City of Pontiac Police and Fire Retirement System v. Caldwell

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11

12 CITY OF PONTIAC POLICE AND FIRE Case No. 20-CV-06794-LHK

RETIREMENT SYSTEM,

13

ORDER GRANTING MOTION TO

Plaintiff,

DISMISS

14

v. Re: Dkt. No. 25

15

JOHN E. CALDWELL, et al.,

16

Defendants.

17

18 Plaintiff City of Pontiac Police and Fire Retirement System brings this shareholder

19 derivative suit against Advanced Micro Devices, Inc.’s Board of Directors (“the Board” or

20 “Defendants”). Before the Court is the Board’s motion to dismiss pursuant to Federal Rule of

21 Civil Procedure 23.1, which requires derivative plaintiffs to plead demand futility with

22 particularity. ECF No. 25 (“motion to dismiss” or “MTD”). Having considered the parties’

23 briefing, the relevant law, and the record in this case, the Court GRANTS the Board’s motion to

24 dismiss with leave to amend as to the theories of demand futility that Plaintiff has not abandoned.

25 I. BACKGROUND

26 A. Factual Background

27 Plaintiff City of Pontiac Police and Fire Retirement System is a shareholder of Advanced

1 Micro Devices, Inc. (“AMD”), a publicly traded global semiconductor company incorporated in

2 Delaware. Compl. ¶¶ 1, 25, ECF No. 1. Plaintiff brings this shareholder derivative suit on behalf

3 of AMD against AMD’s Board of Directors. Id. The Board comprises eight Directors: John E.

4 Caldwell, Nora M. Denzel, Mark Durcan, Michael P. Gregoire, Joseph A. Householder, John W.

5 Marren, Abhi Y. Talwalkar, and Chief Executive Officer (“CEO”) Lisa T. Su. Id. ¶¶ 26–33.

6 According to the Board, CEO Su was one of three women of color leading a Fortune 500 company

7 at the time of Plaintiff’s lawsuit. MTD at 5 (citing Ex. G, Courtney Connley, The number of

8 women running Fortune 500 companies hits a new high, CNBC (May 19, 2020)).

9 Plaintiff alleges that the Board has “publicly misrepresented AMD as a company that

10 effectively promotes diversity throughout its ranks, including in the boardroom.” Id. ¶ 2. Plaintiff

11 alleges that AMD in fact “has lacked and continues to lack diversity” because no African

12 Americans serve on AMD’s Board or executive team.1 Id. ¶¶ 2, 6. Specifically, Plaintiff identifies

13 11 Statements which allegedly misrepresent that AMD is “diverse” despite its lack of African

14 American leadership:

15 # Challenged Statement Source

16 1 AMD makes efforts to increase “the number of women and Compl. ¶ 52 (quoting MTD,

under-represented minorities in the technology industry, Ex. B (2020 Corporate

17

and to supporting efforts to effect systemic and lasting Responsibility Report) at 2).

18 change.”

19 2 “AMD is growing a diverse, inclusive workforce that Compl. ¶¶ 52, 57 (quoting

embraces different perspectives and experiences to foster MTD, Ex. B (2020 Corporate

20

innovation, challenge the status quo when needed, and Responsibility Report) at 31).

21 drive business performance.”

22 3 “We are constantly striving to improve our gender and Compl. ¶¶ 52, 57 (quoting

23

24

1 The executive team comprises 17 people. Compl. ¶ 7. They are Lisa T. Su, Rick Bergman,

Darren Grasby, Devinder Kumar, Mark Papermaster, Martin Ashton, Ruth Cotter, Mark Fuselier,

25 Robert Gama, Keivan Keshvari, Dan McNamara, Saeid Moshkelani, Sam Naffziger, Forrest

26 Norrod, Spencer Pan, Jane Roney, David Wang, Harry Wolin, Nazar Zaidi, and Andrej Zdrakovic.

See AMD Executive Team, https://www.amd.com/en/corporate/leadership (last visited July 1,

27 2021).

1 diversity numbers through specific programs, as is the case MTD, Ex. B (2020 Corporate

across the technology sector.” Responsibility Report) at 31).

2

4 “We will continue our efforts to recruit diverse talent and Compl. ¶ 52 (quoting MTD,

3 foster an inclusive and innovative culture, where the best Ex. B (2020 Corporate

ideas ‘win’ regardless of the individual’s identity.” Responsibility Report) at 31.

4

5 “Building a diverse talent pipeline, encouraging a culture of Compl. ¶ 53 (quoting MTD,

5

respect and belonging, and increasing inclusion of Ex. B (2020 Corporate

6 underrepresented groups, makes AMD stronger.” Responsibility Report) at 31).

