Clifford Elow v. Express Scripts Holding Co. and Amitkumar Khandhar v. Express Scripts Holding Co.

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
CLIFFORD ELOW, )
)
Plaintiff, )
)
v. ) C.A. No. 12721-VCMR
)
EXPRESS SCRIPTS HOLDING )
COMPANY, )
)
Defendant. )
_______________________________ )
AMITKUMAR KHANDHAR, )
)
Plaintiff, ) C.A. No. 12734-VCMR
)
v. )
)
EXPRESS SCRIPTS HOLDING )
COMPANY, )
)
Defendant. )
MEMORANDUM OPINION
Date Submitted: April 26, 2017
Date Decided: May 31, 2017
Peter B. Andrews, Craig J. Springer, and David M. Sborz, ANDREWS &
SPRINGER, LLC, Wilmington, Delaware; Jeffrey M. Norton and Roger
A. Sachar Jr., NEWMAN FERRARA LLP, New York, New York;
Attorneys for Plaintiff Clifford Elow.
Peter B. Andrews, Craig J. Springer, and David M. Sborz, ANDREWS &
SPRINGER, LLC, Wilmington, Delaware; Melinda A. Nicholson and
Michael R. Robinson, KAHN SWICK & FOTI, LLC, Madisonville,
Louisiana; Attorneys for Plaintiff Amitkumar Khandhar.
Paul J. Lockwood and Jenness E. Parker, SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP, Wilmington, Delaware; Jay B. Kasner and
Scott D. Musoff, SKADDEN, ARPS, SLATE, MEAGHER & FLOM
LLP, New York, New York; Attorneys for Defendant.
MONTGOMERY-REEVES, Vice Chancellor.
2
This case involves two demands to inspect the books and records of a
pharmacy benefit management company. The plaintiffs seek numerous books
and records to investigate potential mismanagement based on pleadings in
other legal actions involving the defendant company and public statements
made by the company’s management. The defendant company argues that
one of the plaintiff’s demands is improper and does not meet the form and
manner requirements of the statute. The defendant further argues that both
demands have an improper purpose and lack a credible basis to infer
wrongdoing. Defendant also challenges the broad scope of the inspection
demands.
This memorandum opinion contains my findings and conclusions
following a one-day trial. For the reasons discussed herein, I find that one
plaintiff’s demand does not meet the form and manner requirements;
therefore, he is not entitled to inspection. The other plaintiff’s demand meets
the form and manner requirements, states a proper purpose, and entitles him
to inspect all books and records necessary and sufficient to investigate
potential managerial wrongdoing.
3
I. BACKGROUND
These are my findings of fact after a one-day trial based on the parties’
stipulations and 74 exhibits. I accord the evidence the weight and credibility
I find it deserves.1
A. The Parties and Relevant Non-Parties
Plaintiff Clifford Elow has been a stockholder of Express Scripts
Holding Company (“Express Scripts” or the “Company”) since April 2012.2
Plaintiff Amitkumar Khandhar also purports to own Express Scripts stock.
Defendant Express Scripts is a Delaware corporation headquartered in
St. Louis, Missouri. Express Scripts provides pharmacy benefit management
(“PBM”) services. David Queller is the Senior Vice President of Sales and
Account Management for Express Scripts. George Paz is the former
Chairman and Chief Executive Officer of Express Scripts. Tim Wentworth is
President of Express Scripts.
1
After being identified initially, individuals are referenced herein by their
surnames without regard to formal titles such as “Dr.” No disrespect is
intended. Exhibits are cited as “JX #,” and facts drawn from the parties’ Joint
Pre-Trial Stipulation and Order are cited as “PTO ¶ #.” Unless otherwise
indicated, citations to the parties’ briefs are to post-trial briefs.
2
PTO ¶ 2.
4
Non-party Anthem, Inc. (“Anthem”), previously WellPoint, Inc.
(“WellPoint”), is Express Scripts’s largest commercial client. Non-party
Express Scripts, Inc. (“ESI”) is a wholly-owned subsidiary of Express Scripts.
