Bryceland v. Minogue et al
Filing
42
Judge F. Dennis Saylor, IV: MEMORANDUM AND ORDER entered granting 22 Motion to Dismiss. (Cicolini, Pietro)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
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MARTA BRYCELAND, derivatively on
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behalf of Abiomed, Inc.,
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Plaintiff,
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v.
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MICHAEL R. MINOGUE, W. GERALD
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AUSTEN, LOUIS E. LATAIF, DOROTHY )
E. PUHY, MARTIN P. SUTTER, HENRI A. )
TERMEER, PAUL G. THOMAS, and
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ABIOMED, INC.,
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Defendants.
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_______________________________________)
Civil Action No.
13-10212-FDS
MEMORANDUM AND ORDER ON
DEFENDANTS’ MOTIONS TO DISMISS
SAYLOR, J.
This is a shareholder derivative action. Plaintiff Marta Bryceland has brought suit on
behalf of, and for the benefit of, nominal defendant Abiomed, Inc., asserting claims against
individual members of its board of directors. Plaintiff contends that these directors breached
their fiduciary duties in failing to adequately respond to, and disclose the potential consequences
of, warning letters that the Food and Drug Administration sent to Abiomed about the marketing
and labeling of one of its products. Defendants have moved to dismiss the action pursuant to
Fed. R. Civ. P. 12(b)(6) and 23.1 for failure to make demand on the board of directors. For the
reasons set forth below, the motion will be granted.
I.
Background
The facts are stated as alleged in the complaint.1
Defendant Abiomed, Inc., is a Delaware corporation with its principal place of business
in Massachusetts. Abiomed develops biomedical products designed to assist or replace the
pumping function of the human heart. The company’s marketing of one such product, the
Impella 2.5, is at the center of this dispute.
Defendants Michael R. Minogue, W. Gerald Austen, Louis E. Lataif, Dorothy E. Puhy,
Martin P. Sutter, Henri A. Termeer, and Paul G. Thomas are directors of Abiomed. Minogue is
also the Chairman, President, and Chief Executive Officer of Abiomed; none of the other
directors hold corporate offices at Abiomed.
Plaintiff Marta Bryceland is a current shareholder of Abiomed and was a shareholder
during the time period that the events giving rise to this action occurred—August 5, 2011,
through October 31, 2012.
In June 2011, the FDA sent Abiomed a warning letter alleging that some of its
promotional materials appeared to market the Impella 2.5 device for uses that were not approved
by the FDA. Abiomed subsequently disclosed the receipt of that warning letter in its 2011
Second Quarter Report (Form 10-Q) filed with the Securities and Exchange Commission.
In April 2012, Abiomed received a second letter from the FDA alleging that some of its
promotional materials continued to market the Impella 2.5 device in ways that did not comply
1
The Court also draws on exhibits to the complaints and other uncontested documents on which the
complaint relies. See Beddall v. State Street Bank & Trust Co., 137 F.3d 12, 17 (1st Cir. 1998) (“When . . . a
complaint’s factual allegations are expressly linked to—and admittedly dependent upon—a document (the
authenticity of which is not challenged), that document effectively merges into the pleadings and the trial court can
review it in deciding a motion to dismiss under Rule 12(b)(6).”).
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with FDA regulations. Abiomed disclosed its receipt of the second letter in its 2012 Annual
Report (Form 10-K) filed with the SEC.
On November 1, 2012, Abiomed issued a press release notifying the public that the
United States Attorney’s Office for the District of Columbia was conducting an investigation of
the marketing and labeling of the Impella 2.5 device, and that it had received an
administrative subpoena under the Health Insurance Portability and Accountability Act, with
which it intended to cooperate fully. As a result of that announcement, the share price of
Abiomed’s stock sharply declined.
