In re ProAssurance Corp. Stockholder Derivative Litigation

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

IN RE PROASSURANCE CORP. )
STOCKHOLDER DERIVATIVE ) Consol. C.A. No. 2022-0034-LWW
LITIGATION )

MEMORANDUM OPINION
Date Submitted: June 6, 2023
Date Decided: October 2, 2023

Thomas A. Uebler, MCCOLLOM D’EMILIO SMITH UEBLER LLC, Wilmington,
Delaware; Blake A. Bennett, COOCH AND TAYLOR, P.A., Wilmington,
Delaware; Melinda A. Nicholson & Nicolas Kravitz, KAHN SWICK & FOTI, LLC,
New Orleans, Louisiana; Benjamin I. Sachs-Michaels, GLANCY PRONGAY &
MURRAY LLP, New York, New York; Robert V. Prongay & Pavithra Rajesh,
GLANCY PRONGAY & MURRAY LLP, Los Angeles, California; Counsel for
Plaintiffs Fanourios Ferderigos & Morton Goldfarb
Raymond J. DiCamillo, Kevin M. Gallagher & Nicholas F. Mastria, RICHARDS,
LAYTON & FINGER, P.A., Wilmington, Delaware; Jonathan Youngwood, Janet
A. Gochman & Jacob Lundqvist, SIMPSON THACHER & BARTLETT LLP, New
York, New York; Counsel for Defendants Edward L. Rand, Jr., W. Stancil Starnes,
Dana S. Hendricks, Howard Friedman, Michael Boguski, Thomas A. S. Wilson Jr.,
Kedrick D. Adkins Jr., Bruce D. Angiolillo, Samuel A. Di Piazza Jr., Maye Head
Frei, M. James Gorrie, Ziad R. Haydar, Frank A. Spinosa, Katisha T. Vance, Robert
E. Flowers, and Nominal Defendant ProAssurance Corp.

WILL, Vice Chancellor
 ProAssurance Corp., one of the nation’s largest healthcare professional

liability insurance providers, traditionally insured small accounts. But in 2015, the

company decided to follow industry trends and signed a policy with a large

healthcare institution called TeamHealth. The larger account meant greater

exposure to high severity claims. By mid-2018, TeamHealth’s claims had grown

more frequent. By 2020, ProAssurance announced that its loss reserves had been

inadequate.

These events, quite obviously, involve a commercial decision that went

poorly—the stuff that business judgment is made of. Yet the plaintiffs in this action

seek to hold ProAssurance’s directors and officers accountable based on oversight

and disclosure theories. Because it is not substantially likely that ProAssurance’s

independent and disinterested board faces liability for either claim, the action cannot

proceed.

Oversight claims should be reserved for extreme events. The point is to

maintain a baseline expectation that fiduciaries try, in good faith, to monitor key

corporate risks and ensure that the entity operates lawfully. For liability to arise, the

directors’ oversight failures must be so egregious that they amount to bad faith. That

is, the directors utterly failed to implement a reporting system or consciously

disregarded a violation of positive law.

1
 The allegations here suggest nothing of the sort. ProAssurance’s board

regularly received updates on the company’s underwriting practices and reserves. It

properly delegated these tasks to management and was guided by actuaries and

auditors. The only so-called red flags were of business risks—not illegality. How

(and whether) to respond was entirely within the directors’ discretion.

The plaintiffs’ disclosure claim fares no better. The plaintiffs insist that

disclosures describing ProAssurance’s conservative practices are materially

misleading in view of the TeamHealth account. But the complaint lacks

particularized allegations that the directors issued the disclosures knowing that they

were false. To the contrary, the complaint and board materials incorporated into it

show the board was told that management was taking a thoughtful—even cautious—

approach to emerging trends and that the company’s loss reserves were reasonable.

Ultimately, the plaintiffs have not pleaded specific facts from which disloyalty

can be inferred. ProAssurance’s board had a reporting system in place. There is no

suggestion that ProAssurance was breaking the law. And the complaint lacks

particularized allegations that any false disclosures were made with scienter.

Because the plaintiffs come nowhere close to demonstrating that a majority of

the board could not impartially consider a pre-suit demand, the action is dismissed

under Rule 23.1.

2
I. RELEVANT BACKGROUND

The following facts are drawn from the Consolidated Amended Verified

Stockholder Derivative Complaint (the “Complaint”), the documents it incorporates

by reference, and certain public documents.1

A. ProAssurance’s Business

Nominal defendant ProAssurance Corp. (the “Company”), a Delaware

corporation, is a holding company for property and casualty insurance companies.2

1
See Verified S’holder Deriv. Consol. Compl. (Dkt. 8) (“Compl.”); Winshall v. Viacom
Int’l, Inc., 76 A.3d 808, 818 (Del. 2013) (“[A] plaintiff may not reference certain
documents outside the complaint and at the same time prevent the court from considering
those documents’ actual terms.”) (citation omitted); Freedman v. Adams, 2012 WL
1345638, at *5 (Del. Ch. Mar. 30, 2012) (“When a plaintiff expressly refers to and heavily
relies upon documents in her complaint, these documents are considered to be incorporated
by reference into the complaint.”) (citation omitted); In re Books-A-Million, Inc. S’holders
Litig., 2016 WL 5874974, at *1 (Del. Ch. Oct. 10, 2016) (explaining that the court may
take judicial notice of “facts that are not subject to reasonable dispute” (citing In re Gen.
Motors (Hughes) S'holder Litig., 897 A.2d 162, 170 (Del. 2006))). The parties agreed that
all books and records produced to the plaintiffs pursuant to 8 Del. C. § 220 are incorporated
by reference into the Complaint. See Amalgamated Bank v. Yahoo! Inc., 132 A.3d 752,
797 (Del. Ch. 2016), abrogated by Tiger v. Boast Apparel, Inc., 214 A.3d 933 (Del. 2019).
Exhibits to the Transmittal Affidavit of Melissa A. Lagoumis in Support of the
Defendants’ Opening Brief in Support of their Motion to Dismiss the Verified Stockholder
Derivative Consolidated Complaint and, Alternatively, to Stay the Action are cited as
“Defs.’ Opening Br. Ex. __.” See Dkt. 18. Exhibits to the Plaintiff’s Answering Brief in
Opposition to Defendants’ Motion to Dismiss the Verified Stockholder Derivative
Complaint and, Alternatively, to Stay the Action are cited as “Pls.’ Answering Br. Ex.
___.” See Dkt. 29. Exhibits to the Transmittal Affidavit of Nicholas F. Mastria in Support
of Defendants’ Reply Brief in Further Support of Their Motion to Dismiss the Verified
Stockholder Derivative Consolidated Complaint and, Alternatively to Stay the Action are
cited as “Defs.’ Reply Br. Ex. __.” See Dkt. 37. Certain documents are cited by the last
three digits of their Bates stamps.
2
Compl. ¶¶ 1, 21; see Defs.’ Opening Br. Ex. 1 (2021 Form 10-K) at 9.

3
Its largest operating segment is Specialty Property & Casualty (“SP&C”), which

includes a healthcare professional liability insurance (“HCPL”) segment.3 Revenue

derived from HCPL premiums constitutes a significant portion of ProAssurance’s

SP&C business.4

HCPL policies protect healthcare professionals from negligence and other

claims like medical malpractice.5 Due to delays between the time of treatment and

the filing of a malpractice claim, companies like ProAssurance often issue “claims-

made” policies rather than “occurrence-based” policies.6 A claims-made policy

provides coverage for claims filed during the active policy year.7 An occurrence-

based policy provides coverage for claims arising from events transpiring during the

active policy year, even if the claims are brought long after.8

For several decades, over 90% of ProAssurance’s HCPL business was

underwriting professional liability policies for solo practitioners or smaller physician

groups.9 This approach, combined with a focus on claims-made policies, allowed

3
Compl. ¶¶ 1, 43. The SP&C segment generated 53% of PRA’s consolidated revenue and
59% of its consolidated net premiums in 2018 and 2019. Id. ¶ 43.
4
Id. ¶ 1.
5
Id. ¶ 44.
6
Id.
7
Id. ¶ 45.
8
Id. ¶ 46.
9
Id. ¶¶ 63, 96.

4
ProAssurance to reasonably estimate its future losses, manage risk, and set

appropriate reserves.10 ProAssurance’s longstanding strategy also involved

conservativism in maintaining loss reserves.11 Loss reserves represent expected

future losses that the Company will pay for covered claims.12 To recognize these

liabilities, ProAssurance establishes loss reserves as balance sheet liabilities with

corresponding income statement charges representing the anticipated amount

needed to settle claims.13

ProAssurance’s public filings describe its processes for recording loss

reserves.14 Its disclosures explain that to develop reserves, the Company hires

independent consultants applying actuarial methodologies and a statistical review of

claims data to evaluate changes in severity trends.15 According to the Company,

there are “multiple uncertainties” inherent in estimating loss reserves, including

“claim frequency and severity.”16

10
Id. ¶¶ 47, 68.
11
Id. ¶¶ 2, 54.
12
Id. ¶ 54.
13
Id.
14
See id.; Defs.’ Opening Br. Ex. 2 (2018 Form 10-K) at 38.
15
See, e.g., Defs.’ Opening Br. Ex. 3 (2017 Form 10-K) at 36-37 (describing the “very
detailed,” “highly technical,” and “highly judgmental” actuarial process); Defs.’ Opening
Br. Ex. 2 at 40-41 (same).
16
See Defs.’ Opening Br. Ex. 2 at 178; Defs.’ Opening Br. Ex. 3 at 19.

5
 In each accounting period, the adequacy of loss reserves for unpaid claims is

reassessed and may be adjusted to ensure there are funds to cover filed claims.17 If

loss reserves are inadequate, the Company’s net income is overstated by understating

its expenses.18

B. The TeamHealth Account

Around 2015, the HCPL competitive marketplace shifted toward underwriting

policies for larger physician groups, hospitals, and major national healthcare

provider entities.19 ProAssurance began to consider underwriting larger group

accounts “to remain relevant as the healthcare industry evolve[d] toward delivery of

care through larger and more complex entities.”20 The Company soon created a

subcommittee of underwriters called the “National Healthcare Team,” led by the

Company’s then-President of Healthcare Professional Liability Howard Friedman,

to sell HPCL policies to large physician groups.21

On August 3, 2016, ProAssurance announced that it had added large accounts

in the HCPL segment, including “a significant multi-state physician group that

17
Compl. ¶ 55.
18
Id. ¶ 57.
19
Id. ¶ 63.
20
Defs.’ Opening Br. Ex. 4 (Feb. 19, 2018 Audit Committee minutes) at ‘582; Compl.
¶¶ 63, 79.
21
Compl. ¶¶ 25, 63. Friedman served as President of Healthcare Professional Liability at
ProAssurance from January 2014 to May 2019, and has worked for the Company since
1996. Id. ¶ 25.