B. The Anthem Relationship
In 2009, Express Scripts entered into a ten-year contract with Anthem
to provide PBM services to certain Anthem health plans. Anthem is a large
client for ESI in the PBM services space. Revenues from the contract
represented approximately 12.2%, 14%, 16.6%, 17%, and 18% of Express
Scripts’s consolidated revenue for the years 2013, 2014, 2015, 2016, and the
three months ended March 31, 2017, respectively. Anthem’s contribution to
the Company’s profitability is expected to “continue to increase . . . as the
contract nears its termination in 2019.”3
Section 3.1(a) of the Anthem contract requires ESI to “perform services
under the Agreement ‘in a prudent and expert manner in accordance with this
Agreement and all Laws.’”4 The agreement also creates a “periodic pricing
review” procedure, which gives Anthem the ability to propose adjustments to
3
Letter to Vice Chancellor Montgomery-Reeves Ex. B, at 27 (April 26, 2017)
(Express Scripts Form 10-Q for Quarter ended March 31, 2017) (hereinafter
“Letter”); JX 44, at 72.
4
JX 22, ¶ 6.
5
the pricing schedule every three years. 5 Section 5.6 of the agreement
provides:
[Anthem] or a third party consultant retained by
Anthem will conduct a market analysis every three
(3) years during the Term of this Agreement to
ensure that [Anthem] is receiving competitive
benchmark pricing. In the event [Anthem] or its
third party consultant determines that such pricing
terms are not competitive, [Anthem] shall have the
ability to propose renegotiated pricing terms to
[ESI] and [Anthem] and [ESI] agrees to negotiate in
good faith over the proposed new pricing terms.
Notwithstanding the foregoing, to be effective any
new pricing must be agreed to by [ESI] in writing.6
In 2012, ESI and Anthem reached an agreement after Anthem’s first periodic
pricing review.7
In 2015, Express Scripts and Anthem started the same negotiation
process in anticipation of the 2015 pricing review.8 Aware of this process
through comments made by Anthem, analysts began asking Express Scripts
questions about the Anthem contract and relationship.9 On February 25, 2015,
during an investor call, Queller stated that Express Scripts had
5
PTO ¶ 5.
6
Id.
7
JX 37, at 4.
8
Id.; JX 78, at 5.
9
JX 37, at 4; JX 25, ¶ 192.
6
a great relationship with Anthem. We’re right now
working with them very closely to help them
prepare for their 1/1/16 business . . . [o]ur teams
work together closely each and every day. The
relationship is very, very solid. . . . we don’t think
that it’s appropriate to talk out in public about our
relationship from that regard. And we look forward
to having them as a client through the end of the
contract term which is at the end of 2019.10
On July 29, 2015, during a second-quarter earnings call, Wentworth
stated that Express Scripts continued “close collaboration” with its clients and
that “performance to date and the positive feedback we continue to receive
gives us confidence that we will have strong retention across the board.”11
During the third-quarter earnings call on October 28, 2015, Wentworth stated
that the Company’s “strong client relationship positions us well for 2016” and
“based on our results this year, we are confident about next year’s selling and
retention season.”12 Paz, the Chairman of the board at that time, was present
on all of the relevant calls.13
10
JX 75, at 2; JX 33, at 33.
11
JX 75, at 2; JX 35, at 4.
12
JX 75, at 3; JX 36, at 5.
13
JX 33, at 2; JX 35, at 2; JX 36, at 2.
7
C. Litigation Ensues
The second renegotiation did not go as well as the first. On March 21,
2016, Anthem initiated litigation in the United States District Court for the
Southern District of New York, alleging that ESI had breached the agreement
(the “Anthem Action”).14 The Anthem complaint alleges that ESI acted in
bad faith and materially breached Section 5.6 by (1) delaying the repricing
process for months; (2) refusing to negotiate over Anthem’s pricing proposals
for competitive benchmark pricing or in excess of the competitive benchmark
pricing; (3) repudiating its contractual obligations to reprice the contract to
ensure Anthem’s receipt of competitive benchmark pricing; and (4) failing to
offer “anything remotely close to competitive benchmark pricing as
required.” 15 The complaint also alleges ESI breached Section 3.1(a)’s
requirement that ESI perform its operational duties in a “prudent and expert
manner” due to its systems defects, consistent failure to devote sufficient
resources to its work, inadequate training of its personnel, extremely high
employee turnover, and lack of required expertise.16 These breaches, Anthem
contends, have placed it at significant risk of enforcement actions by the
14
PTO ¶ 6; JX 22.
15
JX 22, ¶ 4.
16
Id. ¶ 6.
