In re TrueCar, Inc. Stockholder Derivative Litigation

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
)
IN RE TRUECAR, INC. ) CONSOL.
STOCKHOLDER DERIVATIVE LITIGATION ) C.A. No. 2019-0672-AGB
)
MEMORANDUM OPINION
Date Submitted: June 11, 2020
Date Decided: September 30, 2020
Thomas A. Uebler and Jeremy J. Riley, MCCOLLOM D’EMILIO SMITH
UEBLER LLC, Wilmington, Delaware; P. Bradford deLeeuw, DELEEUW LAW
LLC, Wilmington, Delaware; Melinda A. Nicholson, Nicolas Kravitz, and Eda
Ayrim Walker, KAHN SWICK & FOTI, LLC, New Orleans, Louisiana; Ashley R.
Rifkin and Steven R. Wedeking, ROBBINS LLP, San Diego, California; Jeffrey S.
Abraham and Michael J. Klein, ABRAHAM, FRUCHTER & TWERSKY, LLP,
New York, New York; Attorneys for Plaintiffs David Bryan, Subash D’Souza, and
Herbert Silverberg.
Shannon E. German, WILSON SONSINI GOODRICH & ROSATI, P.C.,
Wilmington, Delaware; Jerome F. Birn, Jr. and Catherine Moreno, WILSON
SONSINI GOODRICH & ROSATI, P.C., Palo Alto, California; Attorneys for
Defendants Abhishek Agrawal, Robert Buce, Christopher Claus, Steven Dietz,
Neeraj Gunsagar, Michael Guthrie, John Krafcik, Erin Lantz, John Mendel, Wesley
Nichols, Victor “Chip” Perry, John Pierantoni, Brian Skutta, Jeff Swart, and Ion
Yadigaroglu, and Nominal Defendant TrueCar, Inc.
Gregory P. Williams, Brock E. Czeschin, and Kevin M. Regan, RICHARDS,
LAYTON & FINGER, P.A., Wilmington, Delaware; Attorneys for Defendant
Neeraj Gunsagar.
Albert H. Manwaring, IV and Albert J. Carroll, MORRIS JAMES LLP, Wilmington,
Delaware; Brian Michael Lutz and Michael J. Kahn, GIBSON, DUNN &
CRUTCHER LLP, San Francisco, California; Attorneys for Defendants United
Services Automobile Association and USAA Property Holdings, Inc.
Jon E. Abramczyk and Ryan D. Stottmann, MORRIS, NICHOLS, ARSHT &
TUNNELL LLP, Wilmington, Delaware; Attorneys for Defendants Upfront II, L.P.,
Upfront III, L.P., Upfront II Investors, L.P., Upfront II Partners, L.P., Upfront III
Investors, L.P., Upfront III Partners, L.P., Capricorn AIP-Private Investment Fund
I, L.P., HIT Splitter, L.P., Capricorn Investment Group, LLC, and Carthage, L.P.
Jon E. Abramczyk and Ryan D. Stottmann, MORRIS, NICHOLS, ARSHT &
TUNNELL LLP, Wilmington, Delaware; Ralph C. Ferrara and Ann M. Ashton,
PROSKAUER ROSE LLP, Washington, District of Columbia; Julia D. Alonzo,
PROSKAUER ROSE LLP, New York, New York; Attorneys for Defendant Vulcan
Capital Growth Equity Management LLC.
BOUCHARD, Chancellor
TrueCar, Inc. operates a platform designed to connect consumers looking to
purchase a car with automobile dealers via the internet. Most of the consumers come
to TrueCar’s platform from its affinity partners. In November 2017, TrueCar
announced it had sustained a loss in the third quarter and was lowering its guidance.
During an earnings call the same day, management explained that TrueCar’s most
important affinity partner, USAA, recently launched a significant website redesign
and that sales generated by USAA were down 5% from the prior year. TrueCar’s
stock price fell over 35% the next day. A federal securities action followed. This
action followed after that.
In this action, stockholders of TrueCar assert derivative claims for breach of
fiduciary duty, insider trading, unjust enrichment, contribution and indemnification,
and aiding and abetting a breach of fiduciary duty against fifteen current and former
officers and/or directors of TrueCar and against a series of entities that sold stock in
a secondary offering in May 2017. Each of the defendants moved to dismiss the
complaint.
The threshold issue in this case is whether plaintiffs’ failure to make a demand
on the TrueCar board to initiate litigation should be excused. Plaintiffs advance a
host of reasons why they believe making a demand would have been futile on the
theory that a majority of the directors on the board when this action was filed acted
1
in bad faith and would face a substantial likelihood of liability with respect to the
claims in this case.
In this decision, the court concludes that plaintiffs have failed to plead
particularized facts sufficient to impugn the ability of any of the members of the
demand board, let alone a majority, to have considered a demand impartially. For
this and the other reasons discussed herein, the complaint will be dismissed in its
entirety.
I. BACKGROUND
Unless otherwise noted, the facts recited in this opinion are based on the
allegations of the Verified Consolidated Stockholder Derivative Complaint
(“Complaint”) and documents incorporated therein.1 Any additional facts are
subject to judicial notice.
A. The Parties
Nominal Defendant TrueCar, Inc., (“TrueCar” or the “Company”) is a
Delaware corporation that connects customers via the internet with automobile
dealers. Its principal place of business is in Santa Monica, California.2
1
Verified Consolidated S’holder Deriv. Compl. (“Compl.”) (Dkt. 16). See Winshall v.
Viacom Int’l, Inc., 76 A.3d 808, 818 (Del. 2013) (“[P]laintiff may not reference certain
documents outside the complaint and at the same time prevent the court from considering
those documents’ actual terms” in connection with a motion to dismiss).
2
Compl. ¶¶ 25, 75.
2
The plaintiffs in this case are David Bryan, Subash D’Souza, and Herbert
Silverberg (collectively, “Plaintiffs”). They allege they were stockholders of
TrueCar at the time of the alleged misconduct and have been stockholders
continuously since then.3
The defendants in this case include six of TrueCar’s current and former
officers, nine current and former members of TrueCar’s board of directors (the
“Board”), and four groups of entities that sold shares of TrueCar in a secondary
offering that closed in early May 2017 (the “Secondary Offering”).4
The first group of stockholder entities is United Services Automobile
Association (“USAA”) and its affiliate USAA Property Holdings, Inc. USAA is an
unincorporated association with its primary offices in San Antonio, Texas.5 USAA
offers its members “services related to insurance, banking, investing, real estate,
retirement and IRAs, health insurance, and shopping and discounts.”6 USAA was
TrueCar’s largest stockholder and held approximately 14% of the Company’s
3
Id. ¶¶ 22-24.
4
Id. ¶ 8. The Complaint alleges that TrueCar conducted the Secondary Offering on April
26, 2017, and that various sales in connection with the Secondary Offering occurred on
May 2, 2017. Id. ¶¶ 112, 176.
5
Id. ¶ 41.
6
Id.
3
common stock as of January 2017.7 In the Secondary Offering, USAA sold
approximately 26% of its holdings and received over $51 million in proceeds.8
The second group of stockholder entities is comprised of Upfront II, L.P.,
Upfront III, L.P., Upfront II Investors, L.P., Upfront II Partners, L.P., Upfront III
Investors, L.P., and Upfront III Partners, L.P., (collectively “Upfront”), which sold
approximately 1.5 million shares in the Secondary Offering.9 The third group of
stockholder entities includes Capricorn AIP-Private Investment Fund I, L.P., HIT
Splitter, L.P., Capricorn Investment Group, LLC, and Carthage, L.P., (together
“Capricorn”), which sold approximately 509,000 shares in the Secondary Offering.10
The fourth group consists of Vulcan Capital Growth Equity Management, LLC
(“Vulcan”), an affiliate of which sold approximately 1.1 million shares in the
Secondary Offering.11
Defendants Victor Perry, Michael Guthrie, John Pierantoni, Neeraj Gunsagar,
Jeff Swart, and Brian Skutta are current and former TrueCar officers. Perry served
as TrueCar’s President and Chief Executive Officer, and as a member of the Board
7
Id. ¶¶ 1, 79.
8
Id. ¶¶ 8, 165.
9
Id. ¶ 42.
10
Id. ¶¶ 33, 43.
11
Id. ¶ 44.
4
from December 2015 until July 2019.12 Guthrie served as TrueCar’s Chief Financial
Officer from January 2012 until January 2018.13 Pierantoni, Gunsagar, Swart, and
Skutta, served as TrueCar’s Chief Accounting Officer, Chief Marketing Officer,
General Counsel, and Executive Vice President of Dealer Sales and Services,
respectively.14
In addition to Perry, Defendants Abhishek Agrawal, Robert Buce, Christopher
Claus, Steven Dietz, John Krafcik, Erin Lantz, John Mendel, Wesley Nichols, and
Ion Yadigaroglu are current or former members of TrueCar’s Board.
Agrawal served on the Board from November 2013 through May 18, 2017,
and served as Managing Director and Global Head of Growth Equity at Vulcan and
on the Investment Advisory Board of one of the Capricorn entities.15 Mendel
replaced Agrawal on the Board in May 2017.16
Claus has served on the Board since April 2014 and as Chairman of the Board
since February 2016.17 Before joining TrueCar’s Board, Claus served in various
12
Id. ¶ 27.
13
Id. ¶ 26.
14
Id. ¶¶ 34-36.
15
Id. ¶ 29.
16
Id. ¶ 40.
17
Id. ¶ 37.
5
senior executive positions at USAA for over 20 years.18 Claus also served since
January 2009 as a director of USAA Real Estate Company, “the real estate
investment arm of USAA.”19
Dietz served on the Board from February 2006 until his resignation in October
2018 and “managed” Upfront.20 Nichols has served on the Board since November
2016 and “advised” Upfront.21
Buce, Krafcik, Lantz, and Yadigaroglu have served on the Board since April
2005, February 2014, November 2016, and August 2007, respectively.22
Yadigaroglu has been Managing Principal at one of the Capricorn entities since
2004.23
This opinion refers, at times, to the fifteen current and former directors and
officers named as defendants, collectively, as the “Individual Defendants”; to
Guthrie, Pierantoni, Agrawal, Buce, Dietz, Krafcik, Yadigaroglu, Gunsagar, Swart,
and Skutta as the “Individual Selling Defendants”; to USAA, Upfront, Capricorn,
18
Id.
19
Id.
20
Id. ¶¶ 31, 42.
21
Id. ¶¶ 39, 42.
22
Id. ¶¶ 30, 32, 38.
23
Id. ¶¶ 33, 42.
6
and Vulcan, collectively as the “Entity Defendants”; and to all defendants,
collectively, as “Defendants.”
B. TrueCar’s Partnership with USAA and the February Meeting
TrueCar’s financial success depends on its ability to draw consumers to its
car-buying platform, which leads to sales of cars, referred to as “units.”24 The
majority of TrueCar’s unit sales are through its “affinity group marketing
partners.”25 TrueCar’s most important and longest standing affinity partner is
USAA.26
As part of its partnership with USAA, TrueCar hosted a co-branded website
only accessible to USAA members, which was the “largest source of user traffic and
unit sales from [TrueCar’s] affinity group marketing partners” in 2016.27 More
specifically, the website generated 32% of TrueCar’s annual unit sales and 45% of
its total contribution profit in 2016.28 TrueCar was responsible for maintaining the
24
Id. ¶ 76.
25
Id. ¶ 77.
26
Id. ¶¶ 78, 81.
27
Id. ¶¶ 92, 94.
28
Id. ¶¶ 81, 94.
7
website but USAA had “broad discretion” to determine how the website was
“promoted and marketed” to its members.29
In early 2015, Stuart Parker became USAA’s CEO.30 In this role, Parker
sought to make USAA a more “advice-centric organization” and suggested that
USAA members might be encouraged to delay purchasing vehicles to improve their
financial health.31 Consistent with this new direction, USAA notified TrueCar in or
around January 2017 that it was redesigning the co-branded website.32 The redesign
added several steps before USAA members could access the TrueCar platform,
including a series of questions concerning personal and financial information and
warnings about the cost of car ownership.33 These changes would take several
months to implement and were expected to be fully implemented by June 2017.34
On February 9, 2017, all but two of the fifteen Individual Defendants attended
a meeting of the Board.35 At this meeting, the attendees discussed TrueCar’s
29
Id. ¶¶ 82-84.
