   IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

KYLE ELLIS, derivatively on behalf of )
ABBVIE, INC.,                         )
                                      )
                Plaintiff,            )
                                      )
     v.                               ) C.A. No. 2017-0342-SG
                                      )
RICHARD A. GONZALEZ, ROBERT J. )
ALPERN, ROXANNE S. AUSTIN,            )
WILLIAM H.L. BURNSIDE, EDWARD )
M. LIDDY, EDWARD J. RAPP,             )
GLENN F. TILTON, ROY S.               )
ROBERTS, and FREDERICK H.             )
WADDELL,                              )
                                      )
                Defendants,           )
                                      )
and                                   )
                                      )
ABBVIE, INC., a Delaware Corporation, )
                                      )
                Nominal Defendant.    )

                       MEMORANDUM OPINION

                       Date Submitted: April 3, 2018
                       Date Decided: July 10, 2018

Blake A. Bennett, of COOCH & TAYLOR, PA., Wilmington, Delaware; OF
COUNSEL: Francis A. Bottini, Jr. and Albert Y. Chang, of BOTTINI & BOTTINI,
INC., La Jolla, California, Attorneys for Plaintiff.

Lisa A. Schmidt and Daniel E. Kaprow, of RICHARDS, LAYTON & FINGER, P.A.,
Wilmington, Delaware; OF COUNSEL: Robert J. Kopecky and Joshua Z.
Rabinovitz, of KIRKLAND & ELLIS LLP, Chicago, Illinois, Attorneys for
Defendants and Nominal Defendant.

GLASSCOCK, Vice Chancellor
      This Memorandum Opinion takes yet another stroll through the legal thicket

created by the ill-fated corporate inversion merger agreement between

pharmaceutical giants AbbVie, Inc., a Delaware corporation, and Shire plc, a citizen

of the island of Jersey. An important consideration for the merger, for AbbVie, was

the tax savings it stood to realize under the tax laws of a foreign jurisdiction, rather

than the United States. That consideration proved ephemeral; during pendency of

the merger, the United States Treasury Department announced that it would

reinterpret the law so that the tax savings, in part, would no longer be possible.

Ultimately, the AbbVie board of directors reversed its recommendation that

stockholders approve the merger, and Shire consented to depart the relationship as

friends, a bittersweet sentiment no doubt made less bitter by AbbVie’s payment of a

$1.64 billion breakup fee. Litigation followed on several fronts.

      The Plaintiff here is a stockholder of AbbVie. He seeks to sue the AbbVie

board of directors on behalf of the corporation, derivatively. His theory is that

AbbVie released misleading statements to the public and stockholders, both before

and after the Treasury Department’s announcement of its new “regulatory guidance”

that bade to destroy the tax advantages of the merger. According to the Plaintiff,

these statements were false, and resulted in damage to AbbVie. The Plaintiff failed

to demand that the company undertake this litigation, as required by Court of

Chancery Rule 23.1, but contends that demand should be excused here. The single


                                           1
ground upon which he argues demand futility is that the Defendants face a

substantial risk of liability in the litigation, and therefore are incapable of bringing

their business judgment to bear on any such demand.

       As this Court has had many occasions to point out, choses in action like the

one at issue here are assets of the corporation, and like any asset are to be deployed

according to the business judgment of the directors. Only where a plaintiff pleads

specific facts which, if true (and with all reasonable inferences therefrom),

demonstrate a substantial risk of liability to a majority of the board, will control of

the litigation asset be stripped from the board and given to the putative derivative

plaintiff.

       Before me is the Defendants’ Motion to Dismiss under Rule 23.1. The

Plaintiff points to potential liability on the part of directors for statements made by

the company when the merger was announced (and by the company’s CEO soon

thereafter), saying that tax advantages were but one of several reasons for the merger.

He also points to statements by the CEO (and a Shire executive) immediately after

the Treasury tax announcement, implying that the merger would go forward

nonetheless. All these statements, per the Plaintiff, were false, and imply director

liability. Because the AbbVie charter contains a clause exculpating the directors for

all liability save for breach of the duty of loyalty, liability here attaches only if the

directors acted in bad faith with respect to the statements. I find, even to the extent


                                           2
that the Complaint adequately establishes that the statements were false or

misleading, it is bare of non-conclusory allegations that a majority of AbbVie’s

directors knew of the false statements and nonetheless acted in bad faith. Because

the Plaintiff has failed to plead an actionable breach of the duty of loyalty with

respect to a majority of the Defendants, demand is not excused, and the Motion to

Dismiss must be granted under Rule 23.1

       My reasoning follows.

                                  I. BACKGROUND1

       A. Parties

       Nominal Defendant AbbVie, Inc. is a Delaware corporation headquartered in

North Chicago, Illinois.2 AbbVie, a biopharmaceutical company, was spun off from

Abbott Laboratories in January 2013.3 By the summer of 2014, AbbVie had become

an international conglomerate with approximately 25,000 employees and a market

capitalization of around $86 billion.4 AbbVie’s certificate of incorporation contains

a Section 102(b)(7) provision that exculpates its directors from monetary liability

for breaches of the duty of care.5



1
  The facts, drawn from the Plaintiff’s Complaint and from other materials I may consider on a
motion to dismiss, are presumed true for purposes of evaluating the Defendants’ Motion to
Dismiss.
2
  Compl. ¶ 10.
3
  Id. ¶¶ 1, 10.
4
  Id. ¶ 23.
5
  Kaprow Aff. Ex. 2, art. IX.

                                              3
       Defendant Richard A. Gonzalez has served as AbbVie’s CEO and Chairman

since 2013.6 Defendants Robert J. Alpern, Roxanne S. Austin, William H.L.