7 6 “Innovation, which is at AMD’s core, occurs when creative Compl. ¶ 53 (quoting MTD,

minds and diverse perspectives are drawn from all over the Ex. B (2020 Corporate

8 world. Diverse teams, when managed in a culture of Responsibility Report) at 31).

9 inclusion, are more creative, more productive, better at

problem solving, and ultimately more profitable.”

10

7 The Board seeks to “foster and maintain a diversity of Compl. ¶ 54 (quoting MTD,

11 viewpoints, backgrounds and experience on the Board,” Ex. E (2020 Proxy) at 17;

and thus “the Nominating and Corporate Governance MTD, Ex. M (2019 Proxy) at

12

Committee evaluates the mix of skills and experience of the 19; and MTD, Ex. N (2018

13 directors and assesses nominees and potential candidates in Proxy) at 19).

the context of the current composition of the Board and

14

[AMD’s] requirements, taking into consideration the

15 diverse communities and geographies in which [AMD]

operate[s].”

16

8 As a part of succession planning for key executive roles, Compl. ¶ 55 (quoting MTD,

17

AMD assesses “candidates and their development plans . . . Ex. E (2020 Proxy) at 36).

18 with considerations for alignment not only with required

skills but also with [the Company’s] culture and emphasis

19

on diversity and inclusion.”

20

9 “Aligned with the company’s commitment to diversity and Compl. ¶ 57 (quoting AMD

21 inclusion and in light of recent events that highlight the Press Release titled, “AMD

work still ahead to end racism and social injustice, AMD Commemorates 25 Years of

22 announced its first steps to cultivate change with donations Corporate Responsibility

23 to high-impact nonprofits focused on social and racial Reporting (July 30, 2020)”).

equality and support for their empowerment, scholarship

24 and mentorship programs.”

25 10 “Since 2018, we review annually our Diversity, Belonging, Compl. ¶ 57 (quoting MTD,

and Inclusion strategies and metrics with members of the Ex. B (2020 Corporate

26

AMD Board of Directors.” Responsibility Report) at 31).

27

1 11 “At AMD, we harness our world-class technology to take Compl. ¶ 58 (quoting AMD’s

on some of the world’s toughest problems. This can’t be 2019 Corporate Responsibility

2 done alone. It takes a diverse group of voices gathered Report).

together – every day of the week – to find solutions and

3

drive our business growth. We thrive through respect for

4 and inclusion of our employees’ individual talents,

personalities, experiences and passions. Differences

5

challenge us in a healthy way – and improve our capability

6 to bring the benefits of high performance computing to

consumers in a more meaningful manner. From many

7

voices, we create one vision of the future, together.”

8

In Plaintiff’s view, the Board violated two duties by making these Statements while no

9

African Americans served on AMD’s Board or executive team. First, the Board allegedly violated

10

its duty to maximize shareholder value. Compl. ¶¶ 39–41, 93–94. To support this allegation,

11

Plaintiff cites reports by the management consulting firm McKinsey & Company. Id. ¶¶ 43–48.

12

McKinsey has found that companies with relatively high “ethnic and cultural diversity” tend to be

13

more profitable than their peers. Id. ¶ 47 (quoting, e.g., Vivian Hunt et al., Diversity wins: How

14

inclusion matters at 3–4, McKinsey & Company (May 19, 2020),

15

https://www.mckinsey.com/featuredinsights/ diversity-and-inclusion/diversity-wins-how-

16

inclusion-matters).

17

Second, the Board allegedly violated its “duty to be truthful.” Compl. ¶¶ 12, 101. The

18

Statements are untruthful in Plaintiff’s view because the Board allegedly does not “seek[] to

19

achieve representation of diverse persons – i.e., African Americans.” Id. ¶ 60.

20

Plaintiff lastly alleges that most of the Directors face a substantial likelihood of personal

21

liability for violating these duties. Id. ¶¶ 98–99, 113. Thus, Plaintiff asserts that a pre-suit demand

22

to the Board would be futile. E.g., id. ¶ 101. Yet relevant to the Directors’ personal liability for

23

breaches of fiduciary duty is the “exculpatory provision” in AMD’s Amended and Restated

24

Certificate of Incorporation. This exculpatory provision forecloses Directors’ personal liability for

25

negligent or nonintentional breaches of their duty of care. Specifically, the exculpatory provision

26

provides that:

27

A director of the corporation shall not be personally liable to the corporation or its

1

stockholders for monetary damages for breach of fiduciary duty as a director,

2 except liability (i) for any breach of the director’s duty of loyalty to the corporation

or its stockholders, (ii) for acts or omissions not in good faith or which involve

3

intentional misconduct or a knowing violation of law, (iii) under Section 174 of the

4 Delaware General Corporation Law, or (iv) for any transaction from which the

director derived an improper personal benefit.

5

MTD, Ex. O at 3.

