendants’ Motions to Dismiss, the facts are drawn from the
well-pled allegations of Plaintiff’s Verified Shareholder Derivative Complaint (the “Complaint”
or “Compl.”), and all documents incorporated by reference therein.
                                              6
healthcare industry: home infusion services and pharmacy benefit management

services.6 Plaintiff Park Employees’ and Retirement Board Employees’ Annuity and

Benefit Fund of Chicago has been a stockholder of BioScrip since January 2012.7

       Defendants Richard M. Smith, Myron Z. Holubiak, David R. Hubers,

Charlotte W. Collins, Stuart A. Samuels, Samuel P. Frieder, and Gordon H.

Woodward were directors of BioScrip at all times relevant to liability (the “Director

Defendants”).8 Defendants Patricia Bogusz, Hai V. Tran, and Kimberlee C. Seah,

along with Director Defendant Smith, were officers of BioScrip at all relevant times

(the “Officer Defendants”).9      I refer to the Director Defendants and Officer

Defendants collectively as the “Individual Defendants.”

       Defendants Kohlberg & Co., L.L.C., Kohlberg Management V, L.L.C.,

Kohlberg Investors V, L.P., Kohlberg Partners V, L.P., Kohlberg TE Investors V,

L.P., and KOCO Investors V, L.P. (collectively, “Kohlberg”) are stockholders of

BioScrip.10 Kohlberg beneficially owned approximately 26% of the Company’s

stock as of 2012, and currently holds just under 3% of the Company’s stock.11 The

Plaintiff asserts that Kohlberg was, at all relevant times, a controlling stockholder of

BioScrip, exercising actual control over the Company individually and through its


6
  Compl. ¶ 31.
7
  Id. at 30.
8
  Id. at ¶¶ 32–38.
9
  Id. at ¶¶ 39–41.
10
   Id. at ¶ 42.
11
   Id.
                                           7
two board designees, Woodward and Frieder.12

       Defendant Jefferies LLC (“Jefferies”) is a global investment banking firm that

was hired by BioScrip to advise the Company in connection with a shelf offering, a

secondary offering on behalf of Kohlberg, and a possible sale of BioScrip’s

pharmacy benefit management services segment or the entire Company.13

       B. Factual Overview

       This action concerns three primary areas of alleged misconduct: (1) a

kickback scheme related to the Company’s sale of a drug called Exjade (the “Exjade

Kickback Scheme”); (2) the Individual Defendants’ fraudulent concealment of the

quick and significant erosion of BioScrip’s pharmacy benefit management services

segment; and (3) insider trading in connection with two stock offerings in 2013.

              1. The Exjade Kickback Scheme

       BioScrip derives a substantial portion of its revenue from government-

sponsored programs, such as Medicare and Medicaid;14 accordingly, it is required to

comply strictly with the federal Anti-Kickback Statute15 and its state-law

equivalents, which prohibit the receipt of payments from pharmaceutical companies

in exchange for recommending a particular drug; and the False Claims Act16 and its


12
   Id. at ¶¶ 59–60.
13
   Id. at ¶ 43.
14
   Id. at ¶ 66. From 2007 to 2012, BioScrip received between 16% and 33% of its total revenue
from these programs. Id. at ¶ 67.
15
   42 U.S.C. § 1320a-7b.
16
   31 U.S.C. § 3729.
                                             8
state-law equivalents, which impose liability for presenting false claims to

government programs (such as Medicare and Medicaid).17

        Beginning in 2005, BioScrip began marketing a drug manufactured by

Novartis called Exjade, which was designed to treat excess iron in the blood.18

BioScrip was one of only three pharmacies selected to distribute Exjade through a

system known as the Exjade Patient Assistance and Support Services network

(“EPASS.”)19 For each shipment of Exjade, BioScrip received a $13 “rebate” from

Novartis.20

        By 2007, sales of Exjade began to fall as patients started reporting life-

threatening side effects from the drug.21 The Company knew of these side effects,

but—under pressure from Novartis to either improve the Company’s refill rates

among patients and generate “re-starts” of patients who had discontinued use of the

drug, or else risk being dropped from EPASS—the Officer Defendants nonetheless

pushed employees to aggressively promote Exjade to customers.22 These efforts

prevailed, and by April 2007, BioScrip had the highest refill and re-start rates in the

EPASS network.23 BioScrip was rewarded with an increased rebate of $20 per



17
   Compl. ¶ 68.
18
   Id. at ¶ 71.
19
   Id.
20
   Id. at ¶ 75.
21
   Id. at ¶ 76.
22
   Id. at ¶¶ 3, 77.
23
   Id. at ¶ 81.
                                          9
shipment.24 According to the Plaintiff, this violated federal and state law.25 BioScrip

kept accepting such “kickbacks” until the business unit implicated in the Exjade

Kickback scheme was sold in May 2012.26

        In November 2011, a former Novartis sales executive filed a qui tam action

against Novartis and BioScrip alleging that the Exjade Kickback Scheme violated

the Anti-Kickback Statute and Fair Claims Act.27 This action prompted a joint

federal and state investigation by the National Association of Medicaid Fraud

Control Units, the Department of Justice (“DOJ”), the Federal Bureau of

Investigations, and other state and federal agencies.28 On September 25, 2012, the

DOJ launched an investigation into BioScrip’s distribution of Exjade and served

BioScrip with a civil investigative demand.29 The following year, BioScrip received

a subpoena from the New York Attorney General’s (“NYAG”) Medicaid Fraud Unit

on July 8, 2013, and a second civil investigation from the DOJ on April 8, 2013. 30

