                                                EFiled: Jan 19 2017 04:49PM EST
                                                Transaction ID 60093347
                                                Case No. 12290-VCS
   IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE


JOSEPH HORMAN and STEVEN GREEN,             :
Derivatively for the Benefit of and on      :
Behalf of Nominal Defendant, UNITED         :
PARCEL SERVICE, INC.,                       :
                                            :
                     Plaintiffs,            :
                                            :
          v.                                :      C.A. No. 12290-VCS
                                            :
DAVID P. ABNEY, RODNEY C. ADKINS,           :
MICHAEL J. BURNS, D. SCOTT DAVIS,           :
WILLIAM R. JOHNSON, DR. CANDACE             :
KENDLE, ANN M. LIVERMORE, RUDY              :
H.P. MARKHAM, CLARK T. RANDT, JR.,          :
CAROL B. TOME and KEVIN M. WARSH,           :
                                            :
                     Defendants,            :
                                            :
          and                               :
                                            :
UNITED PARCEL SERVICE, INC., a              :
Delaware corporation,                       :
                                            :
                     Nominal Defendant.     :



                      MEMORANDUM OPINION


                    Date Submitted: October 19, 2016
                     Date Decided: January 19, 2017
Peter B. Andrews, Esquire, Craig J. Springer, Esquire, and David M. Sborz, Esquire
of Andrews & Springer LLC, Wilmington, Delaware; Judith S. Scolnick, Esquire,
Thomas L. Laughlin, Esquire, and Scott R. Jacobsen, Esquire, of Scott + Scott
Attorneys At Law, LLP, New York, New York; and Jesse Strauss, Esquire of Strauss
Law P.L.L.C., New York, New York, Attorneys for Plaintiffs.

Kenneth J. Nachbar, Esquire, John P. DiTomo, Esquire, and Richard Li, Esquire of
Morris, Nichols, Arsht & Tunnell LLP, Wilmington, Delaware; Jamie A. Levitt,
Esquire and Steven T. Rappoport, Esquire of Morrison & Foerster LLP, New York,
New York; and Philip T. Besirof, Esquire of Morrison & Foerster LLP, San
Francisco, California, Attorneys for Defendants and Nominal Defendant.




SLIGHTS, Vice Chancellor
      Stockholders of United Parcel Service, Inc. (“UPS” or the “Company”) have

brought this derivative action on behalf of the Company against members of its

Board of Directors (the “Board”) alleging that they breached their fiduciary duty of

loyalty by consciously failing to monitor and manage UPS’s compliance with state

and federal laws governing the transportation and delivery of cigarettes. Plaintiffs

seek to recover for the Company losses it has or will sustain as a result of a pending

enforcement action against the Company in federal court for illegally shipping

untaxed cigarettes in which the government seeks approximately $180 million in

damages and penalties.

      After receiving UPS’s response to their demand for books and records under

8 Del. C. § 220, Plaintiffs filed their Verified Stockholder Derivative Complaint (the

“Complaint”) in which they set forth a single count—breach of fiduciary duty arising

from a failure of oversight, well known in Delaware corporate law as a Caremark

claim.1   They allege the directors either failed to implement a reporting and

monitoring system with respect to the shipment of illegal cigarettes or, having

implemented a system, they ignored red flags that UPS had abandoned its

compliance with that system. The failure of oversight is all the more troubling,




1
 In re Caremark Int’l Inc. Deriv. Litig., 698 A.2d 959 (Del. Ch. 1996), aff’d sub nom Stone
ex rel. AmSouth Bancorporation v. Ritter, 911 A.2d 362 (Del. 2006) (reviewing and
restating the duties of directors to oversee corporate operations).

                                            1
according to Plaintiffs, because it occurred in the wake of a prior government

investigation of UPS’s illegal cigarette shipments that was resolved in 2005 by way

of an Assurance of Discontinuance Agreement (“AOD”) in which UPS committed

to comply with applicable laws and to establish effective monitoring systems going

forward. The AOD also provided that UPS could be subject to a penalty of up to

$1000 per violation of the AOD as well as exposure to further liability under state

and federal law. Plaintiffs allege that UPS and its Board consciously ignored the

requirements of the AOD from 2010 through 2014 and have thereby exposed the

Company to substantial liability.

      Plaintiffs did not make a demand on the Board to pursue these claims before

filing suit. They maintain that any such demand would have been futile since each

member of the Board faces a substantial likelihood of personal liability. The

Defendants disagree and have moved to dismiss the Complaint under Court of

Chancery Rule 23.1 for failure properly to plead demand futility and under

Rule 12(b)(6) for failure to state a viable breach of fiduciary duty claim. After

carefully reviewing the Complaint and its incorporated documents, and carefully

considering the parties’ arguments on the motion to dismiss, I conclude that

Plaintiffs have failed to plead facts from which it may reasonably be inferred that

the Defendants consciously failed to oversee UPS’s compliance with its obligations

to engage in proper shipping methods or its compliance with the AOD in a manner

                                         2
that would constitute bad faith. Because they have failed to plead with particularity

that Defendants face a substantial likelihood of personal liability in this action,

Plaintiffs have failed adequately to plead demand futility and their Complaint must

be dismissed with prejudice under Court of Chancery Rule 23.1.                 Having so

concluded, I need not reach Defendants’ arguments under Court of Chancery

Rule 12(b)(6).

                                I.     BACKGROUND

      The facts are drawn from allegations in the Complaint, documents integral to

the Complaint and matters of which the Court may take judicial notice.2 As it must

at this stage of the proceedings, the Court assumes as true all well-pled facts in the

Complaint.




2
  In re Crimson Exploration Inc. S’holder Litig., 2014 WL 5449419, at *8 (Del. Ch.
Oct. 24, 2014) (“A judge may consider documents outside of the pleadings only when:
(1) the document is integral to a plaintiff’s claim and incorporated in the complaint or
(2) the document is not being relied upon to prove the truth of its contents.”) (citation
omitted); In re Gardner Denver, Inc., 2014 WL 715705, at *2 (Del. Ch. Feb. 21, 2014) (on
a motion to dismiss, the Court may rely on documents extraneous to a complaint “when
the document, or a portion thereof, is an adjudicative fact subject to judicial notice.”)
(footnotes and internal quotation marks omitted); Narrowstep, Inc. v. Onstream Media
Corp., 2010 WL 5422405, at *5 (Del. Ch. Dec. 22, 2010) (same); Reiter v. Fairbank, 2016
WL 6081823, at *5 (Del. Ch. Oct. 18, 2016) (“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 cherry-picking of words in the
document out of context.”).



                                            3
   A. The Parties

      Plaintiffs, Joseph Horman and Steven Green, were stockholders of UPS at the

time of the alleged wrongdoing and have continuously been stockholders since that

time. They seek to bring this action derivatively on behalf of UPS.

      Defendants, David P. Abney, D. Scott Davis, Rodney C. Adkins, Michael J.

Burns, William R. Johnson, Dr. Candace Kendle, Ann M. Livermore, Rudy H.P.

Markham, Clark T. Randt, Jr., Carol Tomé, and Kevin M. Warsh (the “Director

Defendants”), are eleven members of the twelve-member UPS Board. Abney has

served as UPS’s CEO and as a director since September 2014. Davis has served as

a director since 2006 and as Chairman of the Board since 2008. He previously

served as UPS’s CEO from 2008 to September 2014.