8
Centers for Medicare & Medicaid Services (“CMS”) and caused hundreds of
millions of dollars in damages. 17 Anthem purportedly notified ESI of its
breaches of the contract on February 16, 2015 and April 1, 2015.18
On June 13, 2016, ESI answered the complaint and asserted
counterclaims. 19 ESI admits that it received the notices of breach from
Anthem and “respectfully refers the Court to the document[s] referred to
therein for an accurate description of [their] terms.” 20 ESI contends that
Anthem agreed to a higher contract price over the term of the contract in
exchange for more up-front cash and now attempts to re-write the
agreement.21 ESI avers that it is not obligated to accept Anthem’s proposals
of new pricing terms every three years; instead, it must negotiate in good faith,
which it did when it made five counterproposals before March 2016.22 And
Anthem, not ESI, failed to negotiate in good faith by (1) taking aggressive
positions in 2014 (before the ability to trigger the periodic pricing review) that
17
Id.
18
JX 54, ¶ 7; JX 22, ¶ 24; JX 25, ¶¶ 45, 74.
19
JX 25.
20
Id. ¶¶ 45, 74.
21
Id. ¶¶ 2-3.
22
Id. ¶¶ 4-5.
9
were incompatible with the plain terms of the agreement and (2) demanding
approximately $12-13 billion—$3 billion a year over the next four years of
the contract—from ESI, while Anthem employees were stating publicly that
they expected to receive less than $3 billion total.23
ESI also contends that any “operational breaches” are not supported by
the facts because Anthem’s Medicare “star rating” with CMS has improved
over this period, and Anthem has received no sanctions or penalties (in
contrast with its competitors).24 ESI asserts that any operational issues were
isolated. And those operational issues resulted from the massive volume of
Anthem’s transactions and the complex nature of Anthem’s plans and
requirements.25 ESI points to the lack of allegations regarding any missed ESI
“performance guarantees,” which require that ESI deliver a certain level of
performance and impose a monetary penalty for anything less.26
On May 4, 2016, a class action lawsuit was filed in the same court (the
“Securities Action”). It alleges that Express Scripts violated Federal securities
laws by telling investors the Anthem relationship was strong and accounting
23
Id. ¶¶ 5-6, 8, 191-96.
24
Id. ¶¶ 12-13.
25
Id.
26
Id. ¶¶ 14-15.
10
for the Anthem agreement’s renewal in publicly-filed financial statements.
The complaint further alleges that during this time, Express Scripts’s
management knew that the 2012-2013 pricing negotiations severely damaged
the parties’ relationship, that the Company had received two formal notices of
breach, and that Anthem demanded a $15 billion pricing concession.27 The
complaint further alleges that the relationship continued to deteriorate
throughout 2015, but the parties could not resolve their dispute. 28 The
investors only learned of these issues in January 2016, when Anthem publicly
threatened to terminate its contract with Express Scripts.29
D. Procedural History
On May 18, 2016, Elow sent a books and records inspection demand to
ESI. 30 On July 28, 2016, Khandhar sent a books and records inspection
demand to Express Scripts.31 On August 9, 2016, Express Scripts rejected
Khandhar’s demand.32 On August 12, 2016, Elow filed a complaint pursuant
27
PTO ¶ 7; JX 45; JX 54.
28
JX 54 ¶ 12.
29
Id. ¶ 13.
30
PTO ¶ 8; JX 5.
31
PTO ¶ 9; JX 13.
32
PTO ¶ 10.
11
to Section 220 against ESI.33 On August 17, 2016, Khandhar responded by
letter.34 On August 24, 2016, Elow voluntarily dismissed his complaint, and
on August 25, 2016, Elow made demand on Express Scripts to inspect its
books and records.35 On September 1, 2016, Express Scripts denied Elow’s
demand, and Elow filed the complaint in this action on September 6, 2016.36
On September 7, 2016, Express Scripts again rejected Khandhar’s demand,
and Khandhar filed his complaint in this action on September 8, 2016.37 No
books or records have been produced by Express Scripts in response to
Khandhar or Elow’s demands. On October 4, 2016, this Court consolidated
the actions for pre-trial purposes.38 This Court held trial in both actions on
March 3, 2017. On April 26, 2017, Elow and Khandhar submitted a letter to
the Court attaching the Company’s updated financial filings that were relevant
to the assertions in this action.
33
Id. ¶ 14.
34
Id.
35
Id. ¶¶ 14-15.
36
Id. ¶¶ 16, 18.
37
Id. ¶¶ 12, 19.
38
Id. ¶ 20.