6

B. Procedural History

7

On September 29, 2020, Plaintiff brought this shareholder derivative suit against the

8

Board. ECF No. 1. Plaintiff’s Complaint alleges three claims against the Board. Count 1 is that the

9

Board violated Exchange Act § 14(a) and Securities and Exchange Commission (“SEC”) Rule

10

14a-9. Compl. ¶¶ 103–08. Count 2 is that the Board breached fiduciary duties of loyalty, good

11

faith, due care, oversight, and candor. Id. ¶¶ 109–13. Lastly, Count 3 is that the Board unjustly

12

enriched itself at the expense of AMD. Id. ¶¶ 114–16.

13

The Board moved to dismiss the Complaint on December 18, 2020. ECF No. 25. Plaintiff

14

opposed the Board’s motion to dismiss on February 12, 2021. ECF No. 30 (“Opposition” or

15

“Opp’n”). On March 12, 2021, the Board filed a reply supporting its motion to dismiss. ECF

16

No. 32.

17

C. Request for Judicial Notice or Incorporation by Reference

18

Pursuant to the doctrines of judicial notice and incorporation by reference, the Board asks

19

the Court to consider 19 exhibits to the motion to dismiss. ECF No. 26. As a general matter, the

20

Ninth Circuit has provided guidance on the applicability of the doctrines of judicial notice and

21

incorporation by reference in securities cases at the motion to dismiss stage. In Khoja v. Orexigen

22

Therapeutics, 899 F.3d 988 (9th Cir. 2018), the Ninth Circuit “note[d] a concerning pattern in

23

securities cases [sounding in fraud]: exploiting [judicial notice and incorporation by reference]

24

improperly to defeat what would otherwise constitute adequately stated claims at the pleading

25

stage.” Id. at 998. The Ninth Circuit explained that “[d]efendants face an alluring temptation to

26

pile on numerous documents to their motions to dismiss to undermine the complaint, and

27

1 hopefully dismiss the case at an early stage.” Id. However, the risk of improper premature

2 dismissal “is especially significant in SEC fraud matters, where there is already a heightened

3 pleading standard, and the defendants possess materials to which the plaintiffs do not yet have

4 access.” Id.

5 Here, Plaintiff opposes the Board’s request only as to eight exhibits: Exhibits C (Carnegie

6 article on CEO Su), D (biography of Devinder Kumar), F (Fortune article on CEO Su), G (CNBC

7 article on women CEOs), H (AMD’s historical stock price), J (CNBC article on stocks), K (CNBC

8 article on AMD), and Q (article on Nasdaq’s proposed listing requirements). See Opp’n 12 n.4.

9 The Court DENIES without prejudice the Board’s request as to these exhibits because they “are

10 not necessary to the resolution of [the Board’s] motion.” In re Cloudera, Inc., No. 19-CV-03221-

11 LHK, 2021 WL 2115303, at *9 (N.D. Cal. May 25, 2021).

12 The remaining exhibits are SEC filings, public AMD documents, and a McKinsey report

13 quoted in the Complaint. See ECF No. 26 at 2–4. The SEC filings and public AMD documents are

14 proper subjects of judicial notice. See, e.g., Dreiling v. Am. Exp. Co., 458 F.3d 942, 946 n.2 (9th

15 Cir. 2006) (SEC filings); In re Intel Corp. Sec. Litig., No. 18-CV-00507-YGR, 2019 WL 1427660,

16 at *6 & n.8 (N.D. Cal. Mar. 29, 2019) (documents on company website). The McKinsey report,

17 which the Complaint quotes and cites “extensively,” is incorporated by reference into the

18 Complaint. Khoja, 899 F.3d at 1002; see Compl. ¶¶ 3, 43, 45, 47 (quoting and citing McKinsey

19 report). Accordingly, the Court GRANTS the Board’s unopposed request for judicial notice of the

20 remaining exhibits. “The Court considers [these exhibits] in evaluating the motion to dismiss for

21 the sole purpose of determining what representations [the Board] made to the market. The Court is

22 not taking notice of the truth of any of the facts asserted.” Wochos v. Tesla, Inc., No. 17-CV-

23 05828-CRB, 2018 WL 4076437, at *2 (N.D. Cal. Aug. 27, 2018) (emphasis in original).

24 II. LEGAL STANDARD

25 A. Dismissal Under Federal Rule of Civil Procedure 23.1

26 “A derivative action is an extraordinary process where courts permit ‘a shareholder to step

27 into the corporation’s shoes and to seek in its right the restitution he could not demand in his

1 own.’” Quinn v. Anvil Corp., 620 F.3d 1005, 1012 (9th Cir. 2010) (quoting Lewis v. Chiles, 719

2 F.2d 1044, 1047 (9th Cir. 1983)). “Accordingly, strict compliance with [Federal Rule of Civil

3 Procedure] 23.1 and the applicable substantive law is necessary before a derivative suit can wrest

4 control of an issue from the board of directors.” Potter v. Hughes, 546 F.3d 1051, 1058 (9th Cir.