      Nominal Defendant, UPS, is a Delaware corporation with its principal place

of business in Atlanta, Georgia. UPS is the world’s largest package delivery

company and a major provider of logistics and distribution services. According to

its 2015 Form 10-K, UPS makes more than 18.3 million package deliveries per day.

   B. The Regulatory Environment Related to the Shipment of Tobacco
      Products

      UPS is subject to a variety of regulatory regimes including federal, state and

local laws that regulate its shipment and delivery of cigarettes and other tobacco

products. Among these regulations are various special excise taxing initiatives that

have the effect of raising the cost of producing and buying tobacco products. These
                                         4
increased costs, it is hoped, will decrease demand for tobacco products and thereby

directly create a public health benefit. The initiatives also raise revenues that can be

deployed to educate the public on the harmful effects of tobacco products. By

regulating shipping companies, such as UPS, governmental entities attempt to

prevent unauthorized and illegal shipments of tobacco that undermine these taxing

regimes.

      The City and State of New York have adopted a cigarette taxing structure

which imposes an excise tax on packs of cigarettes that are possessed for sale within

their respective jurisdictions.   “Stamping agents,” licensed wholesale cigarette

dealers, play a key role in the taxing regime by pre-paying the excise taxes, affixing

tax stamps to each pack of cigarettes and then setting in motion the process whereby

each subsequent purchaser in the distribution chain, ending with the consumer, will

bear the tax burden. The stamping agents are the only legal entry point for cigarettes

into the streams of commerce of the City and State of New York.

      According to regulators, cigarette bootlegging is alive and well in New York.

It is estimated that the State of New York loses up to $610 million annually in

revenue due to tax evasion schemes. In one such scheme, consumers buy their

cigarettes from retailers on Native American reservations. Several sovereign Native

American groups in the State of New York dispute the right of the State to require

tax stamps on packs of cigarettes sold exclusively at tribal retailers. These sales

                                           5
include both in-person sales and those made by mail order, phone, fax, or online.

Through remote means, retailers within Native American reservations can fill orders

and ship cigarettes, without excise tax stamps, to non-tribal customers throughout

the United States, including in the City and State of New York.

      To combat such practices, the State of New York enacted N.Y. Public Health

Law (“N.Y. PHL”) § 1399-ll which, inter alia, prohibits common carries, like UPS,

from knowingly delivering cigarettes to any person in New York reasonably

believed to be a person who is not authorized to receive cigarettes. N.Y. Exec. L.

§ 63(12) allows the New York Attorney General (“NYAG”) to seek various

equitable and legal remedies against any person or entity that has engaged in

repeated fraudulent or illegal acts in the conduct of business. The violation of a state

law or regulation, such as N.Y. PHL § 1399-ll, constitutes an “illegal act” under

N.Y. Exec. L. § 63(12).

      UPS is also subject to federal laws that regulate cigarette and tobacco

shipments and delivery, including: (1) the Contraband Cigarette Trafficking Act

(“CCTA”), 18 U.S.C. § 2341, et seq., which makes it “unlawful to knowingly ship,

transport, receive, possess, sell, distribute, or purchase” a quantity of more than

10,000 cigarettes which lack tax stamps and are found in a jurisdiction which

requires tax stamps; and (2) the Prevent All Cigarette Trafficking Act (“PACT”),

15 U.S.C. § 375, et seq. and 18 U.S.C. § 2341, et seq., which requires, inter alia,

                                           6
that all packages containing cigarettes include a notice that federal law requires the

payment of cigarette excise taxes, and prohibits any shipper from delivering

packages on behalf of any person whose name appears on a list of unregistered or

noncompliant sellers maintained by the United States Attorney General.

    C. The Assurance of Discontinuance Agreement

      In 2004, as part of an effort by the NYAG to combat cigarette tax evasion in

the State of New York, the NYAG began investigating residential cigarette

deliveries by UPS and other shipping companies. As a result of its investigation, the

NYAG concluded that UPS had violated N.Y. PHL § 1399-ll by delivering

unstamped and untaxed cigarettes to New York residential customers.                The

investigation revealed that the deliveries, which had been made to residences

throughout the State of New York, had originated principally from retailers located

on Native American reservations to fill orders accepted over the internet or by

telephone. Following the investigation, in order to avoid a civil enforcement action,

UPS entered into the AOD on October 21, 2005.3 The AOD placed affirmative

obligations on UPS to set up policies, programs, and procedures to ensure

compliance with N.Y. PHL § 1399-ll.            These measures included investigating

shippers, creating a database of tobacco shippers and sharing that list with the State


3
 As part of the AOD, UPS expressly denied any wrongdoing or any liability related to the
shipment of untaxed cigarettes.

                                           7
of New York, auditing the shippers, refusing to ship untaxed cigarettes and imposing

progressive discipline against non-compliant shipping customers up to and including

a ban on those customers from using any UPS service. UPS was also required to

maintain a “UPS Cigarette Policy,” regularly train its employees on how to ensure

enforcement of the policy, conduct compliance audits and maintain associated

records. It agreed to a stipulated damages penalty of $1,000 for each violation of

the AOD.

        The AOD was an evergreen commitment that was binding upon UPS, its

employees and its Board:

        This Assurance of Discontinuance shall be binding on and apply to
        UPS, its officers, directors, employees, affiliates, assignees and any
        individual, corporation, subsidiary or division through which UPS may
        now or hereinafter act, as well as any successors in interest.4

UPS designated Norman Brothers, its Vice President of the Legal Department, as

the point of contact for all notifications from the State of New York concerning

enforcement of the AOD.5




4
  Verified Stockholder Derivative Complaint (“Compl.”) Ex. A, Assurance of
Discontinuance (“AOD”) ¶ 53.
5
    AOD ¶ 38.


                                          8
     D. UPS Initially Complies with the AOD and Then Allegedly Falters

         Plaintiffs acknowledge that UPS initially complied with its obligations under

the AOD.6 In December 2005, UPS filed a compliance report with the NYAG, as

required under the AOD. In this report, UPS confirmed that it no longer shipped

illegal cigarettes to consumers, only delivered tobacco products from licensed

entities, and had issued instructions to its employees to monitor packages for

evidence of shipments to unauthorized persons and to report any instances of non-

compliance to management. Approximately two years later, in February 2008, UPS

acknowledged that it was not diminishing its commitment to the post-AOD

compliance policies even though the United States Supreme Court had issued a

decision striking down a portion of Maine’s cigarette regulatory regime which was

similar in structure to New York’s regime. Later in 2008, Norman Brothers publicly

stated that “[w]e have a policy that’s been in effect for almost three years now and

has been effective, and we see no reason to change it.”7

         According to Plaintiffs, this period of compliance lasted until no later than

2010, when the Director Defendants began to ignore their oversight responsibilities

and UPS began to operate in violation of the AOD and applicable state and federal




6
    Compl. ¶¶ 7, 9, 55, 78–80.
7
    Compl. ¶ 55.

                                           9
laws governing the shipment of cigarettes. During this time period, in which it is

alleged that UPS delivered thousands of cartons of unstamped cigarettes from

manufacturers to cigarette dealers on Native American reservations in New York

and then directly to consumers’ residences throughout New York and other states,

there are no Board-level documents that mention much less directly address UPS’s

compliance with the AOD or applicable cigarette and tobacco laws. In November

2010, however, Norman Brothers and other members of the Legal Department did

make a presentation to the Audit Committee, including Defendants Tome’, Burns,

Johnson, Markham, Davis and Abney, in which Brothers and his team outlined

“significant matters and trends.” The minutes of this meeting do not reflect that

compliance with the AOD was discussed, although it is alleged that Brothers, as the

designated contact for compliance, would have known that UPS was non-compliant

and would have reported this to the Audit Committee. The following year, in

September, 2011, an internal UPS business development memorandum from “BD

Memo”8 reflects that UPS, at some level, was aware that an investigation had been

conducted by the New York State Department of Taxation and Finance (“NYTF”)




8
  Plaintiffs suggest in the Complaint that “BD Memo” must be shorthand for “Board of
Directors Memo.” Compl. ¶ 11. They appear to have abandoned that position in their
opposition to the Motion. See Oral Arg. Tr. 54 (“I initially did think that ‘BD Memo’ stood
for ‘board of directors memo,’ . . . . [w]hen it was explained that that was not the case, I
withdrew that argument.”).