6
represented the single largest premium ever billed by ProAssurance.”22 This account

(though not identified by name) was TeamHealth, a national provider of outsourced

physician services employing over 18,000 clinicians and serving approximately

3,400 healthcare provider facilities.23 The TeamHealth policy required the Company

to provide $60 million of coverage excess of an aggregated retention (i.e., risk that

remained with TeamHealth) of $60 million.24 The TeamHealth policy was renewed

on June 1, 2018 with the same $60 million in excess coverage and an increased $85

million aggregated retention.25

By the end of 2017, TeamHealth claims were increasing.26 During a

November 11, 2017 Board of Directors meeting, ProAssurance’s then-Chief

Executive Officer W. Stancil Starnes reported that the Company was competing in

“soft and complex” market conditions.27 He explained that “management expect[ed]

22
Defs.’ Opening Br. Ex. 6 (Aug. 3, 2016 Form 8-K) at 4; see Compl. ¶¶ 64-65. The
Complaint notes that TeamHealth was not identified by name in the announcement.
Compl. ¶ 64; see also id. ¶ 69 (discussing larger accounts on a 2018 earnings call as
“add[ing] a good bit of exposure [and] . . . increas[ing] the[] potential for loss severity, in
part due to the fact that there are higher policy limits available”). The defendants do not
dispute that the referenced account was to TeamHealth. See Defs.’ Opening Br. in Supp.
of Mot. to Dismiss the Verified S’holder Deriv. Consol. Compl. and, Alternatively, to Stay
the Action (Dkt. 17) (“Defs.’ Opening Br.”) 14-15.
23
Compl. ¶¶ 2, 8, 64.
24
See Defs.’ Opening Br. Ex. 7 (Jan. 20, 2020 Audit Committee materials) at ‘568.
25
Id.
26
Compl. ¶ 88 tbl.1 (discussing TeamHealth claims).
27
Id. ¶ 100.

7
that reserve development w[ould] be less favorable in the near to medium term than

it ha[d] been in the past.”28

On February 21, 2018, the Company’s 2017 Form 10-K was filed. The filing

stated that the Company had “sustained [its] financial stability during difficult

market conditions through responsible underwriting, pricing and loss reserving

practices and through conservative investment practices.”29

C. Loss Severity Monitoring in Early 2018

The Company worked with an independent actuary, Willis Towers Watson

(“WTW”), to analyze the adequacy of ProAssurance’s loss reserves.30 Until early

2018, TeamHealth’s risk severity was evaluated in conjunction with other HCPL

policies.31 By February 2018, WTW was analyzing the adequacy of reserves for the

TeamHealth account separately.32 The Company’s external auditor, Ernst & Young

LLP (“E&Y”), performed a similar analysis.33

28
Id.
29
Id. ¶ 51 n.5.
30
See id. ¶ 97. WTW is a risk management, insurance brokerage, and advisory company.
31
Id. ¶¶ 80, 101.
32
Defs.’ Opening Br. Ex. 4 at ‘582.
33
Id.

8
 The Company’s Audit Committee met on February 19, 2018 and was updated

on the performance of ProAssurance’s large account business.34 By this time,

ProAssurance had created new “subgroups for analysis purposes.”35 WTW

representatives reported to the Audit Committee on their actuarial review of the

SP&C segment.36 WTW’s state-by-state review of medical professional liability

was presented, which showed that “[f]requency ha[d] been flat overall, and severity

[wa]s projected to increase moderately over time.”37

A memorandum prepared by Friedman in advance of the meeting stated that

although the risks associated with larger healthcare accounts were “somewhat

different than [ProAssurance’s] historical base,” management believed it was

“important to have a presence in this emerging area of healthcare.”38 He explained

that “[f]requency remained flat” but “severity increased somewhat.”39

The Company accounted for the “risk profile” of this type by “book[ing]

higher initial loss ratios compared to [the Company’s] traditional business.”40

34
Compl. ¶ 71. The meeting was attended by Audit Committee members Samuel A. Di
Piazza, Bruce D. Angiolillo, and Frank A. Spinosa as well as Starnes, Edward L. Rand,
and Freidman. Id.
35
Id. ¶ 101.
36
Id. ¶ 233.
37
Id.
38
Id. ¶ 71; Defs.’ Opening Br. Ex. 9 (Feb. 19, 2018 Audit Committee materials) at ‘141.
39
Compl. ¶ 102.
40
Defs.’ Opening Br. Ex. 9 at ‘142.

9
Friedman felt that WTW’s loss estimates were “conservative” and told the Audit

Committee that they had been “moderated” by management. 41 Despite that, both

WTW and EY still considered the Company’s reserves “reasonable.”42

The full Board met on March 7, 2018 and discussed the Company’s financial

results for the fourth quarter of 2017.43 Management reported that the “loss ratio

increased in the quarter, driven largely by increased severity in the healthcare

professional liability line.”44 The Board discussed trends “observed with respect to

loss frequency and severity, and the reasonableness of the Company’s carried

reserves.”45 Directors were given a 2018 financial forecast predicting that “the loss

ratio [wa]s expected to increase” and reports on the Company’s reserves as analyzed

41
Id.; see Compl. ¶ 138. Friedman’s memorandum is dated “February 14, 2017” though it
was presented at the February 19, 2018 meeting. The plaintiffs believe this was a
typographical error. See Pls.’ Answering Br. in Opp’n to Defs.’ Mot. to Dismiss the
Verified S’holder Deriv. Compl. and, Alternatively, to Stay the Action (Dkt. 29) (“Pls.’
Answering Br.”) at 10 n.2.
42
Defs.’ Opening Br. Ex. 4 at ‘582-83.
43
Compl. ¶ 104.
44
Id.; Defs.’ Opening Br. Ex. 8 (Mar. 7, 2018 Board minutes) at ‘442.
45
Compl. ¶ 104.

10
by WTW.46 Management analyzed the adequacy of the Company’s carried reserves

“in light of [the] ranges established by” WTW and EY’s external reviews.47

Also on March 7, the Company’s management-level Reserve Review

Committee met.48 During the meeting, the Reserve Review Committee observed

“higher case reserves.”49 ProAssurance was “monitoring, evaluating, and reacting

to the observed trends (likely) with less favorable development and higher accident

year loss ratios.”50 Friedman informed the Reserve Review Committee that the

Company was “seeing losses come in higher than the initial loss pick” for some

larger accounts.51

On May 1, the Audit Committee met to discuss financial results for the first

quarter of 2018.52 The Audit Committee noted that earnings were below

46
Id.; see also Defs.’ Opening Br. Ex. 8 at ‘445. Board members present for the meeting
included Starnes, Angiolillo, Di Piazza, Robert E. Flowers, M. James Gorrie, Ziad R.
Haydar, Spinosa, Thomas A. S. Wilson Jr., and Katisha T. Vance. Friedman, Rand, and
Michael L. Boguski (President, Specialty P&C segment) were also present.
47
Defs.’ Opening Br. Ex. 8 at ‘445.
48
Compl. ¶ 105.
49
Id. ¶¶ 105-06; Defs.’ Opening Br. Ex. 28 (Mar. 7, 2018 Reserve Review Committee
minutes) at ‘647.
50
Defs.’ Opening Br. Ex. 28 at ‘647.
51
Compl. ¶ 106.
52
Attendees included Audit Committee members Di Piazza, Angiolillo, and Spinosa, as
well as Rand and Friedman. Compl. ¶ 109; Defs.’ Opening Br. Ex. 38 (May 1, 2018 Audit
Committee minutes).

11
expectations by -9.1%.53 The SP&C lines were underperforming at about $4 million

below plan, “driven by loss severity on large account and excess and surplus

business lines.”54 When the Audit Committee members next met again on May 22,

they “emphasized the importance of continued transparency in the Company’s

financial disclosures and asked management to be especially attentive to addressing

investors’ questions and concerns in future filings as the HCPL cycle develop[ed].”55

The full Board met on May 23, 2018 and discussed the Company’s first

quarter financial results.56 A memorandum from Friedman sent in advance of the

meeting expressed that though “overall results for the medical professional liability

industry continued to be quite good in 2017,” there were “some signs of stress”

beneath reported results.57 Then-Chief Operating Officer and Chief Financial

Officer Edward L. Rand reported that “[t]he loss environment continue[d] to be a

53
Compl. ¶ 109.
54
Id.; Defs.’ Opening Br. Ex. 38 at ‘587.
55
Defs.’ Opening Br. Ex. 25 (May 22, 2018 Audit Committee minutes) at ‘624; see Compl.
¶ 129. Attendees included Audit Committee members Di Piazza, Angelillo, Spinosa, and
Starnes as well as Rand and Friedman. During the meeting, the Audit Committee discussed
and reviewed minutes from three Reserve Review Committee meetings. Compl. ¶ 129.
56
Members present included Starnes, Adkins, Angiolillo, Di Piazza, Flowers, Gorrie,
Haydar, John J. McMahon, Jr., Spinosa, Wilson, and Vance. Friedman, Rand, and Boguski
were also present. Id. ¶ 110.
57
Id. ¶ 113; Defs.’ Reply Br. Ex. 41 (May 23, 2018 Board materials) at ‘743; see also
Defs.’ Opening Br. Ex. 21 (May 23, 2018 Board minutes) at ‘452.

12
challenge and with continued signs of increasing severity in HCPL especially, but

not exclusively, with larger more complex risks.”58

D. Loss Reserves in 2018
The Audit Committee met on August 2, 2018 to discuss loss reserves in the

second quarter of the year.59 A memorandum from Friedman explained to the Audit

Committee that WTW had taken “an even more pessimistic view on the TeamHealth

account” based on its actuarial analysis of claims.60 Friedman “expect[ed] that

WTW [wa]s building a degree of caution into their development factors” and found

WTW’s “pessimistic view on the TeamHealth account” to be “debatable.”61 The

Company had observed “higher claim severity” over the prior six months,

“particularly with respect to some of [its] large-account and excess and surplus lines

business.”62 At the same time, management reported that “frequency for the quarter

was essentially flat” and that “industry indications of potential severity trend

increases [were] of some concern,” WTW “agree[d] with [management] that there

[was no] evidence of an increase in paid severity in [the Company’s] data.”63

58
Compl. ¶¶ 110, 133, 232; Defs.’ Opening Br. Ex. 21 at ‘450-51.
59
Compl. ¶ 116.
60
Id.; Defs.’ Opening Br. Ex. 16 (Aug. 2, 2018 Audit Committee materials) at ‘004, ‘006.
61
Compl. ¶ 117.
62
Id. ¶ 116.
63
Defs.’ Opening Br. Ex. 16 at ‘004, ‘006.