The complaint alleges that, notwithstanding those disclosures, Abiomed’s SEC filings
and other media communications included “overly positive” statements reporting its financial
results, and failed to disclose that it was “improperly” marketing the Impella 2.5 device. The
complaint contends that the individual directors are liable for allowing those misleading
disclosures to be included in SEC filings and for failing to disclose the potential effect of the
regulatory investigations on Abiomed’s operations and financial results. Plaintiff, as a
shareholder of Abiomed, has brought a derivative suit, asserting the right to stand in the shoes of
the company and pursue a claim against Abiomed’s CEO and directors. Plaintiff made no
demand upon the board of directors before commencing this action.
II.
Standard of Review
A.
Failure to State a Claim Under Rule 12(b)(6)
On a motion to dismiss, the Court “must assume the truth of all well-plead[ed] facts and
give plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness
Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.
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1999)). To survive a motion to dismiss, the plaintiff must state a claim that is plausible on its
face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, “[f]actual allegations must
be enough to raise a right to relief above the speculative level, . . . on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (citations omitted).
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if the complaint’s
well-pleaded facts do not “possess enough heft to show that plaintiff is entitled to relief.” Ruiz
Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008) (quotations and original alterations
omitted).
B.
Rule 23.1 Director Demand Pleading Requirements
Fed. R. Civ. P. 23.1 imposes additional pleading requirements on plaintiffs bringing
shareholder derivative actions. Rule 23.1(b) provides that the complaint must “state with
particularity: (A) any effort by the plaintiff to obtain the desired action from the directors or
comparable authority and, if necessary, from the shareholders or members; and (B) the reasons
for not obtaining the action or not making the effort.” The court applies state law to determine
whether the facts alleged are sufficient to demonstrate that the demand on directors was adequate
or would have been futile and thus should be excused. See Kamen v. Kemper Fin. Servs., Inc.,
500 U.S. 90, 96-97 (1991) (finding that Rule 23.1 is a procedural rule that “clearly contemplates
both the demand requirement and the possibility that demand may be excused, [but] does not
create a demand requirement of any particular dimension . . . [and the court] must identify the
source and content of the substantive law that defines the demand requirement”). Here, it is
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undisputed that Delaware law governs the adequacy of, or futility of, director demand.
III.
Analysis
A.
Delaware Law of Director Demand
Under Delaware law, the decisions of a board of directors are generally protected by the
business judgment rule. The business judgment rule creates a presumption that “the directors of
a corporation 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.” Aronson v. Lewis, 473 A.2d 805, 812 (Del.
1984) (internal citations omitted). As a result of that presumption, demand on the board is
considered futile only in situations “where the facts are alleged with particularity which create a
reasonable doubt that the directors’ actions were entitled to the protections of the business
judgment rule.” Id. at 808.
Both parties agree that Delaware has two alternative tests for determining whether a
plaintiff’s failure to make a demand on the board of directors should be excused on the ground of
futility. The parties dispute, however, which of the two tests applies to the situation presented
here.
Aronson established the test that is applicable where the allegations of a derivative
complaint implicate an allegedly improper transaction effectuated by the board of directors. 473
A.2d 805. When a plaintiff makes such allegations, demand is considered futile, and should be
excused, where those particularized allegations create a reasonable doubt that “(1) the directors
are disinterested and independent [or] (2) the challenged transaction was otherwise the product
of a valid exercise of business judgment.” Id. at 814.
Rales v. Blasband, 634 A.2d 927 (Del. 1993) established a more stringent test that is
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applicable in a few limited situations. One such situation is where the allegations of a derivative
complaint implicate a violation of the board of director’s oversight duties (in other words, a
failure to act), rather than an affirmative business decision of the board. Id. at 934. When a
plaintiff makes such allegations, demand is considered futile and should be excused only where
“the particularized factual allegations of a derivative stockholder complaint create a reasonable
doubt that, as of the time the complaint is filed, [a majority of] the board of directors could have
properly exercised its independent and disinterested business judgment in responding to a
demand.” Id.
Plaintiff contends that the Aronson test applies, based on the theory that a “conscious
failure to act” is considered an affirmative business decision of the board. Defendant, on the
other hand, contends that the complaint alleges classic failure of oversight allegations that should
be subject to the more stringent Rales test.2
A Delaware court recently articulated the distinction between situations where the
differing standards apply as follows: “[f]or conscious board decisions— whether to act or
not—the two-pronged Aronson test applies. A board’s failure to act absent a conscious decision
to refrain from acting, such as a failure to supervise, is analyzed under Rales.” In re Dow Chem.