5 2008). Rule 23.1 imposes a “heightened pleading standard.” Louisiana Mun. Police Employees’

6 Ret. Sys. v. Wynn, 829 F.3d 1048, 1058 (9th Cir. 2016). Part of the heightened standard is the

7 requirement to plead “demand futility” with particularity: that is, to “‘state with particularity any

8 effort by the plaintiff to obtain the desired action from the directors or comparable authority and, if

9 necessary, from the shareholders or members; and the reasons for not obtaining the action or not

10 making the effort.” Towers v. Iger, 912 F.3d 523, 528 (9th Cir. 2018) (quoting Fed. R. Civ. P.

11 23.1(b)(3)). “The substantive law which determines whether demand is, in fact, futile is provided

12 by the state of incorporation of the entity on whose behalf the plaintiff is seeking relief.”

13 Rosenbloom v. Pyott, 765 F.3d 1137, 1148 (9th Cir. 2014) (quoting Scalisi v. Fund Asset Mgmt.,

14 L.P., 380 F.3d 133, 138 (2d Cir. 2004)).

15 B. Leave to Amend

16 If the Court determines that a complaint should be dismissed, it must then decide whether

17 to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend

18 “shall be freely given when justice so requires,” bearing in mind “the underlying purpose of Rule

19 15 to facilitate decisions on the merits, rather than on the pleadings or technicalities.” Lopez v.

20 Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations and internal quotation marks

21 omitted). When dismissing a complaint for failure to state a claim, “ ‘a district court should grant

22 leave to amend even if no request to amend the pleading was made, unless it determines that the

23 pleading could not possibly be cured by the allegation of other facts.” Id. at 1130 (internal

24 quotation marks omitted). Accordingly, leave to amend generally shall be denied only if allowing

25 amendment would unduly prejudice the opposing party, cause undue delay, or be futile, or if the

26 moving party has acted in bad faith. Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532

27 (9th Cir. 2008).

III. DISCUSSION

1

The Board moves to dismiss the Complaint on one ground: Plaintiff has failed to

2

adequately plead demand futility under Federal Rule of Civil Procedure 23.1 and Delaware law.

3

MTD at 1; Reply at i (Table of Contents). Below, the Court first details the stringent standard for

4

pleading demand futility. The Court then explains how Plaintiff has failed to meet that standard.

5

A. To plead demand futility, Plaintiff must “plead facts specific to each Director” that

6 show that most Directors knowingly violated a fiduciary duty.

7 Rule 23.1(b)(3) requires Plaintiff to “state with particularity: (A) any effort by the plaintiff

8 to obtain the desired action from the directors . . . ; and (B) the reasons for not obtaining the action

9 or not making the effort.”

10 Here, it is undisputed that Plaintiff did not make any demands to the Board before filing

11 this lawsuit. E.g., Compl. ¶ 18 (arguing that “a pre-suit demand on the AMD Board is excused as

12 futile”). Plaintiff also does not dispute that Delaware law determines whether pre-suit demand was

13 futile. “The substantive law which determines whether demand is, in fact, futile is provided by the

14 state of incorporation of the entity on whose behalf the plaintiff is seeking relief.” Rosenbloom v.

15 Pyott, 765 F.3d 1137, 1148 (9th Cir. 2014) (quoting Scalisi v. Fund Asset Mgmt., L.P., 380 F.3d

16 133, 138 (2d Cir. 2004)). AMD is incorporated in Delaware. Compl. ¶ 25; accord Opp’n at 24–25

17 (applying Delaware law). Thus, to survive the motion to dismiss, Plaintiff must plead “with

18 particularity” demand futility under Delaware law. Fed. R. Civ. P. 23.1(b)(3).

19 It is also undisputed that Rule 23.1(b)(3)’s demand futility requirement applies to all of

20 Plaintiff’s claims because “[f]ederal law governs procedural issues in this case.” Opp’n at 8;

21 accord Sax v. World Wide Press, Inc., 809 F.2d 610, 613 (9th Cir. 1987) (“In federal courts,

22 derivative suits are subject to the procedural requirements of Rule 23.1.”). Indeed, courts regularly

23 enforce the demand futility requirement even where, as here, a derivative plaintiff alleges

24 violations of both federal and state law. See, e.g., Indiana Elec. Workers Pension Tr. Fund, IBEW

25 v. Dunn, 352 F. App’x 157, 160–62 (9th Cir. 2009) (affirming dismissal of federal and state law

26 claims for failure to allege demand futility); In re CNET Networks, Inc., 483 F. Supp. 2d 947, 966

27 (N.D. Cal. 2007) (dismissing federal claim for failure to allege demand futility and collecting

1 cases).

