  IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

OKLAHOMA FIREFIGHTERS               )
PENSION & RETIREMENT SYSTEM,        )
KEY WEST MUNICIPAL                  )
FIREFIGHTERS & POLICE               )
OFFICERS’ RETIREMENT TRUST          )
FUND, JEFFREY DROWOS,               )
FIREMAN’S RETIREMENT SYSTEM         )
OF ST. LOUIS, and ESTHER KOGUS,     )
Derivatively on Behalf of Nominal   )
Defendant, Citigroup, Inc.,         )
                                    )
               Plaintiffs,          )
                                    )
      v.                            ) C.A. No. 12151-VCG
                                    )
MICHAEL L. CORBAT, DUNCAN P.        )
HENNES, FRANZ B. HUMER,             )
EUGENE M. MCQUADE, MICHAEL          )
E. O’NEILL, GARY M. REINER,         )
JUDITH RODIN, ANTHONY M.            )
SANTOMERO, JOAN SPERO, DIANA        )
L. TAYLOR, WILLIAM S.               )
THOMPSON JR., JAMES S. TURLEY,      )
ERNESTO ZEDILLO PONCE DE            )
LEON, ROBERT L. JOSS, VIKRAM S.     )
PANDIT, RICHARD D. PARSONS,         )
LAWRENCE R. RICCIARDI, ROBERT       )
L. RYAN, JOHN P. DAVIDSON III,      )
BRADFORD HU, BRIAN LEACH,           )
MANUEL MEDINA-MORA, and             )
KEVIN L. THURM,                     )
                                    )
               Defendants,          )
and                                 )
                                    )
CITIGROUP, INC.,                    )
                                    )
               Nominal Defendant.   )
                         MEMORANDUM OPINION

                      Date Submitted: September 19, 2017
                       Date Decided: December 18, 2017

Stuart M. Grant, Nathan A. Cook, and Rebecca A. Musarra, of GRANT &
EISENHOFER P.A., Wilmington, Delaware; OF COUNSEL: Mark Lebovitch,
David L. Wales, and Alla Zayenchik, of BERNSTEIN LITOWITZ BERGER &
GROSSMANN LLP, New York, New York; Brian J. Robbins, Felipe J. Arroyo, and
Gina Stassi, of ROBBINS ARROYO LLP, San Diego, California, Attorneys for
Plaintiffs.

Donald J. Wolfe, Jr., T. Brad Davey, Tyler J. Leavengood, and Jay G. Stirling, of
POTTER ANDERSON & CORROON LLP, Wilmington, Delaware; OF
COUNSEL: Mary Eaton, of WILLKIE FARR & GALLAGHER LLP, New York,
New York; Frank Scaduto, of WILLKIE FARR & GALLAGHER LLP, Washington,
DC, Attorneys for Defendants Duncan P. Hennes, Franz B. Humer, Michael E.
O’Neill, Gary M. Reiner, Judith Rodin, Anthony M. Santomero, Joan Spero, Diana
L. Taylor, William S. Thompson, Jr., James S. Turley, Ernesto Zedillo Ponce de Leon,
Robert L. Joss, Richard D. Parsons, Lawrence R. Ricciardi, and Robert L. Ryan, and
Nominal Defendant Citigroup Inc.

Stephen P. Lamb and Meghan M. Dougherty, of PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP, Wilmington, Delaware; OF COUNSEL: Brad S.
Karp, Bruce Birenboim, and Susanna Buergel, of PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP, New York, New York; Jane B. O’Brien, of PAUL,
WEISS, RIFKIND, WHARTON & GARRISON LLP, Washington, DC, Attorneys
for Defendants Michael L. Corbat, Eugene M. McQuade, Vikram S. Pandit, John P.
Davidson III, Manuel Medina-Mora, Bradford Hu, Kevin L. Thurm, and Brian Leach.




GLASSCOCK, Vice Chancellor
         In this matter, stockholders of Citigroup, Inc. seek damages, derivatively on

the part of the company, against directors and officers. The Defendants have moved

to dismiss. The burden is on the Plaintiffs to plead facts that, if true, raise a

reasonable doubt that the director Defendants could exercise their business judgment

to consider a demand, thus excusing demand under Court of Chancery Rule

23.1. The Plaintiffs seek to satisfy that burden by pointing to pleadings they allege

demonstrate a substantial likelihood that the director Defendants are liable to

Citigroup for failing to oversee company employees’ compliance with law, under

the rubric of In re Caremark International Inc. Derivative Litigation.1

         It is appropriate, I think, to discuss here the implications of a claim

under Caremark. Corporate entities, acting through their employees, may violate

laws or regulations. Such unlawful acts, in turn, can result in fines, penalties, third-

party damages, and other losses on the part of the entity. The essence of a Caremark

claim is an attempt by the owners of the company, its stockholders, to force the

directors to personally make the company whole for these losses.

         The circumstances under which a Caremark or oversight claim can be

successful are limited. If the board directs employees to act unlawfully, the directors

have breached the duty of loyalty and are liable; that, strictly speaking, is not an

oversight claim. Caremark provides that if directors have failed to put in place any


1
    698 A.2d 959 (Del. Ch. 1996).

                                           1
system whereby they may be made aware of and oversee corporate compliance with

law, they may be liable. That situation is, manifestly, not the case here. Conversely,

where the board has an oversight system in place, but nonetheless fails to act to

promote compliance, the directors may be liable, but only where their failure to act

represents a non-exculpated breach of duty.

       It should be apparent that many failures of oversight by directors sufficient to

constitute a breach of duty implicate the duty of care.2 Directors breach the duty of

care where they act with gross negligence. In other words, where the directors are

informed of potential unlawful acts in a way that puts them on notice of systematic

wrongdoing, and nonetheless they act in a manner that demonstrates a reckless

indifference toward the interests of the company, they may be liable for breach of

the duty of care. Here, however, Citigroup’s directors are exculpated from liability

for such a breach. In that case, the path to director liability is straitened. In order to

result in liability, the directors’ inaction in the face of “red flags” putting them on

notice of systematic wrongdoing must implicate the duty of loyalty. To imply

director liability, the response of the directors must have been in bad faith. The

inaction must suggest, not merely inattention, but actual scienter. In other words,




2
  Cf. City of Birmingham Ret. & Relief Sys. v. Good, 2017 WL 6397490, at *1 (Del. Dec. 15, 2017)
(“We agree with the Court of Chancery that the plaintiffs did not sufficiently allege that the
directors faced a substantial likelihood of personal liability for a Caremark violation. Instead, the
directors at most faced the risk of an exculpated breach of the duty of care.”).

                                                 2
the conduct must imply that the directors are knowingly acting for reasons other than

the best interest of the corporation. That is the essence of a Caremark claim.3 The

height of this bar, presumably, is what led to Chancellor Allen’s famous observation

that a Caremark claim is among the most difficult to prove in our corporate law. 4

          Here, the Plaintiffs, with admirable effort and the aid of records obtained

under Section 220, produced a ponderous omnibus of a complaint. It describes red

flags placed before the directors, dating back to the financial crisis of a decade ago

as well as more recently, in connection with activities of Citigroup and its

subsidiaries that led to large fines levied against the bank. The Complaint makes it

reasonably conceivable that the directors, despite these red flags, failed to take

actions that may have avoided loss to the company. That is not the standard,

however. To my mind, the allegations of the Complaint, if true, fail to demonstrate

scienter. The Complaint does not make it reasonably conceivable that the directors

acted in bad faith. Therefore, the Motion to Dismiss is granted.

          My reasoning follows.




3
    Id. at *5.
4
    In re Caremark Int’l Inc. Derivative Litig., 698 A.2d at 967.

                                                   3
                                  I. BACKGROUND5

       A. Parties and Relevant Non-Parties

       Plaintiffs Oklahoma Firefighters Pension and Retirement System, Key West

Municipal Firefighters and Police Officers’ Retirement Trust Fund, Jeffrey Drowos,

Fireman’s Retirement System of St. Louis, and Esther Kogus are stockholders of

nominal defendant Citigroup, Inc., and they held stock at all times relevant to this

action.6

       Citigroup is a Delaware corporation headquartered in New York City.7

Citigroup maintains a complicated network of subsidiaries, but its business revolves

around two primary segments: Citicorp and Citi Holdings.8 Citicorp contains a

“regional customer banking and institutional clients group.”9               “Citi Holdings

consists of Citigroup’s brokerage and asset management and local consumer lending

businesses, and a special asset pool.”10 Citibank N.A. is Citigroup’s primary

depository subsidiary.11




5
  The facts, drawn from the Plaintiffs’ Complaint and from documents incorporated by reference
therein, are presumed true for purposes of evaluating the Defendants’ Motion to Dismiss.
6
  Compl. ¶¶ 12–14.
7
  Id. ¶ 15.
8
  Id.
9
  Id.
10
   Id.
11
   Id.

                                              4
       When the Plaintiffs filed their Complaint, Citigroup’s board had sixteen

directors, thirteen of whom are Defendants in this action.12 The thirteen directors

named as Defendants are Michael L. Corbat, Duncan P. Hennes, Franz B. Humer,

Eugene M. McQuade, Michael E. O’Neill, Gary M. Reiner, Judith Rodin, Anthony

M. Santomero, Joan Spero, Diana L. Taylor, William S. Thompson, Jr., James S.

Turley, and Ernesto Zedillo Ponce de Leon.13 These individuals began serving on

the Citigroup board at different times, and some of them have been members of

various board committees.14 Ten of them have also served on Citibank’s board.15

       The Defendants in this case also include former Citigroup directors.

Defendant Robert L. Joss served on the Citigroup board from 2009 to April 2014,

and he was a Citibank director from 2010 to 2014.16 Defendant Vikram S. Pandit

was a member of the Citigroup board from December 2007 to October 2012, during

which time he also served as Citigroup’s CEO.17 Defendant Richard D. Parsons was

a Citigroup director from 1996 to April 2012.18 Defendant Lawrence R. Ricciardi

served on Citigroup’s board from 2008 to April 2013, and he was a Citibank director




12
   Id. ¶ 16.
13
   Id.
14
   Id. ¶¶ 17–29.
15
   Id. ¶¶ 18–22, 24–26, 28–29.
16
   Id. ¶ 31.
17
   Id. ¶ 32.
18
   Id. ¶ 33.

                                        5
from 2009 to 2013.19 Defendant Robert L. Ryan was a Citigroup director from 2007

to April 2015; he served on Citibank’s board from 2009 to 2015.20

        The final set of Defendants consists of Citigroup officers. Corbat has been

Citigroup’s CEO since October 2012, and from December 2011 to October 2012, he

served as CEO of Citi Europe, Middle East, and Africa.21 From January 2009 to

December 2011, Corbat was the CEO of Citi Holdings.22 Defendant John P.

Davidson III has been Citigroup’s Chief Compliance Officer since September 23,

2013.23        From April 2008 to September 2013, he headed Enterprise Risk

Management at Citigroup, “a unit responsible for managing Citigroup’s operational

risk across businesses and geographies.”24      Defendant Bradford Hu has been

Citigroup’s Chief Risk Officer since January 2013.25 Defendant Brian Leach was

Citigroup’s Chief Risk Officer from March 2008 to January 2013, and he worked as

Citigroup’s Head of Franchise Risk and Strategy from January 2013 to April 2015.26

Since June 2015, Defendant Manuel Medina-Mora has served as the non-executive

chairman of the board of Grupo Financiero Banamex, S.A. de C.V. (the “Banamex




19
   Id. ¶ 34.
20
   Id. ¶ 35.
21
   Id. ¶ 17.
22
   Id.
23
   Id. ¶ 38.
24
   Id.
25
   Id. ¶ 39.
26
   Id. ¶ 40.

                                         6
Group”), a wholly owned, indirect Citigroup subsidiary.27 Before then, he held

various high-level positions at Citigroup.28             Defendant Kevin L. Thurm was

Citigroup’s Chief Compliance Office from 2011 to September 2013, and, as noted

above, Pandit was Citigroup’s CEO from December 2007 to October 2012.29

       B. Factual Overview30

       The Plaintiffs allege that the Defendants “consciously fail[ed] to develop,

implement, and enforce effective internal controls throughout [Citigroup], including

at its subsidiaries.”31 The Plaintiffs seek relief for harm Citigroup has suffered as a

result of four corporate traumas: “(1) pervasive violations of anti-money laundering

rules; (2) substantial fraud at Banamex[, a wholly owned subsidiary of the Banamex

Group]; (3) fraudulent manipulation of benchmark foreign exchange rates; and (4)

deceptive credit card practices.”32 I summarize the allegations relevant to each of

these corporate traumas below.




27
   Id. ¶¶ 41, 50.
28
   Id. ¶ 41.
29
   Id. ¶¶ 32, 43.
30
   The Complaint contains a seventeen-page discussion of Citigroup’s prior history of purported
oversight failures. Id. ¶¶ 58–98. This history reveals what the Plaintiffs describe as “a larger
pattern of compliance meltdowns[,] includ[ing, among other things]: hedge fund fraud; the
improper disclosure of confidential client information in connection with equity research
communications; inadequate insider trading oversight; misrepresentations concerning residential
mortgage-backed securities and improper lending practices; [and] the failure to turnover trading
records to the SEC over a period of fifteen years.” Id. ¶ 72. The interested reader may turn to the
Complaint for an elaboration of these incidents; I do not recount them here.
31
   Id. ¶ 58.
32
   Id. ¶ 59.

                                                7
                1. Compliance with Anti-Money Laundering Laws

                     a. The Regulatory Environment

        Citigroup and several of its subsidiaries are required to comply with an array

of federal laws and regulations addressing the issue of money laundering.33

According to the Complaint, the most important of these anti-money laundering

(“AML”) laws are the Bank Secrecy Act of 1970 (“BSA”) and various provisions of

the USA Patriot Act.34       Several federal and state agencies are charged with

administering these laws.35 At the federal level, the administering agencies include

the Federal Reserve System (“FRB”), the Office of the Comptroller of the Currency

(“OCC”), and the Federal Deposit Insurance Corporation (“FDIC”).36 At the state

level, they include the California Department of Business Oversight (“CDBO”).37

        The BSA imposes “mandatory reporting and record-keeping requirements to

track currency transactions and detect and prevent money laundering.”38 Likewise,

under the USA Patriot Act, financial institutions must “establish AML and customer

identification programs, and . . . conduct enhanced due diligence . . . for bank

accounts held by non-U.S. persons.”39 Banks must also compare their transactions



33
   Id. ¶ 106.
34
   Id.
35
   Id. ¶ 107.
36
   Id.
37
   Id.
38
   Id. ¶ 108.
39
   Id.

                                           8
and customers against sanctions lists kept by the Office of Foreign Asset Control

(“OFAC”).40 Generally speaking, the federal AML laws require every bank to

maintain a BSA/AML compliance program tailored to its risk profile.41

        The BSA’s implementing regulations impose more specific requirements on

financial institutions. Under those regulations, banks must maintain internal controls

designed to ensure continuing compliance, perform independent testing of

BSA/AML compliance, designate someone to serve as a BSA compliance officer,

and train relevant personnel.42 A bank’s internal BSA/AML controls must conform

to a bevy of regulatory requirements. For example, banks must “[p]rovide sufficient

controls and monitoring systems for timely detection and reporting of suspicious

activity,” “[i]dentify banking operations more vulnerable to abuse by money

launderers and criminals,” “[p]rovide for adequate supervision of employees that

handle [activities covered by the BSA],” and “provide for timely updates in response

to changes in regulations.”43 Moreover, each bank must file a Suspicious Activity

Report (“SAR”) when it identifies “(i) certain known or suspected violations of

federal law; (ii) suspicious transactions related to a money laundering activity; or

(iii) a violation of the BSA/AML.”44



40
   Id.
41
   Id. ¶ 109.
42
   Id. ¶ 110.
43
   Id. ¶ 112.
44
   Id. ¶ 113.

                                          9
       The USA Patriot Act’s implementing regulations require financial institutions

to develop a Customer Identification Program (“CIP”).45 The CIP must enable the

bank to verify the identities of its customers, and the program must be tailored to the

bank’s risk profile and size.46 The USA Patriot Act and its implementing regulations

further require banks to conduct “special due diligence for accounts requested or

maintained by, or on behalf of, foreign banks and non-U.S. persons.”47 Finally,

banks operating in the United States must comply with OFAC regulations, which

“require that U.S. financial institutions ensure that their business operations and

transactions do not violate U.S. economic and trade sanctions against entities such

as targeted foreign countries, terrorists, international narcotics traffickers, and those

engaged in activities related to the proliferation of weapons of mass destruction.”48

Every bank must adopt an OFAC compliance program that fits its size and risk

profile.49

                    b. The Alleged Compliance Failures

       The Plaintiffs allege that Citigroup and its subsidiaries have continually failed

to abide by BSA/AML laws and regulations.50 The compliance failures spanned

several years and persisted in the face of multiple consent orders stemming from


45
   Id. ¶ 115.
46
   Id. ¶¶ 115–16.
47
   Id. ¶ 117.
48
   Id. ¶ 120.
49
   Id. ¶ 122.
50
   Id. ¶ 125.

                                           10
federal and state investigations into Citigroup’s and its subsidiaries’ BSA/AML

practices.51 The end result, say the Plaintiffs, was that regulators were forced to fine

Citigroup $140 million for its BSA/AML compliance failures.52

       The Complaint identifies a number of red flags that supposedly should have

led the Defendants to improve Citigroup’s BSA/AML controls. According to the

Plaintiffs, if the Defendants had made the necessary improvements, Citigroup could

have avoided paying the $140 million fine.53 I summarize the purported red flags

and the responses to them from the Citigroup board and senior management.

