Pikk v. Pedersen , 826 F.3d 1222 ( 2016 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 20, 2016
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
IN RE: ZAGG INC. SHAREHOLDER
DERIVATIVE ACTION
----------------------------------------------------
ALBERT PIKK; DANIEL L.
ROSENBERG, derivatively and on behalf
of ZAGG Inc.,
Plaintiffs - Appellants,
v. No. 15-4001
ROBERT G. PEDERSEN, II; EDWARD
EKSTROM; RANDALL HALES;
BRANDON T. O'BRIEN; CHERYL A.
LARABEE,
Defendants - Appellees,
and
ZAGG INC.,
Nominal Defendant - Appellee.
_________________________________
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:12-CV-01188-DB)
_________________________________
Albert Y. Chang, Bottini & Bottini, Inc., La Jolla, California (David W. Scofield, Peters
Scofield, PC, Sandy, Utah, Francis A. Bottini, Jr., Yury A. Kolesnikov, Bottini & Bottini,
Inc., with him on the briefs) for Plaintiffs-Appellants.
Steven M. Schatz, Wilson Sonsini Goodrich & Rosati PC, Palo Alto, California (David J.
Berger, Naira Der Kiureghian, and Anne J. Veldhuis, Wilson Sonsini Goodrich & Rosati
PC, Palo Alto, California, Gideon A. Schor, Wilson Sonsini Goodrich & Rosati PC, New
York, New York, Kevin N. Anderson and Artemis D. Vamianakis, Fabian & Clendenin,
Salt Lake City, Utah, Brent R. Baker, D. Loren Washburn, Jennifer A. James, Aaron D.
Lebenta, and Shannon K. Zollinger, Clyde Snow & Sessions, P.C., with him on the
briefs) for Defendants-Appellees.
_________________________________
Before HARTZ, BACHARACH, and PHILLIPS, Circuit Judges.
_________________________________
HARTZ, Circuit Judge.
_________________________________
Plaintiffs, shareholders of ZAGG Inc., a publicly held Nevada corporation, filed a
shareholder-derivative action seeking damages, restitution, and other relief for ZAGG.
They alleged that past and present officers and directors of ZAGG violated § 14(a) of the
Securities Exchange Act of 1934, breached their fiduciary duties to ZAGG, wasted
corporate assets, and were unjustly enriched. The district court dismissed the suit on two
alternative grounds: (1) Plaintiffs filed suit before presenting the ZAGG Board of
Directors (the Board) with a demand to bring suit and they failed to adequately allege that
such demand would have been futile, and (2) the complaint failed to state a claim.
Plaintiffs appeal the dismissal on both grounds. Because we deny the challenge to the
first ground, we need not address the second.
Plaintiffs urge two reasons why demand would have been futile. First, they allege
that three of the six board members (Randall Hales, Cheryl A. Larabee, and Edward D.
Ekstrom (the Director Defendants)) had a disqualifying interest in the prospective suit
because each was threatened with a substantial likelihood of liability. Second, they
2
allege that each of the Director Defendants was compromised by personal and business
relationships among themselves and with Robert Pedersen, former ZAGG Chief
Executive Officer (CEO) and a codefendant. We reject these arguments. The Director
Defendants were not at substantial risk of liability under any of Plaintiffs’ claims because
the complaint does not adequately allege that any of them knew that he or she was acting
wrongfully, as required by a Nevada statute limiting director liability. And at least a
majority of the Board was not compromised by personal or business relationships
because Plaintiffs do not challenge three of the six directors and they have failed to
adequately allege that Director Defendant Larabee had a compromising relationship.
I. BACKGROUND
Pedersen, the founder of ZAGG, served as chairman of the Board and CEO until
he resigned in August 2012. The reason for the resignation, and the underlying source of
the defendants’ alleged liability, is the harm to ZAGG from his forced sales of over two
million ZAGG shares that secured his margin account with a broker. A margin account is
“an extension of credit by a broker that is secured by securities of the customer.” In re
Zagg, Inc. Sec. Litig., 797 F.3d 1194, 1198 (10th Cir. 2015) (internal quotation marks
omitted). To protect the broker, the value of the pledged shares must exceed a threshold
set by the broker. If the stock value drops below the threshold, the broker has the right to
sell shares to cover the customer’s debt. See id. Such sales can cause the supply of
shares to far exceed market demand, leading to a sharp drop in share price and the
company’s market value. Also, the Securities and Exchange Commission (SEC) has
recognized that officers and directors who pledge company stock in margin accounts may
3
be subject to improper influences. See SEC Final Rule, Executive Compensation and
Related Person Disclosure, 71 Fed. Reg. 53,158, 53,197 (Sept. 8, 2006) (“To the extent
that shares beneficially owned by named executive officers, directors and director
nominees are used as collateral, these shares may be subject to material risk or
contingencies that do not apply to other shares beneficially owned by these persons.
These circumstances have the potential to influence management’s performance and
decisions.”). Although these risks from pledging shares have not lead to a prohibition on
pledges by corporate officers and directors, the SEC decided in 2006 that the public
should be informed when they occur. It amended Item 403(b) of SEC Regulation S-K,
17 C.F.R. § 229.403(b), to require that pledges be publicly disclosed in certain company
filings, such as proxy statements and Forms 10-K.1 See In re Zagg, 797 F.3d at 1198.
