14‐1754 Espinoza v. Dimon UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_______________

August Term, 2014

(Argued: April 1, 2015 Decided: August 12, 2015)

Docket No. 14‐1754

_______________

ERNESTO ESPINOZA, Derivatively on Behalf of JPMorgan Chase & Co.,

Plaintiff‐Appellant, —v.—

JAMES DIMON, DOUGLAS L. BRAUNSTEIN, MICHAEL J. CAVANAGH, ELLEN V. FUTTER, JAMES S. CROWN, DAVID M. COTE, LABAN P. JACKSON, JR., CRANDALL C. BOWLES, JAMES A. BELL, LEE R. RAYMOND, STEPHEN B. BURKE, WILLIAM C. WELDON, INA R. DREW, DAVID C. NOVAK,

Defendants‐Appellees,

JPMORGAN CHASE & CO.,

Nominal Defendant‐Appellee,

WILLIAM H. GRAY, III,

Defendant.

_______________

B e f o r e: KATZMANN, Chief Judge, POOLER and CARNEY, Circuit Judges. _______________

Appeal from the dismissal of a derivative action seeking to compel JPMorgan to take action against the corporate officers allegedly responsible for the recent “London Whale” trading losses, including several executives who disseminated misleading statements about those losses. At the outset, we revisit our precedents governing the proper standard of review for dismissals of derivative actions, and hold that such dismissals should be reviewed de novo. On de novo review, it remains unclear how Delaware law would treat a case where a shareholder challenges the scope of a board’s investigation of his demand. We accordingly certify the legal question necessary to decide the merits of this case to the Delaware Supreme Court. _______________

GEORGE C. AGUILAR (Jay N. Razzouk, on the brief), Robbins Arroyo LLP, San Diego, California; Thomas G. Amon, Law Offices of Thomas G. Amon, New York, New York, for Plaintiff‐Appellant.

RICHARD C. PEPPERMAN, II, Sullivan & Cromwell LLP, New York, New York (Daryl A. Libow, Christopher Michael Viapiano, Sullivan & Cromwell LLP, Washington, D.C., on the brief), for Defendants‐Appellees James Dimon, Douglas L. Braunstein, Michael J. Cavanagh, Ina R. Drew, and Nominal Defendant‐ Appellee JPMorgan Chase & Co.

Jonathan C. Dickey, Gibson, Dunn & Crutcher LLP, New York, New York, for Defendants‐Appellees Ellen V. Futter, James S. Crown, David M. Cote, Laban P. Jackson, Jr., Crandall C. Bowles, James A. Bell, Lee R. Raymond, Stephen B. Burke, William C. Weldon, and David C. Novak. _______________

2 KATZMANN, Chief Judge:

This derivative action is one of many to arise out of the “London Whale”

trading debacle, which cost JPMorgan Chase billions. Plaintiff‐appellant Ernesto

Espinoza, a JPMorgan shareholder, believes that JPMorgan has not done enough

to go after those he deems responsible. Through this lawsuit, he challenges the

decision of the JPMorgan board to reject his demand that JPMorgan take action

against the alleged wrongdoers. Although a board’s rejection of a shareholder

demand is normally conclusive so long as that rejection was based on a

reasonable investigation, here Espinoza contends that the board’s investigation

was unreasonably narrow. Specifically, Espinoza alleges that the board’s

investigation only looked into the underlying trading losses, but did not explore

certain alleged misstatements that JPMorgan executives made about those losses.

Espinoza asserts that these misstatements exposed JPMorgan to significant

liability, and should have led the board to take action against the executives

involved. The district court (Daniels, J.) dismissed Espinoza’s complaint, finding

that he had not pleaded facts showing that the JPMorgan Board of Directors had

wrongfully refused the demand for action.