                                            10
and the federal Alcohol, Tobacco, and Firearms Bureau (“ATF”), and that these

regulators were alleging that UPS was in violation of the AOD.

         At a meeting of the Audit Committee in February, 2014, the committee

members were advised that the State of New York and City of New York had already

initiated civil litigation against FedEx in New York for violations of cigarette

regulations and that “New York City has approached UPS with similar issues.”9 The

Audit Committee received similar reports of possible non-compliance in May and

August 2014.       Although it is alleged that these reports alerted the Director

Defendants to potential compliance issues, they came too late to allow them to do

anything about the problem.

     E. The Federal Case Against UPS

         In February 2015, the City and State of New York filed suit against UPS in

the United States District Court for the Southern District of New York alleging that

UPS has violated the AOD and state and federal law on numerous occasions over a

period of several years. The suit seeks injunctive relief, compensatory damages

under federal law, civil penalties under state and federal law, treble damages under

the Racketeer Influenced and Corrupt Organizations Act (“RICO”), an award of the

stipulated damages penalty of $1,000 for each violation under the AOD and the



9
    Compl. ¶ 78.

                                         11
appointment of a court-appointed Special Master to monitor UPS’s tobacco

deliveries and its compliance with tobacco trafficking laws going forward. In total,

the damages and penalties sought amount to at least $180 million.

     F. Procedural History

       Plaintiffs filed their Complaint on May 2, 2016, after obtaining books and

records from the Company under 8 Del. C. § 220. The Complaint asserts one

derivate claim on behalf of UPS for breach of the fiduciary duty of loyalty against

the Director Defendants arising from their failure to comply with their oversight

responsibilities. On June 15, 2016, Defendants filed a motion to dismiss the

Complaint under Court of Chancery Rule 23.1 for failure to make a pre-suit demand

and under Court of Chancery Rule 12(b)(6) for failure to state a claim upon which

relief can be granted (the “Motion”).

                              II.    LEGAL ANALYSIS

       Caremark claims inevitably arise in the midst of or directly following

“corporate trauma” of some sort or another.10 In this derivative action, Plaintiffs



10
  South v. Baker, 62 A.3d 1, 12 (Del. Ch. 2012). I pause for a moment to note that UPS
has yet to sustain any corporate trauma as the enforcement action is pending in the federal
court and, by all accounts, UPS continues vigorously to defend that action. One might well
question the wisdom of Plaintiffs’ strategy to press claims against UPS prior to the
resolution of the enforcement action when those claims rest entirely upon the notion that
UPS will suffer a corporate trauma because its active defense of the enforcement action
will fail. Given the outcome of the Motion, however, I need not dwell further on the
motives or wisdom of this strategy.

                                            12
seek to hold the Director Defendants personally liable to UPS for breaching their

fiduciary duties in bad faith in a manner that caused the corporate trauma. After

carefully reviewing the Complaint, however, I am satisfied that Plaintiffs have

“conflate[d] concededly bad outcomes from the point of view of the Company with

bad faith on the part of the Board.”11 Because I have concluded that demand is not

excused under Rule 23.1, I will not reach the Director Defendants’ arguments under

Rule 12(b)(6). The analysis begins and ends with demand futility.

      A. Legal Standards – Rule 23.1 Demand Futility

         “[A] cardinal precept of the General Corporation Law of the State of Delaware

is that directors, rather than shareholders, manage the business and affairs of the

corporation.”12 Plaintiffs’ claim against the Director Defendants for breach of

fiduciary duty alleges harm suffered by UPS. The claim, therefore, belongs to the

Company and the decision whether or not to pursue it typically would rest with the

Board.13 A board of directors does not stand alone, however, in its authority to

initiate litigation on behalf of the corporation. In certain circumstances, stockholders


11
     In re Gen. Motors Co. Deriv. Litig., 2015 WL 3958724, at *11 (Del. Ch. June 26, 2015).
12
   Aronson v. Lewis, 473 A.2d 805, 811 (Del. 1984), overruled on other grounds by Brehm
v. Eisner, 746 A.2d 244 (Del. 2000) (citing 8 Del. C. § 141(a)).
13
   White v. Panic, 783 A.2d 543, 550 (Del. 2001) (stating that “[i]n most situations, the
board of directors has sole authority to initiate or to refrain from initiating legal actions
asserting rights held by the corporation”); In re Gen. Motors, 2015 WL 3958724, at *1
(same).

                                             13
may pursue litigation derivatively on behalf of the corporation as a matter of equity

to “redress the conduct of a torpid or unfaithful management . . . where those in

control of the company refused to assert a claim belonging to it.” 14

           Because stockholder derivative suits “by [their] very nature . . . impinge on

the managerial freedom of directors,”15 our law requires that a stockholder satisfy

the threshold demand requirements of Court of Chancery Rule 23.1 before he is

permitted to assume control of a claim belonging to the corporation. To do so, the

plaintiff must either demand that the board of directors take corrective measures or

pursue the claim or, alternatively, demonstrate that a demand on the board would be

futile such that the demand requirement should be excused.16 When a derivative

plaintiff elects not to make a demand upon the board, Rule 23.1 places a heightened

pleading burden on that plaintiff to meet “stringent requirements of factual

particularity that differ substantially from the permissive notice pleadings”

embodied in Court of Chancery Rule 8 and that animate Court of Chancery

Rule 12(b)(6).17



14
     Aronson, 473 A.2d at 811.
15
     Id.
16
  Beam ex rel. Martha Stewart Living Omnimedia, Inc. v. Stewart, 845 A.2d 1040, 1044
(Del. 2004).
17
     Brehm v. Eisner, 746 A.2d 244, 254 (Del. 2000).

                                             14
         This Court employs one of two tests when determining whether demand upon

the board would be futile. The first applies when a plaintiff challenges a decision of

the board of directors to take affirmative action.18 The second, established in Rales

v. Blasband19 and applicable here, applies when a plaintiff challenges board inaction

such as when a board is alleged to have consciously disregarded its oversight

duties.20 Under the Rales test, the court “must determine whether or not the

particularized factual allegations of a derivative stockholder complaint create a

reasonable doubt that, as of the time the complaint is filed, the board of directors

could have properly exercised its independent and disinterested business judgment

in responding to a demand.”21 Particularized facts create a reasonable doubt of the

board’s independence and disinterestedness when the demand would reveal board




18
  Aronson, 473 A.2d at 814. Under the Aronson test, the plaintiff must plead particularized
facts that create a reasonable doubt that (i) the directors are disinterested and independent
or (ii) the challenged transaction was otherwise the product of a valid exercise of business
judgment. Id.
19
     634 A.2d 927 (Del. 1993).
20
   Wood v. Baum, 953 A.2d 136, 140 (Del. 2008) (“The [Rales] test applies where the
subject of a derivative suit is not a business decision of the Board but rather a violation of
the Board’s oversight duties.”).
21
     Rales, 634 A.2d at 934.

