                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  October 13, 2010 Session

           IN RE HEALTHWAYS, INC. DERIVATIVE LITIGATION

                 Appeal from the Chancery Court for Davidson County
                    No. 08-1426-II   Carol L. McCoy, Chancellor


                 No. M2009-02623-COA-R3-CV - Filed March 14, 2011


Plaintiff in shareholder derivative action appeals the dismissal of his suit alleging breaches
of fiduciary duty and other misconduct, including insider trading, by current and former
officers and directors of corporation. Plaintiff filed suit without first making demand on the
board of directors of the corporation that the directors initiate the lawsuit. Defendants moved
to dismiss the suit on the ground that plaintiff failed to allege with requisite particularity that
such demand would have been futile. We affirm the dismissal of the action.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which P ATRICIA J. C OTTRELL,
P.J., M.S., and F RANK G. C LEMENT, J R., J., joined.

Paul Kent Bramlett and Robert Preston Bramlett, Nashville, Tennessee; Brett D. Stecker,
Jeffrey J. Ciarlanto, and Robert B. Weiser, Wayne, Pennsylvania; and James G. Flynn and
Robert I. Harwood, New York, New York, for the appellant, Roy T. Forrest.

Wallace W. Dietz and Brian D. Roark, Nashville, Tennessee; and Brandon R. Williams, John
L. Latham, and Susan E. Hurd, Atlanta, Georgia, for the appellee, Healthways, Inc.

                                           OPINION

       This is an appeal of the dismissal of a shareholder derivative action brought on behalf
of Healthways, Inc., a Delaware corporation headquartered in Tennessee. Plaintiff Roy T.
Forrest is a Healthways shareholder who filed a shareholder derivative suit against
Healthways on June 27, 2008 in Davidson County Chancery Court. On July 24, 2008, a
second Healthways shareholder, Nikki Tran, filed a separate shareholder derivative suit, also
in Davidson County Chancery Court. On August 19, 2008, an order consolidating the suits
was entered and, on May 11, 2009, Mr. Forrest filed a “Consolidated Verified Shareholder


                                                1
Derivative Complaint,” naming fifteen current or former officers or directors of Healthways
as defendants.1 The action was filed without plaintiff first making demand on the board of
directors of Healthways that the directors initiate the action.

       Plaintiff asserted separate causes of action that all defendants breached their fiduciary
duty to the corporation by disseminating false and misleading information, by failing to
properly oversee and manage the company, and by failing to maintain adequate internal
controls; plaintiff also asserted that all defendants unjustly enriched themselves and wasted
corporate assets. Plaintiff asserted a further claim against certain of the defendants for
breach of fiduciary duties based on insider selling and misappropriation of information. The
action sought compensatory damages as well as equitable and injunctive relief.

        Defendants moved to dismiss the case on the ground that the complaint failed to allege
with requisite particularity that demand on the directors to initiate the action would have been
futile. The trial court agreed and dismissed the action. The sole issue on appeal is whether
the court erred in finding that Plaintiff failed to plead demand futility with requisite
particularity.

I. Factual Allegations of the Complaint2

        Healthways is a disease management company that “provides specialized,
comprehensive Health and Care Support solutions to help people maintain or improve their
health and, as a result, reduce overall healthcare costs.” In 2005, Healthways began
participating as a provider in the Medicare Health Support Pilot Program (“MHS Program”),
an initiative of the Centers for Medicare & Medicaid Services of Health and Human Services
(“CMS”). The MHS Program had two primary goals: to improve the quality of medical care
received by Medicare and Medicaid beneficiaries who had multiple chronic conditions and
to help the Medicare and Medicaid programs achieve cost savings targets.

       The program was designed to consist of two phases, the first of which would last three
years. During Phase I, CMS would evaluate the care that Medicare and Medicaid
beneficiaries received, their satisfaction with the care received, and the cost savings achieved
through the MHS Program. Once Phase I ended, CMS would decide whether to expand the
MHS Program to a nationally rolled-out Phase II. At the outset of the program, CMS
established a 5% cost savings target as a criteria for evaluating the success of Phase I. Under


        1
         The named defendants were John W. Ballantine, J. Cris Bisgard, Thomas G. Cigarran, Henry D.
Herr, Mary Jane England, Ben R. Leedle, L. Ben Lytle, C. Warren Neel, William C. O’Neil, Alison Taunton-
Rigby, John A. Wickens, Mary A. Chaput, Mary Hunter, Matthew E. Kelliher, Alfred Lumsdaine.
        2
          When ruling on a motion to dismiss, the allegations of the complaint are deemed to be true. See
Wolcotts Fin. Serv., Inc. v. McReynolds, 807 S.W.2d 708 (Tenn. Ct . App. 1990).

                                                   2
the terms of Healthways’ contract with CMS, failure to meet the 5% per month cost savings
target could obligate Healthways to reimburse CMS for millions of dollar in fees that CMS
paid to Healthways in connection with the MHS Program; it would also make Healthways’
participation in any potential Phase II of the program unlikely.

       Plaintiff alleges that, during the period from October 17, 2007 to May 11, 2009,
defendants received quarterly “ARC reports”3 from CMS which showed that Healthways was
falling short of the 5% per month cost savings target but that, rather than disclose
Healthways’ inability to meet the Phase I savings target, “defendants instead began lobbying
the CMS to lower the MHS Phase I savings targets.” On January 7, 2008, Healthways filed
a Form 8-K4 with the SEC stating that the Office and Management and Budget had approved
a request from CMS to lower the savings target for the MHS Program “from 5% net savings
to budget neutrality (savings greater than or equal to fees).”5 Plaintiff asserted that, after this
announcement, Healthways stock increased from $64.50 to $67.21 per share, but that “[t]he
price was artificially inflated, as not only were defendants specifically aware that the
Company had been failing to meet the 5% cost savings target all along, but also that the
Company could not meet the modified break-even savings target.” Plaintiff further alleged
that on February 26, 2008, Healthways issued a press release announcing that the Company
was lowering its financial guidance for fiscal 2008 from a range of $782–815 million to
$720–740 million and its earnings guidance per share from a range of $1.77–1.86 to
$1.50–1.55 and that, as a result, Healthways stock fell to $31.54, representing a near 30%
one-day loss and a decrease of more than 53% since January 7.