3

We write to address both the standard of review and the underlying merits

of the case.1 As to the standard of review, the law of our circuit has traditionally

held that a district court’s decision to dismiss a derivative action is reviewed only

for abuse of discretion. But deferential review is not warranted: Reviewing the

dismissal of a derivative action, as with the dismissal of any other sort of

complaint, involves nothing more than reading the allegations in the complaint

and deciding whether those allegations state a claim. Accordingly, we today

revisit the standard of review and hold that dismissals of derivative actions are

reviewed de novo.2

Reviewing this case under that de novo standard, we conclude that

Delaware law is unclear on how to handle Espinoza’s argument that the scope of

the board’s investigation was too narrow. Although several Delaware cases hold

that a board has wide discretion about the procedures it uses when investigating

a demand, no case addresses allegations that the substantive scope of an

1 We previously issued an opinion reviewing this case for abuse of discretion, and affirming the dismissal under that deferential standard. On August 12, 2015, that opinion was withdrawn sua sponte, and this opinion now replaces it.

2 This opinion has been circulated to all judges of the Court prior to filing.

4 investigation was too narrow. We therefore certify the legal question necessary to

decide the merits to the Delaware Supreme Court.

BACKGROUND

Because the district court disposed of this case on a motion to dismiss, we

assume the truth of the allegations in the plaintiff’s complaint for purposes of this

appeal. See Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

(2007). The

following recitation of facts is thus adopted from Espinoza’s complaint.

A. The London Whale

The London Whale story begins in JPMorgan’s Chief Investment Office

(“CIO”), which manages and invests the excess cash from JPMorgan’s other

businesses. J.A. 10. Before 2009, the CIO invested primarily in conservative

securities, with the goal of limiting JPMorgan’s exposure to structural risks such

as shifts in interest rates or foreign‐exchange rates. J.A. 29. Beginning in 2008 and

2009, however, Defendant‐Appellee Jamie Dimon, the Chief Executive Officer of

JPMorgan, began transforming the CIO from a conservative risk‐management

unit into a more aggressive proprietary‐trading desk, with the aim of generating

additional profit. J.A. 30.

5

Seeking to satisfy this new emphasis on profits, the CIO began taking

riskier positions in synthetic credit derivatives. In particular, a group of London

traders led by Bruno Iksil—later known by the nom de finance “the London

Whale”—made larger and larger bets in these markets. J.A. 32–33. But when these

bets began to sour, the CIO doubled down by investing even more money in risky

derivatives in an attempt to shore up these investments. J.A. 33–34. To conceal the

losses, JPMorgan modified its “Variance at Risk” (“VaR”) model in a way that

gave the misleading impression that JPMorgan’s overall risk had stayed constant;

an unmodified VaR model would have shown that JPMorgan’s risk had in fact

doubled. J.A. 35. The model’s modification was overseen and approved by

Dimon.

As losses mounted, the markets and the press began to catch wind of

JPMorgan’s troubles. On April 6, 2012, Bloomberg reported that the CIO’s positions

in the credit derivative market had become so large that they were driving price

moves in that market. J.A. 36. Shortly thereafter, Dimon, along with Defendant‐

Appellee Douglas Braunstein, JPMorgan’s then‐Chief Financial Officer, held a

conference call with analysts and investors to discuss JPMorgan’s earnings for the

6 first quarter of 2012. During this conference call, Dimon and Braunstein

repeatedly claimed that the CIO was conservatively investing in safe securities.

J.A. 36–40. For example, Braunstein stated that “[w]e invest . . . in high grade,

low‐risk securities” and “[a]ll of [the CIO’s investment] decisions are made on a

very long‐term basis . . . to keep the Company effectively balanced from a risk

standpoint.” J.A. 37–38. Similarly, Dimon characterized the mounting publicity

over the CIO’s losses as “a complete tempest in a teapot.” J.A. 39.

But on May 10, 2012, JPMorgan was forced to reveal to investors the scale

of the CIO’s losses. J.A. 40. Dimon disclosed, for the first time, that JPMorgan had

modified its VaR model to minimize the scale of the risks taken by the CIO.

Dimon acknowledged that the CIO’s investments had been “flawed, complex,

poorly reviewed, poorly executed, and poorly monitored.” J.A. 41. After all the

dust settled, JPMorgan divulged that its total losses from the CIO exceeded $6.25

billion. J.A. 42. The debacle prompted a number of regulatory and Congressional

investigations into JPMorgan’s inadequate oversight of the CIO. J.A. 45–49.