                                             15
inaction of a nature that would expose the board to “a substantial likelihood” of

personal liability.22 “The mere threat of personal liability . . . is insufficient.”23

         “On 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).”24 Given the heightened pleading requirements of Rule 23.1,

however, “conclusory allegations of fact or law not supported by allegations of

specific fact may not be taken as true.”25 Because the Complaint cites documents

that Plaintiffs obtained through their Section 220 demand, I may consider those

documents under the incorporation-by-reference doctrine to determine whether the

Complaint contains sufficient allegations to demonstrate demand futility.26




22
  Id. at 936 (quoting Aronson, 473 A.2d at 815). See also In re Citigroup Inc. S’holder
Deriv. Litig., 964 A.2d 106, 121 (Del. Ch. 2009) (“Demand is not excused solely because
the directors would be deciding to sue themselves”).
23
     Aronson, 473 A.2d at 815.
24
 Beam ex rel. Martha Stewart Living Omnimedia, Inc. v. Stewart, 883 A.2d 961, 976 (Del.
Ch. 2003), aff’d, 845 A.2d 1040 (Del. 2004) (citing White, 783 A.2d at 549).
25
     Grobow v. Perot, 539 A.2d 180, 187 (Del. 1988).
26
  See Reiter, 2016 WL 6081823, at *5–6; Amalgamated Bank v. Yahoo! Inc., 132 A.3d
752, 797 (Del. Ch. 2016).

                                            16
      B. Plaintiffs Have Not Adequately Pled that Demand is Excused With
         Respect to Their Caremark Claim

         Plaintiffs allege in a single count that the Director Defendants breached their

duty of loyalty owed to UPS and its stockholders by “willfully, consciously

recklessly, and intentionally failing to perform their duties of oversight to ensure the

Company’s compliance with positive law.”27 Plaintiffs assert that demand on the

Board should be excused based on demand futility because all eleven of the Director

Defendants, including nine directors whose independence is unquestioned, face a

disqualifying interest in determining whether UPS should pursue the claim. The

disqualifying interest, in this case, is self-preservation. Specifically, Plaintiffs allege

that each of the Director Defendants “face a substantial likelihood of liability” for

their breach of fiduciary duty as alleged in the Complaint.28

         1. The Caremark Liability Standard

         In Caremark, Chancellor Allen reviewed the state of director oversight law

and described the circumstances under which stockholders could hold directors

personally liable for harm caused to the corporation under the theory that the

directors “violated a duty to be active monitors of corporate performance.”29 As



27
     Compl. ¶ 157.
28
     Compl. ¶ 96.
29
     Caremark, 698 A.2d at 967.

                                            17
Chancellor Allen first observed in Caremark, and has been oft-repeated by this court,

proving liability for a failure to monitor corporate affairs is “possibly the most

difficult theory in corporation law upon which a plaintiff might hope to win a

judgment.”30 A decade later, our Supreme Court embraced the Caremark standard

and clarified that in order to impose personal liability on directors for a failure of

oversight there must be evidence that “the directors knew that they were not

discharging their fiduciary obligations.”31 At the pleadings stage, a plaintiff must

allege particularized facts that satisfy one of the necessary conditions for director

oversight liability articulated in Caremark: either that (1) “the directors utterly failed

to implement any reporting or information system or controls”; or (2) “having

implemented such a system or controls, [the directors] consciously failed to monitor

or oversee its operations thus disabling themselves from being informed of risks or

problems requiring their attention.”32

           This liability standard “draws heavily upon the concept of director failure to

act in good faith.”33 As our Supreme Court explained in Disney, the “intentional


30
   Id. See also Globis P’rs, L.P. v. Plumtree Software, Inc., 2007 WL 4292024, at *7 (Del.
Ch. Nov. 20, 2007); Desimone v. Barrows, 924 A.2d 908, 939 (Del. Ch. 2007); Guttman
v. Huang, 823 A.2d 492, 506 n. 33 (Del. Ch. 2003) (each quoting Caremark).
31
     Stone, 911 A.2d at 370.
32
     Id.
33
     Id. at 369.

                                             18
dereliction of duty” or “conscious disregard for one’s responsibilities,” which “is

more culpable than simple inattention or failure to be informed of all facts material

to the decision,” reflects that directors have acted in bad faith and cannot, by default,

avail themselves of defenses grounded in a presumption of good faith.34 In order to

plead a claim under Caremark, therefore, a plaintiff must plead 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.”35

         Our law recognizes that alleging directors failed to act in good faith is

significantly different from alleging that corporate wrongdoing has occurred. This

distinction takes into account that “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.” 36

Accordingly, “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.”37 Rather, a plaintiff must plead with particularity


34
     In re Walt Disney Co. Deriv. Litig., 906 A.2d 27, 66 (Del. 2006).
35
     In re Massey Energy Co., 2011 WL 2176479, at *22 (Del Ch. May 31, 2011).
36
     Stone, 911 A.2d at 373.
37
     Desimone, 924 A.2d at 940.

                                              19
“a sufficient connection between the corporate trauma and the board.”38 One way

to plead the requisite connection is to plead particularized facts which, if proven,

would establish the first Caremark prong for imposing oversight liability—that the

directors “utterly failed to implement any reporting or information system or

controls.”39 A second, alternative, way “[t]o establish such a connection [is to] plead

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.”40 Plaintiffs have attempted to plead both theories.

         2. No Well-Pled Derivative Claim That the Board Utterly Failed to
            Implement Any Reporting or Information Systems or Controls

         Plaintiffs’ argument that they have pled particularized facts that the Director

Defendants utterly failed to adopt any reporting and compliance systems is

perplexing.       The Complaint and the documents it incorporates by reference

acknowledge that UPS implemented the corporate governance changes required by

the AOD.41 Plaintiffs admitted as much more than once.42 The Complaint also


38
  La. Mun. Police Empls.’ Ret. Sys. v. Pyott, 46 A.3d 313, 340 (Del. Ch. 2012), rev’d on
other grounds, 74 A.3d 612 (Del. 2013).
39
     Stone, 911 A.2d at 370.
40
     Reiter, 2016 WL 6081823, at *8 (Del. Ch. Oct. 18, 2016) (citing Pyott, 46 A.3d at 341).
41
     Compl. ¶ 55; Compl. Ex. C at UPS000034.