       Citigroup and its subsidiaries face a high risk of AML violations for several

reasons. First, Citigroup is a global corporation, and many of the countries it

operates in pose a heightened risk of AML violations. For example, in January 2012,

the Citigroup Compliance Committee learned from management that “50% of the

countries in which Citigroup operates demonstrated a ‘high’ inherent geographic risk

for AML violations.”54 The Plaintiffs focus on Citigroup’s operations in Mexico, in

which “corrupt practices such as bribery and money laundering occur at a higher

frequency . . . than in many of the other countries in which Citigroup operates.” 55



51
   Id.
52
   Id. ¶ 170.
53
   See id. ¶¶ 408, 413 (“Indeed, Citigroup and its subsidiaries have already incurred tremendous
reputational and financial penalties resulting from the Defendants’ breaches including: i) $140
million in fines for failure to ensure compliance with applicable AML laws and regulations . . . .”).
54
   Id. ¶ 127.
55
   Id. ¶ 131.

                                                11
According to the Plaintiffs, Citigroup directors and senior management knew or

should have known that the “corrupt practices” common in Mexico would pose a

serious risk of money laundering at Citigroup subsidiaries operating in that

country.56 Those subsidiaries included Banamex, which Citigroup acquired in

2001.57 As part of that acquisition, Citigroup also bought Banamex USA (“BUSA”),

“which had numerous branches along the Mexican border and routinely engaged in

cross-border transactions.”58

        Second, Citigroup’s “inorganic[]” growth led to the absorption of “disparate

businesses with different and sometimes conflicting standards, systems, and

controls.”59 This potpourri of business lines created a heightened risk of AML

violations.60 Senior management and directors appear to have recognized this. For

example, in October 2009, management told the Audit and Risk Management

Committees that Citigroup’s AML compliance in North America “need[ed]

improvement.”61 And in January 2012, “management reported to the Citigroup

Compliance Committee that the Company was rated ‘medium high’ in the categories

of ‘inherent AML risk,’ ‘quality of AML controls,’ and ‘residual AML risk.’” 62



56
   Id. ¶ 135.
57
   Id. ¶ 132.
58
   Id. ¶¶ 132, 134.
59
   Id. ¶ 126.
60
   Id.
61
   Id. ¶ 127 (alteration in original).
62
   Id.

                                         12
These AML issues were ascribed to, among other things, Citigroup’s growing

presence in emerging markets, its failure to create centralized AML systems, and its

lack of consistent standards.63 Beginning in April 2012, Citigroup’s Internal Audit

(“IA”) team continually informed Citigroup board members of these risks.64

       All of this is background to the primary allegations about Citigroup’s

BSA/AML compliance issues.               The Plaintiffs’ focus is the Citigroup board’s

purportedly inadequate response to a regulatory order and several consent orders

issued by various government agencies. In July 2010, the OCC issued Citibank a

Part 30 order65 as a result of “serious compliance deficiencies in the bank’s

operations.”66 That order directed Citibank to improve its AML compliance in

several of its business lines.67          In particular, Citibank was asked to improve

“identification of high risk customers and of client relationships on a bank-wide

basis; . . . expan[d] . . . periodic customer reviews; and . . . optimiz[e] . . . automated

transaction monitoring systems.”68 Two years later, the OCC found that these

“[d]eficiencies were not properly and timely addressed.”69


63
   Id.
64
   Id. ¶ 128.
65
   A Part 30 order refers to an order issued under 12 C.F.R. § 30.2, which “establishes procedures
for requiring submission of a compliance plan and issuing an enforceable order pursuant to” the
law requiring the OCC “to establish safety and soundness standards.”
66
   Compl. ¶ 143.
67
   Id.
68
   Id.
69
   Id. (alteration in original). The Plaintiffs refer to an April 17, 2012 board meeting at which the
directors learned that “Citigroup’s 2011 overall compliance risk rating was ‘medium-high’ and

                                                13
       As a result of Citibank’s failure to obey the Part 30 order, the OCC issued a

consent order on April 5, 2012.70 The consent order “castigated Citibank for its

AML program deficiencies,” noting several “internal control weaknesses.”71 The

OCC identified weaknesses in Citibank’s monitoring of client relationships, its

customer due diligence processes, and the “scope and documentation of the

validation and optimization process applied to the automated transaction monitoring

system.”72 Among other things, the consent order required Citibank to implement a

“BSA/AML Action Plan” and to improve its customer due diligence practices.73 The

OCC made clear that Citibank’s board was ultimately responsible for ensuring the

bank’s compliance with the consent order.74

       According to the Complaint, even after the April 2012 consent order was

issued, “directors and senior management stood idly by with respect to AML

compliance.”75 In the months following entry of the consent order, Citigroup board

members received several warnings about AML issues. For example, in July 2012,

IA told the Compliance Committee that there was “[i]nadequate AML control,




that its AML Risk Assessment was also ‘medium-high.’” Id. ¶ 286. Yet they fail to mention that
at the same meeting, the directors were also told that “28 of the 35 [Part 30] milestones were
completed during 1Q 2012.” Leavengood Aff. Ex. 3 at 11.
70
   Compl. ¶ 144.
71
   Id. ¶¶ 144–45.
72
   Id. ¶ 145.
73
   Id. ¶ 146.
74
   Id.
75
   Id. ¶ 151.

                                             14
governance, and oversight” at Banamex and BUSA.76 That same month, the Audit

Committee learned that AML risk was increasing.77 Documents incorporated by

reference in the Complaint make clear, however, that the Citigroup board took action

in response to the problems revealed by the first consent order. To take just one

example, at an April 17, 2012 Citigroup board meeting, directors learned that “the

Compliance Committees [had] received a presentation from the AML Monitoring

Team, including efforts to improve the quality and integrity of the data feeding . . .

Citibank’s AML monitoring platforms.”78 Directors were also told at this meeting

that “the Compliance Committees directed [IA] to provide a country-by-country

AML assessment.”79

       Despite these efforts, on August 2, 2012, BUSA entered into a consent order

with the FDIC and the California Department of Financial Institutions (“CDFI”).80

The consent order required BUSA’s board to “‘develop, adopt, and implement an

updated written compliance program’ that would be designed to ‘ensure and

maintain compliance’ with the BSA.”81 BUSA was also ordered to hire a BSA

compliance officer and enough staff to monitor compliance with the BSA.82 The



76
   Id. ¶ 150 (alteration in original) (emphasis omitted).
77
   Id.
78
   Leavengood Aff. Ex. 3 at 12.
79
   Id.
80
   Compl. ¶ 151.
81
   Id. ¶ 152 (footnote omitted).
82
   Id.

                                                 15
Plaintiffs allege that “[t]he Citigroup Board was aware of the FDIC/CDFI Consent

Order no later than October 2012, when Joss[, the chair of the Compliance

Committee at the time,] discussed the consent order with the Citigroup, Citibank,

and Citicorp boards.”83

       The Plaintiffs allege that the entry of the second consent order failed to prompt

action from the Defendants, “leav[ing] [Citigroup] and its subsidiaries vulnerable to

AML violations.”84 The Plaintiffs point out that in September and October 2012, IA

found that “BUSA’s control environment remained ‘unsatisfactory.’”85 In October

and November 2012, the FDIC and CDFI conducted an on-site visit of BUSA, and

they concluded that since the entry of the August 2012 consent order, “BUSA had

made inadequate progress on AML/BSA compliance.”86 And in early 2013, the

AML control environment “retained a ‘limited assurance’ rating, while the ‘overall

effectiveness of controls over affiliate transactions’ at BUSA received an

‘insufficient assurance’ rating.”87

       Again, however, documents incorporated by reference in the Complaint reveal

that the Citigroup board took action in response to continuing AML issues. For

instance, when the Citigroup board met on December 12, 2012, the directors learned



83
   Id. ¶ 151.
84
   Id. ¶ 154.
85
   Id. ¶¶ 155–56.
86
   Id. ¶ 157.
87
   Id. ¶ 158.

                                          16
that management had taken “proactive efforts concerning AML issues, [and] that

management’s current areas of focus include the Consumer North America high risk

account re-remediation; expired customer due diligence documentation; migration

programs in Mexico; . . . and broader structural issues.”88 At the same meeting, the

board also learned of “continued progress on OCC commitments and business

priorities, including creating and implementing a global governance structure and

framework and short-term tactical project execution.”89

       Nevertheless, on March 21, 2013, yet another consent order was issued, this

time by the FRB.90 Unlike the two consent orders discussed above, this one

addressed Citigroup’s role in ensuring that its subsidiaries achieved compliance.91

The FRB found that “Citigroup lacked effective systems of governance and internal

controls to adequately oversee the activities of the Banks.”92 Under the FRB consent

order, Citigroup was required to ensure firmwide compliance, and to “implement a

firmwide compliance risk management program.”93 The consent order also required


88
   Leavengood Aff. Ex. 4 at 7. The Complaint quotes from the minutes of this meeting. Compl. ¶
287. Specifically, the Complaint notes that “‘federal and state regulators . . . emphasized that they
had expected more progress against the implementation of many of the enhanced or newly
developed plans and programs’ following the FDIC/CDFI Consent Order.” Id. (alteration in
original). The use of ellipses here is telling. The Complaint omits to mention that “federal and
state regulators acknowledged BUSA’s efforts.” Leavengood Aff. Ex. 4 at 7 (emphasis added).
The Complaint also fails to include the next part of that sentence, which reveals that “BUSA
expects to submit a revised plan that aligns with the examiners’ expectations.” Id.
89
   Leavengood Aff. Ex. 4 at 7.
90
   Compl. ¶ 159.
91
   Id.
92
   Id. (emphasis omitted). “Banks” refers to Citibank and BUSA. Id. ¶ 160 n.48.
93
   Id. ¶ 159.

                                                17
the Citigroup board itself to “review [Citigroup’s] firmwide BSA/AML compliance

program and, based on its findings, submit to the FRB a plan to ‘strengthen the

management and oversight’ of the compliance program.”94

        The Complaint next focuses on the approximately two-year period between

the entry of the FRB consent order and the imposition of the $140 million fine. The

Plaintiffs allege that during this period, “Citigroup’s Board failed to respond

meaningfully and in good faith to the misconduct that attracted so much regulatory

scrutiny, ultimately leading to the imposition of [the] fine.”95 The Plaintiffs cite

several reports from IA to the Citigroup board and its committees.96 In those reports,

IA revealed that “BUSA’s BSA/AML controls, risk management controls, and

oversight procedures were deficient.”97 A few examples illustrate the tenor of these

reports. In an April 2013 report to the Audit and Compliance Committees, IA noted

that “BUSA’s AML control environment earned an ‘insufficient assurance’ rating,

with increasing risk of violations ‘due to poor risk management, failures in control

design and execution, and inadequate management oversight.’”98 In July and August

2013, IA told the Audit Committee that BUSA was “‘substantially non-compliant’

with the FDIC Consent Order.”99 And about nine months later, IA reported that


94
   Id. ¶ 161.
95
   Id. ¶ 162.
96
   Id. ¶ 163.
97
   Id.
98
   Id.
99
   Id.

                                         18
“significant weaknesses continue to exist in AML.”100 In sum, IA put out twenty-

two reports in which “BUSA’s AML programs were given an ‘insufficient

assurance’ rating between February 2013 and April 2015.”101

       The picture painted in the Complaint is indeed one of a board that “sat like

stones growing moss” in the face of clear warnings about persistent AML issues.102

But the documents incorporated by reference in the Complaint belie this narrative.

For example, about one month after entry of the FRB consent order, the Citigroup

board, along with the Citibank and Citicorp boards, learned that “management was

preparing an action plan [in response to the FRB consent order] and will meet with

the FRB’s staff to better understand its expectations.”103 The Citigroup board was

also informed that “management reported progress on . . . de-risking, enhancing

controls, strengthening governance and OCC commitments and business

priorities.”104 And, as to BUSA, the board was told that management planned to

“de-risk the business, close money services businesses and close eight branches

along the US-Mexican border.”105       Later, in September 2013, the Citigroup,

Citibank, and Citicorp boards learned that outside counsel had reviewed BUSA’s

operations and that “employee terminations” had been undertaken as part of the


100
    Id.
101
    Id. ¶ 302.
102
    Id. ¶ 9.
103
    Leavengood Aff. Ex. 6 at 19.
104
    Id.
105
    Leavengood Aff. Ex. 6 at 24.

                                        19
compliance effort.106 At this meeting, members of the three boards “directed

questions to management about BUSA, including personnel changes and prior

regulatory reviews.”107

       The Citigroup board received additional updates about AML compliance in

December 2013. Specifically, the board learned that the Citigroup and Citibank

Compliance Committees were “focus[ed] on whether management is embracing

AML controls.”108 The board was told that “the AML surveillance process reviews

2.8 billion transactions per month, flags about 200,000 matters each month and that

about 150,000 of these matters are subject to further review by analysts.” 109 About

one year later, in January 2015, the Citigroup board was informed that, while the

“aggregate risk rating for AML is High,” “the aggregate risk trend is decreasing due

to de-risking of certain high-risk client types, businesses, and geographies, in

combination with ongoing improvements to the control environment.”110 Moreover,

the board learned that two products “identified as having inherently higher levels of

AML risk” demonstrated “decreasing risk trends.”111

       Citigroup’s efforts were ultimately unavailing. On July 22, 2015, “the FDIC

‘announced the assessment of a civil money penalty of $140 million against


106
    Leavengood Aff. Ex. 13 at 8.
107
    Id.
108
    Leavengood Aff. Ex. 14 at 16.
109
    Id.
110
    Leavengood Aff. Ex. 11 at 5.
111
    Id.