1
The regulation requires the following information to be disclosed:
Security ownership of management. Furnish the following information, as
of the most recent practicable date, in substantially the tabular form
indicated, as to each class of equity securities of the registrant or any of its
parents or subsidiaries, including directors’ qualifying shares, beneficially
owned by all directors and nominees, naming them, each of the named
executive officers as defined in Item 402(a)(3) (§ 229.402(a)(3)), and
directors and executive officers of the registrant as a group, without naming
them. Show in column (3) the total number of shares beneficially owned
and in column (4) the percent of the class so owned. Of the number of
shares shown in column (3), indicate, by footnote or otherwise,
the amount of shares that are pledged as security and the amount of shares
with respect to which such persons have the right to acquire beneficial
ownership as specified in § 240.13d-3(d)(1) of this chapter.
17 C.F.R. § 229.403(b) (emphasis added); see id. § 229.10 (listing filings with the
SEC that must contain the information set forth in § 229.403).
4
On December 21, 2011 (nine days after Defendant Hales, who was already a
member of the Board, had been named as ZAGG’s president and chief operating officer
(COO)) a margin call on Pedersen’s account forced the sale of 345,200 shares. Pedersen
reported the sale to the SEC. By December 24, ZAGG’s share price had dropped from
$8.65 to $6.73. After that sale more than 1.7 million of Pedersen’s shares still remained
pledged.
On March 15, 2012, ZAGG filed a Form 10-K for fiscal year 2011, and on April
27 it filed a proxy statement soliciting votes for re-election of five board members.
Neither the 10-K nor the proxy statement disclosed any pledged shares of Pedersen, as
required by § 229.403(b).
On August 14, 2012, a second margin call on Pedersen’s account forced the sale of
an additional 515,000 shares. This caused Pedersen to resign as Chairman and CEO, as
announced in a press release issued August 17. The press release also announced that
Larabee was the new Board Chair, that ZAGG would conduct a search for a new
permanent CEO, and that Hales would serve as interim CEO. ZAGG stock fell 13% the
next trading day. On an August 28 conference call with analysts, Hales stated that
Pedersen’s departure “was entirely related to the margin call situation that started last
December and unfortunately surfaced again two weeks ago.” Complaint, Aplt. App. at
42 ¶ 86 (internal quotation marks omitted). On that same call Pedersen—who had
satisfied all his margin obligations after a third margin call on August 24—assured
investors that “[b]y completely deleveraging my ZAGG stock, I have removed the
element of uncertainty around future unwanted sales and have taken a step towards
5
building investor confidence in ZAGG.” Dist. Ct. Mem. Decision and Order, Feb. 5,
2014 at 5, (Order), Aplt. App., Vol. 1 at 239. ZAGG also implemented a new policy
prohibiting officers and directors from pledging ZAGG shares in margin accounts. A
month later, ZAGG signed Pedersen to a one-year, $910,000 consulting agreement. On
December 10, 2012, nearly four months after Pedersen resigned, ZAGG appointed Hales
as permanent CEO.
Plaintiffs filed the shareholder-derivative complaint at issue in this appeal on June
5, 2013. The complaint alleged that the defendants had failed to disclose Pedersen’s
“margin call situation” to the public and had executed a “secret succession plan” to
replace Pedersen with Hales, Aplt. App., Vol. 1 at 22 ¶ 14, thereby violating § 14(a) of
the Securities Exchange Act of 1934, 15 U.S.C. § 78n(a), and breaching their fiduciary
duties as directors and officers. Plaintiffs also asserted claims of unjust enrichment and
corporate waste based on Pedersen’s consulting agreement and the Director Defendants’
continued receipt of director compensation even after their alleged transgressions.2
Plaintiffs did not make a presuit demand on the Board to bring this action, alleging that
demand should be excused as futile.
II. STANDARD OF REVIEW
Plaintiffs argue that our review of the futility issue is de novo. But, citing deHaas
v. Empire Petroleum Co., 435 F.2d 1223, 1228 (10th Cir. 1970), the defendants argue
that we review the district court’s ruling only for abuse of discretion. We need not
2
The complaint also included a count against former director Shuichiro Ueyama for
insider trading. He was dismissed from the case because he did not receive timely
service.
6
resolve the dispute because we can affirm the district court’s dismissal upon de novo
review.
III. DEMAND FUTILITY
A. Selection of Governing Law
Plaintiffs’ claims arise under federal statutory law (§ 14(a) of the Exchange Act)
and the common law (of some jurisdiction, not specified in the complaint). It is not
obvious, however, what law should govern the standards for determining whether
Plaintiffs were required to demand that ZAGG’s directors bring suit before Plaintiffs filed
suit themselves. The Federal Rules of Civil Procedure require all shareholder-derivative
complaints filed in federal court to “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.” Fed. R. Civ. P. 23.1(b)(3). But the federal procedural
rules cannot establish substantive law. As the Supreme Court wrote in a shareholder-
derivative suit bringing claims under § 20(a) of the Investment Company Act of 1940, 15
U.S.C. § 80a-20(a) (ICA):
[A]lthough Rule 23.1 clearly contemplates both the demand requirement
and the possibility that demand may be excused, it does not create a
demand requirement of any particular dimension. On its face, Rule 23.1
speaks only to the adequacy of the shareholder representative’s
pleadings. Indeed, as a rule of procedure issued pursuant to the Rules
Enabling Act, Rule 23.1 cannot be understood to “abridge, enlarge or
modify any substantive right.” 28 U.S.C. § 2072(b). . . . [T]he 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.”