Burnside, Edward M. Liddy, Edward J. Rapp, Glenn F. Tilton, Roy S. Roberts, and

Frederick H. Waddell (the “Director Defendants”) served on AbbVie’s board during

the events described in the Complaint.7 All of these individuals save Roberts were

AbbVie directors when the Complaint was filed.8

       Non-party Shire plc is a biopharmaceutical company incorporated in the

Channel Island of Jersey.9 Shire is headquartered in Dublin, Ireland.10

       Plaintiff Kyle Ellis has held AbbVie stock continuously since January 2013.11

       B. Factual Background

       This case stems from AbbVie’s proposed acquisition of Shire, which was

abandoned after the United States Treasury Department announced in September

2014 that it would take steps to make so-called “inversion transactions”12 less

attractive.13 The crux of the Complaint is that AbbVie’s directors breached their



6
  Compl. ¶ 11.
7
  Id. ¶¶ 12–19.
8
  Id. ¶¶ 11–19.
9
  Id. ¶ 20.
10
   Id.
11
   Id. ¶ 9.
12
   “A corporate inversion is a corporate reorganization in which a company changes its country of
residence by resituating its parent element in a foreign country. Inversions are—or were—
attractive as a strategic business maneuver because they allow a corporation to adopt a foreign
country’s more favorable tax or corporate governance regime.” Southeastern Pa. Transp. Auth. v.
AbbVie Inc., 2015 WL 1753033, at *2 (Del. Ch. Apr. 15, 2015), aff’d, 132 A.3d 1 (Del. 2016).
13
   Compl. ¶¶ 2–3, 56.

                                               4
fiduciary duties by making material misrepresentations and omissions in connection

with the botched acquisition.14 While the Complaint exhaustively describes the

negotiations leading up to the merger,15 the details of those negotiations are largely

irrelevant to the issues presented by the Defendants’ Motion. I recite only those

facts necessary to understand the Plaintiff’s disclosure claims.

               1. AbbVie and Shire Agree to Merge, and AbbVie Touts the Benefits
               of the Proposed Acquisition

       After months of negotiations, on July 18, 2014, AbbVie and Shire entered into

an agreement whereby AbbVie would acquire Shire for approximately $54 billion.16

Under the agreement, AbbVie would form a wholly owned Jersey subsidiary (“New

AbbVie”), acquire Shire for a mix of cash and New AbbVie stock, and convert

AbbVie common stock into New AbbVie stock.17 AbbVie and Shire would then

become wholly owned subsidiaries of New AbbVie.18 If AbbVie’s board withdrew

its support for the transaction, AbbVie would pay Shire a $1.64 billion termination

fee.19 This amount, though facially large, was an unremarkable 3% of deal value. If

AbbVie’s board did not withdraw its support, but AbbVie’s stockholders

nevertheless voted down the deal, AbbVie would pay Shire no less than $500 million



14
   Id. ¶¶ 3–4.
15
   Id. ¶¶ 75–110.
16
   Id. ¶¶ 44, 66, 83–110.
17
   Id. ¶ 2 n.1.
18
   Id.
19
   Id. ¶ 46.

                                          5
and no more than $545 million to compensate Shire for costs incurred as part of the

transaction.20

          When AbbVie announced the agreement with Shire, it listed seven strategic

rationales for the merger:

              Larger and more diversified biopharmaceutical company with multiple
               leading franchises.

              Adds leading franchises with specialty therapeutic areas, including rare
               disease and neurosciences.

              Broad and deep pipeline of diverse development programs and
               enhanced R&D capabilities.

              Global resources and experienced teams positioned to continue to
               deliver strong shareholder returns to both AbbVie and Shire
               shareholders.

              Transaction expected to achieve a competitive tax structure and provide
               New AbbVie with enhanced access to its global cash flows.

              Transaction expected to be accretive to adjusted EPS in the first year
               following completion, and will increase to more than $1.00 per share
               by 2020.

              Significant financial capacity for future acquisitions, investment and
               opportunity for enhanced shareholder distributions and value
               creation.21

          Later, during a July 21, 2014 investor conference, AbbVie CEO Richard A.

Gonzalez stated that the merger “has a significant, both strategic and financial,



20
     Id. ¶ 47.
21
     Id. ¶ 49 (emphasis omitted).

                                            6
rationale. Tax is clearly a benefit, but it’s not the primary rationale for this.”22

Gonzalez reiterated that the transaction “has compelling financial impact well

beyond the tax impact,” and that “[w]e would not be doing it if it was just for the tax

impact.”23 According to Gonzalez, the tax impact was “an additional benefit that we

have.”24

       One month after the investor conference, AbbVie filed a Form S-4 that listed

ten rationales for the transaction, including “the combined financial strength and

R&D experience of New AbbVie,” and the “opportunity for New AbbVie to have

an enhanced financial profile and greater strategic and financial flexibility as

compared to AbbVie and Shire on a standalone basis.”25 As the Plaintiff points out,

AbbVie mentioned tax benefits as only one of the justifications for the transaction,

touting “the potential realization of tax and operational synergies by New AbbVie

as a result of the Merger.”26 But the Complaint does not allege that the Form S-4

contained false or misleading statements; indeed, it contrasts the disclosures in the

Form S-4 with Gonzalez’s purportedly misleading statements at the July 21 investor

conference.27




22
   Id. ¶ 50 (emphasis omitted).
23
   Id. ¶ 51 (emphasis omitted).
24
   Id. (emphasis omitted).
25
   Id. ¶ 52.
26
   Id.
27
   Id. ¶¶ 53–54.

                                          7
               2. The Regulatory Environment Shifts, and AbbVie Terminates the
               Merger

       On September 22, 2014, the Treasury Department announced its plan to issue

regulatory guidance that would eliminate some of the tax advantages of merger-

based inversions.28       The Treasury Department stated that the changes would

“eliminate[] certain techniques inverted companies currently use to access the

overseas earnings of foreign subsidiaries of the U.S. company that inverts without

paying U.S. tax.”29 The summer before this announcement, there were signs that the

United States government was considering steps to limit inversions.30 For example,

on August 5, 2014, the Treasury Department announced that it was “reviewing a

broad range of authorities for possible administrative actions to limit inversions as

well as approaches that could meaningfully reduce the tax benefits after inversions

took place.”31

       According to the Plaintiff, the September 22 announcement “immediately

caused AbbVie’s Board to convene an emergency discussion about the effect of the

[announcement] and whether AbbVie should continue with the Merger.”32 One

week after the announcement, on September 29, AbbVie filed two Form 425s; one


28
   Id. ¶ 56.
29
   Id.
30
   Id. ¶¶ 40, 55.
31
   Id. ¶ 55. Despite the allegations of the Complaint, prior litigation over this unrequited merger
has revealed that the Treasury Department’s own public view of its ability to undertake such
administrative action was unclear as of that time. See AbbVie Inc., 2015 WL 1753033, at *7–8.
32
   Compl. ¶ 111.