12
II. ANALYSIS
Section 220 of Delaware General Corporation Law provides
stockholders of a Delaware Corporation with the right to inspect the books
and records of a Company for any proper purpose.39 A proper purpose for a
demand to inspect books and records “shall mean a purpose reasonably related
to such person’s interest as a stockholder.”40
Where the stockholder seeks to inspect the
corporation’s books and records, other than its stock
ledger or list of stockholders, such stockholder shall
first establish that:
(1) Such stockholder is a stockholder;
(2) Such stockholder has complied with this section
respecting the form and manner of making demand
for inspection of such documents; and
(3) The inspection such stockholder seeks is for a
proper purpose.41
A. Khandhar’s Demand Does Not Satisfy Section 220’s Form
and Manner Requirements
As to the form and manner requirements of Section 220, “[t]he statute
requires the documentary evidence [of beneficial ownership of stock] to
39
8 Del. C. § 220.
40
Id. § 220(b).
41
Id. § 220(c).
13
accompany the demand for inspection.” 42 “Delaware courts require strict
adherence to the section 220 inspection demand procedural requirements.”43
These requirements “protect ‘corporations from improper demands by
requiring that evidence of beneficial ownership be both furnished with the
demand and provided under oath.’”44 “The purpose of § 220 is not served if
the shareholder supplies a document that does not actually evidence that she
is the beneficial owner of the company’s stock on the relevant date.”45
In Central Laborers Pension Fund v. News Corp., the statute’s
requirements were not followed when the demand did not include evidence of
beneficial ownership, among other deficiencies. 46 The Delaware Supreme
Court held that the plaintiff’s subsequent submission of an account statement
as proof of beneficial ownership of the defendant corporation’s stock did not
meet the procedural requirements for an inspection demand.47 This is because
42
Cent. Laborers Pension Fund v. News Corp., 45 A.3d 139, 146 (Del. 2012).
43
Id. at 145.
44
Id. (quoting Seinfeld v. Verizon Commc’ns, Inc., 873 A.2d 316, 317 (Del. Ch.
2005)) (emphasis in original).
45
Smith v. Horizon Lines, Inc., 2009 WL 2913887, at *2 (Del. Ch. Aug. 31,
2009).
46
45 A.3d at 146.
47
Id.14
the demand must be in “proper form before litigation is initiated.” 48 The
“right of the corporation to receive and consider a demand” is defeated and
“an integral part of the statute rendered nugatory when . . . an effort to comply
with the requirements of form is made during the course of the litigation
without delivering new form of demand.”49
Khandhar’s demand does not contain adequate proof of his ownership
of Express Script stock. His name is not included anywhere on the attached
stock purchase plan document—the purported evidence of his continued stock
ownership. 50 Khandhar does not argue that he has made a new form of
demand. Thus, Khandhar’s demand is improper because it did not comply
with the form and manner requirements before the litigation was initiated, and
Khandhar may not inspect the books and records sought in this action.
B. Elow’s Demand States a Proper Purpose
Express Scripts raises no challenges to Elow’s status as a stockholder
or to the form and manner of his inspection demand; thus, I turn to whether
Elow has stated a proper purpose under Section 220. Elow’s demand states
that he seeks inspection of books and records in order to:
48
Id. (emphasis in original).
49
Id.50
JX 13.
15
(1) determin[e] whether the Company’s officers
and/or directors have properly discharged their
fiduciary duties to the Company; (2) obtain
information to determine whether or not the
Company’s officers and/or directors are
independent and disinterested, and whether they
have acted in good faith; and (3) take any
appropriate action in the event that any wrongdoing
is revealed, including instituting a derivate suit with
allegations that a pre-litigation demand on the board
of directors (the “Board”) of Express Scripts should
be excused, and (if such suit is filed) to provide the
court with particularized allegations from which to
evaluate the demand-excused issue.51
“[A] stockholder has the burden of proof to demonstrate a proper
purpose by a preponderance of the evidence.”52 “It is well-established that a
stockholder’s desire to investigate wrongdoing or mismanagement is a ‘proper
purpose.’”53 “A stockholder is ‘not required to prove by a preponderance of
the evidence that waste and mismanagement are actually occurring.’”54 The
stockholder must only show “some evidence” to establish “a credible basis
from which the Court of Chancery can infer there is possible mismanagement
51
JX 75, at 1.
52
Seinfeld v. Verizon Commc’ns, Inc., 909 A.2d 117, 121 (Del. 2006).