7
Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 96–97 (1991) (citations omitted).
“Thus,” said the Court, “in order to determine whether the demand requirement may be
excused by futility in a derivative action founded on § 20(a) of the ICA, we must identify
the source and content of the substantive law that defines the demand requirement in such
a suit.” Id. at 97.
The Court began its analysis by stating that the substantive-law issue is one of
federal law:
It is clear that the contours of the demand requirement in a derivative
action founded on the ICA are governed by federal law. Because the
ICA is a federal statute, any common law rule necessary to effectuate a
private cause of action under that statute is necessarily federal in
character.
Id. That was not, however, the end of the story. The Court then determined that federal
common law should adopt the futility law of the state of incorporation of the company on
behalf of which the plaintiffs are bringing suit. It reached that conclusion because (1) as
a matter “that bears on the allocation of governing powers within the corporation, federal
courts should incorporate state law into federal common law unless the particular state
law in question is inconsistent with the policies underlying the federal statute,” and (2)
recognition of a futility exception would “not impede the regulatory objectives of the
ICA.” Id. at 108.
We are aware of no federal policy underlying Exchange Act § 14(a) that would
distinguish a claim under § 14(a) from, as in Kamen, a claim under § 20 of the ICA with
respect to futility doctrine. Therefore we look to the law of Nevada, ZAGG’s state of
8
incorporation, for the standards that govern the futility exception—at least for Plaintiffs’
§ 14(a) claim.
But what about Plaintiffs’ common-law claims? Because those claims arise under
state law, we ordinarily look to the substantive law (including choice-of-law rules) of the
forum state. See Boyd Rosene & Assocs., Inc. v. Kan. Mun. Gas Agency, 123 F.3d 1351,
1352–53 (10th Cir. 1997) (“[A] federal court sitting in diversity must apply the
substantive law of the state in which it sits, including the forum state’s choice-of-law
rules.”); Timmerman v. Modern Indus. Inc., 960 F.2d 692, 696 (7th Cir. 1992) (“federal
courts exercising pendent or diversity jurisdiction must apply state law to matters of
substantive law”). Perhaps it would be too problematic to apply two futility standards in
the same case. As stated in a similar context by RCM Sec. Fund, Inc. v. Stanton, 928
F.2d 1318, 1327–28 (2d Cir. 1991), decided before Kamen:
If a state demand requirement were to apply to state claims and a
federal demand requirement were to apply to federal claims, a
plaintiff bringing a derivative suit based on a single transaction
might well be subject to a demand requirement as to one legal theory
while excused from making a demand as to another legal theory. . . .
Needless complexity, needless litigation, and perhaps the loss of
substantive claims would also result from a rule that state law
governs the demand requirement involving a state claim but federal
law governs where a federal claim is in issue.
But we need not decide the matter. The parties agree that Nevada law should apply to the
futility issue (apparently because Utah courts would choose Nevada law as the governing
law); and we see no reason to search for a reason to disagree. See TMJ Implants, Inc. v.
Aetna, Inc., 498 F.3d 1175, 1180–81 (10th Cir. 2007) (“The parties agree that the
9
applicable substantive law is that of Colorado. . . . We therefore assume that this case is
governed by Colorado substantive law.”).
B. Nevada Futility Law
Nevada recognizes the right of an individual shareholder to sue on behalf of the
corporation through a shareholder-derivative suit. See Shoen v. SAC Holding Corp., 137
P.3d 1171, 1179 (Nev. 2006). But “because the power to manage the corporation’s
affairs resides in the board of directors,” ordinarily “a shareholder must, before filing suit,
make a demand on the board . . . to obtain the action that the shareholder desires.” Id. If
the board refuses the demand, the shareholder cannot pursue the litigation unless the
refusal was wrongful. See HPEV, Inc. v. Spirit Bear Ltd., No. 2:13-cv-01548-JAD-GWF,
2014 WL 6634838, at *2 (D. Nev. Nov. 21, 2014). See generally Levine v. Smith, 591
A.2d 194, 210–15 (Del. 1991).
If, however, a board is undeserving of the typical deference given to its business
judgment, Nevada law does not require a presuit demand. “For instance, there is no point
in requiring a party to make a demand for corrective action to officers and directors who
are swayed by outside interests, which contaminates their ability to conduct the
corporation’s affairs.” Shoen, 137 P.3d at 1180. Would-be derivative plaintiffs therefore
need not make a demand on the board if they can show demand futility—that is, show
that a sufficient number “of the directors had a disqualifying interest in the demand
matter or were otherwise unable to act independently [of someone with such an interest].”
Id. at 1183 (brackets and internal quotation marks omitted). Demand to a board with an
even number of members is futile if at least half are compromised. See Beam ex rel.
10
Martha Stewart Living Omnimedia, Inc. v. Stewart, 845 A.2d 1040, 1046 n.8 (Del. 2004)
(applying Delaware law; “[i]f three directors of a six person board are not independent
and three directors are independent, there is not a majority of independent directors and
demand would be futile”).
