   IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE


DAVID SHABBOUEI, Derivatively on         )
Behalf of LULULEMON ATHLETICA            )
INC.,                                    )
                                         )
                    Plaintiff,           )
                                         )
              v.                         )   C.A. No. 2018-0847-JRS
                                         )
LAURENT POTDEVIN, GLENN                  )
MURPHY, MARTHA A.M. MORFITT,             )
DAVID M. MUSSAFER, STUART                )
HASELDEN, MICHAEL CASEY,                 )
EMILY WHITE, ROBERT                      )
BENSOUSSAN, KATHRYN HENRY,               )
JON MCNEILL, TRICIA PATRICK,             )
and STEVEN J. COLLINS,                   )
                                         )
                    Defendants,          )
                                         )
LULULEMON ATHLETICA INC.,                )
a Delaware Corporation,                  )
                                         )
                    Nominal Defendant.   )


                        MEMORANDUM OPINION

                      Date Submitted: January 22, 2020
                        Date Decided: April 2, 2020



Blake A. Bennett, Esquire of Cooch and Taylor, P.A., Wilmington, Delaware and
Brian J. Robbins, Esquire, Stephen J. Oddo, Esquire and Steven R. Wedeking,
Esquire of Robbins Arroyo LLP, San Diego, California, Attorneys for Plaintiff
David Shabbouei.
Bradley R. Aronstam, Esquire and Roger S. Stronach, Esquire of Ross Aronstam &
Moritz LLP, Wilmington, Delaware and Joseph S. Allerhand, Esquire, Stephen A.
Radin, Esquire and Thomas G. James, Esquire of Weil, Gotshal & Manges LLP,
New York, New York, Attorneys for Defendants Laurent Potdevin, Glenn Murphy,
Martha A.M. Morfitt, David M. Mussafer, Stuart Haselden, Michael Casey, Emily
White, Robert Bensoussan, Kathryn Henry, Jon McNeill, Tricia Patrick and
Steven J. Collins and Nominal Defendant lululemon athletica inc.




SLIGHTS, Vice Chancellor
         After verifying reports that its CEO had engaged in pervasive misconduct, the

board of directors (the “Board”) of lululemon athletica inc. (“lululemon” or the

“Company”) elected to pursue a negotiated separation of his employment rather than

a termination for cause. The Board made this judgment after consulting extensively

with outside counsel and meeting as a Board several times over the course of three

months. The agreement negotiated by the Board called for severance payments to

the CEO totaling $5 million.

         A lululemon stockholder has brought a derivative complaint on behalf of the

Company against the Board members in which he alleges they breached their

fiduciary duties by rushing to pay an excessive severance fee to facilitate the CEO’s

separation as a means to cover up their slow response to his well-documented

malfeasance.1 In other words, Plaintiff alleges the Board acted too slowly in

uncovering and responding to the CEO’s misdeeds, but then acted too quickly in

deciding to negotiate a separation with the CEO rather than fire him outright.

         Many of the allegations in the operative complaint read like the ingredients of

a Caremark claim.2 That is, it appears Plaintiff seeks to hold the Board liable for

not responding to “red flags” that the CEO was behaving in a manner detrimental to



1
  The complaint was filed after plaintiff demanded and received books and records from
the Company under 8 Del. C. § 220.
2
    In re Caremark Int’l, Inc. Deriv. Litig., 698 A.2d 959 (Del. Ch. 1996).

                                               1
the Company. Notwithstanding the several “failure of oversight” allegations that

appear throughout the complaint, however, Plaintiff disavows any attempt to plead

a Caremark claim. Instead, he maintains that he seeks to hold Defendants liable

only for their affirmative decision to enter into a separation agreement with the CEO.

Under this umbrella, he claims: (i) the Board was “self-interested” in the agreement

because the agreement was an artifice designed to shield the Board members from

oversight liability; (ii) the decision to sign the agreement was not a product of valid

business judgment; or (iii) the decision to settle with the CEO, rather than fire him

“for cause,” constituted waste.

         Defendants have moved to dismiss the complaint under Court of Chancery

Rule 23.1.3 Plaintiff did not demand that the Board pursue the claims he now brings

derivatively, and Defendants maintain he has failed to plead demand futility with the

particularity required by our law.

         The Company has adopted an exculpatory clause in its certificate of

incorporation.4 Thus, to plead demand futility, Plaintiff must plead with particularity

that the Board members breached their fiduciary duty of loyalty, either by executing

the separation agreement to advance their own interests at the expense of the




3
    D.I. 19.
4
    8 Del. C. § 102(b)(7).

                                          2
Company, or by acting in bad faith. As explained below, the complaint falls well

short of this mark. The motion to dismiss must be granted.

                        I. FACTUAL BACKGROUND

          I draw the facts from the allegations in the Verified Stockholder Derivative

Amended Complaint for Breach of Fiduciary Duty, Waste of Corporate Assets, and

Unjust Enrichment (the “Complaint”),5 documents incorporated by reference or

integral to that pleading and judicially noticeable facts.6 For purposes of this motion

to dismiss (the “Motion”), I accept as true the Complaint’s well-pled factual

allegations and draw all reasonable inferences in Plaintiff’s favor.7

          Parties and Relevant Non-Parties

          Nominal Defendant, lululemon, is a Delaware corporation.8 The Company’s

business is to design, distribute and sell athletic apparel.9 For the fiscal year ended




5
 Verified S’holder Deriv. Am. Compl. for Breach of Fiduciary Duty, Waste of Corp.
Assets, and Unjust Enrichment (“Compl.”) (D.I. 17).
6
  See Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 860 A.2d 312, 320 (Del. 2004) (quoting
In re Santa Fe Pac. Corp. S’holder Litig., 669 A.2d 59, 69 (Del. 1995)) (noting that on a
motion to dismiss, the court may consider documents that are “incorporated by reference”
or “integral” to the complaint); D.R.E. 201–02 (codifying Delaware’s judicial notice
doctrine).
7
    Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002).
8
    Compl. ¶ 12.
9
    Id.

                                            3
February 3, 2019, the Company generated ~$3 billion in annual revenue and

employed ~15,700 people.10

         Plaintiff, David Shabbouei, was a lululemon stockholder during the relevant

events alleged in the Complaint and has remained a stockholder since.11 He purports

to bring his Complaint derivatively on behalf of the Company.12

         Defendant, Laurent Potdevin, served as lululemon’s CEO from 2014 to

February 5, 2018.13 Non-party, Sunita Linde, was employed as a designer for

lululemon and is alleged to have had a romantic relationship with Potdevin while he

was CEO.14

         Defendant, Glenn Murphy, has served as a member of the Board since

April 2017.15 Previously, he served as the Executive Chairman, Non-Executive




10
   Compl. ¶ 12; lululemon athletica inc., Annual Report (Form 10-K) at 18 (Mar. 27, 2019);
In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 170 (Del. 2006) (noting that the
trial court may take judicial notice of facts in SEC filings that are “not subject to reasonable
dispute”) (emphasis in original).
11
     Compl. ¶ 11.
12
     Compl. ¶ 1.
13
     Compl. ¶¶ 13, 47.
14
     Compl. ¶ 53.
15
     Compl. ¶ 14.