7

B. Espinoza’s Demand and the Board’s Investigation

On May 23, 2012, Espinoza, a shareholder of JPMorgan, sent a letter to the

JPMorgan Board of Directors demanding that the Board investigate the London

Whale debacle. J.A. 51. This demand asked the Board to investigate (1) the failure

of JPMorgan’s risk‐management policies, (2) the dissemination of false or

misleading information about the scandal, and (3) the extent to which JPMorgan

had repurchased stock at inflated prices due to the failure to disclose the losses.

J.A. 69. Espinoza also demanded that, following the investigation, JPMorgan sue

the responsible individuals and claw back previously‐awarded salary and

bonuses. J.A. 69–70. Espinoza also demanded that JPMorgan improve corporate

governance and implement better risk controls. J.A. 70.

In response to Espinoza’s demand, which was joined by similar demands

from other JPMorgan shareholders, the JPMorgan Board established a “Review

Committee” composed of Defendants‐Appellees Laban Jackson, Jr., Lee

Raymond, and William Weldon, all members of the Board. J.A. 52–53. This

committee would oversee JPMorgan’s internal “Management Task Force,” which

had been assembled to investigate the London Whale debacle, and consider what

8 actions, if any, JPMorgan should take in response. J.A. 53. The task force was led

by Defendant‐Appellee Michael Cavanagh. J.A. 54.

The Board rejected Espinoza’s demand by letter dated February 5, 2013. J.A.

83–86. The letter outlined the Review Committee and task force’s extensive

investigation, which included (1) 22 interviews of current and former JPMorgan

employees, (2) a review of roughly 300,000 documents, (3) meetings with

regulators, (4) an analysis of relevant news reports, and (5) a survey of industry

best practices. J.A. 83–84. The Board stated that, in its judgment, further litigation

was not in the best interests of JPMorgan. J.A. 86. In support of this conclusion,

the letter identified various remedial measures that had already been taken,

including a revamp of the CIO leadership and mandate, improved risk controls,

reduced salary for certain senior management and CIO personnel, clawbacks of

previously awarded bonuses, and the departure or reassignment of certain

individuals involved in the debacle. J.A. 85. The Board also cited various factors

that it weighed in deciding to not pursue litigation, including the cost of

litigation, the low likelihood of success, the cost of bogging employees down in

lawsuits, and the effect on employee morale. J.A. 85–86.

9

Espinoza then filed this lawsuit, arguing that his demand had been

wrongfully refused. On March 31, 2014, the district court dismissed the complaint

for failure to state a claim because the complaint did not show that the Board had

failed to exercise appropriate business judgment in rejecting the demand. See

Espinoza v. Dimon, No. 13‐cv‐2358,

, at *7 (S.D.N.Y. Mar. 31,

2014). Although Espinoza asked for leave to amend if his complaint were

dismissed, the district court did not grant leave to amend and instead entered

judgment for the defendants immediately. See id.; Special App. 12–13.

LEGAL FRAMEWORK

I. Derivative Lawsuits

“The derivative form of action permits an individual shareholder to bring

‘suit to enforce a corporate cause of action against officers, directors, and third

parties.’” Kamen v. Kemper Fin. Servs., Inc.,

(1991) (quoting Ross v.

Bernhard,

(1970)) (emphasis omitted). “Devised as a suit in

equity, the purpose of the derivative action [is] to place in the hands of the

individual shareholder a means to protect the interests of the corporation from

10 the misfeasance and malfeasance of ‘faithless directors and managers.’”

(quoting Cohen v. Beneficial Loan Corp.,

(1949)).

“[A] shareholder seeking to assert a claim on behalf of the corporation must

first exhaust intracorporate remedies by making a demand on the directors to

obtain the action desired.” Scalisi v. Fund Asset Mgmt., L.P.,

(2d

Cir. 2004) (internal quotation marks omitted). If the board refuses the

shareholder’s demand, the derivative suit may proceed only if the shareholder

shows that the board’s refusal was “wrongful.” Abramowitz v. Posner,

(2d Cir. 1982). Accordingly, Rule 23.1 of the Federal Rules of Civil

Procedure requires a complaint in a derivative action to “state with particularity

. . . 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

. . . the reasons for not obtaining the action or not making the effort.” Fed. R. Civ.