13
 When the Audit Committee met again on October 31, Friedman gave an

update on the reserves for “a particular large account.”64 The Audit Committee was

advised that “increasing [claims] severity [wa]s concerning, but still [wa]s not

showing in the Company’s paid losses.”65 As explained in a memorandum provided

before the meeting, Friedman continued to view WTW’s “pessimistic” actuarial

assessment of the TeamHealth account as “debatable.”66 Friedman told the Audit

Committee that although “case reserves [we]re relatively high,” he “believe[d] that

those reserves [we]re conservative.”67

The full Board met on November 28, 2018.68 As part of the meeting materials,

the Board received a memorandum from Rand about the Company’s expectations

for 2019.69 Rand wrote that management “anticipate[d] that the severity trends in

HCPL w[ould] continue into 2019.”70 Management’s plan for the HCPL line

“reflect[ed] continued higher current accident year loss costs and a decreasing level

64
Compl. ¶ 123; Defs.’ Opening Br. Ex. 39 (Oct. 31, 2018 Audit Committee minutes) at
‘590. The attendees in this meeting including Audit Committee members Di Piazza,
Adkins, Angiolillo, and Spinosa. Rand, Hendricks, and Friedman also attended.
65
Defs.’ Opening Br. Ex. 39 at ‘590.
66
Compl. ¶ 122; Pls.’ Answering Br. Ex. A (Oct. 24, 2018 Friedman memo) at ‘271.
67
Pls.’ Answering Br. Ex. A (Oct. 24, 2018 Friedman memo) at ‘271.
68
Compl. ¶ 127.
69
Id. ¶ 125; Defs.’ Opening Br. Ex. 19 (Nov. 28, 2018 Board materials) at ‘545.
70
Compl. ¶ 125; Defs.’ Opening Br. Ex. 19 at ‘546.

14
of favorable reserve development.”71 The Audit Committee received similar news

from the Company’s internal audit department on November 27.72

E. Risk Assessment for 2019
On February 14, 2019, Friedman authored a memorandum addressing WTW’s

higher loss estimates due to a case reserve increase.73 Friedman noted that WTW’s

more conservative estimates were “warranted to an extent,” but had been “moderated

to some degree” in management’s final selection.74 Specifically, ProAssurance

recorded $61 million in case loss reserves instead of the $65 million estimated by

WTW.75

Friedman’s memorandum was shared with the Audit Committee in advance

of its February 18 meeting.76 At the meeting, Friedman explained that the “two

greatest factors driving change in the healthcare professional liability reserves [we]re

71
Compl. ¶ 125; Defs.’ Opening Br. Ex. 19 at ‘546.
72
Compl. ¶ 126 (“All lines of business noted an increase in frequency and severity of
claims. We are seeing a rise in jury awards, which in turn leads to an increased frequency.
This is something we as an organization are keenly aware of and are monitoring closely.”).
73
Compl. ¶ 136; Defs.’ Opening Br. Ex. 5 (Feb. 18, 2019 Audit Committee materials) at
‘751.
74
Compl. ¶¶ 136, 138; Defs.’ Opening Br. Ex. 5 at ‘754.
75
Compl. ¶¶ 136, 138; Defs.’ Opening Br. Ex. 5 at ‘755.
76
Compl. ¶ 137. Present for the meeting were Audit Committee members Di Piazza,
Adkins, Angiolillo, and Spinosa. Starnes, Rand, Hendricks, and Friedman were also
present. Defs.’ Opening Br. Ex. 11 (Feb. 18, 2019 Audit Committee minutes) at ‘592.

15
increased loss activity for larger accounts and greater severity in the case reserves.”77

He noted “in particular that case reserves on the large TeamHealth account [we]re

high relative to actual loss payments, and the company [wa]s adjusting pricing and

terms on that account and large accounts in general.”78

Days later, on February 21, the Company announced that Friedman would be

“retiring” from his role as President of Healthcare Professional Liability.79

Also on February 21, ProAssurance filed its 2018 Form 10-K.80 The

Company continued to attest to the conservative nature of its loss reserves

practices.81 As in prior years, ProAssurance disclosed that it had “sustained [its]

financial stability during difficult market conditions through responsible

underwriting, pricing and loss reserving practices and through conservative

investment practices.”82 It also explained that the Company had “observed

potentially higher severity trends in [its] case reserve estimates,” but that those

trends had “not been confirmed by actual claim payments.”83

77
Compl. ¶ 137; Defs.’ Opening Br. Ex. 11 at ‘594.
78
Compl. ¶ 137; Defs.’ Opening Br. Ex. 11 at ‘594.
79
Compl. ¶¶ 63, 139. Friedman maintained his employment at the company, “overseeing
the continued development of the actuarial function.” Id. ¶ 139.
80
Compl. ¶ 140; Defs.’ Opening Br. Ex. 2.
81
Compl. ¶ 140; see supra note 29 and accompanying text (quoting 2017 Form 10-K).
82
Compl. ¶ 229; Defs.’ Opening Br. Ex. 2 at 37.
83
Defs.’ Opening Br. Ex. 2 at 38.

16
 F. Increasing Severity in 2019

On April 24, 2019, the Audit Committee met to discuss the Company’s results

for the first quarter of 2019, which was a “material earnings miss.”84 The Audit

Committee discussed that “[t]he macro environment in the HCPL line suggest[ed]

that the Company should expect larger losses on claims presently in inventory and

thus the need for higher reserves.”85

The members also discussed “the subjective aspects of the judgments that

management makes each quarter with respect to reserve development, and the timing

of those judgments.”86 CEO Starnes expressed that the “entire medical liability

industry” was experiencing “increasing severity.”87 He noted that ProAssurance

“was not adding to its loss reserves and that the reserves continue[d] to be adequate

but with less redundancy.”88

The Audit Committee met again on April 29.89 Before the meeting, the

members received a memorandum from the Company’s Chief Financial Officer

84
Compl. ¶ 146; Defs.’ Opening Br. Ex. 14 (Apr. 24, 2019 Audit Committee minutes) at
‘632. The meeting was attended by Audit Committee members Di Piazza, Adkins,
Angiolillo, and Spinosa, as well as Starnes, Rand, Hendricks, and Friedman.
85
Compl. ¶ 146; Defs.’ Opening Br. Ex. 14 at ‘633.
86
Defs.’ Opening Br. Ex. 14 at ‘634.
87
Id.
88
Id.; Compl. ¶ 147.
89
Compl. ¶¶ 73, 134; Defs.’ Opening Br. Ex. 15 (Apr. 29, 2019 Audit Committee minutes).
In attendance were Audit Committee members Di Piazza, Adkins, Angiolillo, and Spinosa,
as well as Rand, Hendricks, and Friedman.

17
Dana S. Hendricks “observing potentially higher severity trends and . . . an increase

in the severity of incurred losses associated with a number of the large and more

complex risk [ProAssurance] insure[s].”90 Hendricks observed that “[d]ue to the

long tailed nature of th[e] business, it w[ould] be several years before

[ProAssurance] ha[d] concrete information regarding the ultimate impact of these

losses.”91

During the meeting, the Audit Committee discussed whether the more

“complex risks” of larger accounts “are fundamentally different from the smaller

accounts that have historically comprised the majority of the Company’s business .

. . requir[ing] substantially different skills.”92 The Audit Committee also inquired

about “the reserve analysis process.”93 Friedman explained to the Audit Committee

that the process “necessarily requires subjective judgments” and that “management

endeavors to take a cautious approach when potential changes in trends are

detected.”94

90
Compl. ¶ 148; Pls.’ Answering Br. Ex. A (Apr. 29, 2019 Audit Committee materials) at
‘577.
91
Pls.’ Answering Br. Ex. A (Apr. 29, 2019 Audit Committee materials) at ‘577.
92
Compl ¶ 73; Defs.’ Opening Br. Ex. 15 at ‘637.
93
Defs.’ Opening Br. Ex. 15 at ‘637.
94
Id.

18
 Another Audit Committee meeting was held on May 21.95 The attendees

reviewed EY’s 2019 audit plan with a representative of EY.96 The EY representative

observed that “[a]reas of significant potential risk include[d] . . . evaluation of loss

reserves.”97

The full Board met the following day.98 COO Rand—now a Board member—

told the directors that “management intend[ed] to focus heavily on underwriting, risk

selection, and pricing to improve results.”99 A memorandum from Rand sent in

advance of the meeting said that the SP&C team would be “monitoring rate adequacy

on new business with the discipline to walk away from business that does not meet

the Company’s underwriting standards and profit objectives.”100 The Audit

Committee reported that “[e]arnings were substantially lower than analysts’

estimates due primarily to materially lower favorable reserve development in the

95
Compl. ¶ 135; Pls.’ Answering Br. Ex. A (May 21, 2019 Audit Committee minutes) at
‘611. In attendance were Audit Committee members Di Piazza, Adkins, Angiolillo, and
Spinosa, along with Starnes, Rand, Hendricks, and Boguski.
96
Compl. ¶ 135; Pls.’ Answering Br. Ex. A (May 21, 2019 Audit Committee minutes) at
‘612.
97
Pls.’ Answering Br. Ex. A (May 21, 2019 Audit Committee minutes) at ‘612.
98
Compl. ¶ 152; Defs.’ Opening Br. Ex. 24 (May 22, 2019 Board minutes) at ‘001.
99
Compl. ¶ 152; Defs.’ Opening Br. Ex. 24 at ‘001-002.
100
Compl. ¶ 152; Defs.’ Opening Br. Ex. 23 (May 22, 2019 Board materials) at ‘375.

19
healthcare professional liability line as well as a higher current accident year loss

ratio.”101

Also on May 22, ProAssurance announced that CEO Starnes was departing,

effective July 1, 2019. He would be replaced by Rand.102

The Audit Committee met on August 1, to review the Company’s financial

results for the second quarter of 2019.103 CFO Hendricks reported that operating

income was “lower than the prior-year period but consistent with first quarter results

and with management’s expectations.”104 She observed that reserve development

was more favorable “in the second quarter than in the first quarter.”105 Friedman

noted that this favorable development was “small” and due partly to another quarter

of increased severity—though it “still was not appearing in actual paid losses.”106

A memorandum from Friedman prepared in advance of the Audit Committee

meeting recommended a “reduction of prior year loss reserves . . . on both a gross

101
Defs.’ Opening Br. Ex. 24 at ‘004.
102
Compl. ¶ 151.
103
Id. ¶ 155; Pls.’ Answering Br. Ex. A (Aug. 1, 2019 Audit Committee minutes) at ‘639.
In attendance were Audit Committee members Di Piazza, Adkins, Angiolillo, and Spinosa,
as well as Starnes, Hendricks, Boguski, and Friedman (whose title was now Actuarial).
104
Pls.’ Answering Br. Ex. A (Aug. 1, 2019 Audit Committee minutes) at ‘640.
105
Id.
106
Id.