                                               4
Chairman and Co-Chairman of the Board for various intervals between April 2017

and November 2018.16

           Defendants, Martha A.M. Morfitt, David M. Mussafer, Michael Casey, Emily

White, Robert Bensoussan, Kathryn Henry, Jon McNeill and Tricia Patrick are

current members of the Board.17 These Defendants, together with Murphy, comprise

nine of the Board’s ten members.18 lululemon’s tenth director, Calvin McDonald,

has been lululemon’s CEO since August 2018, and is not named as a defendant.19

The additional Defendants are Stuart Haselden, lululemon’s COO and former CFO,

and Steven J. Collins, a lululemon director until August 2017.20

           Potdevin’s Employment Agreement

           Potdevin served as lululemon’s CEO under an Executive Employment

Agreement (the “Employment Agreement”).21 Per that agreement, the Board was




16
     Id.
17
     Compl. ¶¶ 15–24.
18
     Compl. ¶¶ 14–16, 18–23, 91.
19
     Compl. ¶ 91.
20
     Compl. ¶¶ 17, 24.
21
   See Compl. ¶ 74 (citing lulu220_00001047–48); Transmittal Aff. of Bradley R.
Aronstam in Connection with Opening Br. in Supp. of Mot. to Dismiss Pl.’s Verified
S’holder Deriv. Am. Compl. (“Aronstam Aff.”) (D.I. 26) Ex. 20.

                                           5
authorized to terminate Potdevin as CEO either “without cause” or “for cause.”22

If terminated “without cause,” Potdevin was entitled to receive significant severance

payments.23 If terminated “for cause,” Potdevin would receive nothing, except his

accrued base salary through the date of termination.24 But, to fire Potdevin for cause,

the Company was obliged to demonstrate that Potdevin had engaged in conduct

constituting “gross negligence, recklessness or willful misconduct with respect to

his obligations under the [Employment] Agreement or otherwise relating to the

business of the Company.”25

           lululemon’s Ethics Policies and Board Oversight

           According to the Complaint, lululemon developed a Global Code of Business

Conduct and Ethics (“Ethics Code”) for its employees.26 The Ethics Code made

clear the Company would “not tolerate harassment or unlawful behavior of any kind,

including derogatory comments based on race or ethnicity or unwelcome sexual

advances.”27 Consistent with these principles, “the Company encouraged employees



22
     Id.
23
     Compl. ¶¶ 73–74.
24
     Compl. ¶¶ 73–74, 77.
25
     Compl. ¶ 74 (alterations in original) (quotation omitted).
26
     Compl. ¶¶ 31, 37–43.
27
     Compl. ¶¶ 31–33.

                                                6
to report both violations of the law and violations of lululemon’s internal policies.”28

To provide an anonymous means for employees to report potential violations of the

Ethics Code, lululemon contracted with a third-party vendor to maintain a

“whistleblower hotline.”29 Additionally, the written charters of the Board’s Audit,

Compensation and Nominating committees established comprehensive guidelines

for how each Board committee would oversee the Company’s compliance with its

policies, including the Ethics Code.30

           The Toxic Work Culture Under Potdevin

           Despite his leadership role at the Company, Potdevin’s behavior was inimical

to the standards prescribed in the Ethics Code. As alleged, Potdevin “created a toxic

culture at lululemon and engaged in a pattern and practice of harassment and sexual

favoritism while CEO.”31          He openly expressed “patriarchal beliefs of male

superiority,” “filled the Company’s high-level executive positions with men” and

“turned lululemon’s executive team into a boy’s club.”32 It is alleged Potdevin’s




28
     Compl. ¶ 35.
29
     Id.
30
     Compl. ¶¶ 37–43.
31
     Compl. ¶ 13.
32
     Compl. ¶¶ 49–51.

                                             7
“boys club” would frequently gather either at “his house or hotel rooms for alcoholic

beverages and illicit drugs.”33

           In addition to favoring his “boys club,” Potdevin allegedly gave preferential

treatment to his girlfriend, Linde, a lululemon designer.34 This dynamic was not

only offensive to more senior and qualified designers, it also empowered other senior

male executives to pursue inappropriate personal relationships with junior female

employees.35

           Potdevin’s behavior prompted several “talented and high-ranked employees”

to leave the Company in protest.36 It also led to “a number of employee complaints

to the Company’s whistleblower hotline.”37

           The Board took notice of Potdevin’s relationship with Linde and firmly

objected.38 Murphy gave “clear direction to Mr. Potdevin that [Linde’s] contract

should not be renewed beyond the end of 2017.”39 Potdevin ignored the direction,



33
     Compl. ¶ 3.
34
     Compl. ¶¶ 52–55.
35
     Compl. ¶ 56–57.
36
     Compl. ¶ 58.
37
     Compl. ¶¶ 53–55.
38
     Compl. ¶ 55.
39
     Id.

                                             8
however, and Linde remained at the Company (and in her relationship with

Potdevin) into 2018.40

           Incidents 1 and 2

           At some point before November 29, 2017, Potdevin was involved in what the

Complaint vaguely refers to as “Incident 1.”41 As best as can be gleaned from the

Complaint:

            Incident 1 happened sometime before November 29, 2017;42

            It involved Potdevin’s “inappropriate conduct” and led the Board to
             question “his judgment with respect to certain subjects, and the fact that
             his girlfriend continues to work for the Company;”43

            Potdevin informed Mussafer about “Incident 1” at the time it occurred, and
             Mussafer “subsequently discussed Incident #1 with individual directors as
             he deemed appropriate in informal un-minuted conversations;”44 and

            The Board discussed “Incident 1” after the November 29, 2017 Board
             meeting, off the record, at a dinner following the meeting.45




40
     Id.
41
     Compl. ¶¶ 61–62.
42
  Compl. ¶ 61 (As of November 29, 2017, Incident 1 was described as a “past allegation”
against Potdevin.).
43
     Id.
44
     Compl. ¶ 62.
45
     Compl. ¶ 63.

                                             9
           Given that they are numbered, it should come as no surprise that “Incident 1”

was followed by “Incident 2.”46 Here again, the Complaint leaves much to the

imagination—it alleges only that Incident 2 involved another instance of Potdevin

behaving inappropriately.47

           The Board’s Response and Potdevin’s Resignation

           As noted, the Board discussed Incidents 1 and 2 after the official Board

meeting on November 29.48 It chose this more informal setting to encourage

“an open dialogue on the facts.”49 Following these informal discussions, the Board

decided to launch an investigation into Potdevin’s behavior and his fitness to serve

as CEO.50 The Board met five times thereafter, between November 29, 2017 and

February 2018, to discuss how best to deal with Potdevin.51

           As is typical, the Board hired outside counsel to conduct the investigation.52

Morfitt and Murphy received at least one oral report from counsel during the course


46
     Compl. ¶¶ 61–65.
47
     Id.
48
     Compl. ¶ 63.
49
     Id.
50
     Compl. ¶ 66.
51
  See Oral Arg. on Defs.’ Mot. to Dismiss Pl.’s Verified S’holder Deriv. Am. Compl.
(“Tr.”) (D.I. 46) at 45.
52
     Compl. ¶ 72.