                                         20
Banamex USA . . . for violations of the Bank Secrecy Act . . . and anti-money

laundering . . . laws and regulations.’”112 The FDIC found that BUSA had

        failed to implement an effective BSA/AML Compliance Program over
        an extended period of time. The institution failed to retain a qualified
        and knowledgeable BSA officer and sufficient staff, maintain adequate
        internal controls reasonably designed to detect and report illicit
        financial transactions and other suspicious activities, provide sufficient
        BSA training, and conduct effective independent testing.113

For its part, the CDBO imposed a $40 million fine on BUSA, citing “new, substantial

violations of the BSA and anti-money laundering mandates over an extended period

of time.”114 The FDIC fine was satisfied in part by the CDBO fine.115 On the same

day that these fines were announced, Citigroup announced its decision to close

BUSA.116 But BUSA “remains subject to a number of investigations, including a

criminal investigation by the U.S. Department of Justice and an investigation by the

Treasury Department’s Financial Crimes Enforcement Network.”117

                2. Accounts Receivable Fraud at Banamex

        The Plaintiffs allege that lack of oversight and inadequate internal controls

caused Banamex to become the victim of a massive accounts receivable fraud.118

Citigroup lost over $400 million as a result of the fraud, which took the following


112
    Compl. ¶ 164 (first alteration in original).
113
    Id. ¶ 166.
114
    Id. ¶ 165.
115
    Id. ¶ 165 n.52.
116
    Id. ¶ 167.
117
    Id.
118
    Id. ¶ 171.

                                                   21
form.119 Oceanografia S.A. de C.V. (“OSA”), a Mexican oil services company,

borrowed a total of approximately $585 million from Banamex.120 The loans were

secured by accounts receivable submitted by OSA.121            OSA, in turn, was an

important supplier to Pemex, a state-owned Mexican oil company.122 Many of

Banamex’s loans to OSA were secured by accounts receivable reflecting payments

Pemex owed to OSA.123 The problem was that most of these accounts receivable

were fraudulent.124 The fraud, which came to light in February 2014, wiped out 19%

of Banamex’s banking profits for 2013.125 And in October 2014, Mexico’s banking

regulator fined Banamex $2.5 million after determining that “the fraud resulted from

weaknesses in Banamex’s internal controls, errors in its loan origination and

administration procedures, and deficiencies relating to risk administration and

internal audits.”126 I turn now to the purported red flags related to this fraud and the

response to them.

       According to the Plaintiffs, Citigroup and its subsidiaries failed to implement

adequate “maker/checker controls” or properly segregate duties.127 Maker/checker



119
    Id.
120
    Id. ¶ 199.
121
    Id.
122
    Id. ¶ 200.
123
    Id. ¶¶ 200, 206.
124
    Id. ¶ 207.
125
    Id. ¶¶ 207–08.
126
    Id. ¶¶ 173, 217.
127
    Id. ¶ 174.

                                          22
controls are designed to reduce the likelihood of misconduct “by preventing too

much authority from being centralized in single individuals or positions.”128

Segregation of duties is meant to achieve the same goal.129 The Defendants knew

that maker/checker controls were not strong in Mexico, and in September 2013,

management told the Audit Committees about “the failure to enforce the separation

of duties in Mexico.”130 Later, IA revealed in its 2013 year-end review that “a fraud

within the treasury and trade business . . . ‘re-enforce[d] the need for attention to key

maker-checker controls and oversight of manual processes.’”131 The Plaintiffs

concede that Citigroup management developed “Project Andes,” an initiative to

improve segregation of duties and to address issues in the maker/checker process.132

But the Plaintiffs fault Citigroup for failing to consider “expanding Project Andes to

retail banks until after the OSA fraud.”133

       The Plaintiffs next point to a series of fraud-related incidents at Citigroup and

its subsidiaries that supposedly should have warned the board of “significant issues

concerning fraud detection and prevention.”134                  In one incident, “a Citigroup



128
    Id.
129
    Id.
130
    Id. ¶ 175.
131
    Id. (second alteration in original).
132
    Id. ¶ 176.
133
    Id. (emphasis omitted).
134
    Id. ¶ 181. The Plaintiffs suggest that these incidents were caused in part by “the failure to align
subsidiaries’ technology systems (including those of Banamex) with the rest of Citigroup.” Id. ¶
178.

                                                 23
Treasury Finance employee fraudulently transferred $25 million to his own personal

bank account.”135 In a July 18, 2011 meeting, the Audit Committee learned that the

fraud stemmed from “a ‘poor control environment,’ ‘inadequate supervision and

review,’ and insufficient review of manual transactions.”136 The next spring, the

Audit Committee was told that “five Banamex employees had accepted at least 16

million Mexico pesos . . . in kickbacks as part of [a] scheme” with several Banamex

vendors.137 Again, inadequate controls were to blame.138 In 2013, management

discovered that a Banamex bond trader had fraudulently concealed trading losses by

deferring loss recognition and manipulating trades.139 In March 2014, the Audit

Committee learned that thirty-seven Banamex employees had been selling

confidential credit card customer information.140 And in October 2014, Citigroup

announced that a Banamex security unit had been engaging in several nefarious

activities for almost fifteen years, including “recording phone calls without

authorization; fraudulently misreporting gas expenses in order to increase the

reimbursements [members of the unit] received from Banamex; developing shell




135
    Id. ¶ 182.
136
    Id.
137
    Id. ¶ 183.
138
    Id.
139
    Id. ¶ 184.
140
    Id. ¶ 185.

                                        24
companies to launder proceeds; and receiving kickbacks from vendors who

overcharged Banamex.”141

       Banamex’s brokerage unit, Accival, also fell victim to a fraud committed by

one of its employees.142             In this scheme, an Accival operations manager

“fraudulently transferred funds from an Accival account to a private customer

account using foreign exchange . . . transactions.”143 Accival lost approximately

$6.9 million in the fraudulent transfers.144 IA later told the Audit Committee that

the fraud stemmed from “[k]ey control weaknesses related to segregation of duties

and maker/checker controls.”145

       A more salient purported red flag was the Mexican homebuilders fraud, which

involved fraudulent collateral.146 Banamex developed a product that resembled a

revolving loan facility.147 Banamex extended credit to homebuilders who, in turn,

transferred properties to a trust.148 Those properties served as collateral for the loan

facility.149 When the homebuilders sold the homes they built, “they were required

to deposit the proceeds of the sale into the trust, and the proceeds would be



141
    Id. ¶ 186.
142
    Id. ¶ 187.
143
    Id.
144
    Id.
145
    Id. ¶ 189 (alteration in original) (emphasis omitted).
146
    Id. ¶ 190.
147
    Id. ¶ 191.
148
    Id.
149
    Id.

                                                 25
redistributed primarily to Banamex as repayment for the loan.”150 Unfortunately,

many of the homebuilders did not deposit the proceeds of their sales into the trust,

and some “overstated the value of the collateral against which Banamex made its

loans.”151 Citigroup lost between $75 million and $85 million as a result of the fraud,

which management attributed to “design and execution deficiencies in the

management of collateral.”152 Management also told the Citigroup board that it

would conduct “a global, end-to-end assessment of Citi’s management effectiveness

with respect to secured lending and collateral management, as well as a review of

Banamex’s overall collateral framework, in order to identify potential gaps and the

actions necessary to remediate control deficiencies.”153

       According to the Plaintiffs, if the Defendants had heeded the warnings

contained in the events just described, the OSA accounts receivable fraud could have

been avoided. And, the Plaintiffs suggest, there were red flags about OSA itself.

The Plaintiffs complain that Banamex decided to extend more credit to OSA under

the receivables program even though “it had been apparent for several years that

OSA was a troubled company.”154 For example, in 2005, Mexican regulators learned




150
    Id.
151
    Id. ¶ 193.
152
    Id. ¶¶ 193–194 (emphasis omitted).
153
    Leavengood Aff. Ex. 13 at 5.
154
    Compl. ¶ 201.

                                          26
that OSA had obtained a $27 million loan by submitting phony Pemex paperwork.155

And in 2009, Fitch, the ratings agency, highlighted OSA’s “high leverage and poor

cash flow.”156 Fitch eventually refused to provide any rating for OSA because OSA

failed to give Fitch enough information, which the Plaintiffs describe as “a telltale

sign of potential wrongdoing.”157

       Despite the problems at OSA, Banamex extended so much credit to the

“troubled company” that “by 2012, Banamex’s loans to OSA constituted nearly half

of OSA’s revenue.”158 Banamex loosened its lending procedures to make this

happen. For example, at some point it ceased “contacting Pemex to verify the

receipts submitted by OSA as the bases for its credit.”159 Citigroup management

later suggested that this was unusual among accounts receivable programs, in which

invoices used as collateral are typically reconciled.160 These risky practices were

possible because “Citi’s Board had not implemented basic controls and legal

compliance mechanisms.”161 Moreover, while Banamex was being defrauded, IA

failed to perform an audit to determine whether “the OSA/Pemex program ‘was


155
    Id. The Complaint does not say whether this information was ever conveyed to anyone at
Citigroup.
156
    Id. ¶ 202.
157
    Id.
158
    Id. ¶ 203.
159
    Id. ¶ 204; see also id. ¶ 208 (“Although the funds loaned to OSA constituted the largest accounts
receivable financing program at Banamex, no verification was performed regarding the quality of
the receivables, and ‘loans were made based on statements of individuals.’”).
160
    Id. ¶ 208.
161
    Id. ¶ 205.

                                                27
appropriately classified as a buyer centric or seller centric program.’” 162 As noted

above, Citigroup lost over $400 million in the accounts receivable fraud, and

Mexico’s banking regulator fined Banamex $2.5 million for allowing the fraud to

occur.163 The Securities and Exchange Commission and the Mexican Attorney

General later announced investigations into the fraud.164

               3. Foreign Exchange Rate Manipulation

       The next corporate trauma for which the Plaintiffs seek relief involves foreign

exchange (“FX”) rate manipulation on the part of Citigroup traders. From at least

2007 to at least 2013, Citigroup FX traders colluded with traders at other firms to

manipulate FX benchmark rates, triggered customer stop loss orders,165 and

increased profits by sharing confidential client information with traders at other

firms.166

       These Citigroup traders manipulated two widely used FX benchmark rates—

the 4:00 pm WM Reuters fix and the 1:15 European Central Bank fix—by

“exchang[ing] details relating to their net currency orders and related future fixes


162
    Id. ¶ 210. The Plaintiffs concede that “an internal audit was conducted in November 2013 of
the supply finance program generally,” but they note that “the OSA/Pemex relationship was
completely excluded from the audit.” Id.
163
    Id. ¶¶ 173, 215, 217. Mexico’s banking regulator also issued a corrective action plan, and
Banamex was fined an unspecified amount in May 2015 for failing to comply with the terms of
that plan. Id. ¶ 218.
164
    Id. ¶ 219.
165
    “A stop loss order is an instruction from a client to trade currency if the currency reaches a
specified rate.” Id. ¶ 228.
166
    Id. ¶ 226.

                                               28
with FX traders at other banks to coordinate trading strategies.”167                        The

communications at issue occurred in “private electronic chat rooms.”168 Citigroup

FX traders also shared clients’ instructions about stop loss orders with “traders at

other firms to manipulate the FX spot rate and ultimately to set off clients’ stop loss

orders.”169 Citigroup profited from this manipulation “because FX Traders could

take advantage of the difference between the rate at which they purchased a

particular currency and the rate at which they sold to a client pursuant to a stop loss

order.”170 And Citigroup FX traders revealed the identities of certain clients to

traders at other firms in furtherance of their “collusive trading activity.”171 Citigroup

ultimately paid $2.2 billion in fines as a result of these activities, and Citicorp

pleaded guilty to conspiracy to violate federal antitrust laws.172

       The Plaintiffs point to several purported red flags that they say should have

alerted the Defendants to the compliance threat posed by FX benchmark

manipulation and collusive trading. In 2009, the Audit and Risk Management

Committee learned that “the current ‘market turbulence increases operational risk



167
    Id. ¶ 227.
168
    Id.
169
    Id. ¶ 228.
170
    Id.
171
    Id. ¶ 229. The Plaintiffs also allege that “Citigroup FX Traders and salespeople added ‘sales
markup, through the use of live hand signals or undisclosed prior internal arrangements or
communications, to prices given to customers that communicated with sales staff on open phone
lines.’” Id. ¶ 230.
172
    Id. ¶¶ 222, 233.

                                               29
significantly.’”173 And in August 2011, “Citi became aware that a trader in its FX

business outside London had inappropriately shared confidential client information

in a chat room with a trader at another firm.”174 This trader was fired, and “reminders

were given to Citi employees about the need to maintain client confidentiality.” 175

Later, in April 2013, IA told the Audit Committee that “FX transaction execution

maker/checker controls and post transaction reviews require improvement.”176 The

Plaintiffs omit the portion of this IA report that describes the remedial actions to be

taken, including “[c]lear definition of FX execution mandates in terms of transaction

size, products, tenors, currencies, and approvals.”177

       According to the Plaintiffs, another red flag appeared back in 2001, when

Citigroup itself helped draft the industry standards governing good practices in FX

trading.178    Those standards stated, among other things, that “[m]anipulative

practices by banks with each other or with clients constitute unacceptable trading




173
    Id. ¶ 247 (emphasis omitted). The report in which this remark appears does not specifically
discuss FX-related issues, referring instead to “Madoff, large rogue trading losses at other firms,”
“mark manipulation, issuer/borrower fraud, [and] embezzlement.” Leavengood Aff. Ex. 16 at
CITI018447.
174
    Compl. ¶ 248. The Complaint does not allege that this information was ever brought to the
Citigroup board’s attention. The same is true for the allegation that “several front office managers
were aware of and/or involved in the FX misconduct as early as March 2010, but the misconduct
persisted for years.” Id. (footnote omitted).
175
    Leavengood Aff. Ex. 15 at 15.
176
    Compl. ¶ 249.
177
    Leavengood Aff. Ex. 17 at CITI024853. The remedial action had a “final target completion
date” of June 2013. Id.
178
    Compl. ¶ 250.

                                                30
behavior.”179 The Plaintiffs do not say, however, whether any of the Defendants

played a role in formulating (or were even aware of) these standards. The same gap

exists in the Plaintiffs’ allegation that “Citigroup’s oversight failures leading to the

FX-related misconduct occurred in the midst of the LIBOR rate-fixing scandals that

resulted in criminal investigations and monetary penalties against other firms.”180

       Despite these supposed red flags, the FX manipulation scheme continued,

eventually costing Citigroup billions of dollars in fines. On November 11, 2014, the

Commodity Futures Trading Commission (“CFTC”) sanctioned Citibank for

violations of the Commodity Exchange Act and CFTC regulations.181 According to

the CFTC, when the fraud took place, Citibank knew of “related attempts by banks

‘to manipulate the London Interbank Offered Rate [“LIBOR”] and other interest rate

benchmarks’; yet, the FX manipulation proceeded without detection because of

‘internal control and supervisory failures’ at Citibank.”182 The CFTC imposed a

$310 million fine and issued a consent order requiring the bank to improve its

internal controls.183 That same day, the OCC issued its own consent order, in which



179
    Id. ¶ 250 (emphasis omitted).
180
    Id. ¶ 252 (emphasis added). The Plaintiffs also allege that the Risk Management and Finance
Committee learned in 2011 that “a trader at UBS had engaged in fraudulent trading, ultimately
costing UBS $2 billion.” Id. ¶ 252 n.110. And the Plaintiffs allege that “Citigroup was itself
subject to an investigatory probe concerning LIBOR” when the FX-related misconduct took place.
Id. ¶ 323.
181
    Id. ¶ 235.
182
    Id.
183
    Id.