 Pls.’ Answering Br. In Opp’n to the Defs.’ Mot. to Dismiss the Verified S’holder Deriv.
42

Compl. for Breach of Fiduciary Duty (“Pls.’ Answering Br.”) 7 (“Initially it appears that
                                              20
acknowledges that UPS has a Legal Department, an Internal Audit, Compliance &

Ethics Department and an Audit Committee of the Board.43 And, according to the

Complaint, “[t]he [Director Defendants] . . . were provided updates about legal

compliance through reports from the UPS Legal Department.”44                    The Audit

Committee’s Charter, also referenced in the Complaint, establishes that the Audit

Committee’s general responsibility for oversight includes oversight of “the

Company’s compliance with legal and regulatory requirements. . . .”45 Thus, the

Complaint itself reveals that the Plaintiffs have not plead particularized facts that the

Board “utterly” failed to adopt or implement any reporting and compliance

systems.46


the Company did comply with its obligations under the [AOD].”); Oral Arg. Tr. 60 (“The
company did something in the early years. . . . I’m not really sure what happened from ’06
to 2010, but you’re correct to say there is no allegation that it was reneged upon.”).
43
     Compl. ¶¶ 7, 9, 77(c), 78–80, 87.
44
     Compl. ¶ 9.
45
     Compl ¶ 87.
46
   In Stone, the Supreme Court appears quite deliberately to have inserted the adverb
“utterly” as a modifier to the phrase “failed to implement any reporting or information
system or controls.” Stone, 911 A.2d at 370. “‘Utterly failed’ is a linguistically extreme
formulation.” Bradley R. Aronstam & David E. Ross, Retracing Delaware’s Corporate
Roots Through Recent Decisions: Corporate Foundations Remain Stable While Judicial
Standards of Review Continue to Evolve, 12 DEL. L. REV. 1, 13 n.73 (2010) (musing:
“Imagine a field goal kicker who misses wide right. He failed, but did he “utterly fail”?
Certainly not: he tried and missed. But at what point does the failure become “utter”? If his
foot missed the ball? He still would have attempted the kick, and thus would not have
“knowingly and completely failed to undertake [his] responsibilities.”) (quoted in Chen v.
Howard-Anderson, 87 A.3d 648, 684 (Del. Ch. 2014)). “Utterly” means “carried to the
                                             21
          Notwithstanding the allegations in their Complaint acknowledging the

existence of reporting and compliance systems at UPS, Plaintiffs advance two

arguments as to why the Complaint still adequately pleads factual bases upon which

the Board faces a substantial likelihood of liability under the first prong of

Caremark.         First, they argue that documents produced in response to their

Section 220 demand reveal an absence of any Board minutes or other Board

materials relating to the monitoring of compliance with the AOD from January 1,

2010 to February 12, 2014. They contend this informational void supports a

reasonable inference that the Director Defendants “did absolutely nothing to oversee

UPS’s compliance with the [AOD] or cigarette laws in any way.”47 According to

Plaintiffs, this period of “deafening silence” at the Board level is a “clear indication

of the Board’s conscious disregard of its duties and utter lack of oversight over its

known duties under the [AOD].”48 Second, Plaintiffs contend that, regardless of the

oversight mechanisms in place, the Director Defendants were “merely going through

the motions”49 in monitoring UPS’s compliance obligations. In this regard, they




utmost     point       or       highest          degree;         absolute,       total.”
www.merriam-webster.com/dictionary/utterly (last visited January 9, 2017).
47
     Pls.’ Answering Br. 13.
48
     Id. 13–14.
49
     Id. 23.

                                          22
note that “recent rulings make clear that merely going through the motions . . . is not

sufficient oversight to satisfy a director’s fiduciary duty of loyalty with regard to

overseeing that the Company is adhering to its fundamental obligation to obey

positive law.”50 Neither argument is convincing.

         Plaintiffs’ positions rely upon the assumption that this board of directors of a

large public company owed the Company and its stockholders a duty to take active

steps affirmatively to “monitor the monitors” even after implementing a well-

constituted monitoring and reporting system.51 In this regard, Plaintiffs point to

paragraph 53 of the AOD which they claim created a Board level obligation to ensure

compliance with the AOD beyond ensuring that the Company implemented

compliance systems.52 Even in the absence of the AOD, the UPS Board owed a



50
     Id. (citing Rich ex rel. Fuqi Int’l, Inc. v. Chong, 66 A.3d 963, 982–83 (Del. Ch. 2013)).
51
  ENEMY OF THE STATE (Touchstone Pictures 1998) (Congressman Sam Albert: “We knew
that we had to monitor our enemies. We’ve also come to realize that we need to monitor
the people who are monitoring them. . . .” Carla Dean: “Well, who’s gonna monitor the
monitors of the monitors?”). See also Oral Arg. Tr. 61 (“[I]t’s incumbent on the board, I
think, in this limited situation, to say the board had a duty under the AOD, and they did
have a duty to inquire; just inquire.”); Id. 65 (“But if you have an agreement that gives you
an obligation to look into it and a particular role to play, and you do nothing and you know
about that, that is conscious disregard.”).
52
  Oral Arg. Tr. 44 (“It created a board level obligation. It was binding on the board and its
successors; not just the entity, but the board specifically named in paragraph 53 of the AOD
was bound by this obligation.”); Id. 45 (“this was an unusual obligation that bound the
board and requires action by the directors”). It is true that paragraph 53 provides that the
AOD shall be “binding on and apply to UPS, its officers, directors, employees, affiliates,
assignees and any individual, corporation, subsidiary or division through which UPS may
now or hereinafter act, as well as any successors in interest.” Even though the NYAG
                                               23
fiduciary duty to stockholders not to cause UPS to violate positive law and not to sit

on its hands as it watched others within the Company do so.53 The Director

Defendants’ duty to oversee compliance with these laws, therefore, was not created

or somehow heightened by the existence of the AOD. It derives, instead, from the

fiduciary duty of loyalty and the obligation to discharge that duty in good faith in

the best interests of the corporation they serve.54 The Board cannot be held liable

for breaching this duty, under the first prong of Caremark, unless it can be proven

that its members “utterly failed to implement any reporting or information systems



easily could have insisted upon Board-specific covenants, however, the AOD does not set
forth any specific obligations that must be met by the Board alone in order for UPS to meet
its compliance obligations (e.g. it does not require that the Board receive compliance
reports at regular intervals or that the Board charter a new AOD-focused committee).
Instead, the AOD contains various and detailed provisions that require the UPS body
corporate to comply with positive law and to take affirmative steps to monitor compliance.
See AOD ¶ 18, 20–32, 34–37. In this regard, it is important to understand what the AOD
is and what it is not. The AOD is an agreement between the NYAG and UPS to avoid an
enforcement action. The agreement resolved alleged (but contested) violations of state and
federal law—violations that took place in the field of operations, not at the Board level.
This reality explains why the NYAG would want to bind the Board and other high-level
officers so that UPS could not disclaim corporate responsibility for violations of the AOD
that occurred further down the chain of corporate command. That the AOD acknowledges
an entity-wide commitment to comply with its terms does not equate to a contractual
requirement of the Board, or a Board-level promise, to take specific affirmative steps to
ensure UPS compliance with the AOD. And it certainly cannot be a basis to dilute the
well-settled Delaware law that director liability in the oversight context must be predicated
on a failure to perform fiduciary duties in good faith.
53
   Guttman, 823 A.2d at 506 n. 34 (“one cannot act loyally as a corporate director by
causing the corporation to violate the positive laws it is obliged to obey”); see also 8 Del. C.
§ 102(b)(7)(ii).
54
     Stone, 911 A.2d at 369.

                                              24
or controls.”55 This is so even if the reporting systems they implemented and relied

upon, without reason to suspect they were not working, did not ultimately detect

corporate wrongdoing or bring it to their attention. “[G]ood faith, not a good result,

is what is required of the board.”56 Indeed, “the one thing that is emphatically not

a Caremark claim is the bald allegation that directors bear liability where a

concededly well-constituted oversight mechanism, having received no specific

indications of misconduct, failed to discover fraud.”57

          To repeat, the Plaintiffs’ own allegations acknowledge the creation and

implementation of a system of internal controls following UPS’s acceptance of the

AOD. The system functioned well, at least for a time, after the AOD was finalized

and the Complaint makes no particularized allegation that the system was

intentionally disabled or diminished within UPS. That the Plaintiffs did not turn up




55
     Id. at 370.
56
   In re Goldman Sachs Gp., Inc. S’holder Litig., 2011 WL 4826104, at *23 (Del. Ch.
Oct. 12, 2011). See also Lyondell Chem. Co. v. Ryan, 970 A.2d 235, 243 (Del. 2009)
(“there is a vast difference between an inadequate or flawed effort to carry out fiduciary
duties and a conscious disregard for those duties”); In re Gen. Motors, 2015 WL 3958724,
at *14 (dismissing complaint alleging “utter failure” of monitoring systems that was based,
in part, upon a lack of documents indicating that the Board was apprised of the litigation
risk at issue there, concluding that the complaint did not allege particularized facts showing
“that the Board had knowledge that [General Motors’] system was inadequate or that the
Board consciously remained uninformed on this issue”).
57
  David B. Shaev Profit Sharing Account v. Armstrong, 2006 WL 391931, at *5 (Del. Ch.
Feb. 13, 2006).