                                             10
of the investigation and, on January 29, 2018, the Board received and reviewed an

18-page presentation (the “Report”) updating the Board on the investigation’s

interim findings.53

         While much of the Report was redacted as privileged when produced in

response to Plaintiff’s 220 demand, the un-redacted information includes headings

such as: “Fact Pattern,” “What We Believe,” “Hypothetical Risk Scenario,” “Legal

Risk,” “Brand Risk,” “Media/Reputation Risk,” and “Internal Reputation Risk.”54

One page of the Report provides information and guidance intended to “align

[the Board] around a course of action and give authority to the Chairman of the

Board to execute the Board’s direction.”55

         Shortly after reviewing the Report, the Board devised and executed its plan of

action. It authorized Murphy to “negotiate the possible terms of a separation

agreement and release on behalf of the Company in connection with Mr. Potdevin’s

potential separation of employment with the Company if Mr. Murphy and

Mr. Potdevin agreed that this would be the best path forward.”56



53
     Compl. ¶¶ 67, 72.
54
    Compl. ¶ 61 (citing lulu220_00000101-118); Aronstam Aff. Ex. 19 at
lulu220_00000105–97, 116–17.
55
     Aronstam Aff. Ex. 19 at lulu220_00000103.
56
     Compl. ¶ 73.

                                           11
           According to Plaintiff, Incidents 1 and 2 were grounds for the Board to

terminate Potdevin for cause.57 But, instead of firing Potdevin “for cause,” the Board

offered him a $2.5 million severance payment if he agreed to resign.58 After some

back and forth with Potdevin, the Board ultimately agreed to pay him $5 million in

exchange for a full release and quiet departure.59

           Potdevin and the Company executed a Separation Agreement on February 2,

2018.60 Under its terms, Potdevin would receive $3.35 million up front with the

remainder to be paid out over 18-months.61 Potdevin also released all claims he

might have against the Company and agreed to extend the non-solicitation period

beyond the date originally prescribed in his Employment Agreement.62

           On February 5, 2018, just one week after receiving the Report, the Board

announced Potdevin’s resignation.63 The Company issued a press release stating the




57
     Compl. ¶ 76.
58
     Compl. ¶ 78.
59
     Id.
60
     Id.
61
     Id.
62
     Id.
63
     Compl. ¶ 2.

                                           12
former-CEO “fell short of the Company’s standards of conduct.”64 By August,

McDonald had taken over as lululemon’s CEO.65

          Procedural Posture

          In April 2018, Plaintiff served lululemon with an inspection demand under

Section 220 of the Delaware General Corporation Law with the stated purpose of

investigating wrongdoing surrounding Potdevin’s exit from lululemon.66          The

Company responded by producing some, but not all, of the records Plaintiff had

requested.67

          Armed with the Company’s 220 production, on November 21, 2018, Plaintiff

elected to file a derivative complaint rather than make a litigation demand upon the

Board.68 After Defendants filed a motion to dismiss, Plaintiff filed the now-

operative amended Complaint on April 16, 2019.69 Defendants moved to dismiss




64
     Id. (alternations in original).
65
     Compl. ¶ 103.
66
     Compl. ¶ 11.
67
     Compl. ¶ 58.
68
     Compl. ¶ 91.
69
     D.I. 17.

                                          13
that Complaint under Court of Chancery Rule 23.1 on May 16, 2019.70 The Court

heard oral argument on January 22, 2020.71

                                  II. ANALYSIS

         The Complaint comprises three derivative counts.72 Count I alleges the

Defendants breached their fiduciary duties by approving Potdevin’s Separation

Agreement.73       Count II alleges Potdevin’s Separation Agreement constituted

corporate waste.74 Count III is brought against Potdevin, alleging he was unjustly

enriched by the Separation Agreement.75 In light of Plaintiff’s decision to forego

making a demand, under Court of Chancery Rule 23.1, he must “state with

particularity” why he did not ask the Board to pursue these claims.76

         In his effort to place his claims within the demand futility paradigm, Plaintiff

attempts to characterize the Board’s decision to enter into the Separation Agreement

as either (i) an interested transaction, (ii) not a product of valid business judgment


70
     D.I. 19.
71
     D.I. 45.
72
     Compl. ¶¶ 1, 105–126.
73
     Compl. ¶¶ 105–14.
74
     Compl. ¶¶ 115–22.
75
     Compl. ¶¶ 123–26.
76
  Ct. Ch. R. 23.1(b); Aronson v. Lewis, 473 A.2d 805, 813–14 (Del. 1984), overruled in
part, Brehm v. Eisner, 746 A.2d 244, 253–54 (Del. 2000).

                                            14
or (iii) waste.77 Specifically, the Complaint alleges Defendants “knowingly or

recklessly caused, condoned, or allowed the Company to engage in . . . improper

practices . . . and failed to implement adequate internal controls to ensure that

lululemon’s activities complied with all applicable laws.”78 At first glance, this

allegation, and many others like it in the Complaint, appear to be the makings of a

Caremark claim.79 Yet, in his Answering Brief, Plaintiff disavowed any intent to




77
  Pl. David Shabbouei’s Answering Br. in Opp’n to the Defs.’ Mot. to Dismiss Pl.’s
Verified S’holder Deriv. Am. Compl. (“PAB”) (D.I. 28) at 22, 45, 51.
78
     Compl. ¶ 18 (emphasis supplied); see also Compl. ¶¶ 14–24 (same).
79
   See Opening Br. in Supp. of Mot. to Dismiss Pl.’s Verified S’holder Deriv. Am. Compl.
(“DOB”) (D.I. 24) at 42–47 (arguing Plaintiff had failed to state a Caremark claim);
see also Compl. ¶ 4 (“Defendant Potdevin’s conduct, and the toxic culture he engendered
went unchecked by the lululemon Board.”), ¶ 9 (“As a direct and proximate result of the
Individual Defendants’ conscious, sustained, and systematic failure to exercise appropriate
oversight over lululemon.”), ¶¶ 14–24 (Murphy, Morfitt, Mussafer, Haselden, Casey,
White, Bensoussan, Henry, McNeill, Patrick and Collins “failed to implement adequate
internal controls to ensure that lululemon’s activities complied with all applicable laws and
regulations.”), ¶ 29 (“To discharge their duties, each [] Defendant was required to exercise
reasonable and prudent supervision over the management, policies, practices, and controls
of the Company.”), ¶ 30 (The Board was responsible for “ensuring that appropriate risk
management policies and procedures [were] in place.”) (internal quotation omitted), ¶ 60
(the Board exhibited “near total lack of oversight of lululemon, including willfully ignoring
lululemon’s toxic culture and defendant Potdevin’s improprieties.”), ¶ 106 (Defendants
had a duty to “conduct good faith investigations into known violations of laws, regulations,
and internal policies.”), ¶ 108 (Defendants breached their fiduciary duties by “knowingly,
recklessly, or with gross negligence: [] failing to ensure that lululemon had adequate
internal controls, risk management procedures, and other policies to prevent its executives
from engaging in sexual misconduct in the workplace and creating an abusive workplace
environment in violation of state laws and regulations.”).