30
Id. ¶ 88.
31
Id. ¶ 89.
32
Id. ¶ 91.
33
Id. ¶¶ 91, 92, 122, 141, 156.
34
Id. ¶ 92.
35
Id. ¶ 94.
8
“ongoing efforts [to] enhance the relationship with USAA.”36 A presentation to the
Board stated that the Company had a goal to “re-energize” the relationship with
USAA to “continue growth” and included a slide identifying “USAA
underperformance” among a list of TrueCar’s top risks for 2017.37 The meeting
materials also included a “2017 Financial Model,” which forecasted year-over-year
quarterly growth in 2017, and USAA year-over-year unit growth of 15%, 12%, 11%,
and 10% over the next four quarters.38
On February 16, 2017, TrueCar issued a press release announcing its financial
results for the fourth quarter and year-end 2016.39 In the press release, Perry stated
that TrueCar was “re-accelerating [its] top-line growth” and would “continue to
drive double-digit rates of unit and revenue growth for some time.”40 That same
day, Perry and Guthrie reiterated their expectations on an earnings call and Guthrie
stated that USAA units were at “an all-time high.”41
36
Id.
37
Id.
38
Id. ¶ 95; German Aff. Ex. 2 (“February 2017 Board Presentation”), at 58 (Dkt. 31).
39
Compl. ¶ 97.
40
Id.
41
Id. ¶¶ 98-99.
9
 On March 1, 2017, TrueCar filed its 2016 Form 10-K with the SEC.42 All
members of the Board at the time and officers Guthrie and Pierantoni signed the
2016 Form 10-K.43 It included various disclosures concerning USAA and the
website and its potential to negatively impact TrueCar’s business:
USAA has broad discretion in how the car-buying site we maintain for
USAA is promoted and marketed on its own website. Changes in this
promotion and marketing have in the past and may in the future
adversely affect the volume of user traffic we receive from USAA.
Changes in our relationship with USAA or its promotion and marketing
of our platform could adversely affect our business and operating
results in the future.44
According to the Complaint, the Form 10-K also explained that “a significant
reduction in the number of cars purchased . . . by members of [TrueCar’s] affinity
group marketing partners would reduce [the Company’s] revenue and harm
[TrueCar’s] operating results” and that TrueCar’s relationship with affinity groups
“might change” in which case its “operating results and prospects may be harmed.”45
42
Id. ¶ 104.
43
Id.
44
Id. ¶ 106 (emphasis omitted).
45
Id. ¶¶ 104-05 (alterations in original).
10
C. The Secondary Offering and the Website Redesign
On April 17, 2017, the Board approved a resolution authorizing a secondary
offering of TrueCar stock, defined above as the “Secondary Offering.”46 As part of
the Secondary Offering, TrueCar’s officers, directors, and affiliates, agreed to a 90-
day “Lock-Up Period,” which prevented them from selling any TrueCar stock until
after the Lock-Up expired on July 25, 2017.47
The Secondary Offering was conducted pursuant to a shelf registration filed
with the SEC, dated January 19, 2017; a Prospectus filed with the SEC, dated
January 19, 2017; and a Prospectus Supplement filed with the SEC, dated April 26,
2017.48 This opinion refers to these documents collectively as the “Secondary
Offering Documents.”
On April 26, 2017, TrueCar conducted the Secondary Offering of
10.35 million shares for $16.50 per share.49 The Entity Defendants received
approximately 64% of the proceeds, totaling approximately $110 million.50 From
and including the Secondary Offering until October 16, 2017, the Entity Defendants
46
Id. ¶ 108.
47
Id. ¶¶ 114-15.
48
Id. ¶ 8 n.2.
49
Id. ¶ 112.
50
Id.
11
and the Individual Selling Defendants sold approximately 8 million shares of
TrueCar stock, generating over $135 million in proceeds.51
On May 3, 2017, after the Secondary Offering closed, the Audit Committee
consisting of Buce, Claus, Guthrie, Lantz, and Pierantoni met to discuss “changes to
the Company’s risk factors in its SEC filings. . . . [and] approved filing the Form 10-
Q without updating the risk disclosure regarding USAA.”52 On May 9, 2020, during
an earnings call with investors, Guthrie highlighted USAA’s “healthy [unit] growth
of 16% in the first quarter.”53 The next day, TrueCar filed its Form 10-Q, which
repeated the same disclosures set forth in the Company’s 2016 Form 10-K regarding
the relationship with USAA and the website.54
On June 1, 2017, USAA’s website redesign was implemented.55 USAA
members described the newly designed website as “a nightmare to use” and the
changes “caused [USAA members] to pause, perhaps not continue, perhaps come
back at a later date.”56
51
Id. ¶ 176.
52
Id. ¶ 117 (emphasis omitted).
53
Id. ¶¶ 119-20.
54
Id. ¶ 118.
55
Id. ¶¶ 122, 157.
56
Id. ¶¶ 141, 147, 195.
12
 On July 26, 2017—the day after the Lock-Up Period expired—certain officers
of TrueCar began selling shares of TrueCar stock:
 On July 26, Swart and Pierantoni sold over $690,000 and
$1.1 million worth of TrueCar stock, respectively;
 On July 26 and July 27, Gunsagar sold over $3 million worth of
TrueCar stock; and
 Over the week after the Lock-Up Period expired, Guthrie sold
over $13.9 million worth of TrueCar stock.57
On July 27, 2017, during a Board meeting, Perry explained to the Board that
“[t]he partner business is driving lots of growth . . . USAA, however, is a fragile
relationship and needs more attention.”58 Included in the Board meeting materials
was a presentation that explained that USAA had made a minor change to its website
in late 2016, which had resulted in an “11% decrease in total new car search visitors”
and a loss of USAA new car traffic.59
On August 8, 2017, the Company released its second quarter results.60 During
an earnings call that same day, Guthrie told investors that TrueCar was currently
seeing “continued strong growth in units” in the third quarter that was “really
57
Id. ¶¶ 115, 127, 176.
58
Id. ¶ 129 (emphasis omitted).
59
Id. ¶ 130 (emphasis omitted).
60
Id. ¶ 132.
13
fantastic.”61 Guthrie also stated that TrueCar expected “Q3 units to be in the range
of . . . 20% to 22% year-over-year growth.”62
On August 9, 2017, TrueCar filed a Form 10-Q for the second quarter of 2017,
which was approved by the Audit Committee on August 3.63 It continued to warn
of the “risk” that if USAA were to change the website “in the future,” its business
would be significantly harmed.64
D. The Website Redesign Negatively Impacts TrueCar
On September 15, 2017, the Board held a special meeting at which it was
advised that “preliminary August results indicate[d] below guidance performance”
and “USAA [unit] performance [was] significantly affected in Q3 2017,” resulting
in $1.8 million in lost USAA revenue for the quarter.65 The same day as the special
Board meeting, officers Pierantoni and Gunsagar sold more than 20,000 shares of
their TrueCar stock, generating over $300,000 in proceeds.66
61
Id. ¶ 134.
62
Id.
63
Id. ¶ 132.
64
Id. ¶¶ 132-33.
65
Id. ¶¶ 137-38.
66
Id. ¶ 140.
14
 On October 26, 2017, the Board held a meeting where it again was advised
that USAA struggled in the third quarter and the website changes had “significantly
impacted USAA’s performance.”67
On November 6, 2017, TrueCar issued a press release announcing that the
Company sustained a $9.5 million net loss for the third quarter and was lowering its
guidance.68 On an earnings call that day, Perry and Guthrie disclosed that USAA
units had declined by 5%.69 Guthrie disclosed that “[t]he year-over-year contraction
in units at USAA contributed to the deceleration in used car growth versus last
quarter as our USAA channel has the highest ratio of used car sales.”70 He also told
investors that TrueCar’s “unique visitors” growth rate had fallen to 1%—the slowest
growth rate since 2013.71 During the earnings call, Perry stated that “we saw these
[changes] coming. It wasn’t like we were blind to them,” and Guthrie assured
investors that TrueCar “work[s] with [USAA] on a daily basis and we’re well-
connected.”72
67
Id. ¶ 141.
68
Id. ¶¶ 143-44.
69
Id. ¶¶ 144.
70
Id. ¶¶ 145.
71
Id.
72
Id. ¶¶ 149, 152.
15
 On November 7, 2017, TrueCar’s stock fell over 35%.73 On January 28, 2018,
Guthrie resigned as CFO.74 On February 15, 2018, TrueCar announced its fourth
quarter and full year results for 2017.75 TrueCar’s affinity partnership with USAA
produced 58,975 units, down 14% from the prior year.76
E. The Securities Class Action
On March 30, 2018, a securities class action was filed in the United States
District Court for the Central District of California against TrueCar and eleven of
the fifteen Individual Defendants in this action: Guthrie, Perry, Pierantoni, Agrawal,
Buce, Claus, Dietz, Krafcik, Lantz, Nichols, and Yadigaroglu (the “Securities Class
Action”).77 The complaint in that action asserted various claims under the Securities
Act and the Exchange Act based on TrueCar’s public disclosures concerning USAA
and its prospects for 2017. This opinion refers to the defendants in the Securities
Class Action as the “Securities Class Action Defendants.”
73
Id. ¶ 154.
74
Id. ¶¶ 26, 158.
75
Id. ¶ 159.
76
Id.
77
Id. ¶¶ 26-33, 37-39, 178-79.
16
 On February 5, 2019, the district court in the Securities Class Action denied
the defendants’ motion to dismiss the complaint in a two-paragraph order.78 On
August 2, 2019, the parties in the Securities Class Action executed a Stipulation and
Agreement of Settlement (the “Settlement Agreement”) to fully and finally resolve
the case.79 The district court preliminarily approved the settlement on October 15,
2019, and granted final approval on January 27, 2020.80
II. PROCEDURAL HISTORY
Beginning on August 22, 2019, Plaintiffs filed three separate actions in this
court against the Defendants after seeking books and records under 8 Del. C. § 220.81
Those actions were consolidated on October 9, 2019, and Plaintiffs filed a
consolidated complaint (as defined above, the “Complaint”) on November 7, 2019.82
The Complaint asserts four counts derivatively on behalf of TrueCar. Count
I asserts essentially two distinct claims for breach of fiduciary duty against different
sets of defendants.
78
Id. ¶ 179.
79
Id. ¶ 181; German Decl. Ex. 11 (“Preliminary Approval Order”), at 2 (Dkt. 31).
80
Preliminary Approval Order; Uebler Aff. Ex. A (“Final Approval Order”) (Dkt. 48);
German Decl. Ex. 25 (“Settlement Agreement”) (Dkt. 58).
81
See Dkt. 5; Compl. ¶ 15.
82
Dkt. 5; Dkt. 16.
17
The first claim within Count I is asserted against the Individual Defendants
for:
(i) failing to disclose the truth about the impending material changes to
the USAA co-branded website and its expected negative impact on the
Company’s financial performance; (ii) making or failing to correct
false and misleading statements and omissions regarding the same;
(iii) allowing the [Individual Selling Defendants and USAA] to engage
in the sale of stock based on insider information; and/or (iv) failing to
provide adequate oversight of the Company to prevent any of the
above.83
This claim is referred to herein as the “Disclosure Claim” and the fourth part of the
claim is referred to as the “Caremark” claim.
The second claim within Count I is asserted against the Individual Selling
Defendants and USAA under Brophy v. Cities Service Company84 for possessing
“material, adverse, nonpublic information regarding the impending material changes
to the USAA site and the expected significant negative impact, and ma[king] stock
sales . . . on the basis of that information while the price of the Company’s shares
was artificially inflated.”85 Plaintiffs seek restitution and disgorgement of profits for
83
Compl. ¶ 205. Although this part of Count I also is asserted against USAA, Plaintiffs
did not address the alleged Disclosure Claim or the Caremark claim against USAA in their
brief and thus waived these issues. See USAA Reply Br. 5 n.2. Emerald P’rs v. Berlin,
726 A.2d 1215, 1224 (Del. 1999) (“Issues not briefed are deemed waived.”).
84
70 A.2d 5 (Del. Ch. 1949).
85
Compl. ¶¶ 206.