                                             25
any Board documents specifically referencing continued compliance with the AOD

during a specific time period is not sufficient to allege that the system was not in

place or that the Board was simply going through the motions when overseeing

compliance.58 At best, the Complaint might support an inference that employees

charged with the responsibility to implement UPS’s oversight systems failed to

report issues to the Board. This is not enough to sustain a Caremark claim.59

       Plaintiffs have not pled particularized factual allegations to support a

reasonable inference that the Director Defendants face a substantial likelihood of


58
   Plaintiffs’ reliance upon Fuqi and In re Pfizer Inc. S’holder Deriv. Litig., 722 F. Supp.
2d 453 (S.D.N.Y. 2010) in support of its argument that the UPS Board was simply “going
through the motions” is misplaced. In Fuqi, applying “the more lenient pleading standards
of Rule 12(b)(6),” the court emphasized that the complaint pled non-conclusory facts
revealing that the company itself acknowledged “extensive problems with internal
controls” that allowed a reasonable inference that the company had “no meaningful
controls in place.” Fuqi, 66 A.3d at 982–83. In Pfizer, the “true gravamen of the Complaint
[was] not the disregard of oversight procedures, but rather that Defendants consciously
caused and allowed Pfizer to engage in illegal activity.” Pfizer, 722 F. Supp. 2d at 459.
The Complaint here alleges neither that the Board was even aware of, much less
acknowledged, problems with internal controls nor that the Board “caused and allowed”
UPS to violate the AOD.
59
  See Stone, 911 A.2d at 373 (allegations that “there ultimately may have been failures by
employees to report deficiencies to the Board [provide] no basis for an oversight claim
seeking to hold the directors personally liable for such failures by the employees”). See
also Armstrong, 2006 WL 391931, at *6 (holding that it is not enough to plead that “some
hypothetical, especially zealous, board might have discovered and stopped the conduct
complained of” to impose oversight liability); In re Gen. Motors, 2015 WL 3958724, at
*14 (“[c]ontentions that the Board did not receive specific types of information do not
establish that the Board utterly failed to attempt to assure a reasonable information and
reporting system exists” and do not establish the “total lack of any reporting system”).



                                            26
liability based on an utter failure to implement any reporting or information system

or controls. Therefore, demand on the Board cannot be excused as futile on that

basis.

         3. No Well-Pled Derivative Claim That the Board Consciously
            Disregarded Red Flags

         To establish demand futility under Caremark’s second prong, the Complaint

must “plead [particularized facts] 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.”60 In this context, bad faith means

“the directors were conscious of the fact that they were not doing their jobs, and that

they ignored red flags indicating misconduct in defiance of their duties.”61 Plaintiffs

raise four red flags they allege were waved before the Director Defendants and

consciously ignored: (1) the AOD itself, (2) the November 2010 Brothers Report to

the Audit Committee, (3) the September 16, 2011 internal memo, and (4) the 2014

Audit Committee Presentations. I address these purported red flags ad seriatim in

chronological order.



60
     Reiter, 2016 WL 6081823, at *8 (Del. Ch. Oct. 18, 2016) (citing Pyott, 46 A.3d at 341).
61
  Armstrong, 2006 WL 391931, at *5. See also In re Citigroup, 2003 WL 21384599, at
*2 (noting that a director cannot be put on “inquiry notice by something he or she never
saw or heard”).



                                              27
         Plaintiffs’ first proffered red flag is nothing more than another attempt to

argue that the AOD placed on the Board an additional affirmative duty above and

beyond what is required by Caremark. According to Plaintiffs, “common sense

dictates that legal requirements that the Company failed to adhere to in the past are

a red flag for knowledge that there may be continued reluctance to comply in the

future.”62 Typically, however, the red flag analogy depicts events or reports that

serve as warning signs to the Board of corporate wrongdoing after a system of

reporting and compliance is in place. These red flags put the board on notice that

the system is not working properly. If the members of the board become aware of

the red flags and do nothing in response, and thereby consciously disregard their

fiduciary duties, then they each individually are subject to liability for a failure of

oversight.63 In Plaintiffs’ view, however, the occurrence of the AOD in 2005

somehow emerged as a red flag for the Board in 2010 and then continued to wave

unattended through 2011. I cannot share that view.




62
     Pls.’ Answering Br. 30.
63
   See South, 62 A.3d at 15 (holding that plaintiff must allege that “the board consciously
failed to act after learning about evidence of illegality”) (emphasis supplied); Stone, 911
A.2d at 373 (admonishing that “good faith in the context of oversight must be measured
by the directors’ actions to assure a reasonable information and reporting system exists and
not by second-guessing after the occurrence of employee conduct that results in an
unintended adverse outcome”).

                                            28
       There might well be a reasonably conceivable scenario where the AOD itself

could have taken the form of a red flag. For instance, if UPS had entered the AOD

in 2005 and then continued a pattern of non-compliant shipments immediately

thereafter and through 2014, one might reasonably infer that the Board had

consciously disregarded UPS’s commitments under the AOD and its own oversight

responsibilities.64   But that is not what Plaintiffs have alleged.        Instead, the

Complaint acknowledges that UPS complied with AOD in 2005, 2006, 2007, 2008,

2009 and at least part of 2010. No red flags waved on any UPS mast during these

more than five years; from the Board’s perspective, the compliance systems were

working as intended. Even so, Plaintiffs would have the Court conclude they have

adequately pled that the Board acted in bad faith from 2010 through 2014 because it

did not presume that UPS was engaging in ongoing non-compliant behavior after the

AOD and did not take steps to address the non-compliance.                 Yet the only

particularized fact they have alleged in support of this claim is that UPS resolved

disputed allegations of non-compliant behavior more than five years prior. Plaintiffs




64
   See, e.g., Massey, 2011 WL 2176479, at *6–7, *19–21 (noting that despite settlements
of an enforcement action and a derivative action that required corporate governance
reforms, the complaint alleged with particularity that the company continued a troubling
pattern of violations immediately following the settlements for a period of several years
leading up to the filing of the complaint, and holding that these pled facts supported a
reasonable inference that the Board was “aware of a troubling continuing pattern on non-
compliance”).

                                           29
have failed to point to any Delaware law that would support the conclusion they have

asked me to draw and I am aware of none.65 I decline to set that precedent here.