C. Plaintiffs’ Futility Claim
Plaintiffs allege demand futility on two grounds. First, they allege that the
Director Defendants (who constituted half the Board) were interested in the prospective
suit because they may have been found personally liable. In arguing futility, Plaintiffs’
opening brief relies on potential liability only on the § 14(a) claim and the fiduciary-duty
claim, not on the unjust-enrichment or corporate-waste claims. We will therefore
consider futility only as to those two claims. See Lindstrom v. United States, 510 F.3d
1191, 1196 (10th Cir. 2007) (“Arguments not raised in an opening brief are waived.”).
Second, Plaintiffs allege that because the Director Defendants were controlled by
personal and business relationships among themselves and with former CEO Pedersen,
who was also potentially liable, they could not have independently considered a demand
to sue.
We address interest and then control.
D. Exposure of Defendant Directors to Liability (Interest)
Nevada follows two landmark decisions of the Supreme Court of Delaware on
demand futility: Aronson v. Lewis, 473 A.2d 805 (Del. 1984), and Rales v. Blasband,
634 A.2d 927 (Del. 1993). See Shoen, 137 P.3d at 1184. In particular, Nevada requires
that “to show interestedness, a shareholder must allege that . . . the board members would
11
be materially affected, either to their benefit or detriment, by a decision of the board, in a
manner not shared by the corporation and the stockholders.” Id. at 1183 (brackets and
internal quotation marks omitted). A director may have such a disqualifying interest if
the matter before the board is whether to sue the director, but only if the risk of liability is
sufficiently great. That is, “interestedness because of potential liability can be shown
only in those rare cases where defendants’ actions were so egregious that a substantial
likelihood of director liability exists.” Id. at 1184 (brackets, ellipses, and internal
quotation marks omitted).
The likelihood of liability is greatly reduced in Nevada by an “exculpatory” statute
that limits the personal liability of corporate directors. Relevant to Plaintiffs’ claims, it
provides:
[A] director or officer is not individually liable to the corporation or its
stockholders or creditors for any damages as a result of any act or
failure to act in his or her capacity as a director or officer unless it is
proven that: (a) The director’s or officer’s act or failure to act
constituted a breach of his or her fiduciary duties as a director or officer;
and (b) The breach of those duties involved intentional misconduct,
fraud or a knowing violation of law.
Nev. Rev. Stat. § 78.138(7). Most important here, the Director Defendants are not liable
unless their actions constituted “intentional misconduct, fraud or a knowing violation of
law.” Id.; see In re Amerco Derivative Litig., 252 P.3d 681, 700 (Nev. 2011).
Plaintiffs argue that the exculpatory statute is an affirmative defense and they need
not plead its negation to claim futility. They rely on Delaware law. In Delaware a statute
authorizes a corporation to include in its articles of incorporation a provision limiting the
personal liability of directors for breach of fiduciary duty unless the breach involved
12
certain specified conduct, including breach of the duty of loyalty and “acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation of law.”
8 Del. C. § 102(b)(7). The Delaware Supreme Court appears to have held that the statute
creates an affirmative defense on which the directors bear the burden of persuasion. See
Emerald Partners v. Berlin, 726 A.2d 1215, 1223–24 (Del. 1999). If Nevada law
similarly holds that the state’s exculpatory statute creates an affirmative defense, then
Fed. R. Civ. P. 8(c), which requires the defendant to plead affirmative defenses, would
support the proposition that the Director Defendants bear the burden of pleading the
application of the statute in defending against the shareholder-derivative claims. One
could then argue that the same pleading burden applies to the futility allegation.
In our view, however, for Plaintiffs to prevail on the futility issue, their complaint
had to show that the actions of the Director Defendants were not protected by Nevada’s
exculpatory statute. Several considerations lead to that conclusion. As we explain
below, (1) in Nevada the plaintiff bears the burden of persuasion to overcome the
exculpatory statute on a claim against a director; (2) the burdens of persuasion and
pleading on an issue are generally on the same party; (3) the policy reasons for requiring
that a matter be pleaded as an affirmative defense do not apply to a director’s reliance on
the exculpatory statute; and (4) the federal rule governing pleading in shareholder
derivative actions places the burden on the plaintiff to plead the specifics showing
futility.
To begin with, the burden of persuasion is assigned differently by the Delaware
and Nevada exculpatory statutes. In Delaware the statute says nothing about which party
13
bears the burden of persuasion;3 and, as just noted, the state’s highest court has said that
the director has the burden of proving the facts that provide exculpation. See id. In
contrast, the Nevada statute explicitly states that the director is not liable to the
corporation or its stockholders or creditors “unless it is proven that: (a) The director’s or
officer’s act or failure to act constituted a breach of his or her fiduciary duties as a
director or officer; and (b) The breach of those duties involved intentional misconduct,
fraud or a knowing violation of law.” Nev. Rev. Stat. § 78.138(7) (emphasis added).
This is a clear allocation of the burden of persuasion to the plaintiff. Because allocation
of the burden of persuasion is a matter of substantive law, see Dick v. New York Life Ins.
Co., 359 U.S. 437, 446 (1959) (“Under the Erie rule, presumptions (and their effects) and
burden of proof are ‘substantive’ . . . .” (footnote omitted)), we apply Nevada’s
assignment of the burden in assessing the futility issue here, see Kamen, 500 U.S. at 108.
3
8 Del. C. § 102(b) states that “the certificate of incorporation may . . . contain any
or all of the following matters:
....