Co. Derivative Litig., 2010 Del. Ch. LEXIS 2 (Del. Ch. Jan. 11, 2010). Federal courts in other
2
The distinction between the Aronson and Rales tests may be a distinction without a difference. Indeed, as
at least a few Delaware courts have remarked, “Aronson and Rales have been described as complementary versions
of the same inquiry.” In re China Agritech, Inc., 2013 Del. Ch. LEXIS 132 (Del. Ch. May 21, 2013) (citing David
B. Shaev Profit Sharing Account v. Armstrong, 2006 Del. Ch. LEXIS 33 (Del. Ch. Feb. 13, 2006); Guttman v.
Huang, 823 A.2d 492, 501 (Del. Ch. 2003) (“At first blush, the Rales test looks somewhat different from Aronson,
in that [it] involves a singular inquiry . . . . Upon closer examination, however, that singular inquiry makes germane
all of the concerns relevant to both the first and second prongs of Aronson.”); DONALD J. WOLFE, JR. & MICHAEL A.
PITTENGER, CORPORATE AND COMMERCIAL PRACTICE IN THE DELAWARE COURT OF CHANCERY § 9.02[b][3][iii], at
9-97 (2011)).
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circuits, applying Delaware law, have similarly held that the Aronson test applies to allegations
that the board of directors made a considered decision not to act. In re Abbott Labs. Derivative
S'holders Litig., 325 F.3d 795, 805 (7th Cir. 2003) (distinguishing between the complaint’s
allegations “that the directors ‘knowingly’ in an ‘intentional breach and/or reckless disregard’ of
their fiduciary duties ‘chose’ not to address the FDA problems in a timely manner” and
allegations of an “unconsidered failure to take action by the directors”); In re Pfizer Inc. S'holder
Derivative Litig., 722 F. Supp. 2d 453, 460 (S.D.N.Y. 2010) (applying the Aronson test to
allegations that the defendant directors “knew of a high probability that Pfizer was continuing to
purposely promote off-label marketing and deliberately decided to let it continue by blinding
themselves to that knowledge.”).
B.
Allegations of the Complaint
The complaint generally alleges that the director defendants “were directly responsible
for authorizing, permitting the authorization of, or failing to monitor the practices that resulted in
violations of applicable laws as alleged herein . . . [and] had knowledge of, actively participated
in, approved, and/or acquiesced in the wrongdoing alleged herein or abdicated his or her
responsibilities with respect to this wrongdoing.” (Compl. at ¶ 54). It more specifically alleges
that the director defendants breached their fiduciary duties by “allowing the material
misstatements to be issued and by failing to disclose material information concerning
[Abiomed’s] marketing and labeling practice, and more importantly, the FDA’s conclusions
regarding [Abiomed’s] marketing and labeling practices.” (Id. at ¶ 41).
Defendants make much of the fact that these allegations, and others contained in the
complaint, describe passive actions, such as “failing to monitor” and “allowing” certain allegedly
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improper activities. However, the operative distinction is not the nature of the board of
director’s conduct as action or inaction in the abstract, but rather whether the board actually
made a conscious informed decision to engage in the allegedly wrongful conduct. See, e.g., In re
Dow Chem., 2010 Del. Ch. LEXIS 2.