P. 23.1(b)(3). Although Rule 23.1 sets forth the pleading standard for federal court,

the substance of the demand requirement is a function of state law—here,

Delaware law. See RCM Sec. Fund, Inc. v. Stanton,

, 1326 (2d Cir.

1991).

11

Under Delaware law, these allegations of wrongful refusal are reviewed

under the business‐judgment rule, which creates “a presumption that in making a

business decision 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,

(Del. 1984), overruled on other

grounds by Brehm v. Eisner,

(Del. 2000). Importantly, “[t]he ultimate

conclusion of the [board] . . . is not subject to judicial review.” Spiegel v. Buntrock,

(Del. 1990) (ellipsis in original) (quoting Zapata Corp. v.

Maldonado,

(Del. 1981)). Instead, when evaluating wrongful

refusal, “[t]he issues are solely the good faith and the reasonableness of the

committee’s investigation.”

“[F]ew, if any, plaintiffs surmount [the] obstacle”

of rebutting the presumption created by the business‐judgment rule and showing

that a demand was wrongfully refused. RCM Sec. Fund, Inc., 928 F.2d at 1328.

II. Standard of Review

Ordinarily, we review dismissals de novo. See, e.g., Muto v. CBS Corp.,

(2d Cir. 2012). But traditionally, there has been an exception to this

general rule for derivative actions. In our Circuit, a line of cases dating back more

12 than three decades has “held that determination of the sufficiency of allegations

[under Rule 23.1] depends on the circumstances of the individual case and is

within the discretion of the district court . . . [and] [c]onsequently, our standard of

review is abuse of discretion.” Kaster v. Modification Sys., Inc.,

, 1018

(2d Cir. 1984); see also Lewis v. Graves,

(2d Cir. 1983) (“[T]he

decision as to whether a plaintiff’s allegations of futility are sufficient to excuse

demand depends on the particular facts of each case and lies within the discretion

of the district court.”); Elfenbein v. Gulf & W. Indus., Inc.,

, 450–51 (2d

Cir. 1978) (per curiam). The holding of these older cases has been reiterated

several times by more recent decisions. See Halebian v. Berv,

(2d

Cir. 2009); Scalisi,

.

Over the past few years, however, numerous courts have expressed doubts

about the wisdom of reviewing Rule 23.1 dismissals for abuse of discretion rather

than de novo. Seeing no reason to treat derivative actions differently than any

other dismissed case, the First and Seventh Circuits recently adopted a de novo

standard. See Unión de Empleados de Muelles de Puerto Rico PRSSA Welfare Plan v.

13

UBS Fin. Servs. Inc. of Puerto Rico,

(1st Cir. 2013)3; Westmoreland

Cnty. Emp. Ret. Sys. v. Parkinson,

, 724–25 (7th Cir. 2013). Judges in the

Ninth and District of Columbia Circuits, although bound to abuse‐of‐discretion

review by their precedents, have both questioned the wisdom of deferential

review in this context. See Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust ex

rel. Fed. Nat’l Mortg. Ass’n v. Raines,

, 783 n.2 (D.C. Cir. 2008)

(Kavanaugh, J.) (“We tend to agree with plaintiffs that an abuse‐of‐discretion

standard may not be logical in this kind of case . . . because the question whether

demand is excused turns on the sufficiency of the complaint’s allegations; and the

legal sufficiency of a complaint’s allegations is a question of law we typically

review de novo.”); Rosenbloom v. Pyott,

, 1159–60 (9th Cir. 2014)

(Reinhardt, J., specially concurring). The Delaware Supreme Court, known for its

corporate law jurisprudence, expressly discarded abuse‐of‐discretion review of

dismissals under the substantively identical Delaware Chancery Court Rule 23.1.

3 The Supreme Court granted certiorari in Unión de Empleados to resolve the circuit split over the proper standard of review, see

(2013), but dismissed the case after the parties settled, see

(2013).