At board meetings held in March and August, 2013, the Director Defendants

received updates on the DOJ’s civil investigative demands and the NYAG’s

subpoena.31


24
   Id.
25
   Id. at ¶¶ 93, 99.
26
   Id. at ¶ 4.
27
   Id. at ¶ 85.
28
   Id.
29
   Id. at ¶ 86.
30
   Id. at ¶ 149.
31
   Id. at ¶ 145.
                                          10
        The Plaintiff alleges that the Director Defendants failed to make material

disclosures regarding the Exjade Kickback Scheme.               Though government

investigations into the scheme began in 2011, the Director Defendants did not reveal

to stockholders any details regarding the investigations until September 23, 2014,

nearly three years later.32

                   2. The Deterioration of BioScrip’s PBM Services Segment

        BioScrip’s pharmacy benefit management (“PBM”) services segment

“provides discount cash card programs that allow patients to purchase medications

from pharmacies at discounted prices,” primarily targeting individuals who are

uninsured or underinsured, or whose insurance does not cover certain medications.33

The segment accounted for roughly 20% and 17% of the Company’s business in

2011 and 2012, respectively.34         Throughout 2012 and 2013, BioScrip told its

investors that the PBM services segment was a “high-margin business that provided

consistent and steady cash that the Company then invested in the aggressive growth

of its infusion business.”35 Without explanation, however, BioScrip announced on

September 24, 2013 a downward adjustment by 20% of its 2013 outlook on adjusted

EBITDA, due to the deterioration of the PBM services segment.36



32
   Id. at ¶ 8.
33
   Id. at ¶ 65.
34
   Id. at ¶ 101.
35
   Id. at ¶ 102.
36
   Id. at ¶ 11.
                                            11
       The Plaintiff asserts that Director Defendants knew in advance of the

announcement that the PBM services segment was in decline; the board had been

informed by the fourth quarter of 2012 that PBM revenues and profits had fallen

substantially.37 The Defendants were also told that one of the Company’s contracts,

accounting for 33% of the PBM service segment’s revenue, was set to expire in

March 2013,38 and that third-party brokers had reduced their marketing efforts on

sales of BioScrip discount drug cards, causing further decline of the PBM services

segment’s revenues.39       Rather than disclose the business segment’s poor

performance, however, the board took steps to conceal the problem, attempting to

make the PBM revenue appear flat by cutting costs by an amount equal to the

segment’s loss in revenue.40

       In late 2012, the Company retained Jefferies to identify potential buyers of the

PBM services segment.41 When those efforts failed, it retained Jefferies to sell the

entire Company; again, no buyers emerged.42 The Defendants ultimately waited

until August 2013 to alert investors to the issues surrounding the PBM services

segment.43



37
   Id. at ¶ 104.
38
   Id.
39
   Id. at ¶ 106.
40
   Id. at ¶ 105.
41
   Id. at ¶ 110.
42
   Id. at ¶¶ 114–15.
43
   Id. at ¶ 107.
                                          12
               3. Insider Trading in Connection with the 2013 Stock Offerings

       In 2013, after Jefferies attempted, but failed, to find a buyer for BioScrip,

Kohlberg demanded that the Director Defendants register a secondary offering to

allow it to divest its ownership interest in BioScrip.44 According to the Plaintiff,

Kohlberg wished to take advantage of the Company’s stock price, which was

inflated due to the public’s ignorance of the true state of the Company’s PBM

services segment and the litigation resulting from the Exjade Kickback Scheme.45

Jefferies, although allegedly aware of these undisclosed problems facing the

Company, recommended to the board in March 2013 that the Company register a

$401 million shelf offering.46 The Director Defendants approved the shelf offering

that same day, declaring it “in the best interest of the Company” to register the resale

of some or all of the common stock of Kohlberg, in an aggregate amount of $201

million (the “Secondary Offering”), and to issue $200 million of new stock on behalf

of the Company (the “Primary Offering,” together with the Secondary Offering, the

“April 2013 Offering”).47 Kohlberg realized net profits of over $45 million in the

April 2013 Offering.48

       The Director Defendants approved an additional $150-million secondary



44
   Id. at ¶ 128.
45
   Id.
46
   Id. at 129.
47
   Id. at ¶¶ 130–31.
48
   Id. at ¶ 139.
                                          13
offering to sell the remainder of Kohlberg’s BioScrip holdings on August 13, 2013

(the “August 2013 Offering”), just days after BioScrip was served with the subpoena

from the NYAG and the second subpoena from the DOJ.49 Kohlberg generated an

additional $90 million in proceeds through the August 2013 Offering.50 Shortly

thereafter, Holubiak, Bogusz, and Hubers sold 31,200, 39,687, and 37,600 shares of

BioScrip common stock, respectively—again, according to the Plaintiff, to take

advantage of BioScrip’s then-inflated stock price.51

       The Plaintiff alleges that by late 2012 or early 2013, the Individual Defendants

were aware that:

       (1) Kohlberg had demanded an exit plan; (2) no one was interested in
       purchasing BioScrip or its declining PBM business; (3) BioScrip was
       being investigated for defrauding the Government; (4) BioScrip had
       compliance and regulatory problems; (5) the PBM Services segment
       was in a continuous free-fall (with revenues dropping by 30% in 2013
       and EBITDA dropping by over 70% by year end); and (6) BioScrip
       desperately needed an alternative source of capital in lieu of revenue
       from its PBM business to grow its infusion business.52