20
and net basis.”107 This recommendation was “based on the current annual estimate

from WTW and the $7 million reduction that [ProAssurance] recorded in the first

quarter, offset by conservatism due to potential additional deterioration.”108

Friedman believed WTW’s recommendations were “excessive given [the

Company’s] results, achieved rate increase and observations.”109

G. Increasing Claims in 2019

By the end of the third quarter of 2019, TeamHealth’s outstanding claims tally

netted an additional 90 claims, bringing the total number to 895.110

On October 30, the Audit Committee met to review and approve the financial

statements for the third quarter of 2019.111 Hendricks stated that the company would

report operating income “above the consensus estimate” that was an improvement

over the prior two quarters’ results.112 Friedman observed that the loss trends

“continued as expected” in the quarter and said that the Company had made an

107
Compl. ¶ 155; Defs.’ Opening Br. Ex. 17 (Aug. 1, 2019 Audit Committee materials) at
‘353.
108
Compl. ¶ 155; Defs.’ Opening Br. Ex. 17 at ‘353.
109
Compl. ¶ 150; Defs.’ Opening Br. Ex. 17 at ‘352.
110
Compl. ¶ 88 tbl.1 (reporting claims based on allegations in a federal securities action
complaint). It should be noted that the defendants dispute these figures and aver that the
plaintiffs misunderstand what the figures mean.
111
Defs.’ Opening Br. Ex. 10 (Oct. 30, 2019 Audit Committee minutes) at ‘597. The
meeting was attended by Audit Committee members Di Piazza, Adkins, Angiolillo, and
Spinosa, as well as Starnes, Hendricks, and Friedman.
112
Id.

21
additional $5 million of reserves for the TeamHealth account.113 WTW noted that

the overall trend for the TeamHealth account was negative.114

The Audit Committee met again on December 9.115 The attendees recognized

that “development trends for large accounts, and particularly TeamHealth, ha[d]

been negative, but it was becoming clearer that the magnitude of ultimate expected

losses would be greater than originally expected.”116 Hendricks reported that a study

from an independent actuary for TeamHealth received in the past week, as well as

an ongoing study by WTW, had prompted this clarification.117 Accordingly,

management developed a “preliminary view” that “an adjustment of $30 million to

$50 million” of reserve strengthening “might be necessary in the fourth quarter.”118

The Audit Committee cautioned that “timing for disclosure of any material

adjustment to reserves must be carefully balanced to assure prompt disclosure of a

material known fact but avoid premature disclosure of information that remained

113
Compl. ¶ 250; Defs.’ Opening Br. Ex. 10 at ‘598.
114
Compl. ¶ 250; Defs.’ Opening Br. Ex. 10 at ‘598.
115
Compl. ¶ 166; Defs.’ Opening Br. Ex. 30 (Dec. 9, 2019 Audit Committee minutes). The
meeting was attended by Audit Committee members Di Piazza, Adkins, Angiolillo, and
Spinosa, as well as Rand, Hendricks, and Boguski.
116
Compl. ¶ 166; Defs.’ Opening Br. Ex. 30 at ‘601.
117
Defs.’ Opening Br. Ex. 30 at ‘601.
118
Id.

22
uncertain or incomplete, and management acknowledged the importance of such

balance.”119

H. 2020 Loss Reserve Disclosures
On January 20, 2020, management prepared a presentation for the Audit

Committee about the TeamHealth account.120 It stated that TeamHealth “ha[d]

exhibited extreme severity over very long periods of time.”121 The presentation gave

a bullet-point summary of ProAssurance’s underwriting performance with respect to

the TeamHealth account, including: “[k]nowledge [i]nequality”; “[n]o incentive to

control frequency”; “[n]o risk sharing upon aggregate breech [sic]”; “[a]ggregate

exposure under appreciated”; “[r]ate guarantee late in soft market”; “[l]ack of

underwriting discipline”; and “[s]everely underpriced over four year period.”122

According to the presentation, $77.8 million of $94.8 million the Company spent in

reserve actions was driven by TeamHealth.123 The presentation suggested additional

underwriting controls and actions, including the formation of a “Large Account

Review Committee.”124

119
Compl. ¶ 167; Defs.’ Opening Br. Ex. 30 at ‘601.
120
Defs.’ Opening Br. Ex. 7 at ‘555.
121
Id. at ‘564.
122
Id. at ‘569-70.
123
Id. at ‘558.
124
Id. at ‘575-76.

23
 Two days later, on January 22, ProAssurance publicly disclosed “a

preliminary estimate of $37 million of adverse development” in prior year accident

loss reserves “driven by a large national healthcare account written since 2016.”125

On February 17, the Audit Committee met to review the Company’s fourth

quarter results for 2019.126 The Audit Committee members were told that the SP&C

segment recorded a significant loss in the fourth quarter and for the year “due to

reserve strengthening, a change in the current accident year loss pick for HCPL, and

other adjustments, which in total had a negative impact of approximately $95

million.”127

On February 20, ProAssurance announced its results for the fourth quarter of

2019.128 The disclosure described an “[a]dverse development of $51.5 million in

prior accident year reserves” due to “the effects of the large national healthcare

account.”129 The Company’s Form 10-K for 2019, filed the same day, reiterated that

125
Defs.’ Opening Br. Ex. 32 (Jan. 22, 2020 Form 8-K) at 3; Compl. ¶ 176.
126
Compl. ¶ 180; Pls.’ Opening Br. Ex. A (Feb. 17, 2020 Audit Committee minutes) at
‘603. In attendance were Audit Committee members Di Piazza, Adkins, Angiolillo, and
Spinosa, as well as Starnes, Rand, Hendricks, Boguski, and Friedman.
127
Pls.’ Opening Br. Ex. A (Feb. 17, 2020 Audit Committee minutes) at ‘606.
128
Defs.’ Opening Br. Ex. 33 (Feb. 20, 2020 Form 8-K).
129
Id. at 4.

24
the Company was “committed to disciplined underwriting, pricing, and loss

reserving practices . . . even during difficult market conditions.”130

I. The Securities Action

On June 16, 2020, a federal securities action was filed in the United States

District Court for the Northern District of Alabama (the “Securities Action”).131 An

amended complaint was filed on March 21, 2021.132 The federal plaintiffs alleged

that the defendants made materially misleading statements and omissions regarding,

among other things, the Company’s loss reserves and “conservative” reserve

practices.133

On December 10, 2021, the federal court granted in part the defendants’

motion to dismiss the Securities Action.134 The court determined that the statements

cited by the plaintiffs’ “relayed opinions—i.e., senior management’s beliefs about

the reserves.”135 The court noted that “[a] small category of statements present[ed]

an exception to this general finding” and pointed to statements by Friedman and

130
Compl. ¶ 182.
131
Id. ¶ 189.
132
See Defs.’ Opening Br. Ex. 35 (Complaint, Sheet Metal Workers Local 19 Pension Fund
v. ProAssurance Corp., Case No. 2:20-cv-00856-AKK (N.D. Ala.)).
133
Id. ¶¶ 25-26.
134
See generally Sheet Metal Workers Loc. 19 Pension Fund v. ProAssurance Corp., 600
F. Supp. 3d 1189 (N.D. Ala. 2021).
135
Id. at 1207.

25
another director “represent[ing] to investors that [ProAssurance] had not observed

any changes in claims frequency in 2018 or 2019.”136 The court dismissed the claims

in full against Starnes, Rand, and Hendricks, observing that “[a]t best, most of these

allegations amount to claims that [ProAssurance] and its executives could have done

a better job at estimating losses.”137

The action has since settled.138

J. This Litigation

On January 12 and February 25, 2022, two purported stockholders of

ProAssurance filed stockholder derivative complaints in this court.139 The suits

followed the production of books and records by ProAssurance pursuant to 8 Del.

C. § 220. The actions were subsequently consolidated, and a Verified Stockholder

Derivative Consolidated Complaint was filed on May 27, 2022.140

136
Id. at 1208.
137
Id. at 1224.
138
See Dkt. 50. Pursuant to the terms of the settlement agreement, no defendant admits
any liability and ProAssurance will cause to be paid $28,000,000 to fully resolve all claims
against the defendants named in the Securities Action. Id. The settlement amount will be
funded by ProAssurance’s insurance carriers. Id.
139
See Dkts. 1, 5.
140
Dkt. 8.

26
 The defendants moved to dismiss the Complaint and briefing was completed

on February 6, 2023.141 On June 6, 2023, I heard argument on the defendants’

motion to dismiss.142 The matter was taken under advisement at that time.

II. LEGAL ANALYSIS
The defendants have moved to dismiss the Complaint under Court of

Chancery Rule 23.1 for failure to plead demand excusal and under Rule 12(b)(6) for

failure to state a claim upon which relief can be granted.143 Because the plaintiffs

have deprived the Board of its right to manage the Company’s litigation asset by

declining to make a demand, my analysis begins with demand futility. It ends there

as well.

The plaintiffs assert that demand is futile because 11 of the 13 directors at

issue face a substantial likelihood of liability. They contend that the Board both

failed to oversee the TeamHealth policy and made false and misleading statements

about ProAssurance’s conservative underwriting and reserve practices. These

claims are unsupported by the sort of particularized allegations required to plead

demand futility.

141
Dkts. 16, 29, 36. This matter was reassigned to me on February 26, 2023. Dkt. 40.
142
Dkt. 51.
143
The defendants also moved, in the alternative, to stay this action pending the resolution
of the Securities Action. That aspect of their motion is moot. See supra note 138 and
accompanying text.

27
 Insurance underwriting is, by its very nature, uncertain and risky. Any reader

who endured my tedious recitation of the facts could recognize that the Board was

consistently—even painfully—involved in monitoring the Company’s underwriting

and reserves. The plaintiffs’ belief that the Company’s practices were not

sufficiently conservative is a quibble with the Board’s judgment. Their conflation

of a bad business outcome with “bad faith on the part of the Board” necessarily

fails.144 So does their effort to hold the Board liable for disclosures about the

Company’s underwriting and loss reserve practices absent allegations of scienter.