14 See Brehm, 746 A.2d at 253–54 (Del. 2000).4 Last but not least, several decisions in

our Circuit have voiced puzzlement over the abuse‐of‐discretion holdings of

Kaster, Lewis, and Elfenbein. See Scalisi,

n.6; see also Gamoran v.

Neuberger Berman LLC,

(2d Cir. 2013); Kautz v. Sugarman,

(2d Cir. 2011).

We are persuaded by the reasoning of those courts that have chosen to

review these dismissals de novo. In reviewing the dismissal of a derivative claim,

an appellate court performs exactly the same task as when reviewing the

dismissal of any other action: the court reads the facts alleged in the complaint,

assumes the truth of those facts, and decides whether those facts state a claim

under the applicable legal standard. No evidence is considered, no credibility

determinations are made, and none of the other usual justifications for deferring

to a district court are in play. Or, as the Delaware Supreme Court put it in Brehm:

The nature of our analysis of a complaint in a derivative suit is the same as that applied by the [lower court] in making its decision in the first instance[:] . . . this Court[] is merely reading the English language of a pleading and applying to that pleading statutes, case

4 Following Delaware’s Brehm decision, several other state courts have also endorsed de novo review of dismissals of derivative actions. See, e.g., In re PSE & G S’holder Litig.,

(N.J. 2002); Harhen v. Brown,

(Mass. 2000).

15

law and Rule 23.1 requirements. To that extent, our scope of review is analogous to that accorded a ruling under Rule 12(b)(6).

746 A.2d at 253–54 (footnotes omitted)5; see also Pierre N. Leval, Judging Under the

Constitution: Dicta About Dicta,

, 1273 (2006) (explaining that

our abuse‐of‐discretion precedents are “surely wrong” because “[i]t cannot be a

matter of a district judge’s discretion whether a complaint is legally sufficient to

state a claim”).

And while it is surely true that, as the defendants point out in their brief,

the sufficiency of a complaint’s demand allegations will “depend[] on the

particular facts of each case,” Lewis,

, that alone is not enough to

justify deferential review. Many other legal questions turn on the specific context

of a given case, and yet they remain purely legal questions subject to de novo

review. For example, when a district court dismisses a fraud claim for lacking the

particularized allegations required by Fed. R. Civ. P. 9(b), we review that

dismissal de novo even though the adequacy of particularized allegations under

Rule 9(b) is just as case‐ and context‐specific as the adequacy of particularized

5 Because so many derivative actions arise under Delaware law, we pay special heed to the Delaware Supreme Court’s decision in Brehm. By aligning our standard of review with the standard used by the Delaware appellate courts, we minimize any “anomalies resulting from separate federal and state demand requirements.” RCM Sec. Fund, Inc., 928 F.2d at 1329.

16 demand allegations under Rule 23.1. See, e.g., S.Q.K.F.C., Inc. v. Bell Atl. TriCon

Leasing Corp.,

(2d Cir. 1996).

Accordingly, we discard the deferential standard articulated by Kaster,

Lewis, and Elfenbein, and hold that dismissals under Rule 23.1 are reviewed de

novo.6 In reaching this conclusion, we further note that the defendants conceded

at oral argument that, were we writing on a blank slate, it would make sense for

dismissals under Rule 23.1 to be reviewed de novo.7

DISCUSSION

At its heart, this suit challenges the scope of JPMorgan’s investigation into

the London Whale debacle. Espinoza’s demand letter asked the JPMorgan Board

to investigate and take action based on two related facets of the London Whale

fiasco: (1) the underlying trading losses, which cost JPMorgan billions, and (2) the

alleged dissemination of misleading statements by Dimon and others. Espinoza

concedes that the Board adequately investigated the underlying trading losses,

6 As already noted, this opinion has been circulated to all the judges of this Court prior to filing.

7 See Appellee Oral Arg. at 1:13:08‐17 (“Candidly, if I was examining the question from first principles as your honor’s question suggests I would apply a de novo standard of review . . . .”).

17

and although he disagrees with the Board’s decision not to take more aggressive

action against those responsible, he recognizes, as he must, that Delaware law

protects the Board’s decision so long as it was based on an adequate investigation.

