## Facts

- NECA-IBEW Pension Fund (plaintiff), a Cincinnati Bell, Inc. shareholder, brought a shareholder-derivative action on the company’s behalf against Cincinnati Bell’s directors and certain officers (defendants).
- Cincinnati Bell reported weak 2010 results, including a net-income decline of more than $61 million, a 28% decline in earnings per share, a stock-price drop from $3.45 to $2.80, and a negative 18.8% shareholder return compared to the prior year.
- Despite those results, the directors approved substantial 2010 executive compensation, including approximately $4 million in bonuses for the CEO and about $4.5 million in salary and other compensation.
- Cincinnati Bell described its compensation approach as “pay for performance,” and the complaint alleged the awards were inconsistent with that approach given the company’s results.
- After Dodd-Frank required an advisory “say-on-pay” vote, the directors submitted a nonbinding resolution to shareholders in March 2011 seeking approval of 2010 executive compensation.
- Shareholders voted overwhelmingly against the compensation resolution.
- The plaintiff sued, alleging (among other claims) breach of fiduciary duty and unjust enrichment based on the board’s approval and recommendation of the challenged compensation and the alleged departure from the company’s pay-for-performance policy.
- Defendants moved to dismiss, arguing that the business-judgment rule barred the claims and that the complaint failed to satisfy (or excuse) the derivative demand requirement.

## Issues

1. Whether the complaint stated a plausible derivative claim that the directors breached fiduciary duties (and that executives were unjustly enriched) by approving substantial 2010 compensation despite poor performance and the company’s stated pay-for-performance policy.
2. Whether the plaintiff pleaded demand futility with the particularity required by Fed. R. Civ. P. 23.1, such that pre-suit demand on the board was excused.
3. Whether, and to what extent, a negative but nonbinding Dodd-Frank say-on-pay vote could be considered when evaluating the sufficiency of the fiduciary-duty and demand-futility allegations.

## Decision

- The court denied defendants’ motion to dismiss.
- The court held that, at the pleading stage, the complaint’s allegations about the claimed pay-for-performance disconnect—together with the company’s financial results and the shareholder vote—were enough to proceed on the fiduciary-duty and unjust-enrichment theories.
- The court concluded that the complaint adequately alleged demand futility under Rule 23.1, allowing the derivative action to go forward without a pre-suit demand.
- The court treated the negative say-on-pay vote as a factual allegation the plaintiff could use to support its theories; the vote was advisory and not, by itself, a basis for liability.

## Legal Principles

- In a shareholder-derivative action in federal court, Fed. R. Civ. P. 23.1 requires particularized allegations showing that a pre-suit demand on the board was made or excused as futile; the demand analysis is governed by the law of the company’s state of incorporation.
- The business-judgment rule generally protects board decisions on executive compensation, but it does not require dismissal where the complaint pleads facts supporting a reasonable inference of disloyalty, lack of good faith, or other non-protected conduct.
- Dodd-Frank’s say-on-pay requirement provides for a nonbinding shareholder vote and states that the vote does not change directors’ fiduciary duties; that limitation does not bar traditional state-law fiduciary-duty claims based on the underlying compensation decision.
- An advisory shareholder vote may be used as evidence at the pleading stage to support allegations about the board’s conduct and to support demand-futility allegations, even though the vote does not itself impose liability.
- A claim for unjust enrichment may proceed where the complaint plausibly alleges that executives received compensation that was not properly earned and was obtained through alleged fiduciary misconduct connected to the approval and recommendation of the pay.

## Conclusion

The court allowed NECA-IBEW Pension Fund’s derivative challenge to Cincinnati Bell’s 2010 executive compensation to proceed, denying dismissal because the complaint plausibly alleged fiduciary breach and unjust enrichment tied to a claimed pay-for-performance mismatch and adequately pleaded demand futility, with the negative say-on-pay vote treated as supporting factual material rather than an independent source of liability.


NECA-IBEW Pension Fund v. Cox, 2011 U.S. Dist. LEXIS 106161 (2011)