A. The Demand Futility Standard

Court of Chancery Rule 23.1 requires that a stockholder who forgoes making

a litigation demand plead “with particularity the efforts, if any, made by the plaintiff

to obtain the action the plaintiff desires from the directors or comparable authority

and the reasons for the plaintiff’s failure to obtain the action or for not making the

effort.”145 “This requirement is rooted in the ‘basic principle of the Delaware

General Corporation Law . . . that the directors, and not the stockholders, manage

144
In re Gen. Motors Co. Deriv. Litig., 2015 WL 3958724, at *11 (Del. Ch. June 26, 2015)
(rejecting plaintiffs’ efforts to “conflate concededly bad outcomes from the point of view
of the Company with bad faith on the part of the Board”), aff’d, 133 A.3d 971 (Del. 2016)
(TABLE).
145
Ct. Ch. R. 23.1; see Brehm v. Eisner, 746 A.2d 244, 254 (Del. 2000) (“Rule 23.1 is not
satisfied by conclusory statements or mere notice pleading.”).

28
the business and affairs of the corporation.’”146 “It is designed to give 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.”147

“The court is confined to the well-pleaded allegations in the Complaint, the

documents incorporated into the Complaint by reference, and facts subject to judicial

notice while conducting a Rule 23.1 analysis.”148 “Rule 23.1 is not satisfied by

conclusory statements or mere notice pleading.”149 Instead, “[w]hat the pleader must

set forth are particularized factual statements that are essential to the claim.”150

Evaluating a board’s ability to consider a pre-suit demand requires

consideration of the plaintiff’s allegations on a “director-by-director” basis.151 For

each director, the court must apply a three-part test asking:

(i) whether the director received a material personal benefit from the
alleged misconduct that is the subject of the litigation demand;

146
In re Kraft Heinz Co. Deriv. Litig., 2021 WL 6012632, at *4 (Del. Ch. Dec. 15, 2021)
(quoting FLI Deep Marine LLC v. McKim, 2009 WL 1204363, at *2 (Del. Ch. Apr. 21,
2009)), aff’d, 282 A.3d 1054 (Del. 2022) (TABLE).
Lewis v. Aronson, 466 A.2d 375, 380 (Del. Ch. 1983), rev’d on other grounds, 473 A.2d
147

805 (Del. 1984).
148
Kraft Heinz, 2021 WL 6012632, at *4 (citing White v. Panic, 783 A.2d 543, 546-47
(Del. 2001)).
149
Id. (quoting Brehm, 746 A.2d at 254).
150
Id.
151
Khanna v. McMinn, 2006 WL 1388744, at *14 (Del. Ch. May 9, 2006).

29
 (ii) whether the director faces a substantial likelihood of liability on
any of the claims that would be the subject of the litigation
demand; and

(iii) whether the director lacks independence from someone who
received a material personal benefit from the alleged misconduct
that would be the subject of the litigation demand or who would
face a substantial likelihood of liability on any of the claims that
are the subject of the litigation demand.152

“If the answer to any of these three questions is ‘yes’ for at least half of the members

of [a] demand board, then demand is excused as futile.”153

B. The Demand Futility Analysis

“The court ‘counts heads’ of the members of a board to determine whether a

majority of its members are disinterested and independent for demand futility

purposes.”154 As of January 12, 2022 when this litigation was first brought, the

Board had 13 members: W. Stancil Starnes, Edward L. Rand, Jr., Samuel A. Di

Piazza, Jr., M. James Gorrie, Bruce D. Angiolillo, Maye Head Frei, Katisha T.

Vance, Frank A. Spinosa, Ziad R. Haydar, Thomas A.S. Wilson, Jr., Kedrick D.

152
United Food & Com. Workers Union & Participating Food Indus. Emps. Tri-State
Pension Fund v. Zuckerberg, 262 A.3d 1034, 1059 (Del. 2021).
153
Id.
154
In re Zimmer Biomet Hldgs., Inc. Deriv. Litig., 2021 WL 3779155, at *10 (Del. Ch.
Aug. 25, 2021) (citing In re EZCORP Inc. Consulting Agreement Deriv. Litig., 2016 WL
301245, at *34 (Del. Ch. Jan. 25, 2016), aff’d, 279 A.3d 356 (TABLE).

30
Adkins, Jr., Fabiola Cobarrubias, and Scott C. Syphax.155 I refer to these directors

as the “Demand Board.”

Two of the thirteen Demand Board members—Cobarrubias and Syphax—

joined the Board in May 2021. The plaintiffs do not challenge their independence

or disinterestedness.156 Thus, I consider whether 7 of the remaining 11 Demand

Board members would be incapable of impartially considering a pre-suit demand.

I end my analysis after concluding that the five Demand Board members who

were neither on the Audit Committee nor participants at its meetings—Gorrie, Frei,

Haydar, Vance, and Wilson—are disinterested and independent. The plaintiffs do

not allege that these directors received a material personal benefit from the matters

raised on the Complaint. Nor (other than Gorrie) do they challenge the directors’

independence.157 Although allegations against all Demand Board members are

feeble, there is a striking absence of particularized allegations suggesting that Gorrie,

Frie, Haydar, Vance, or Wilson face a substantial likelihood of liability for a non-

155
Compl. ¶¶ 22-23, 29, 31-38, 41-42.
156
See Simons v. Brookfield Asset Mgmt. Inc., 2022 WL 223464, at *14 (Del. Ch. Jan. 21,
2022) (noting that a plaintiff waived arguments about a director’s independence by failing
to brief them).
157
See infra Section II.B.3. The plaintiffs also allege that Rand could not impartially
consider a demand due to his service on the Reserve Review Committee. Compl. ¶ 265. I
need not consider these allegations. My conclusion that demand is not futile as to a
majority of the Demand Board is made exclusive of Rand.

31
exculpated claim.158 In fact, other than describing the five directors’ tenure, position,

and compensation, the only factual allegations specific to each concern attendance

at regular Board meetings and receipt of ordinary course meeting materials.

Together with Cobarrubias and Syphax, the five non-Audit Committee

Demand Board members yield a majority. At least seven of the Demand Board

members could have impartially considered a pre-suit demand. The Complaint must

therefore be dismissed under Rule 23.1.

1. The Oversight Claim

An oversight claim is “possibly the most difficult theory in corporation law

upon which a plaintiff might hope to win a judgment.”159 In Stone v. Ritter, the

Delaware Supreme Court outlined the two “necessary conditions predicate for

director oversight liability: (a) the directors utterly failed to implement any reporting

or information system or controls; or (b) having implemented such a system or

controls, consciously failed to monitor or oversee its operations . . . .” 160 These

articulations of an oversight claim are “colloquially referred to as prongs one and

two of Caremark.”161 “In either case, imposition of liability requires a showing that

158
See 8 Del. C. § 102(b)(7); Defs.’ Opening Br. Ex. 36 (ProAssurance certificate of
incorporation) § VIII.
159
In re Caremark Int’l Inc. Deriv. Litig., 698 A.2d 959, 967 (Del. Ch. 1996).
160
Stone v. Ritter, 911 A.2d 362, 370 (Del. 2006) (citation omitted).
161
Constr. Indus. Laborers Pension Fund ex rel. SolarWinds Corp. v. Bingle, 2022 WL
4102492, at *6 (Del. Ch. Sept. 6, 2022), aff’d, 297 A.3d 1083 (Del. 2023) (TABLE).

32
the directors knew that they were not discharging their fiduciary obligations”—that

is, that they acted in bad faith.162

Initially, the plaintiffs’ theory of oversight liability seemed to be premised on

the first Caremark prong. The plaintiffs alleged that a majority of the Demand Board

members face a substantial likelihood of liability for “fail[ing] to implement

adequate controls and procedures to mitigate ProAssurance’s liability.”163 The

plaintiffs also pleaded that “[g]iven the ‘mission critical’ importance of underwriting

to ProAssurance’s overall business . . . the Board’s failure to implement adequate

controls and procedures for underwriting these policies could not have been in good

faith.”164 The parties’ briefs similarly argued about whether the Demand Board

implemented adequate underwriting controls.165

162
Stone, 911 A.2d at 370 (citation omitted).
163
Compl. ¶ 224; see also id. ¶ 226 (“[T]he Demand Defendants failed to implement the
requisite controls to ensure the underwriting and policy terms for large healthcare accounts
were adequately supported.”).
164
Id. ¶ 227; see also id. ¶ 228 (“[T]he Demand Defendants were reckless in failing to
implement controls such that ‘unique’ policies would receive particular scrutiny for the
associated risks before they were approved.”).
165
See Defs.’ Opening Br. 32-38 (“Plaintiffs’ theory of liability . . . is premised on the first
Caremark prong, i.e., that the Demand Defendants ‘utterly failed to implement adequate
controls and procedures’ to address the risks associated with the underwriting of large
accounts[.]”); Pls.’ Answering Br. 44-45 (“Before the TeamHealth policy was issued in
2016, a majority of the Demand Defendants created a management-level [National Health
Team] tasked with issuing HCPL policies to large physician groups, yet failed to
implement controls and procedures serving as parameters to assess and price the
corresponding risks for these policies.”); Defs.’ Reply Br. 7 (“Plaintiffs do not dispute that
they are proceeding under the first Caremark prong in arguing that a majority of the
33
 At oral argument, the plaintiffs took a different approach. The plaintiffs

insisted that they were challenging the Demand Board’s alleged failure to respond

to red flags—i.e., the second Caremark prong.166 Their new theory is that the

directors engaged in bad faith by ignoring risks associated with the TeamHealth

policy.167

The plaintiffs were wise to abdicate their claim that the Board failed to

adequately oversee underwriting and loss reserves. Far from “utterly fail[ing] to

implement any reporting or information system or controls,”168 ProAssurance’s

Board was doing its job. The Complaint details the engagement of auditors and

actuarial advisors, oversight of management charged with the Company’s

underwriting functions, meetings to discuss severity trends and reserves, and Board-

level updates on large accounts.169

Demand Board faces a substantial likelihood of liability for failing to oversee the
underwriting of large accounts.”).
See Trans. of June 6, 2023 Oral Arg. on Defs.’ Mot. to Dismiss the Verified S’holder
166

Deriv. Consol. Compl. and, Alternatively, to Stay the Action (Dkt. 51) (“Hr’g Tr.”) 55.
167
See Hr’g Tr. 56-58.
168
Stone, 911 A.2d at 370 (citation omitted).
169
See supra notes 30, 33-34, 36, 43, 45 and accompanying text. The plaintiffs’ briefing
asserts that a majority of the Demand Board members “created a management-level NHT”
but “failed to implement controls and procedures” related to its operations. Pls.’ Opp. Br.
44. There are, however, no allegations in the Complaint about the Board’s “involvement”
in creating the NHT. See Sheldon v. Pinto Tech. Ventures, L.P., 220 A.3d 245, 255 n.45
(Del. 2019).