Nonetheless, in November 2012, the board filed its Form 10-Q for the third quarter

of 2012, failing to disclose the government investigation into the Exjade Kickback

Scheme and that “the Company was already subject to scrutiny or challenge under

one or more existing laws,” and instead stating that the Company was “in substantial


49
   Id. at ¶ 151.
50
   Id. at ¶ 155.
51
   Id. at ¶¶ 166, 168–69.
52
   Id. at ¶ 117.
                                          14
compliance with all existing laws and regulations.”53 In March 2013, the Director

Defendants signed BioScrip’s 2012 Form 10-K, again concealing information about

the ongoing governmental investigation and the PBM service segment’s decline.54

The Plaintiff makes similar allegations concerning the Company’s preliminary

prospectus in connection with the April 2013 offering,55 the Company’s Form 10-Q

for the second quarter of 2013,56 and the Company’s registration statement and

prospectus in connection with the August 2013 Offering.57

       C. The S.D.N.Y. Action

       Once the truth ultimately emerged regarding BioScrip’s declining condition,

several federal securities actions were filed and consolidated in the Southern District

of New York on February 19, 2014 (the “S.D.N.Y. Action”).58 The S.D.N.Y. Action

alleged, among other things, that BioScrip had made false and misleading statements

regarding its compliance with federal and state laws, and that it had failed to disclose

the Exjade Kickback Scheme and resulting government investigation in various SEC

filings and related documents. As of the time of oral argument on Defendants’

Motions to Dismiss, the parties in the S.D.N.Y. Action had reached a settlement,




53
   Id. at ¶¶ 118–19.
54
   Id. at ¶ 123.
55
   Id. at ¶ 141.
56
   Id. at ¶ 153.
57
   Id. at ¶ 156.
58
   Id. at 3; see In re BioScrip, Inc. Securities Litig., No. 13-cv-6922 (S.D.N.Y.).
                                                 15
pending approval by the court.59

          D. The Section 220 Action

          On August 11, 2014, the Plaintiff made a Section 220 books and records

demand, seeking information regarding (1) how the BioScrip board could, in

compliance with its fiduciary obligations, allow the Company to be subjected to

numerous lawsuits regarding violations of state and federal healthcare law; (2) how

the board could allow the Company to engage in illegal activity resulting in a $15

million settlement; (3) the timing and circumstances of the 2013 revision to adjusted

EBITDA to reflect the declining value of BioScrip’s PBM services segment; and (4)

the circumstances surrounding the sale of significant blocks of BioScrip stock by

insiders and the Company’s April and August 2013 Offerings.

          BioScrip began delivering the requested documents in December 2014 after,

according to the Plaintiff, months of unnecessary delays by the Company. The bulk

of production was completed by February 2015. The Plaintiff followed up with

BioScrip in March 2015, enumerating deficiencies in the Company’s productions,

and the Company objected to several of the issues raised. The Company provided

additional documents on May 4, 2015, at which time, according to the Plaintiff, it

“became apparent that BioScrip’s production was largely concluded and that the

Company . . . was delaying its obligation to respond to a stockholder’s statutory


59
     Oral Arg. Tr. 6:2–4.
                                          16
demand.”60

       E. The April 8 Proxy

       On April 8, 2015, the Company mailed to its stockholders BioScrip’s annual

proxy, providing notice of an annual meeting of stockholders scheduled for May 11,

2015 (the “April 8 Proxy”).61 The April 8 Proxy disclosed that three of the

Company’s ten directors would not sit for reelection; that nine nominees (six

incumbent and three new) were running unopposed for nine open board seats; and

that the board anticipated the re-election of the tenth director, Christopher S.

Shackelton, pursuant to a March 2015 securities purchase agreement granting certain

preferred stockholders the right to elect one member to the board without the consent

of the other stockholders.62 Ascertainable from the April 8 Proxy was that three non-

Defendant directors—upon whom the complaint does not allege demand would be

futile—would remain on the board, to be joined by three new and potentially

independent directors, which would yield, as of May 11, 2015, a new board with a


60
   Pl’s Answering Br. 32–33.
61
   BioScrip Defs’ Opening Br., Transmittal Aff. of Sarah A. Clark, Esq., Ex. 1 (“April 8 Proxy”),
at 1. The Plaintiff relied, in drafting its Complaint, on “BioScrip’s public filings made with the
Securities and Exchange Commission.” Compl. 2. I thus consider the April 8 Proxy incorporated
by reference. See Freedman v. Adams, 2012 WL 1345638, at *5 (Del. Ch. Mar. 30, 2012) (“When
a plaintiff expressly refers to and heavily relies upon documents in her complaint, these documents
are considered to be incorporated by reference into the complaint; this is true even where the
documents are not expressly incorporated into or attached to the complaint.”) (citation omitted).
62
   April 8 Proxy, at 10 (“[T]he nine nominees who receive the greatest number of votes will be
elected to the Board. . . . [T]he following nine persons have been nominated for election to the
Board at the Annual Meeting: Charlotte W. Collins, David W. Golding, Michael Goldstein, Myron
Z. Holubiak, Yon Y. Jorden, Tricia H. Nguyen, R. Carter Pate, Stuart A. Samuels and Richard M.
Smith.”).
                                               17
majority (six of ten) of seats filled by non-Defendant, potentially independent

directors.63

       F. This Action

       On May 7, 2015, the Plaintiff filed its Verified Shareholder Derivative

Complaint (the “Complaint”), asserting six derivative claims. Count I asserts a

Caremark64 claim against the Individual Defendants for breach of the fiduciary

duties of loyalty and care by failing to oversee BioScrip’s operations and compliance

with various federal and state laws. Count II asserts a claim against the Individual

Defendants for breach of the fiduciary duties of care and loyalty in connection with

the alleged federal securities law disclosure violations. Count III asserts a claim

against the Director Defendants and Kohlberg for breach of the fiduciary duties of

loyalty and care by causing BioScrip to engage in the unlawful 2013 stock offerings.