           The first of the post-AOD red flags identified by Plaintiffs is the November

2010 Brothers Report to the Audit Committee.            Plaintiffs allege that Norman

Brothers made a presentation to the Audit Committee on November 3, 2010, and

that six of the Director Defendants were present at the meeting.66 They also allege

that the presentation made by Brothers reviewed “significant matters and trends.”67

Based on these allegations, Plaintiffs argue that it is reasonable to infer that Brothers,

“given his authority and knowledge under the [AOD], his direct reporting

relationship with the Audit Committee, and his status of Vice Secretary of the Audit

Committee . . . , knew of UPS’s abandonment of its obligations under the [AOD]

and reported the same to the Audit Committee in November 2010. . . .”68 Plaintiffs

would have the Court make two inferential leaps here: (1) Brothers knew of




65
   But see In re Intel Corp. Deriv. Litig., 621 F. Supp. 2d 165, 175 (D. Del. 2009) (prior
finding of wrongdoing not “a ‘red flag’ that the Directors allegedly disregarded at their
peril”); Zomolosky v. Kullman, 70 F. Supp. 3d 595, 605–06 (D. Del. 2014) (prior finding
of patent infringement did not put directors on heightened notice of ongoing patent
infringement).
66
     Compl. ¶ 77(c).
67
     Id.
68
     Pls.’ Answering Br. 34.

                                            30
compliance issues related to the AOD; and (2) he reported those issues to the Audit

Committee.69

           Plaintiffs’ invitation to play inferential hopscotch does not comport with

Rule 23.1’s “stringent requirements of factual particularity.”70 While the Court must

“draw all reasonable inferences in the plaintiff’s favor,” our Supreme Court has

made clear that “conclusory allegations are not considered as expressly pleaded facts

or factual inferences.”71 Even reasonable inferences “must logically flow from

particularized facts alleged by the plaintiff.”72 Plaintiffs’ allegations that Brothers

had knowledge of the AOD because he was charged with the ultimate responsibility

to implement it, and that he must have advised the Audit Committee that UPS had

abandoned its obligations when he reported on “significant matters and trends,” are

both wholly conclusory.           Plaintiffs have not tied these allegations to any

particularized facts about what Brothers knew, when he knew it or what he actually

told the Audit Committee. Such inferential layering, all the more glaring in that it




69
  Oral Arg. Tr. 56 (“inferences are leaps . . . we are entitled to leaps provided that they’re
reasonable.”).
70
     Brehm, 746 A.2d at 254.
71
     Wood, 953 A.2d at 140 (internal citations and quotations omitted).
72
     Id.

                                              31
follows Plaintiffs’ receipt of Section 220 documents, does not satisfy the factual

particularity required of Plaintiffs seeking demand excusal.73

         Plaintiffs’ next proffer as a post-AOD red flag the September 16, 2011,

memorandum from “BD Memo” which shows that at least one UPS business

department was aware of violations of the AOD. This internal company memo

reported that the ATF and NYTF were investigating UPS and had determined that

UPS customers had illegally shipped cigarettes within New York in violation of the

AOD.74 Plaintiffs maintain that “[i]t is reasonable to infer that, as the contact person

for the NYAG, Brothers would have been informed by the NYAG of the [AOD]

violations.”75 Going one step further, as Plaintiffs must in order to show that the

information reached the Director Defendants, Plaintiffs say that “[g]iven that the

Board was bound by the [AOD], and given the Company’s wholesale disregard for

the [AOD] and cigarette laws and regulations, it is more than reasonable to infer that




73
  Cf. Wal-Mart Stores, Inc. v. Ind. Elec. Workers Pension Tr. Fund IBEW, 95 A.3d 1264,
1273 (Del. 2014) (holding that it might be reasonable to infer that officers passed certain
information on to directors if “officer-level documents” sought in a § 220 demand
“establish[ed] director knowledge of the WalMex Investigation by establishing that certain
Wal-Mart officers were in a ‘reporting relationship’ to Wal-Mart directors, that those
officers did in fact report to specific directors, and that those officers received key
information regarding the WalMex Investigation”).
74
     Compl. Ex. C at UPS000034.
75
     Pls.’ Answering Br. 35.

                                            32
Brothers informed the Audit Committee at this time of the wrongdoing, given

Brothers’ knowledge and his duty to report to the Audit Committee.”76

         Plaintiffs’ arguments on this supposed red flag can fare no better than their

arguments related to the 2010 Audit Committee presentation because both rest on

unsupported and therefore unreasonable inferences. Plaintiffs ask the Court to infer

that Norman Brothers received the information contained in the 2011 BD Memo

based solely on his position at UPS without tying their allegation to any

particularized facts. Once again, the best Plaintiffs can do to prop up the inference

they ask the Court to draw is point to the absence of Section 220 documents on the

topic of the AOD or illegal cigarette shipments and then argue, given the current

federal enforcement action, that Brothers and the Board must have known of

ongoing violations. As before, this falls well short of the particularized factual

pleading mark set by Rule 23.1.

         Moreover, even if the Complaint did plead particularized facts that Norman

Brothers knew of the information contained in the BD Memo, Plaintiffs’ red flag

argument would fail for the independent reason that they have not pled that Brothers

actually reported to the Director Defendants after the date of the memo. Brothers

2010 report to the Audit Committee pre-dates the 2011 BD Memo. Therefore,



76
     Pls.’ Answering Br. 36.

                                           33
Plaintiffs were required to allege that at some time after the date of the BD Memo

Brothers reported information contained in the memo to the Director Defendants.

The Complaint says nothing of the sort.

           The Eighth Circuit’s analysis in Cottrell on behalf of Wal-Mart Stores, Inc. v.

Duke is instructive with respect to the appropriate treatment of strained inferences.77

In Duke, the plaintiffs adequately alleged that the chair of the Walmart audit

committee had received a report of serious criminal wrongdoing and that he was a

direct report to the Walmart board of directors.78 Nevertheless, applying Delaware

law, the court concluded that “Delaware courts have consistently rejected . . . the

inference that directors must have known about a problem because someone was

supposed to tell them about it.”79 In this regard, the court observed that “[o]ther than

[pleading facts regarding the officers’] reporting obligations, the shareholders did

not plead any facts supporting the inference that the officers actually shared their

knowledge.”80 The court noted that “[t]here are no specific allegations showing any

of the identified officers met with the board, talked to board members, or otherwise




77
     829 F.3d 983 (8th Cir. 2016).
78
     Id. at 988, 991.
79
     Id. at 995.
80
     Id.

                                              34
made reports . . .”81 In the absence of such allegations, the court held that Plaintiffs

had not adequately pled demand futility and affirmed the trial court’s dismissal of

the complaint under Rule 23.1.

         Plaintiffs would have the court draw the same unsupportable inferences that

were squarely rejected in Duke—that Brothers must have informed the Audit

Committee of alleged violations of the AOD—without pleading any particularized

facts that he actually met with or reported to the Director Defendants after he

allegedly obtained this information. This yawning gap between the pled facts and

the requirement to plead bad faith cannot be bridged under Delaware law, even at

this early stage of the litigation.82



81
     Id. (citing Wal-Mart Stores, Inc., 95 A.3d at 1273; Desimone, 924 A.2d at 943).
82
  Plaintiffs’ urging that the Court not read too much into the absence of pled facts regarding
Board-level knowledge because sophisticated corporate actors “are not apt to write
incriminating Board presentations or minutes” (Pls.’ Answering Br. 37), and their related
citation to Pyott, are not only legally unpersuasive, they are misleading. In Pyott, the court
noted that in order to plead a Caremark claim based on illegal corporate conduct, plaintiffs
do not have to identify actual confessions of illegality because “sophisticated corporate
actors at times engage in illegal behavior and attempt to hide their misconduct with the
appearance of legal compliance.” Pyott, 46 A.3d at 357. The purpose of the court’s
observation about the behavior of corporate actors in Pyott was to point out that it would
be too much to require plaintiffs to plead actual confessions of illegality to survive a
Rule 23.1 motion because it would be “astounding” if corporate actors openly described
their own conduct as illegal in corporate documents. Id. An acknowledgement of this
basic human instinct for self-preservation is a far cry from a judicial declaration that a court
should presume that reports from corporate officers to a board of directors regarding illegal
activity occurring in the field of operations would go wholly undocumented.