                                              31
it “identified ‘deficiencies and unsafe or unsound practices related to [Citibank’s]

wholesale foreign exchange business.’”184 The OCC, for its part, fined Citibank

$350 million.185 On the same day that these two consent orders were entered, the

United Kingdom’s Financial Conduct Authority (“FCA”) issued a “Final Notice”

finding that Citibank had “‘fail[ed] to take reasonable care to organize and control

its affairs responsibly and effectively with adequate risk management systems’ in

connection with FX trading manipulation.”186 The FCA also found that Citibank

knew of oversight issues at other firms related to LIBOR enforcement actions, and

it levied a fine of approximately $358 million.187

        Several months later, on May 20, 2015, Citicorp entered the guilty plea

mentioned above.188 The plea agreement stated that Citicorp had participated in a

“combination and conspiracy to fix, stabilize, maintain, increase or decrease the

price of, and rig bids and offers for, the euro/U.S. dollar . . . currency pair exchanged

in the foreign currency exchange spot market . . . in violation of the Sherman

Antitrust Act.”189 Citicorp paid a $925 million criminal fine, and it was put on

probation for three years.190 And on the same day that Citicorp pleaded guilty to



184
    Id. ¶ 236.
185
    Id.
186
    Id. ¶ 237.
187
    Id.
188
    Id. ¶ 233.
189
    Id. (second alteration in original).
190
    Id.

                                           32
antitrust violations, Citigroup entered a consent order with the FRB, which fined

Citigroup $342 million after determining that, “[a]s a result of deficient policies and

procedures . . . Citigroup engaged in unsafe and unsound banking practices.”191

There has also been “significant private litigation against Citigroup” stemming from

its antitrust violations, and Citigroup is now being investigated by the Korea Fair

Trade Commission in connection with FX manipulation.192

        As noted above, the regulators that investigated Citigroup’s FX trading

practices found that “Citigroup and its subsidiaries did not have sufficient measures

in place to exercise satisfactory control over the FX spot trading business.”193 To

take just one example, the FRB noted that Citigroup

        lacked adequate firm-wide governance, risk management, compliance
        and audit policies and procedures to ensure that the firm’s Covered FX
        Activities conducted at Citigroup complied with safe and sound
        banking practices, applicable U.S. laws and regulations, including
        policies and procedures to prevent potential violations of the U.S.
        commodities, antitrust and criminal fraud laws, and applicable internal
        policies.194

The Plaintiffs conclude from these findings that the Defendants failed to exercise

appropriate oversight and maintain effective controls.195




191
    Id. ¶ 238 (alterations in original).
192
    Id. ¶ 239.
193
    Id. ¶ 240.
194
    Id. (emphasis omitted).
195
    Id. ¶ 245.

                                           33
              4. Unlawful Credit Card Practices

       The final corporate trauma for which the Plaintiffs seek relief relates to a

variety of unlawful credit card practices engaged in by Citigroup subsidiaries from

at least 2000 to at least 2013.196 The subsidiaries in question were Citibank, Citicorp

Credit Services, Inc. (“CCSI”), and Department Stores National Bank (“DSNB”).197

Broadly speaking, these subsidiaries deceived millions of consumers into purchasing

or keeping credit card “add-on products (i) relating to services that they did not

receive, (ii) for which they did not give their informed and affirmative enrollment

consent, (iii) that they did not know they could refuse, and/or (iv) that were not in

their best financial interest.”198 As a result of this unlawful conduct, on July 20,

2015, the Consumer Financial Protection Bureau (“CFPB”) imposed a $35 million

fine on Citibank and ordered it to pay $700 million in restitution to the victims of

the deceptive practices.199 The OCC levied a separate fine of $35 million.200

       The Complaint describes the unlawful credit card practices in some detail; I

offer only a brief summary of their salient characteristics. One component of these

practices was to misrepresent the terms of various optional additions to credit cards,

which included “identity monitoring, debt protection, and identity theft


196
    Id. ¶ 254. The unlawful practices stopped around February 2013. Leavengood Aff. Ex. 21 at
2–4.
197
    Compl. ¶ 255.
198
    Id. ¶ 254.
199
    Id. ¶ 253.
200
    Id. ¶¶ 253, 270–71.

                                             34
reimbursement services.”201 Another aspect of the unlawful practices was to bill

customers for add-ons that they never received.202          And sometimes customer

authorization was never secured for add-ons or “was obtained only after the[

Citigroup subsidiaries] began charging for the services.”203             The Citigroup

subsidiaries at issue also “engaged in improper consumer retention practices,” for

example by “misrepresent[ing] the benefits of various services or omit[ing] the terms

or limitations thereof” when consumers sought to cancel the services. 204 Finally,

DSNB, which let customers “apply for credit cards via ‘pin pad’ offer screens at

retail stores like Macy’s,” “deceptively made it appear that enrollment in . . .

additional services was a condition to obtaining the credit card.”205

       The Plaintiffs point to a variety of purported red flags related to these unlawful

practices.    In July 2011, IA informed the Audit Committee that the control

environment for credit cards needed improvement.206 At the same meeting, the

Audit Committee learned that “action will be taken through training and systems

changes and the corrective action plans would be discussed and agreed with the

OCC.”207 The next month, the West Virginia Attorney General sued Citigroup for



201
    Id. ¶ 256.
202
    Id.
203
    Id. ¶ 257.
204
    Id. ¶ 261.
205
    Id. ¶ 262.
206
    Id. ¶ 264.
207
    Leavengood Aff. Ex. 24 at 3.

                                           35
deceptive practices it employed in marketing credit card protection programs,

alleging that those practices violated the state’s Consumer Credit and Protection

Act.208 Citigroup settled the charges about two years later for $1.95 million.209

Further red flags allegedly appeared in January 2012, when the Citibank and

Citigroup Audit Committees received a memorandum describing the “‘Retail

Partners Cards Governance’ controls . . . as medium-high risk.”210 Later, in October

2012, the Audit Committees learned that “the CFPB and FDIC were taking action

against competitors Discovery and American Express, requiring hundreds of

millions of dollars in restitution and penalties relating to the sales of add-on

products.”211

       Citigroup itself became the subject of investigation for unlawful credit card

practices. The Citigroup and Citibank Audit Committees learned in April 2013 that

the FCA had conducted an investigation and found that “add-on Payment Protection

Insurance . . . products from U.K. insurance company Card Protection Plan Ltd. . . .

, which were sold by a wholly owned subsidiary of Citigroup from 2000 to 2011,

were ‘fundamentally flawed’ and ‘missold.’”212 But the Complaint also alleges that


208
    Compl. ¶ 265.
209
    Id.
210
    Id. ¶ 266.
211
    Id.
212
    Id. ¶ 267 (footnote omitted). The Plaintiffs also allege that “in 2009, the Australia Securities
and Investments Commission . . . was engaged in an investigation concerning the sale of credit
insurance for credit cards and the conduct of call center employees.” Id. ¶ 333. The Audit and
Risk Management Committees learned that a fine may be imposed for such conduct. Id.

                                                36
in the wake of the FCA’s investigation, “Citigroup . . . joined a customer remediation

program involving 13 other financial institutions.”213 A month earlier, in March

2013, IA had told the Citigroup and Citibank boards that Citigroup’s consumer

compliance rating was downgraded because of “‘significant deficiencies in controls

over third party vendors’ relating to identify theft and other fee-based products.”214

And, in October 2013, IA reported to the Audit Committees that there were “fifty-

four control issues relating to the card services provided for the Macy’s accounts[,

which were handled by DSNB, the entity responsible for distributing credit cards for

private account labels].”215 Three months later, IA was still telling the Audit

Committee that there were several “ineffective controls in place to mitigate risks

across Credit Granting, Customer Service, Fraud Management, Collections, and

Technology.”216

       As noted above, on July 20, 2015, the CFPB and the OCC issued consent

orders against the offending Citigroup subsidiaries.217 As with the FX benchmark

manipulation outlined above, the regulators found that these Citigroup subsidiaries



213
    Id. ¶ 339.
214
    Id. ¶ 268.
215
    Id. ¶ 269 (emphasis omitted). Not mentioned in the Complaint is that the Audit Committees
also learned that “corrective actions [would] include awareness training and improved controls and
procedures.” Leavengood Aff. Ex. 28 at 5. Nor does the Complaint mention that those
“Committees emphasized the seriousness of the findings and commended IA for the vigor of the
review and the level of detail.” Id.
216
    Compl. ¶ 269.
217
    Id. ¶ 270.

                                               37
“failed to enact adequate controls to ensure that their add-on credit businesses

conformed to applicable consumer protection laws and regulations.”218 The OCC

and the CFPB stressed that the Citigroup board bore the ultimate responsibility for

ensuring that its subsidiaries complied with consumer financial laws.219

       C. Procedural History

       Before the Plaintiffs initiated this litigation, they sought books and records

from Citigroup under 8 Del. C. § 220.220 After facing resistance from Citigroup, the

Plaintiffs pursued two separate Section 220 actions and obtained the documents that

form the basis of the allegations in their Complaint.221

       The Plaintiffs filed their initial Complaint on March 30, 2016, and they filed

a supplemental Complaint on April 14, 2016. After the Defendants moved to

dismiss, the Plaintiffs amended their Complaint and filed the operative pleading in

this case on August 15, 2016. The Complaint contains three counts. Count I is

brought against both the current and former Citigroup directors who are named as

Defendants in this case, and it alleges that they breached their fiduciary duties by

failing to exercise appropriate oversight over Citigroup.222 Count II is asserted

against the Citigroup officers named as Defendants in this action, and it similarly



218
    Id. ¶ 272.
219
    Id. ¶ 275.
220
    Id. ¶ 7.
221
    Id. ¶¶ 100–04.
222
    Id. ¶¶ 404–09.

                                          38
alleges that they breached their fiduciary duties by failing to adequately monitor and

oversee Citigroup.223 Count III is a waste claim that the Plaintiffs have since

voluntarily withdrawn.224

       The Defendants moved to dismiss the Complaint on September 30, 2016.

They argue primarily that the Complaint fails to adequately allege demand futility

as to any of the four corporate traumas described above. I held oral argument on the

Defendants’ Motion on July 20, 2017, after which the parties submitted

supplemental briefing on the red flags alleged in the Complaint and the Citigroup

board’s response to them.

                                        II. ANALYSIS

       As just noted, the Defendants seek dismissal of the Complaint under Court of

Chancery Rule 23.1 for failure to make a demand.225 The demand requirement is an

extension of the fundamental principle that “directors, rather than shareholders,

manage the business and affairs of the corporation.”226 Directors’ control over a

corporation embraces the disposition of its assets, including its choses in action.

Thus, under Rule 23.1, a derivative plaintiff must “allege with particularity the

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


223
    Id. ¶¶ 410–14. The parties have agreed to dismiss John P. Davidson III, Bradford Hu, and
Kevin L. Thurm from this case.
224
    Id. ¶¶ 415–422; Pls.’ Answering Br. 27 n.102.
225
    The Defendants also moved to dismiss under Court of Chancery Rule 12(b)(6).
226
    Aronson v. Lewis, 473 A.2d 805, 811 (Del. 1984) (citing 8 Del. C. § 141(a)), overruled on other
grounds by Brehm v. Eisner, 746 A.2d 244 (Del. 2000).

                                                39
directors or comparable authority and the reasons for the plaintiff’s failure to obtain

the action or for not making the effort.”227 Where, as here, the plaintiff has failed to

make a pre-suit demand on the board, the Court must dismiss the complaint “unless

it alleges particularized facts showing that demand would have been futile.”228 The

plaintiff’s “pleadings must comply with stringent requirements of factual

particularity that differ substantially from the permissive notice pleadings governed

solely by Chancery Rule 8(a).”229 Under the heightened pleading requirements of

Rule 23.1, conclusory “allegations of fact or law not supported by allegations of

specific fact may not be taken as true.”230

       Nevertheless, “[o]n a motion to dismiss pursuant to Rule 23.1, the Court

considers the same documents, similarly accepts well-pled allegations as true, and

makes reasonable inferences in favor of the plaintiff—all as it does in considering a

motion to dismiss under Rule 12(b)(6).”231 And “where a complaint quotes or

characterizes some parts of a document but omits other parts of the same document,

the Court may apply the incorporation-by-reference doctrine to guard against the




227
    Ct. Ch. R. 23.1(a).
228
    Ryan v. Gursahaney, 2015 WL 1915911, at *5 (Del. Ch. Apr. 28, 2015), aff’d, 128 A.3d 991
(Table) (Del. 2015).
229
    Brehm, 746 A.2d at 254.
230
    Grobow v. Perot, 539 A.2d 180, 187 (Del. 1988), overruled on other grounds by Brehm, 746
A.2d 244.
231
    Beam ex rel. Martha Stewart Living Omnimedia, Inc. v. Stewart, 833 A.2d 961, 976 (Del. Ch.
2003), aff’d, 845 A.2d 1040 (Del. 2004).

                                             40
cherry-picking of words in the document out of context.”232                           Under the

incorporation-by-reference doctrine, “a complaint may, despite allegations to the

contrary, be dismissed where the unambiguous language of documents upon which

the claims are based contradict[s] the complaint’s allegations.”233

       The Plaintiffs in this case allege that the Defendants breached their fiduciary

duties by consciously failing to exercise appropriate oversight over Citigroup.234

That failure, the Plaintiffs suggest, caused the four corporate traumas detailed above.


232
    Reiter ex rel. Capital One Fin. Corp. v. Fairbank, 2016 WL 6081823, at *5 (Del. Ch. Oct. 18,
2016); see also Amalgamated Bank v. Yahoo! Inc., 132 A.3d 752, 797 (Del. Ch. 2016) (“The
incorporation-by-reference doctrine permits a court to review the actual document to ensure that
the plaintiff has not misrepresented its contents and that any inference the plaintiff seeks to have
drawn is a reasonable one. The doctrine limits the ability of the plaintiff to take language out of
context, because the defendants can point the court to the entire document.” (footnote omitted)).
233
    Yahoo! Inc., 132 A.3d at 797 (quoting H-M Wexford LLC v. Encorp, Inc., 832 A.2d 129, 139
(Del. Ch. 2003)). For the first time in supplemental briefing, the Plaintiffs argue that the Court
cannot consider documents attached to the Defendants’ Motion to Dismiss. The Plaintiffs did not
raise this argument in their opposition brief or at oral argument, and it is therefore waived. See
Coughlan v. NXP B.V., 2011 WL 5299491, at *12 n.86 (Del. Ch. Nov. 4, 2011) (holding that, to
the extent the plaintiff was attempting to assert a new argument in her post-oral argument
supplemental brief, it was “unquestionably waived at this late stage”). The Plaintiffs now say that
they did not waive this argument, but their opposition brief did not argue that it would be improper
for the Court to consider the documents appended to the Defendants’ Motion. Instead, the
Plaintiffs challenged the inferences the Defendants drew from those documents. See Pls.’
Answering Br. 56 (“Defendants now try to contort the meaning of the heavily redacted internal
Company documents and ask this Court to make inferences in their favor. Defendants are not
entitled to such inferences on a motion to dismiss.”). In any event, in accordance with settled
Delaware precedent on the incorporation-by-reference doctrine, I consider only those documents
that the Complaint specifically quotes or references. See, e.g., Winshall v. Viacom Int’l, Inc., 76
A.3d 808, 818 (Del. 2013) (“[A] plaintiff may not reference certain documents outside the
complaint and at the same time prevent the court from considering those documents’ actual terms.”
(alteration in original) (quoting Fletcher Int’l, Ltd. v. ION Geophysical Corp., 2011 WL 1167088,
at *3 n.17 (Del. Ch. Mar. 29, 2011))); see also Donald J. Wolfe, Jr. & Michael A. Pittenger,
Corporate and Commercial Practice in the Delaware Court of Chancery § 4.06[b][2][i] (2016)
(“If a plaintiff chooses to refer to a document in its complaint, the Court may consider the entire
document, even those portions not specifically referenced in the complaint.”).
234
    Compl. ¶ 58.