                                                8
contained a letter from Gonzalez to Shire’s employees, and the other included a letter

from AbbVie Vice President Chris C. Turek to AbbVie’s employees.33 Gonzalez

said in his letter that he was “more energized than ever about our two companies

coming together,” that “[w]e have a very busy few months ahead as we work on

integration planning,” and that he “look[ed] forward to working with you much more

closely in the near future.”34 Similarly, Turek wrote in his letter that the company

would “concentrate on remaining requirements in a coordinated manner until

[AbbVie and Shire] are fully integrated,” and that “both integration planning teams

are committed to successful preparation for Day One.”35 Neither the Form 425s nor

the letters themselves were signed by any members of the AbbVie board.36

       On October 14, AbbVie announced that the board intended to “reconsider the

recommendation made on July 18, 2014 that AbbVie stockholders adopt the merger

agreement needed to complete the proposed Merger of AbbVie and Shire.”37 The

announcement noted that the AbbVie board would “consider, among other things,

the impact of the U.S. Department of Treasury’s proposed unilateral changes to the

tax regulations announced on September 22, 2014, including the impact to the

fundamental financial benefits of the transaction.”38 One day later, AbbVie issued


33
   Id. ¶¶ 60–61.
34
   Id. ¶ 60 (emphasis omitted).
35
   Id. ¶ 61 (emphasis omitted).
36
   Compl. Exs. 1, 2.
37
   Compl. ¶ 63.
38
   Id.

                                          9
a press release announcing that the board had decided to withdraw its

recommendation that stockholders vote in favor of the merger.39 According to the

press release, AbbVie and its board “made this determination following a detailed

consideration of the impact of the U.S. Department of Treasury’s unilateral changes

to the tax rules.”40 Shire’s stock price dropped from a closing price of $244.57 on

October 14 to a low of $156.25 on October 15.41

        On October 21, AbbVie issued another press release, this time to announce

that AbbVie and Shire had agreed to terminate the proposed merger.42             The

announcement disclosed that AbbVie had agreed to pay Shire the $1.64 billion

termination fee.43 AbbVie explained that the changes proposed by the Treasury

Department had “introduced an unacceptable level of risk and uncertainty given the

magnitude of the proposed changes and the stated intention of the Department of

Treasury to continue to revise tax principles to further impact such transactions.”44

Thus, “[t]he executive management team ultimately concluded that the transaction

was no longer in the best interests of stockholders at the agreed upon valuation, and

the Board fully supported that conclusion.”45



39
   Id. ¶ 112.
40
   Id.
41
   Id. ¶ 6.
42
   Id. ¶ 65.
43
   Id.
44
   Id.
45
   Id.

                                         10
               3. The Securities Fraud Class Action

       On November 25, 2014, several Shire stockholders filed a securities fraud

class action against AbbVie and Gonzalez (the “Federal Action”).46 The complaint

there alleged that AbbVie and Gonzalez had made several false and misleading

statements in connection with the Shire merger, statements that supposedly

downplayed the importance of tax benefits to the transaction.47 On March 10, 2017,

the court granted in part and denied in part the defendants’ motion to dismiss,

holding that the plaintiffs had stated a claim under Sections 10(b) and 20(a) of the

Securities Exchange Act of 1934 based on Gonzalez’s statements in the September

29, 2014 letter.48 According to the court, the complaint supported a reasonable

inference that “AbbVie’s omission of the fact that it was reconsidering the merger

rendered misleading Gonzalez’s [September 29] statement about the continued

planning for the transaction.”49 The court then held that the plaintiffs had adequately

alleged scienter, finding it reasonable to infer that the September 29 letter “was made

with a reckless disregard for the known or obvious danger of misleading buyers into

believing that AbbVie still fully intended to go forward with the merger when, in




46
   Id. ¶ 67; Rubinstein v. Gonzalez, 241 F. Supp. 3d 841, 849 (N.D. Ill. 2017).
47
   Rubinstein, 241 F. Supp. 3d at 849.
48
   Id. at 856–57. The court had previously dismissed the complaint in its entirety without prejudice,
following which the plaintiffs filed an amended complaint. Rubinstein v. Gonzalez, 2016 WL
1213931, at *1 (N.D. Ill. Mar. 29, 2016).
49
   Rubinstein, 241 F. Supp. 3d at 854.

                                                11
fact, AbbVie was in the process of analyzing whether to walk away from the deal in

light of the tax rule changes.”50 The Federal Action remains pending.

       C. This Litigation

       The Plaintiff commenced this action on May 4, 2017. The Complaint contains

a single count for breach of fiduciary duties against the Defendants.51 According to

the Plaintiff, the Defendants knowingly or recklessly issued false and misleading

statements about the proposed transaction, and failed to promptly disclose that the

AbbVie board was reconsidering the deal after the September 22, 2014 notice issued

by the Treasury Department.52 On May 30, 2017, the Defendants moved to dismiss

the Complaint under Court of Chancery Rule 23.1, arguing that the Plaintiff fails to

adequately allege a majority of AbbVie’s directors face a substantial likelihood of

liability for breach of fiduciary duty. I heard oral argument on that Motion on April

3, 2018.

                                  II. ANALYSIS

       The Defendants seek dismissal of the Complaint under Court of Chancery

Rule 23.1 for failure to make a demand. The demand requirement is an extension of

the fundamental principle that “directors, rather than shareholders, manage the




50
   Id. at 856.
51
   Compl. ¶¶ 131–36.
52
   Id. ¶ 134.

                                         12
business and affairs of the corporation.”53 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 directors or

comparable authority and the reasons for the plaintiff’s failure to obtain the action

or for not making the effort.”54

       Where, as here, the plaintiff has failed to make a presuit demand on the board,

the Court must dismiss the complaint “unless it alleges particularized facts showing

that demand would have been futile.”55 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).”56 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.”57

Nonetheless, the plaintiff is “entitled to all reasonable factual inferences that

logically flow from the particularized facts alleged.”58 In deciding a Rule 23.1



53
   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).
54
   Ct. Ch. R. 23.1(a).
55
   Ryan v. Gursahaney, 2015 WL 1915911, at *5 (Del. Ch. Apr. 28, 2015), aff’d, 128 A.3d 991
(Table) (Del. 2015).
56
   Brehm, 746 A.2d at 254.
57
   Grobow v. Perot, 539 A.2d 180, 187 (Del. 1988), overruled on other grounds by Brehm, 746
A.2d 244.
58
   Brehm, 746 A.2d at 255.

                                               13
motion, I am limited to “the well-pled allegations of the complaint, documents

incorporated into the complaint by reference, and judicially noticed facts.”59

       This Court analyzes demand futility under the test set out in Rales v.