                                              35
      The third proffered post-AOD red flag is a series of three Audit Committee

Presentations from Mohammad Azam, a member of the UPS Internal Audit,

Compliance and Ethics department, which brought possible issues of non-

compliance to the Director Defendants. The issue raised here is not whether these

presentations served as red flags, but whether the Director Defendants reacted to

them or consciously disregarded them by doing nothing.

      Plaintiffs, of course, allege that the Board did nothing in response to the Azam

presentations. The documents Plaintiffs incorporated by reference in the Complaint,

however, tell a different story. For example, following the February 12, 2014 Audit

Committee Meeting, when the Audit Committee was informed of an enforcement

action against FedEx and that New York City had approached UPS with similar

issues, the presentation reflects that UPS was going to “increase employee training

frequency in the areas with the highest risk,” “improve reporting quality by

establishing a Help Line for processing and documenting reports,” “add a Data

Analytics program to identify prospective offenders” and “establish [a] process for

investigation to ensure consistency.”83

      Similarly, at the May 7, 2014 Audit Committee Meeting, when the Audit

Committee was informed of allegations from the City and State of New York that


83
  Transmittal Aff. of Richard Li in Supp. of Defs.’ And Nominal Def.’s Opening Br. in
Supp. of Their Mot. to Dismiss (“Li Aff.”), Ex. 2 at UPS-000005.

                                          36
UPS was not in compliance with the AOD, the Audit Committee was told that UPS

would be performing a “compliance audit of high risk areas in New York,” that its

“Enhanced Tobacco Compliance Program Draft” had been reviewed by the State of

New York, and that UPS had identified “data analytics application updates to

improve compliance activity.”84 Lastly, at the August 6, 2014 Audit Committee

Meeting, when there was follow-up on the allegations of non-compliance with the

AOD, the presentation reflects that UPS had “identified high-risk New York

accounts” and that there was “confirmation with all high risk accounts of their

regulatory compliance.”85

         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. Plaintiffs’ counsel admitted as much at oral argument.86 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


84
     Li Aff., Ex. 3 at UPS-000012.
85
     Li Aff., Ex. 4 at UPS-000018.
86
  Oral Arg. Tr. 53 (“[T]hey did start to get reports from Mr. Mohammad Azam, and those
reports show that there was action . . . we’re probably in the area there of negligence, but
we’re not in the area of Caremark post-2014).

                                            37
ignored red flags in a manner that demonstrates a conscious failure to monitor or

oversee corporate operations. Demand on the Board cannot be excused as futile on

the basis that the Board consciously ignored red flags.

         4. The Complaint Fails to Plead Particularized Facts that Support a
            Reasonable Inference that the Director Defendants Acted in Bad Faith
            Based on the Magnitude and Duration of Wrongdoing

         Plaintiffs’ final argument is that “[t]he magnitude and duration of UPS’s

wrongdoing [support] a reasonable inference that the Board was aware of the

Company’s policy to renege on its obligations under the [AOD].”87 According to

Plaintiffs, their pleading of this dynamic amounts to an adequate pleading of

scienter. I disagree.

         Plaintiffs’ pleading burden is to allege particularized facts that create a

reasonable inference that the Director Defendants were “conscious that they were

not doing their jobs.”88 Accordingly, to show that the Director Defendants acted in

bad faith on the theory Plaintiffs espouse, the pled facts must allow a reasonable

inference that the corporate wrongdoing was of such a magnitude and duration that

the Board must have known they were not doing their job to look after the

corporation’s best interests. To be sure, Plaintiffs make numerous allegations




87
     Pls.’ Answering Br. 26.
88
     Guttman, 823 A.2d at 506.

                                          38
concerning the number of deliveries of untaxed cigarettes made by UPS. What

Plaintiffs have not alleged, however, are any particularized facts that would allow

the Court to consider the magnitude of these deliveries in the context of UPS’s

overall operations. In this contextual vacuum, the Court is asked to infer that the

Director Defendants must have known they were failing in their oversight

obligations based on the magnitude of AOD non-compliance. Saying something is

“huge” doesn’t make it huge; and saying something is bad faith, without more, does

not adequately plead bad faith.89

         UPS’s 2015 Form 10k, incorporated by reference in the Complaint at ¶ 33,

discloses that UPS makes more than 18.3 million package deliveries per day. The

Complaint alleges that UPS made approximately 78,000 shipments of illegal

cigarettes between 2010 and 2014.90 This is hardly a ratio that alone would support

an inference of bad faith.91 This court’s analysis in Armstrong is instructive on this

point:



89
     Caremark, 698 A.2d at 972 (describing the corporate liability at issue there as “huge”).
90
     Compl. ¶¶ 58–59.
91
  In this important respect, Plaintiffs’ allegations differ from several of the cases to which
they cite. See e.g. Rosenbloom v. Pyott, 765 F.3d 1137, 1154 (9th Cir. 2014) (Botox, the
drug being marketed for off-label uses, constituted 24 to 36% of total net sales across all
products lines during a nine-year period); In re Abbott Depakote S’holder Deriv. Litig.,
2013 WL 2451152, at *1 (N.D. Ill. June 5, 2013) (Depakote, the drug being marketed for
off-label uses, accounted for between 8–11% of total sales during a three-year period); In
re Abbott Labs. Deriv. S’holders Litig., 325 F3d 795, 800 (7th Cir. 2003) (business division
                                               39
           The court accepts, in principle, that a director could be found liable for
           remaining ignorant of a large fraud occurring in plain sight, even if the
           director is able to show that the company had established a full set of
           supervisory controls. In this case, however, all the plaintiff has said is
           that the Enron and WorldCom relationships turned out to have material
           consequences. The complaint does not even allege that either of the
           challenged relationships formed an unusually large part of Citigroup’s
           business while the relationships were ongoing. The well-pleaded facts
           provide no basis to believe, therefore, that the directors ignored a
           mammoth fraud. Rather, the facts only show that, as in Caremark
           itself, the ‘liability that eventuated in this case was huge.’92

           While UPS’s ultimate liability may turn out to be significant, as Plaintiffs

point to a figure of at least $180 million in fines and penalties to which UPS may be

exposed, our law holds that “[a]bsent any facts to show that a board’s ignorance can

only be explained by a breach of fiduciary duty, such as allegations as to the

centrality of the fraudulent relationships to the corporation's business, the size of any

financial loss is not a sufficient basis on which to rest liability.” 93 Plaintiffs have

not, therefore, pled particularized facts from which it can reasonably be inferred that

the Director Defendants acted in bad faith based solely upon the size or duration of

the alleged wrongdoing.




at which corporate wrongdoing occurred represented approximately 22% of total sales and
13% of total profits in the relevant one-year time period).
92
     Armstrong, 2006 WL 391931, at *6 (quoting Caremark, 698 A.2d at 971).
93
     Id.

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                              III.   CONCLUSION

      For the foregoing reasons, Plaintiffs have failed to plead particularized facts

that demonstrate that demand on the UPS Board would have been futile with respect

to their breach of fiduciary duty claim. Accordingly, the motion to dismiss the

Complaint with prejudice is GRANTED.

      IT IS SO ORDERED.




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