                                                41
Because the Plaintiffs allege that the Defendants violated their oversight duties, I

must analyze demand futility under the Rales v. Blasband235 test.236 Under Rales, a

court faced with allegations of director inaction must “examine whether the board

that would be addressing the demand can impartially consider its merits without

being influenced by improper considerations.”237 More specifically, a court must

decide whether the plaintiff has alleged particularized facts “creat[ing] 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.”238 A plaintiff may create such reasonable doubt by

alleging particularized facts that “reveal board inaction of a nature that would expose

[at least half of the directors] to ‘a substantial likelihood’ of personal liability.”239

Thus, “[d]emand is not excused solely because the directors would be deciding to

sue themselves,”240 unless such a decision makes liability of at least half of the

directors substantially likely.




235
    634 A.2d 927 (Del. 1993).
236
    See, e.g., Good, 2017 WL 6397490, at *5 (“For alleged violations of the board’s oversight
duties under Caremark, the test articulated in Rales v. Blasband applies to assess demand
futility.”).
237
    Rales, 634 A.2d at 934.
238
    Id.
239
    Horman v. Abney, 2017 WL 242571, at *6 (Del. Ch. Jan. 19, 2017) (quoting Rales, 634 A.2d
at 936).
240
    In re Citigroup Inc. S’holder Derivative Litig., 964 A.2d 106, 121 (Del. Ch. 2009)

                                             42
       Below, I examine alleged bad faith on the part of the directors with respect to

inaction in light of corporate non-compliance with positive law. Some of the

purported red flags date back more than a decade.241 In determining whether demand

is futile, “it is important to remember that demand is made against the board of

directors at the time of filing of the complaint,”242 here, March 30, 2016.243 Thus,

“whether demand is excused is typically analyzed with respect to the directors seated

as of the date that the complaint was filed.”244 And the Court usually conducts this

analysis on a “director-by-director” basis.245          Here, because the Complaint’s

allegations fail to support a reasonable inference of bad faith on the part of the

Citigroup board with respect to any particular failure to act, I need not undertake an

analysis, with respect to any such alleged breach, of whether at least half of the

directors seated on March 30, 2016, face a substantial likelihood of liability for that

purported oversight violation.

       A. Demand Is Not Excused as to the Caremark Claim

       The Plaintiffs argue that demand is excused because at least half of the

Citigroup board as of the filing of the Complaint faces a substantial likelihood of



241
    E.g., Compl. ¶ 250.
242
    In re INFOUSA, Inc. S’holders Litig., 953 A.2d 963, 985 (Del. Ch. 2007).
243
     The composition of the Citigroup board did not change between the filing of the initial
Complaint and the filing of the operative pleading in this case.
244
    Park Emps.’ & Ret. Bd. Emps.’ Annuity & Benefit Fund of Chicago v. Smith, 2016 WL 3223395,
at *9 (Del. Ch. May 31, 2016), aff’d, 2017 WL 5663591 (Del. Nov. 27, 2017).
245
    Postorivo v. AG Paintball Holdings, Inc., 2008 WL 553205, at *6 (Del. Ch. Feb. 29, 2008).

                                             43
liability under Caremark. “A Caremark claim contends that the directors set in

motion or ‘allowed a situation to develop and continue which exposed the

corporation to enormous legal liability and that in doing so they violated a duty to

be active monitors of corporate performance.’”246 A Caremark claim typically rests

on the assertion that the directors of a corporation failed “to properly monitor or

oversee employee misconduct or violations of law.”247

       Proof of such a claim is difficult. In Stone v. Ritter, our Supreme Court held

that Caremark liability lies where “(a) the directors utterly failed to implement any

reporting or information system or controls; or (b) having implemented such a

system or controls, consciously failed to monitor or oversee its operations thus

disabling themselves from being informed of risks or problems requiring their

attention.”248 Stone also made clear that “Caremark claims are breaches of the duty

of loyalty, as opposed to care, preconditioned on a finding of bad faith.”249 Thus,

“imposition of liability requires a showing that the directors knew that they were not

discharging their fiduciary obligations. Where directors fail to act in the face of a

known duty to act, thereby demonstrating a conscious disregard for their


246
    South v. Baker, 62 A.3d 1, 14 (Del. Ch. 2012) (quoting In re Caremark Int’l Inc. Derivative
Litig., 698 A.2d at 967).
247
    In re Citigroup Inc. S’holder Derivative Litig., 964 A.2d at 123.
248
    911 A.2d 362, 370 (Del. 2006).
249
    Rich ex rel. Fuqi Int’l, Inc. v. Yu Kwai Chong, 66 A.3d 963, 981 (Del. Ch. 2013); accord Good,
2017 WL 6397490, at *5 (“[A] Caremark claim ‘is rooted in concepts of bad faith; indeed, a
showing of bad faith is a necessary condition to director oversight liability.’” (quoting In re
Citigroup Inc. S’holder Derivative Litig., 964 A.2d at 123)).

                                               44
responsibilities, they breach their duty of loyalty by failing to discharge that

fiduciary obligation in good faith.”250 Put differently, to state a Caremark claim, a

plaintiff must allege facts “that allow a reasonable inference that the directors acted

with scienter which, in turn, ‘requires [not only] proof that a director acted

inconsistently with his fiduciary duties,’ but also ‘most importantly, that the director

knew he was so acting.’”251 As the Court in Stone stressed, “directors’ good faith

exercise of oversight responsibility may not invariably prevent employees from

violating criminal laws, or from causing the corporation to incur significant financial

liability, or both.”252

       The Plaintiffs do not argue that the Defendants are liable for “an utter failure

to attempt to assure a reasonable information and reporting system exist[ed]” at

Citigroup.253 Instead, they contend that the Defendants knew of red flags pointing

to corporate misconduct and consciously chose to ignore them.254 “[A] plaintiff

asserting a Caremark oversight claim must plead with particularity ‘a sufficient

connection between the corporate trauma and the board.’”255 One way to establish


250
    Stone, 911 A.2d at 370 (footnotes omitted).
251
    Horman, 2017 WL 242571, at *7 (alteration in original) (quoting In re Massey Energy Co.,
2011 WL 2176479, at *22 (Del Ch. May 31, 2011)).
252
    Stone, 911 A.2d at 373.
253
    In re Caremark Int’l Inc. Derivative Litig., 698 A.2d at 971.
254
    See Pls.’ Answering Br. 3 (arguing that “a legion of specific allegations demonstrat[e] that
Defendants knew of red flags and yet consciously failed to take action in good faith to remedy the
internal control deficiencies”).
255
    Fairbank, 2016 WL 6081823, at *8 (quoting La. Mun. Police Emps.’ Ret. Sys. v. Pyott, 46 A.3d
313, 340 (Del. Ch. 2012), rev’d on other grounds, 74 A.3d 612 (Del. 2013)).

                                               45
such a connection is to allege facts suggesting that “the board knew of evidence of

corporate misconduct—the proverbial ‘red flag’—yet acted in bad faith by

consciously disregarding its duty to address that misconduct.”256 For example, a

claim that directors “had notice of serious misconduct,” yet, so knowing, “failed to

investigate[,] . . . would survive a motion to dismiss, even if the . . . board was well

constituted and was otherwise functioning.”257 Nevertheless, the corporate trauma

in question “must be sufficiently similar to the misconduct implied by the ‘red flags’

such that the board’s bad faith, ‘conscious inaction’ proximately caused that

trauma.”258

               1. Demand Is Not Excused as to the Anti-Money Laundering Law
               Compliance Issues

       The Plaintiffs argue that the Citigroup board was aware of several red flags

pointing to BSA/AML compliance issues at Citigroup subsidiaries. The Plaintiffs

focus on a regulatory order and a series of consent orders that Citigroup and Citibank

entered into with various government agencies. First, in July 2010, the OCC issued



256
    Id.
257
    David B. Shaev Profit Sharing Account v. Armstrong, 2006 WL 391931, at *5 (Del. Ch. Feb.
13, 2006).
258
    Melbourne Mun. Firefighters’ Pension Trust Fund v. Jacobs, 2016 WL 4076369, at *8 (Del.
Ch. Aug. 1, 2016) (footnote omitted), aff’d, 158 A.3d 449 (Del. 2017); see also, e.g., In re Dow
Chem. Co. Derivative Litig., 2010 WL 66769, at *13 (Del. Ch. Jan. 11, 2010) (“Plaintiffs argue
that because bribery may have occurred in the past (Dow paid a fine to the SEC in January 2007),
by different members of management, in a different country (India), and for a different transaction
(pesticide registrations), the board should have suspected similar conduct by different members of
management, in a different country, in an unrelated transaction. This argument is simply too
attenuated to support a Caremark claim.” (footnote omitted)).

                                                46
Citibank a Part 30 order directing it to improve its AML compliance in various

business segments.259 Then, on April 5, 2012, the OCC issued a consent order

against Citibank, citing its failure to make the improvements outlined in the Part 30

order.260 The consent order criticized Citibank’s AML controls, and it ordered

Citibank to develop a “BSA/AML Action Plan.”261 Several months later, on August

2, 2012, BUSA entered into a consent order with the FDIC and the CDFI. 262 This

consent order “required BUSA’s Board of Directors to ‘increase its oversight of the

affairs of the Bank [and] assume full responsibility for . . . the oversight of all of the

Bank’s activities.’”263 A third consent order was issued on March 21, 2013, and it

stated that “Citigroup lacked effective systems of governance and internal controls

to adequately oversee the activities of [Citibank and BUSA].”264

       The red flags did not stop with the regulatory order and the three consent

orders, however. After the April 2012 consent order was issued, the Citigroup board

received a steady drumbeat of warnings about continuing AML compliance issues.

In July 2012, for instance, IA informed the Compliance Committee that there was

“[i]nadequate AML control, governance, and oversight” at Banamex and BUSA. 265



259
    Compl. ¶ 143.
260
    Id. ¶ 144.
261
    Id. ¶¶ 144, 146.
262
    Id. ¶ 151.
263
    Id. ¶ 152 (alterations in original).
264
    Id. ¶ 159 (emphasis omitted).
265
    Id. ¶ 150 (alteration in original) (emphasis omitted).

                                                 47
The warnings continued after the entry of the August 2012 consent order. In

September and October 2012, IA revealed that “BUSA’s control environment

remained ‘unsatisfactory.’”266      And, several months later, the AML control

environment “retained a ‘limited assurance’ rating, while the ‘overall effectiveness

of controls over affiliate transactions’ at BUSA received an ‘insufficient assurance’

rating.”267 The drumbeat continued after the third consent order was issued. As the

Complaint points out, “[b]etween February 2013 and April 2015, IA issued 22

reports noting that BUSA was suffering from ‘Insufficient Assurance’ in its AML

control environment.”268

       The Plaintiffs contend that despite receiving both internal and external

warnings about serious AML compliance issues, the Citigroup board (in the

Plaintiffs’ memorable phrase) “sat like stones growing moss.”269 Then, “after a full

six years of inaction following the Part 30 Order, regulators were compelled to

impose a $140 million fine on Citigroup.”270 There is compelling evidence that the

board was aware that Citigroup had serious problems with AML compliance. If the

Complaint adequately alleged that the Citigroup board consciously did nothing in

response to the red flags just described, and thereby acted consonant with the



266
    Id. ¶¶ 155–56.
267
    Id. ¶ 158.
268
    Id. ¶ 346 (emphasis omitted).
269
    Id. ¶ 9.
270
    Id. ¶ 170 (emphasis omitted).

                                         48
geologic metaphor just quoted, in my view that would state a Caremark claim.271

And, as I said above, the Complaint standing alone does give the impression of a

board that sat on its hands in the face of clear warnings about potentially unlawful

conduct. But the documents incorporated by reference in the Complaint make clear

that the Plaintiffs’ narrative is unsupported by the materials on which they relied in

drafting their pleading. Those documents reveal that, far from doing nothing in

response to red flags, the Citigroup board and its various committees oversaw

significant efforts to comply with the consent orders and ensure that adequate AML

controls were implemented.272

       It is true that the first consent order came almost two years after the Part 30

order, and that the consent order resulted from “[t]he failure to obey the Part 30

Order.”273 But, while the Complaint implies that no action was taken between the

Part 30 order and the first consent order, the documents incorporated by reference

tell a different story. For example, at an April 17, 2012 board meeting, directors

learned that “28 of the 35 [Part 30] milestones were completed during 1Q 2012.”274



271
    See Desimone v. Barrows, 924 A.2d 908, 940 (Del. Ch. 2007) (“[I]n order to state a viable
Caremark claim, and to predicate a substantial likelihood of director liability on it, a plaintiff must
plead the existence of facts suggesting that the board knew that internal controls were inadequate,
that the inadequacies could leave room for illegal or materially harmful behavior, and that the
board chose to do nothing about the control deficiencies that it knew existed.”).
272
    See Good, 2017 WL 6397490, at *6 (stating that a court is not “required to accept on a motion
to dismiss” a plaintiff’s “unfair[]” description of a board presentation cited in the complaint).
273
    Compl. ¶ 144.
274
    Leavengood Aff. Ex. 3 at 11.

                                                 49
While Citibank ultimately fell short in complying with the Part 30 order, that failure,

of itself, does not suggest bad faith. Indeed, the fact that the majority of the Part 30

milestones were met suggests that a substantial effort was made to abide by the

order’s terms. As this Court has noted, “[s]imply alleging that a board incorrectly

exercised its business judgment and made a ‘wrong’ decision in response to red flags

. . . is insufficient to plead bad faith.”275

       Citigroup continued to make an effort to address the AML control

environment following entry of the April 2012 consent order. For example, on April

17, 2012, the Citigroup board learned that “the Compliance Committees [had]

received a presentation from the AML Monitoring Team, including efforts to

improve the quality and integrity of the data feeding . . . Citibank’s AML monitoring

platforms.”276 The board was also told that “the Compliance Committees directed

[IA] to provide a country-by-country AML assessment.”277 Again, these efforts

apparently proved unavailing, for in August 2012, another consent order was issued.

But I cannot infer bad faith from that. The question is whether “the board chose to

do nothing about the control deficiencies that it knew existed.”278 That is simply not

an accurate description of what the Citigroup board did. Moreover, there are no




275
    Jacobs, 2016 WL 4076369, at *9.
276
    Leavengood Aff. Ex. 3 at 12.
277
    Id.
278
    Desimone, 924 A.2d at 940 (emphasis added).

                                                50
allegations from which I may infer that the reports of progress the board received

were a sham, let alone that the directors so considered them. In any event, as the

documents incorporated in the Complaint reveal, something was indeed done about

the ongoing AML issues highlighted by the first consent order.