18
this claim.86 This claim overlaps with Count II, which asserts a claim for unjust
enrichment against the Individual Selling Defendants and USAA for selling
“TrueCar stock while in possession of material, nonpublic information that
artificially inflated the price of TrueCar stock.”87
Count III seeks contribution and indemnification on behalf of the Company
from the Securities Class Action Defendants for “expos[ing] the Company to
significant liability under various federal and state laws.”88
Count IV asserts an aiding and abetting claim against the Entity Defendants
for “knowingly participat[ing]” in breaches of fiduciary duty by Agrawal, Claus,
Dietz, Nichols and Yadigaroglu for “selling shares motivated in whole or in part by
material adverse inside information” the fiduciaries shared with them.89 Count IV
is asserted against USAA in the alternative to Count I, to the extent USAA does not
owe fiduciary obligations to TrueCar.90
86
Id. ¶ 211.
87
Id. ¶¶ 215-16.
88
Id. ¶¶ 219-22.
89
Id. ¶¶ 223-32.
90
Id. at 112 n.15.
19
On December 19, 2019, each of the Defendants moved to dismiss the
Complaint.91 After briefing, the court heard oral argument on June 11, 2020.92
III. ANALYSIS
The Individual Defendants and USAA have moved to dismiss the Complaint
under Court of Chancery Rule 23.1 for failure to plead demand futility and all
Defendants have moved under Rule 12(b)(6) to dismiss the Complaint for failure to
state a claim for relief against each of them.
Although it would be typical to analyze first whether Plaintiffs’ failure to
make a demand should be excused, Defendants’ motions raise a host of subsidiary
issues that impact the Rule 23.1 analysis. In order to streamline that analysis, the
court will consider first two of those subsidiary issues, namely (i) whether USAA
owed fiduciary duties to TrueCar and (ii) whether the sales of stock by certain Entity
Defendants (Capricorn, Upfront, and USAA) should be attributed to certain directors
on the Demand Board who allegedly were affiliated with those entities. These issues
are addressed in Sections A and B below. The court then will consider whether
Plaintiffs have plead particularized facts sufficient to show that making a demand
on the TrueCar Board before filing their primary derivative claims would have been
91
Dkt. 27 (USAA Mot.); Dkt. 28 (Entity Defs.’ Mot.); Dkt. 31 (Individual Defs.’ Mot.).
92
Dkt. 71.
20
futile. This issue is discussed in Sections C-E below. Finally, the court will consider
whether Count III states a claim for relief in Section F below.
A. Whether USAA Owed Fiduciary Duties
Plaintiffs assert a Brophy claim against USAA and, in the alternative, an
aiding and abetting claim against USAA “solely to the extent USAA is found not to
have owed fiduciary obligations to TrueCar.”93 To state a claim under Brophy, a
plaintiff must allege that, “1) the corporate fiduciary possessed material, nonpublic
company information; and 2) the corporate fiduciary used that information
improperly by making trades because she was motivated, in whole or in part, by the
substance of that information.”94
USAA has moved to dismiss the Brophy claim for failure to state a claim for
relief on the ground that USAA is not a fiduciary of TrueCar.95 The standards
governing a motion to dismiss under Rule 12(b)(6) for failure to state a claim for
relief are well-settled:
(i) all well-pleaded factual allegations are accepted as true; (ii) even
vague allegations are well-pleaded if they give the opposing party
notice of the claim; (iii) the Court must draw all reasonable inferences
in favor of the non-moving party; and [(iv)] dismissal is inappropriate
93
Compl. at 112 n.15.
94
In re Oracle Corp. Deriv. Litig., 867 A.2d 904, 934 (Del. Ch. 2004).
95
USAA Opening Br. at 13 (Dkt. 27).
21
unless the plaintiff would not be entitled to recover under any
reasonably conceivable set of circumstances susceptible of proof.96
Plaintiffs allege USAA owed fiduciary obligations to TrueCar because of its
“significant TrueCar stockholdings which they have maintained since TrueCar’s
inception, representation on TrueCar’s Board via its designee (Defendant Claus) as
Board Chairman and attendant observation rights, and control over TrueCar via the
contractual Services Agreement and its substantial contribution to TrueCar’s
revenues and profits as TrueCar’s most significant affinity partner.”97
Citing this court’s 1973 decision in Cheese Shop International, Inc. v. Steele,98
Plaintiffs assert that USAA “occupied a special position of trust and confidence
analogous to that of a fiduciary.”99 Although a venerable decision for its articulation
of the attributes that generally define a fiduciary relationship, Cheese Shop does not
address the specific circumstances under which our law imposes fiduciary duties on
a stockholder of a corporation. A long line of Delaware precedent addresses that
96
Savor, Inc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002) (internal quotations and
citations omitted).
97
Compl. ¶ 204.
98
303 A.2d 689, 690 (Del. Ch. 1973) (finding that a licensee under a license agreement did
not owe fiduciary duties to the licensor), rev’d on other grounds, 311 A.2d 870 (Del. 1973).
99
Pls.’ Answering Br. at 73-75 (Dkt. 47).
22
precise issue. That precedent, which Plaintiffs relegate to a conclusory footnote in
their brief, provides the operative standards to apply here.100
It is well-settled under Delaware law that a stockholder owes fiduciary duties
when “the stockholder (1) owns more than 50% of the voting power of a corporation
or (2) owns less than 50% of the voting power of the corporation but ‘exercises
control over the business affairs of the corporation.’”101 As of January 2017, USAA
held 14% of TrueCar’s outstanding stock.102 The test for minority stockholders to
be deemed a controller “is not easy to satisfy, and can only be met where
stockholders who, although lacking a clear majority, have such formidable voting
and managerial power that they, as a practical matter, are no differently situated than
if they had majority voting control.”103
Here, the Complaint does not allege sufficient facts to show that USAA
exercised control over the business affairs of the corporation or that any director was
controlled by or beholden to USAA. USAA contends that Claus served as USAA’s
100
See id. at 76 n.26.
101
In re KKR Fin. Hldgs. LLC S’holder Litig., 101 A.3d 980, 991 (Del. Ch. 2014) (citing
Kahn v. Lynch Commc’n Sys., Inc., 638 A.2d 1110, 1113-14 (Del. 1994) (quoting Ivanhoe
P’rs v. Newmont Mining Corp., 535 A.2d 1334, 1344 (Del. 1987)), aff’d sub nom. Corwin
v. KKR Fin. Hldgs. LLC, 125 A.3d 304 (Del. 2015).
102
Compl. ¶ 41.
103
In re KKR, 101 A.3d at 992 (internal quotation marks and citations omitted).
23
“representative” on the Board, but the court finds for the reasons explained in
Part III.E below that the Complaint does not plead facts sufficient to create a
reasonable doubt about Claus’s independence from USAA.
Although USAA has been TrueCar’s largest stockholder and most important
affinity partner since the Company’s inception,104 USAA maintained a commercial
relationship with TrueCar, documented in a Services Agreement that delineated the
companies’ respective rights and obligations, similar to that of TrueCar’s other
affinity partners.105 Absent from the Complaint are any allegations that the Services
Agreement granted USAA the power to restrict TrueCar’s Board or provided USAA
such formidable managerial power so as to control TrueCar’s business affairs. In
short, the Complaint does not allege any facts to suggest that USAA had anything
other than a significant commercial relationship with TrueCar during the period
relevant to this action. This does not give rise to fiduciary duty obligations.106
Because it is not reasonably conceivable from the allegations in the Complaint
that USAA owes fiduciary obligations to TrueCar, the Brophy claim against USAA
104
See Compl. ¶¶ 79-82.
105
See id. ¶¶ 83-84; Mot. to Dismiss Hr’g Tr. (“Tr.”) at 80-81 (June 11, 2020) (Dkt. 72).
106
In re Delta & Pine Land Co. S’holders Litig., 2000 WL 875421, at *7 (Del. Ch. June
21, 2000) (“To assert that contractual relationships necessarily cause one contracting party
to control the other is an unsupported exaggeration. If this were so, customers and suppliers
would control every existing company.”).
24
will be dismissed. The court will address Plaintiffs’ alternative aiding and abetting
claim against USAA in the next section.
B. Whether the Stock Sales of USAA, Upfront, and Capricorn are
Attributable to Members of the Demand Board
When Plaintiffs filed their initial complaint, the Board consisted of eight
members: Buce, Claus, Krafcik, Lantz, Nichols, Yadigaroglu, Mendel, and non-
party McKoy (collectively, the “Demand Board”).107 The Complaint alleges that
five of these individuals (Buce, Claus, Krafcik, Nichols, and Yadigaroglu) engaged
in insider selling in breach of their fiduciary duties.108 The Complaint does not allege
that Claus, Nichols, or Yadigaroglu sold any shares of TrueCar stock they held
personally at any time relevant to this action.109 Plaintiffs argue nevertheless that
stock sales made by USAA, Upfront, and Capricorn should be attributed to Claus,
Nichols, and Yadigaroglu, respectively,110 under this court’s decision in In re Fitbit,
Inc. Stockholder Derivative Litigation.111
107
Compl. ¶ 192.
108
Id. ¶¶ 206-10, 225.
109
See id. ¶¶ 33, 37, 39, 169, 176, 226.
110
Pls.’ Answering Br. at 51-52, 88.
111
2018 WL 6587159 (Del. Ch. Dec. 14, 2018).
25
In Fitbit, the court considered “whether a fiduciary may be held liable on a
Brophy claim for trades that an entity or fund associated with that fiduciary executed
in its name.”112 In finding that a fiduciary could be liable in these circumstances,
Vice Chancellor Slights explained as follows:
Here, the Selling Defendants seek a ruling that would permit a director
to trade on inside material information without consequence just
because the director did not trade personally but rather passed the
information to an entity with which he is affiliated (and over which he
exercised control) to do the trading. That is not and cannot be our law.
Indeed, to allow these directors, through their controlled funds, to profit
from inside information without recourse would be inconsistent with
the policy of extinguishing all possibility of profit flowing from a
breach of the confidence imposed by the fiduciary relation that
undergirds Delaware’s insider trading law.113
Applying this principle, the court found that plaintiffs had pled particularized facts
concerning two directors who “share voting and dispositive power over the Fitbit
stock owned by their respective funds” to allow a reasonable inference at the
pleadings stage that they “personally and materially profited from the challenged
stock sales through their ownership and control of their affiliated funds.” 114 Here,
the Complaint fails to plead any facts to warrant attributing the stock sales of USAA
112
Id. at *13.
113
Id. at *13-14 (internal quotation marks and citations omitted) (emphasis added).
114
Id. at *14.
26
and Upfront to Claus and Nichols, respectively, but does allege sufficient facts to
attribute Capricorn’s stock sales to Yadigaroglu at the pleadings stage.
Starting with Claus, the Complaint is devoid of any facts connecting him to
the USAA entities that sold stock in the Secondary Offering when those sales
occurred. In fact, Claus left his employment at USAA in 2014, over three years
before USAA sold shares in the Secondary Offering, and although Claus sat on the
board of a related USAA entity, that entity is not alleged to have sold any stock at
any time relevant to this action.115 Because USAA’s sales cannot be attributed to
Claus, Plaintiffs cannot state a claim for breach of the fiduciary duty of loyalty for
insider trading against him.116 Thus, the aiding and abetting claim against USAA,
which is predicated on a claim for insider trading against Claus, will be dismissed
for failure to state a claim for an underlying breach.
With respect to Nichols, the Complaint similarly does not allege any facts
regarding the advisory role Nichols played at Upfront or allege that Nichols
115
Compl. ¶¶ 37, 41, 80.
116
Count I of the Complaint, which asserts a Brophy claim against the “Individual Selling
Defendants,” does not apply to Claus by its terms because he was not included in the
definition of the term “Individual Selling Defendants.” See id. ¶¶ 45, 209. The aiding and
abetting claim in Count IV of the Complaint nevertheless asserts that Claus breached his
fiduciary duty of loyalty by engaging in insider trading. Id. ¶ 225.