2 Plaintiff argues that demand would have been futile because the Board’s Directors face

3 “substantial liability for false statements about their own and AMD’s commitment to diversity.”

4 Compl. ¶ 99; accord Opp’n at 24–25 (arguing same). In Plaintiff’s view, the Statements detailed

5 in Section I-A above are false because no African Americans were nominated to the Board—or

6 served on AMD’s executive team—at the time the Statements were made. See, e.g., Compl. ¶ 61.

7 Further, Plaintiff alleges that these Statements have failed to maximize shareholder value. Id.

8 ¶¶ 39–41, 93–94. Plaintiff thus argues that the Directors have acted in bad faith or breached their

9 fiduciary duty of loyalty, thereby triggering a risk of “substantial liability.” Opp’n at 9.

10 Plaintiff’s argument faces a high bar for three reasons. First, “[a]t the pleading stage, Board

11 independence and compliance with the business judgment rule are presumed.” In re Silicon

12 Graphics Inc. Sec. Litig., 183 F.3d 970, 990 (9th Cir. 1999), as amended (Aug. 4, 1999),

13 superseded by statute on other grounds as recognized in In re Quality Sys., Inc. Sec. Litig., 865

14 F.3d 1130, 1146 (9th Cir. 2017). “Demand will be excused only if the plaintiff’s allegations show

15 the defendants’ actions ‘were so egregious that a substantial likelihood of director liability

16 exists.’” Id. (emphasis added) (quoting Aronson v. Lewis, 473 A.2d 805, 815 (Del. 1984),

17 overruled in part on other grounds by Brehm v. Eisner, 746 A.2d 244 (Del. 2000)). “The mere

18 threat of personal liability” is not enough to plead demand futility. Id. (quoting same).

19 Second, as detailed in the Factual Background above, AMD’s articles of incorporation

20 contain an “exculpatory clause” that limits the personal liability of directors for breaches of

21 fiduciary duty. See Section I-A, infra (quoting MTD, Ex. O at 3). “Because [AMD]’s articles of

22 incorporation exculpated the Board’s members from personal monetary liability,” Plaintiff must

23 “alleg[e] with particularity that a director knowingly violated a fiduciary duty or failed to act in

24 violation of a known duty to act, demonstrating a conscious disregard for her duties.” Towers v.

25 Iger, 912 F.3d 523, 529 (9th Cir. 2018) (emphasis in original) (quoting In re Citigroup Inc.

26 S’holder Derivative Litig., 964 A.2d 106, 125 (Del. Ch. 2009)).

27 Lastly, “Delaware law does not permit the wholesale imputation of one director’s

1 knowledge to every other for demand excusal purposes.” Id. (quoting Desimone v. Barrows, 924

2 A.2d 908, 943 (Del. Ch. 2007)). Thus, “a derivative complaint must plead facts specific to each

3 director, demonstrating that at least half of them” knowingly violated a fiduciary duty. Id.

4 (emphasis in original) (quoting same); accord, e.g., Ocegueda on behalf of Facebook v.

5 Zuckerberg, No. 20-CV-04444-LB, --- F. Supp. 3d ----, 2021 WL 1056611, at *6 (N.D. Cal. Mar.

6 19, 2021) (holding same and dismissing complaint); In re Polycom, Inc., 78 F. Supp. 3d 1006,

7 1020–21 (N.D. Cal. 2015) (same).

8 B. Plaintiff fails to plead demand futility.

9 Plaintiff fails to clear the high bar for pleading demand futility. Specifically, Plaintiff fails

10 to “plead facts specific to each [D]irector[] demonstrating that at least half of them” knowingly

11 violated a fiduciary duty. Towers, 912 F.3d at 529 (emphasis in original) (quoting Desimone, 924

12 A.2d at 943). In fact, Plaintiff fails to plead any particularized allegations specific to any Director.

13 Plaintiff’s Opposition underscores the insufficiency of Plaintiff’s Complaint in two ways.

14 To start, Plaintiff abandons three theories of demand futility that Defendants challenge in their

15 motion to dismiss. First, Plaintiff abandons any allegation that AMD has “defective internal

16 controls” or that the Directors failed to oversee employees. Opp’n at 25. Second, Plaintiff fails to

17 dispute that “merely naming a director as a defendant” is insufficient. Mot. at 13; see Reply at 6

18 n.3 (noting Plaintiff’s abandonment). Third, Plaintiff fails to dispute that “the fact that certain

19 directors served on two committees of AMD’s Board does nothing to create a substantial

20 likelihood of liability for those directors.” Mot. at 13; see Reply at 6 n.3 (noting Plaintiff’s

21 abandonment). Accordingly, the Court dismisses these abandoned theories, which Plaintiff “may

22 not revive” through amendment. United States ex rel. Anita Silingo v. WellPoint, Inc., 904 F.3d

23 667, 681 (9th Cir. 2018) (affirming dismissal where plaintiff failed to “defend [a] claim in

24 response to [] motions to dismiss”).