       The second consent order prompted more action from Citigroup.                    The

Citigroup board met on December 12, 2012, and at that meeting, the directors were

informed of “proactive efforts concerning AML issues, [and] that management’s

current areas of focus include the Consumer North America high risk account re-

remediation; expired customer due diligence documentation; migration programs in

Mexico; . . . and broader structural issues.”279          And the directors learned of

“continued progress on OCC commitments and business priorities, including

creating and implementing a global governance structure and framework and short-

term tactical project execution.”280 These are not the minutes of a board that learned

of red flags suggesting corporate misconduct and chose to do nothing about them.281

Instead, they reflect that steps were taken to improve the systems and controls related

to AML compliance. Those efforts were not ultimately successful, and another



279
    Leavengood Aff. Ex. 4 at 7.
280
    Id.
281
     See Horman, 2017 WL 242571, at *14 (“The relevant inquiries under the second prong
of Caremark are whether the Board was made aware of red flags and then whether the Board
responded to address them. The documents incorporated by reference into Plaintiffs’ Complaint
demonstrate that when red flags were waved in front of the Audit Committee, the Board
responded.”).

                                             51
consent order was issued in March 2013. But, to repeat, it is not enough to say that

the board’s response was ineffective. “Plaintiffs here simply seek to second-guess

the . . . manner of the board’s response to the red flags, which fails to state a

Caremark claim.”282

       A little over two years passed between the entry of the third consent order

and the $140 million fine from the FDIC and the CDBO. Those agencies imposed

the fine because of continued violations of BSA/AML laws at BUSA.283 The

Plaintiffs argue that during this approximately two-year period, “the Board failed to

act in the face of” the red flags outlined above.284 Bad faith could be imputed to a

board that simply “failed to act” for over two years after the entry of a third consent

order related to AML compliance issues.             But the Plaintiffs’ pleading, which

includes the documents it incorporates by reference, paints a different picture.

       The Citigroup board responded promptly to the third consent order. One

month after its entry, the board learned that “management was preparing an action

plan [in response to the FRB consent order] and will meet with the FRB’s staff to

better understand its expectations.”285 And in September 2013, directors from

Citigroup, Citibank, and Citicorp learned that outside counsel had undertaken a



282
    In re Qualcomm Inc. FCPA S’holder Derivative Litig., 2017 WL 2608723, at *4 (Del. Ch. June
16, 2017).
283
    Compl. ¶¶ 164–65.
284
    Pls.’ Answering Br. 44 (emphasis added).
285
    Leavengood Aff. Ex. 6 at 19.

                                             52
review of BUSA’s operations and that several employees had been fired in

furtherance of compliance efforts.286 At the same meeting, several directors posed

“questions to management about BUSA, including personnel changes and prior

regulatory reviews.”287 And at the end of 2013, the Citigroup board was told that

the Citigroup and Citibank Compliance Committees were “focus[ed] on whether

management is embracing AML controls.”288 About one year later, Citigroup had

achieved progress in improving AML controls. Specifically, the board learned in

January 2015 that, while the “aggregate risk rating for AML [wa]s High,” “the

aggregate risk trend [wa]s decreasing due to de-risking of certain high-risk client

types, businesses, and geographies, in combination with ongoing improvements to

the control environment.”289

       Again, these measures did not secure the compliance sought by the regulators,

and Citigroup ended up paying a hefty fine as a result. And it may be the case that,

as the Plaintiffs put it, “Citigroup’s Board failed . . . to adopt effective internal

controls addressing the gaps in its compliance systems.”290 But the question is not

whether Citigroup’s board adopted effective AML controls. As our Supreme Court

has recognized, “directors’ good faith exercise of oversight responsibility may not



286
    Leavengood Aff. Ex. 13 at 8.
287
    Id.
288
    Leavengood Aff. Ex. 14 at 16.
289
    Leavengood Aff. Ex. 11 at 5.
290
    Pls.’ Answering Br. 10.

                                         53
invariably prevent employees from violating criminal laws, or from causing the

corporation to incur significant financial liability, or both.”291 That is one reason

why a Caremark claim requires a showing of “intentional dereliction of duty, [or] a

conscious disregard for one’s responsibilities,” a standard that entails a greater

degree of culpability than “simple inattention or failure to be informed of all facts

material to the decision.”292 At issue is the duty of loyalty; a board’s efforts can be

ineffective, its actions obtuse, its results harmful to the corporate weal, without

implicating bad faith. Bad faith may be inferred where the directors knew or should

have known that illegal conduct was taking place, yet “took no steps in a good faith

effort to prevent or remedy that situation.”293 Here, the facts the Plaintiffs have

alleged imply that the Citigroup board could have done a better job addressing the

issues highlighted by, among other sources, the consent orders. That is not enough

to state a Caremark claim. Thus, the allegations relating to the AML compliance

issues and the board’s response to them do not raise a reasonable doubt that at least

half of the Citigroup board as it existed when the Complaint was filed faces a

substantial likelihood of personal liability for purported oversight failures. Demand

is not excused as to these allegations.294


291
    Stone, 911 A.2d at 373.
292
    In re Walt Disney Co. Derivative Litig., 906 A.2d 27, 66 (Del. 2006) (emphasis added).
293
    In re Caremark Int’l Inc. Derivative Litig., 698 A.2d at 971 (emphasis added).
294
    See, e.g., Horman, 2017 WL 242571, at *14 (“Plaintiffs have not pled particularized facts that
would allow the Court reasonably to infer that the Director Defendants face a substantial likelihood
of liability based on having ignored red flags in a manner that demonstrates a conscious failure to

                                                54
              2. Demand Is Not Excused as to the Accounts Receivable Fraud
              Allegations

       The Plaintiffs seek to hold the Defendants personally liable for losses

Banamex suffered as a result of an accounts receivable fraud it fell victim to.

According to the Plaintiffs, the Citigroup board knew for years of red flags related

to problems in Banamex’s “controls for detecting and preventing fraud.”295 Despite

receiving clear warnings about these control deficiencies, the Citigroup board “failed

to take good faith action to implement controls to detect and prevent fraud.”296 That

failure caused Banamex to become the victim of a $400 million fraud by OSA, a

Mexican oil services company. In the scheme, OSA took out loans from Banamex

that were secured by fraudulent accounts receivable.297               The fraud led to an

investigation by Mexico’s banking regulator, which ultimately fined Banamex $2.5

million for “ineffective controls.”298

       Before turning to the purported red flags related to the accounts receivable

fraud, I pause to note the unusual nature of the Caremark claim that the Plaintiffs

attempt to assert here. The primary injury for which the Plaintiffs seek to hold the

Defendants personally liable is Banamex’s loss of $400 million in a fraud that it fell



monitor or oversee corporate operations. Demand on the Board cannot be excused as futile on the
basis that the Board consciously ignored red flags.”).
295
    Pls.’ Answering Br. 46.
296
    Id. at 47.
297
    Compl. ¶ 206.
298
    Id. ¶ 173.

                                              55
victim to. The illegal conduct that caused this loss was committed largely by third

parties, not by anyone at Banamex. That is unlike the typical Caremark claim, in

which “plaintiffs argue that the defendants are liable for damages that arise from a

failure to properly monitor or oversee employee misconduct or violations of law.”299

In other words, Caremark claims involve a knowing failure to prevent or remedy

illegality within the corporation.300 The Plaintiffs’ theory appears to be that the

Defendants’ oversight failures caused Banamex to engage in a business venture that

generated large losses because of fraud by the party on the other side. Put differently,

Banamex made a risky business decision that turned out poorly for the company.

That suggests a failure to monitor or properly limit business risk, a theory of director




299
    In re Citigroup Inc. S’holder Derivative Litig., 964 A.2d at 123 (emphasis added); see also In
re Caremark Int’l Inc. Derivative Litig., 698 A.2d at 971 (“Generally where a claim of directorial
liability for corporate loss is predicated upon ignorance of liability creating activities within the
corporation . . . , in my opinion only a sustained or systematic failure of the board to exercise
oversight—such as an utter failure to attempt to assure a reasonable information and reporting
system exists—will establish the lack of good faith that is a necessary condition to liability.”
(emphasis added)).
300
    See Guttman v. Huang, 823 A.2d 492, 506 (Del. Ch. 2003) (describing Caremark as addressing
directors’ oversight of “their corporations’ compliance with legal standards” (emphasis added)).

                                                56
liability that this Court has never definitively accepted.301 Indeed, evaluation of risk

is a core function of the exercise of business judgment.302

       On the other hand, the Plaintiffs do point to the $2.5 million fine handed down

by Mexico’s banking regulator “based on ineffective controls at Banamex.”303

Specifically, this regulator found that “the [OSA] fraud resulted from weaknesses in

Banamex’s internal controls, errors in its loan origination and administration

procedures, and deficiencies relating to risk administration and internal audits.”304

If the Plaintiffs are seeking to recover the $2.5 million Banamex was fined as a result




301
    See Asbestos Workers Local 42 Pension Fund v. Bammann, 2015 WL 2455469, at *14 (Del.
Ch. May 22, 2015) (“It is not entirely clear under what circumstances a stockholder derivative
plaintiff can prevail against the directors on a theory of oversight liability for failure to
monitor business risk under Delaware law; the Plaintiff cites no examples where such an action
has successfully been maintained.”); In re Goldman Sachs Grp., Inc. S’holder Litig., 2011 WL
4826104, at *21 (Del. Ch. Oct. 12, 2011) (“As a preliminary matter, this Court has not definitively
stated whether a board’s Caremark duties include a duty to monitor business risk.”); see also In re
Citigroup Inc. S’holder Derivative Litig., 964 A.2d at 131 (“There are significant differences
between failing to oversee employee fraudulent or criminal conduct and failing to recognize the
extent of a Company’s business risk. Directors should, indeed must under Delaware law, ensure
that reasonable information and reporting systems exist that would put them on notice of fraudulent
or criminal conduct within the company. Such oversight programs allow directors to intervene and
prevent frauds or other wrongdoing that could expose the company to risk of loss as a result of
such conduct.”); In re Lear Corp. S’holder Litig., 967 A.2d 640, 653 (Del. Ch. 2008) (describing
the Caremark line of cases as “deal[ing] in large measure with what is arguably the hardest
question in corporation law: what is the standard of liability to apply to independent directors with
no motive to injure the corporation when they are accused of indolence in monitoring the
corporation’s compliance with its legal responsibilities?” (emphasis added)).
302
    See In re Citigroup Inc. S’holder Derivative Litig., 964 A.2d at 126 (noting that the obligation
to “implement and monitor a system of oversight . . . does not eviscerate the core protections of
the business judgment rule—protections designed to allow corporate managers and directors to
pursue risky transactions without the specter of being held personally liable if those decisions turn
out poorly”).
303
    Compl. ¶ 173.
304
    Id. ¶ 217.

                                                57
of these violations, they are pursuing a more traditional Caremark claim, one that

involves a failure to prevent illegal conduct within the corporation.                But the

Complaint contains scant allegations about the Mexican laws or regulations that

Banamex violated while it was being defrauded. Indeed, the Plaintiffs do not cite

any Mexican law or regulation Banamex failed to comply with while it was falling

victim to OSA’s scheme. Instead, they simply allege that the fine was imposed

because Banamex had ineffective controls.305 Moreover, the Complaint does not

suggest that the Citigroup board ever had any inkling that Banamex could run afoul

of Mexican laws or regulations governing the steps companies operating in Mexico

must take in order to ensure that they do not become victims of fraud.306

       These problems aside, the allegations relating to the accounts receivable fraud

fail to state a Caremark claim for an independent reason: the lack of red flags to put

the Defendants on notice of what eventually happened. Moreover, any incidents that

arguably served as red flags were met with responses that clearly fulfilled the

Citigroup directors’ obligation to act in good faith. The Plaintiffs primarily point to

two types of alleged red flags related to the OSA fraud: fraud-related incidents that




305
   Id. ¶¶ 173, 217.
306
    Mexico’s banking regulator imposed an additional fine on Banamex in May 2015 after it
determined that Banamex had failed to comply with the corrective action plan issued in the wake
of the accounts receivable fraud. Id. ¶ 218. The Complaint does not say whether any of the
Defendants knew that Banamex was subject to the corrective action plan.

                                              58
took place before the OSA fraud, and problems with Banamex’s technology systems,

segregation of duties, and maker/checker controls.307

       The first set of purported red flags involves a series of fraud-related incidents

that occurred primarily at Banamex over a period of several years. One incident

involved “a Citigroup Treasury Finance employee fraudulently transferr[ing] $25

million to his own personal bank account.”308 In a separate incident, “five Banamex

employees . . . accepted at least 16 million Mexico pesos . . . in kickbacks as part of

[a] scheme” with several Banamex vendors.309 Another fraud affecting Banamex

involved a bond trader who hid trading losses by delaying loss recognition and

manipulating trades, and in a separate scheme, dozens of Banamex employees sold

confidential credit card customer information.310 It later emerged that a Banamex

security unit was “recording phone calls without authorization; fraudulently

misreporting gas expenses in order to increase the reimbursements [members of the

unit] received from Banamex; developing shell companies to launder proceeds; and




307
    Another red flag, according to the Plaintiffs, was the Citigroup board’s awareness that “Mexico
businesses operated within a culture that largely viewed informal compliance (such as trust and
prestige) as sufficient.” Pls.’ Answering Br. 46. That does not constitute a red flag, however,
because there is nothing “illegal or wrongful per se” about doing business in Mexico, and “[l]egal,
if risky, actions that are within management’s discretion to pursue are not ‘red flags’ that would
put a board on notice of unlawful conduct.” In re Goldman Sachs Grp., Inc. S’holder Litig., 2011
WL 4826104, at *20.
308
    Compl. ¶ 182.
309
    Id. ¶ 183.
310
    Id. ¶¶ 184–85.

                                                59
receiving kickbacks from vendors who overcharged Banamex.”311 The Plaintiffs

also point to fraud committed by an operations manager at Accival, Banamex’s

brokerage unit; this employee “fraudulently transferred funds from an Accival

account to a private customer account using foreign exchange . . . transactions.”312

Finally, the Complaint discusses the Mexican homebuilders fraud, in which

Banamex developed a revolving credit facility for homebuilders.313               The

homebuilders put up their properties as collateral, and when they sold the homes

they built, they were supposed to pay off the loans with the sale proceeds.314 Many

of them failed to do so, however, and some “overstated the value of the collateral

against which Banamex made its loans.”315

       Even assuming that these fraud-related incidents were brought to the attention

of the Defendants before the OSA fraud, they could not have served as red flags. As

discussed above, a corporate trauma “must be sufficiently similar to the misconduct

implied by the ‘red flags’ such that the board’s bad faith, ‘conscious inaction’

proximately caused that trauma.”316 The corporate trauma here involved a particular

kind of fraud: phony accounts receivable submitted by a large borrower. None of

the incidents just recounted bear a material resemblance to the accounts receivable


311
    Id. ¶ 186.
312
    Id. ¶ 187.
313
    Id. ¶ 191.
314
    Id.
315
    Id. ¶ 193.
316
    Jacobs, 2016 WL 4076369, at *8 (footnote omitted).

                                             60
fraud. For example, there is no meaningful connection between the embezzlement

committed by the Citigroup Treasury Finance employee and the OSA fraud. The

same goes for the kickbacks received by Banamex employees, the concealment of

losses by the Banamex bond trader, and the nefarious activities of the Banamex

security unit. These incidents were simply too far removed from the OSA fraud to

have served as red flags for that corporate trauma.317

       The homebuilders fraud is similarly remote from the corporate trauma at

issue. Part of the fraud involved homebuilders overstating the value of the properties

they used as collateral for the loans they received from Banamex.                        Like the

homebuilders fraud, the OSA fraud involved misrepresentations about collateral.