(7) A provision eliminating or limiting the personal liability of a director to
the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, provided that such provision shall not
eliminate or limit the liability of a director: (i) For any breach of the
director’s duty of loyalty to the corporation or its stockholders; (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) under § 174 of this title; or (iv) for any
transaction from which the director derived an improper personal benefit.
No such provision shall eliminate or limit the liability of a director for any
act or omission occurring prior to the date when such provision becomes
effective. All references in this paragraph to a director shall also be
deemed to refer to such other person or persons, if any, who, pursuant to a
provision of the certificate of incorporation in accordance with § 141(a) of
this title, exercise or perform any of the powers or duties otherwise
conferred or imposed upon the board of directors by this title.
(emphasis added).
14
Thus, Plaintiffs have the burden of showing a substantial likelihood that the Director
Defendants will be held liable despite Nevada’s exculpatory statute.
Next, in civil cases the “burden of pleading and burden of proof are usually
parallel [because] they are both manifestations of the same or similar considerations.”
Fleming James, Jr., Burden of Proof, 47 Va. L. Rev. 51, 60 (1961). See Nader v. de
Toledano, 408 A.2d 31, 48 (D.C. App. 1979) (“The general rule is that a party asserting
or pleading an issue has the burden of proof . . . .”); cf. Schaffer ex rel. Schaffer v. Weast,
546 U.S. 49, 56 (2005) (“‘The burdens of pleading and proof with regard to most facts
have been and should be assigned to the plaintiff who generally seeks to change the
present state of affairs and who therefore naturally should be expected to bear the risk of
failure of proof or persuasion.’” (quoting 2 John W. Strong, McCormick on Evidence §
337, at 412 (5th ed. 1999))). Hence, Plaintiffs could be expected to bear the burden of
pleading the absence of exculpation. But see Palmer v. Hoffman, 318 U.S. 109, 116–19
(1943) (in diversity case, Fed. R. Civ. P. 8(c) (which lists contributory negligence as an
affirmative defense) requires defendant to plead contributory negligence as an affirmative
defense even though state law may place on plaintiff the burden of persuasion to negate
contributory negligence).
Moreover, we agree with the Third Circuit that in determining whether an issue
should be treated as an affirmative defense for purposes of pleading, the critical question
(absent a contrary command by statute or rule, such as the list of affirmative defenses in
Rule 8(c)) is whether requiring the defendant to plead the matter is necessary “to avoid
surprise and undue prejudice by providing the plaintiff with notice and the opportunity to
15
demonstrate why the affirmative defense should not succeed.” In re Sterten, 546 F.3d
278, 285 (3d Cir. 2008) (internal quotation marks omitted). Here, the Nevada
exculpatory statute applies to all claims against directors unless the articles of
incorporation provide for greater liability. See § 78.138(7). The statute provides ample
notice of what the plaintiff will need to prove (and plead) without the necessity of a
director’s pleading the statute as an affirmative defense.
Further support for requiring Plaintiffs to plead facts establishing the requisites for
liability under § 78.138(7) flows from the futility provisions in Fed. R. Civ. P. 23.1 itself.
Its pleading requirements, which are designed specifically for derivative actions, mandate
that the plaintiff “state with particularity . . . the reasons for . . . not making the effort” to
obtain the board of directors’ consent to the suit. Fed. R. Civ. P. 23.1(b)(3)(B). If the
reason for not making the request is that the directors would face a substantial risk of
liability from the suit, the plaintiffs should set forth fully why the directors face liability.
That would include why the directors are not protected by Nev. Rev. Stat. § 78.138(7).
We note that Delaware, which has a rule of procedure similar to Rule 23.1(b)(3), appears
to require as much when plaintiffs in a shareholder-derivative suit claim futility. See
Wood v. Baum, 953 A.2d 136, 141 (Del. 2008) (“Where directors are contractually or
otherwise exculpated from liability for certain conduct, then a serious threat of liability
may only be found to exist if the plaintiff pleads a non-exculpated claim against the
directors based on particularized facts.” (internal quotation marks omitted)); id. at 139 n.2
(quoting the Delaware rule); Teamsters Union 25 Health Servs. & Ins. Plan v. Baiera,
119 A.3d 44, 62–63 (Del. Ch. 2015); In re Lear Corp. S’holder Litig., 967 A.2d 640,
16
647–48 (Del. Ch. 2008) (“To plead demand futility . . . , because the Lear charter
contains an exculpatory provision . . . , the plaintiffs cannot sustain their complaint even
by pleading facts supporting an inference of gross negligence; they must plead a non-
exculpated claim.”).
In short, we hold that the allegations of Plaintiffs’ complaint must establish
whether, in light of the Nevada exculpatory statute, the Director Defendants faced a
substantial risk of liability in this derivative action. Thus, we now turn to whether
Plaintiffs alleged with particularity facts showing a substantial likelihood that Defendants
engaged in “intentional misconduct, fraud or a knowing violation of law.” Nev. Rev.
Stat. § 78.138(7)(b). We can rule out fraud because Plaintiffs disclaim any allegations of
fraud. As for the terms knowing violation and intentional misconduct, we believe that
both require knowledge that the conduct was wrongful.
We recognize that in some contexts courts interpret knowingly in a limited way,
requiring only “factual knowledge as distinguished from knowledge of the law.” Bryan
v. United States, 524 U.S. 184, 192 (1998) (internal quotation marks omitted); see id.