Count IV asserts a Brophy65 claim against Defendants Kohlberg, Frieder,

Woodward, Bogusz, Holubiak, and Hubers for insider trading. Count V asserts a

claim against Jefferies for aiding and abetting insider trading and the breaches of

fiduciary duties in Counts II, III, and IV; and, finally, Count VI echoes Count V as

to Kohlberg. The Plaintiff seeks to proceed derivatively on behalf of BioScrip. The

Plaintiff did not make a demand on the BioScrip board, which consisted, at the time


63
   Id.
64
   In re Caremark Int’l Inc. Derivative Litig., 698 A.2d 959 (Del. Ch. 1996).
65
   Brophy v. Cities Serv. Co., 70 A.2d 5 (Del. Ch. 1949).
                                               18
of filing, of three non-Defendants—Christopher S. Shackelton, Yon Y. Jorden, and

Tricia Nguyen—and the seven Director Defendants. Instead, the Plaintiff pled

demand futility, arguing that the majority of the board in place when the Complaint

was filed on May 7, 2015 (the “May 7 Board”) lacked independence.66

       As announced in its April 8 Proxy, the Company held uncontested elections

on May 11, 2015, just four days after the Plaintiff filed its Complaint asserting

demand futility. The elections resulted in the installment of a new board with six of

its ten seats filled by directors who were not named as Defendants in this action. On

the same day, shortly after the elections were completed, three of the incumbent

directors unexpectedly resigned; two of those three—Collins and Samuels—are

named Defendants in this action. Accordingly, by the end of the day on May 11,

2015, four days following the filing of the Complaint, the board (the “May 11

Board”) consisted of seven members, of which only two are named Defendants in

this action. The Plaintiff subsequently served the May 11 Board with the Complaint

on May 27, 2015, nearly three weeks after the election of the new board.

       The following chart summarizes the change in the composition of the board

between the time this action was filed and the Company was served; the directors

who resigned from the May 11 Board on that date have their names struck through:


66
   The Plaintiff alleges that seven of the ten members of the May 7 Board lacked independence for
various reasons, as detailed in the Complaint, including that each has personal financial culpability
in this action and the related federal securities action, and that each has engaged in insider trading.
                                                 19
                 May 7 Board s                    May 11 Board s
                   Hubers ✓
                 Woodward ✓
                   Frieder ✓
                   Collins ✓                          Collins ✓
                  Holubiak ✓                         Holubiak ✓
                  Samuels ✓                          Samuels ✓
                   Smith ✓                            Smith ✓
                 Shackelton ✓                       Shackelton ✓
                  Nguyen                             Nguyen
                   Jorden ✓                           Jorden ✓
                                                      Golding
                                                     Goldstein S
                                                       Pate
                                                      ✓ Director Defendants

The Complaint makes no allegations as to why demand on the five of seven May 11

directors who are not named as Defendants would be futile.

        On June 16, 2015, the Defendants filed three Motions to Dismiss (the

“Motions”). After full briefing of the Motions, I heard oral argument on January 12,

2016.    I asked the parties, following the argument, to submit supplemental

memoranda addressing (1) what policy or equity reason, if any, supports analyzing

the May 7 Board instead of the May 11 Board for purposes of assessing demand

excusal; and (2) what is the appropriate disposition of the motions if I determine that

demand excusal must be evaluated by reference to the May 11 Board. The parties

completed supplemental briefing on February 12, 2016, at which time the matter was


                                          20
fully submitted. This Memorandum Opinion addresses the Defendants’ Motions.

                                       II. ANALYSIS

       The Defendants move to dismiss Plaintiff’s Complaint pursuant to Court of

Chancery Rule 23.1, for failure to make a demand, and under Rule 12(b)(6), for

failure to state a claim; alternatively, the Defendants move to stay this action pending

resolution of the prior-filed S.D.N.Y. Action. Because I ultimately conclude that the

proper board for purposes of assessing demand is the May 11 Board, and that the

Plaintiff therefore has not sufficiently pled demand futility under Rule 23.1, I need

not address the Defendants’ other arguments here.

       A. The May 11 Board is the Correct Board for Purposes of Evaluating
       Demand Futility Under Rule 23.1

       Delaware embraces a director-centric model of corporate governance; when

presented with allegations of wrongs committed against a corporation and its

stockholders, it is the corporation’s directors who are entrusted with deciding

whether to ultimately pursue claims on behalf of the corporation.67 Delaware

recognizes an exception to this general rule, however, for cases where a

corporation’s directors—because of self-interest, domination, or conflict—are

unable to act in the corporation’s best interest. In such cases, a stockholder may

bring a derivative suit on behalf of the corporation.