       Plaintiff charged that communications issued by defendants relative to Healthways’
participation in the MHS program were false and misleading 6 as were components of the


          3
         These reports are not otherwise defined in the complaint but it appears that they were periodic
performance reports.
          4
              This is a report required to be filed with the SEC when a corporation is involved in a “material
event.”
          5
          The complaint also alleges that CMS agreed to reduce the cost savings target to break even in
January 2008.
          6
              With specific reference to Healthways’ participation in the MHS program, the complaint alleged:

          Throughout the relevant period, defendants misrepresented and failed to disclose that:

          a. Healthways had not been meeting the MHS Program Phase I savings targets, among other
          requirements, set by CMS;
          b. As a result of Healthways’ failures, CMS would not expand the MHS Program to Phase
          II and the Company would be required to reimburse CMS for fees it had already received
                                                                                            (continued...)

                                                        3
fiscal 2008 guidance which allegedly failed to disclose that major Healthways customers,
including Blue Cross of Minnesota, Blue Cross of Massachusetts, and WellPoint were
cancelling programs and/or requiring Healthways to provide more services for the same or
less money with a resulting negative impact on profits.

       Plaintiff also alleged that between October 29, 2007 and January 9, 2008 certain of
the defendants, whom plaintiff referred to as the “insider trading defendants,” sold a total of
288,824 Heathways shares while in possession of material, adverse non-public information
and otherwise in violation of the company’s Code of Conduct.

II. Applicable Law

        Healthways is chartered under Delaware law and, at the time this action was initiated,
was headquartered in Nashville, Tennessee; the parties do not contest the exercise of
jurisdiction by the Tennessee courts or venue in Davidson County.

        Tennessee adheres to the “internal affairs” doctrine, under which matters involving
the internal affairs of a foreign corporation are deemed substantive in nature and “should be
resolved in accordance with the law of the state of incorporation.” Hicks ex rel. Union Pac.
Corp. v. Lewis, 148 S.W.3d 80, 84 (Tenn. Ct. App. 2003) (citing Bayberry Assocs. v. Jones,
No. 87-261-II, 1988 WL 137181, at *4 (Tenn. Ct. App. Nov. 9, 1988), vacated on other
grounds, 783 S.W.2d 553 (Tenn.1990); Amberjack, Ltd. v. Thompson, No. 02A01-9512-CV-
00281, 1997 WL 613676, at *8–9 (Tenn. Ct. App. Oct. 7, 1997). As noted earlier, the sole
issue presented in this appeal is whether the complaint alleged facts sufficient to excuse
plaintiff from making a pre-suit demand on the Healthways board of directors. In Kamen v.
Kemper Financial Services, Inc., 500 U.S. 90 (1991), the United States Supreme Court
explained that, in a shareholder derivative suit, any demand requirement or exception thereto,
is deemed a matter of substantive law7 ; thus, we apply Delaware law to resolve the
substantive issues.


       6
        (...continued)
       in connection with the MHS Program;
       c. As a result of the foregoing, there was no reasonable basis for the revenue and earnings
       guidance they had issued for fiscal 2008.
       7
           The Court wrote:

       In our view, the function of the demand doctrine in delimiting the respective powers of the
       individual shareholder and of the directors to control corporate litigation clearly is a matter
       of “substance,” not “procedure.” See Daily Income Fund, Inc. v. Fox, supra, 464 U.S., at
       543-544, and n. 2, 104 S.Ct., at 842-843, and n. 2 (STEVENS, J., concurring in judgment).

Kamen, 500 U.S. at 96–97.

                                                     4
       Procedural matters, however, including the standard of review, are governed by
Tennessee law. State ex rel. Smith v. Early, 934 S.W.2d 655 (Tenn. Ct. App. 1996); accord
16 A M. J UR. 2 D C ONFLICT OF L AWS §§ 134–35 (“Matters of procedure . . . are governed by
the law of the forum”). Because this appeal is from the grant of a motion to dismiss and
involves a question of law, the scope of our review is de novo with no presumption of
correctness. Coulter v. Hendricks, 918 S.W.2d 424, 426 (Tenn. Ct. App. 1995).

III. Analysis

        A. Pre-Filing Demand

        Pursuant to Delaware law, before a shareholder may initiate a derivative action, the
shareholder must present the allegation to the corporation’s directors and request that the
board bring the suit. Del. Ch. R. 23.1;8 Stone v. Ritter, 911 A.2d 362, 366–67 (Del. 2006).
If the directors refuse to pursue the action, the shareholder may initiate the suit by showing
that the board wrongfully refused to do so. Id. However, when demand has not been made,
as is the case here, the complaint is subject to dismissal unless the plaintiff can plead with
requisite particularity why it would be futile to make a demand upon the board of directors.
Wood v. Baum, 953 A.2d 136, 140 (Del. 2008); see also Stone, 911 A.2d at 366–67.