53
Id. (quoting Nodana v. Petroleum Corp. v. State ex rel. Brennan, 123 A.2d
243, 246 (Del. 1956)).
54
Id. at 123 (quoting Thomas & Betts Corp. v. Leviton Mfg. Co. Inc., 681 A.2d
1026, 1031 (Del. 1996)).
16
that would warrant further investigation.” 55 The “credible basis” standard
“sets the lowest possible burden of proof.”56 In deciding whether a credible
basis exists to infer mismanagement or wrongdoing, the “threshold may be
satisfied by a credible showing, through documents, logic, testimony or
otherwise, that there are legitimate issues of wrongdoing.”57 “The trial court
may rely on ‘circumstantial evidence,’” and “[h]earsay statements may be
considered, provided they are sufficiently reliable.”58
Elow seeks to investigate whether officers and directors breached their
fiduciary duties by (1) allowing ESI to breach its contractual obligations to
service Anthem’s customers in a prudent and expert manner and to engage in
good faith benchmark pricing negotiations; (2) failing to prevent ESI’s
breaches despite a known duty to act in the face of knowledge about the issues
55
Id. at 123; see also Melzer v. CNET Networks, Inc., 934 A.2d 912, 917 (Del.
Ch. 2007).
56
Seinfeld, 909 A.2d at 123.
57
Id. (quoting Sec. First Corp. v. U.S. Die Casting & Dev. Co., 687 A.2d 563,
568 (Del. 1997)) (internal quotation marks omitted).
58
Amalgamated Bank v. Yahoo! Inc., 132 A.3d 752, 778 (Del. Ch. 2016) (citing
Wal-Mart Stores, Inc. v. Ind. Elec. Workers Pension Tr. Fund IBEW, 95 A.3d
1264, 1273 (Del. 2014); Marmon v. Arbinet-Thexchange, Inc., 2004 WL
936512, at *4 (Del. Ch. Apr. 28, 2004); Thomas & Betts, 681 A.2d at 1032-
33; Skoglund v. Ormand Indus., Inc., 372 A.2d 204, 208-13 (Del. Ch. 1976)).
17
with Anthem; and (3) communicating dishonestly with the stockholders
regarding the Anthem contract and customer retention.59
In support of this claim, Elow points to the pleadings in the Anthem
Action, the Securities Action complaints, and public statements made by
Express Scripts.60 Elow argues that “it is irrelevant whether the allegations
will ultimately be proved true in a court of law;” the totality of the allegations
and public statements make wrongdoing plausible and, thus, establishes a
credible basis.61 Elow states that the Anthem allegations, coupled with ESI’s
59
Elow’s Opening Br. 31-32.
60
Id. at 33. Express Scripts argues that the Anthem complaint is inadmissible
hearsay. Express Scripts Opening Br. 34-36. Elow, however, is not relying
solely on the Anthem complaint’s allegations to prove that there is a credible
basis from which to infer a possible breach or mismanagement. Elow also
points to ESI’s own admissions in the pleadings and Express Scripts
management’s public statements to show there is a credible basis to infer that
a dispute regarding the Anthem contract occurred and that certain misleading
representations were made to the public regarding that relationship.
Additionally, in Thomas & Betts Corp. v. Leviton Mfg. Co., Inc., the
Delaware Supreme Court affirmed this Court’s consideration of hearsay
testimony and its ultimate decision to discredit that testimony as unworthy
of belief. 681 A.2d 1026, 1032 (Del. 1996). See also Amalgamated Bank v.
Yahoo! Inc., 132 A.3d 752, 778 (Del. Ch. 2016); Marmon v. Arbinet-
Thexchange, Inc., 2004 WL 936512, at *4 (Del. Ch. Apr. 28, 2004) (“In
[Thomas & Betts], the Supreme Court indicated that, had this Court found
the disputed testimony reliable, it could properly have considered the hearsay
testimony to determine whether there was a credible basis to infer that
mismanagement had occurred.”); Skoglund v. Ormund, Indus., Inc., 372 A.2d
204, 208-13 (Del. Ch. 1976)).