But the collateral at issue was different in the two frauds: accounts receivable in the

OSA scheme, properties in the homebuilders scheme. The Plaintiffs have not

explained how the processes for verifying one type of collateral resemble the

methods used to detect fraud in the other type of collateral. Thus, I doubt that the

homebuilders fraud could have served as a red flag for the accounts receivable



317
   See South, 62 A.3d at 17 (“Although the complaint asserts that the directors knew of and ignored
the 2011 safety incidents, the complaint nowhere alleges anything that the directors were told about
the incidents, what the Board’s response was, or even that the incidents were connected in any
way.” (emphasis added)); In re Dow Chem. Co. Derivative Litig., 2010 WL 66769, at *13
(“Plaintiffs argue that because bribery may have occurred in the past (Dow paid a fine to the SEC
in January 2007), by different members of management, in a different country (India), and for a
different transaction (pesticide registrations), the board should have suspected similar conduct by
different members of management, in a different country, in an unrelated transaction. This
argument is simply too attenuated to support a Caremark claim.” (footnote omitted)).

                                                61
fraud.318 And even if the homebuilders fraud could have provided the requisite

notice, the Citigroup board took action in response to the issues it highlighted. Soon

after the fraud came to light, the Citigroup board learned that management would

perform “a global, end-to-end assessment of Citi’s management effectiveness with

respect to secured lending and collateral management, as well as a review of

Banamex’s overall collateral framework.”319                That is sufficient to show that,

following the homebuilders fraud, the board did not decide “to do nothing about the

control deficiencies that it knew existed.”320

       The second set of purported red flags involves defects in Banamex’s

technology systems, the failure to properly segregate duties, and inadequate

maker/checker controls. As the Plaintiffs admit, however, Citigroup management

attempted to address the latter two issues via “‘Project Andes,’ which was

purportedly to focus on the effective segregation of duties and to eliminate

weaknesses in dual controls and the maker/checker process.”321 The Plaintiffs

criticize Project Andes for “focus[ing] solely on corporate clients and Citibank cash

accounts” and not addressing Citibank branches.322 But, as I stated above, a plaintiff


318
    See In re Citigroup Inc. S’holder Derivative Litig., 964 A.2d at 129 (“[T]he use of [structured
investment vehicles (“SIVs”)] in the Enron related conduct would not serve to put the director
defendants on any type of heightened notice to the unrelated use of SIVs in structuring transactions
involving subprime securities.”).
319
    Leavengood Aff. Ex. 13 at 5.
320
    Desimone, 924 A.2d at 940.
321
    Compl. ¶ 176.
322
    Id.

                                                62
cannot plead bad faith “[s]imply [by] alleging that a board incorrectly exercised its

business judgment and made a ‘wrong’ decision in response to red flags.”323 As for

the allegations about problems with Banamex’s technology systems, the Plaintiffs

fail to explain how those issues allowed the OSA fraud to occur. Indeed, Mexico’s

banking regulator attributed the fraud to “weaknesses in Banamex’s internal

controls, errors in its loan origination and administration procedures, and

deficiencies relating to risk administration and internal audits.”324 It did not identify

any technological issues as contributing to the accounts receivable fraud. Thus,

these issues could not have served as red flags for the Defendants. Because the

Plaintiffs have failed to adequately allege that the Citigroup board faces a substantial

likelihood of liability as to the OSA fraud allegations, demand is not excused as to

those allegations.

                3. Demand Is Not Excused as to the Foreign Exchange Rate
                Manipulation Allegations

         The Plaintiffs also seek to hold the Defendants personally liable for alleged

oversight failures related to FX rate manipulation by Citigroup traders over a period

of about six years. From at least 2007 to at least 2013, Citigroup FX traders, working

with traders at other firms, manipulated FX benchmark rates, set off customer stop




323
      Jacobs, 2016 WL 4076369, at *9.
324
      Compl. ¶ 217.

                                           63
loss orders, and shared confidential client information.325 As a result, Citigroup paid

$2.2 billion in fines, and Citicorp pleaded guilty to conspiracy to violate federal

antitrust laws.326 These allegations fail to state a Caremark claim.

       First, the purported red flags the Plaintiffs point to either were not red flags at

all or were met with good-faith responses from Citigroup. The Plaintiffs point out

that in 2009, the Audit and Risk Management Committee was told that “the current

‘market turbulence increases operational risk significantly.’” 327 The Complaint fails

to mention that this line appears in a report that does not specifically discuss FX-

related misconduct.328 Instead, the report discusses, among other things, the Madoff

fraud, “mark manipulation, issuer/borrower fraud, [and] embezzlement.”329 Two

years later, it emerged that “a trader in [Citi’s] FX business outside London had

inappropriately shared confidential client information in a chat room with a trader at

another firm.”330 This incident bears some resemblance to the corporate trauma at

issue, which involved the sharing of confidential client information. But Citigroup

took action in response to this misconduct: the trader was terminated, and employees

received reminders “about the need to maintain client confidentiality.”331 Two years



325
    Id. ¶ 226.
326
    Id. ¶¶ 222, 233.
327
    Id. ¶ 247 (emphasis omitted).
328
    Leavengood Aff. Ex. 16 at CITI018447.
329
    Id.
330
    Compl. ¶ 248.
331
    Leavengood Aff. Ex. 15 at 15.

                                            64
after this incident, the Audit Committee learned that “FX transaction execution

maker/checker controls and post transaction reviews require improvement.”332 Even

if this were a red flag of FX-related issues at Citigroup, the company set out to

address the issues it highlighted by providing “[c]lear definition of FX execution

mandates in terms of transaction size, products, tenors, currencies, and approvals.”333

These efforts did not prevent the corporate trauma in question from taking place.

And one might legitimately criticize the adequacy of the board’s response to FX-

related issues.     But I cannot infer that “the defendants consciously allowed

[Citigroup] to violate the law so as to sustain a finding they acted in bad faith.”334

       The second problem with the Plaintiffs’ purported red flags is that some of

them were not waved in front of the Defendants. For example, the Plaintiffs allege

that in 2001, Citigroup helped draft the industry standards for good practices among

FX traders.335 Those standards decried “[m]anipulative practices by banks with each

other or with clients.”336 Even given the dubious proposition that the drafters of such

standards were aware that Citigroup’s controls in these areas were deficient, the

Plaintiffs do not allege that any of the Defendants played a role in developing (or

even knew about) these standards, which were drafted years before the misconduct



332
    Compl. ¶ 249.
333
    Leavengood Aff. Ex. 17 at CITI024853.
334
    Reiter, 2016 WL 6081823, at *14.
335
    Compl. ¶ 250.
336
    Id. (emphasis omitted).

                                            65
at issue began. Similarly, the Plaintiffs argue that “the Board allowed the FX-related

misconduct to occur in the midst of the LIBOR rate-fixing scandals,” and they stress

that Citigroup was itself investigated for LIBOR rate-fixing when the misconduct at

issue was taking place.337 But, even assuming that LIBOR-related infractions in the

industry implicated inadequate FX controls at Citigroup, the Complaint does not say

whether these issues were brought to the Defendants’ attention. That prevents them

from serving as red flags.338 Thus, because the allegations relating to FX benchmark

rate manipulation fail to create a reasonable doubt that the Citigroup board faces a

substantial likelihood of liability, demand is not excused as to those allegations.339




337
    Id. ¶ 323.
338
    See In re Citigroup Inc. S’holders Litig., 2003 WL 21384599, at *2 (Del. Ch. June 5, 2003)
(“There is nothing in the Amended Complaint to suggest or to permit the court to infer that any of
these [purported red flags] ever came to the attention of the board of directors or any committee
of the board. How, exactly, a member of the Citigroup board of directors was supposed to be put
on inquiry notice by something he or she never saw or heard of is not explained. The answer to the
question is obvious. ‘Red flags’ are only useful when they are either waived in one’s face or
displayed so that they are visible to the careful observer.”).
339
     To the extent that the Plaintiffs rely on regulators’ findings about inadequate FX-related
controls at Citigroup, those findings alone fail to demonstrate bad faith. See, e.g., Desimone, 924
A.2d at 940 (“Delaware courts routinely reject the conclusory allegation that because illegal
behavior occurred, internal controls must have been deficient, and the board must have known
so.”); see also In re Qualcomm Inc. FCPA S’holder Derivative Litig., 2017 WL 2608723, at *4
(“Plaintiffs also argue that the FCPA establishes a statutory floor for adequate internal controls,
and because the Qualcomm cease-and-desist order describes internal control violations of the
FCPA, the Complaint necessarily states a claim. But that argument is misplaced here. A
corporation’s violation of the FCPA alone is not enough for director liability under Caremark.”
(footnote omitted)). And while the CFTC and the FCA found that Citibank knew of LIBOR-
related issues at other firms, that does not suggest the Citigroup board knew of similar issues at
Citigroup or its subsidiaries.

                                                66
               4. Demand Is Not Excused as to the Unlawful Credit Card Practices
               Allegations

       The final corporate trauma for which the Plaintiffs seek recovery from the

Defendants involves deceptive credit card practices engaged in by several Citigroup

subsidiaries for over a decade. These subsidiaries misled consumers into buying

“add-on products (i) relating to services that they did not receive, (ii) for which they

did not give their informed and affirmative enrollment consent, (iii) that they did not

know they could refuse, and/or (iv) that were not in their best financial interest.”340

On July 20, 2015, the CFPB and the OCC fined Citibank $35 million, and the CFPB

ordered it to pay $700 million in restitution to consumers who fell victim to the

unlawful practices.341 The Plaintiffs’ allegations about this corporate trauma fail to

state a Caremark claim for several reasons.

       At the outset, one of the Plaintiffs’ purported red flags involves conduct that

did not even take place at Citigroup or any of its subsidiaries. According to the

Complaint, the Citigroup and Citibank Audit Committees were told in 2012 that “the

CFPB and FDIC were taking action against competitors Discovery and American

Express, requiring hundreds of millions of dollars in restitution and penalties relating

to the sales of add-on products.”342 But directors’ failure to act in the face of




340
    Compl. ¶ 254.
341
    Id. ¶¶ 253, 270.
342
    Id. ¶ 266.

                                          67
warnings about misconduct at other businesses does not imply bad faith with respect

to the entity to which the directors owe fiduciary duties.343

       Another red flag allegedly appeared when the Audit Committee was told in

July 2011 that control systems related to credit cards needed improvement.344 But it

also learned at the same meeting that “action will be taken through training and

systems changes and the corrective action plans would be discussed and agreed with

the OCC.”345 Thus, Citigroup dealt with this red flag in a manner that cannot be said

to reflect bad faith. The Plaintiffs also point to the West Virginia Attorney General’s

lawsuit against Citigroup for deceptive practices in the marketing of credit card

protection programs, a case that Citigroup settled for $1.95 million in September

2013, two years after the litigation began.346 However, the Complaint fails to allege

that the West Virginia lawsuit was ever brought to the attention of at least half of the

directors serving on the Citigroup board when the Complaint was filed.347 Even if I


343
    Cf. In re Dow Chem. Co. Derivative Litig., 2010 WL 66769, at *13 (“Plaintiffs argue that
because bribery may have occurred in the past (Dow paid a fine to the SEC in January 2007), by
different members of management, in a different country (India), and for a different transaction
(pesticide registrations), the board should have suspected similar conduct by different members of
management, in a different country, in an unrelated transaction. This argument is simply too
attenuated to support a Caremark claim.” (footnote omitted)); In re Citigroup Inc. S’holder
Derivative Litig., 964 A.2d at 129 (“Plaintiffs have not shown how involvement with the Enron
related scandals should have in any way put the director defendants on a heightened alert to
problems in the subprime mortgage market.”).
344
    Compl. ¶ 264.
345
    Leavengood Aff. Ex. 24 at 3.
346
    Compl. ¶ 265.
347
    See In re Citigroup Inc. S’holders Litig., 2003 WL 21384599, at *2 (“‘Red flags’ are only useful
when they are either waived in one’s face or displayed so that they are visible to the careful
observer.”). According to the Plaintiffs, “[t]he lawsuit was reported to the Nomination and

                                                68
infer knowledge on the part of the entire board, moreover, board action regarding

credit card sales controls was taken contemporaneously, as detailed below.

       The other red flags alleged in the Complaint were not simply brushed aside;

they were met with action by Citigroup. For example, in April 2013, the Citigroup

and Citibank Audit Committees were told that the FCA had done an investigation

and determined that “add-on Payment Protection Insurance . . . products from U.K.

insurance company Card Protection Plan Ltd. . . . , which were sold by a wholly

owned subsidiary of Citigroup from 2000 to 2011, were ‘fundamentally flawed’ and

‘missold.’”348     Yet the Complaint itself says that following the investigation,

“Citigroup . . . joined a customer remediation program involving 13 other financial

institutions.”349 Later, in October 2013, the Audit Committees were informed of

“fifty-four control issues relating to the card services provided for the Macy’s

accounts[, which were handled by DSNB, the Citigroup subsidiary tasked with

distributing credit cards for private account labels].”350 At the same meeting,




Corporate Governance Committee in September 2011,” Compl. ¶ 331, but the Complaint does not
say who was serving on that committee in September 2011. And there is no merit to the Plaintiffs’
suggestion that I can presume the entire Citigroup board learned of something simply because a
board committee with reporting obligations had the relevant information. See Horman, 2017 WL
242571, at *13 (“Delaware courts have consistently rejected . . . the inference that directors must
have known about a problem because someone was supposed to tell them about it.” (alteration in
original) (quoting Cottrell ex rel. Wal-Mart Stores, Inc. v. Duke, 829 F.3d 983, 995 (8th Cir.
2016)).
348
    Compl. ¶ 267 (footnote omitted).
349
    Id. ¶ 339.
350
    Id. ¶ 269 (emphasis omitted).

                                                69
however, the Audit Committees also learned that “corrective actions [would] include

awareness training and improved controls and procedures,” and those “Committees

emphasized the seriousness of the findings and commended IA for the vigor of the

review and the level of detail.”351 These are not the actions of a board that has

decided to do nothing about potential corporate misconduct.352 Thus, demand is not

excused as to the allegations about deceptive credit card practices.

       B. The Cases on Which the Plaintiffs Rely Support Dismissal

       The Plaintiffs point to several Caremark cases that purportedly support

demand futility here. In fact, none of those cases suggests that demand should be

excused as to any of the corporate traumas described in the Plaintiffs’ Complaint.

One of the cases the Plaintiffs rely on is Massey, in which then-Vice Chancellor

Strine found that the plaintiffs had likely stated a Caremark claim “center[ed] on the

allegation that directors and officers of Massey breached their fiduciary duties by

failing to make a good faith effort to ensure that Massey complied with applicable

laws designed to protect the safety of miners.”353 The facts in Massey were extreme.


351
    Leavengood Aff. Ex. 28 at 5.
352
    See Guttman, 823 A.2d at 502 (noting that a plaintiff could state a Caremark claim by alleging
that “the audit committee had clear notice of serious accounting irregularities and simply chose to
ignore them”). The Complaint alleges that “in 2009, the Australia Securities and Investments
Commission . . . was engaged in an investigation concerning the sale of credit insurance for credit
cards and the conduct of call center employees.” Compl. ¶ 333. But only Defendants Corbat and
Ricciardi attended the meeting where this information was revealed to the Audit and Risk
Management Committees, id. ¶ 333 n.156, and there is no allegation that they relayed this
information to the full Citigroup board.
353
    In re Massey Energy Co., 2011 WL 2176479, at *19.