        In order to excuse demand under Del. Ch. R. 23.1, the complaint must plead
“particularized facts” creating a reasonable doubt that “the directors are disinterested and
independent” or that “the challenged transaction was otherwise the product of a valid
exercise of business judgment.” Brehm v. Eisner, 746 A.2d 244, 256 (Del. 2000) (quoting
Aronson v. Lewis, 473 A.2d 805, 814 (Del. 1984)).9 Where the subject of the derivative suit
is a business decision of the board of directors, demand futility must be established pursuant
to the standard articulated in Aronson v. Lewis. Rales v. Blasband, 634 A.2d 927, 934 (Del.
1993.) However, where a specific business decision of the board is not being challenged,10

        8
           “In a derivative action brought by one or more shareholders . . . . [t]he complaint shall . . . 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.” Del. Ch. R. 23.1. The language of Tenn. R. Civ. P. 23.06 is substantially the same as
Del. Ch. R. 23.1. Because in this appeal we are considering the adequacy of the allegations of the complaint
to excuse the pre-suit demand requirement as a matter of substantive law, see Kamen, 500 U.S. at 96–97, we
will apply Del. Ch. R. 23.1.
        9
          The prongs of this test are disjunctive; if either prong is satisfied, demand is excused. Brehm, 746
A.2d at 253.
        10
           “The essential predicate for the Aronson test is the fact that a decision of the board of directors
is being challenged in the derivative suit.” Rales, 634 A.2d at 933 (emphasis in original). Plaintiff’s claims
                                                                                                (continued...)

                                                       5
as in the present case, we determine the issue of demand futility by applying the standard set
forth in Rales.

       Under Rales, the inquiry before the court is “whether or not the particularized factual
allegations of a derivative stockholder complaint create a reasonable doubt that, as of the
time the complaint is filed, the board of directors could have properly exercised its
independent and disinterested business judgment in responding to a demand.” Rales, 634
A.2d at 934.11 The question of whether demand would be futile is considered on a claim-by-
claim basis. Beam ex rel. Martha Stewart Living Omnimedia, Inc. v. Stewart, 833 A.2d 961
(Del. Ch. 2003), aff’d. 845 A.2d 1040 (Del. Supr. 2004).

       As a preliminary matter, we must determine the effect on our analysis of a provision
of Healthways’ certificate of incorporation which exculpates directors from liability under
certain circumstances.12 Plaintiff contends that 8 Del. Ch. § 102(b)(7), which authorizes the
exculpatory provision,13 does not exempt directors from liability for violations of the duties


        10
           (...continued)
in this case do not challenge a specific business decision.
        11
             The Delaware Supreme Court articulated the inquiry as follows:

        That is, were [the members of the Board of Directors] incapable, due to personal interest or
        domination and control, of objectively evaluating a demand, if made, that the Board assert
        the corporation's claims that are raised by plaintiffs or otherwise remedy the alleged injury?
        This rule is premised on the principle that a claim of the corporation should be evaluated by
        the board of directors to determine if pursuit of the claim is in the corporation's best
        interests.

Brehm, 746 A.2d at 257 (citations omitted).
        12
             The certificate was introduced into this record as an exhibit to Defendants’ motion to dismiss
which was grounded in Tenn. R. Civ. P. 12 and 23.06. While matters other than the complaint are generally
not to be considered by the court in ruling on a Rule 12 motion to dismiss for failure to state a claim, we
consider the certificate only insofar as it may have applicability to the standard we apply in assessing the
sufficiency of the factual allegations of the complaint to comply with the requirement of Del. Ch. R. 23.1 that
plaintiff allege reasons why demand was not given. In addition, the court may take judicial notice of the
certificate in deciding a motion to dismiss. In re Baxter Int'l, Inc. Shareholders Litig., 654 A.2d 1268, 1270
(Del. Ch. 1995) (citing In re Wheelabrator Technologies Inc. Shareholders Litigation, C.A. No. 11495, 1992
WL 212595 (Del. Ch., Sept. 1, 1992)).
        13
             The provision reads as follows:

        No director of the Corporation shall be personally liable to the Corporation or its
        stockholders for monetary damages for breach of fiduciary duty as a director, provided
        however, that this provision shall not eliminate or limit the liability of a director (i) for any
                                                                                                    (continued...)

                                                       6
of loyalty and good faith14 and that, consequently, the provision has no application to the
inquiry before this court because his claims are not grounded solely on the duty of care.

        Where directors are protected by an exculpatory provision of the sort authorized by
8 Del. Ch. § 102(b)(7), the risk of liability is diminished; as a consequence, to excuse demand
the complaint must contain particularized allegations of facts which allow the court to
conclude that the challenged conduct falls outside the exemption. In re Baxter Int'l, Inc.
Shareholders Litig., 654 A.2d 1268, 1270 (Del. Ch. 1995). Consistent with Delaware law,
the practical effect of the exculpatory provision in Healthways’ certificate is to require
Plaintiff to allege conduct that rises to the level of bad faith, intentional misconduct, or a
knowing violation of law. See id. Accordingly, we will not excuse demand if the complaint
states claims that arise solely out of the duty of care, but may excuse demand where there are
particularized allegations that the directors breached their duties of loyalty or good faith.

        A. Allegations Related to Insider Trading and Misappropriation of Information

       In order to excuse demand based on insider stock sales, a plaintiff must plead facts
supporting the inference that directors “possessed material, nonpublic company information”
and “used that information improperly by making trades because [they were] motivated, in
whole or in part, by the substance of that information.” In re Oracle Corp., 867 A.2d 904,
934 (Del. Ch. 2004). A complaint that alleges “directly and by imputation” that directors
knew of the material information and made trades on that basis satisfies this standard.
Zimmerman v. Braddock, 2005 WL 2266566, at *8 (Del. Ch. Sept. 8, 2005), rev’d on other
grounds, 906 A.2d 776 (Del. 2006). However, “[m]ere notice pleading is insufficient to meet
the plaintiffs’ burden to show demand excusal in a derivative case,” and a director will not
be interested for purposes of demand futility based on the mere fact that he or she traded
stocks. Guttman v. Huang, 823 A.2d 492, 499, 502 (Del. Ch. 2003). Further, directors are
not “interested” simply because “a derivative plaintiff cursorily alleges that [the director]
made sales of company stock in the market at a time when he possessed material, non-public
information.” Id. at 502. The key inquiry is:



        13
          (...continued)
        breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts
        of omissions not in good faith or which involve intentional misconduct or a knowing
        violation of law, (iii) under Section 174 of the Delaware General Corporation Law or (iv)
        for any transaction from which the director derived an improper personal benefit.