Blasband.60 Rales requires a derivative plaintiff to allege particularized facts raising

a reasonable doubt that, if a demand had been made, “the board of directors could

have properly exercised its independent and disinterested business judgment in

responding to [it].”61 Aronson v. Lewis addresses the subset of cases in which the

plaintiff is challenging an action taken by the current board.62 To establish demand

futility under Aronson, the plaintiff must allege particularized facts creating a

reasonable doubt that “the directors are disinterested and independent” or the

“challenged transaction was otherwise the product of a valid exercise of business

judgment.”63      The tests articulated in Aronson and Rales are “complementary

versions of the same inquiry.”64 That inquiry asks whether the board is capable of

exercising its business judgment in considering a demand.65



59
   Breedy-Fryson v. Towne Estates Condo. Owners Ass’n, Inc., 2010 WL 718619, at *9 (Del. Ch.
Feb. 25, 2010).
60
   634 A.2d 927 (Del. 1993).
61
   Id. at 934.
62
   See id. at 933–34 (explaining that Aronson does not apply unless the plaintiff is challenging a
business decision by the board of directors that would be considering the demand).
63
   473 A.2d at 814.
64
   In re China Agritech, Inc. S’holder Derivative Litig., 2013 WL 2181514, at *16 (Del. Ch. May
21, 2013); see also David B. Shaev Profit Sharing Account v. Armstrong, 2006 WL 391931, at *4
(Del. Ch. Feb. 13, 2006) (“This court has held in the past that the Rales test, in reality, folds the
two-pronged Aronson test into one broader examination.”).
65
   In re Duke Energy Corp. Derivative Litig., 2016 WL 4543788, at *14 (Del. Ch. Aug. 31, 2016).

                                                14
       Here, the Plaintiff does not argue that demand is futile because the Defendants

have a financial interest in the conduct described in the Complaint, or because they

lack independence from an interested party.66 Instead, the Plaintiff claims that the

Defendants cannot impartially consider a demand because they face a substantial

likelihood of liability for AbbVie’s making material misrepresentations and

omissions in connection with the abandoned Shire acquisition. AbbVie’s certificate

of incorporation contains a Section 102(b)(7) clause that exculpates the directors

from liability for duty-of-care violations. Thus, under either Aronson or Rales, the

question here is the same: Does the Complaint adequately allege that a majority of

AbbVie’s board faces a substantial likelihood of liability for breaching the duty of

loyalty?67 Such a board, obviously, would be fatally conflicted in evaluating a

demand.


66
   True, the Plaintiff argues that Gonzalez lacks independence because of his position as AbbVie’s
CEO, among other things. But to satisfy Rule 23.1, the Plaintiff must plead demand futility as to
a majority of AbbVie’s directors. See, e.g., Ryan v. Armstrong, 2017 WL 2062902, at *10 (Del.
Ch. May 15, 2017) (noting that the “crux” of the demand-futility inquiry is “whether the majority
of the board, as it exists at the time the complaint is filed, is capable of considering the demand in
light of the circumstances” (emphasis added)), aff’d, 176 A.3d 1274 (Table) (Del. 2017). Thus,
the Plaintiff’s allegations about Gonzalez are irrelevant unless the Plaintiff is able to allege with
particularity that a majority of the AbbVie board faces a substantial likelihood of liability. I
therefore focus on the demand-futility allegations relevant to a majority of the directors.
67
   See Steinberg v. Bearden, 2018 WL 2434558, at *7 n.54 (Del. Ch. May 30, 2018) (“Ultimately
it is inconsequential which test applies [i.e., Rales or Aronson], because under both Rales and
Aronson, the relevant inquiry is whether Steinberg has pled sufficiently a non-exculpated claim
for bad faith against a majority of the Board.”); see also Lenois v. Lawal, 2017 WL 5289611, at
*14 (Del. Ch. Nov. 7, 2017) (“[W]here an exculpatory charter provision exists, demand is excused
as futile under the second prong of Aronson with a showing that a majority of the board faces a
substantial likelihood of liability for non-exculpated claims.”); In re China Agritech, Inc. S’holder
Derivative Litig., 2013 WL 2181514, at *16 (“A director cannot consider a litigation demand under

                                                 15
       To establish a substantial likelihood of liability, a plaintiff need not

“demonstrate a reasonable probability of success on the claim.”68 Rather, the

plaintiff must “make a threshold showing, through the allegation of particularized

facts, that [its] claims have some merit.”69 “This standard recognizes that the

purpose of the particularity requirement is not to prevent derivative actions from

going forward, but rather ‘to ensure only derivative actions supported by a

reasonable factual basis proceed.’”70

       A. Demand Is Not Futile as to the Disclosure Claims

       According to the Plaintiff, the Director Defendants face a substantial risk of

liability for approving—or failing to correct—materially misleading statements

regarding the proposed Shire transaction. Specifically, the Plaintiff alleges that the

Director Defendants (i) caused AbbVie and Gonzalez to make statements in July

2014 that downplayed the importance of tax benefits to the merger, even though

those benefits were the primary rationale for pursuing the transaction; and (ii)

knowingly failed to correct Gonzalez’s and Turek’s purportedly misleading

statements in the Form 425s filed on September 29, 2014, thereby creating the

impression that AbbVie was still committed to the merger even though, according


Rales if the director is interested in the alleged wrongdoing, not independent, or would face a
‘substantial likelihood’ of liability if suit were filed.” (quoting Rales, 634 A.2d at 936)).
68
   In re China Agritech, Inc. S’holder Derivative Litig., 2013 WL 2181514, at *16.
69
   Rales, 634 A.2d at 934.
70
   In re China Agritech, Inc. S’holder Derivative Litig., 2013 WL 2181514, at *16 (quoting In re
Dow Chem. Co. Derivative Litig., 2010 WL 66769, at *6 (Del. Ch. Jan. 11, 2010)).

                                              16
to the Plaintiff, the board had already begun reassessing the transaction. In my view,

neither of these theories establishes that the Director Defendants face a substantial

likelihood of liability for breaching the duty of loyalty. Thus, demand is not excused.