Here, the particularized allegations of the complaint make no mention of what the board
of directors knew or did not know. Indeed, at oral argument, plaintiff’s counsel insisted that the
board’s knowledge of the FDA warning letters and alleged ongoing violations could simply be
assumed due to the small size of the company. While it is certainly the case that plaintiff is
“entitled to all reasonable inferences that logically flow from the particularized facts alleged,”
the only relevant inference that logically flows from the facts alleged is that the board had
knowledge of the FDA warning letters and their contents. Brehm v. Eisner, 746 A.2d 244, 255
(Del. 2000). The complaint alleges no particularized facts that support the inference that the
board had knowledge of, or approved, any further marketing that did not comply with FDA
regulations. While the complaint does include general allegations that director defendants “had
knowledge of, actively participated in, approved, and/or acquiesced in the wrongdoing,” the
pleading requirement of Rule 23.1 is “not satisfied by conclusory statements.” Brehm, 746 A.2d
at 254. Accordingly, the Court finds that the complaint does not allege with sufficient
particularity that any failures in oversight or material omissions in financial statements were
conscious decisions of the board. Therefore, the Court will apply the Rales test to determine
whether failure to make demand on the board should be excused.
C.
Application of the Rales Test
The Rales court held that requiring demand in situations where the directors are sued
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derivatively for failures of oversight is “consistent with the board’s managerial prerogatives
because it permits the board to have the opportunity to take action where it has not previously
considered doing so.” Rales, 634 A.2d at 934 n. 9. The court then held that demand could be
excused as futile in such a situation only when the particularized allegations of the complaint
“creat[e] a reasonable doubt that a majority of the Board would be disinterested or independent
in making a decision on a demand.” Id. at 930.
As a preliminary matter, it is well-established under Delaware law that “an allegation that
a majority of directors approved, participated, or acquiesced in a challenged transaction will not,
in and of itself, establish demand futility.” Grobow v. Perot, 526 A.2d 914, 924 (Del. Ch. 1987);
see also Kaufman v. Belmont, 479 A.2d 282, 288 (Del. Ch. 1984) (“[T]he mere approval of a
corporate action, absent any allegation of particularized facts supporting a breach of fiduciary
duty or other indications of bias, will not disqualify the director from subsequently considering a
pre-suit demand to rectify the challenged transaction.”). Accordingly, the complaint’s
particularized allegations, at a minimum, must suggest more complicity on the part of the
director defendants in order to create a reasonable doubt as to their independence or
disinterestedness.
1.
Independence
The concept of independence concerns each director’s ability to make his or her own
decisions free from external compulsion. A director is considered independent if his or her
decisions were “‘based on the corporate merits of the subject before the board rather than
extraneous considerations or influences.’” Rales, 634 A.2d at 936 (quoting Aronson, 473 A.2d at
816). Allegations that tend to show that a director was “beholden” to some other person or
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entity, including the company itself, may create a reasonable doubt as to that director’s
independence. Rales, 634 A.2d at 936 (quoting Aronson, 473 A.2d at 815).
Here, the complaint makes the follow allegations concerning the director defendants’
potential lack of independence: (1) that defendants Minogue, Sutter and Thomas have served on
other boards together; (2) that defendant Minogue serves as the CEO, President, and Chairman
of Abiomed; and (3) that all of the directors hold substantial financial interests in, and receive
compensation from, Abiomed. (Compl. at ¶ 48).
As to the service on other boards together, at least one Delaware court has expressly held
that such relationships do not suggest a lack of independence. In re Dow Chem., 2010 Del. Ch.
LEXIS 2, 32-33 (Del. Ch. Jan. 11, 2010) (“That directors of one company are also colleagues at
another institution does not mean that they will not or cannot exercise their own business
judgment with regard to the disputed transaction.”). Here, there are no supporting allegations
that suggest reasons why the three directors who have served on other boards together might be
“beholden” to one another when making decisions as to Abiomed.
As to the financial interest of all the directors in Abiomed, Delaware courts have
repeatedly found that the compensation of directors, without more, does not suggest a lack of
independence. See, e.g., Grobow v. Perot, 539 A.2d 180, 188 (Del. 1988) (holding that demand
was not excused where plaintiff “only aver[red] . . . that all GM’s directors are paid for their
services as directors”); Freedman v. Adams, 2012 WL 1345638, at *6 (Del. Ch. Mar. 30, 2012)
(holding that plaintiff must allege with particularity that directors’ compensation exceeds what is
“usual and customary” to suggest that they lacked independence); In re Limited, Inc. S’holders
Litig., 2002 WL 537692, at *4 (Del. Ch. Mar. 27, 2002) (“allegations as to one’s position as a
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director and the receipt of director’s fees, without more . . . are not enough for purposes of
pleading demand futility”). Here, there are no supporting allegations that suggest reasons why
the directors’ compensation in this case was in some way exceptional.