34
 The plaintiffs’ recast oversight claim is equally weak. The plaintiffs must

plead that the directors knew “the corporation was violating the law” and “acted in

bad faith by failing to prevent or remedy those violations.”170 To do so, a plaintiff

typically alleges specific facts supporting a reasonable inference that the directors

knew of “violations of positive law” or “that the board consciously failed to act after

learning about evidence of illegality.”171 The Complaint lacks any such allegations.

First, the plaintiffs acknowledge that there is no indication ProAssurance’s

actions were illegal.172 Modern boards are under increasing pressure from

constituents to monitor diverse risks.173 Still, “Delaware courts have not broadened

a board’s Caremark duties to include monitoring risk in the context of business

decisions.”174 And for good reason.

170
Melbourne Mun. Firefighters’ Pension Tr. Fund ex rel. Qualcomm, Inc. v. Jacobs, 2016
WL 4076369, at *8 (Del. Ch. Aug. 1, 2016) (citing Caremark, 698 A.2d at 971).
171
South ex rel. Hecla Mining Co. v. Baker, 62 A.3d 1, 15 (Del. 2012).
172
See Hr’g Tr. 58 (The Court: “Are you saying that this was something illegal that they
were doing, or just a business decision that didn’t turn out well?” Plaintiffs’ Counsel: “No,
we don’t say that the company was countenancing illegality here.”).
173
See e.g., Firemen’s Ret. Sys. of St. Louis ex rel. Marriott Int’l, Inc. v. Sorenson, 2021
WL 459777, at *11-12 (Del. Ch. Oct. 5, 2021) (observing that “corporate governance must
evolve” as “legal and regulatory frameworks” do); SolarWinds, 2022 WL 4102492, at *1
(describing cybersecurity as a risk “essential to the business” of companies).
174
Marriott, 2021 WL 4593777, at *12; see also SolarWinds, 2022 WL 4102492, at *7
(“Many Delaware cases have cautioned that whether Caremark should be applied to
business risk remains an open question.”) (citation omitted); In re Clovis Oncology, Inc.
Deriv. Litig., 2019 WL 4850188, at *12 (Del. Ch. Oct. 1, 2019) (“[A]s relates to Caremark
liability, it is appropriate to distinguish the board’s oversight of the company’s
management of business risk that is inherent in its business plan from the board’s oversight
of the company’s compliance with positive law— including regulatory mandates.”); In re
35
 Evaluating business risk is “the quintessential board function.”175 So long as

the challenged conduct is lawful, directors have broad discretion to advance the

corporation’s interests as they see fit. The directors’ responsibility to oversee

fundamental risks “does not eviscerate the core protections of the business judgment

rule,” which allow them “to pursue risky transactions without the specter of being

held personally liable if those decisions turn out poorly.”176

A decision to break the law is a different matter. Although Delaware

corporations may innovate on the edges of commercial uncertainty, they must meet

a baseline of legality. Business risks are shades of gray; legal compliance risks are

black and white. Directors lack the discretion “to consciously cause the corporation

to act unlawfully.”177

Goldman Sachs Grp., Inc. S’holder Litig., 2011 WL 4826104, at *21 (Del. Ch. Oct. 12,
2011) (“[T]his Court has not definitively stated whether a board’s Caremark duties include
a duty to monitor business risk.”).
175
SolarWinds, 2022 WL 4102492, at *1.
176
In re Citigroup Inc. S’holder Deriv. Litig., 964 A.2d 106, 126 (Del. Ch. 2009) (“To the
extent the Court allows shareholder plaintiffs to succeed on a theory that a director is liable
for a failure to monitor business risk, the Court risks undermining the well settled policy
of Delaware law by inviting courts to perform a hindsight evaluation of the reasonableness
or prudence of directors’ business decisions.”); see also Ont. Provincial Council of
Carpenters’ Pension Tr. Fund ex rel. Walmart Inc. v. Walton, 2023 WL 3093500, at *33
(Del. Ch. Apr. 26, 2023) (“When directors make a business decision that carries legal risk,
but which otherwise involves legally compliant conduct, then the business judgment rule
protects that decision.”); SolarWinds, 2022 WL 4102492, at *1 (“[A]bsent statutory or
regulatory obligations, how much effort to expend to prevent [risks] against the corporate
interest requires an evaluation of business risk, the quintessential board function.”).
177
Desimone v. Barrows, 924 A.2d 908, 934-35 (Del. Ch. 2007) (citation omitted); see also
Metro Commc’n Corp. BVI v. Advanced Mobilecomm Techs. Inc., 854 A.2d 121, 131 (Del.
36
 Here, venturing into uncertain territory by underwriting large accounts is a

classic business decision. The plaintiffs complain that the Company, though

inexperienced in underwriting large policies, rejected its actuary’s recommendations

to take more conservative loss reserves.178 None of these facts suggest that

ProAssurance was running afoul of regulatory or legal requirements.179 “Legal, if

risky, actions that are within management’s discretion to pursue are not ‘red flags’

that would put a board on notice” of improper conduct.180 The absence of red flags

of illegality stands in stark contrast to the precedent cited by the plaintiffs.181

Ch. 2004) (“[A] fiduciary may not choose to manage an entity in an illegal fashion, even
if the fiduciary believes that the illegal activity will result in profits for the entity.”); In re
Massey Energy Co. Deriv. & Class Action Litig., 2011 WL 2176479, at *20 (Del. Ch. May
31, 2011) (“[A] fiduciary of a Delaware corporation cannot be loyal to a Delaware
corporation by knowingly causing it to seek profit by violating the law.”) (citation omitted).
178
E.g., Compl. ¶¶ 71-72, 86, 97-98, 104-06, 108, 125-27.
179
See, e.g., Reiter ex rel. Cap. One Fin. Corp. v. Fairbank, 2016 WL 6081823, at *2-4,
13 (Del. Ch. Oct. 18, 2016) (dismissing a Caremark claim where the company risked
becoming “the [s]ubject of [r]egulatory [i]nvestigations” regarding “anti-money laundering
laws and regulations” but none of the purported red flags stated that the company “had
been found to violate statutory requirements” or that anyone “had engaged in fraudulent or
criminal conduct”); Marriott, 2021 WL 47593777, at *15 (rejecting an oversight claim
where the plaintiffs failed to “allege that the directors were told, for example, that
Starwood’s standards ran afoul of regulatory or legal requirements”); Rojas ex rel. J C.
Penney Co., Inc. v. Ellison, 2019 WL 3408812, at *14 (Del. Ch. July 29, 2019)
(emphasizing, in the context of ongoing price-comparison claims and a consumer lawsuit,
“the lack of any particularized factual allegations to support a reasonable inference that the
members of the Demand Board knew or should have known that the Company was
violating the law at any time before (or after) those actions were filed”).
180
Goldman Sachs, 2011 WL 4826104, at *20.
181
See Pls.’ Opp. Br. 47; Kandell ex rel. FXCM, Inc. v. Niv, 2017 WL 4334149, at *18
(Del. Ch. Sept. 29, 2017) (noting the case’s “highly unusual set of facts: a Delaware
corporation with a business model allegedly reliant on a clear violation of a federal
37
 But even if one could envision “an extreme hypothetical” where the failure to

monitor business risk could yield director oversight liability, a showing of bad faith

would be a prerequisite.182 The plaintiffs would be required to plead facts showing

a “sustained or systemic failure” of oversight.183 Nothing of the sort is alleged here.

The decision to underwrite the TeamHealth account does not suggest bad

faith. It would be unreasonable to infer that the account’s future risks were apparent

to the Board at the time of underwriting, when ProAssurance had just entered the

large account space.184 Understanding that the TeamHealth policy had “unique”

terms does not equate to knowledge of an imminent corporate trauma.185 Moreover,

regulation; a situation of which I can reasonably infer the Board was aware”); Shaev v.
Baker, 2017 WL 1735573, at *15 (N.D. Cal. May 4, 2017) (declining to dismiss a claim
where the directors allegedly “failed to exercise reasonable oversight over pervasive
fraudulent and criminal conduct”) (citation omitted); Walmart, 2023 WL 3093550, at *30
(denying a motion to dismiss where the directors and officers allegedly ignored “a steady
stream of red flags” that Walmart was not complying with the Controlled Substances Act
and a settlement with a federal agency).
182
SolarWinds, 2022 WL 4102492, at *7 (“While no case in this jurisdiction has imposed
oversight liability based solely on failure to monitor business risk, it is possible, I think, to
envision an extreme hypothetical involving liability for bad faith actions of directors
leading to such liability.”) (citation omitted).
183
Caremark, 698 A.2d at 971.
184
See Compl. ¶ 63. In addition, 4 of the 13 Demand Board members (Frei, Adkins, Vance,
and Rand) joined the Board after the TeamHealth policy was issued. Two others
(Cobarrubias and Syphax) are not named as defendants. And one more (Angiolillo) was
elected to the Board shortly before the policy was issued.
185
See Compl. ¶¶ 64, 86-87, 228; see also Okla. Firefighters Pension & Ret. Sys. ex rel.
Citigroup, Inc. v. Corbat, 2017 WL 6452240 (Del. Ch. Dec. 18, 2017) (“[T]he corporate
trauma in question ‘must be sufficiently similar to the misconduct implied by the “red
flags” such that the board’s bad faith, “conscious inaction” proximately caused that
trauma’” (quoting Qualcomm, 2016 WL 4076369, at *8)); Walmart, 2023 WL 3093500, at
38
account underwriting was a management function overseen by professional

underwriters. It was not the Board’s duty to write (or even review) the policy or to

second guess the underwriters.186

The plaintiffs’ core allegation of bad faith seems to be that the Board knew

Friedman and management booked less conservative loss reserves than WTW had

recommended.187 For example, the Audit Committee received a memorandum from

Friedman before its February 19, 2018 meeting discussing management’s decision

to “moderate[]” WTW’s loss estimates.188 But it is hardly indicative of bad faith for

experienced underwriters to decline to wholesale adopt actuarial recommendations.

The same February 19 memorandum informed the Audit Committee that

management “considered” the risk factors “and booked higher initial loss ratios as

*33 (noting that a “red flags claim” requires the plaintiff to plead “red flags that the
corporate trauma was coming”).
186
See Ash v. McCall, 2000 WL 1370341, at *9 (Del. Ch. Sept. 15, 2000) (“Directors of
Delaware corporations quite properly delegate responsibility . . . in a host of
circumstances.”) (citing 8 Del. C. § 141(e)); In re Camping World Hldgs., Inc. S’holder
Deriv. Litig., 2022 WL 288152, at *17 (Del. Ch. Jan. 31, 2022) (“Proper oversight does
not require that a board consider every corporate decision before it occurs.”) (citation
omitted), aff’d, 285 A.3d 1204 (Del. 2022) (TABLE).
187
Hr’g Tr. at 58 (“I think the bad faith comes in, again, when, if you have an expert that
you have hired and you are ignoring that expert, that is bad faith.”).
188
Compl. ¶ 99; see Defs.’ Opp. Br. Ex. 9 at ‘142; see also Compl. ¶ 150; Defs.’ Opening
Br. Ex. 17 at ‘352-53.

