Amerisourcebergen Corporation v. Lebanon County Employees' Retirement Fund

243 A.3d 417 (2020)

Facts

Lebanon (Ps) own stock in AmerisourceBergen (D). D is one of the world's largest distributors of pharmaceutical products, including opioids. D must comply with the Comprehensive Drug Abuse Prevention and Control Act of 1970 and its implementing regulations. A distributor must maintain 'effective controls against diversion of [opioids] into other than legitimate medical, scientific, research, or industrial channels. A distributor must also 'design and operate a system to disclose to the registrant suspicious orders of [opioids]. Starting in the late 1990s, pharmaceutical companies reassured doctors that patients would not become addicted to opioids. Doctors responded by writing more prescriptions for opioids, often without appreciating or advising patients about the risk of addiction. Increasing levels of opioid abuse led to greater demand for opioids. So-called 'rogue pharmacies' met the demand by filling large numbers of prescriptions. Stopping rogue pharmacies became a DEA priority. In April 2007, the DEA suspended D's license for its distribution center in Orlando, Florida, because of its involvement with rogue pharmacies. D settled with the DEA and committed to adopt and maintain 'a compliance program designed to detect and prevent diversion of controlled substances.' According to D's public filings, the company's senior officers and its board of directors play a significant role in monitoring and enforcing compliance. In 2012, the Attorney General for the State of West Virginia sued D and other opioid distributors, alleging that they had failed to implement effective controls to identify suspicious orders and guard against the diversion of opioids. In 2018, the United States House of Representatives found that D and the two other largest wholesale opioid distributors in the United States 'failed to address suspicious order monitoring' in West Virginia. In 2019, the New York Attorney General by a complaint contended that D's policies facilitated the diversion of opioids and that D failed to stop it from happening. The NYAG Complaint alleged that D lacked 'an internal rule or policy that requires investigation of a customer based on a specific number of suspicious order reports.' D is also a defendant in multidistrict litigation pending in the United States District Court for the Northern District of Ohio. Since September 2017, D has spent more than $1 billion on litigation and opioid-related costs, including settlements and legal fees relating to opioid lawsuits and investigations. Ps are investigating whether the firm engaged in wrongdoing in connection with the distribution of opioids. Ps sought to inspect D's books and records pursuant to Section 220. D rejected the demand in its entirety, contending that the demand did not 'state a proper purpose or a credible basis to suspect wrongdoing' and that the scope of the inspection was 'overly broad.' Ps filed this action. A trial on a paper record took place on October 15, 2019. The Demand listed four investigatory purposes: to investigate possible breaches of fiduciary duty, mismanagement, and other violations of law by members of the Company's Board of Directors and management with the opioid issue, to consider any remedies to be sought in respect of the aforementioned conduct; to evaluate the independence and disinterestedness of the members of the Board; and to use information obtained through inspection of the Company's books and records to evaluate possible litigation or other corrective measures with respect to some or all of these matters. The Chancery found that Ps had demonstrated a proper purpose sufficient to warrant the inspection of Formal Board Materials. The court found that the Ps had established a credible basis, through 'strong circumstantial evidence,' to suspect that 'D's situation did not result from any ordinary business decision that, in hindsight, simply turned out poorly,' but instead may have been the product of the Company's violation of positive law. Ps had not instituted an indiscriminate fishing expedition or out of mere curiosity. The court also rejected D's contention that Ps' sole purpose was to investigate a potential Caremark claim, noting that the Plaintiffs' demand 'reserved the ability to consider all courses of action that their investigation might warrant pursuing.' The court rejected D's contention that Ps were required to show the wrongdoing they sought to investigate was 'actionable' wrongdoing, but that, even if they were, it would be premature to consider the merits-based defenses advanced by D. The court concluded that Ps were entitled to Formal Board Materials relating to most of the events listed in the demand. The court then granted sua sponte Ps leave to take a Rule 30(b)(6) deposition to seek answers to those questions and, if appropriate, seek additional documents. D appealed.