67
  8 Del. C. § 141(a) (“The business and affairs of every corporation . . . shall be managed by or
under the direction of a board of directors . . . .”).
                                               21
       Rule 23.1, in deference to Delaware’s director-centric model, requires a

plaintiff bringing a derivative suit to either make a demand on the corporation’s

board or to plead specific facts demonstrating a reasonable inference that demand

would have been futile.68 This demand requirement promotes intracorporate dispute

resolution69 and ensures that important business decisions, such as the decision

whether to invest a corporation’s time and resources in litigation, are made by its

board, as is required under Delaware’s statutory scheme.70 Demand futility is

assessed under one of two standards articulated by the Delaware Supreme Court in




68
   Del. Ch. Ct. R. 23.1 (“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 authority
and the reasons for the plaintiff's failure to obtain the action or for not making the effort.”); see
Harris v. Carter, 582 A.2d 222, 230 (Del. 1990) (“The very purpose of the ‘demand’ rule is to
give the derivative corporation itself the opportunity to take over a suit which was brought on its
behalf in the first place.”) (citation omitted); Binning v. Gursahaney, 2016 WL 2653662, at *2
(Del. Ch. May 6, 2016) (citations omitted) (“The Rule 23.1 demand requirement embodies the
principle that a derivative cause of action belongs to a corporation, which is managed by the
corporation's board, and allows the ‘corporation the opportunity to rectify an alleged wrong
without litigation.’”) (citation omitted); In re China Agritech, Inc. S’holder Litig., 2013 WL
2181514, at *14 (Del. Ch. May 21, 2013) (citing Wood v. Baum, 953 A.2d 136, 140 (Del. 2008)
(“A stockholder may not pursue a derivative suit to assert a claim of the corporation unless the
stockholder: (a) has first demanded that the directors pursue the corporate claim and the directors
have wrongfully refused to do so; or (b) establishes that pre-suit demand is excused because the
directors are deemed incapable of making an impartial decision regarding the pursuit of the
litigation.”)).
69
    See Aronson v. Lewis, 473 A.2d 805, 811 (Del. Ch. 1984) (“[T]he demand requirement of
Chancery Rule 23.1 exists at the threshold, first to insure that a stockholder exhausts his
intracorporate remedies . . . .”), overruled in part by Brehm v. Eisner, 746 A.2d 244 (Del. 2000).
70
   See In re EZCORP Inc. Consulting Agreement Derivative Litig., 2016 WL 197814, at *5 (Del
Ch. Jan. 15, 2016) (“[W]hen a corporation suffers harm, the board of directors is the institutional
actor legally empowered under Delaware law to determine what, if any, remedial action the
corporation should take, including pursuing litigation against the individuals involved.”).
                                                 22
Aronson v. Lewis71 or Rales v. Blasband,72 depending on the nature of the challenged

conduct.73

       Under either standard, whether demand is excused is typically analyzed with

respect to the directors seated as of the date that the complaint was filed,74 and, in

recognition of the dual nature of derivative litigation and the stockholder–plaintiff’s

investment therein, changes to a board’s composition after filing of the complaint

are generally disregarded.75          The Plaintiff argues for strict application of this

rule—that is, that I should assess demand futility with respect to the May 7 Board,

of which seven of ten directors are allegedly conflicted, such that demand would



71
   473 A.2d 805 (Del. 1984).
72
   634 A.2d 927 (Del. 1993).
73
   Sandys v. Pincus, 2016 WL 769999, at *6 (Del. Ch. Feb. 29, 2016) (“To determine whether a
plaintiff's demand upon the board would be futile, Delaware courts employ one of two tests. The
first, articulated in Aronson v. Lewis, requires the plaintiff to plead facts that create a reasonable
doubt either that ‘the directors are disinterested and independent’ or that ‘the challenged
transaction was otherwise the product of a valid exercise of business judgment.’ The Aronson test
does not apply when ‘the board that would be considering the demand did not make a business
decision which is being challenged in the derivative suit.’ For instance, it will not apply when the
board did not undertake a business decision or when a majority of the members that made the
challenged decision have been replaced. In such situations, this Court instead applies the Rales
test, under which plaintiff must create a reasonable doubt that ‘the board of directors could have
properly exercised its independent and disinterested business judgment in responding to a demand’
at the time the complaint was filed.”) (citations omitted). Fundamentally, both tests address the
same question: can the board exercise its business judgment on the corporate behalf?
74
   See, e.g., In re infoUSA, Inc. S’holders Litig., 953 A.2d 963, 985 (Del. Ch. 2007) (“[D]emand is
made against the board of directors at the time of filing of the complaint.”).
75
   For instance, amendment of a derivative complaint after a change in the composition of the
board generally does not require re-evaluation of demand futility. Fotta v. Morgan, 2016 WL
775032, at *14 (Del. Ch. Feb. 29, 2016) (“Generally, when claims are already properly before the
Court, Rule 23.1 does not require a plaintiff to reevaluate compliance with the rule merely because
the composition of the board has changed before the filing of an amended complaint.”) (citing
Harris, 582 A.2d at 231).
                                                 23
have been futile. The Defendants, on the other hand, contend that I should assess

demand futility with respect to the May 11 Board. They argue that Plaintiff’s

position not only conflicts with the reality of which board was in place to assess

demand futility (as the May 11 Board replaced the May 7 Board just four days after

the filing of the Complaint), but also with the policy behind Rule 23.1.