27
exercised any control over Upfront’s investment in TrueCar.117 Consistent with this,
the Complaint notably does not contain any demand futility allegations regarding
Upfront’s sales being attributable to Nichols.118
In contrast to USAA and Upfront, the Complaint specifically alleges that
“[v]oting and dispositive decisions on behalf of Capricorn were made by an
investment committee consisting of four individuals, including Yadigaroglu.”119
This allegation is sufficient at the pleadings stage to attribute Capricorn’s sales to
Yadigaroglu under Brophy based on the reasoning in Fitbit, where the court
attributed stock sales to two directors who shared “voting and dispositive power
over the Fitbit stock owned by their respective funds.”120
C. The Demand Requirement
Under Court of Chancery Rule 23.1, a stockholder who wishes to bring a
derivative claim on behalf of a corporation must “allege with particularity the efforts,
if any, made by the plaintiff to obtain the action the plaintiff desires from the
117
See id. ¶¶ 39, 42, 164-76.
118
See id. ¶ 197. Although the court does not need to address the issue given its conclusions
on the issue of demand futility, plaintiffs assert a Brophy claim against another director
(Dietz), who is not a member of the Demand Board, on the theory that Upfront’s sales may
be attributed to him. See id. ¶¶ 206-09, 226.
119
Id. ¶¶ 227; id. ¶ 169 n.13; German Aff. Ex. 18 (Prospectus Supplement on Form 424B5,
filed with the SEC on April 27, 2017), at S-48.
120
Fitbit, 2018 WL 6587159, at *14.
28
directors or comparable authority and the reasons for the plaintiff’s failure to obtain
the action or for not making the effort.”121 This requirement stems from a “basic
principle of the Delaware General Corporation Law . . . that the directors, and not
the stockholders, manage the business and affairs of the corporation.”122
“The decision to bring or to refrain from bringing suit on behalf of the
corporation is the responsibility of the board of directors.”123 This allows “a
corporation, on whose behalf a derivative suit is brought, the opportunity to rectify
the alleged wrong without suit or to control any litigation brought for its benefit.”124
Under the heightened pleading requirements of Rule 23.1, “conclusionary
allegations of fact or law not supported by the allegations of specific fact may not
be taken as true.”125
121
Ch. Ct. R. 23.1.
122
FLI Deep Marine LLC v. McKim, 2009 WL 1204363, at *2 (Del. Ch. Apr. 21, 2009).
123
Id.
Lewis v. Aronson, 466 A.2d 375, 380 (Del. Ch. 1983), rev’d on other grounds, 473 A.2d
124
805 (Del. 1984).
125
Grobow v. Perot, 539 A.2d 180, 187 (Del. 1988), overruled on other grounds by Brehm
v. Eisner, 746 A.2d 244 (Del. 2000).
29
This court employs two different tests for determining whether demand may
be excused under Delaware law: the Aronson test and the Rales test.126 The court
applies the test from Aronson v. Lewis127 when “a decision of the board of directors
is being challenged in the derivative suit.”128 On the other hand, Rales v. Blasband129
governs when “the board that would be considering the demand did not make a
business decision which is being challenged in the derivative suit,” such as “where
directors are sued derivatively because they have failed to do something.”130 Under
either test, a plaintiff “must impugn the ability of at least half the directors in office
when [plaintiff] initiated [its] action . . . to have considered a demand impartially.”131
126
Both tests ultimately focus on the same inquiry, i.e., whether “the derivative plaintiff
has shown some reason to doubt that the board will exercise its discretion impartially and
in good faith.” In re INFOUSA, Inc. S’holders Litig., 953 A.2d 963, 986 (Del. Ch. 2007).
127
473 A.2d at 810 (the court asks “whether, under the particularized facts alleged, a
reasonable doubt is created that: (1) the directors are disinterested and independent [or]
(2) the challenged transaction was otherwise the product of a valid exercise of business
judgment.”).
128
Rales v. Blasband, 634 A.2d 927, 933 (Del. 1993).
129
Id. at 934 (“a court must determine whether or not the particularized factual allegations
of a derivative stockholder complaint create a reasonable doubt that, as of the time the
complaint is filed, the board of directors could have properly exercised its independent and
disinterested business judgment in responding to a demand.”).
130
Id. at 933-34, 934 n.9. Rales also applies “where a business decision was made by the
board of a company, but a majority of the directors making the decision have been
replaced” and where “the decision being challenged was made by the board of a different
corporation.” Id. at 934.
131
Teamsters Union 25 Health Servs. & Ins. Plan v. Baiera, 119 A.3d 44, 57 (Del. Ch.
2015) (citation omitted).
30
To do so, a plaintiff must allege a “constellation of facts that, taken together, create
a reasonable doubt about [the director]’s ability to objectively consider a
demand.”132
As discussed above, the Demand Board consisted of eight members: Buce,
Claus, Krafcik, Lantz, Nichols, Yadigaroglu, Mendel, and non-party McKoy.133
Plaintiffs do not challenge McKoy’s impartiality.134 Thus, the question before the
court is whether Plaintiffs have plead with particularity sufficient facts to create a
reasonable doubt about the disinterestedness or independence of four of the other
seven members of the Demand Board so as to impugn the ability of a majority of the
Demand Board to consider a demand impartially as to each claim.
Plaintiffs primarily argue that demand is excused because at least four
directors on the Demand Board face a substantial likelihood of liability with respect
to the claims asserted in the Complaint. To establish a substantial likelihood of
liability at the pleading stage, a plaintiff must “make a threshold showing, through
the allegation of particularized facts, that their claims have some merit.”135
132
In re Oracle Corp. Deriv. Litig., 2018 WL 1381331, at *18 (Del. Ch. Mar. 19, 2018).
133
Compl. ¶ 192.
134
Rales, 634 A.2d at 930.
135
Rales, 634 A.2d at 934.
31
TrueCar’s certificate of incorporation contains a provision exculpating its
directors for breaches of the duty of care, as permitted under Section 102(b)(7) of
the Delaware General Corporation Law.136 Thus, to demonstrate that directors on
the Demand Board face a substantial likelihood of liability with respect to the claims
asserted against them, Plaintiffs must allege with particularity facts demonstrating
there is some merit to a claim for breach of the duty of loyalty. As discussed next,
Plaintiffs’ lead argument is that six of the eight directors on the Demand Board acted
in bad faith, i.e., that they “intentionally fail[ed] to act in the face of a known duty
to act, demonstrating a conscious disregard for [their] duties.”137
D. Whether Demand is Excused as to the Disclosure Claim
The Complaint challenges the accuracy of certain statements that TrueCar
officers made in press releases and during earnings calls at various times in 2017.
By contrast, the only disclosures Plaintiffs challenge in which directors on the
Demand Board are alleged to have “directly participated” consists of three
statements in the “risk factors” section of TrueCar’s 2016 Form 10-K (the
136
German Aff., Ex. 12 (TrueCar’s Certificate of Incorporation) § 8.1; Lyondell Chem. Co.
v. Ryan, 970 A.2d 235, 239 (Del. 2009).
137
Lyondell, 970 A.2d at 243 (citation and internal quotations omitted).
32
“Challenged Statements”), which were repeated in the Secondary Offering
Documents. As stated in Plaintiffs’ brief:
The Demand Defendants themselves directly participated in the
subterfuge by signing TrueCar 2016 Form 10-K, which misleadingly
represented [i] that TrueCar’s “relationship with affinity groups might
change,” [ii] that those partners “might de-emphasize the automobile
buying programs within their offerings,” and [iii] that changes in
USAA’s promotion and marketing on its own website “may in the
future adversely affect the volume of user traffic” received from
USAA, when the Demand Board already knew those risks were certain
to come to pass.138
The risk factors section in Item 1A of TrueCar’s 2016 Form 10-K is approximately
twenty pages long.139 The first two statements quoted above come from the part of
the risk factors section discussing TrueCar’s affinity group marketing partners
generally.140 The third statement comes from the part discussing TrueCar’s
relationship with USAA specifically.141
Plaintiffs advance essentially three arguments why a majority of the Demand
Board faces a substantial likelihood of liability with respect to the Challenged
138
Pls.’ Answering Br. 34 (emphasis in original). See also Compl. ¶¶ 104-07.
139
TrueCar Form 10-K filed with the SEC on March 1, 2017, at 9-30. See In re General
Motors (Hughes) S’holder Litig., 897 A.2d 162, 170 (Del. 2006) (permitting the court to
take judicial notice of “hearsay in SEC filings” that is not subject to reasonable dispute)
(internal quotation marks, alterations, and citations omitted).
140
German Aff. Ex. 1 (Excerpts of TrueCar’s 2016 Form 10-K), at 14-15.
141
Id. at 15.
33
Statements, i.e., (i) they failed to correct these statements even though they allegedly
knew about changes USAA was planning to make to its website several months
before the changes were implemented in June 2017; (ii) in the alternative, they
breached their oversight duties under In re Caremark Int’l Inc. Derivative
Litigation;142 and (iii) they were conflicted due to the Securities Class Action. The
court discusses each of these arguments, in turn, below.
1. The Demand Board’s State of Knowledge About the USAA
Website Redesign
“Whenever directors communicate publicly or directly with shareholders
about the corporation’s affairs, with or without a request for shareholder action,
directors have a fiduciary duty to shareholders to exercise due care, good faith and
loyalty.”143 To plead a disclosure claim when there is no request for stockholder
action, as is the case here, a plaintiff must allege that the directors “deliberately
misinform[ed] shareholders about the business of the corporation, either directly or
by a public statement.”144 “[D]irectors who knowingly disseminate false
information that results in corporate injury . . . violate their fiduciary duty . . . .” 145
142
698 A.2d 959 (Del. Ch. 1996).
143
Malone v. Brincat, 722 A.2d 5, 10 (Del. 1998).
144
Id. at 14.
145
Id. at 9; see also In re INFOUSA, Inc. S’holders Litig., 953 A.2d 963, 990 (Del. Ch.
2007) (“When a Delaware corporation communicates with its shareholders, even in the
34
“A determination of whether the alleged misleading statements or omissions
were made with knowledge or in bad faith requires an analysis of the state of mind
of the individual director defendants.”146 Thus, to adequately allege that a director
faces a substantial likelihood of liability for disclosure violations, the plaintiff must
plead specific factual allegations showing “that the director defendants had
knowledge that any disclosures or omissions were false or misleading.”147
With respect to disclosures that appear in “annual reports and other publicly
filed financial reports,” our Supreme Court has held that the “Board’s execution of
[the company’s] financial reports, without more, is insufficient to create an inference
that the directors had actual or constructive notice of any illegality.” 148 This is
absence of a request for shareholder action, shareholders are entitled to honest
communication from directors, given with complete candor and in good faith.
Communications that depart from this expectation, particularly where it can be shown that
the directors involved issued their communication with the knowledge that it was deceptive
or incomplete, violate the fiduciary duties that protect shareholders. Such violations are
sufficient to subject directors to liability in a derivative claim.”).
146
In re Citigroup Inc. S’holder Deriv. Litig., 964 A.2d 106, 134 (Del. Ch. 2009).
147
Id.
148
Wood v. Baum, 953 A.2d 136, 142 (Del. 2008) (citing Guttman v. Huang, 823 A.2d 492,
498 (Del. Ch. 2003) (Strine, V.C.) (dismissing complaint that was “devoid of any pleading
regarding the full board’s involvement in the preparation and approval of the company’s
financial statements” and of “particularized allegations of fact demonstrating that the
outside directors had actual or constructive notice of the accounting improprieties.”); see
id. (“We conclude that the Court of Chancery correctly applied Delaware law in declining
to infer from the Board’s approval either that (i) each member of the Board knew that the
alleged transactions were improper or that (ii) the Board consciously and in bad faith failed
to discharge fiduciary or contractual responsibilities with respect to those transactions.”).
35
because, without “particularized facts to connect the board” to the challenged
statements, “there is reason to doubt that the board knew that the statements were
false or misleading or acted in bad faith by not adequately informing themselves
about the statements.”149 Thus, in determining whether scienter has been sufficiently
plead, the court looks for allegations demonstrating “sufficient board involvement
in the preparation of the disclosures” or that the director defendants “were otherwise
responsible for” the disclosures.150
The Complaint alleges that by “early 2017, USAA informed TrueCar that it
would significantly redesign the co-branded car-buying site, and that the changes
149
In re Dow Chem. Co. Deriv. Litig., 2010 WL 66769, at *11 (Del. Ch. Jan. 11, 2010).