       The duty of disclosure “is not an independent duty, but derives from the duties

of care and loyalty.”71 Because the “scope and requirements” of the duty of

disclosure “depend on context,” Delaware law has developed specific rules for

applying the duty in different factual scenarios.72 Among those scenarios are (i)

requests for stockholder action, (ii) communications outside the context of

stockholder solicitation, (iii) attempts to seek ratification of transactions that do not

require a stockholder vote, and (iv) direct sales or purchases of stock by corporate

fiduciaries.73 The statements at issue in this case were not made in the context of

requests for stockholder action, and they did not relate to stock transactions or

attempts to obtain ratification. Thus, the challenged communications fall within the

Malone v. Brincat line of cases.74




71
    Pfeffer v. Redstone, 965 A.2d 676, 684 (Del. 2009) (citation and internal quotation marks
omitted).
72
   In re Wayport, Inc. Litig., 76 A.3d 296, 314 (Del. Ch. 2013).
73
   Id. at 314–15.
74
   See id. at 315 (“A third scenario [in which the duty of disclosure is often invoked] involves a
corporate fiduciary who speaks outside of the context of soliciting or recommending stockholder
action, such as through ‘public statements made to the market,’ ‘statements informing shareholders
about the affairs of the corporation,’ or public filings required by the federal securities laws.”
(quoting Malone v. Brincat, 722 A.2d 5, 11 (Del. 1998))).

                                               17
       Malone established that directors owe a duty not to knowingly disseminate

false information to stockholders, even when the directors are not seeking

stockholder action.75 To plead a disclosure claim where there is no request for

stockholder action, a plaintiff must allege that the directors “deliberately

misinform[ed] shareholders about the business of the corporation, either directly or

by a public statement.”76 As the Malone Court explained:

       Whenever directors communicate publicly or directly with
       shareholders about the corporation’s affairs, with or without a request
       for shareholder action, directors have a fiduciary duty to shareholders
       to exercise due care, good faith and loyalty. It follows a fortiori that
       when directors communicate publicly or directly with shareholders
       about corporate matters the sine qua non of directors’ fiduciary duty to
       shareholders is honesty.77

Because AbbVie’s charter contains a Section 102(b)(7) exculpatory provision, the

Plaintiff here cannot establish demand futility based on his disclosure claims unless

he “plead[s] particularized factual allegations that ‘support the inference that the

disclosure violation[s] w[ere] made in bad faith, knowingly or intentionally.”78


75
   Malone, 722 A.2d at 9, 14.
76
   Id. at 14; see also In re INFOUSA, Inc. S’holders Litig., 953 A.2d 963, 990 (Del. Ch. 2007)
(“When a Delaware corporation communicates with its shareholders, even in the absence of a
request for shareholder action, shareholders are entitled to honest communication from directors,
given with complete candor and in good faith. Communications that depart from this expectation,
particularly where it can be shown that the directors involved issued their communication with the
knowledge that it was deceptive or incomplete, violate the fiduciary duties that protect
shareholders. Such violations are sufficient to subject directors to liability in a derivative claim.”
(footnote omitted)).
77
   Malone, 722 A.2d at 10.
78
   In re Citigroup Inc. S’holder Derivative Litig., 964 A.2d 106, 132 (Del. Ch. 2009) (emphasis
added) (quoting O’Reilly v. Transworld Healthcare, Inc., 745 A.2d 902, 915 (Del. Ch. Aug. 20,
1999)).

                                                 18
              1. The July 2014 Statements

       The first set of purported misstatements were made in July 2014. After

AbbVie and Shire agreed to merge on July 18, 2014, AbbVie gave an investor

presentation listing seven strategic rationales for the transaction. Only one of those

rationales invoked tax benefits: “Transaction expected to achieve a competitive tax

structure and provide New AbbVie with enhanced access to its global cash flows.”79

The other benefits of the transaction included “[b]road and deep pipeline of diverse

development programs and enhanced R&D capabilities,” and “[l]arger and more

diversified biopharmaceutical company with multiple leading franchises.”80 Later,

at a July 21 investor conference, Gonzalez said that tax benefits were “not the

primary rationale for [the merger],”81 and that “[w]e would not be doing it if it was

just for the tax impact.”82 Gonzalez also claimed that the deal “has a significant,

both strategic and financial, rationale.”83

       According to the Plaintiff, all of these statements were materially misleading

because they downplayed the importance of tax benefits to the transaction. Indeed,

the Plaintiff argues that tax savings were the primary justification for the merger,

rendering misleading any statements that suggested otherwise.           In my view,



79
   Compl. ¶ 49 (emphasis omitted).
80
   Id. (emphasis omitted).
81
   Id. ¶ 50 (emphasis omitted).
82
   Id. ¶ 51 (emphasis omitted).
83
   Id. ¶ 50 (emphasis omitted).

                                              19
however, none of these statements gives rise to a substantial threat of personal

liability for the Director Defendants.

       First, the Complaint fails to adequately allege that any of these statements

were false or misleading. The Plaintiff’s theory of falsity rests on the premise that

tax benefits were the sole, or at least primary, rationale for the merger. To support

this premise, the Plaintiff points to AbbVie’s October 15, 2014 press release. There,

the company announced that the board had withdrawn its recommendation in favor

of the merger “following a detailed consideration of the impact of the U.S.

Department of Treasury’s unilateral changes to the tax rules.”84 The Plaintiff argues

that, because the limitation of tax benefits caused AbbVie’s board to withdraw its

support for the merger, those benefits must have provided the true, substantive

rationale for the deal. But that is a specious argument. Tax advantages may have

been a necessary component of the deal—that is, a benefit whose loss (or limitation)

would make the merger untenable at the agreed-upon price. It does not follow,

however, that tax benefits were the main (or only) reason AbbVie pursued the

transaction.85 And, contrary to the Plaintiff’s conclusory allegation,86 AbbVie did

not suggest in July 2014 that the merger would close if the tax benefits fell away.


84
   Id. ¶ 112.
85
   See AbbVie Inc., 2015 WL 1753033, at *15 n.122 (“[I]t is entirely possible that a corporation
could want to pursue a transaction for several reasons, the loss of any of which would make the
transaction no longer financially or strategically tenable.”).
86
   See Compl. ¶ 54 (“Gonzalez and AbbVie’s Board led the market to believe that AbbVie was
committed to the Merger even if a subsequent change in the tax law were to occur.”).

                                              20
All AbbVie said was that tax savings were not sufficient, standing alone, to justify

the merger, and that they were one among several considerations supporting the

transaction. There was nothing inferentially false or misleading about that.