      As discussed above, the Court generally evaluates demand futility as of the

date of the filing of the complaint, disregarding a superseded board that lacks the

power to act—the board in place at the time of the alleged wrongdoing—in favor of

the board that would actually be tasked with determining whether or not the

corporation will pursue the litigation. In most cases, the application of this rule is

straightforward, and the appropriate board is the board in place at the time of the

filing of the complaint. However, under the facts presented by this case, this

consideration weighs in favor of the May 11 Board; here, it was the May 11 Board,

not the May 7 Board, that was in a position to actually assess the Plaintiff’s

Complaint. The Plaintiff filed its Complaint on May 7, 2015. Just four days—and

two business days—later, the Company held previously disclosed and uncontested

elections for its board of directors, immediately following which several incumbent

directors unexpectedly resigned. A majority of this new board (both before and after

the unexpected resignations) was made up of non-Defendant directors who

potentially could have evaluated the Plaintiff’s Complaint. As a practical matter,

                                         24
even had the May 7 directors received a demand on May 7, 2015, they would not

have had time to assess the Complaint in keeping with their fiduciary responsibilities

before being replaced by the new members of the May 11 Board.76 This, coupled

with the fact that the Company was not served with the Complaint until May 27,

2015, nearly three weeks later, and after the May 11 Board was in place, convinces

me that the May 11 Board is the appropriate board for purposes of assessing demand

futility.

       I so find, notwithstanding the fact that derivative litigation is dual in nature.

Derivative litigation is not only an asset of the corporation, but also one in which the

individual stockholder pursuing the action has an equitable interest.77 A stockholder

engaged in derivative litigation must expend significant resources, both in time and

money, to pursue these claims, and an increase in that expense, all else equal, makes

it more likely that valuable litigation will be foregone. Accordingly, the Court

generally does not require that a stockholder make a demand or replead demand

futility in response to changes to the board’s composition, after the filing of the

complaint.      The opposite course could have a chilling effect on derivative


76
   See, e.g., Ironworkers District Council of Philadelphia & Vicinity Retirement & Pension Plan
v. Andreotti, 2015 WL 2270673, at *26 (Del. Ch. May 8, 2015) (board adopted a resolution
authorizing a special committee to investigate a stockholder demand one month after demand was
made on the board, after which the special committee conducted a nine-month investigation).
77
   See Spiegel v. Buntrock, 571 A.2d 767, 773 (Del. 1990) (“The nature of the derivative action is
two-fold. ‘First, it is the equivalent of a suit by the shareholders to compel the corporation to sue.
Second, it is a suit by the corporation, asserted by the shareholders on its behalf, against those
liable to it.’”) (quoting Aronson, 473 A.2d at 811).
                                                 25
litigation,78 which provides a benefit to the corporation, in that it allows a channel

for wrongs against a corporation to be vindicated where a corporation’s directors are

unable to do so.79 However, this interest of the stockholders must be balanced

against the benefit of the director-centric model, as described above.80

       The Plaintiff suggests that should this Court depart from the “date of filing”

rule and assess demand with respect to the May 11 Board, it would encourage

gamesmanship by boards of directors. It contends that venturing away from a bright-

line rule would lead to a “slippery slope of a standard susceptible to manipulation,”

and “arbitrary Court analyses of various factors such as the number of days before a

change in the board, the number of days of notice of a change in the board and

adjournment of a meeting to elect the board and so forth.”81 For example, a

board—anticipating that a stockholder is on the eve of filing a derivative

suit—might, in Plaintiff’s view, quickly change its membership by removing

conflicted directors, so as to preclude the plaintiff from filing a derivative suit; or, a

board might intentionally delay in responding to a Section 220 action in order to buy


78
   Not only would such a course be inefficient, but it would potentially encourage companies to
repeatedly disturb board membership in order to disrupt ongoing litigation that it considers
vexatious.
79
   Since I have described such litigation as a “necessary evil,” it is appropriate to point out that,
where justified, derivative litigation is “necessary” to prevent loss of a corporate asset, and the
“evil” is not the litigation itself, but the circumstances that prevent corporate fiduciaries from
fulfilling their duties.
80
   Zapata Corp. v. Maldonado, 430 A.2d 779, 787 (Del. 1981) (considering the balancing of these
interests).
81
   Pl’s Supp. Opening Br. 3.
                                                26
more time to remove certain conflicted directors. This argument rings hollow. The

derivative suit is a device that exists to aid a stockholder in vindicating the

corporation’s rights, only where the board of the corporation, typically entrusted

with that responsibility, is not capable of doing so.82 Only where a manipulation of

board composition is employed to discourage meritorious derivative litigation is the

matter problematic. I have every confidence that this Court can sniff out and

preempt improper manipulation of board composition in this context. The fear of

gamesmanship falls well short, in my mind, of justifying indulgence in the fiction

that the May 7 Board would be the body charged with evaluating a demand here.