61
Elow’s Opening Br. 33-34. Express Scripts argues that the filing of a
complaint is not enough to support a “credible basis” from which to infer
wrongdoing. Express Scripts’s Opening Br. 37 (citing Graulich v. Dell Inc.,
18
own answer and counterclaims, create the inference that there were
“numerous problems with ESI’s administration of the Agreement” and its
“negotiation over the Agreement’s competitive benchmark pricing
provision.”62
Elow also asserts that ESI’s own admissions and contentions in the
Anthem Action are evidence that the Company’s representatives misled
investors about the relationship with Anthem.63 Specifically, Elow argues that
Express Scripts was telling the public that Express Scripts had “a great
relationship with Anthem,” that Express Scripts was “look[ing] forward to
having them as a client through the end of the contract term which is at the
end of 2019,” and that “[t]he relationship is very, very solid.”64 But, in reality,
Anthem already had served ESI with notices “detailing numerous operational
breaches of the Agreement” and had threatened to terminate the agreement if
the breaches were not cured.65
2011 WL 1843813, at *5, n.49 (Del. Ch. May 16, 2011)). Here, however,
Elow is not relying solely on the complaint to show a credible basis. Elow
also points to ESI’s own answer and counterclaims and the public statements
of Express Scripts’s management. See supra note 60.
62
Elow’s Answering Br. 6; JXS 22, 25-29.
63
Elow’s Answering Br. 6-7.
64
JX 75, at 2.
65
Elow’s Opening Br. 11.
19
By July 2015, Express Scripts communicated to the public that it was
in “close collaboration” with its clients and that “performance to date and the
positive feedback we continue to receive gives us confidence that we will have
strong retention across the board.”66 Express Scripts also represented that the
Company’s “strong client relationship positions us well for 2016,” and “based
on our results this year, we are confident about next year’s selling and
retention season.” 67 But these statements gave a false impression, Elow
argues, because Anthem (a customer that represented approximately $17
billion of Express Scripts’s $100 billion in annual revenue) had sent a second
notice of breach on April 1, 2015 and a demand for $12-13 billion in pricing
concessions over the next four years of the agreement.68
Defendant has made numerous arguments and presented evidence
challenging the merits of the underlying claims. But, at this stage, I cannot
analyze the strength of the merits of the potential underlying claims. Instead,
I must determine if the plaintiff has put forth “some evidence” to establish “a
credible basis from which the Court of Chancery can infer there is possible
66
JX 75, at 2.
67
Id. at 3.
68
Elow’s Opening Br. 13; JX 22, at ¶ 24; JX 25, at ¶ 45; Letter Ex. A, at 8; Ex.
B, at 27.
20
mismanagement that would warrant further investigation” through
“documents, logic, testimony or otherwise.”69 Elow has asked to investigate
a serious allegation that the largest client of the Company terminated its
contract because ESI refused to negotiate in good faith and did not work
adequately to cure the operational breaches. At the same time this relationship
was deteriorating by ESI’s own admissions, Express Scripts allegedly was
representing to the market that the relationship was strong, the contract would
continue, and the future with the client looked bright.70 I conclude that the
pleadings in the Anthem Action, coupled with the statements made by Express
Scripts’s management, are enough to meet the “lowest burden of proof” set
by Delaware law.71
Express Scripts also argues that these purposes are not in fact Elow’s
true purposes, but that they are sham purposes constructed by the lawyers to
maintain this action.72 Express Scripts does not point to any credible evidence
of such a scheme, and I do not find any merit to the argument that Elow should
69
Seinfeld v. Verizon Commc’ns, Inc., 909 A.2d 117, 123 (Del. 2006).
70
JX 25; JX 33; JX 75.
71
Seinfeld, 909 A.2d at 123.
72
Express Scripts’s Opening Br. 21-29; Express Scripts’s Answering Br. 11-
12.
21
be precluded from obtaining documents as a stockholder because his true
purpose is to maintain this action on behalf of his lawyers. Elow is within his
rights to rely on counsel’s advice in making a demand, prosecuting this action,
and determining next steps.73
C. The Document Requests Must Be Narrowly Tailored to
Elow’s Purpose
Because I conclude that Elow has shown a proper purpose for his
inspection, I now turn to the documents requested. In his demand, Elow seeks
the following documents from January 1, 2015 until the present:
1. Books and records created or dated during the
Relevant Period related to any proceedings of the
Express Scripts Board or a committee of the Board,
if those proceedings in any way relate to the
Company’s relationship with Anthem, or its
predecessor, WellPoint, Inc.
2. Books and records created or dated during the
Relevant Period related to any proceedings of the
Express Scripts Board or a committee of the Board,
if those proceedings in any way relate to the
Company’s use of C360 and/or Foundation 14.