                                             15
plead a claim that the Board failed to exercise appropriate oversight.80 Instead, he

maintains he is actually advancing a claim that the Board was “interested” in the

Separation Agreement because that agreement, in essence, allowed the Board, acting

with undue haste, to sweep its oversight failures under the carpet.81

         Plaintiff’s lack of clarity raises immediate concerns that the Court is faced

with “[a] prolix complaint larded with conclusory language” that does not—

cannot—meet Aronson’s particularized pleading standard.82 Even so, I follow a

deliberate path.     First, I address the unique Rule 23.1 pleading standard, as



80
   PAB at 2 (“In their Motion to Dismiss, Defendants mischaracterize Plaintiff’s claims as
Caremark claims.”); id. at 20 n.14 (“Defendants improperly contend that the Amended
Complaint must be analyzed by the standards articulated in Caremark”); id. at 21
(“Plaintiff is not alleging a Caremark claim”). But see PAB at 46–48 (arguing “the Board
was aware that Potdevin engaged in inappropriate behavior with lululemon employees long
before it belatedly decided to investigate his misconduct” but failed to fulfil its “duty to
investigate” or respond to “red flags.”); Melbourne Mun. Firefighters’ Pension Trust Fund
on Behalf of Qualcomm, Inc. v. Jacobs, 2016 WL 4076369, at *8 (Del. Ch. Aug. 1, 2016)
(describing a failure to respond to “red flags” as a classic Caremark claim). While Plaintiff
has sent mixed signals, to put it mildly, I will analyze his claims as he characterized them
in his Answering Brief and oral arguments.                  In Plaintiff’s counsel’s words,
“I understand . . . that there are certainly Caremark-sounding allegations in the complaint.
I think the primary focus, though, is whether there was a proper process leading to the
decision to negotiate a severance and an amicable, as opposed to a firing, situation.”
Tr. at 39.
81
   See Tr. at 60 (“And I think this rushed process is indicative of—is trying to get these
guys to leave. And I think the question is motive, right? . . . I think it’s to protect
themselves too. . . . They worked out a deal with Potdevin.”); Tr. at 60–61 (Plaintiff’s
counsel arguing that the Separation Agreement allowed the Board to avoid exposure of its
failures to respond to Incidents 1 and 2).
82
     Brehm, 746 A.2d at 254.

                                             16
deciphered by Aronson. I then address whether Plaintiff’s claims fit within either of

Aronson’s two prongs. Finding they do not, I conclude the Complaint must be

dismissed for failure adequately to plead demand futility.

      A. The Rule 23.1 Standard

          As Justice Moore emphasized in his seminal Aronson decision, 8 Del. C.

§ 141(a) codifies a bedrock of Delaware corporate law—the board of directors, not

stockholders, manages the business and affairs of the corporation, including the

business decision to cause the corporation to sue.83 When making such business

decisions, the Board is entitled to “a presumption” that it “acted on an informed

basis, in good faith and in the honest belief that the action taken was in the best

interests of the company.”84

          With this in mind, our law has established procedural imperatives to ensure

that shareholders do not “imping[e] on the managerial freedom of directors.”85

To wrest control over the litigation asset away from the board of directors, the




83
     Aronson, 473 A.2d at 811 (citing 8 Del. C. § 141(a)).
84
     Id. at 812 (citation omitted).
85
     Id. at 811.

                                              17
stockholder must demonstrate that demand on the board to pursue the claim would

be futile such that the demand requirement should be excused.86

         Plaintiff acknowledges he did not make a pre-suit demand on the Board.87 It is

settled, therefore, that his Complaint must “comply with stringent requirements of

factual particularity that differ substantially from the permissive notice pleadings”

permitted by Chancery Rule 8.88          Where, as here, the plaintiff challenges an

affirmative board decision, the court analyzes demand futility under the standard

established in Aronson.89 This standard safeguards a board’s “substantive right” to

“rectify an alleged wrong” unless a plaintiff can plead particularized facts in support

of a reasonable inference that either (i) a majority of the board is interested in the

challenged decision, or (ii) the challenged decision was not a product of valid

business judgment.90

         When a court reviews a motion to dismiss under Rule 23.1, plaintiffs are

entitled to “all reasonable inferences” that logically flow from “particularized facts”



86
  See Beam ex rel. Martha Stewart Living Omnimedia, Inc. v. Stewart, 845 A.2d 1040,
1044 (Del. 2004).
87
     Compl. ¶ 91.
88
  Brehm, 746 A.2d at 254 (noting that conclusory statements or mere notice pleading are
insufficient to satisfy Rule 23.1).
89
     Aronson, 473 A.2d 805; Tr. at 39.
90
     Id. at 809, 812–13; Wood v. Baum, 953 A.2d 136, 140 (Del. 2008).

                                            18
alleged in the complaint.91 Yet the court need not credit “conclusory allegations” or

“inferences that are not objectively reasonable” when testing the sufficiency of the

plaintiff’s pleading.92

      B. Aronson’s First Prong

         From what I gather, Plaintiff maintains demand is excused under Aronson’s

first prong because the Board was “interested” in entering into the Separation

Agreement as a means to hide Board-level failures.93 To plead demand futility under

this prong, the plaintiff must plead particularized facts supporting a reasonable

inference that at least 5 of lululemon’s 10 directors (i) “appeared on both sides” of

the Separation Agreement (ii) derived a “personal financial benefit from it in the



91
     Wood, 953 A.2d at 140.
92
     Id. at 140 (internal quotation omitted).
93
  See Compl. ¶ 79 (“Potdevin’s departure package was driven by the Board’s own fear of
being held responsible for allowing the misconduct to continue for so long.”); PAB at 45–
46; Tr. at 60 (The Board was trying to “protect themselves.”); Aronson, 473 A.2d at 812
(The presumption of propriety afforded by the business judgment rule can only be “claimed
by disinterested directors whose conduct otherwise meets the test of business judgment.”);
Ryan v. Armstrong, 2017 WL 2062902, at *18 (Del. Ch. May 15, 2017), aff’d, 176 A.3d
1274 (Del. 2017) (TABLE) (stating that Aronson’s first prong is implicated when a plaintiff
pleads particularized facts in support of a reasonable inference that a majority of a board
approved a transaction based on a “non-corporate motive” and that “the first prong of the
Aronson inquiry addresses director compliance with the duty of loyalty”). Mindful that I
am parroting here, at Plaintiff’s insistence, I reiterate that I am not considering his claim as
a Caremark claim and am not, therefore, undertaking any analysis of demand futility under
Rales. See Tr. at 39; Rales v. Blasband, 634 A.2d 927 (Del. 1993) (applying a different
demand futility analysis where the derivative claims do not challenge a business decision
of the board but instead challenge the board’s failure to act).