25 Having abandoned three theories of demand futility, Plaintiff relegates its remaining

26 demand futility arguments to a cursory page and a half at the end of the Opposition. See Opp’n at

27 24–25. There, Plaintiff identifies the paragraphs of the Complaint and case law that purportedly

1 show demand futility. Below, the Court first analyzes the Complaint and then Plaintiff’s cited case

2 law.

3 1. The Complaint fails to plead facts specific to any Director, let alone most of the

Directors.

4

To plead demand futility, Plaintiff cites the following paragraphs of the Complaint: ¶¶ 2, 8,

5

12–19, 42, 68, 92–101, and 112–113. Opp’n at 24–25. None of these paragraphs makes any

6

allegations specific to a Director, let alone a Director’s “knowing” violation of a fiduciary duty.

7

Rather, without explanation, the Complaint groups the Directors together as all “similarly

8

situated.” Opp’n at 19. The following five allegations exemplify the Complaint’s conclusory

9

nature:

10

• ¶ 68: “Ostensibly, the[] [S]tatements convey to AMD investors and the public that the

11 Company actively promotes ‘diversity’ in the boardroom. But in fact, Defendants have

12 made no real effort to promote racial diversity on the Board.”

13 • ¶ 92: “The AMD Board has eight members: Defendants Caldwell, Denzel, Durcan,

Gregoire, Householder, Marren, Talwalkar and Su. A pre-suit demand on the AMD Board

14 to commence this action is excused as a futile.”

15

• ¶ 100: “The business judgment rule, a form of privilege itself, should not be above similar

16 scrutiny. Especially in an action like this, which seeks to hold Defendants accountable for

the absence of any male or female African American directors on AMD’s Board, despite

17

Defendants’ public proclamations that AMD ‘is committed to increasing the number of

18 women and under-represented minorities in the technology industry’ and ‘will actively

identify candidates who could enhance the diversity represented on the Board.’”

19

• ¶ 101: “Given the gravity of the claims, there is ample reason to doubt that Defendants can

20

adequately detach themselves from not just the facts alleged, but also from the financial,

21 social and reputational dynamics at play, to fairly consider a pre-suit demand. Without full

confidence in Defendants’ ability, individually and collectively, to evaluate a pre-suit

22

demand with disinterest, impartiality and objectivity, and without concern for any personal

23 considerations, financial or otherwise, a pre-suit demand on the AMD Board to commence

this action is excused as futile.”

24

• ¶ 112: “Specifically, each of the Defendants, in breach of their fiduciary duties of care,

25

loyalty and good faith, intentionally or recklessly caused the Company to disseminate to

26 AMD shareholders materially misleading and inaccurate information through, among other

things, the SEC filings and other public statements and disclosures as detailed herein.

27

Defendants had actual knowledge of their misrepresentations and omissions of material

fact or acted with reckless disregard for the truth in failing to ascertain and disclose such

1

facts even though such facts were available to them.”

2

As exemplified by these allegations, the Complaint engages in what Delaware law expressly

3

forbids: “the wholesale imputation” of knowledge to every Director for demand excusal purposes.

4

Towers, 912 F.3d at 530 (quoting Desimone, 924 A.2d at 943). In other words, “Delaware courts

5

routinely reject the conclusory allegation that because illegal behavior occurred, internal controls

6

must have been deficient, and the [B]oard must have known so.” Id. (quoting Desimone, 924 A.2d

7

at 940); accord, e.g., In re CNET Networks, 483 F. Supp. 2d at 963 (“Mere membership on a

8

committee or board, without specific allegations as to defendants’ roles and conduct, is

9

insufficient to support a finding that directors were conflicted.”).

10

Towers is especially instructive. There, the Ninth Circuit affirmed dismissal of a complaint

11

despite allegations of demand futility much stronger than the allegations here. The Towers

12

complaint alleged that the board of The Walt Disney Company (“Disney”) participated in a “no-

13

poach” conspiracy with other animation studios “to refrain from recruiting each other’s

14

employees.” Towers, 912 F.3d at 525; see generally Nitsch v. Dreamworks Animation SKG Inc.,

15

315 F.R.D. 270 (N.D. Cal. 2016) (certifying class of animation employees challenging same

16

alleged conspiracy). To plead demand futility, the Towers plaintiff detailed three allegations

17

supported by documentation. First, plaintiff alleged that “high-ranking Disney officers knew of the

18

conspiracy and discussed its implications” in quoted emails. Towers, 912 F.3d at 529. Second,

19

plaintiff alleged that the chairman of Disney’s animation subsidiary likely told Disney’s board

20

about the conspiracy because he “was freely discussing the conspiracy with the heads of other

21

companies.” Id. at 530. Third, plaintiff alleged that board members oversaw the acquisition of

22

Pixar in light of “employment issues and the overall competition for talent”—and that “[Steve]

23

Jobs, allegedly a primary player in the conspiracy, spoke to the [b]oard regarding the acquisition.”