73
Express Scripts also asserts that Elow does not have an ultimate use for these
documents while conceding that Elow’s demand suggests he will use the
documents to inform his decision of whether to pursue legal action. Express
Scripts’s Answering Br. 12-13; Oral Arg. Tr. 92. Express Scripts argues that
Elow’s subsequent testimony contradicts the demand letter because he states
he is merely “considering” derivative litigation as an option. Elow does not
explain how this is contradictory or why a stockholder would need to know
prior to an inspection whether he or she definitively will pursue litigation no
matter what the documents revealed.
22
3. Books and records created or dated during the
Relevant Period related to any proceedings of the
Express Scripts Board or a committee of the Board,
if those proceedings in any way relate to Super PA.
4. Books and records created or dated during the
Relevant Period related to any proceedings of the
Express Scripts Board or a committee of the Board,
if those proceedings in any way relate to the
submission of reports to CMS.
5. A copy of the Company’s Code of Ethics and/or
Code of Conduct, to the extent one exists.74
At trial, counsel for Elow stated that “books and records” included
communications, such as e-mails, of all of the board members relating to these
issues.75
“The burden of proof is always on the party seeking inspection to
establish that each category of the books and records requested is essential
and sufficient to the party’s stated purpose.”76 “It is the responsibility of the
trial court to tailor the inspection to the stockholder’s stated purpose.”77 “The
plaintiff can obtain books and records that ‘address the crux of the
74
JX 75, at 4.
75
Tr. 86.
76
Thomas & Betts Corp. v. Leviton Mfg. Co., 681 A.2d 1026, 1035 (Del. 1996).
77
Amalgamated Bank v. Yahoo! Inc., 132 A.3d 752, 787 (Del. Ch. 2016)
(quoting Sec. First Corp. v. U.S. Die Casting & Dev. Co., 687 A.2d 563, 569
(Del. 1997)).
23
shareholder’s purpose and if that information is unavailable from another
source.’”78
Here, Elow seeks a broad set of documents, essentially any director or
officer books or records, including communications, connected to any board
or committee proceedings relating to Anthem, C360, Foundation 14, Super
PA, or any submission of reports to CMS.79 Elow, however, has only shown
that board or committee packages (including agendas, minutes, or
presentations) relating to the Anthem relationship dated from January 1, 2015
until the present are essential for purposes of this Section 220 demand. This
necessarily includes documents regarding C360, Foundation 14, Super PA, or
submission of reports to CMS as they relate to the Anthem relationship. Elow
also may obtain the Company’s code of ethics or conduct. Elow is not entitled
to any documents about these products or topics if the documents are not
relevant to Anthem or Anthem’s use of the products. Elow has not
demonstrated that broader categories of documents or communications not
78
Id. at 788 (quoting Wal-Mart Stores, Inc. v. Ind. Elec. Workers Pension Tr.
Fund IBEW, 95 A.3d 1264, 1271 (Del. 2014)).
79
Elow’s Opening Br. 37-38; JX 75, at 4.
24
included in board packages are necessary. I condition the request upon the
parties’ negotiation of a reasonable confidentiality order.80
Express Scripts asks that any production be incorporated by reference
into any future derivative complaint. 81 Under Section 220(c) of the
DGCL, “the Court of Chancery ‘may, in its discretion, prescribe any
limitations or conditions with reference to the inspection, or award such other
or further relief as the Court may deem just and proper.’”82 “This court has
used conditions as part of its effort to ‘maintain a proper balance between the
rights of shareholders to obtain information based upon credible allegations
of corporation mismanagement and the rights of directors to manage the
business of the corporation without undue interference from stockholders.’”83
80
See Yahoo!, 132 A.3d at 796-97 (“[T]here is a presumption that the
production of books and records pursuant to section 220 should be
‘conditioned upon a reasonable confidentiality order.’”) (quoting 1 EDWARD
P. WELCH ET AL., FOLK ON THE DELAWARE GENERAL CORPORATION LAW §
220.06, at 7-238.1)) (internal quotation marks omitted).
81
Express Scripts’s Opening Br. 28-29.
82
Yahoo!, 132 A.3d at 796 (quoting 8 Del. C. § 220(c)).
83
Id. (quoting Seinfeld v. Verizon Commc'ns, Inc., 909 A.2d 117, 122 (Del.