The final issue concerns defendant Minogue’s position as the CEO, President, and
Chairman. As noted, Delaware courts have generally held that merely receiving compensation
for service on a board of directors does not suggest a lack of independence. However, courts
have held that there is reason to doubt the independence of directors who also serve as
subordinate officers in the company due to their “substantial financial interest in maintaining
their employment positions.” Rales, 634 A.2d at 93; see also Mizel v. Connelly, 1999 WL
550369, at *3 (Del. Ch. Aug. 2, 1999) (finding reasonable doubt as to whether directors who also
served as employees could “impartially consider a demand calling upon them to take action
materially adverse to [their boss’s] interests.”). Indeed, the First Circuit recently found that such
a lack of independence may have existed where a director was also an executive in the company.
Unión de Empleados de Muelles de Puerto Rico PRSSA Welfare Plan v. UBS Fin. Servs. Inc. of
Puerto Rico, 704 F.3d. 155, 165-66 (1st Cir. 2013) (holding that where a director serves as “an
executive employee” of an entity and was “involved at a high level” at the company, “these facts
alone are sufficient to create a reasonable doubt that he could be disinterested and independent in
evaluating plaintiffs’ demand in this case”). However, the Court need not decide here whether
director-officers are never considered to be independent as a matter of law. Because defendant
Minogue was the only director who also served as an officer of Abiomed, even if the Court were
to hold that the allegations of the complaint create a reasonable doubt as to his independence, a
majority of the board (the other six members) would still be considered independent for the
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reasons set forth above. Accordingly, the Court need not decide whether the allegations
concerning defendant Minogue’s position within Abiomed created a reasonable doubt as to his
independence.
For the foregoing reasons, the Court finds that the particularized allegations of the
complaint do not create a reasonable doubt as to the independence of a majority of the directors.
2.
Interestedness
While independence concerns potential external control over a director’s decision,
interestedness concerns a director’s personal financial motivations. A director is expected to be
disinterested in the decisions of the board—meaning that he or she should not personally benefit
more, or less, from one course of action as opposed to another. Put another way, “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. . . . [or] a corporate decision will have a materially
detrimental impact on a director, but not on the corporation and the stockholders.” Rales, 634
A.2d at 936.
The complaint makes the following allegations concerning the director defendants’
interestedness: (1) that all of the directors face a substantial likelihood of personal liability; (2)
that defendant Minogue serves as the CEO, President, and Chairman of Abiomed; (3) that
defendant Thomas previously served as a consultant for Abiomed and received stock options as
part of his compensation; (4) that all of the directors hold stock options in, and receive
compensation from, Abiomed; and (5) that all of the directors were involved in the alleged
wrongdoing and would be compelled to sue themselves.
The fifth allegation may be readily addressed. It is well-established under Delaware law
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that a director is not rendered interested simply because he or she is named as a defendant in the
action and would therefore have been forced to sue himself or herself in response to a demand.
See Aronson, 473 A.2d at 818. Without such a rule, the director demand requirement would be
illusory and easily avoided by artful pleading. As the Delaware Supreme Court explained in
Aronson:
Plaintiff's final argument is the incantation that demand is excused because the directors
otherwise would have to sue themselves, thereby placing the conduct of the litigation in
hostile hands and preventing its effective prosecution. This bootstrap argument has been
made to and dismissed by other courts. Its acceptance would effectively abrogate Rule
23.1 and weaken the managerial power of directors.
Id. (citing Lewis v. Graves, 701 F.2d 245, 248-49 (2d Cir. 1983); Heit v. Baird, 567 F.2d 1157,
1162 (1st Cir. 1977); Lewis v. Anselmi, 564 F. Supp. 768, 772 (S.D.N.Y. 1983)). Accordingly,
the Court finds that there is no reasonable doubt as to the director defendants’ disinterestedness
on the grounds that they were involved in the alleged wrongdoing and would be compelled to
sue themselves.