                                                70
The Massey board was “dominated by [Don] Blankenship,” Massey’s CEO. 354

Blankenship believed that “governmental safety regulators were overly nit-picking

when it came to inspecting non-union mines like Massey’s,” and he “took a

combative approach with the key federal agency charged with enforcing United

States mining operations’ compliance with federal safety regulations.”355 Indeed,

the plaintiffs alleged that “Blankenship knowingly flouted applicable miner safety

laws, believing he knew better about how to run mines safely than the [Mine Safety

and Health Administration], and more blatantly, made the conscious choice to put

miners at risk in order to cut cost-corners and up mining profits.”356 “Even after

Massey had already pled guilty to criminal charges for willful violations of mining

safety laws and falsification of evidence, settled a claim with the Environmental

Protection Agency for a record sum, and suffered a punitive damages award for

firing a whistleblower,” Blankenship continued to publicly voice his view that

government regulators could not possibly know more about mine safety than he

did.357

          Even though they were aware of “the management culture at Massey[, which]

allegedly put profits ahead of safety,” the independent directors failed to “make a




354
    Id. at *5, *19.
355
    Id. at *5.
356
    Id. at *19 (emphasis added).
357
    Id.

                                          71
good faith effort to ensure that Massey complied with its legal obligations.”358

Instead, “the Board allowed itself to continue to be dominated by Blankenship.”359

The Court found that while the independent directors took some steps toward

compliance, a plausible inference was that they were simply “go[ing] through the

motions.”360 As the Court put it:

       Notably, the plaintiffs point to evidence that in the wake of pleading
       guilty to criminal charges and suffering liability for numerous
       violations of federal and state safety regulations, Massey mines
       continued to experience a troubling pattern of major safety violations.
       But, instead of using their supervisory authority over management to
       make sure that Massey genuinely changed its culture and made mine
       safety a genuine priority, the independent directors are alleged to have
       done nothing of actual substance to change the direction of the
       company’s real policy.361

       The facts in Massey are a far cry from the allegations in the Plaintiffs’

Complaint. Massey was run by a CEO who publicly expressed his contempt for the

law, at least as it applied to his company. That contempt found expression in “an

attitude of law-flouting” that continued to pervade the company even after it had

repeatedly been punished for breaking the law.362 The Court faulted Massey for

“embrac[ing] the idea that its regulators are wrongheaded and . . . view[ing] itself as

simply a victim of a governmental conspiracy.”363 It was this defiant and adversarial


358
    Id.
359
    Id.
360
    Id.
361
    Id. (footnote omitted).
362
    Id. at *20.
363
    Id. at *21.

                                          72
relationship to the law—and the independent directors’ failure to do anything of

substance about it—that gave rise to an inference of bad faith on the defendants’

part. Here, by contrast, there are no allegations suggesting that any of Citigroup’s

officers or directors viewed themselves (or Citigroup) as above the law. Instead, the

picture that emerges is of a massive, poorly integrated company that made efforts to

comply with the wide range of laws and regulations governing large financial

institutions. Those efforts failed in many instances, but that is not enough to support

a plausible inference of bad faith. Bad results alone do not imply bad faith.364

       The Plaintiffs also rely on Pyott, in which Allergan’s board allegedly

approved a business plan premised on violations of the law prohibiting drug

manufacturers from marketing off-label uses of their products.365 While physicians

may prescribe drugs for off-label uses, drug manufacturers are forbidden to market

drugs for off-label uses.366 Nevertheless, “the Board discussed and approved a series

of annual strategic plans that contemplated expanding Botox sales dramatically

within geographic areas that encompassed the United States.”367 Under these plans,

Allergan would attempt to push Botox into markets “that involved applications that




364
    See In re Gen. Motors Co. Derivative Litig., 2015 WL 3958724, at *17 (Del. Ch. June 26, 2015)
(“Pleadings, even specific pleadings, indicating that directors did a poor job of overseeing risk in
a poorly-managed corporation do not imply director bad faith.”), aff’d, 133 A.3d 971 (Del. 2016).
365
    Pyott, 46 A.3d at 352–58.
366
    Id. at 317–18.
367
    Id. at 352.

                                                73
were off-label uses in the United States.”368 The expansion envisioned by these plans

was so large that “it necessarily contemplated marketing and promoting off-label

uses within the United States.”369 Crucially, the board continued to approve this

expansion even after Allergan’s general counsel warned the board that the company

might be violating the prohibition on off-label marketing.370 Vice Chancellor Laster

found the plaintiffs’ allegations sufficient to “support a reasonable inference that the

Board knew Allergan personnel were engaging in or turning a blind-eye towards

illegal off-label marketing and promotion and that the Board nevertheless decided

to continue Allergan’s existing business practices in pursuit of greater sales.”371

       The facts in Pyott are unlike what has been alleged here. “[T]he board’s

alleged bad faith in Pyott was not based on its conscious disregard for its duty to

prevent the company from engaging in illegal conduct. Instead, it was based on the

board’s alleged decision to cause the company to engage in illegal conduct.”372 That

kind of conduct constitutes a breach of fiduciary duty because “‘Delaware law does

not charter law breakers,’ and ‘a fiduciary of a Delaware corporation cannot be loyal

to a Delaware corporation by knowingly causing it to seek profit by violating the




368
    Id.
369
    Id.
370
    Id. at 320.
371
    Id. at 355.
372
    Jacobs, 2016 WL 4076369, at *12.

                                          74
law.’”373 The Complaint in this case contains no allegations supporting an inference

that any of the Defendants decided to cause Citigroup to break the law in pursuit of

profits. To the contrary, the crux of this action is that the “incidents of corporate

malfeasance” described in the Complaint “occurred because Defendants—who were

aware of significant internal control weaknesses throughout the enterprise—

consciously and knowingly failed to take action.”374 Thus, Pyott is of no help to the

Plaintiffs here.375

       Finally, the Plaintiffs argue that the Seventh Circuit’s decision in

Westmoreland376 is “instructive.”377              There, the plaintiff alleged that Baxter

International’s “directors and officers breached their fiduciary duties by

‘consciously disregard[ing] their responsibility to bring Baxter into compliance with

[a 2006] Consent Decree and related health and safety laws.’”378 From 2006 to 2008,

“Baxter devoted significant attention and resources to the task of” complying with

the consent decree, under which Baxter was required to, among other things, “stop



373
    In re Qualcomm Inc. FCPA S’holder Derivative Litig., 2017 WL 2608723, at *3 (quoting
Jacobs, 2016 WL 4076369, at *9).
374
    Compl. ¶ 1 (emphasis added).
375
    The Plaintiffs also rely on Rosenbloom v. Pyott, 765 F.3d 1137 (9th Cir. 2014), which involved
a complaint that was essentially identical to the one in Pyott. Id. at 1151. It is therefore inapposite
for the reasons just discussed. It bears mentioning as well that this Court has been careful to limit
Massey and Pyott to their facts. See In re Qualcomm Inc. FCPA S’holder Derivative Litig., 2017
WL 260872, at *4 (distinguishing Massey and Pyott from the case at hand); Reiter, 2016 WL
6081823, at *13–14 (same); Jacobs, 2016 WL 4076369, at *12 (same).
376
    Westmoreland Cty. Emp. Ret. Sys. v. Parkinson, 727 F.3d 719 (7th Cir. 2013).
377
    Pls.’ Answering Br. 31.
378
    Westmoreland, 727 F.3d at 721 (alterations in original).

                                                 75
manufacturing and distributing all models of the [Colleague Infusion] Pump within

the United States.”379 Yet, according to the plaintiff, the directors “made a conscious

decision to halt these efforts in late 2008, despite clear and specific guidance from

the [Food and Drug Administration (“FDA”)] that additional action from Baxter was

needed to bring the company into compliance with FDA regulations and the terms

of the Consent Decree.”380      The plaintiff’s allegations supported a reasonable

inference that “the directors diverted critical resources to speed the development of

the new Sigma pump, cynically gambling that this next-generation device could

establish a market foothold, and that Colleague Infusion Pumps already in use would

become obsolete before the FDA spotted Baxter’s abandonment of its earlier

efforts.”381 In light of these allegations and the reasonable inferences they supported,

the Seventh Circuit, applying Delaware law, concluded that the plaintiff had

successfully alleged demand futility.382

        Westmoreland resembles Pyott in that the allegations in both cases supported

a reasonable inference that the defendants knowingly decided to flout the law. In

Westmoreland, the Seventh Circuit inferred bad faith “during th[e] later period”

when the directors allegedly chose to stop trying to comply with the FDA’s consent




379
    Id. at 722.
380
    Id. at 728.
381
    Id. at 729.
382
    Id.

                                           76
decree.383 Here, however, the Complaint does not raise a reasonable inference that

any of the Defendants decided to simply give up on efforts to comply with the law.

The Plaintiffs try to create such an inference by challenging the effectiveness of the

Citigroup board’s response to various purported red flags. But that is not enough to

state a Caremark claim, because an ineffective response does not, without more,

indicate bad faith.384 As our Supreme Court has stated, “there is a vast difference

between an inadequate or flawed effort to carry out fiduciary duties and a conscious

disregard for those duties.”385

       C. The Plaintiffs’ Holistic Approach to Demand Futility

       The Plaintiffs urge me to evaluate their demand futility allegations

“holistically, not in isolation.”386 They suggest that the Defendants have “resort[ed]

to a ‘divide and conquer’ approach by isolating and selectively attacking Plaintiffs’

allegations piecemeal, as if each well-pleaded allegation exists alone in a

vacuum.”387 In support of this holistic approach to demand futility, the Plaintiffs

cite Delaware County Employees Retirement Fund v. Sanchez.388 In Sanchez, our

Supreme Court employed an aggregate examination of all factors bearing on a



383
    Id. 728.
384
    See In re Goldman Sachs Grp., Inc. S’holder Litig., 2011 WL 4826104, at *23 (“Good faith,
not a good result, is what is required of the board.”).
385
    Lyondell Chemical Co. v. Ryan, 970 A.2d 235, 243 (Del. 2009).
386
    Pls.’ Answering Br. 27.
387
    Id.
388
    124 A.3d 1017 (Del. 2015).

                                             77
director’s independence with respect to a particular transaction;389 Sanchez is not

pertinent to my analysis of the Plaintiffs’ Caremark claim here. In this matter, I

must examine whether demand on the board is excused because, with respect to the

board action that would otherwise have been demanded, a majority of the directors

would have been unable to act in the face of a credible threat of liability. Such an

analysis requires a separate examination of whether liability may attach with respect

to each discrete corporate trauma alleged.390 Thus, I have evaluated the red flags

offered by the Plaintiffs and determined (a) whether they in fact constitute red flags

and (b) if they do, whether the board’s response (or lack of response) to them

supports a reasonable inference of bad faith. That is how this Court has traditionally

analyzed Caremark claims in the context of evaluating whether demand is

excused.391

       The Plaintiffs are correct, however, that a series of actions or inactions of the

board may have utility in determining whether board performance with respect to a

discrete trauma involved scienter.392 In that regard, I have considered the actions



389
    Id. at 1022–24.
390
    Cf. Seinfeld v. Slager, 2012 WL 2501105, at *3 (Del. Ch. June 29, 2012) (“In a derivative suit,
this Court analyzes each of the challenged transactions individually to determine demand
futility.”).
391
    See, e.g., Horman, 2017 WL 242571, at *11–14 (analyzing a Caremark claim in the manner
just described); Reiter, 2016 WL 6081823, at *8–14 (same).
392
    See Good, 2017 WL 6397490, at *15–16 (compiling a list of several allegations that collectively
supported “a fair inference that the board was all too aware that [Duke Energy’s] business strategy
involved flouting important laws, while employing a strategy of political influence-seeking and

                                                78
and inactions of the directors in all the instances pled by the Plaintiffs. What

emerges is a picture of directors of a very large, inorganically grown set of financial

institutions, beset by control problems as it struggled to integrate. Those directors

may be faulted for lack of energy, or for accepting incremental efforts of

management advanced at a testudinal cadence, when decisive action was called for

instead. I may infer from the facts pled that the board’s actions in response to the

notices of compliance problems brought to its attention involved directorial

negligence. If so, that is a problem that exercise of the stockholder franchise may

remedy. If, however, directors of a large and diverse entity such as Citigroup could

be liable for negligence, or even gross negligence, it would be difficult to encourage

capable individuals to serve, and more difficult to encourage them to bring business

judgment to bear on decisions involving risk (such as, for instance, whether to

acquire Banamex). Such, at least, was the understanding of our General Assembly,

when it extended the right to Delaware corporations to exculpate liability for

breaches of the duty of care.393 Nothing in the facts pled, considered individually or




cajolement to reduce the risk that the company would be called to fair account” (Strine, C.J.,
dissenting)).
393
    8 Del. C. § 102(b)(7); see also Prod. Res. Grp., L.L.C. v. NCT Grp., Inc., 863 A.2d 772, 793
(Del. Ch. 2004) (“Section 102(b)(7) authorizes corporate charter provisions that insulate directors
from personal liability to the corporation for breaches of the duty of care. This is an important
public policy statement by the General Assembly, which has the intended purpose of encouraging
capable persons to serve as directors of corporations by providing them with the freedom to make
risky, good faith business decisions without fear of personal liability.”). As noted above,
Citigroup, in its charter, availed itself of this exculpation provision.

                                                79
together, implies scienter on the part of the director Defendants. The bad results the

Plaintiffs point to, in my view, do not imply bad faith. No substantial likelihood of

liability for any of the director Defendants exists under the facts in the Complaint

and as gleaned from the documents cited therein, and, therefore, demand is not

excused.

                                III. CONCLUSION

      For the foregoing reasons, the Defendants’ Motion to Dismiss is GRANTED.

An appropriate order is attached.




                                         80
  IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

OKLAHOMA                FIREFIGHTERS    )
PENSION & RETIREMENT SYSTEM,            )
KEY         WEST            MUNICIPAL   )
FIREFIGHTERS            &      POLICE   )
OFFICERS’ RETIREMENT TRUST              )
FUND,        JEFFREY         DROWOS,    )
FIREMAN’S RETIREMENT SYSTEM             )
OF ST. LOUIS, and ESTHER KOGUS,         )
Derivatively on Behalf of Nominal       )
Defendant, Citigroup, Inc.,             )
                                        )
                 Plaintiffs,            )
                                        )
      v.                                ) C.A. No. 12151-VCG
                                        )
MICHAEL L. CORBAT, DUNCAN P.            )
HENNES,    FRANZ B.     HUMER,          )
EUGENE M. MCQUADE, MICHAEL E.           )
O’NEILL, GARY M. REINER, JUDITH         )
RODIN, ANTHONY M. SANTOMERO,            )
JOAN SPERO, DIANA L. TAYLOR,            )
WILLIAM S. THOMPSON JR., JAMES          )
S. TURLEY, ERNESTO ZEDILLO              )
PONCE de LEON, ROBERT L. JOSS,          )
VIKRAM S. PANDIT, RICHARD D.            )
PARSONS,      LAWRENCE        R.        )
RICCIARDI, ROBERT L. RYAN, JOHN         )
P. DAVIDSON III, BRADFORD HU,           )
BRIAN LEACH, MANUEL MEDINA-             )
MORA, and KEVIN L. THURM,               )
                                        )
                 Defendants,            )
and                                     )
                                        )
CITIGROUP, INC.,                        )
                                        )
                 Nominal Defendant.     )


                                  81
                                  ORDER

     AND NOW, this 18th day of December, 2017,

     The Court having considered the Defendants’ Motion to Dismiss, and for the

reasons set forth in the Memorandum Opinion dated December 18, 2017, IT IS

HEREBY ORDERED that the Motion to Dismiss is GRANTED.

SO ORDERED:

                                          /s/ Sam Glasscock III

                                          Vice Chancellor




                                     82