                                                19
sense of self-dealing” or (iii) were beholden to an interested person.94 Ultimately,

the analysis boils down to whether “a director’s decision is based on the corporate

merits of the subject before the board rather than extraneous considerations or

influences.”95

         To well plead that the Board was interested in the Separation Agreement,

Plaintiff would need to plead facts supporting an inference that the Separation

Agreement extinguished a substantial likelihood of Board liability.96                 Only a

substantial likelihood of liability would have a “significant” personal impact on the

director, making it “improbable that the director could perform her fiduciary duties

to the shareholders without being influenced by her overriding personal interest.”97

With this in mind, I am obliged to do what Plaintiff apparently would prefer I not

do—evaluate his failure of oversight allegations. This is the only way to assess the


94
  Aronson, 473 A.2d at 812–15; In re J.P. Morgan Chase & Co. S’holder Litig., 906 A.2d
808, 821 (Del. Ch. 2005); Blaustein v. Lord Balt. Capital Corp., 84 A.3d 954, 958
(Del. 2014); Beneville v. York, 769 A.2d 80, 85–87 (Del. Ch. 2000) (demand excused
where a board is evenly divided between interested and disinterested directors because
“a majority vote is required to prevail on a motion to cause the corporation to accept a
demand”).
95
     In re J.P. Morgan Chase, 906 A.2d at 821–22.
96
   Aronson, 473 A.2d at 815; Stritzinger v. Barba, 2018 WL 4189535, at *5 (Del. Ch.
Aug. 31, 2018) (stating that while “substantial likelihood of liability” is not usually thought
of as a “pertinent question” under Aronson, it is a “crucial factor” underlying the Aronson
analysis to explore “the potential for personal liability which [could] affect [a board’s]
capacity to consider demand”) (internal quotations omitted).
97
     Orman v. Cullman, 794 A.2d 5, 23 (Del. Ch. 2002) (internal quotation omitted).

                                              20
adequacy of his allegation that the Separation Agreement reflects the Board’s

affirmative efforts to shroud its underlying wrongdoing and potential liability

exposure.98

       By his own description, Plaintiff does not even attempt to plead an oversight

claim, much less allege that the Board faced a substantial likelihood of liability for

that claim.99 And no wonder. Given that the Complaint acknowledges the Company

established an ethics code and made the whistleblower hotline available to

employees, and then used those systems to detect Potdevin’s misbehavior, it is not

conceivable that the Board “utterly failed” to establish a relevant information and

reporting system.100 Nor are there allegations in the Complaint that support an

inference the Board acted with scienter—i.e. with a conscious, bad faith state of

mind—to ignore Potdevin’s improprieties.101 That the Board could have been more


98
   As discussed below, even if the Board’s liability exposure should be measured under a
lesser standard than “substantial likelihood,” the Complaint’s allegation still falls short.
99
   Rattner v. Bidzos, 2003 WL 22284323, at *9 (Del. Ch. Sept. 30, 2003) (“Except in
egregious circumstances, the mere threat of personal liability does not constitute a disabling
interest for a director considering a derivative plaintiff’s demand.”) (internal quotation
omitted); H-M Wexford LLC v. Encorp, Inc., 832 A.2d 129, 149 (Del. Ch. 2003) (finding
unpled claims failed to establish a “substantial likelihood” of liability).
100
   Stone ex rel AmSouth Bancorp. v. Ritter, 911 A.2d 362, 370 (Del. 2006); Compl. ¶¶ 31,
37, 55.
101
   PAB at 51. See In re Citigroup Inc. S’holders Litig., 964 A.2d 106, 125 (Del. Ch. 2009)
(Caremark claims require plaintiffs to show directors’ decisions “consciously disregarded
an obligation to be reasonably informed about the business and its risks or consciously
disregarded the duty to monitor and oversee the business.”); Okla. Firefighters Pension &
Ret. Sys., 2017 WL 6452240, at *14 (Del. Ch. Dec. 18, 2017) (A claim that directors “failed
                                             21
effective in its response (and there are no well-pled facts supporting this inference)

would not expose its members to liability.102

         Stripped of conclusory allegations, the Complaint alleges the following to

support an inference that the Board faced (unpled) liability when it entered into the

Separation Agreement: (i) the Board learned of Incident 1 “prior to” November 2017

and took no action at that time (without pleading when Incident 1 occurred or what

it was);103 (ii) many Board members had served since lululemon’s inception;104 and

(iii) the “#MeToo movement” created “heightened awareness” with respect to

allegations of harassment.105 These allegations do not support an inference of any

liability exposure, much less a substantial likelihood of liability.

         A vague reference to Incident 1—without any particularized facts concerning

what Incident 1 involved or when it occurred—cannot support a reasonable inference




to properly monitor or oversee employee misconduct” requires a showing that “the
directors acted with scienter which, in turn, requires . . . proof . . . that the director knew”
he was failing to fulfil his oversight obligations.) (internal quotation omitted).
102
   Stone, 911 A.2d at 368; Desimone v. Barrows, 924 A.2d 908, 935, 936 n.97 (Del. Ch.
2007); Okla. Firefighters, 2017 WL 6452240, at *20 (“[A]n ineffective response does not,
without more, indicate bad faith.”).
103
      Compl. ¶¶ 62–63; PAB at 46, 51.
104
      Compl. ¶¶ 13–24; PAB at 47.
105
      Compl. ¶ 87; PAB at 47.



                                              22
that the Board consciously disregarded a “duty to act” in between whenever

Incident 1 happened and November 2017, when the Board responded.106

As acknowledged in the Complaint, after Incident 2, the Board promptly: (i) hired

external counsel to investigate, (ii) reviewed counsel’s Report, (iii) authorized a

Board member to negotiate Potdevin’s resignation from the Company and

(iv) ultimately secured Potdevin’s departure without litigation or excessive negative

publicity.107

       Under these circumstances, Plaintiff cannot use an unpled failure of oversight

claim as the background to well plead that the Board was somehow interested in the

Separation Agreement. “The [B]oard has responded” to the threat it perceived in

Potdevin’s inappropriate behavior, which is inconsistent with a theory of liability

exposure predicated on “conscious indifference” to “red flags.”108




106
   Okla. Firefighters, 2017 WL 6452240, at *14–15 (Plaintiff must allege the Board failed
“to act in the face of a known duty to act” by “consciously disregarding its duty to address
[] misconduct.”); Canadian Commercial Workers Indus. Pension Plan v. Alden, 2006
WL 456786, at *8 (Del. Ch. Feb. 22, 2006) (Plaintiff must plead “specific facts supporting
a reasonable inference that Defendants were conscious of the fact that they were not doing
their jobs” which requires Plaintiff to plead a “sustained or systematic failure” of the
Board’s oversight duties.).
107
    Compl. ¶¶ 67, 72–73, 78; see White v. Panic, 793 A.2d 356, 371 (Del. Ch. 2000)
(reaching the same conclusion under very similar facts).
108
   White, 793 A.2d at 371; South v. Baker, 62 A.3d 1, 18 (Del. Ch. 2012); Horman v.
Abney, 2017 WL 242571, at *14 (Del. Ch. Jan. 19, 2017) (stating that a Caremark claim is
incongruous with allegations that when “red flags were waived,” the “Board responded”).

                                            23
         There are other reasons to reject Plaintiff’s “interestedness” theory. First, the

argument that a general release obtained on behalf of a board a directors in a

settlement is a basis to characterize the settlement as an “interested party transaction”

has been squarely rejected by this court.109           Indeed, except in “egregious”

circumstances, “[t]here would be little sense in a rule providing that the presence of

such prophylactic measures in a settlement agreement results in that agreement being

treated as an interested party transaction.”110

         Second, Plaintiff does not even suggest what, if any, claims Potdevin might

have had against the Board.111 And it is not at all clear, from Plaintiff’s arguments

or otherwise, that the release language in the Separation Agreement would even

extend to a breach of fiduciary duty claim against the Board (for failure of oversight

or otherwise) brought by Company stockholders.