        14
           “. . . Section 102(b)(7) protections do not apply to violations of the fiduciary duties of good faith
or loyalty.” Emerald Partners v. Berlin, 726 A.2d 1215, 1227 (Del. 1999).



                                                       7
        whether the plaintiffs have pled particularized facts regarding the directors that
        create a sufficient likelihood of personal liability because they have engaged
        in material trading activity at a time when (one can infer from particularized
        pled facts that) they knew material, non-public information about the
        company's financial condition.

Id. at 502 (Del. Ch. 2003). To proceed on an insider selling claim, a plaintiff must show
“that each sale by each individual defendant was entered into and completed on the basis of,
and because of, adverse material non-public information.” Id. at 505 (quoting Stepak v. Ross,
1985 WL 21137, at *5 (Del. Ch. Sept. 5, 1985)).

        The complaint identifies defendants Cigarran, Herr, and Lytle as “interested” 15 current
or former directors of Healthways who traded their stock and as to whom demand would
have been futile. The complaint alleged that, as directors of Healthways, they owed a
fiduciary duty to Healthways and possessed material, non-public information. The complaint
alleges that Healthways was not succeeding in meeting the cost savings targets for the MHS
Program; that Healthways’ revenues and earnings would be negatively impacted once “the
truth” of its progress within the MHS Program became known; that Cigarran, Herr, and Lytle
were aware, contrary to the press releases and public statements of “the defendants,” of
Healthways true financial condition; and that they sold their stocks on the basis of this inside
information. The allegations are sufficient to support an inference that Cigarran, Herr, and
Lytle initiated and completed sales of their stock on the basis of adverse, material and
non-public information. Inasmuch as the particularized allegations support a claim of insider
trading, the exculpatory provision does not provide protection to Cigarran, Herr, and Lytle,
since insider trading, if proven, constitutes a breach of the duty of loyalty and is a non-
exculpable claim. Pfeiffer v. Toll, 989 A.2d 683, 691 (Del. Ch. 2010). Therefore, the
complaint contains allegations of breach of the duty of loyalty by insider trading with
sufficient particularity as to Cigarran, Herr, and Lytle to conclude that demand as to each of
them on this particular claim would have been futile.

      Applying this pleading standard to the remaining directors, we conclude that the
complaint does not contain particularized factual allegations of insider trading and
misappropriation of information sufficient to establish interest or lack of independence which
would excuse demand as to those directors.16 See Pedroli ex rel. Microtune, Inc. v. Bartek,

        15
           “A director is considered interested where he or she will receive a personal financial benefit from
a transaction that is not equally shared by the stockholders. In such circumstances, a director cannot be
expected to exercise his or her independent business judgment without being influenced by the adverse
personal consequences resulting from the decision.” Rales, 634 A.2d at 936.
        16
          The complaint does contain specific allegations that members of the Governance Committee were
responsible for reviewing compliance with the Healthways Code of Conduct and that the committee members
                                                                                           (continued...)

                                                      8
564 F. Supp. 2d 683, 695 (E.D. Tex. 2008) (holding that, under Delaware law, conclusory
allegations regarding the directors as a group are insufficient to demonstrate demand futility).

        Our determination that demand would have been futile as to three of the eleven
directors is insufficient to establish demand futility of a majority of the board. See Rales, 634
A.2d at 937 (“[T]he appropriate inquiry is whether [the] amended complaint raises a
reasonable doubt regarding the ability of a majority of the Board to exercise properly its
business judgment in a decision on a demand had one been made at the time this action was
filed.”). Consequently, demand was not excused as to the claim of insider trading and
misappropriation of information.

        B. Allegations Relating to Members of the Governance Committee

        The complaint alleges that the Governance Committee is charged with, inter alia, the
responsibility to review compliance by officers and directors with Healthways’ Code of
Conduct and to recommend to the entire board “any remedial actions deemed necessary” on
the basis of such review. It is further alleged that the insider sales violated the Code of
Conduct17 which prohibited trading in Healthways stock if a “Healthways colleague” is in
possession of material, non-public information. In his brief on appeal, plaintiff further
asserts that sales of stock by defendant Hunter on January 7, 2008 and by Lytle on January
9, 2008 violated the Code of Conduct because they were made within three days of the filing
of the January 7 Form 8-K. As members of the Governance Committee, defendants O’Neil,
Wickens, Ballantine, England, and Taunton-Rigby, are alleged to have permitted the

        16
         (...continued)
breached their fiduciary duties in “failing to take remedial measures” relative to the alleged insider trading.
We discuss these allegations separately at § III B.
        17
             A portion of the Code of Conduct was excerpted in the Complaint and states in relevant part:

        If an [sic] Healthways colleague has material, non-public information relating to Healthways
        (either positive or negative), until such information has been made available to the public
        through authorized channels, that person may not buy or sell Healthways stock nor may this
        person pass such information on to others who may trade in Healthways stock; to do so
        would constitute insider trading and could subject the individual to substantial civil and
        criminal penalties.