39
compared to [the Company’s] traditional business to reflect the risk profile and price

competition.”189

The Complaint recounts in painstaking detail how the Audit Committee and

Board were regularly informed that larger accounts presented higher liability risks

that management and the Company’s advisors were monitoring them.190 As another

example, on May 23, 2018, the Board was told that “larger verdicts and increasing

loss severity tends to affect larger . . . entities with bigger balance sheets and higher

insurance coverage limits.”191 At the same meeting, however, management

explained “the challenges ahead for [the HCPL] line and the various strategies and

initiatives in place or planned to meet those challenges,” providing reassurance on

its plan to address them.192 Unable to contest these facts, the plaintiffs repeatedly

189
Defs.’ Opening Br. Ex. 9 at ‘142.
190
E.g., Compl. ¶ 71 (discussing Feb. 19, 2018 Audit Committee meeting); id. ¶ 225; see
also id. ¶ 78 (discussing Nov. 27, 2018 Audit Committee meeting); ¶¶ 79-80; ¶ 101
(discussing Feb. 19, 2018 Audit Committee meeting); ¶ 109 (discussing May 1, 2018 Audit
Committee meeting); ¶ 116 (discussing Aug. 2, 2018 Audit Committee meeting); ¶ 104
(discussing Mar. 7, 2018 Board meeting); ¶¶ 111, 133 (discussing May 23, 2018 Board
meeting); ¶¶ 122-23 (discussing Oct. 31, 2018 Audit Committee meeting); ¶ 127
(discussing Nov. 28, 2018 Board meeting); ¶ 129 (discussing May 22, 2018 Audit
Committee meeting); ¶ 130 (discussing Feb. 19, 2018 Audit Committee meeting); ¶ 137
(discussing Feb. 18, 2019 Audit Committee meeting); ¶¶ 146-47 (discussing Apr. 24, 2019
Audit Committee meeting); ¶ 155 (discussing Aug. 1, 2019 Audit Committee meeting);
¶ 164 (discussing Oct. 30, 2019 Audit Committee meeting); ¶ 166 (discussing Dec. 9, 2019
Audit Committee meeting); ¶ 171 (discussing Jan. 20, 2020 Audit Committee meeting);
¶ 180 (discussing Feb. 17, 2020 Audit Committee meeting).
191
Id. ¶ 72.
192
Defs.’ Opening Br. Ex. 21 at ‘452.

40
allege that the Board should have caused the Company to be more conservative in

its underwriting and loss reserve practices. This hindsight second-guessing of a

business decision that turned out poorly cannot reasonably support an inference of

bad faith.193

Given these shortcomings, the plaintiffs have failed to demonstrate that any

of the Demand Board members—much less a majority—face a substantial likelihood

of liability on a Caremark claim.

2. The Disclosure Claims

Next, the plaintiffs argue that demand is excused because a majority of the

Demand Board faces a substantial likelihood of liability for non-exculpated

disclosure violations. The plaintiffs point to two categories of purported

misrepresentations.194 They challenge disclosures in ProAssurance’s Form 10-Ks

describing the Company’s underwriting and reserve practices as “conservative” and

193
Zimmer Biomet, 2021 WL 3779155, at *11, *22 n.260 (explaining that the plaintiffs’
“second-guessing” of imperfect “remediation efforts” “cannot form the basis of a
Caremark claim”); Fisher ex rel. LendingClub Corp. v. Sanborn, 2021 WL 1197577, at
*16 (Del. Ch. Mar. 30, 2021) (rejecting a Caremark claim where a “Risk Committee was
made aware on a regular basis of trends . . . and steps the Company had taken to address
those trends when necessary”).
194
The plaintiffs also repeatedly critique statements by management during earnings calls.
E.g., Compl. ¶¶ 52, 65, 94. There are no allegations that a majority of the Demand Board
members were involved in—or aware of—these specific statements before they were
made.

41
“disciplined.”195 And relatedly, they accuse the Board of failing to disclose the

alleged frequency and severity trends affecting the TeamHealth account.196

“Corporate fiduciaries can breach their duty of disclosure under Delaware law

in a number [of] ways—by making a materially false statement, by omitting a

material fact, or by making a partial disclosure that is materially misleading.”197

Where the challenged disclosures do not call for stockholder action, “a plaintiff must

allege that the directors ‘deliberately misinform[ed] shareholders about the business

of the corporation.’”198 To show a substantial likelihood of liability on such a claim

the plaintiffs “must plead particularized factual allegations that ‘support the

inference that the disclosure violation was made in bad faith, knowingly or

intentionally.’”199 The Complaint is devoid of any particularized allegations of

scienter regarding ProAssurance’s disclosures.

195
Id. ¶¶ 229-30.
196
Id. ¶ 254.
O’Reilly v. Transworld Healthcare, Inc., 745 A.2d 902, 916 (Del. Ch. 1999) (citation
197

omitted).
In re TrueCar, Inc. S’holder Deriv. Litig., 2020 WL 5816761, at *13 (Del. Ch. Sept. 30,
198

2020); see Malone v. Brincat, 722 A.2d 5, 14 (Del. 1998).
199
Citigroup, 964 A.2d at 132 (quoting Transworld, 745 A.2d at 915).

42
 a. Disclosures About Conservativism

The plaintiffs allege that the Demand Board made “knowingly false and

misleading statements” in the Company’s 2017, 2018, and 2019 Form 10-Ks.200

These statements include that ProAssurance: maintains “responsible underwriting,

pricing and loss reserving practices and through conservative investment practices”;

is “committed to disciplined underwriting, pricing and loss reserving practices”; and

has “reasonable and appropriate” reserves.201 The Complaint does not support a

reasonable conclusion that a majority of the Demand Board is substantially likely to

be liable for these statements.202

First, the Complaint lacks specific factual allegations reasonably suggesting

“sufficient board involvement” in preparing the disclosures.203 The only director

involvement alleged is signing the SEC filings.204 “A statement that the documents

were signed by the [directors], or that they ‘approved’ the disclosures and ‘caused’

200
See Hr’g Tr. 36-37 (clarifying the Form 10-Ks at issue).
201
Compl. ¶¶ 229-30, 246.
202
The plaintiffs argue that the partial denial of a motion to dismiss in the Securities Action
should bear on my analysis. Pls.’ Opp. Br. 34-35. The court in the Securities Action denied
a motion to dismiss pertaining to ProAssurance’s public statements about its
“conservative,” “disciplined,” “cautious” practices given the “unique TeamHealth deal.”
Compl. ¶ 192 (quoting ProAssurance Corp., 600 F. Supp 3d at 1217). But none of the
Demand Board members, other than Starnes and Rand, were named as defendants in the
Securities Action and those two were named under a control person (not scienter) theory.
203
Citigroup, 964 A.2d at 134.
204
Compl. ¶ 51 n.5 (alleging that the directors “signed” the Form 10-Ks); id. ¶¶ 53, 140,
182.

43
or ‘consented to’ their filing, is not—without more—a particularized allegation of

fact.”205

Second, the Complaint lacks sufficient allegations of scienter. The plaintiffs

have not alleged with specificity that the directors “had knowledge that any

disclosures or omissions were false or misleading or . . . acted in bad faith in not

adequately informing themselves.”206 In fact, the Complaint says nothing about a

single individual director acting “deliberately” or having a particular “state of mind”

in issuing the disclosures.207

The plaintiffs’ allegations center on the Audit Committee members, who

received information about WTW’s “more pessimistic view” of TeamHealth.208

Even then, the Complaint and Board materials demonstrate that the directors were

205
Zimmer Biomet, 2021 WL 3779155, at *15 (citations omitted); see also In re NantKwest,
Inc. Deriv. Litig., 2018 WL 2303360, at *4 (Del. Ch. May 18, 2018). The plaintiffs cite to
In re infoUSA, Inc. Shareholders Litigation, where the court inferred scienter on the part
of directors who signed Form 10-Ks stating that payments to the CEO were made for
“usage of aircraft and related services.” 953 A.2d 963, 990 (Del. Ch. 2007) (describing
that the directors issued the disclosure with knowledge that it was deceptive). But, in
infoUSA, the directors allegedly knew that nearly $600,000 of the payments constituted
compensation for personal expenses such as a yacht. Id. No similar allegations of scienter
exist here.
206
Citigroup, 964 A.2d at 134 (citation omitted).
207
Zimmer Biomet, 2021 WL 3779155, at *12 (explaining that 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” that, at the
pleading stage, is inferred based on allegations in the complaint) (citation omitted).
208
See Pls.’ Opp. Br. 36 (describing information shared only with the Audit Committee
regarding WTW’s “more pessimistic view” of TeamHealth as “underscor[ing] Board
knowledge of the problematic account”).

44
told the Company “moderated” WTW’s approach.209 It would be unreasonable to

take the inferential leap that the Audit Committee members knew disclosures about

the Company’s conservative practices were false because an advisor took a more

cautious view of an account. And even if it were not, just 6 of 13 Demand Board

members would be implicated. The Audit Committee’s knowledge cannot be

imputed to the rest of the Board.210

The plaintiffs’ allegations regarding the five non-Audit Committee Demand

Board members are based almost entirely on attendance at four Board meetings in

2017 and 2018 where industry trends and management’s projections of less

favorable results for the HCPL segment were discussed.211 None of these allegations

about the overall industry support a rational inference that the directors made

materially misleading statements about ProAssurance’s business practices based on

knowledge about adverse developments specific to TeamHealth.212 The plaintiffs

fall back to group pleading that all Demand Board members “knew by at least the

209
E.g., Compl. ¶¶ 98-99, 117-18, 138.
210
See Desimone, 924 A.2d at 943. The fact that the Audit Committee gave regular updates
to the full Board cannot be taken to mean that specific information was delivered. Again,
the plaintiffs rest on vague facts and unsupported inferences rather than particularized
allegations.
211
Compl. ¶¶ 233-34, 239.
212
See Citigroup, 964 A.2d at 135 (“Merely alleging that there were signs of problems in
the subprime mortgage market is not sufficient to show that the director defendants knew
that Citigroup’s disclosures were false or misleading.”).