       The Plaintiff’s real argument here is simply that Delaware case law has

established a “firm,” bright-line rule that demand must be assessed as of the day of

the filing of a complaint.83 But it is axiomatic that equity “regards substance rather


82
   See Schoon v. Smith, 953 A.2d 196, 202 (Del. 2008) (“The stockholder does not bring such a
suit because his rights have been directly violated, or because the cause of action is his, or because
he is entitled to the relief sought; he is permitted to sue in this manner simply in order to set in
motion the judicial machinery of the court . . . . In fact, the plaintiff has no such direct interest;
the defendant corporation alone has a direct interest; the plaintiff is permitted, notwithstanding his
want of interest, to maintain the action solely to prevent an otherwise complete failure of justice.”)
(emphasis in original) (citation omitted).
83
   See Pl’s Supp. Opening Br. 3–5 (citing Braddock v. Zimmerman, 906 A.2d 776, 786 (Del. 2006)
(citing Harris, 582 A.2d at 231 (finding that “when during the pendency of a derivative litigation
there occurs a change in the composition of a board . . . [, t]here are good reasons not to go further
and require that a derivative plaintiff interrupt litigation, when amending his pleading or otherwise,
to make a demand upon such a newly constituted board”)); Rales, 634 A.2d at 934 (“Thus, a 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.”) (emphasis added); Zapata, 430 A.2d at 787 (finding that “some tribute must be
paid to the fact that the lawsuit was properly initiated”); China Agritech, 2013 WL 2181514, at
                                                 27
than form”;84 a court of equity generally does not favor bright-line rules, instead

using its discretion to make decisions on a case-by-case basis.85 Here, I do not

disturb the general rule—that demand should be assessed as of the date a complaint

is filed. I find that, under the unique facts presented by this case, a departure from

the general rule is both equitable and in keeping with the policy behind Rule 23.1.




*13 (assessing demand futility as of the date the complaint was filed); In re infoUSA, Inc., 953
A.2d at 985 (“First and foremost, it is important to remember that demand is made against the
board of directors at the time of filing of the complaint. It is that board, and no other, that has the
right and responsibility to consider a demand by a shareholder to initiate a lawsuit to redress his
grievances.”); Needham v. Cruver, 1993 WL 179336, at *3 (Del. Ch. May 12, 1993) (“The
disinterestedness of the directors is determined as of the time the original complaint is filed.”)
(citing Harris, 582 A.2d at 231); In re Fuqua Indus., Inc. S’holder Litig., 1997 WL 257460, *13
(Del. Ch. May 13, 1997) (“The appropriate test, therefore, is whether the board in existence at the
time the complaint is filed is able to properly carry out its fiduciary duty to evaluate demand in a
disinterested and independent fashion.”)).
84
   In re EZCORP, Inc. Consulting Agreement Derivative Litigation. 2016 WL 301245, at *9 (Del.
Ch. Jan. 25, 2016), reconsideration granted in part, (Del. Ch. Feb. 23, 2016), and appeal refused
sub nom. MS Pawn Corp. v. Treppel, 133 A.3d 560 (Del. 2016), and appeal refused sub nom.
Roberts v. Treppel, 133 A.3d 560 (Del. 2016) (quoting Monroe Park v. Metropolitan Life Ins. Co.,
457 A.2d 734, 737 (Del. 1983) (citation omitted)).
85
    The Court, in other contexts, has expressed a preference for fact-specific inquiry over the
employment of firm, bright-line rules. See, e.g., Nixon v. Blackwell, 626 A.2d 1366, 1381 (Del.
1993) (explaining that the “doctrine of entire fairness does not lend itself to bright line precision
or rigid doctrine”); Sandys, 2016 WL 769999, at *9 (explaining Delaware law’s requirement of “a
case-by-case fact specific inquiry based on well-pled factual allegations” to assess the
independence of directors) (quoting Teamsters Union 25 Health Servs. & Ins. Plan v. Baiera, 119
A.3d 44, 61 (Del. Ch. 2015); In re Ancestry.com Inc. S’holder Litig., C.A. No. 7988-CS, at 223
(Del. Ch. Dec. 17, 2012) (TRANSCRIPT) (“Per se rulings where judges invalidate contractual
provisions across the bar are exceedingly rare in Delaware, and they should be. It’s inconsistent
with the model of our law.”); Hamilton Partners, L.P. v. England, 11 A.3d 1180, 1200 (Del. Ch.
2010) (“[T]he question of whether a related corporation is an indispensable party to a derivative,
double derivative, or multi-derivative action should not be answered by rote adherence to a bright-
line rule of dubious origin. It should rather turn on the facts of the case and the standards set forth
in Court of Chancery Rule 19(b).”); Rapoport v. Litig. Trust of MDIP Inc., 2005 WL 3277911, at
*2 (Del. Ch. Nov. 23, 2005) (explaining that the Court does not perform McWane first-filed
analyses “mechanically or using a bright-line test,” but rather conducts “a more nuanced
analysis”).
                                                 28
Assessing demand futility with respect to the May 11 Board, which was installed

just four days after the filing of the Complaint and was the body on which that

Complaint was served, does not unduly interrupt the litigation, which was the

primary concern of the court in the cases relied upon by the Plaintiff.86 As discussed

above, even had the Plaintiff made a demand on the May 7 Board, it would not,

practically, have had the opportunity to evaluate the Complaint before the

installment of the new May 11 Board.