       The court in Rubinstein—the securities fraud class action premised on

essentially the same set of purported misstatements as the present case—recognized

the flaw in the Plaintiff’s theory of falsity. The Rubinstein court reasoned thus:

       [T]he total value of the deal was $54 billion. The break-up fee was
       $1.64 billion, or approximately 3% of the total value. Given this deal
       structure, it would be expected that AbbVie’s loss of any benefit worth
       3% or more of the total deal value could cause AbbVie to terminate the
       deal. But it does not follow that any benefit of the deal that is worth at
       least 3% of the transaction value must be the “primary”—i.e. the “most
       important”—reason for the deal. As the Court previously concluded,
       “[s]aying a benefit is not the ‘primary rationale’ is not the same as
       saying it is immaterial or unimportant.”87

Indeed, for the Plaintiff’s theory of falsity to succeed, he would have to plead with

particularity that most of the value of the merger to AbbVie stemmed from the

expected tax benefits, or specifically plead facts implying that the other reasons

given were shams. The Plaintiff has not done so.

       Moreover, the Plaintiff has failed to allege with particularity that the Director

Defendants had any involvement with the July 2014 statements.88 The Complaint


87
   Rubinstein, 241 F. Supp. 3d at 852–53 (second alteration in original) (citations and footnote
omitted).
88
   See In re Citigroup Inc. S’holder Derivative Litig., 964 A.2d at 134 (“[T]he Complaint does not
contain specific factual allegations that reasonably suggest sufficient board involvement in the
preparation of the disclosures that would allow me to reasonably conclude that the director
defendants face a substantial likelihood of personal liability.”).

                                               21
does not allege that the Director Defendants approved the announcement listing the

seven rationales, let alone that they helped prepare it. Nor does the Complaint plead

that the Director Defendants caused Gonzalez to make the purportedly misleading

statements at the July 21 investor conference. Perhaps recognizing these pleading

gaps, the Plaintiff asks me to infer the Director Defendants’ involvement in the

challenged statements from their role in negotiating the merger. It is true that the

Director Defendants were actively involved in the merger negotiations, meeting

several times in 2014 to discuss the proposed transaction. But that does not support

a reasonable inference that the Director Defendants were responsible for the July

2014 statements.89 Those particular statements aside, the Complaint does not even

allege that the Director Defendants generally oversaw the preparation or

dissemination of AbbVie’s public statements regarding the proposed merger. Thus,

even if the statements at issue were false (as I have held has been insufficiently pled),

the lack of any well-pled allegations suggesting the Director Defendants’

involvement with them would independently preclude a finding of demand futility.90



89
   See Wood v. Baum, 953 A.2d 136, 140 (Del. 2008) (“The Court should draw all reasonable
inferences in the plaintiff’s favor. Such reasonable inferences must logically flow from
particularized facts alleged by the plaintiff.” (citation and internal quotation marks omitted)).
90
   The Plaintiff claims that the Defendants signed the Form S-4 filed on August 21, 2014. That is
incorrect: the Form S-4 was signed by the directors of New AbbVie, who were not the same as the
AbbVie directors. Kaprow Aff. Ex. 1, at 247. In any event, the Form S-4 is irrelevant, because
the Complaint does not allege that it contained any misstatements. And even if the Complaint had
made such an allegation, it would not help the Plaintiff, because there was nothing false or
misleading about the Form S-4’s listing tax benefits as one among ten rationales for the merger.

                                               22
               2. The Form 425s

       The Plaintiff next points to the two letters AbbVie filed on Form 425 on

September 29, 2017, one week after the Treasury Department announced its

intention of eliminating some of the tax advantages of merger-based inversions. In

one letter, Gonzalez said that he was “more energized than ever about our two

companies coming together,” that “[w]e have a very busy few months ahead as we

work on integration planning,” and that he “look[ed] forward to working with you

much more closely in the near future.”91 In the other letter, Turek wrote that AbbVie

would “concentrate on remaining requirements in a coordinated manner until

[AbbVie and Shire] are fully integrated,” and that “both integration planning teams

are committed to successful preparation for Day One.”92 These letters were not

signed by any of the Director Defendants.

       At oral argument, the Plaintiff clarified his theory of liability with respect to

these statements.93       According to the Plaintiff, the September 29 letters were


91
   Compl. ¶ 60 (emphasis omitted).
92
   Id. ¶ 61 (emphasis omitted).
93
   See Apr. 3, 2018 Oral Arg. Tr. 39:4–16 (“THE COURT: All right. So your theory is even if
that’s true, even if it was true that the integration teams were still working, an investor would draw
the inference that the board was not reconsidering because the integration teams were still working.
Therefore, knowing that that false impression would be put out by the proxy, the board had a duty
to reveal that it was considering whether it should go forward with the transaction in light of the
tax change? MR. BOTTINI: Right. THE COURT: That’s the theory? MR. BOTTINI: That’s
exactly right.”).

       Indeed, at oral argument, the Plaintiff apparently abandoned any argument that the July
2014 statements constituted actionable breaches of the duty of loyalty. See id. at 28:14–16 (“THE
COURT: But you’re not saying that a breach of duty arose before September 22nd? MR.

                                                 23
misleading because they gave the impression that AbbVie was fully committed to

consummating the merger when, in fact, the board had convened an emergency

meeting immediately after the September 22 announcement to discuss the impact of

the proposed regulatory changes.               In other words, stockholders reading the

September 29 letters would have no inkling that the AbbVie board had already begun

reconsidering its support for the merger. The Plaintiff alleges that the Director

Defendants must have either had a hand in preparing the letters or become aware of

them soon after they were issued. Either way, the Director Defendants breached the

duty of loyalty by failing to promptly correct the misleading impression created by

Gonzalez’s and Turek’s assurances that AbbVie was preparing for the merger. Of

course, approximately two weeks after the September 29 letters, AbbVie in fact

disclosed that the board was reassessing its support for the transaction. It is this

theory—absent allegations of director breaches of loyalty—that survived a motion

to dismiss in the Federal Action.94




BOTTINI: Right.”). Nevertheless, for completeness’ sake, I have addressed the Plaintiff’s
arguments regarding the pre-September 2014 statements.
94
   See Rubinstein, 241 F. Supp. 3d at 856 (“Taken together, these facts satisfy Plaintiffs’ obligation
to include in their complaint strong circumstantial evidence that Gonzales’ September 29 statement
was made with a reckless disregard for the known or obvious danger of misleading buyers into
believing that AbbVie still fully intended to go forward with the merger when, in fact, AbbVie
was in the process of analyzing whether to walk away from the deal in light of the tax rule changes.
Therefore, the Court denies Defendants’ motion to dismiss Plaintiffs’ Section 10(b)/Rule 10b–5
claim to the extent that it is based on statements made in Gonzales’ September 29, 2014 letter to
Shire employees.”).