See also Steinberg on behalf of Hortonworks, Inc. v. Bearden, 2018 WL 2434558, at *10
(Del. Ch. May 30, 2018) (holding that although a director who signed a SOX certification
for a Form 10–Q was differently situated from the other directors who were not alleged to
have played any specific role concerning the inclusion of disclosures in the Form 10–Q,
none faced a substantial likelihood of liability because plaintiffs had failed to allege
scienter); Ellis v. Gonzalez, 2018 WL 3360816, at *10 (Del. Ch. July 10, 2018) (plaintiffs
failed to establish a substantial likelihood of liability for the disclosures because “[t]he
Complaint fails to plead any particularized facts supporting a reasonable inference that the
Director Defendants knew about the September 29 letters—much less that they signed off
on them”) (emphasis added); In re China Auto. Sys. Inc. Deriv. Litig., 2013 WL 4672059,
at *8 (Del. Ch. Aug. 30, 2013) (plaintiffs alleged that “all five directors attested to the
misleading financial statements by signing one of the SEC filings at issue,” but did “not
allege with particularity any direct or personal involvement . . . in the Company’s
preparation of its financial statements, in the Board’s or Audit Committee’s review of
SLF’s auditing of the financial statements, or in any other capacity by which the Court
could reasonably infer that a majority of the Defendants had any knowledge that their
actions or inactions were harmful to the corporation or a breach of their fiduciary duties”)
(emphasis added).
150
Citigroup, 964 A.2d 106 at 133 n.91, 134.
36
would require USAA members to answer a multitude of additional questions about
their personal finances, and to review information related to [the] total cost of new
car ownership, before being able to access the TrueCar car buying site.”151 This
initiative reflected USAA’s shift to a more “advice-centric organization” that would
focus on its members’ financial health and de-emphasize new car purchases.152
According to Plaintiffs, six of the Demand Board directors learned about the
USAA website redesign at the Board’s February 9, 2017 meeting and were obligated
to cause the Company to correct the Challenged Statements thereafter because the
redesign was expected to have a material adverse impact on TrueCar’s financial
performance, but they failed to do so. Plaintiffs further contend that these six
directors subsequently “continued to conceal the truth and affirmatively mislead
investors.”153
As discussed below, the court finds that Plaintiffs have failed to plead with
particularity facts demonstrating that any of the directors on the Demand Board
knew about the USAA website redesign before they were briefed on the issue at a
Board meeting in September 2017, and thus Plaintiffs have failed to sufficiently
151
Compl. ¶ 92.
152
Id. ¶ 89.
153
Pls.’ Answering Br. at 36.
37
plead facts demonstrating scienter concerning the alleged inaccuracy of the
Challenged Statements up to that time. To examine the state of the directors’
knowledge, the court considers Plaintiffs’ allegations chronologically for three time
periods: (i) up to the Secondary Offering, which closed by early May 2017; (ii) after
the close of the Secondary Offering and before the September 2017 meeting where
the Board was briefed on the USAA website redesign; and (ii) from the September
2017 Board meeting until November 6, 2017, when TrueCar released its results for
its third quarter ending September 30, 2017 and publicly disclosed the USAA
website redesign and the impact it had on TrueCar’s business in the third quarter.
a. The Demand Directors’ Knowledge up to the
Secondary Offering
As discussed above, USAA directs customers to TrueCar through a website it
co-branded with TrueCar and that TrueCar “hosted, managed and operated.”154 “In
or around January 2017,” USAA decided to redesign the website “to deemphasize
car purchasing.”155 According to the Complaint, although the changes to the website
did not become effective until June 1, 2017, USAA informed TrueCar about the
website redesign by “early 2017.”156 It is logical that members of TrueCar’s
154
Compl. ¶ 82.
155
Id. ¶ 91.
156
Id. ¶¶ 91-92.
38
management would have become aware of the website redesign at some point in
advance of its implementation—although it is not clear precisely what they knew
about the redesign and when they knew it—given that “any changes USAA made to
the car buying site required TrueCar’s implementation.”157 Indeed, during the
November 6, 2017 earnings call, TrueCar’s CEO at the time acknowledged that the
Company saw the “changes coming.”158 The critical question before the court,
however, is not when TrueCar’s management learned about the website redesign,
but when the members of the Demand Board were informed about the redesign and
understood its significance to TrueCar’s financial performance.
Plaintiffs contend that six of the eight members of the Demand Board (Buce,
Krafcik, Yadigaroglu, Claus, Lantz, and Nichols) learned about the USAA website
redesign during a regularly scheduled Board meeting held on February 9, 2017. For
support, Plaintiffs point to two statements and a chart in the Board materials for the
meeting. The first statement is that one of the Company’s goals for 2017 was to “re-
energize” its relationship with USAA.159 The second statement appears on a page
identifying nine risks for the Company in 2017, one of which was “USAA
157
Id. ¶ 82.
158
Id. ¶ 149.
159
Compl. ¶ 94; see also February 2017 Board Presentation at 40.
39
underperformance.”160 The chart, as described by Plaintiffs, showed that “USAA’s
year-over-year unit growth had peaked at 16% in the fourth quarter of 2016, and was
expected to fall sequentially to 15%, 12%, 11%, and 10% over the next four
quarters.”161 In my opinion, these references are insufficient to demonstrate with
particularity that the directors present at the February 2017 Board meeting were told
about the USAA website redesign at that meeting, much less that they knew the
redesign would negatively impact TrueCar’s financial performance in a materially
adverse manner.
To start, the Board materials never mention the co-branded website or that
USAA planned to redesign its website. Nor is there any such reference in the minutes
of the meeting.162 Second, the chart Plaintiffs rely on does not show that the
Company’s sales attributable to USAA were expected to suffer later in 2017, when
the website redesign was to be implemented. To the contrary, the chart shows that
TrueCar’s overall outlook, and its outlook for sales generated by USAA in particular,
was positive for 2017.
160
Compl. ¶ 94; see also February 2017 Board Presentation at 67. The other nine factors
covered a range of items, including a litigation risk, “monetization,” “data costs,” and
“macroeconomics.” February 2017 Board Presentation at 67.
161
Compl. ¶ 95.
162
See German Aff. Ex. 13 (February 9, 2017 Board meeting minutes).
40
With respect to USAA specifically, the chart projected (i) increasing unit sales
for 2017, growing from 64.2 million in the first quarter to 75.5 million by the fourth
quarter of 2017; (ii) overall growth of approximately 12% from fiscal year 2016 to
fiscal year 2017, i.e., from approximately 255 units in 2016 to 285 units in 2017;
(iii) year-over-year quarterly growth for all the quarters in 2017; (iv) and growth for
the second half of 2017, after the website changes were to be implemented.163 This
forecast is flatly inconsistent with the suggestion that the Board was informed at its
February 2017 meeting that USAA’s plan to change its website would negatively
impact TrueCar’s financial performance. Plaintiffs’ counsel acknowledged as much
at oral argument, conceding it was a “reasonable inference” that “the upcoming
change to the USAA website, . . . , was not taken into account in the forecast.”164
At bottom, Plaintiffs’ contention that six of the Demand Board directors knew
in February 2017 that the Challenged Statements were false depends on two
references in the Board materials about risk of “USAA underperformance” and the
desire to “re-energize” the Company’s relationship with USAA.165 Given the
163
See February 2017 Board Presentation at 58.
164
Tr. at 54 (emphasis added).
165
It is no surprise that “USAA underperformance” would be listed as one of the
Company’s nine risks for 2017 given, as Plaintiffs allege, USAA accounted for 32% of the
units TrueCar sold and 45% of its total contribution profit for 2016. Compl. ¶ 94. To that
end, TrueCar’s Board presentations in 2017 regularly separated out the data for USAA
from TrueCar’s other affinity partners. See February 2017 Board Presentation; German
41
vagueness of these phrases, which are susceptible to multiple interpretations; the
absence of any direct reference to the USAA website or its redesign in the Board
package or the minutes of the meeting; and that the forecast in the Board package
provided no indication that TrueCar expected its sales from USAA to be adversely
impacted in 2017 and, to the contrary, projected that those sales would increase;
Plaintiffs have failed to allege with particularity facts sufficient to support a
reasonable inference of scienter, i.e., that the directors in attendance at the meeting
knew before they signed or approved the Company’s 2016 Form 10-K that
TrueCar’s business, and specifically its USAA channel, would suffer in the second
half of 2017.166
On April 17, 2017, the Board held a special meeting during which it
authorized the Secondary Offering.167 The Complaint alleges that the same six
directors on the Demand Board signed off on the same risk disclosures in the
Secondary Offering Documents.168 The Complaint does not allege, however, any
Aff. Exs. 5 (May 2017 Board Presentation), 6 (July 2017 Board Presentation), 8
(September 2017 Board Presentation).
166
According to the Complaint, six members of the Demand Board (Buce, Krafcik,
Yadigaroglu, Claus, Lantz, and Nichols) signed the 2016 Form 10-K and three of them
(Buce, Claus, and Lantz) served on the Audit Committee that “reviewed and approved” the
Form 10-K for filing with the SEC. Compl. ¶¶ 103-04.
167
Id. ¶ 108.
168
Id. ¶¶ 114, 116.
42
facts indicating that the Board learned any information about the website redesign
between the February Board meeting and when the Secondary Offering Documents
were completed on April 26, 2017. Without more, there is no basis to infer that any
of the Demand Board directors knew that the Challenged Statements were inaccurate
when the final documents for the Secondary Offering were approved.
Plaintiffs’ allegations regarding TrueCar stock sales also do not support an
inference of scienter on behalf of any of the Demand Board directors. To begin,
none of the Demand Board directors are alleged to have sold shares of TrueCar
personally before or in connection with the Secondary Offering.169 Plaintiffs
contend that entities affiliated with Claus (USAA), Nichols (Upfront), and
Yadigaroglu (Capricorn) sold a substantial number of shares in the Secondary
Offering.170 As discussed in Part III.B above, however, the shares sold by USAA
and Upfront cannot be attributed to Claus and Nichols. Although Capricorn’s sales
may be attributed to Yadigaroglu at this stage of the case, the circumstances of
Capricorn’s stock sales, by themselves, do not support a reasonable inference of
scienter with respect to Yadigaroglu for the reasons discussed in Part III.E below.
169
See Compl. ¶ 176.
170
Id. ¶¶ 33, 113, 176.
43
 Finally, Plaintiffs contend the court may infer scienter because “Directors are
presumed to have knowledge of the corporation’s core operations that drive the
Company’s bottom line, as is the case here with respect to the significant website
changes implemented by TrueCar’s single-greatest contributor to its revenues and
profits.”171 Plaintiffs again cite Fitbit for support, but this case does not aid them.172
In Fitbit, Vice Chancellor Slights specifically stated that the core operations
“doctrine is not sufficient on its own in the context of generally pled allegations to
establish scienter.”173 In addition to pleading “that the products featuring
the . . . technology [at issue] accounted for 80% of Fitbit’s revenue,” the Plaintiffs
in Fitbit also plead:
that Fitbit experienced serious problems with the technology early on,
that Fitbit attempted to design fixes to the problems and those fixes
were not working, that management was keeping the Board apprised of
the problems and the efforts to address them, and that, all the while,
Fitbit was touting the promise and success of [the technology] to the
market.174
The Fitbit court thus concluded that “[t]he totality of the facts Plaintiffs have pled
with particularity allow a reasonable pleading stage inference that, because the
171
Pls.’ Answering Br. at 32 (internal quotation marks and emphasis omitted).
172
2018 WL 6587159, at *15 & n.179 (Del. Ch. Dec. 14, 2018).
173
Id. (emphasis added).
174
Id. at *15 (emphasis added).
44
problems with [the technology] were profound and . . . drove the Company’s bottom
line, . . . the Board knew of the alleged material, nonpublic information.”175
Here, unlike in Fitbit, Plaintiffs do not allege particularized facts to allow a
reasonable inference that TrueCar management provided reports to or otherwise
informed the Board about any expected changes to the USAA website at any time
before the Secondary Offering closed.176 Given the absence of such allegations, the
core operations doctrine “on its own” does not allow the court to infer scienter based
on the general allegation that USAA was the single-greatest contributor to TrueCar’s
revenues and profits.177
175
Id.