2006)). “One common limitation is to condition production on the
stockholder entering into a confidentiality agreement.” Id. at 796-97 (citing
CM & M Gp., Inc. v. Carroll, 453 A.2d 788, 793–94 (Del. 1982)). “More
recently, the Delaware Supreme Court held that this court can condition
a Section 220 production on the plaintiff agreeing to file any subsequent
derivative action in a Delaware court.” Id. (citing United Techs. Corp. v.
Treppel, 109 A.3d 553, 558–59 (Del. 2014)).
25
In Yahoo!, this Court granted a request to incorporate any production
of documents into any subsequent derivative complaint because it “protects
the legitimate interests of both [the defendant] and the judiciary by ensuring
that any complaint that [the plaintiff] files will not be based on cherry-picked
documents.” 84 The Court analyzed this step as a logical extension of the
incorporation-by-reference doctrine that has been used to allow “a court to
consider documents that have been incorporated by reference in a complaint
when ruling on a motion to dismiss.” 85 The doctrine “permits a court to
review the actual document to ensure that the plaintiff has not misrepresented
its contents and that any inference the plaintiff seeks to have drawn is a
reasonable one” and “limits the ability of the plaintiff to take language out of
context, because the defendants can point the court to the entire document.”86
In support of its reasoning, the Court pointed to “an approach that Delaware
decisions have taken when ruling on motions to dismiss after plaintiffs have
84
Id. at 797 (citing Wal–Mart Stores, Inc. v. AIG Life Ins. Co., 860 A.2d 312,
320 (Del. 2004); In re Morton's Rest. Gp., Inc. S'holders Litig., 74 A.3d 656,
658 n.3 (Del. Ch. 2013); H–M Wexford LLC v. Encorp, Inc., 832 A.2d 129,
139 (Del. Ch. 2003)).
85
Id.86
Id. (citing In re General Motors (Hughes) S’holder Litig., 897 A.2d 162, 169-
70 (Del. 2006); In re Santa Fe Pac. Corp. S’holder Litig., 669 A.2d 59, 70
(Del. 1995)).
26
taken expedited discovery in support of preliminary injunction
applications.”87 For example, in the Morton’s case, then-Chancellor Strine
treated discovery material that plaintiffs obtained in connection with their
preliminary injunction application and relied on when formulating their
complaint as incorporated by reference in the complaint for purposes of the
Court’s decision on the motion to dismiss.88 The Yahoo! Court held that “[t]he
Incorporation Condition accomplishes the same result for the materials
generated by the pre-suit investigation that [plaintiff] is conducting using
Section 220.”89
The Court, however, warned that this does not change the pleading
standards or alter the inferences the Court must take in plaintiff’s favor in the
Rule 12(b)(6) and Rule 23.1 contexts, namely that all well-pled and
particularized factual allegations will be taken as true, respectively.90 “[I]f a
document or the circumstances support more than one possible inference, and
if the inference that the plaintiff seeks is reasonable, then the plaintiff receives
87
Id. at 798 (citing In re Gardner Denver, Inc., 2014 WL 715705, at *8 (Del.
Ch. Feb. 21, 2014; Morton's, 74 A.3d at 658 n.3; Simplexity, LLC v. Zeinfeld,
2013 WL 5702374, at *1 n.2 (Del. Ch. Oct. 17, 2013)).
88
Id. at 798-99 (citing Morton’s, 74 A.3d at 658 n.3).
89
Id. at 799.
90
Id. at 798.
27
the inference.”91 Further, this is not “an invitation for the defendants in a
future action to file an appendix containing the entire Section 220 production
in support of their motion to dismiss.”92 Instead, the plaintiff “can and should
file a complaint, if it chooses to do so, as if the Incorporation Condition had
not been imposed.”93 “Defense counsel must then use judgment and supply
the court only with the limited documents (if any) necessary to show that it
would not be reasonable to draw a particular inference on which the complaint
depends.”94 “In the end, the only effect of the Incorporation Condition will
be to ensure that the plaintiff cannot seize on a document, take it out of
context, and insist on an unreasonable inference that the court could not draw
if it considered related documents.”95 I follow that reasoning and apply the
incorporation-by-reference doctrine to this case.
III. CONCLUSION
For the reasons discussed above, I deny Khandhar’s demand to inspect
the books and records of Express Scripts and grant Elow’s demand subject to
91
Id.92
Id. at 799.
93
Id.94
Id.95
Id.28
a confidentiality order and the incorporation-by-reference doctrine. Parties
shall submit a conforming order within 10 days.
IT IS SO ORDERED.
29