(“[T]he term ‘knowingly’ does not necessarily have any reference to a culpable state of
mind or to knowledge of the law.”). The interpretation of intentional may be similarly
limited, requiring only that the action be deliberate, regardless of whether the actor
appreciated that it was misconduct. See Wright v. Municipality of Anchorage, 590 P.2d
425, 426 (Alaska 1979) (affirming jury instruction stating that “[t]o constitute criminal
intent it is not necessary that there should exist an intent to violate the law. Where a
person intentionally does that which the law declares to be a crime, he is acting with
17
criminal intent, even though he may not know that his act or conduct is unlawful.”);
People v. Hill, 166 Cal. Rptr. 824, 825 (Cal. App. Dep’t Super. Ct. 1980) (defendant
guilty for an intentional act even if he “did not know his actions were unlawful, or even if
he did not intend to violate the law”); cf. United States v. Manatau, 647 F.3d 1048, 1050
(10th Cir. 2011) (“[A] person acts intentionally if he acts purposely or had as a conscious
object to cause a particular result.” (internal quotation marks omitted)).
But courts have also interpreted knowingly and intentionally more expansively, to
require knowledge of wrongfulness. See, e.g., Liparota v. United States, 471 U.S. 419,
420, 434 (1985) (to be guilty of knowingly acquiring or possessing food stamps in a
manner not authorized by the governing statute or regulations, defendant must know that
the conduct was unauthorized); Mee Indus. v. Dow Chem. Co., 608 F.3d 1202, 1220 (11th
Cir. 2010) (“In order to demonstrate intentional misconduct [to establish liability for
punitive damages], the plaintiff must show the defendant had actual knowledge of the
wrongfulness of the conduct . . . .” (internal quotation marks omitted)); Cohen v. United
States, 378 F.2d 751, 754 n.1, 757 (9th Cir. 1967) (statute stating that “[w]hoever being
engaged in the business of betting or wagering knowingly uses a wire communication
facility for the transmission in interstate or foreign commerce of bets or wagers” is not
violated unless defendant knew of the statutory prohibition); State v. Peters, 253 P. 842,
846 (Idaho 1927) (“The word ‘intentional,’ as used in penal laws, is held to import evil
intent and unlawful purpose.”); S.S. LLC v. Review Bd. of Indiana Dept. of Workforce
Dev., 953 N.E.2d 597, 602 (Ind. Ct. App. 2011) (unemployment claim: “To have
knowingly violated an employer’s rule, the employee must know of the rule and must
18
know that his conduct violated the rule.”); Still v. Comm’r of Employment & Training,
672 N.E.2d 105, 112 (Mass. 1996) (unemployment claim: “‘knowing violation’ requires
an intent to violate the law, and not merely an intent to commit the act that is a
violation.”).
The latter meaning is the one that makes the most sense here. The purpose of the
exculpatory statute is to limit the liability of corporate directors. Under the narrower
interpretations of intentional and knowing that do not require knowledge of wrongfulness,
a director would not be protected so long as the director knew what his or her actions
were—such as signing a document with knowledge of its contents. But that state of mind
would be present for virtually any conduct that could lead to the director’s liability to the
corporation or its stockholders or creditors. The exculpatory statute would be an empty
gesture. To give the statute a realistic function, it must protect more than just directors (if
any) who did not know what their actions were; it should protect directors who knew
what they did but not that it was wrong. In any event, we need not pursue whether
something less than actual knowledge of the wrongful nature of the conduct may suffice
in some circumstances because Plaintiffs do not press the point. The Director
Defendants’ appellate brief asserted that they are liable only if they knew their conduct to
violate the law, and Plaintiffs did not contest the point in their reply brief.
We now consider whether Plaintiffs sufficiently pleaded that the Director
Defendants knew their conduct to be wrongful. We find no error in the district court’s
holding that they did not. Plaintiffs alleged that the Director Defendants faced a
substantial likelihood of liability under Exchange Act § 14(a) and the common law
19
governing fiduciaries by failing to disclose Pedersen’s pledges and the alleged succession
plan. We first address the pledges, then the alleged succession plan.
i. Failure to Disclose Pedersen’s Margined Stock
SEC regulations require a company’s proxy statements to “indicate, by footnote or
otherwise, the amount of shares that are pledged as security” by its officers and directors.
17 C.F.R. § 229.403(b); see id. § 229.10(a)(2). And it is a violation of Exchange Act
§ 14(a) to solicit a proxy in violation of SEC regulations, including § 229.403(b). See 15
U.S.C. § 78n(a)(1). ZAGG’s April 27 proxy statement did not report Pedersen’s
margined stock, and Plaintiffs assert that this violation of § 14(a) exposed the Director
Defendants to a substantial likelihood of liability. We can assume without deciding that
Plaintiffs adequately pleaded that the Director Defendants knew of Pedersen’s margin
pledges. What is missing, however, is an adequate basis in the complaint for an inference
that the violation was knowing or intentional—that is, that the Director Defendants knew
that such pledges had to be disclosed.