45
second quarter of 2018 that ProAssurance’s loss reserves for the TeamHealth

account were massively understated.”213 This generalized allegation falls well short

of the particularity standard.214

The only specific reference to TeamHealth that can be associated with the

non-Audit Committee Demand Board members is that ProAssurance “enhanc[ed]

[its] presence in the large broker world” by “writing accounts like TeamHealth.”215

Knowledge that TeamHealth was a large account coupled with vague allegations

about large account trends does not yield a reasonable inference that the Demand

Board knew statements about ProAssurance’s conservatism were false. Simply put,

the plaintiffs fail to show anything in the Board materials “that, fairly read, could be

said to demonstrate knowledge of falsity”216—particularly on the part of the non-

Audit Committee directors.

213
Compl. ¶ 231.
214
See Raj & Sonal Abhyanker Fam. Tr. ex rel. UpCounsel, Inc. v. Blake, 2021 WL
2477025, at *4 (Del. Ch. June 17, 2021) (describing allegations asserted against “All
Defendants” as “impermissible group pleading”); see also In re Chemed Corp., S’holder
Deriv. Litig., 2015 WL 9460118, at *11 (D. Del. Dec. 23, 2015) (recognizing that group
pleading is an “indicator that the plaintiff’s allegations are unlikely to be sufficiently
particularized to meet” Rule 23.1’s requirements”), report and recommendation adopted
sub nom. KBC Asset Mgmt. NV v. McNamara, 2016 WL 2758256, at *1 (D. Del. May 12,
2016).
215
Compl. ¶ 232.
216
Steinberg ex. rel. Hortonworks, Inc. v. Bearden, 2018 WL 2434558, at *11 (Del. Ch.
May 30, 2018) (concluding that allegations that directors “knew” the company’s public
disclosure was false because they heard a presentation on the subject were insufficient to
plead demand futility).

46
 Third, the directors cannot be said to have inadequately informed themselves

about the disclosures’ veracity in bad faith. Both the Complaint and Board materials

it incorporates demonstrate that the directors were repeatedly advised by

management and external advisors that ProAssurance’s reserves were adequate and

reasonable.217 The directors were told, among other things, about the Company’s

“cautious” approach to emerging trends that threatened adverse reserve

developments after the TeamHealth policy was signed.218 There is no basis to infer

that the directors’ reliance on officers and experts was not in good faith.219

b. Disclosures About Frequency and Severity Trends

Next, the plaintiffs contend that the Demand Board failed to disclose

frequency (i.e., the number of claims being reported) and severity (i.e., the amount

See, e.g., Defs.’ Opening Br. Ex. 4 at ‘583; Defs.’ Opening Br. Ex. 5 at ‘693; Defs.’
217

Opening Br. Ex. 11 at ‘593.
218
Compl. ¶ 155; see Defs.’ Opening Br. Ex. 12 (Sept. 4, 2019 Board minutes) at ‘0013
(management updating the Board on “the challenges and underperformance of large
accounts” while reiterating that it “continue[d] to take a cautious view” and “remain[ed]
focused on underwriting discipline and operational efficiency”); Defs.’ Opening Br. Ex. 13
(Sept. 4, 2019 Board minutes) at ‘349 (“The increase in the loss ratio is attributable to our
continued caution around increases in severity observed in the [HCPL] market.”); Defs.’
Opening Br. Ex. 19 at ‘523 (“[W]e continue to react cautiously to signs that the loss
environment in the HCPL market is worsening.”); Defs.’ Opening Br. Ex. 22 (Sept. 5, 2018
Board materials) at ‘579; see also Genworth Fin., Inc. Consol. Deriv. Litig., 2021 WL
4452338, at *18 (Del. Ch. Sept. 29, 2021) (observing that “unqualified audit opinions . . .
coupled with management’s constant assurances to the Board that . . . reserves were being
adequately addressed, absolve the Board of liability under 8 Del. C. § 141(e) as a matter of
law”).
219
8 Del. C. § 141(e).

47
of liability per claim) trends affecting the TeamHealth account.220 The plaintiffs

allege that the certain directors—Audit Committee members or Audit Committee

meeting participants—“specifically knew” yet failed to disclose that ProAssurance

“would incur higher than expected losses for the TeamHealth account.”221 They

assert that the remaining Demand Board members “knew, or recklessly failed to

know, of the deteriorating TeamHealth account.”222

This claim suffers from many of the same deficiencies as those addressed

above.223 There are no particularized allegations allowing me to reasonably infer

that the directors issued materially misleading disclosures with scienter. Further, the

plaintiffs’ allegations about severity and frequency trends are contradicted by Board

materials reflecting that the Audit Committee and Board members were told overall

frequency remained flat, and that severity (though increasing) was not showing up

in ProAssurance’s paid losses.224

220
See Compl. ¶ 74.
221
Id. ¶ 248.
222
Id. The plaintiffs’ efforts to seek liability on allegations of recklessness cannot support
their demand futility arguments. See Norfolk Cty. Ret. Sys. v. Jos. A. Bank Clothiers, Inc.,
2009 WL 353746, at *12 n.104 (Del. Ch. Feb. 12, 2009) (“[R]ecklessness by itself only
amounts to gross negligence, which is not sufficient to demonstrate the state of mind
necessary for finding a breach of the duty of loyalty.”), aff’d, 977 A.2d 899 (Del. 2009)
(TABLE).
223
See supra Section II.B.1.a.
224
See, e.g., Defs.’ Opening Br. Ex. 4 at ‘582 (report from WTW that “[f]requency has
been flat overall, and severity is projected to increase moderately over time”); Defs.’
Opening Br. Ex. 16 at ‘004 (noting that “frequency for the quarter was essentially flat”).

48
 The plaintiffs point to a few instances where the Audit Committee and

directors attending Audit Committee meetings might have learned about problematic

trends.225 But there are no particularized allegations that the non-Audit Committee

directors discussed TeamHealth—let alone frequency and severity trends associated

with the account—at any Board meetings before the need for enhanced reserves

became apparent.

Regarding frequency, the plaintiffs cite to allegations in the Securities Action

complaint that TeamHealth’s claims “increased in frequency” by almost 900% by

the second quarter of 2018.226 Even accepting the assertion as true, there are no

allegations that the directors knew this information.227 Moreover, the Complaint and

Board materials it incorporates are replete with instances where the directors were

advised that frequency trends were in line with historic levels.228

Regarding severity, the Audit Committee received regular updates about

trends in the HCPL industry generally and their effects on ProAssurance’s results

and reserve assumptions.229 These updates noted that increasing severity trends were

225
See Compl. ¶¶ 88-89, 248-50.
226
Id. ¶¶ 88-89, 248.
227
Id. ¶ 6 (stating that “[m]anagement was aware of the claim frequency”); see also id.
¶ 93.
228
E.g., id. ¶ 79; see supra note 224 (citing Board materials).
229
See, e.g., id. ¶¶ 78-80, 110, 116, 121, 123, 127 (reflecting Board and Audit Committee
updates on frequency and severity trends).

49
not apparent in ProAssurance’s paid claims and that management was acting

cautiously in response to them.230 There is no reason why the directors’ reliance on

these representations could be considered unjustified.231 And, critically, a higher

observed severity trend was disclosed in 2018.232

Finally, it bears considering that in the Securities Action, the court rejected

substantially identical arguments about alleged misstatements in ProAssurance’s

public filings regarding the monitoring of frequency and severity trends. The court

explained that ProAssurance management “openly acknowledged the various types

of data that influenced their assumptions, estimations, and ultimate calculations

regarding loss reserves.”233 The court also held that “[t]hough the plaintiffs allege[d]

that claim frequency rose precipitously . . . against a backdrop of rising industry-

230
See, e.g., id. ¶¶ 126, 131 (“[I]t will be several years before we have concrete information
regarding the impact of these [HCPL] losses” given “the long tailed nature of this
business.”); Defs.’ Opening Br. Ex. 16 at ‘005; Opening Br. Ex. 4 at ‘582 (reflecting that
management adjusted reserves in response to general industry trends); Defs.’ Opening Br.
Ex. 18 (Aug. 2, 2018 Audit Committee minutes) at ‘627 (noting that management
“continues to take a cautious approach to changes in severity trend”); Defs.’ Opening Br.
Ex. 19 (Nov. 28, 2018 Board materials) at ‘523 (“As we have discussed previously we
continue to react cautiously to signs that the loss environment in the HCPL market is
worsening.”).
231
See Citigroup, 964 A.2d at 132 (“[D]irectors of Delaware corporations are fully
protected in relying in good faith on the reports of officers and experts.”) (citing 8 Del. C.
§ 141(e)).
232
Defs.’ Reply Br. Ex. 43 (Aug. 7, 2018 Form 10-Q) (“[W]e have observed potentially
higher severity trends in [its] case reserve estimates but these have not been confirmed by
actual claim payments.”); supra note 83 and accompanying text.
233
ProAssurance, 600 F. Supp. 3d at 1207.

50
wide claim severity, the complaint [wa]s devoid of facts establishing that the

defendants entirely ignored these trends and thereby misled investors when they

stressed the significance of frequency and severity in their calculations.” 234 The

Complaint here raises no allegations requiring a different outcome.

3. Allegations About Gorrie’s Independence

Finally, the plaintiffs allege that demand is excused as to Gorrie due to a

“business relationship” between himself and ProAssurance.235 Gorrie is the

President and Chief Executive Officer of Brasfield & Gorrie, Inc. (“B&G”), which

“is a controlling member of Hangar 24, LLC . . . of which ProAssurance owns 20%

and B&G owns 80%.”236 Hangar 24 leases a hangar at an airport in Birmingham,

Alabama where ProAssurance allegedly keeps its corporate aircraft.237

It is not apparent to me why this business tie has any bearing on Gorrie’s

impartiality to evaluate a claim about the TeamHealth account. Beyond that, there

are no allegations suggesting that the business relationship is material to Gorrie or

B&G.238 The mere fact that a director has roles in two companies that do business

234
Id.
235
Compl. ¶ 270.
236
Id.
237
Id.
238
See e.g., Jacobs v. Yang, 2004 WL 1728521, at *6 (Del. Ch. Aug. 2, 2004), aff’d, 867
A.2d 902 (Del. 2005) (TABLE).

51
together is not enough to show the director’s “independent discretion would be

compromised.”239

III. CONCLUSION

The plaintiffs have failed to plead particularized facts supporting a reasonable

inference that a majority of the Demand Board is incapable of impartially

considering demand. The defendants’ motion to dismiss under Rule 23.1 is granted.

This action is dismissed with prejudice.

239
Khanna, 2006 WL 1388744, at *17; see also Goldman Sachs, 2011 WL 4826104, at
*12 (rejecting lack of independence allegations where the plaintiff failed “to plead facts
that show anything other than a series of market transactions occurred” between a company
and entity affiliated with director).

52