       While no court has decided this exact issue,87 the Defendants rely on In re

Puda Coal, Inc. Stockholders Litigation,88 in which the Court did look to events after

the filing of the complaint, as I do here, and refused to evaluate demand futility as

of the date that the complaint was filed. At time the original complaint was filed in

Puda Coal, the board consisted of five directors, three of whom were independent

and were charged with investigating potential wrongdoing—theft of corporate


86
   See, e.g., Braddock, 906 A.2d at 785 (“Rule 23.1 ‘ought not to be so construed as to stall the
derivative suit mechanism where it has been properly initiated’ or ‘to interrupt ligation.’”)
(emphasis added) (citation omitted); Harris, 582 A.2d at 231 (“There are good reasons not to go
further and require that a derivative plaintiff interrupt litigation, when amending his pleading or
otherwise, to make a demand upon such a newly constituted board.”) (emphasis added).
87
   The Court faced, but did not decide, a similar issue in In re EZCORP, Inc. Consulting Agreement
Derivative Litigation. There, the plaintiff filed a derivative complaint, without having first made
a demand on the company’s board, around 3:00 p.m. on July 28, 2014. Approximately one hour
later, the company issued a press release announcing that the board had been expanded from four
to seven directors. The Court used the new board for purposes of evaluating demand futility,
though it remarked that, “[i]n the abstract, which board to use raises a nice doctrinal question,”
and determined that it need not answer that question, because demand was futile either way.
EZCORP, 2016 WL 301245, at *34 n.32.
88
    In re Puda Coal, Inc. S’holders Litig., C.A. No. 6476-CS (Del. Ch. Feb. 6, 2013)
(TRANSCRIPT).
                                               29
assets—by the other two directors.89 Over the next ten months, all three of the

independent directors and one of the allegedly conflicted directors resigned, leaving

the company under the control of the sole remaining director, who was the “principal

suspected wrongdoer in control of the company.” 90                Two of the independent

directors, who had resigned in lieu of pursuing the action on behalf of the

corporation, then moved to dismiss the complaint pursuant to Rule 23.1, arguing that

because three of five directors on the board at the time the complaint was filed were

independent, the plaintiffs should have made a demand.

       The court, while recognizing that a majority of the board was independent and

disinterested at the time the complaint was filed (such that demand would not have

been futile), nonetheless denied the motion to dismiss. The court looked to the

reality before it—that granting the motion would leave control of the litigation in the

hands of the sole remaining director of the company, the chairman who had allegedly

misappropriated the company’s funds—and found that application of the general

rule of assessing demand futility as of the date of filing would lead to an absurd,

“Kafkaesque” result,91 and that the court should not permit defendants to “use




89
   Verified Consol. S’holder Deriv. Compl. ¶ 31, In re Puda Coal, Inc. S’holders Litig., C.A. No.
9640-CS (Del. Ch. Oct. 12, 2011), Trans. ID 40311660; In re Puda Coal, Inc. S’holders Litig.,
C.A. No. 6476-CS, at 15:21–24, 16:1–5 (Del. Ch. Feb. 6, 2013) (TRANSCRIPT).
90
   In re Puda Coal, Inc. S’holders Litig., C.A. No. 6476-CS, at 6:16–17 (Del. Ch. Feb. 6, 2013)
(TRANSCRIPT).
91
   Id. at 17:4.
                                               30
doctrinal law in some sort of gotcha way.”92

       While the facts here are very different from those in Puda Coal, the same

Kafkaesque quality would attach to a decision that the superseded May 7 Board,

rather than the May 11 Board actually served with the Complaint, is the appropriate

body to which a demand futility analysis must apply. The Defendants accuse the

Plaintiff of gamesmanship in the timing of the filing of the Complaint, but I need not

find such gamesmanship to note that the Plaintiff filed the Complaint after the April

8 Proxy made it known that the board’s composition was about to change, nor to

note that this fact does not make the Plaintiff’s position particularly sympathetic to

equity.

       Finally, I find unavailing the Plaintiff’s argument that, because the May 11

Board retained the opportunity to “control the litigation” (i.e., to decide whether to

file a motion to dismiss the action), no policy reason exists to analyze demand futility

here, since in any event the May 11 Board retains control of the corporate asset.

Aside from potentially proving too much,93 this argument is unpersuasive; the power

to resist a lawsuit, by moving to dismiss on the ground that the complaint fails to

state a claim, falls far short of the plenary authority over litigation assets a board




92
  Id. at 15:19–20.
93
  Taken to its logical conclusion, under Plaintiff’s view, corporate directors will always retain
some control of derivative litigation, and the demand requirement is essentially meaningless or
unnecessary.
                                               31
wields if the Court determines that demand is not excused.

      B. Disposition of Defendants’ Motions to Dismiss

      Having decided that the May 11 Board is the proper board for purposes of

assessing demand futility, I must now determine the proper disposition of

Defendants’ Motions to Dismiss. The Defendants seek a dismissal with prejudice,

noting that such a dismissal would not preclude a subsequent complaint alleging that

demand on the May 11 Board is futile. The Plaintiff argues that, on the record

presented, I should find demand against the May 11 Board is futile, and deny the

motion to dismiss. Such a finding, however, would be entirely unsupported by the

allegations in the Complaint. In the alternative, the Plaintiff urges me to allow it to

amend its Complaint and replead demand futility as to the May 11 Board. Such an

allowance would require demonstration of “good cause” under Court of Chancery

Rule 15(aaa); the Plaintiff suggests such cause is present here in light of the unusual

nature of the facts.

      I find it appropriate to consider any request to amend upon motion made, and

in light of opposition to the motion, if any. The Plaintiff may elect to make such a

motion within 30 days of this Memorandum Opinion, and I reserve decision on

Defendants’ Motions to Dismiss to allow the Plaintiff to do so as it finds appropriate.

                                III. CONCLUSION

      For the foregoing reasons, I find that the Plaintiff has failed to demonstrate


                                          32
demand futility under Rule 23.1, and that the matter may not proceed as pled. I

reserve decision on the Motions to Dismiss. The parties should confer and inform

me how they wish to proceed, should the Plaintiff elect to seek leave to amend the

Complaint.




                                       33