                                                 24
       The difficulty for the Plaintiff here is the lack of facts implying bad faith on

the part of the Director Defendants. The Plaintiff speculates that the Director

Defendants delayed disclosing their reassessment of the merger in order to save

AbbVie millions of dollars in interest on the $1.64 billion termination fee the

company would have to pay Shire. In other words, any failure of oversight was

deliberate, not negligent, as demonstrated by this motive. The motive, however, is

spurious. As the Complaint alleges, the termination fee was triggered only if the

board withdrew or modified its recommendation in favor of the merger.95 Thus,

even if AbbVie had announced on the evening of September 22 that its board was

reassessing the transaction, that would not have triggered the termination fee.96

Avoiding interest cannot have motivated the Director Defendants to conceal facts

that would not, in actuality, have started the interest clock.97

       It is quite apparent that, until the board made a final decision, preparation for

the merger must continue in light of the fourth-quarter closing date; nonetheless, the




95
   Compl. ¶ 46.
96
   Cf. Rubinstein, 241 F. Supp. 3d at 855–56 (“The Amended Complaint alleges that Gonzales’s
September 29 statement was made intentionally ‘in an attempt to stave off an immediate $1.64
billion termination fee’ and retain the interest on those funds for as long as possible. This allegation
does not support a cogent and compelling inference of scienter, because the event triggering
termination of the merger was the Board’s withdrawal of its recommendation for the transaction,
not Gonzales’ statement.” (citation omitted)).
97
   At oral argument, the Plaintiff’s counsel conceded that the termination fee would not be triggered
by an announcement that AbbVie’s board was reassessing the merger. See April 3, 2018 Oral Arg.
Tr. 54:9–13 (“THE COURT: I mean, even if the [AbbVie board] had said we’re reconsidering,
that wouldn’t have triggered the break fee. MR. BOTTINI: No, no, no. That’s correct.”).

                                                  25
Plaintiff points to damages potentially arising from the failure to correct the

misleading impression created by the September 29 letters. Specifically, the letters

induced some Shire stockholders to hold on to their stock; those stockholders

suffered losses when Shire stock plummeted following AbbVie’s ultimate revelation

that the board was reassessing the merger; and AbbVie has since been hit with

lawsuits seeking recovery for those losses.               The Plaintiff seeks to hold the

Defendants personally liable in the event that any of the securities-fraud cases lead

to a monetary judgment against the company.

       This theory of liability is insufficient to establish demand futility.                 The

Complaint fails to plead any particularized facts supporting a reasonable inference

that the Director Defendants knew about the September 29 letters—much less that

they signed off on them.98 The Complaint makes the bald, conclusory allegation that

the two letters were “reviewed and approved by the . . . Defendants.”99 But that

allegation is not particularized enough to meet the heightened pleading requirements

of Rule 23.1.100       In In re Citigroup Inc. Shareholder Derivative Litigation,

Chancellor Chandler was faced with similarly deficient allegations related to


98
   See Steinberg, 2018 WL 2434558, at *9 (“According to the Complaint, Bearden is the person
who made the challenged statements during the November 4, 2015 earnings call and at the industry
conference held on December 1, 2015 (i.e., Statements # 2 and # 4). Critically, the Complaint fails
to allege facts suggesting that any of the other six directors on the Board were present at these
events or had any personal involvement in making any of these statements.”).
99
   Compl. ¶¶ 60–61.
100
    See Guttman v. Huang, 823 A.2d 492, 499 (Del. Ch. 2003) (“Mere notice pleading is
insufficient to meet the plaintiffs’ burden to show demand excusal in a derivative case.”).

                                                26
purportedly misleading disclosures.101              There, the plaintiffs alleged that the

defendants had “caused or allowed” Citigroup to issue several misleading

statements.102 As Chancellor Chandler pointed out, however, “[p]leading that the

director defendants ‘caused” or ‘caused or allowed’ the Company to issue certain

statements is not sufficient particularized pleading to excuse demand under Rule

23.1.”103 Such conclusory allegations were insufficient because they failed to

describe “how the board was actually involved in creating or approving the

statements, factual details that [were] crucial to determining whether demand on the

board of directors would have been excused as futile.”104 So too for the Plaintiff’s

allegations here, which fail to provide any detail concerning the Director

Defendants’ purported involvement with the September 29 letters.

       Nevertheless, the Plaintiff asks me to infer director knowledge from a

cautionary statement in the Form 425s. Those filings disclose that “AbbVie, its

directors and certain of its executive officers may be considered participants in the

solicitation of proxies in connection with the transactions contemplated by the proxy

statement/prospectus.”105 But that warning does not support a reasonable inference


101
    964 A.2d at 133 n.88.
102
    Id.
103
    Id.; see also In re China Auto. Sys. Inc. Derivative Litig., 2013 WL 4672059, at *8 (Del. Ch.
Aug. 30, 2013) (“A mere statement that the Defendants ‘caused’ the filing of the allegedly
misleading financial statements with the SEC is not, without more, a particularized allegation of
fact.” (footnote omitted)).
104
    In re Citigroup Inc. S’holder Derivative Litig., 964 A.2d at 133 n.88.
105
    Compl. Ex. 1, at 2; Compl. Ex. 2, at 2.

                                               27
that the Director Defendants were responsible for the September 29 letters. First,

the Form 425s make clear that they are “provided for informational purposes only

and do[] not constitute an offer to sell, or an invitation to subscribe for, purchase or

exchange, any securities or the solicitation of any vote or approval in any

jurisdiction.”106 Thus, contrary to the Plaintiff’s suggestion,107 the Form 425s were

not part of the proxy solicitation. More importantly, that the Director Defendants

may have participated in soliciting proxies does not suggest they helped prepare (or

even knew about) the two letters at issue here. Under Rule 23.1, more is required to

adequately allege the Director Defendants’ knowledge and bad faith.108

                                                 ***

        To reiterate, I assume, for purposes of this Memorandum Opinion, that the

complained-of statements contained in the Gonzalez and Turek letters, included in

the Form 425s, were misleading, and created the untrue impression that the merger

would certainly close. Those statements should have been accompanied by a

statement that the board was reassessing the merger, in light of tax consequences, to



106
    Compl. Ex. 1, at 2; Compl. Ex. 2, at 2.
107
    See April 3, 2018 Oral Arg. Tr. 35:2–3, 14–17 (“MR. BOTTINI: This [the Form 425] is
considered part of the solicitation for the proxy. . . . So this document is telling the market that this
is -- the reason it’s being filed as a Form 425 with the SEC, it’s part of the proxy solicitation
process.”).
108
    The Plaintiff also argues that knowledge can be inferred from the Director Defendants’ role in
negotiating the merger. But again, that is an unreasonable inference, and the Complaint fails to
allege any particularized facts suggesting that the AbbVie board was regularly reviewing public
statements about the transaction.