But Espinoza does not concede that the Board adequately investigated the

misleading statements. Both Espinoza’s demand letter and his complaint attack

public statements that minimized the scale of the London Whale losses, placing

special focus on Dimon’s statement in April 2012 that the media’s attention to the

losses was “a complete tempest in a teapot.” J.A. 39. Espinoza alleges that these

misstatements cost JPMorgan dearly, both by exposing JPMorgan to litigation and

regulatory liability and by inflating the JPMorgan share price at a time when the

corporation was repurchasing stock. Accordingly, Espinoza’s demand letter

requested that the Board “determine which Company employees, officers, and/or

directors, current or former, were responsible for dissemination of the materially

false/misleading statements and omissions regarding the risk exposure.” J.A. 69.

Despite this demand, Espinoza contends that the Review Committee and

task force’s investigation focused solely on the substantive trading losses, rather

than the misleading statements about those losses. For example, the complaint

18 alleges that “the Task Force did not investigate the improper statements discussed

herein, which masked the CIO’s troubled trading position and mounting losses

from regulators and investors.” J.A. 54; see also J.A. 56–57 (“[T]he Review

Committee’s investigation was limited in its scope. . . . [T]he Review Committee

never even evaluated potential liability for certain of the defendants’ false and

misleading statements.”). Consistent with this alleged failure to investigate the

misstatements, the Board’s response to Espinoza’s demand letter makes no

mention of the misstatements, and in fact characterizes the demand as solely

“relating to the losses suffered by the Company’s Chief Investment Office.” J.A.

83.

Based on these allegations, Espinoza contends that the Board’s decision to

not go after Dimon and others is not entitled to the protection of the business

judgment rule. Put simply, if the Board never investigated the misstatements,

then there was never any exercise of “judgment” that could be presumed

reasonable. See Rich ex rel. Fuqi Int’l, Inc. v. Yu Kwai Chong,

(Del.

Ch. 2013) (“[T]he business judgment rule has no role where directors have either

abdicated their functions, or absent a conscious decision, failed to act.” (internal

19

quotation marks omitted)). As such, Espinoza urges that the Board’s decision to

not pursue action against Dimon or others was, contrary to the conclusion

reached by the district court, unprotected by the business‐judgment rule.

The district court rejected this argument, reasoning that “[n]either the

Review Committee nor the Task Force was obligated to release a report that

expressly addresses each and every issue raise[d] by [the] Plaintiff and the other

shareholders who made demands on the Board.” Espinoza, ,

, at

*6. Accordingly, the district court concluded that Espinoza “has offered only

conclusory allegations that the Review Committee’s investigation, and the

Board’s subsequent refusal of Plaintiff’s demand, rise to the level of ‘gross

negligence.’” Id. at *7.

We respectfully part ways with the able district court’s analysis on this

point. As an initial matter, we do not believe that Espinoza’s allegations were

“conclusory.” To the contrary, the complaint asserts that the Board failed to

investigate the misstatements or evaluate the liability that resulted from the

misstatements. See J.A. 54, 56–57. Setting aside for the moment the question of

whether this allegation states a claim, it is more than the “mere[] legal

20 conclusion[]” that the Supreme Court rejected as “conclusory” in Bell Atlantic

Corp. v. Twombly,

(2007). Instead, Espinoza’s allegation has

concrete “factual content,” Ashcroft v. Iqbal,

(2009), namely that

the Board never investigated the misstatements. As with all cases, this allegation

may or may not turn out to be factually accurate, and it may or may not prove

legally sufficient, but we cannot say that Espinoza’s allegations were

“conclusory.”

Moreover, under our newly‐adopted de novo standard of review, we have

some concerns about whether Delaware law clearly addresses how to handle

Espinoza’s challenge to the scope of the Board’s investigation. The district court

rejected Espinoza’s argument about the scope of the Board’s investigation based

on a number of Delaware cases that stand for the proposition that boards have

broad discretion in choosing how to respond to a shareholder demand. In Levine

v. Smith,

(Del. 1991), overruled on other grounds by Brehm,

, for example, the Delaware Supreme Court rejected the contention that a

“Board’s failure to permit [the shareholder] to make an ‘oral presentation’ to the

Board evidenced a lack of due care or unreasonable conduct.” Levine explained

21

that although “a board of directors has a duty to act on an informed basis in

responding to a demand . . . , there is obviously no prescribed procedure that a

board must follow.”