As to the second allegation, which concerns defendant Minogue, the issue need not be
resolved. As noted, whether or not his position in Abiomed rendered him interested is irrelevant
to the ultimate determination of this motion, because he is only one member of a seven-member
board of directors.
As to the third and fourth allegations, which concern the compensation of the directors in
cash and stock options, there is no reasonable doubt as to the directors’ disinterestedness. First,
as explained above, a director is interested when he or she has a financial stake in the transaction
that “is not equally shared by the stockholders.” Rales, 634 A.2d at 936. To the extent that the
directors’ compensation included stock and stock options, their financial interests were aligned
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with stockholders’ interests. Accordingly, the receipt of stock options could not cast doubt on
defendant directors’ disinterestedness. Second, to the extent that the directors received cash
compensation, the complaint contains no particularized allegations as to how their compensation
would have been affected by their decision whether or not to sue in response to a potential
demand. Furthermore, the Delaware decisions cited above for the proposition that compensation
alone, without more, is not enough to cast doubt on a director’s independence apply with equal
force as to a director’s interestedness.
As to the remaining allegation—that all of the directors face a substantial likelihood of
personal liability—the question of interestedness requires closer analysis. Under Delaware law,
it is well-established that “the mere threat of personal liability for approving a questioned
transaction, standing alone, is insufficient to challenge either the independence or
disinterestedness of directors.” Aronson, 473 A.2d at 815. Instead, to create a reasonable doubt
as to disinterestedness, the particularized allegations of the complaint must present “a substantial
likelihood of director liability.” Id.
Under Delaware law, personally liability for inaction or failures in oversight by directors
“requires a showing that the directors knew they were not discharging their fiduciary duties in
good faith.” Stone v. Ritter, 911 A.2d 362, 369-70 (Del. 2006). In other words, the
particularized allegations must demonstrate that the directors engaged in “intentional dereliction
of duty, a conscious disregard for [their] responsibilities.” In re Walt Disney Co. Deriv. Litig.,
906 A.2d 27, 62, 66 (Del. 2006).
Here, the complaint specifically alleges that the directors violated their fiduciary duties
by “allowing” material misstatements about the resolution of the dispute with the FDA and by
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“failing to disclose” Abiomed’s improper marketing and labeling practices in the company’s
SEC filings. The complaint also includes conclusory allegations that the directors had
knowledge of and/or approved “the wrongdoing alleged.” Such allegations lack the particularity
required to satisfy Rule 23.1. The complaint makes no particular allegations as to what the
directors knew, or what they approved of, or when. It is true that the complaint alleges the
content of the SEC filings with particularity. Unfortunately for plaintiff, however, those filings
suggest that the directors were exercising their duties in good faith. (See, e.g., Compl. at ¶ 34
(quoting a passage from Abiomed’s Form 10-Q, filed on August 5, 2011, which disclosed the
receipt of the FDA warning letter in June 2011 and indicated that the company was cooperating
with the FDA. It also included the disclaimer that “[a]lthough we believe that this issue has been
resolved, if similar matters come up in the future, we may not be able to resolve them without
facing significant consequences.”)). Those allegations, even when read in the light most
favorable to the plaintiff, do not plead bad faith with sufficient particularity to present a
substantial likelihood of personal liability that would cast doubt on the director defendants’
disinterestedness.
Accordingly, and for the foregoing reasons, the complaint does not create a reasonable
doubt as to the disinterestedness of a majority of the directors. Because it does not, demand on
the directors cannot be excused. Accordingly, the defendant’s motion to dismiss pursuant to
Rule 23.1 will be granted.
D.
Rule 12(b)(6) Analysis
Because the complaint fails to meet the requirements of Rule 23.1, the Court need not
reach the question of whether the complaint fails to state a claim upon which relief can be
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granted.
IV.
Conclusion
For the foregoing reasons, defendant’s motion to dismiss is GRANTED.
So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: June 21, 2013
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