24

Id. at 531. In sum, the Towers plaintiff argued that “a collective analysis of the allegations in the []

25

[c]omplaint, viewed in the light most favorable to [p]laintiff, and with all reasonable inferences

26

drawn in his favor, establish at least a reasonable inference that a majority of the Board at the time

27

1 the complaint was filed were aware of the [conspiracy], if not also actively participating in [it].”

2 Id. at 529.

3 The district court dismissed the Towers complaint for failing to plead particularized facts

4 showing demand futility, and the Ninth Circuit affirmed. Id. at 532. The Ninth Circuit held that the

5 complaint “play[ed] inferential hopscotch” in violation of “Rule 23.1’s stringent requirements of

6 factual particularity.” Id. at 531 (internal quotation marks omitted) (quoting Horman v. Abney, No.

7 12290-VCS, 2017 WL 242571, at *12 (Del. Ch. Jan. 19, 2017)). To reach this holding, the Ninth

8 Circuit carefully parsed the three allegations above. First, the Ninth Circuit reasoned that even if

9 corporate officers “guided the conspiracy” and “communicated with the [b]oard” on related

10 matters, that alone failed to “allege with particularity that information regarding the conspiracy

11 was ever transmitted to the Board.” Id. at 530. Second, the Ninth Circuit reasoned that “we cannot

12 infer that [the chairman of Disney’s animation subsidiary] shared his knowledge with other

13 members of the [b]oard simply because he discussed the conspiracy with [Pixar’s president, the

14 alleged ‘architect of the conspiracy’].” Id. at 531. Lastly, the Ninth Circuit explained that

15 “discussion of [] employment-related topics” during the Pixar acquisition “does not permit us to

16 infer that the [b]oard knew of the conspiracy.” Id. at 531. This potentially suspicious discussion

17 constituted “merely [] proximity to the conspiracy or the alleged misconduct of Disney officers.”

18 Id.

19 The instant Complaint makes greater inferential leaps than even the Towers complaint. To

20 summarize, the Towers complaint detailed (1) emails in which high-ranking corporate officers

21 guided the alleged conspiracy; (2) emails between a former board member and the alleged

22 architect of the conspiracy; and (3) minutes of board meetings that included “a primary player in

23 the conspiracy” and led to an acquisition that allegedly furthered the conspiracy. Id. at 529–31.

24 The Ninth Circuit found these details too vague to plead demand futility. Id. at 532. The instant

25 Complaint is vaguer. It fails to identify any communications, meetings, or other particularized

26 facts which show that anyone “knowingly violated a fiduciary duty or failed to act in violation of a

27 known duty to act.” Towers, 912 F.3d at 529 (emphasis in original) (quoting In re Citigroup Inc.

1 S’holder Derivative Litig., 964 A.2d at 125). At most, the instant Complaint lumps the Directors

2 together and implies their “mere[] [] proximity to the” alleged violation: public Statements

3 committing AMD to “diversity” while no African Americans were nominated to the Board. Id. at

4 531; see Section I-A, supra (listing the Statements, such as “[AMD] will continue our efforts to

5 recruit diverse talent”). Thus, Plaintiff fails to meet “Rule 23.1’s stringent requirements of factual

6 particularity.” Id. (internal quotation marks omitted) (quoting Horman, 2017 WL 242571, at *12).

7 2. Plaintiff’s cited case law is unavailing.

8 The three cases Plaintiff cites for demand futility are inapposite. See Opp’n at 24. None of

9 the cases addresses diversity issues or even liability for allegedly misleading investors. Rather, the

10 cases hold that demand is futile where, unlike here, directors received many reports flagging

11 repeated violations of federal law.

12 In Rosenbloom v. Pyott, Allergan shareholders sued Allergan’s board shortly after Allergan

13 “settled several qui tam suits and pled guilty in a criminal case” for off-label marketing of Botox.

14 765 F.3d 1137, 1141 (9th Cir. 2014). The Ninth Circuit held that the shareholders had adequately

15 pleaded demand futility given “over a decade . . . of widespread and enduring illegality in

16 Allergan’s corporate activity.” Id. at 1154 (emphasis in original). Specifically, Allergan’s board

17 had “‘closely and regularly monitored’ potentially illicit activities; ‘received data’ that ‘qualified

18 as a “red flag”‘ of illegality; and ‘received repeated FDA warnings about illegal’ activities.”