        Defendants included the following excerpt from the Code of Conduct in their memorandum in
support of the motion to dismiss, which we include for purposes of completeness:

        After Healthways has made a public announcement of material information, including
        earnings releases, because Healthways stockholders and the investing public should be
        afforded the time to receive the information and to act upon it, [company insiders] should
        not buy or sell Healthways stock until the third business day after the information has been
        released.

                                                       9
improper sales to occur and failed to take remedial measures. Plaintiff claims that the actions
and inactions of the Governance Committee members violated the duties of due care, loyalty
and good faith thereby subjecting them to a substantial likelihood of liability and excusing
demand as to those defendants.

       Consistent with our holding relative to the application of the exculpatory provision
in Healthways’ certificate of incorporation, to the extent plaintiff alleges that the actions or
inactions of the members of the Governance Committee violated the duty of due care, they
are not subjected to a substantial likelihood of liability and, consequently, demand is not
excused. See In re Baxter, 654 A.2d at 1270.

        With respect to the contention that the Governance Committee members violated the
duty of good faith, the complaint alleges that Governance Committee members had a duty
to review whether stock sales by persons covered by the Code of Conduct violated the code
and to recommend remedial action to the Board of Directors. The Complaint, however, does
not allege that any members of the committee had knowledge of the trades at issue or that the
trades were brought to the attention of the members of the committee so that any appropriate
remedial measures could be recommended. To the extent plaintiff contends that the
allegations support a claim of breach of the duty of good faith, they do not suffice. See In
re Caremark Int'l Inc. Derivative Litig., 698 A.2d 959, 971 (Del. Ch. 1996).18

        The duty of loyalty under Delaware law has been defined as:

        . . . a rule that demands of a corporate officer or director, peremptorily and
        inexorably, the most scrupulous observance of his duty, not only affirmatively
        to protect the interests of the corporation committed to his charge, but also to
        refrain from doing anything that would work injury to the corporation, or to
        deprive it of profit or advantage which his skill and ability might properly
        bring to it, or to enable it to make in the reasonable and lawful exercise of its
        powers.

Guth v. Loft, Inc., 5 A.2d 503, 510 (Del. 1939). The complaint does not contain
particularized factual allegations sufficient to support an inference that the members of the
Governance Committee violated the duty of loyalty as defined by applicable law with respect
to the insider stock sales.



        18
           Where a claim for failure to monitor is alleged, “only a sustained or systematic failure of the board
to exercise oversight—such as an utter failure to attempt to assure a reasonable information and reporting
system exists—will establish the lack of good faith that is a necessary condition to liability. Such a test of
liability—lack of good faith as evidenced by sustained or systematic failure of a director to exercise
reasonable oversight—is quite high.” In re Caremark., 698 A.2d at 971.

                                                      10
        We find that the specific allegations of the complaint relative to the Governance
Committee members do not meet the high standard under Delaware law to excuse demand.
The Governance Committee defendants were not subjected to a substantial likelihood of
liability and, as a consequence, demand was not futile.

        C. Allegations Relating to Members of the Audit Committee

        The complaint asserts causes of action against all defendants and, particularly, the
members of the Audit Committee for breach of fiduciary duty for disseminating false and
misleading information and for failing to maintain adequate internal controls.19 Del. Ch. R.
23.1 requires that the complaint allege the plaintiff's reasons for failure to make demand on
the directors that they pursue the action. The complaint does not allege that demand was
futile on the part of board members who were not members of the Audit Committee relative
to the causes of action for breach of fiduciary duty for disseminating false and misleading
information and failure to maintain adequate internal controls.20 The complaint thus fails to
satisfy the requirements of Rule 23.1 as respects the non-Audit Committee directors. In re
Abbott Laboratories Derivative Litigation 325 F.3d 795, 804 (7th Cir. 2003) (“The
shareholder must state with particularity why a demand would have been futile.”) (citing
Starrels v. First National Bank of Chicago, 870 F. 2d 1168, 1170 (7th Cir. 1989). For this
reason, we only consider the specific allegations of the complaint relative to the futility of
demand on the members of the Audit Committee.

        In relevant part, the complaint states as follows:

        148. [E]ach of the defendants (and particularly the Audit Committee
        defendants) had a duty to ensure that Heathways disseminated accurate,
        truthful and complete information to its shareholders, especially regarding the
        adequacy of the company’s internal controls.
        149. Defendants violated their fiduciary duties of care, loyalty and good faith
        by causing or allowing the company to disseminate to Healthways shareholders


        19
              We consider the allegation that defendants (including the Audit Committee members)
disseminated false and misleading information as asserting a claim for breach of the fiduciary duties of
loyalty and good faith, and the allegation that defendants failed to maintain adequate controls as asserting
a claim for breach of fiduciary duty of due care which may, depending on the severity of the allegations, give
rise to a claim of breach of duty of good faith. See In re Caremark., 698 A.2d at 971. As we held in our
discussion of allegations relating to members of the Governance Committee, to the extent plaintiff alleges
that the actions or inactions of the members of the Audit Committee violated the duty of due care, by virtue
of the exculpatory provision, they are not subjected to a substantial likelihood of liability and, consequently,
demand is not excused.
        20
           Plaintiff does allege that demand was futile relative to board members Leedle and Herr as to all
causes of action. Demand as to these defendants will be discussed in § III D.

                                                      11
       materially misleading and inaccurate information through, inter alia, SEC
       filings and other public statements and disclosures as detailed herein. . . .
       ***
       158. As alleged herein, each of the Defendants had a fiduciary duty to, among
       other things, exercise good faith to ensure that the Company’s financial
       statements were prepared in accordance with GAAP, and, when put on notice
       of problems with the Company’s business practices and operations, exercise
       good faith in taking appropriate action to correct the misconduct and prevent
       its recurrence.
       159. Defendants willfully ignored the obvious and pervasive problems with
       the Company’s internal controls practices and procedures and failed to make
       a good faith effort to correct these problems or prevent their recurrence.