Several Delaware intermediate appellate court cases also cited by the

district court expound further on this principle that a board has wide latitude

over how it chooses to investigate a demand. In Mount Moriah Cemetery ex rel. Dun

& Bradstreet Corp. v. Moritz,

, at *2 (Del. Ch. Apr. 4, 1991), for

example, the board refused a demand for legal action against executives that had

exposed the corporation to liability for deceptive sales practices. The plaintiff

challenged the board’s refusal as wrongful, complaining (1) that the board

“interviewed only those senior officers that plaintiff accused of wrongdoing and

their immediate subordinates,” (2) “did not contact a single customer, regional

manager, salesperson or ‘whistle blower,’” (3) “failed to review any documents

created prior to 1985,” and (4) did not “obtain expert assistance [or] investigat[e]

general industry sales practices.” Id. at *3. In an unpublished decision, the Moritz

court rejected these complaints as insufficient to overcome the presumption of the

business judgment rule, reasoning that:

22 In any investigation, the choice of people to interview or documents to review is one on which reasonable minds may differ. . . . Inevitably, there will be potential witnesses, documents and other leads that the investigator will decide not to pursue. That decision will not be second guessed by this Court on the showing made here. Plaintiff’s complaint establishes that the Special Committee’s investigation spanned more than six months. During that time, plaintiff was asked to identify potential witnesses and there was a fairly regular exchange of correspondence as well as several meetings between counsel for plaintiff and counsel for the Special Committee. The Special Committee interviewed the charged parties and their immediate subordinates, reviewed over 167,000 pages of documents and compiled enough information to produce a 163 page Report. . . . The foregoing description of the Special Committeeʹs investigation and the other information available to the D & B directors . . . thoroughly refutes any suggestion that the Special Committeeʹs investigation was grossly negligent.

Id. at *4.

Similarly, in another unpublished decision, Gatz v. Ponsoldt,

, at *5 (Del. Ch. Nov. 5, 2004), the court rejected allegations that a board’s

investigation was unreasonable because the board never issued a report following

its investigation, reasoning that “there is no authority that suggests that Delaware

law requires a formal ‘report’ as a matter of law . . . [a]nd the complaint contains

no allegations to suggest that the failure to draft a report in this circumstance

rendered the investigation inadequate.” Finally, in a third unpublished decision,

Baron v. Siff,

, at *3 (Del. Ch. Oct. 17, 1997), the court stated that a

23

board’s response to a demand need not “contain a point‐by‐point response to all

allegations in the demand letter.” See also Halpert Enters., Inc. v. Harrison,

, at *2 (2d Cir. Oct. 15, 2008) (summary order) (“An investigating board

generally is under no obligation to make use of any particular investigative

technique.”).

But while we agree that these cases stand for the proposition that courts

should not second‐guess the procedures that a board uses when investigating a

demand, that principle is of limited application here. The plaintiff does not

challenge the procedures that the board used when investigating the alleged

misstatements. Instead, Espinoza challenges the scope of the board’s investigation;

that is, he argues that that the board used no procedures, because the board did

not investigate the misstatements at all. Because the allegation in this case—an

allegation that we must accept as true—is that there was no investigation of the

misstatements at all, Espinoza has placed this case in a very different posture than

the cases cited by the district court, all of which involved investigations that

looked into the substance of the shareholder’s demand.

24 Unfortunately, Delaware law does not squarely address how to evaluate

challenges to the scope of an investigation where a shareholder demands that a

board look into two related yet distinct matters and the board investigates only

one of those matters before refusing the entire demand. None of the parties have

uncovered any on‐point cases, and our own independent review likewise came

up empty. At most, the general principles of Delaware corporate law provide

some very broad guidance in evaluating Espinoza’s “scope” argument. Delaware

law requires that “to invoke the [business‐judgment] rule’s protection[,] directors

have a duty to inform themselves, prior to making a business decision, of all

material information reasonably available to them.” Aronson,

.