176
See id. at *5, *7, *12 (alleging that directors received reports detailing the company’s
inability to remedy problems, that there were internal management reports detailing the
inability to fix the problems, and that management sought to conceal this information by
instructing employees to destroy sensitive presentation slides).
177
2018 WL 6587159, at *15 & n.179.
45
b. The Demand Directors’ Knowledge Between the
Secondary Offering and the September Board Meeting
This section considers Plaintiffs’ allegations of scienter for the period after
the close of the Secondary Offering in early May 2017 and before the September 15,
2017 Board meeting.
On May 3, 2017, Demand Board directors Buce, Claus, and Lantz participated
in a meeting of the Audit Committee that “discussed changes to the Company’s risk
factors in its SEC filings. . . . [and] approved filing the Form 10-Q without updating
the risk disclosure regarding USAA, despite the fact that . . . the roll-out of the
redesigned USAA co-branded car buying website . . . was mere weeks away.”178
The Complaint does not allege any particularized facts concerning this meeting that
would allow the court to infer that these individuals had learned of any information
concerning USAA’s website redesign. Absent such allegations, the court cannot
reasonably infer that Buce, Claus, and Lantz had the requisite scienter to face a
substantial likelihood of liability for failing to change the risk disclosures in the
Company’s Form 10-Q for the first quarter of 2017, which was issued in May.
The Complaint next alleges that, after TrueCar implemented the website
changes on June 1, 2017, “[t]he Individual Defendants were immediately aware of
178
Compl. ¶ 117 (emphasis omitted).
46
USAA’s sales declines because they had real-time access to the Company’s
transactions.”179 This allegation, however, is unsupported by any particularized facts
concerning the knowledge of any of the Demand Board directors. Accepting as true
that members of TrueCar management overseeing the USAA relationship had real-
time access to sales transactions generated by USAA, and that they “were
immediately aware” of declines or, as Guthrie, TrueCar’s CFO at the time, told
investors during an earnings call, at least “started to see [the shortfall] in August and
September[,]” the Complaint pleads no facts suggesting that this subject was brought
to the attention of the Board at any time until its September 15 meeting.180
At its July 27, 2017 meeting, the Board discussed “a minor change that USAA
had previously implemented to its website” that was unrelated to the website
redesign implemented in June 2017.181 Notably, the Complaint cites this event as
179
Id. ¶ 124 (alleging that, at an investor conference in May 2017, Guthrie discussed the
Company’s access to “dealer management software,” which “showed all car sales at the
dealership in real time, including for the Company’s affinity partner sites such as
USAA’s: ‘What that allows us to do is see every transaction that flows through the
dealership. We know every transaction that comes through either our branded business or
through our affinity business.’”) (emphasis omitted).
180
Id. ¶ 151; German Aff. Ex. 10 (November 6, 2017 earnings call transcript), at 12.
181
Compl. ¶ 130 (“A slide in the presentation materials distributed to the Board noted an
‘11% decrease in total new car search visitors’ from the first quarter of 2016 to the second
quarter of 2017, and explained that ‘USAA loss of new car traffic [was] due to removal of
site link.’”); see also German Aff. Ex. 6, at 6.
47
evidence that the Board was “closely monitoring USAA’s co-branded website.”182
Yet, the only other allegations concerning the July Board meeting relevant to USAA
are vague references in the Board materials for the CEO’s update that the
relationship with USAA was “fragile” and “needs more attention.”183
The only other facts alleged for the period from early May until the Board’s
September meeting involving the Demand Board directors relate to an Audit
Committee meeting held on August 3, 2017, which Buce, Claus, and Lantz attended,
and several stock sales by Buce, Krafcik, and Yadigaroglu in August.184 Here too
the Complaint does not allege that the Audit Committee discussed the USAA
website redesign or any expected negative results from its implementation to support
a reasonable inference of scienter when the Company’s second quarter Form 10-Q
was approved for filing at that meeting.185
Finally, the Complaint alleges that Buce, Krafcik and Yadigaroglu (through
Capricorn) sold shares in the latter part of August.186 As discussed below in
182
Compl. ¶ 130.
183
Id. ¶ 129.
184
Id. ¶¶ 132, 176.
185
Id. ¶ 132.
186
Id. ¶ 176.
48
Part III.E, the circumstances of these sales, by themselves, do not raise suspicion to
warrant an inference of scienter.
c. The September Board Meeting and Later Events
This section considers Plaintiff’s allegations for the period from September
15, 2017, when the Board was informed about the USAA website redesign, to the
Company’s earnings release on November 6, 2017.
According to the Complaint, the Board held a special meeting on September
15, 2017 where a presentation was made concerning USAA’s website redesign.
Specifically, the presentation included a slide titled “Old vs. New USAA Consumer
Experience” that illustrated the redesign with screenshots comparing USAA’s “Old
Experience Landing Page,” which was devoted almost entirely to searching and
shopping for cars, to its “New Experience Landing Page,” which shows only one
box titled “Find My Next Car” among several other boxes concerning financing,
insurance, and budgeting.187 The presentation also explained that “preliminary
August results indicate below guidance performance,” that “USAA [unit]
performance significantly affected . . . Q3 2017,” and that TrueCar was projecting
187
Id. ¶ 139; German Aff. Ex. 8, at 12.
49
approximately 12,000 lost USAA sales for the third quarter, equating to
approximately $1.8 million in lost USAA revenue for the quarter.188
The Complaint next discusses the Board’s regular meeting on October 26,
2017, where the Company’s Chief Product Officer gave a presentation regarding the
new user experience on the USAA site.189 The presentation showed that the “USAA
[channel] struggled in Q3” and “USAA’s new experience introduces more barriers
to entry into the car buying service,” which “significantly impacted USAA’s [unit]
performance.”190 A few days later, during a regular meeting of the Disclosure
Committee held on October 30, the Company’s Deputy General Counsel “discussed
updates to the Risk Factors included in the Form 10-Q” and the “Committee
discussed certain disclosures related to the Company’s relationship with USAA and
the effect of recent changes to the user experience on USAA’s car buying service on
the Company.”191
On November 6, 2017, TrueCar released its results for the third quarter ended
September 30, 2017 and reported a net loss of $9.5 million.192 During an earnings
188
German Aff. Ex. 8, at 4, 11; Compl. ¶ 138.
189
Compl. ¶ 141; German Aff. Ex. 9 (October 2017 Board Presentation), at 71.
190
Compl. ¶ 141; German Aff. Ex. 9, at 70-71.
191
Compl. ¶ 142.
192
Id. ¶ 143.
50
call held that day, management discussed the changes to USAA’s website and its
impact on TrueCar’s business, including a 5% decline in units generated by USAA
in the third quarter.193 Guthrie, TrueCar’s CFO at the time, explained during the call
that USAA’s performance was “pretty good” in July and that the Company “started
to see” the shortfall caused by the USAA website redesign in August.194
The Complaint does not allege that any of the Demand Board directors sold
sales shares of TrueCar from September 15, 2017 to the earnings release on
November 6, 2017, either personally or, in the case of Yadigaroglu, through
Capricorn.195
*****
To summarize the above discussion, the Complaint fails to allege with
particularity facts to support a reasonable inference that any of the members of the
Demand Board knew about the USAA website redesign that was implemented in
June 2017 or its potential impact on TrueCar’s financial performance until they were
briefed on the issue at the September 15, 2017 Board meeting. Given Plaintiffs’
failure to sufficiently allege scienter, Plaintiffs have failed to show that any of the
193
Id. ¶ 144.
194
Id. ¶ 151.
195
Id. ¶ 176.
51
Demand Board directors acted in bad faith so as to face a substantial likelihood of
liability for failing to correct the three Challenged Statements during this period.
The Board’s actions after learning about the USAA website redesign at the
September 15 Board meeting are discussed in the next section in response to
Plaintiffs’ contention that directors on the Demand Board ignored red flags and thus
face a substantial likelihood liability under a Caremark theory.
2. The Caremark Claim
Plaintiffs argue that even if “the Demand Board did not have actual knowledge
of the USAA/TrueCar Website changes and their inevitable negative effects, they
still face a substantial risk of liability under a classic Caremark theory for failing to
apprise themselves of such information.”196
To plead a substantial likelihood of liability under Caremark, a stockholder
must allege particularized facts to show that either (i) “the directors utterly failed to
implement any reporting or information system or controls” or that (ii) “having
implemented such a system or controls, [the directors] consciously failed to monitor
or oversee its operations thus disabling themselves from being informed of risks or
problems requiring their attention.”197 Plaintiffs make no effort to plead a Caremark
196
Pls.’ Answering Br. at 46.
197
Reiter v. Fairbank, 2016 WL 6081823, at *7 (Del. Ch. Oct. 18, 2016).
52
claim under the first theory, nor could they do so. The Complaint acknowledges that
TrueCar had systems in place to review and approve its public filings, including an
Audit Committee and a Disclosure Committee charged with handling the
Company’s public filings with the SEC.198
Plaintiffs instead argue that, “assuming TrueCar had a Board-level monitoring
system in place, the Demand Board failed to utilize that system in the face of
significant red flags,” for which they point to the following:
the prior USAA website change to the location and prominence of links
to TrueCar’s platform that led to a substantial loss of traffic from
USAA, and numerous Board presentations identifying the USAA
relationship as ‘fragile,’ that ‘USAA underperformance’ was a top risk,
and projecting a declining USAA growth rate for all of 2017.199
These allegations are woefully insufficient to support a reasonable inference that the
“directors were conscious of the fact that they were not doing their jobs, and that
they ignored red flags indicating misconduct.”200
As discussed above, the vague references to a “fragile” relationship and
“USAA underperformance” in Board presentations fail to demonstrate with
198
See Compl. ¶¶ 58 (Audit Committee responsible for, among other things, reviewing the
Company’s annual and quarterly reports on Form 10-K and 10-Q), 60 (Disclosure
Committee responsible for, among other things, adopting and implementing procedures
and policies concerning the preparation of SEC reports).
199
Pls.’ Answering Br. at 46-47 (citing Compl. ¶¶ 94-95, 129) (emphasis omitted).
200
In re LendingClub, 2019 WL 5678578, at *11 (citation omitted).
53
particularity that the directors were made aware of USAA’s website redesign, much
less that they knew that the redesign would have a material adverse impact on
TrueCar’s financial performance.201 Indeed, the forecast provided to the Board in
February 2017 presented a positive outlook for sales generated by USAA.202
Additionally, the fact that the Board was made aware in July 2017 of a “prior USAA
website change” and told in September 2017 about the website redesign that USAA
implemented in June 2017, demonstrates that the Company’s monitoring systems
kept the Board apprised of important developments concerning its relationship with
USAA.203
Finally, the Complaint’s allegations belie Plaintiffs’ suggestion that the Board
failed to do anything to correct the Challenged Statements after learning about the
website redesign. To the contrary, the allegations of the Complaint depict a
reasonable progression of events over the course of about seven weeks: (i) calling a
special meeting on September 15 to brief the Board about the website redesign after
preliminary results for August raised a concern that the USAA channel was
performing below guidance,204 (ii) discussing the Company’s third quarter results at
201
See supra Parts III.D.1.a-b.
202
See supra Part III.D.1.a.
203
See supra Parts III.D.1.b-c.
204
Compl. ¶¶ 137-39.
54
a regular Board meeting on October 26,205 and (iii) then releasing the Company’s
results ten days later with an explanation concerning USAA’s website redesign and
its impact on TrueCar.206
In short, this is not a case where the Board “had notice of serious misconduct
and simply failed to investigate.”207 Based on the allegations in the Complaint, none
of the members of the Demand Board face a substantial likelihood of liability for a
Caremark claim.
3. The Securities Class Action
Plaintiffs assert for their final demand futility argument as to the Disclosure
Claim that “not a single member of the Demand Board could have considered a
demand impartially because doing so would have undercut or even compromised the
defense of the then-pending Securities Class Action.”208 In making this argument,
Plaintiffs quote part of a sentence from a two-paragraph order the district court in
the Securities Class Action entered in denying defendants’ motion to dismiss, as
follows: “[T]he court had found that the plaintiff adequately alleged ‘a strong
inference of scienter by alleging that Defendants knew about USAA’s website
205
Id. ¶¶ 141; German Aff. Ex. 8.
206
Compl. ¶¶ 143-49, 151-53.