       In support of these causes of action, the complaint alleges that on July 5, 2007 a press
release was issued by “the defendants” relative to Healthways’ third quarter 2007 results
which contained statements of defendant Leedle, who also participated in an investor
conference call and question and answer session that same day. It is alleged that on October
17, 2007 and December 19, 2007, press releases were issued and investor conference calls
with question and answer sessions held in which defendant Leedle participated 21 relative to
Healthways’ fourth quarter fiscal year 2007 and first quarter 2008 results, respectively. The
complaint further alleges that another press release was issued on January 7, 2008 with
respect to the filing of the Form 8-K. The complaint contains quotes and statements from
the various press releases and excerpts from the conference calls attributed to defendants
Leedle and Chaput. After recounting these press releases and calls, the complaint alleges:

       112. Defendants’ statements referenced above were materially false and
       misleading when made because defendants misrepresented and failed to
       disclose:
       a. that Healthways was not meeting the MHS Program Phase I savings targets,
       among other requirements, set by CMS. As a result of Healthways’ failure,
       CMS would not expand the MHS program to a Phase II and the company
       would be required to reimburse CMS for the fees they had already received
       through the MHS Program.
       b. that Healthways was in danger of losing at least two existing contracts and
       was experiencing slower enrollment in an existing contract due to a decline in
       the need for the Company’s services; and
       c. as a result of the foregoing, Defendants had no reasonable basis for their
       revenues and earnings guidance for fiscal 2008.




       21
            Defendant Chaput is alleged to have also participated in the October call.

                                                     12
       The particular allegations relating to the members of the Audit Committee are
contained in the portion of the complaint addressing demand futility, which states:

        142. . . . . Plaintiff did not issue a demand upon the Demand Directors to
        institute this action because such a demand would be futile for the following
        reasons.
        ***
        c. During the Relevant Period, defendants O’Neil, Ballantine, Bisgard, and
        Neel served as directors on the Audit Committee. Pursuant to the Audit
        Committee’s Charter, its directors were responsible for overseeing and directly
        participating in the Company’s internal controls, accounting practices, and
        financial reporting process. Defendants O’Neil, Ballantine, Bisgard, and Neel
        breached their fiduciary duties of due care, loyalty, and good faith, because the
        Audit Committee oversaw the preparation of improper financial statements and
        earnings press releases discussed herein that contained the false and/or
        misleading material information. Further, defendants O’Neil, Ballantine,
        Bisgard, and Neel failed to ensure that the Company had in place adequate
        internal controls over insider stock sales. . . .

       Plaintiff contends that the trial court “erred in analyzing whether demand was required
on the members of the Audit Committee under the so-called ‘Caremark’ standard.” 22 In
Caremark, the Delaware Chancery Court held that “a director’s obligation includes a duty
to attempt in good faith to assure that a corporate information and reporting system, which


        22
            On appeal, Plaintiff argues that “the more appropriate analysis” for determining demand futility
relative to his claims against the Audit Committee members was articulated in In re Abbott Labs. Deriv.
S’holders Litig., 325 F.3d 795 (7th Cir. 2003). In Abbott Labs, shareholders brought a derivative suit against
a health care corporation’s directors, alleging breach of fiduciary duty and asserting that the directors were
liable under state law for harms resulting from consent decrees between Abbott Laboratories and the Food
and Drug Administration. Id. at 799. The consent decrees were entered into based on six years of federal
violations by Abbott Laboratories, and the shareholders sought to hold the directors personally liable for the
extensive corporate losses that arose from the continuing violations. Id. at 801. Prior to initiating their suit,
the shareholders did not make demand on the board, later asserting that demand would have been futile. The
district court dismissed the complaint for failure to adequately plead demand futility. Id. at 799. On appeal,
the Seventh Circuit Court of Appeals found that the allegations of the complaint raised a reasonable doubt
as to whether the directors’ actions were a product of a valid exercise of business judgment, thereby excusing
demand. Id. at 809. In so holding, the court found that the board’s failure to remedy the continuing
violations amounted to a “business decision,” and determined that the Rales demand futility test was not
applicable. Id. at 806. Instead, the court applied the Aronson demand futility test. Id. at 806–07.

        In the instant case, a specific decision of the Healthways board of directors has not been challenged,
and we do not find that the alleged inaction by either the board of directors or the Audit Committee amounted
to a “business decision.” Accordingly, the applicable test for the demand futility was set forth in Rales, and
we reject Plaintiff’s contention that Abbott Labs applies.

                                                       13
the board concludes is adequate, exists, and that failure to do so under some circumstances
may, in theory at least, render a director liable for losses caused by non-compliance with
applicable legal standards.” In re Caremark, 698 A.2d at 970. The court wrote that “it is
important that the board exercise a good faith judgment that the corporation’s information
and reporting system is in concept and design adequate to assure the board that appropriate
information will come to its attention in a timely manner as a matter of ordinary operations,
so that it may satisfy its responsibility.” Id. Various courts have interpreted Caremark as
“articulat[ing] a standard for liability for failures of oversight that requires a showing that the
directors breached their duty of loyalty by failing to attend to their duties in good faith,”
which is premised on “showing that the directors were conscious of the fact that they were
not doing their jobs.” Guttman, 823 A.2d at 506; see also In re VistaCare, Inc., Derivative
Litig., CIV.04-1739-PHX RCB, 2007 WL 2460610, at *10, n.3 (D. Ariz. Aug. 23, 2007);
In re Forest Labs. Inc. Deriv. Litig., 450 F. Supp. 2d 379, 395 (S.D.N.Y. 2006). Considering
the allegations of the complaint and the applicable law, we agree that Caremark sets forth
the appropriate standard for our analysis of liability.