But this broad rule does not tell us much about how to handle allegations

that the directors have fulfilled this duty with respect to certain aspects of the

plaintiff’s demand, but completely abdicated that same duty with respect to some

other aspect of the demand. As a matter of simple common sense, it seems

apparent that such allegations must sometimes amount to gross negligence. A

board that bypasses the core of a shareholder’s demand and instead focuses its

entire investigation on some minor secondary aspect of the demand has surely

25

failed “to inform [itself] . . . of all material information reasonably available to

them.”

On the other hand, a board that canvasses the waterfront of a demand,

but fails to touch on some minor allegation raised in a footnote of the

shareholder’s demand letter, cannot be said to have acted with gross negligence.

The allegations in this case lie somewhere between the two poles of this

spectrum. As the district court found, the Board thoroughly investigated the

trading losses, which were a major component of Espinoza’s demand.

Conversely, however, the Board ignored the misstatements, which were also a

major, albeit perhaps secondary, component of that same demand. This case thus

presents a classic line‐drawing exercise. The line between a reasonable and

unreasonable investigation—and thus between a properly and wrongfully‐

refused demand—must lie somewhere between a total failure to become

informed on the one hand, see Brehm,

, and on the other, a

thorough investigation that did not touch on every topic the shareholder might

have mentioned anywhere in her demand.

Drawing this line requires balancing the competing policy concerns that

animate the wrongful refusal doctrine in the first place. There must be some limit

26 to a board’s discretion about how to investigate a demand. Otherwise, a board

could always reject even a meritorious demand simply by circumscribing its

investigation to carefully avoid inquiring into any wrongdoing. By the same

token, however, the board’s autonomy and appropriate exercise of discretion

must be respected. Otherwise, a shareholder could misuse the demand

requirement by submitting a long list of complaints to the board without

separating the wheat from the chaff, and then, after the board concludes its

investigation, criticize the board for not undertaking a complete inquiry of every

matter raised in the demand. Allowing shareholders to undertake such ex post

maneuvers would be inconsistent with the “presumption that in making a

business decision 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,

. Wherever the line is drawn between

reasonable and unreasonable investigations, it must avoid the Scylla of unfettered

board discretion on the one hand, and the Charybdis of shareholder‐plaintiff

gamesmanship on the other.

27

But as a federal court sitting in diversity, we are not in a position to draw

such a line on behalf of Delaware. Although we normally strive to “carefully . . .

predict how the highest court of the forum state would resolve . . . uncertainty or

ambiguity” in state law, Travelers Ins. Co. v. 633 Third Assocs.,

(2d

Cir. 1994), here we are unable to predict with any confidence how the Delaware

courts would evaluate Espinoza’s allegations.

Accordingly, we turn to the Delaware Supreme Court to assist us in

resolving this case. See Del. R. S. Ct. 41(a)(ii) (“[A] Court of Appeals of the United

States . . . may, on motion or sua sponte, certify to this Court for decision a

question or questions of law . . . .”); Nguyen v. Holder,

(2d Cir.

2014) (“[W]here a rule reflects a judicially created doctrine that reflects policy

considerations over time . . ., certification is particularly compelling.” (internal

quotation marks omitted)). We hereby CERTIFY the following question to the

Delaware Supreme Court:

If a shareholder demands that a board of directors investigate both an underlying wrongdoing and subsequent misstatements by corporate officers about that wrongdoing, what factors should a court consider in deciding whether the board acted in a grossly

28 negligent fashion by focusing its investigation solely on the underlying wrongdoing?

“Consistent with our usual practice, we do not intend to limit the scope of the

[Delaware Supreme Court’s] analysis through the formulation of our question,

and we invite the [Court] to expand upon or alter this question as it should deem

appropriate.” Nguyen,

(internal quotation marks omitted). In

particular, in certifying the legal question concerning which factors are relevant to

determining whether a board’s investigation was grossly negligent, see Del. R. S.

Ct. 41(b)(i), we welcome any guidance the Delaware Supreme Court may wish to

offer on how those factors should be balanced in a case such as this one.

29