207
South v. Baker, 62 A.3d 1, 15 (Del. Ch. 2012).
208
Pls.’ Answering Br. at 55-58.
55
redesign and its impact as of January 2017.’”209 The district court’s entire analysis,
including the quoted statement, is provided below:
The Court has reviewed Plaintiff’s Amended Class Action Complaint
and Defendants’ motion to dismiss. For purposes of the motion-to-
dismiss stage, Plaintiff has adequately alleged—under both the
plausibility and heightened pleading standards—that Defendants made
materially false and misleading statements by making risk statements
regarding TrueCar’s reliance on USAA’s website without alerting the
public that the risk had already come to fruition and by falsely
representing that USAA would be a key driver of unit and revenue
growth in 2017. Furthermore, Plaintiff has adequately alleged a strong
inference of scienter by alleging that Defendants knew about USAA’s
website redesign and its impact as of January 2017 and that Guthrie and
Pierantoni sold TrueCar stock in sales that were suspicious in their
timing, size, and amount, especially in light of Guthrie’s and
Pierantoni’s prior sales. Assuming, as it must, the allegations to be true,
the Court DENIES Defendants’ motion to dismiss.210
Plaintiffs’ argument fails for two reasons in my view.
First, as plead in the Complaint, although the Securities Class Action asserted
scienter-based claims against certain TrueCar officers, including Perry, Guthrie, and
Pierantoni,211 it only asserted “strict liability and negligence claims” against the non-
209
Pls.’ Answering Br. at 56.
210
Milbeck, 2019 WL 476004, at *1 (citations omitted).
211
Compl. ¶¶ 26-28 (alleging that claims under Section 10(b) of the Exchange Act, Rule
10b-5 promulgated thereunder, and Section 20(a) of the Exchange Act were asserted
against Guthrie (CFO), Perry (President and CEO), and Pierantoni (CAO)).
56
officer directors of TrueCar, which include six members of the Demand Board.212
Given TrueCar’s exculpatory charter provision and the absence of scienter-based
claims against the Demand Board directors named in the Securities Class Action,
those directors would not face a substantial likelihood of personal liability in that
action so as to compromise their ability to impartially consider a demand with
respect to the Disclosure Claim here.
Vice Chancellor McCormick reached a similar conclusion in In re
LendingClub Corp. Derivative Litigation.213 There, plaintiffs contended that a
related federal securities action asserting strict liability and negligence claims
against members of a demand board compromised those directors’ ability to
impartially consider a demand concerning the subject matter in that action.214 The
LendingClub court cogently explained that:
212
Id. ¶¶ 29-33, 37-39 (alleging “strict liability and negligence claims . . . under Sections
11, 12(a)(2), and 15 of the Securities Act” against current and former TrueCar directors).
213
2019 WL 5678578 (Del. Ch. Oct. 31, 2019).
214
Id. at *15-16.
57
 To hold the Director Defendants liable in this action, Plaintiffs must
prove that the directors acted in bad faith—that is, there must be some
factual support speaking to the Director Defendants’ state of mind at
the time the challenged conduct occurred. By contrast, the Section 11
claims sustained against the Director Defendants in the Securities Class
Action did not require a showing of scienter. The only claims that
required a showing of scienter in the Securities Class Action were the
Section 10(b) and Rule 10b-5 claims asserted exclusively against [non-
Demand Board members]. Liability under Section 11 would not, in and
of itself, have gotten to the heart of whether the directors acted in bad
faith concerning wrongdoing at issue in both actions. There is thus no
basis for this Court to conclude that the Demand Board members would
have viewed the Securities Class Action as posing a substantial
likelihood of liability concerning the Caremark claims in this case.215
Although the companion federal securities action in LendingClub did not survive a
motion to dismiss until after the complaint was filed in the Court of Chancery, Vice
Chancellor McCormick went on to explain that “the federal court’s [eventual]
decision to sustain the Section 11 claims in the Securities Class Action does not alter
the analysis, because the Section 11 claims do not speak to the main ground in this
case—the Director Defendants’ good faith.”216
Second, the parties in the Securities Class Action executed a Settlement
Agreement that was filed with the district court on August 2, 2019, before the first
complaint in this action was filed on August 22, 2019.217 As is typical, the
215
Id.
216
Id. at *16.
217
See Dkt. 5.
58
Settlement Agreement denies all wrongdoing and releases all claims in the case.218
Although the district court did not finally approve the settlement until January 27,
2020,219 after this action commenced, execution of the Settlement Agreement
eliminated as a practical matter any reason to doubt that the Securities Class Action
would compromise the ability of the Demand Board directors to impartially consider
a demand with respect to the Disclosure Claim out of concern that those directors
were exposed to personal liability in the Securities Class Action.
Once again citing Fitbit, Plaintiffs argue that “the Defendants could not
consider a demand to prosecute this action without compromising their factual
defenses in the Securities Class Action” because they “are premised on the same
underlying factual conduct.”220 After determining that the plaintiffs had alleged
sufficient “well-pled facts . . . [to] adequately support a reasonable inference that the
Selling Defendants sought to make trades based on nonpublic information,” the
Fitbit court considered the findings in a companion federal case.221 In particular, the
218
See Settlement Agreement, at 8 (Part III “Defendants’ Denial of Wrongdoing and
Liability”), 29 (§ 5 “Release of Claims”). The court may take judicial notice of these terms
because they are not subject to reasonable dispute between the parties. In re Rural Metro
Corp. S’holder Litig., 2013 WL 6634009, at *9 (Del. Ch. Dec. 17, 2013) (taking judicial
notice of a federal court filing).
219
Final Approval Order.
220
Pls.’ Answering Br. at 58.
221
2018 WL 6587159, at *15-16.
59
Court of Chancery noted that the district court had found “that a holistic review of
the allegations suffices to establish scienter[,]” which bolstered the Court of
Chancery’s conclusion that knowledge had been sufficiently pled against four of
seven Fitbit demand board members.222 The Court of Chancery thus reasoned that
a majority of the demand board was incapable of considering a demand impartially
because those directors faced a substantial likelihood of liability in the companion
federal case.223
Here, it is unclear from the paragraph quoted above containing the district
court’s analysis in the Securities Class Action whether its comments concerning
scienter were intended to apply to all defendants in that action or—as would be
logical—only to those who were the subject of scienter-based claims, such as
Guthrie and Pierantoni, two officers whom the district court found had engaged in
suspicious stock sales. The term “Defendants” is not defined in the district court’s
order, nor does the district court discuss the allegations on which it relied or the
rationale for its conclusions, other than relating to Guthrie and Pierantoni.
222
Id. at *16-17.
223
Id. at *11, *16.
60
 As for Plaintiffs’ argument, it also is unclear what “factual defenses” a
director would fear having compromised in a case that only asserts claims for strict
liability and negligence against him, for which the director would be exculpated
from personal liability.224 In any event, here, unlike in Fitbit, (i) the allegations in
the Complaint do not support a reasonable inference of scienter, i.e., that the
directors on the Demand Board knew of the website redesign or its impact at the
time of the alleged misconduct and (ii) even if they did, there was an executed
Settlement Agreement in place before this action was filed that, for all intents and
purposes, eliminated any reason to doubt the ability of the Demand Board directors
to impartially consider a demand with respect to the Disclosure Claim.225
224
The issue of personal liability is typically the core inquiry for assessing a director’s
impartiality with respect to companion actions concerning the same or similar alleged
misconduct. See, e.g., In re GoPro, Inc., 2020 WL 2036602, at *15 & n.181 (Del. Ch. Apr.
28, 2020) (demand not excused because plaintiffs failed to plead that “a majority of the
Demand Board faces a substantial likelihood of personal liability, either with respect to the
related securities litigation or the Brophy claim pending here” and “only a substantial
likelihood of liability would make it ‘improbable that the director could not perform her
fiduciary duties to the shareholders’”); Rojas on behalf of J.C. Penney Co., Inc. v. Ellison,
2019 WL 3408812, at *14 (Del. Ch. July 29, 2019) (demand not excused because plaintiffs
failed to allege that a majority of the demand board faced a substantial likelihood of liability
for consciously failing to monitor and none had “any personal exposure in [the related
federal securities] action”); Pfeiffer v. Toll, 989 A.2d 683 (Del. Ch. 2010) (demand was
futile because a majority of the demand board faced a substantial likelihood of liability for
claims in a pending parallel securities class action), abrogated on other grounds by Kahn
v. Kolberg Kravis Roberts & Co. L.P., 23 A.3d 831 (Del. 2011).
225
Fitbit, 2018 WL 6587159, at *9, *17 (companion federal case settled nearly a year after
the Court of Chancery action was initiated).
61
For the reasons explained above, Plaintiffs have failed to plead with
particularity facts sufficient to impugn the impartiality of any of the members of the
Demand Board to consider a demand with respect to the Disclosure Claim based on
the pendency of the Securities Class Action when this action was filed.
*****
More broadly, for all the reasons explained in Parts III.D.1-3, Plaintiffs have
failed to plead with particularity facts sufficient to impugn the impartiality of any of
the members of the Demand Board to consider a demand with respect to the
Disclosure Claim based on any of the theories they have advanced, i.e., (i) for failing
to correct the Challenged Statements, (ii) based on a Caremark theory, or (iii) based
on the pendency of the Securities Class Action.
E. Whether Demand is Excused as to the Brophy and Unjust
Enrichment Claims
Plaintiffs appear to assert essentially four arguments why a majority of the
Demand Board could not impartially consider the Brophy and unjust enrichment
claims, which will be referred to hereafter, together, as the Brophy claim.226 The
first three grounds overlap with arguments the court already has addressed and the
226
The parties analyzed the Brophy and unjust enrichment claims together, as will the court.
This is sensible because “the public policy underlying a Brophy claim is to prevent unjust
enrichment based on the misuse of confidential corporate information.” In re Fitbit, Inc.
S’holder Deriv. Litig., 2019 WL 190933, at *4 n.26 (Del. Ch. Jan. 14, 2019).
62
fourth ground concerns the Demand Board directors who are targets of the Brophy
claim. The court addresses each of these arguments in turn.
First, Plaintiffs assert that seven of the eight members of the Demand Board
(all but non-party McKoy) are conflicted “because the Brophy claim is premised on
the same facts (and knowledge/scienter) as the false and misleading statements claim
for which all of the Demand Defendants face a substantial likelihood of liability.”227
As explained in Parts III.D.1-2, none of the Demand Board directors face a
substantial likelihood of liability with respect to the Disclosure Claim and thus there
is no reason to doubt their impartiality to consider a demand as to that claim.
Second, Plaintiffs contend that a majority of the Demand Board is conflicted
due to the Securities Class Action. As discussed in Part III.D.3, none of the six
Demand Board directors named in that case face a substantial likelihood of liability
in the Securities Class Action because they would be exculpated for all the claims
asserted against them (for strict liability and negligence) and because an executed
Settlement Agreement was in place in that action before this case was filed. Thus,
227
Pls.’ Answering Br. at 51.
63
there is no reason to doubt their impartiality to consider a demand at to the Brophy
claim, which requires proof of scienter.
Third, Plaintiffs assert that Claus is “conflicted with respect to this claim due
to his significant affiliation with USAA.”228 There are two basic problems with this
contention. The first is that Claus’ independence is an academic question because
the Brophy claim fails to state a claim for relief against USAA because USAA does
not owe a fiduciary duty to TrueCar or its stockholders for the reasons explained in
Part III.A. The second problem is that Plaintiffs have failed to plead facts sufficient
to create a reasonable doubt about Claus’s independence from USAA.
The Complaint alleges that Claus was last employed by USAA in March 2014,
serves on the board of a USAA affiliate (USAA Real Estate Company), and serves
on the TrueCar Board as USAA’s “representative.”229 Apart from the fact that
Claus’s employment with USAA ended about three and a half years before this
action was filed, the Complaint fails to allege any additional facts about his former
employment with USAA—such as any significant relationships with USAA’s
current leadership—to overcome the presumption of independence directors are
228
Pls.’ Answering Br. at 51.
229
Compl. ¶¶ 37, 80.
64
accorded under Delaware law.230 Nor does the Complaint allege that Claus received
material compensation for his service on USAA Real Estate’s board or that USAA
has the unilateral power to remove Claus from that board or the TrueCar Board, such
that his “discretion would be sterilized.”231 Without more, it is not reasonable to
doubt Claus’s independence from USAA for purposes of considering a demand.