        While Caremark governs the potential liability of directors for breach of fiduciary
duty, it does not set forth the standard for determining demand futility. As noted supra, § III
A, in determining demand futility we apply the pleading standard set forth in Rales and
consider whether there is a substantial likelihood of liability on the part of the directors. If,
based on particularized allegations, there is a substantial likelihood of liability, demand is
excused.23

                 1. Adequacy of Internal Controls

       The complaint includes the specific responsibilities of the Audit Committee as set
forth in the restated charter of the committee;24 however, there are no particularized


        23
            “Directors who are sued have a disabling interest for pre-suit demand purposes when ‘the potential
for liability is not a mere threat but instead may rise to a substantial likelihood.’” Ryan v. Gifford, 918 A.2d
341, 355 (Del. Ch. 2007) (citing In re Baxter Intern., Inc., 654 A.2d at 1269).
        24
         The complaint sets forth the following specific allegations relative to the duties of the Audit
Committee:

        According to the Restated Charter of the Audit Committee of Healthways, the directors on
        the Audit Committee are required to, among other things:

        a. Review and discuss with management the Company’s internal controls report;
        b. Review and discuss with management and the outside auditors the annual audited and
        quarterly unaudited financial statements; and
        c. Discuss with management and the outside auditors policies with respect to risk
        management . . . and the quality and adequacy of the Company’s internal controls and
                                                                                                (continued...)

                                                      14
allegations that the members of the committee consciously failed to perform their
responsibilities under the charter in good faith or otherwise comply with the standards set
forth in Caremark for oversight or maintenance of an adequate information and reporting
system. The specific information which the complaint alleges that all directors received were
monthly ARC reports from CMS and information of the cancellation or renegotiation of
Healthways contracts with various of its customers.25 The complaint does not allege, other
than reference to the charter of the committee, what the charge to or responsibilities of the
members of the Audit Committee were; neither does it allege with requisite particularity the
failures of the committee members relative to the receipt of information or deficiencies in the
internal processing of information once received. The complaint fails to set forth sufficient
allegations to conclude that the members of Audit Committee members faced a substantial
likelihood of liability for breach of their fiduciary duty of good faith by failing to maintain
adequate internal controls. As a consequence, demand was not futile and cannot be excused.

                 2. Dissemination of False and Misleading Information

       Plaintiff alleges Healthways issued press releases and financial statements which
contained false and misleading information; it further alleges that the directors on the Audit
Committee “were responsible for overseeing and directly participating in the company’s
internal controls, accounting practices, and financial reporting process.” Applying the
pleading standards of Rales and Ryan v. Gifford, 918 A.2d 341 (Del. Ch. 2007), the
allegations of fact in the complaint relative to the dissemination of false and misleading
information are insufficient to demonstrate that the Audit Committee members faced a
substantial likelihood of liability for breach of the fiduciary duties of loyalty and good faith.

        The complaint specifically excerpts comments allegedly made by defendant Leedle
in the press releases and alleges, with regard to demand futility, that the Audit Committee
“oversaw the preparation of improper financial statements and earnings press releases
discussed herein that contained the false and/or misleading material information.” Also
excerpted are comments made by defendants Leedle and Chaput in investor conference calls.
The complaint does not allege what, if any, actions were taken by the committee members
relative to the financial statements, press releases or conference calls. Other than stating in
conclusory language that the Audit Committee “oversaw” the preparation of these press
releases and financial statements, there are no allegations that the Audit Committee members
themselves disseminated false and misleading statements. We do not infer that each Audit




(...continued)
       processes that could materially affect the Company’s financial statements and financial
       reporting.
       25
            The complaint does not specifically allege how this information was transmitted to the directors.

                                                     15
Committee member, solely by the nature of his or her position,26 had knowledge of alleged
false and misleading statements or actively participated in the dissemination of such
information. Accordingly, the members of the Audit Committee, under the allegations of the
complaint, did not face a substantial likelihood of liability for breach of the duty of loyalty,
see Guth v. Loft, Inc., 5 A.2d 503 (Del. 1939); neither are the allegations of the complaint
sufficient to subject defendants to substantial likelihood of liability for breach of the duty of
good faith. See Malone v. Brincat, 722 A.2d 5 (Del. 1998).27 Accordingly, demand was not
excused.

        D. Allegation that Demand was Futile as to Defendants Leedle and Herr

       Plaintiff argues that demand was futile as to defendants Leedle and Herr because of
their employment with Healthways. The complaint states in pertinent part:

        d. The principal professional occupation of defendant Leedle is his
        employment with Healthways as its CEO and President, pursuant to which he
        has received and continues to receive substantial monetary compensation and
        other valuable benefits. Thus, defendant Leedle lacks independence from
        interested directors, rendering him incapable of impartially considering a
        demand to commence and vigorously prosecute this action; and
        e. At the time of the initiation of this action, the principal professional
        occupation of defendant Herr was his employment with Healthways as a
        professional consultant, pursuant to which he received substantial monetary
        compensation and other valuable benefits. Thus, defendant Herr lacks


        26
         In Rattner v. Bidzos, C.A. No. 19700, 2003 WL 22284323, at *10, n.53 (Del. Ch. Sept. 30, 2003),
the Delaware Chancery Court specifically found that it is insufficient for a plaintiff to be excused from the
demand requirement solely by pleading that a director, by virtue of his or her position, must be charged with
knowledge of wrongful conduct. See also See Mehrvar ex rel. KVH Indus., Inc. v. Van Heyningen, N.C./04-
0375, 2005 WL 2385939 (R.I. Super. Sept. 27, 2005).
        27
             As the Supreme Court of Delaware noted:

        Shareholders are entitled to rely upon the truthfulness of all information disseminated to
        them by the directors they elect to manage the corporate enterprise. Delaware directors
        disseminate information in at least three contexts: public statements made to the market,
        including shareholders; statements informing shareholders about the affairs of the
        corporation without a request for shareholder action; and, statements to shareholders in
        conjunction with a request for shareholder action. Inaccurate information in these contexts
        may be the result of a violation of the fiduciary duties of care, loyalty or good faith.