         Finally, Plaintiff’s efforts to muddy the waters by claiming that Mussafer and

Patrick “lack independence due to their direct and indirect pecuniary interest in



109
    H-M Wexford, 832 A.2d at 149 (observing, “it is more or less universally the case that
when a corporation pays value to settle a claim, it demands and receives releases in favor
of its directors, officers and other agents.”). See Aronstam Aff. Ex. 21
at lulu220_00000061 (release language within the Separation Agreement).
110
      H-M Wexford, 832 A.2d at 149–50.
111
   Plaintiff concedes this point. See PAB at 37 (“There are no allegations in Plaintiff’s
Amended Complaint nor any facts drawn from any other document that the Court can
consider . . . that suggest Potdevin had any valid claims to bring against the Company.”).

                                            24
lululemon through their employment with Advent International” betray the weak

sauce of their futility argument.112 Plaintiff makes no effort to explain how working

for Advent—which allegedly owns 7.4% of lululemon’s stock—makes Mussafer

and Patrick interested in the Separation Agreement.113 To the contrary, this stake in

the Company aligns their interests with the Company because “a director who is also

a shareholder is more likely to have interests that are aligned with the other

shareholders of that corporation.”114


112
    PAB at 56. Plaintiff attempts similar arguments with respect to Defendants, Morfitt,
Casey, White and McDonald, but I decline to reach those arguments since it is clear that at
least a majority of the Board was disinterested and independent. In re Ezcorp Inc.
Consulting Agmt. Deriv. Litig., 2016 WL 301245, at *34 (Del. Ch. Jan. 25, 2016)
(“To determine whether the Board could properly consider a demand, a court counts heads.
If the board of directors lacks a majority compromising independent and disinterested
directors, then demand is futile.”).
113
   The cases Plaintiff cites in his Answering Brief for the proposition that working for a
shareholder, ipso facto and ipso jure, renders a director interested do not stand for that
proposition. Rather, each involved directors who were beholden to an interested party.
See PAB at 56–57; Harbor Fin. P’rs v. Huizenga, 751 A.2d 879, 889 (Del. Ch. 1999)
(involving “long-standing . . . business relations” between a director and the controlling
stockholder of an acquired company); Khan v. Tremont Corp., 1994 WL 162613, at *1–2
(Del. Ch. Apr. 21, 1994) (involving directors who were personally beholden to a
controlling stockholder to whom the corporation sold a 15% block of stock); In re Ezcorp,
2016 WL 301245, at *36 (involving a director who was being asked to sue an individual
who had “the ability to influence” the director’s “future” with his employer); In re The
Student Loan Corp. Deriv. Litig., 2002 WL 75479, at *3 (Del. Ch. Jan. 8, 2002) (involving
directors who owed their “livelihood” to Citigroup—a controlling stockholder with which
they caused a company to engage in self-dealing transactions).
114
   Chen v. Howard-Anderson, 87 A.3d 648, 671 (Del. Ch. 2014) (alternation in original,
emphasis supplied and internal quotation omitted); see also Citron v. Fairchild Camera &
Instrument Corp., 569 A.2d 53, 55–56, 65 (Del. 1989) (director’s status as president of a
major shareholder “d[oes] not make him an interested director”).

                                            25
      C. Aronson’s Second Prong

         To satisfy Aronson’s second prong, Plaintiff must plead particularized facts

in support of a reasonable inference that the Board’s decision to enter the Separation

Agreement was not a product of valid business judgment.115 In other words, the

Board’s action must have been “inexplicable with reference to business

judgment.”116 Because Aronson’s second prong implicates a frontal attack on a

board’s business decisions, our Supreme Court has emphasized that a plaintiff

carries a “heavy burden” when attempting to excuse demand by taking this path.117

And while this prong “analyzes both care and loyalty issues,” when the board

operates under an exculpatory charter provision, like lululemon’s,118 demand is only

excused by well pleading that a majority of the Board acted in breach of the duty of

loyalty, that is, the challenged decision must be “so egregious on its face that board

approval cannot meet the test of business judgment.”119


115
      Aronson, 473 A.2d at 814.
116
      Ryan, 2017 WL 2062902, at *14.
117
   White v. Panic, 783 A.2d 543, 551 (Del. 2001) (internal quotation omitted); White, 793
A.2d at 367 (Aronson’s second prong involves an attack on “the soundness of the
challenged transaction.”) (citation omitted).
118
    Aronstam Aff. Ex. 31 Art. 9.1; In re Tangoe, Inc. S’holders Litig., 2018 WL 6074435,
at *12 n.79 (Del. Ch. Nov. 20, 2018) (“A court may take judicial notice of an exculpatory
charter provision in resolving a motion addressed to the pleadings.”) (citation omitted).
119
   Aronson, 473 A.2d at 815; In re Walt Disney Co. Deriv. Litig., 906 A.2d 27, 64–66
(Del. 2006). Plaintiff’s argument that he can excuse demand by pleading a violation of the
Board’s duty of care notwithstanding the Company’s 102(b)(7) Charter provision has been
                                           26
          Even if Plaintiff could plead demand futility by pleading a breach of the

Board’s duty of care (he cannot), his Complaint would still fall short.120

The business judgment rule prevents Delaware courts from evaluating whether

decision-makers made a “right” or “wrong” decision.121 Rather, our courts properly

focus on the “process” employed to make a decision.122 To state a claim that a board

breached its duty of care, the plaintiff must plead facts “predicated upon concepts of

gross negligence.”123 And such facts must be considered against the presumption

that the board’s decisions were made in the company’s best interest.124 This

fundamental precept calls for deference to the board’s decisions regarding (i) how




squarely rejected by this court. See Ellis v. Gonzalez, 2018 WL 3360816, at *6 (Del. Ch.
July 10, 2018) (noting that “AbbVie’s certificate of incorporation contains a
Section 102(b)(7) clause that exculpates the directors from liability for duty-of-care
violations,” and holding, therefore, that the derivative plaintiff had to “adequately allege
that a majority of AbbVie’s board faces a substantial likelihood of liability for breaching
the duty of loyalty.”) (citing cases); Leonis v. Lawal, 2017 WL 5289611, at *11, *14–15
(Del. Ch. Nov. 7, 2017) (same); Ryan, 2017 WL 2062902, at *17 (citing Aronson, 473 A.2d
at 815) (same).
120
      See PAB at 43.
121
      In re Citigroup, 964 A.2d at 124.
122
   Id. at 124 (“[T]he fiduciary duty of care and the business judgment rule . . . focus on the
decision-making process rather than on a substantive evaluation of the merits of the
decision.”).
123
      Aronson, 473 A.2d at 812.
124
      Id. at 812.

                                             27
much information it needed before it decided to act and (ii) how to structure its

meetings.125

         Plaintiff draws two lines of attack with respect to the Board’s decision-making

process. First, he argues the Board made a “conscious decision to allow Potdevin

to decide his own fate.”126 Second, he claims the Board rushed to negotiate and sign

the Separation Agreement after conducting cursory informal meetings (without

minutes).127     None of the alleged shortcomings Plaintiff identifies support an

inference of gross negligence—much less bad faith or conflicts of interest.