Plaintiffs urge that such knowledge is reasonably inferred from the pleaded facts
that all three Director Defendants “reviewed, approved, and signed [ZAGG’s] filings
with the SEC,” Aplt. App., Vol. 1 at 61 ¶ 154, and that Larabee and Ekstrom, as members
of the audit committee, were “responsible for overseeing the integrity of ZAGG’s
financial statements,” id. at 59 ¶ 149. The district court properly refused to infer
knowledge from these allegations. We doubt that board members are expected to know
the minutiae of SEC regulations. We think it significant that the Delaware courts, whose
experience and expertise in such matters is widely recognized, see Delaware Coal. for
20
Open Gov’t, Inc. v. Strine, 733 F.3d 510, 524 (3d Cir. 2013); Swope v. Siegel-Robert,
Inc., 243 F.3d 486, 496 (8th Cir. 2001), do not think they are. Delaware cases do not
infer knowledge of detail (factual or legal) merely from committee membership or
execution of SEC filings, but require specific allegations from which one can infer
knowledge. For example, in Guttman v. Huang, 823 A.2d 492 (Del. Ch. 2003), the
plaintiffs alleged that the board knew of the company’s improper accounting practices.
See id. at 496–97. The court refused to infer such knowledge because the complaint did
not contain “well-pled, particularized allegations of fact detailing the precise roles that
these directors played at the company, the information that would have come to their
attention in those roles, and any indication as to why they would have perceived the
accounting irregularities.” Id. at 503. In Wood, 953 A.2d at 139, plaintiffs alleged that
defendant board members breached their fiduciary duty to value certain assets properly,
in violation of the company’s internal policies, accounting standards, and federal law. To
support the claim that the defendants knew their actions to have been wrongful, the
plaintiffs alleged that the defendants had executed the company’s financial reports and
served on its audit committee. See id. at 142. The court, however, ruled that the
complaint did “not plead with particularity the specific conduct in which each defendant
‘knowingly’ engaged, or that the defendants knew that such conduct was illegal.” Id. It
said that “Delaware law on this point is clear: board approval of a transaction, even one
that later proves to be improper, without more, is an insufficient basis to infer culpable
knowledge or bad faith on the part of individual directors.” Id. It could not infer
knowledge from the plaintiffs’ allegations because “[t]he Board’s execution of [the
21
company’s] financial reports, without more, is insufficient to create an inference that the
directors had actual or constructive notice of any illegality.” Id. In particular, it held that
to infer knowledge from membership on an audit committee would run “contrary to well-
settled Delaware law.” Id. In short, “[a]s numerous Delaware decisions make clear, an
allegation that the underlying cause of a corporate trauma falls within the delegated
authority of a board committee does not support an inference that the directors on that
committee knew of and consciously disregarded the problem.” South v. Baker, 62 A.3d
1, 17 (Del. Ch. 2012).
Plaintiffs quote the ZAGG audit committee charter, but fail to explain how it
compels a conclusion of knowledge. To be sure, one quoted provision states that “[t]he
Audit Committee shall comply with the relevant rules and regulations of the SEC.”
Complaint, Aplt. App., Vol. 1 at 35 ¶ 51. But it would be too much of a stretch to read
this as requiring the committee members to have detailed knowledge of all SEC
regulations. Corporations have lawyers and accountants for that purpose. Who would
take on that responsibility as a board member? As was true in Wood, 953 A.2d at 142,
“the Complaint alleges . . . violations of federal securities . . . laws but does not plead
with particularity the specific conduct in which each defendant ‘knowingly’ engaged, or
that the defendants knew that such conduct was illegal.” 4
4
Plaintiffs argued to the district court that the secret succession plan was itself
evidence that the Director Defendants knew of the “illicit nature” of Pedersen’s
pledges. They have dropped this argument on appeal, which is just as well, as the
allegation of a secret succession plan is implausible.
22
Plaintiffs’ pleadings likewise fail to show that the Director Defendants knew that
nondisclosure of the pledges violated a common-law fiduciary duty. Indeed, that may
have been an impossible task, given the apparent lack of support for the existence of any
such duty. The only case in point that we have found states the contrary. See
Burekovitch v. Hertz, No. 01-cv-1277 (ILG), 2001 WL 984942, at *9 (E.D.N.Y. July 24,
2001) (“While a controlling shareholder’s decision to commit large quantities of his stock
as security in margin trading undoubtedly has the potential to affect the price of that
stock, plaintiff has not and cannot allege an affirmative duty imposed by common law to
keep the public appraised of such a decision.”).
ii. Failure to Disclose Succession Plan
Plaintiffs allege that the Defendant Directors failed to disclose their secret plan to
replace Pedersen by Hales as CEO. But there is nothing wrongful about failing to
disclose the nonexistent, and Plaintiffs did not adequately allege the existence of such a
plan.
According to Plaintiffs’ opening brief, the Director Defendants decided in
December 2011 to remove Pedersen as CEO and Chairman and make Hales the CEO but
they deliberately concealed this information because ZAGG had repeatedly informed
investors that its success depended on Pedersen’s skill and experience. They allege that
“the hiring of Hales was a direct response to Pedersen’s margin call situation, marking
the initial step of the secret succession plan,” Aplt. Br. at 36, and that the plan was
concealed in a press release of December 12, 2011, and a Form 8-K filed on December
16 which misleadingly stated that Hales would serve only as President and COO and that
23
Pedersen would continue as CEO and Chairman of the Board. In support of their secret-
plan theory, Plaintiffs point to the “temporal proximity” between the first margin call and
Hales’s being named President and COO, Aplt. Br. at 36, and to Hales’s statement in
August 2012 that from the outset he had worked with Pedersen to “identify and establish
corporate objectives” and Pederson had “handed [over] much of the responsibilities for
the day-to-day operations,” id. at 38 (internal quotation marks omitted).