Malone v. Brincat, 722 A.2d 5, 10-11 (Del. 1998).



                                                     16
        independence from interested directors, rendering him incapable of impartially
        considering a demand to commence and vigorously prosecute this action.

Assuming, arguendo, that Leedle and Herr were disabled from considering demand on all
causes of action due to their employment with Healthways, we find that demand is not
excused.

        Under Rales, Plaintiff must “raise[] a reasonable doubt regarding the ability of a
majority of the Board to exercise properly its business judgment in a decision on a demand
had one been made at the time this action was filed.” Rales, 634 A.2d at 937 (emphasis
added). We have held that the complaint only demonstrates demand futility as to defendants
Cigarran, Herr, and Lytle with respect to the claim for insider selling and misappropriation
of information. We have not found a disabling interest or lack of independence with respect
to any other member of the board on any other claim asserted. Therefore, a finding of
demand futility with respect to Leedle and Herr would bring the total number of directors
unable to consider demand on the insider selling and misappropriation of information claim
to four. Because Healthways’ board of directors was comprised of eleven members at the
time this action was filed, plaintiff was required to raise a reasonable doubt that at least six
members of the board were disinterested or independent in order to demonstrate demand
futility.

       E. Effect of Federal Court Ruling Denying Motion to Dismiss in Related Securities
Class Action

        Plaintiff asserts that the trial court erred in dismissing the derivative action “in light
of the federal court’s ruling on the challenged insider trades by Cigarran, Herr, and Lytle.” 28
Plaintiff claims that “many of the insider trades challenged by the plaintiffs to the Securities
Action [the action pending in federal court] are the exact same sales that the Appellant
challenged in the Derivative Action, including [Cigarran’s, Herr’s, and Lytle’s insider
sales].” Plaintiff characterizes the pleading standards applicable to this case as “far more
favorable and relaxed” than the scienter standards imposed by the Private Securities
Litigation Reform Act (“PSLRA”) and argues that, since the federal court has denied a
motion to dismiss, defendants’ motion in this case should be denied as well. Defendants
respond that denial of a motion to dismiss in a federal securities case is not enough to

        28
            The complaint alleges that Healthways has been the subject of multiple securities class action suits
that were consolidated in federal district court in the Middle District of Tennessee and that “nearly all of the
defendants to the Securities Action are also defendants to the instant shareholder derivative action, including
defendants Cigarran, Leedle, Chaput, Hunter, and Kelliher.” The complaint states that, on March 9, 2009,
the district court issued an opinion denying defendants’ motion to dismiss the securities action in its entirety,
and that the court “issued several findings concerning conduct alleged herein by Plaintiff.” The record of
the district court action was not before the trial court and is not a part of the record on appeal.


                                                       17
demonstrate that demand would have been futile with respect to insider trading allegations;
they also cite numerous cases for the proposition that courts routinely grant motions to
dismiss for failure to properly allege demand futility, notwithstanding denial of a motion to
dismiss in a parallel federal securities class action.

        The apparent holding in the securities litigation in federal court is not applicable in
the manner urged by plaintiff. In In re Vistacare, Inc. Deriv Litig., the United States District
Court for Arizona articulated the difference between the standard for pleading demand
futility in Delaware and the standard a federal court applies when considering a motion to
dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The court opined:

        The burden to establish demand futility is “more onerous than that required to
        withstand a Rule 12(b)(6) motion to dismiss.” Levine v. Smith, 591 A.2d 194,
        207 (Del. 1991), overruled on other grounds by Brehm v. Eisner, 746 A.2d
        244, 254 (Del. 2000). “What the pleader must set forth are particularized
        factual statements that are essential to the claim.” Brehm, 746 A.2d at 254.
        Conclusory language “does not comply with these fundamental pleading
        mandates.” Id. However, a plaintiff is not required to plead evidence
        inasmuch as discovery is foreclosed. See Levine, 591 A.2d at 207. In any
        event, if a plaintiff fails to meet these stringent requirements, the complaint
        must be dismissed even if it pleads otherwise meritorious claims. See
        Kaufman v. Belmont, 479 A.2d 282, 286 (Del. Ch. 1984).

In re VistaCare, Inc., Derivative Litig., CIV.04-1739-PHX RCB, 2007 WL 2460610, at *2
(D. Ariz. Aug. 23, 2007).

        Plaintiff’s burden in the instant case is to allege sufficient facts to support his
contention that pre-filing demand in this derivative suit would have been futile as to a
majority of Healthways’ board of directors. This is a substantial burden which is not aided
by the apparent holding in securities litigation that the claims against certain defendants were
adequately alleged and could proceed. The inquiry as to whether the allegations of the
complaint in the securities action stated a claim upon which the court could grant relief is
separate and distinct from the inquiry before us.29




        29
           Even if it were appropriate for us to make reference to a ruling on a motion to dismiss in federal
securities litigation in determining the issue of demand futility in ths litigation, the record in this case is
insufficient for us to determine whether and the extent to which we should be influenced or bound by any
such ruling.

                                                      18
       IV. Conclusion

       Because Plaintiff has not demonstrated demand futility on a majority of Healthways
directors on any of his causes of action, demand is not excused. Accordingly, the ruling of
the Davidson County Chancery Court is AFFIRMED.




                                                 ___________________________________
                                                 RICHARD H. DINKINS, JUDGE




                                            19