         As for Plaintiff’s first advance, the theory is that, even though it knew

Potdevin’s presence at the Company was destructive, the Board simply allowed

Potdevin to decide for himself whether he would continue as lululemon’s CEO.128



125
   Citron v. Fairchild Camera and Instrument Corp., 1988 WL 53322, at *17 (Del. Ch.
May 19, 1988) (“Thus, just how much information prudence requires before a decision is
made is itself a question that calls for informed judgment of the kind courts are not well-
equipped to make. . . . In my opinion, where a disinterested board in good faith considers
the significance of the decision called for, the available information of which it and its
advisors are aware and the time constraints imposed upon it, and in those circumstances,
the board makes a decision that it is in the best interests of the corporation to act, that
decision itself is entitled to the benefits of the business judgment rule.”); In re RJR Nabisco,
Inc. S’holders Litig., 1989 WL 7036, at *19 (Del. Ch. Jan. 31, 1989) (“The amount of
information that it is prudent to have before a decision is made is itself a business
judgment.”).
126
      Compl. ¶ 72; PAB at 27.
127
      Compl. ¶¶ 6–7, 66, 68, 72; PAB at 10, 22–25, 31–33.
128
      Compl. ¶ 7; PAB at 33–34.

                                              28
The only fact Plaintiff can muster in support of this conclusion comes from the

Board’s minutes authorizing Murphy to negotiate with Potdevin.129 Specifically,

minutes from the end of January, created shortly before Potdevin resigned, recount

that:

               The independent directors . . . met telephonically on January 31,
         2018. . . Mr. Murphy stated that the purpose of the meeting was to
         continue the discussion from the previous meetings of the
         independent directors regarding allegations of inappropriate
         behavior by Mr. Potdevin and his future employment with the
         company. The directors considered the legal and brand risk to the
         Company regarding various outcomes and the legal advice provided by
         the Company’s external counsel. The directors discussed and
         considered what course of action would be in the best interest of the
         Company, its employees and its shareholders. Following the
         discussion, the directors agreed that Mr. Murphy would . . . meet with
         Mr. Potdevin to discuss the best path forward for the Company.

               The independent directors discussed the terms of Mr. Potdevin’s
         employment agreement and authorized Mr. Murphy to negotiate the
         possible terms of a separation agreement and release on behalf of the
         Company in connection with Mr. Potdevin’s potential separation of
         employment with the Company if Mr. Murphy and Mr. Potdevin
         agreed that this would be the best path forward. The directors
         authorized Mr. Murphy to negotiate a separation agreement and
         release within parameters set forth by the Board in that event.130



129
      PAB at 33–34 (citing Aronstam Aff. Ex. 18 at 1).
130
   Aronstam Aff. Ex. 18 at 1 (emphasis supplied). Here, I note Plaintiff’s assertion that
the Board “authorized the Chairman of the Board to unilaterally negotiate the terms of
Potdevin’s severance agreement with him, without any input from the Board or
Compensation Committee,” is flatly contradicted by these minutes, which state clearly that
the Board authorized Murphy to “negotiate . . . within parameters set forth by the Board.”
PAB at 4.

                                             29
          These minutes do not reasonably support the inference Plaintiff asks the Court

to draw.           Plaintiff underscores that the Board only authorized a “potential

separation . . . if Mr. Murphy and Mr. Potdevin agreed.”131 But nothing about this

Board direction supports a reasonable inference that the Board deferred to

Potdevin’s judgment.          Rather, it shows the Board authorized Mr. Murphy to

negotiate Potdevin’s resignation—if he would agree to a peaceful separation.

If Potdevin would not go quietly, Murphy was to return to the Board for further

direction. Nothing about this approach placed Potdevin in control of his fate.

          Relatedly, Plaintiff proclaims that the Board had a duty to make a “decision”

to fire Potdevin before Murphy attempted to negotiate his resignation.132 I see no

basis to impose that duty, and Plaintiff offers none. The far more reasonable

decision-making process would be—as the Board did here—to determine whether

Potdevin would leave peacefully on mutually acceptable terms before deciding to go

to war with him.133

          Turning to Plaintiff’s second line of attack, he faces the fruitless task of

maintaining credibility while arguing that the Board was too slow to respond to


131
      PAB at 34 (emphasis supplied).
132
      Tr. at 61.
133
   See Teamsters Union 25 Health Servs. & Ins. Plan v. Baiera, 119 A.3d 44, 57–58
(Del. Ch. 2015) (Under Rule 23.1, a court need not draw “hyper-technical and
unreasonable” inferences that are based on “unsupported leap[s] of logic.”).

                                            30
Incident 1, but too fast in its response to Incident 2.134 For example, Plaintiff faults

the Board for not waiting for the external investigation to be “completed” or for the

Board’s sub-committees to make separate, formal presentations before taking

action.135 Yet Plaintiff affirmatively pleads that Potdevin created a “toxic . . . culture

of oppression.”136 When pressed, Plaintiff’s counsel conceded that the Board had

no real option other than to act when it did either to negotiate Potdevin’s resignation

or fire him for cause.137 It is the Board’s prerogative to decide when it had enough

information to decide how to separate Potdevin from the Company—not

Plaintiff’s.138




134
    Compare Compl. ¶ 92 (“Defendants . . . fail[ed] to take any meaningful action to remedy
defendant Potdevin’s misconduct and the toxic environment festering under his leadership
despite knowledge thereof.”), with PAB at 28 (“[T]here is no allegation in the [Complaint]
or indication in the Board minutes that the external investigation was even completed when
the Board made its decision.”), and Tr. 59 (“I think what this shows is a board that chose
to rush a process where there was no need to act now.”).
135
   PAB at 27–29. Additionally, Plaintiff faults the Board for not making an “affirmative”
decision to “investigate” Potdevin’s inappropriate behavior beyond reviewing the Report.
PAB at 2. I struggle to follow the logic of that argument. The Report provided the Board
with information relating to the investigation it had already commissioned. And the Board
was justified in relying upon it as it determined how best to proceed. 8 Del. C. § 141(e).
136
      Compl. ¶ 3.
137
      Tr. at 55.
138
      Citron, 1988 WL 53322, at *17; In re RJR Nabisco, 1989 WL 7036, at *19.

                                            31
         There is no “single blueprint” a Board must follow to satisfy its fiduciary

duties.139 On January 29, the Board reviewed the Report.140 Two days later, the

Board authorized Murphy to negotiate Potdevin’s resignation and, on February 5,

Potdevin was gone.141 Even if this were all that the Board did before settling with

Potdevin (it is not),142 Plaintiff would fall well short of pleading “particularized facts

[] such that it is difficult to conceive that a director could have satisfied his or her

fiduciary duties.”143

         This conclusion is even more inevitable in light of the purely discretionary

nature of the challenged Board decision—whether or not to settle with the CEO.