                                                  28
avoid being misleading. Nonetheless, to demonstrate demand futility, the Complaint

must also aver specific facts from which I may infer a substantial risk of Director

Defendant liability arising from those statements. In light of the exculpation clause,

it is not enough to allege that the misleading statements occurred on these directors’

watch; nor is it enough to plead facts from which I may infer negligence, or even

gross negligence, in the directors’ failure to cure the misimpression caused by the

statements. Instead, the Plaintiff’s burden is to plead non-conclusory facts from

which (drawing all plaintiff-friendly inferences) I may infer bad faith. This, the

Plaintiff has not done. All I can glean from the Complaint is that the Gonzalez and

Turek letters issued at a time when the Director Defendants were in fact re-

evaluating the merger, and that the letters created the incorrect impression that the

merger would surely close. This misimpression presumably persisted for two weeks,

until the board released a statement that it was formally reconsidering the merger. I

cannot, on those facts, conclude that the Director Defendants acted in bad faith.

Because the Complaint fails to plead that the Director Defendants breached the duty

of loyalty by making (or failing to correct) misleading statements in connection with

the Shire transaction, they do not face a substantial likelihood of liability.

Accordingly, demand is not excused on the basis of the alleged disclosure violations.




                                         29
       B. The Remaining Demand-Futility Arguments

       The Plaintiff offers two additional demand-futility arguments. First, the

Plaintiff argues that demand is futile because some of the Defendants served on the

board’s Audit Committee, which has “oversight responsibility with respect to

AbbVie’s accounting and financial reporting practices and the quality and integrity

of AbbVie’s financial statements.”109 But that argument runs up against the well-

settled rule that mere membership on a board committee is insufficient to support a

reasonable inference of disloyal conduct.110 In any event, the communications at

issue here are not AbbVie’s financial statements; they are statements concerning the

rationales for the transaction and the company’s commitment to the deal in the face

of regulatory changes. Second, the Plaintiff contends that demand is excused

because AbbVie’s directors-and-officers insurance policy does not provide coverage

for actions the company brings against its directors. This Court has previously

rejected that theory of demand futility, describing it as a “variation[] on the ‘directors

suing themselves’ and ‘participating in the wrongs’ refrain.”111 I agree with that




109
    Compl. ¶ 128.
110
    See, e.g., In re China Auto. Sys. Inc. Derivative Litig., 2013 WL 4672059, at *8 (“Mere
membership on the Audit Committee is not enough for the Court to infer bad faith.”); South v.
Baker, 62 A.3d 1, 17 (Del. Ch. 2012) (“As numerous Delaware decisions make clear, an allegation
that the underlying cause of a corporate trauma falls within the delegated authority of a board
committee does not support an inference that the directors on that committee knew of and
consciously disregarded the problem for purposes of Rule 23.1.”).
111
    Decker v. Clausen, 1989 WL 133617, at *2 (Del. Ch. Nov. 6, 1989).

                                              30
analysis. Because the Plaintiff has failed to adequately allege that demand is

excused, the Complaint must be dismissed.

       C. Leave to Amend

       The Plaintiff seeks leave to amend his Complaint in the event that the Court

grants the Defendants’ Motion. But the Plaintiff has not even attempted to make the

required showing of “good cause why dismissal with prejudice would not be just

under all the circumstances.”112 Moreover, nothing indicates that denying leave to

amend here would be unjust.113 Thus, the dismissal of the Plaintiff’s Complaint will

be with prejudice.114

                                     III. CONCLUSION

       For the foregoing reasons, the Defendants’ Motion to Dismiss is granted. An

appropriate order is attached.




112
    TVI Corp. v. Gallagher, 2013 WL 5809271, at *21 (Del. Ch. Oct. 28, 2013).
113
    See E. Sussex Assocs., LLC v. W. Sussex Assocs., LLC, 2013 WL 2389868, at *1 (Del. Ch. June
3, 2013) (noting that Rule 15(aaa) is “intended to conserve litigants’ and judicial resources by
discouraging a party from briefing a dispositive motion before filing an amended complaint”).
114
    See Ct. Ch. R. 15(aaa) (“In the event a party fails to timely file an amended complaint or motion
to amend under this subsection (aaa) and the Court thereafter concludes that the complaint should
be dismissed under Rule 12(b)(6) or 23.1, such dismissal shall be with prejudice (and in the case
of complaints brought pursuant to Rules 23 or 23.1 with prejudice to the named plaintiffs only)
unless the Court, for good cause shown, shall find that dismissal with prejudice would not be just
under all the circumstances.”); Larkin v. Shah, 2016 WL 4485447, at *21 (Del. Ch. Aug. 25, 2016)
(denying a perfunctory request for leave to amend under Rule 15(aaa) because “Plaintiffs have not
shown, or even attempted to show, good cause as to why dismissal with prejudice would be
unjust”).

                                                31
   IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

KYLE ELLIS, derivatively on behalf of )
ABBVIE, INC.,                         )
                                      )
                Plaintiff,            )
                                      )
                                      )
     v.                               ) C.A. No. 2017-0291-SG
                                      )
                                      )
RICHARD A. GONZALEZ, ROBERT J. )
ALPERN, ROXANNE S. AUSTIN,            )
WILLIAM H.L. BURNSIDE, EDWARD )
M. LIDDY, EDWARD J. RAPP,             )
GLENN F. TILTON, ROY S.               )
ROBERTS, and FREDERICK H.             )
WADDELL,                              )
                                      )
                Defendants,           )
                                      )
and                                   )
                                      )
ABBVIE, INC., a Delaware Corporation, )
                                      )
                 Nominal Defendant.   )

                                  ORDER

     AND NOW, this 10th day of July, 2018,

     The Court having considered the Defendants’ Motion to Dismiss, and for the

reasons set forth in the Memorandum Opinion dated July 10, 2018, IT IS HEREBY

ORDERED that the Motion to Dismiss is GRANTED.

SO ORDERED:




                                     32
     /s/ Sam Glasscock III

     Vice Chancellor




33
