## Facts

- MA Federal, Inc., doing business as iGov, was a closely held Delaware government‑contracting company that began shifting from low‑margin resale work toward higher‑margin services.
- Craig London and James Hunt were iGov stockholders; along with Patrick Neven and Walter Hupalo, they initially served on iGov’s board. Michael Tyrrell was iGov’s chief financial officer and later became a director.
- Stockholders approved an equity incentive plan (the “2007 Plan”) that required option exercise prices to be at least 100% of the fair market value of iGov stock on the option grant date.
- To set an option price, iGov retained Chessiecap Securities, Inc. to value the company “as of July 31, 2006,” even though options later were granted in 2007.
- London and Hunt alleged Tyrrell supplied Chessiecap with misleading and incomplete information, pushed Chessiecap to revise an initial valuation downward, and failed to disclose that iGov was on the verge of receiving a lucrative Department of Homeland Security contract.
- Plaintiffs also alleged Tyrrell revised iGov’s financial forecast to reflect negative developments that occurred after July 31, 2006, while not incorporating positive developments, contributing to a low valuation.
- Chessiecap ultimately valued iGov at roughly $4.7 million, or $4.92 per share. Plaintiffs alleged Tyrrell shared a much higher revenue forecast with a potential lender, supporting an inference that the Chessiecap inputs were manipulated.
- After London obtained the Chessiecap report in late 2006, he objected that the valuation was stale. Hunt offered to buy out other stockholders at $28 per share (about a $20 million valuation), but the offer was rejected.
- The board then removed London and Hunt as directors, elected Tyrrell to the board, approved using the $4.92 per‑share figure, and in February 2007 granted options at $4.92 per share to 16 employees, including the directors who approved the grants.
- In March 2007, DHS awarded iGov the contract. An April 2007 quarterly report allegedly exceeded forecasts, yet the board granted another option award in May 2007 at the same $4.92 exercise price.
- London and Hunt filed a derivative action alleging fiduciary breaches and unjust enrichment based on option grants priced below fair market value in violation of the stockholder‑approved plan. Defendants moved to dismiss under Court of Chancery Rules 9(b), 12(b)(6), and 23.1, arguing plaintiffs failed to make a demand and failed to plead demand futility.

## Issues

1. Whether the complaint pleaded demand futility under Court of Chancery Rule 23.1 (applying Aronson) where the directors who would consider a demand allegedly approved and received the challenged option grants.
2. Whether the complaint stated non‑dismissable fiduciary‑duty claims under Rule 12(b)(6) based on allegations that defendants intentionally set option exercise prices below fair market value in violation of a stockholder‑approved plan.
3. Whether Rule 9(b)’s heightened pleading standard applied because defendants relied on DGCL §§ 152 and 157(b) and argued plaintiffs were required to plead fraud with particularity to overcome statutory protections.

## Decision

- The Court of Chancery denied the motion to dismiss in its entirety.
- Demand was excused because the complaint alleged particularized facts creating a reasonable doubt that a majority of the board was disinterested and that the option grants were a valid exercise of business judgment under Aronson.
- The same pleading that satisfied Rule 23.1 also supported reasonably conceivable fiduciary‑duty claims under Rule 12(b)(6).
- Rule 9(b) did not bar the complaint; DGCL §§ 152 and 157(b) did not require fraud‑style pleading on these allegations, and the statutes did not insulate the valuation and pricing conduct being challenged.

## Legal Principles

- Under Aronson v. Lewis, demand is excused if the complaint pleads particularized facts creating a reasonable doubt that (a) the directors are disinterested and independent or (b) the challenged decision was a product of valid business judgment.
- Directors who approve and receive the challenged equity awards may be treated as interested for demand purposes because they face a personal benefit and potential exposure to return improper gains.
- Allegations that directors intentionally violated a stockholder‑approved equity plan—such as using a stale valuation and omitting major positive information to set a below‑market option price—can rebut business‑judgment protection at the pleading stage.
- When a complaint meets Rule 23.1’s particularized pleading standard for demand futility, it commonly will also satisfy Rule 12(b)(6)’s requirement that the claim be reasonably conceivable.
- DGCL § 157(b) addresses a board’s power to determine the consideration for issuing options, but it does not insulate a board’s valuation of the corporation’s stock or the resulting exercise price when that valuation is the alleged wrongdoing.
- DGCL § 152 concerns a board’s determination of the value of non‑cash consideration for stock; it does not control claims focused on stock or options issued for cash based on an allegedly improper stock valuation.
- Rule 9(b) is not automatically triggered simply because defendants invoke DGCL presumptions or because the allegations involve misleading conduct; the court looks to the nature of the claims and the statutory scope.

## Conclusion

The Court of Chancery allowed the derivative action to proceed, holding that London and Hunt pleaded demand futility and viable fiduciary‑duty claims by alleging that iGov’s directors used a stale July 2006 valuation—allegedly influenced by Tyrrell’s misleading inputs and omissions—to grant themselves and other employees options in 2007 at $4.92 per share, contrary to a stockholder‑approved plan requiring grant‑date fair market value pricing, and that DGCL §§ 152 and 157(b) did not require fraud‑particular pleading or otherwise justify dismissal.


London v. Tyrrell, 2008 Del. Ch. LEXIS 75 (2008)