In this regard, a board’s decision regarding executive compensation provides a

useful analogy. “The size and structure of executive compensation are inherently



139
      Barkan v. Amsted Indus., Inc., 567 A.2d 1279, 1286 (Del. 1989).
140
      Compl. ¶ 61.
141
      Compl. ¶¶ 61, 76.
142
   Plaintiff acknowledges, in-between Incident 2 in late-2017 and February 5, 2018, the
Board: “(i) launched an internal investigation,” (ii) “hired a firm to conduct an external
investigation,” (iii) “formed a subcommittee related to the decision” and (iv) “considered
the ramifications to the Company’s brand image.” PAB at 24; Tr. 45 (Plaintiff’s counsel
concedes the Board met five times to discuss Potdevin’s improprieties.). See also Compl.
¶ 61 (discussing the Report the Board reviewed on January 29), ¶ 63 (discussing the
Board’s decision to review Incidents 1 and 2 in informal conversations to encourage “an
open dialogue on the facts”), ¶ 72 (“lululemon initiated two investigations into defendant
Potdevin’s inappropriate conduct.”).
143
      Ryan, 2017 WL 2062902, at *17 (emphasis supplied and internal quotation omitted).

                                             32
matters of judgment.”144 Just as in the case of setting executive compensation, the

Board was operating well-within the bounds of proper business judgment when it

decided to settle with Potdevin rather than fire him “for cause,” a decision that could

have embroiled the Company in an embarrassing legal battle with its former CEO.

         While it is not entirely clear where these allegations fit within his theory of

demand futility, Plaintiff makes much of the Board’s decision to discuss Potdevin’s

future with the Company during informal, un-minuted meetings.145 I say the

relevance is unclear because Plaintiff asks the Court to draw contradictory inferences

that (i) the Board did not discuss “Potdevin’s improprieties in any meaningful sense”

versus (ii) the Board “discuss[ed] the allegations against Potdevin” in informal

meetings “to . . . prevent scrutiny of Potdevin’s improprieties [and] . . . its actions in

response to the wrongdoing.”146 I need not attempt a reconciliation of discordant

inferences because I am satisfied that nothing about the Board’s decision to meet

informally to discuss Potdevin, as alleged here, supports a reasonable inference of

wrongdoing.




144
   Brehm, 746 A.2d at 263 (citation omitted and emphasis supplied). See also White,
793 A.2d at 369 (“[T]his [c]ourt’s deference to directors’ business judgment is particularly
broad in matters of executive compensation.”) (quotation omitted).
145
      See PAB at 10, 24, 31–33.
146
      PAB at 10, 24, 32–33.

                                            33
         As noted, the Complaint acknowledges the Board did discuss Potdevin’s

improprieties and what best to do about them.147 And, while this court has been

suspicious of a board’s choice to conduct un-minuted meetings in other

circumstances, those instances involved other compelling facts weighing in favor of

demand futility, which are lacking here.148 Under the circumstances as alleged, the

Board’s decision to use “off the record conversations” to encourage “an open

dialogue on the facts” concerning what should be done about the Company’s CEO

is entitled to deference.149

      D. Waste

         In a last-ditch effort to plead demand futility, Plaintiff argues the Board’s

decision to sign the Separation Agreement, rather than fire Potdevin for cause, was




147
   See, e.g., Compl. ¶¶ 61, 67 (discussing the Report which contained facts surrounding
Incidents 1 and 2).
148
   See, e.g., Texlon Corp. v. Bogomolny, 792 A.2d 964, 974–75 (Del. Ch. 2001) (holding
that a plaintiff had stated a claim for breach of fiduciary duty, a conclusion that was
“influenced” by the allegation that “there were no minutes kept of the meetings of the
[company] board meetings” in addition to the pled-facts that “none of the defendants . . .
was able to act independently of [the board’s chairman] and that the terms of the
[challenged transaction with the chairman] . . . were unfair to the company”); Feuer on
behalf of CBS Corp. v. Redstone, 2018 WL 1870074, at *13–14 n.146 (Del. Ch. Apr. 19,
2018) (considering a lack of minutes discussing Redstone’s $1.75 million annual salary as
Executive Chairman of the board in the context of, inter alia, his (i) failure to attend board
meetings, (ii) substantial health impairment, (iii) incomprehensible speech and (iv) “non-
responsive” interactions with the people around him).
149
      Compl. ¶ 63.

                                             34
“completely unnecessary and wasteful.”150 By Plaintiff’s lights, “Potdevin would

not have been in any position to mount a legal challenge to a ‘for cause’

dismissal.”151 Thus, the decision to pay him $5 million under the Severance

Agreement constituted “unwarranted severance.”152

            To state a claim for waste, Plaintiff must plead that the Separation Agreement

“cannot be attributed to any rational business purpose.”153 In other words, Plaintiff

must plead facts that allow a reasonable inference the Separation Agreement

amounted to “a transfer of corporate assets that serve[d] no corporate purpose[,] or

for which no consideration at all [was] received.”154 No such inference may be

drawn here.

            First, as Plaintiff’s waste claim, itself, demonstrates, there is nothing that

would have prevented Potdevin from challenging (in a very public way) a




150
      PAB at 1–2, 35.
151
      PAB at 35.
152
      Id.

  In re Volcano Corp. S’holder Litig., 143 A.3d 727, 750 (Del. Ch. 2016) (quoting Cede &
153

Co. v. Technicolor, Inc., 634 A.2d 345, 361 (Del. 1993)).
154
   Protas v. Cavanagh, 2012 WL 1580969, at *9 (Del. Ch. May 4, 2012) (alteration in
original and internal quotation omitted).

                                              35
“for cause” dismissal, even if he lacked a good argument.155 Second, Plaintiff’s

theory that the Company got no value from the Separation Agreement ignores that

the Board (i) required Potdevin to release all the claims he had against the Company

and (ii) secured an extended non-solicitation covenant from Potdevin.156 But even

ignoring these corporate benefits, it is undisputed that the Separation Agreement

liberated the Company from Potdevin’s troublesome tenure as CEO, facilitated the

Company’s efforts swiftly to remediate an environment the Complaint describes as

“toxic” and allowed the Company to avoid potentially costly and embarrassing

litigation.157 These, by any measure, are corporate benefits.

         While there is an “outer limit,” at which point “a decision of the directors . . .

is so disproportionately [irrational] as to be unconscionable and constitute waste,”

Plaintiff has not come close to reaching that limit.158 “There is nothing wrong with

your television set,”159 demand is not futile with respect to Plaintiff’s waste claim.




155
    See Brehm, 746 A.2d at 265 (“All this shows is that the Board had arguable grounds to
fire Ovitz for cause. But what is alleged is only an argument—perhaps a good one—that
Ovitz’ conduct constituted gross negligence or malfeasance.”).
156
      Compl. ¶ 78; PAB at 37–38.
157
      Compl. ¶ 78; PAB at 37–38.
158
      In re Citigroup, 964 A.2d at 138.
159
      The Outer Limits (American Broadcasting Company 1963–65).

                                             36
   E. Unjust Enrichment

      As Plaintiff has failed to plead particularized facts to support an inference that

the Board cannot manage the Company’s litigation asset, including its potential

claim against Potdevin for unjust enrichment, this claim also must fail under

Rule 23.1. For reasons discussed above, the Board is not “interested” with respect

to the Separation Agreement or any claim that Potdevin was unjustly enriched by it,

and the Complaint pleads no facts to allow a reasonable inference that a majority of

the Board is beholden to Potdevin.

                            III. CONCLUSION

      For the foregoing reasons, Defendants’ Motion must be GRANTED. The

Complaint is dismissed with prejudice.

      IT IS SO ORDERED.




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