This theory is far-fetched. The complaint alleges no facts indicating that the
Board knew of Pedersen’s margined stock before the first margin call, and that came nine
days after ZAGG’s announcement that Hales would become president and COO, which
certainly came only after serious discussions with Hales about assuming the positions.
Plaintiffs’ temporal-proximity argument makes no sense if the alleged cause (knowledge
of the margined stock) occurred after the effect (bringing in Hales to take over ZAGG).
We also see nothing remarkable about Hales’s disclosure in August 2012 of the nature of
his work when he took office at ZAGG in December 2011. No one should be surprised if
the president/COO discusses corporate objectives with the CEO and Board chairman or if
the president/COO takes over day-to-day responsibilities.
And even if the Board knew of the margined stock before hiring Hales, Plaintiffs’
theory would ascribe very peculiar thinking to the Board members. Why would the
Board decide to deal with Pedersen’s margined stock by looking for a successor rather
than working on a plan for an orderly sale of that stock to avoid the bad publicity of a
margin call? And after the publicity from the first margin call had damaged Pedersen’s
favorable image, what would be the public-relations advantage of keeping him on as
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CEO or the downside of disclosing the succession plan? Why court a further reputational
blast from future margin calls, particularly if the Board was not going to make it a
condition of Pedersen’s remaining as CEO that he eliminate his margin debt? Why wait
until four months after Pedersen’s resignation to appoint Hales as permanent CEO if that
had already been decided a year earlier? Someone might be able to conceive of answers
to these questions, but Plaintiffs’ secret-plan theory is too speculative to support their
futility claim.
E. Lack of Independence
Finally, Plaintiffs claim that they did not need to demand action by the Board
before filing suit because there was not a Board majority independent of influence from
interested persons. See Shoen, 137 P.3d at 1183 (“[D]irectors’ discretion must be free
from the influence of other interested persons.”). The independence inquiry asks whether
a board member was “incapable, due to . . . domination and control, of objectively
evaluating a demand.” Brehm v. Eisner, 746 A.2d 244, 257 (Del. 2000). Plaintiffs
contend that three ZAGG directors were not independent of each other or of Pedersen.
Because Plaintiffs do not challenge the independence of the other three of the six board
members, our inquiry is complete if their allegations against any of the three challenged
directors are inadequate. See Beam, 845 A.2d at 1046 n.8 (Del. 2004) (demand is
excused if there is not a majority of independent directors). In this case we need go no
further than Defendant Larabee.
Plaintiffs’ allegation of Larabee’s lack of independence fails on two grounds.
First, were Larabee controlled by another, such control would compromise her ability to
25
consider a demand only if the person controlling her had an interest in the suit. See
Brehm, 746 A.2d at 258 (because CEO was disinterested, it is irrelevant which directors
were independent of him). But we have already ruled that none of the Director
Defendants were interested in the suit because none faced a substantial likelihood of
liability. That leaves Pedersen as the only potentially interested Defendant. Plaintiffs did
not, however, allege that Pedersen controlled Larabee; as to Larabee, Plaintiffs argue
only lack of independence from Hales.5
Second, the sole ground alleged for Larabee’s lack of independence from Hales is
that they served on another company’s board together. This is hardly sufficient to
establish the requisite control. Personal or business relationships may compromise
objectivity but only if they are “of a bias-producing nature. Allegations of mere personal
friendship or a mere outside business relationship, standing alone, are insufficient.”
Beam, 845 A.2d at 1050. Although the Delaware Supreme Court has acknowledged “the
structural bias common to corporate boards throughout America, as well as the other
unseen socialization processes cutting against independent discussion and decision
making in the boardroom,” Aronson, 473 A.2d at 815 n. 8, it nonetheless requires
allegations of “specific facts pointing to bias on a particular board” to demonstrate
demand futility. Id. For example, allegations that board members “moved in the same
5
The Complaint alleged that Larabee lacked independence because she received
substantial compensation in her role as a board director and would not want that
jeopardized. But because Plaintiffs do not pursue this allegation on appeal, we do not
consider it. See Adler v. Wal-Mart, 144 F.3d 664, 679 (10th Cir. 1998). We also do
not consider Plaintiffs’ assertion, raised for the first time in their reply brief and
without any record support, that Hales and Larabee shared a longstanding friendship.
See id.
26
social circles, attended the same weddings, developed business relationships before
joining the board, and described each other as ‘friends’” are insufficient to excuse
demand. Beam, 845 A.2d at 1051. Plaintiffs’ lesser allegation here—merely that
Larabee served on a separate board with Hales—must also fall short. See also Orman v.
Cullman, 794 A.2d 5, 27 (Del. Ch. 2002) (“The naked assertion of a previous business
relationship is not enough to overcome the presumption of a director’s independence.”);
Highland Legacy Ltd. v. Singer, No. Civ.A. 1566-N, 2006 WL 741939, at *5 (Del. Ch.
Mar. 17, 2006) (rejecting allegation of lack of independence that was “based solely on the
alleged facts that [defendant directors served together] on the boards of other
companies”). Plaintiffs have failed to plausibly allege lack of independence.
IV. CONCLUSION
Because Plaintiffs failed to adequately plead that presuit demand on the Board
would have been futile, we AFFIRM the district court’s dismissal of the complaint.
27