19 Towers, 912 F.3d at 532 (quoting and distinguishing Rosenbloom, 765 F.3d at 1152–54). Here, by

20 contrast, the Complaint lacks a “battery of particularized factual allegations” that AMD’s Board

21 has received repeated governmental warnings that its Statements would lead to civil and criminal

22 liability. Rosenbloom, 765 F.3d at 1152.

23 Plaintiff’s second cited case mirrors Rosenbloom. In Pfizer Inc. Shareholder Derivative

24 Litigation, 722 F. Supp. 2d 453 (S.D.N.Y. 2010), Pfizer shareholders sued shortly after Pfizer paid

25 criminal and civil fines (totaling $2.3 billion) for the off-label marketing of drugs “with dangerous

26 side effects.” Id. at 455–56. In their derivative complaint, the shareholders “detail[ed] at great

27 length a large number of reports made to members of the board from which it may reasonably be

1 inferred that [the directors] all knew of Pfizer’s continued misconduct and chose to disregard it.”

2 Id. at 460. Those numerous reports included “FDA violation notices” and “reports . . . of

3 continuing kickbacks and off-label marketing.” Id. Moreover, “[m]any of these disturbing reports

4 were received during the same time that the board was obligated by [two settlements with the

5 federal government] to pay special attention to these very problems.” Id. at 460–61. Here, by

6 contrast, Plaintiff has not alleged that AMD has received governmental reports that its Statements

7 violate federal law. Nor has Plaintiff alleged that AMD’s Board is obligated by any legal

8 settlement “to pay special attention” to the diversity issues alleged in the Complaint.

9 Plaintiff lastly cites In re Veeco Instruments, Inc. Securities Litigation, 434 F. Supp. 2d

10 267 (S.D.N.Y. 2006). There, Veeco shareholders alleged that Veeco’s board ignored “flagrant,

11 systematic[,] and repeated violations of export control laws.” Id. at 278. Specifically, the

12 shareholders pleaded with particularity that five Veeco directors ignored two whistleblower

13 reports—and an audit report—which revealed that at least ten specific shipments violated federal

14 export laws. Id. These “reported violations threatened to jeopardize the future viability of Veeco”

15 because even a single violation could have suspended Veeco’s export privileges. Id. Again, the

16 instant case is markedly different. Plaintiff has not alleged that any Director—let alone most

17 Directors—has ignored any whistleblower or audit report that the Statements are false. Nor has

18 Plaintiff alleged that the Board must be conscious of its wrongdoing because the Statements

19 “threaten[] to jeopardize the future viability of [AMD].” Id.

20 All told, Plaintiff’s cited cases are unavailing. They fail to contest that Plaintiff has not

21 “ple[]d facts specific to each [D]irector[] demonstrating that at least half of [the Board]”

22 knowingly violated a fiduciary duty. Towers, 912 F.3d at 529 (emphasis in original) (quoting

23 Desimone, 924 A.2d at 943). Accordingly, the Court GRANTS the Board’s motion to dismiss.

24 Moreover, as noted above in Section III-B, Plaintiff has abandoned three theories of

25 demand futility. The Court denies leave to amend as to these abandoned theories of demand

26 futility. See Silingo, 904 F.3d at 681 (affirming dismissal without leave to amend of abandoned

27 claims). The Court grants leave to amend as to the theories of demand futility that Plaintiff has not

1 abandoned because granting Plaintiff an opportunity to amend the complaint would not be futile,

2 || cause undue delay, or unduly prejudice the Board, and Plaintiff has not acted in bad faith. See

3 Leadsinger, 512 F.3d at 532.

4 ||} IV. CONCLUSION

5 For the foregoing reasons, the Court GRANTS the Board’s motion to dismiss with leave to

6 amend as to the theories of demand futility that Plaintiff has not abandoned. Should Plaintiff

7 choose to file an amended complaint, Plaintiff must do so within 30 days of this Order. Failure to

8 do so, or failure to cure the deficiencies identified in this Order and in the Board’s motion to

9 || dismiss, will result in dismissal of Plaintiff’s deficient claims with prejudice. Plaintiff may not add

10 || claims or parties without a stipulation or leave of the Court. If Plaintiff chooses to file an

11 amended complaint, Plaintiff must also file a redlined copy comparing the amended complaint

12 || with the Complaint.

5 13 || ITISSO ORDERED.

14

15 || Dated: July 1, 2021

16 ficy K beh,

LUCY & KOH

17 United States District Judge

18

19

20

21

22

23

24

25

26

27

28 16

Case No. 20-CV-06794-LHK