Fourth, and finally, Plaintiffs contend that—at most232—Buce, Claus, Krafcik,
Nichols, and Yadigaroglu could not impartially consider a demand with respect to
the Brophy claim because each is a target of the claim and faces a substantial
likelihood of liability for breaching his fiduciary duty of loyalty for insider
trading.233 For the reasons explained in Part III.B, the Complaint fails to state a
Brophy claim against Claus or Nichols because neither is alleged to have sold
230
Odyssey P’rs, L.P. v. Fleming Cos., 735 A.2d 386, 408 (Del. Ch. 1999) (past
employment with an interested party is not enough to rebut independence); Baiera, 119
A.3d at 60.
231
See Rales, 634 A.2d at 934-36; MCG Capital Corp. v. Maginn, 2010 WL 1782271, at
*20 (Del. Ch. May 5, 2010) (plaintiff failed to allege that $100,000 in director
compensation was material to two directors, and thus failed to allege that their “judgment
would be impaired by the threat of losing” that compensation).
232
It is unclear whether Plaintiffs intended to assert a Brophy claim against Claus and
Nichols as neither is included in the definition of “Individual Selling Defendants” as to
which the Brophy claim is asserted. See Compl. ¶¶ 45, 209, 215. Also, Plaintiffs’ brief
does not identify Claus as a target of the Brophy claim. See Pls.’ Answering Br. at 47-53.
233
Pls.’ Answering Br. at 49.
65
TrueCar shares personally and because the stock sales of USAA and Upfront are not
attributable to Claus and Nichols, respectively.
Given the points addressed above, Plaintiffs have failed to impugn the
impartiality of a majority of the eight-person Demand Board, i.e., Claus, Lantz,
Mendel, Nichols, and non-party McKoy. For the sake of completeness, the court
will address Plaintiffs’ arguments concerning the Brophy claim with respect to the
remaining three directors—Buce, Krafcik, and Yadigaroglu.
To repeat, to state a claim under Brophy, a plaintiff must allege that, “1) the
corporate fiduciary possessed material, nonpublic company information; and 2) the
corporate fiduciary used that information improperly by making trades because she
was motivated, in whole or in part, by the substance of that information.”234 As to
the first element, this court explained some of the circumstances to consider when
determining whether a reasonable inference of scienter has been made concerning
an insider’s trade of stock, as follows:
At the pleading stage, by necessity, a Brophy claim usually rests on
circumstantial facts and a successful claim typically includes
allegations of unusually large, suspiciously timed trades that allow a
reasonable inference of scienter. While the fact a fiduciary sells stock
near the time he learns of material, nonpublic information might be
evidence of the seller’s motive, temporal proximity alone generally is
insufficient to support an inference of scienter that will survive a motion
to dismiss. The other important piece of circumstantial evidence that,
234
In re Oracle, 867 A.2d at 934.
66
along with timing, might support an inference of scienter is the size of
the trade relative to the defendant’s overall stock holdings. If a
defendant sells only a small portion of her holdings and retains a “huge
stake in the company,” then it is difficult reasonably to infer she was
“fleeing disaster or seeking to make an unfair buck.”235
The Complaint alleges that Buce sold 32,999 shares on August 18, 2017,
yielding proceeds of approximately $545,000; and that Krafcik sold a total of 20,000
shares on August 15 and 31, 2017, yielding proceeds of $334,500.236 These sales do
not raise suspicion to warrant an inference of scienter given that the amount of shares
traded were small relative to each of their overall holdings—only about 3% for
Krafcik and 7% for Buce—and given that the trades were made several weeks after
the Lock-Up for the Secondary Offering had expired, on July 25, 2017.237 Nor do
Plaintiffs allege that these sales were inconsistent with Buce and Krafcik’s past
trading practices.238
235
In re Clovis Oncology, Inc. Derivative Litigation, 2019 WL 4850188, at *15 (Del. Ch.
Oct. 1, 2019) (quoting Oracle, 867 A.2d at 954) (alterations omitted).
236
Compl. ¶ 176.
237
Id. ¶¶ 115, 127, 176. German Aff. Exs. 14-15, 17 at 18 (Buce sold 7% of his holdings
and Krafcik sold 3% of his holdings). See Oracle, 867 A.2d at 954 (sales of 7% and 2%
of holdings, despite generating nearly a billion dollars, did not indicate scienter).
238
Clovis, 2019 WL 4850188, at *16 (“Noticeably absent from the Complaint are any well-
pled facts that the trades at issue represented a deviation from the sellers’ past trading
practices.”).
67
Plaintiffs make a perfunctory argument that the larger sales of other insiders
raise suspicion about Buce and Krafcik’s sales.239 This argument fails. As this court
explained in Guttman v. Huang, a plaintiff must allege scienter for “each sale by
each individual defendant.”240 Plaintiffs fail to plead facts sufficient to support a
reasonable inference of scienter as to Buce and Krafcik not only because the
circumstances of their stock sales are not inherently suspicious, but because, after
obtaining books and records and investigating the matter, Plaintiffs failed to plead
facts supporting a reasonable inference that Buce or Krafcik knew about the USAA
website redesign or its potential impact on TrueCar until September 2017, after they
made their sales.241
As to Yadigaroglu, to whom Capricorn’s sales are attributed, the Complaint
alleges that Capricorn entities sold approximately 509,000 shares of TrueCar stock
in the Secondary Offering on May 2, 2017, and an approximately 175,000 shares in
late August 2017, for total proceeds of approximately $11.28 million.242 The
239
Pls.’ Answering Br. at 50 n.17.
240
823 A.2d at 505 (citation omitted) (“[T]he doctrine is not designed to punish
inadvertence, but to police intentional misconduct[,]” thus, “it must be shown that each
sale by each individual defendant was entered into and completed on the basis of, and
because of, adverse material non-public information.”).
241
See Parts III.D.1.a-b.
242
Compl. ¶¶ 169, 176.
68
Complaint alleges that these sales “are suspicious given that they occurred when
TrueCar’s stock traded at or near all-time highs and represented more than 31% of
[Yadigaroglu’s] holdings.”243
Although a closer call, the sheer size of Capricorn’s sales are not sufficient to
support a reasonable inference of scienter in my view. In Guttman, when addressing
larger insider trades—100% and 50% of the shares held by two insiders—then-Vice
Chancellor Strine found that the size of the trades alone did not support an inference
of scienter so as to expose those directors to a “real threat of liability”:
In the absence of any fact pleading that supports a rational inference
that any of these directors had some basis to believe that [the]
statements were materially misleading in a manner that inflated the
company’s stock price, the mere fact that two of the directors sold large
portions of their stock does not, in my view, support the conclusion that
these directors face a real threat of liability.244
The court was even less receptive to the claim against other directors who sold
“much smaller stakes” of 32%, 20%, and 10% of their shares.245
243
Id. ¶ 169.
244
Guttman, 823 A.2d at 504; see also Silverberg ex rel. Dendreon Corp. v. Gold, 2013
WL 6859282, at *11-13, *15 (Del. Ch. Dec. 31, 2013) (board materials showed discussions
and awareness, for over a year, of problems and directors sold 77% and 58% of their
holdings).
245
Guttman, 823 A.2d at 504.
69
Here, as with Buce and Krafcik, the Complaint is devoid of any well-pled
facts that Capricorn’s trades represented a deviation from its past trading practices.
Most importantly, to repeat, despite investigating the matter, Plaintiffs were unable
to plead facts supporting a reasonable inference that Yadigaroglu knew about the
USAA website redesign or its potential impact on TrueCar until September 2017,
after each of Capricorn’s stock sales.
In sum, as to Buce, Krafcik, and Yadigaroglu, Plaintiffs have failed to allege
particularized facts that support a reasonable inference that any of them possessed
material nonpublic information when they traded, much less that they consciously
acted to exploit such information. Accordingly, Plaintiffs have failed to show that
Buce, Krafcik, or Yadigaroglu would face a substantial likelihood of liability for the
Brophy claim so as to impugn their impartiality to consider a demand.
*****
For the reasons explained above, the Complaint fails to plead with
particularity facts sufficient to impugn the impartiality of any of the members of the
Demand Board to consider a demand with respect to the Brophy and unjust
enrichment claims. Accordingly, those claims will be dismissed for failure to plead
demand futility under Court of Chancery Rule 23.1.
70
The aiding and abetting claim in Count IV asserted against the Entity
Defendants (Capricorn, Upfront, USAA, and Vulcan) also will be dismissed because
“[t]he dismissal of the underlying insider selling and fiduciary duty claims logically
compels the dismissal of the aiding and abetting claims.”246
F. The Contribution and Indemnification Claims
Count IV of the Complaint seeks contribution and indemnification on behalf
of the Company from the Securities Class Action Defendants for “exposing the
Company to significant liability under various federal and state laws by their disloyal
acts.”247 The Individual Defendants moved to dismiss Count IV under Court of
Chancery Rules 12(b)(6) and 23.1 contending, in part, that the claim “is unripe and
will likely never ripen.”248 Plaintiffs responded that the district court in the
Securities Class Action “obviate[ed] any ripeness arguments” by granting final
approval of the settlement in that action on January 27, 2020.249 For simplicity, the
court addresses this claim under Rule 12(b)(6).
246
Park Empls.’ & Ret. Bd. Empls.’ Annuity & Benefit Fund of Chicago v. Smith, 2017 WL
1382597, at *10 & n.105 (Del. Ch. Apr. 18, 2017). Even if this did not logically follow,
Plaintiffs have failed to plead demand futility as to this claim because only three of the
eight Demand Board members (Claus, Nichols, and Yadigaroglu) are implicated in the
aiding and abetting claims.
247
Compl. ¶ 219.
248
Individual Defs.’ Opening Br. at 40; see also id. at 55.
249
Pls.’ Answering Br. at 53.
71
The court takes judicial notice of the Settlement Agreement and the district
court’s final approval of the settlement in the Securities Class Action, the terms of
which are not subject to reasonable dispute between the parties.250 The Settlement
Agreement, which the parties entered into to fully and finally resolve the Securities
Class Action, provides for a payment in the amount of $28.5 million for the benefit
of a class of TrueCar stockholders to be paid by the “Parties and Defendants’
directors’ and officers’ liability insurance carriers” (as defined in the Settlement
Agreement, the “D&O Insurers”).251 The Settlement Agreement further provides
that the payments from the D&O Insurers “are the only payments to be made on
behalf of any and all of the Defendant Releasees in connection with the
Settlement.”252 Given the express terms of the Settlement Agreement, which the
district court has approved, Plaintiffs cannot state a reasonably conceivable claim
for contribution or indemnification from the Securities Class Action Defendants
because they face no personal exposure with respect to that litigation.
250
Del. R. Evid. 201-02; In re Rural Metro, 2013 WL 6634009, at *7-9 (discussing Del.
R. Evid. 201-02 and taking judicial notice of a federal court filing). Plaintiffs submitted a
copy of the Final Approval Order with their brief.
251
Settlement Agreement § 2.1.
252
Id. at § 2.2. The term “Defendant Releasees” includes the Demand Board directors
named as defendants in the Securities Class Action, i.e., Buce, Claus, Krafcik, Lantz,
Nichols, and Yadigaroglu. See id. §§ 1.12, 1.21.
72
Plaintiffs’ fallback position is that, “even if the settlement is, in fact, paid by
insurance,” TrueCar’s “future policies will cost more as a result of the settlement.”253
This is sheer speculation that does not state a ripe, reasonably conceivable claim for
relief.254 For the reasons explained above, Count III will be dismissed for failure to
state a claim for relief.
IV. CONCLUSION
For all the reasons explained above, Defendants’ motions to dismiss the
Complaint are GRANTED. The Complaint is hereby dismissed with prejudice in its
entirety.
IT IS SO ORDERED.
253
Pls.’ Answering Br. at 55.
254
See Baiera, 119 A.3d 44 (“A simple allegation of potential directorial liability is
insufficient to excuse demand, . . . .”) (quoting In re Goldman Sachs Gp., Inc. S’holder
Litig., 2011 WL 4826104, at *18 (Del. Ch. Oct. 12, 2011)).
73