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In the Court of Chancery of the State of Delaware

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In the Court of Chancery of the State of Delaware EFiled: Jun 10 2011 6:15PM EDT Transaction ID 38082821 Case No. 6285-VCN IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE ) In re NEWS CORPORATION ) Consolidated SHAREHOLDER DERIVATIVE ) C.A. No. 6285-VCN LITIGATION ) OPENING BRIEF IN SUPPORT OF DEFENDANTS K. RUPERT MURDOCH, JAMES MURDOCH, LACHLAN MURDOCH, CHASE CAREY, DAVID DEVOE, JOEL KLEIN, ARTHUR SISKIND, JOSE MARIA AZNAR, NATALIE BANCROFT, KENNETH COWLEY, VIET DINH AND JOHN THORNTON’S MOTION TO DISMISS SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP One Rodney Square P.O. Box 636 Wilmington, Delaware 19899-0636 Tel.: (302) 651-3000 Fax: (302) 651-3001 Attorneys for Defendants K. Rupert Murdoch, James Murdoch, Lachlan Murdoch, Chase Carey, David DeVoe, Joel Klein, Arthur Siskind, Jose Maria Aznar, Natalie Bancroft, Kenneth Cowley, Viet Dinh and John Thornton Dated: June 10, 2011 TABLE OF CONTENTS TABLE OF CASES AND AUTHORITIES...................................................................... iii PRELIMINARY STATEMENT .........................................................................................1 STATEMENT OF FACTS ..................................................................................................3 A. The Parties...................................................................................................3 B. The Shine Transaction. ................................................................................4 C. The Allegations In The Amended Complaint..............................................5 ARGUMENT.......................................................................................................................7 I. THE AMENDED COMPLAINT SHOULD BE DISMISSED BECAUSE PLAINTIFFS HAVE FAILED TO PLEAD PARTICULARIZED FACTS DEMONSTRATING DEMAND FUTILITY..........................................................7 A. Plaintiffs’ Conclusory Allegations Do Not Excuse Their Failure To Make A Demand Under Rales. ....................................................................8 (a) Plaintiffs have not demonstrated that the Audit Committee members are interested or lack independence. ..............................11 (i) Barnes ................................................................................11 (ii) Perkins................................................................................14 (iii) Knight ................................................................................16 (iv) Eddington...........................................................................18 (b) Plaintiffs have failed to allege that the remaining outside Directors are interested or lack independence. ..............................21 (i) Thornton.............................................................................22 (ii) Dinh....................................................................................23 (iii) Aznar..................................................................................24 (iv) Bancroft..............................................................................26 i (v) Cowley ...............................................................................27 B. Even If Aronson Applies, Plaintiffs Still Have Not Alleged Particularized Facts To Excuse Demand. ..................................................29 II. THE AMENDED COMPLAINT SHOULD BE DISMISSED BECAUSE PLAINTIFFS HAVE FAILED TO STATE A CLAIM FOR BREACH OF FIDUCIARY DUTY AGAINST RUPERT MURDOCH OR THE BOARD..................................................................................................................31 A. Standard Of Review...................................................................................31 B. The Amended Complaint Should Be Dismissed As To The Non- Voting Directors.........................................................................................32 C. The Business Judgment Rule Applies To The Shine Transaction.............33 1. Plaintiffs Have Failed To State A Duty Of Loyalty Claim............34 2. Plaintiffs Have Failed To State A Duty Of Care Claim.................35 (a) Plaintiffs’ allegations relating to the Shine Transaction do not state a care claim.................................35 (b) Plaintiffs’ unsubstantiated charges about Rupert Murdoch and News Corp. generally do not state a claim...................................................................................39 (c) Section 102(b)(7) bars Plaintiffs from recovering damages..............................................................................42 D. Entire Fairness Does Not Apply Because Plaintiffs Have Not Pled Any Facts Demonstrating That Rupert Murdoch Is On Both Sides Of The Shine Transaction Or Otherwise Exercises Control Over The Board...................................................................................................42 1. Rupert Murdoch Is Not On Both Sides Of The Transaction. ........42 2. Rupert Murdoch Does Not Dominate And Control The News Corp. Board Or Audit Committee........................................43 III. COUNT THREE OF THE AMENDED COMPLAINT FAILS TO STATE A CLAIM...............................................................................................................45 CONCLUSION..................................................................................................................49 ii TABLE OF CASES AND AUTHORITIES CASES PAGE(S) A.R. DeMarco Enters., Inc. v. Ocean Spray Cranberries, Inc., C.A. No. 19133-NC, 2002 WL 31820970 (Del. Ch. Nov. 26, revised Dec. 4, 2002)...............................................................30 Abraham v. Emerson Radio Corp., 901 A.2d 751 (Del. Ch. 2006)..............................................................................4, 5 Agostino v. Hicks, 845 A.2d 1110 (Del. Ch. 2004)..............................................................................46 Air Prods. & Chems., Inc. v. Airgas, Inc., 16 A.3d 48 (Del. Ch. 2011)....................................................................................44 Aronson v. Lewis, 473 A.2d 805 (Del. 1984) .............................................................................. passim Ash v. McCall, C.A. No. 17132, 2000 WL 1370341 (Del. Ch. Sept. 15, 2000).............................30 Atwell v. RHIS, Inc., 974 A.2d 148 (Del. 2009) ......................................................................................40 In re Baxter Int’l, Inc. S’holders Litig., 654 A.2d 1268 (Del. Ch. 1995)........................................................................21, 22 Beam ex rel. Martha Stewart Living Omnimedia, Inc. v. Stewart, 845 A.2d 1040 (Del. 2004) ..............................................................8, 15, 17, 21, 28 Benihana of Tokyo, Inc. v. Benihana, Inc., 891 A.2d 150 (Del. Ch. 2005), aff’d, 906 A.2d 114 (Del. 2006).....................27, 35 Blackmore Partners, L.P. v. Link Energy LLC, C.A. No. 454-N, 2005 WL 2709639 (Del. Ch. Oct. 14, 2005)..............................34 Brehm v. Eisner, 746 A.2d 244 (Del. 2000) ........................................................10, 14, 16, 25, 26, 27 In re Career Educ. Corp. Deriv. Litig., C.A. No. 1398-VCP, 2007 WL 2875203 (Del. Ch. Sept. 28, 2007) .................9, 29 iii Citron v. E.I. du Pont de Nemours & Co., 584 A.2d 490 (Del. Ch. 1990)....................................................................21, 35, 36 Coates v. Netro Corp., C.A. No. 19154, 2002 WL 31112340 (Del. Ch. Sept. 11, 2002)...........................38 In re Coca-Cola Enters., Inc. S’holders Litig., C.A. No. 1927-CC, 2007 WL 3122370 (Del. Ch. Oct. 17, 2007), aff’d mem. sub nom. Int’l Bhd. Teamsters v. Coca-Cola Co., 954 A.2d 910 (Del. 2008) ..........................................................................39, 40, 44 In re Cogent, Inc. S’holder Litig., 7 A.3d 487 (Del. Ch. 2010)....................................................................................37 In re CompuCom Sys., Inc. Stockholders Litig., C.A. No. 499-N, 2005 WL 2481325 (Del. Ch. Sept. 29, 2005) .................... passim Conrad v. Blank, 940 A.2d 28 (Del. Ch. 2007)....................................................................................9 Desimone v. Barrows, 924 A.2d 908 (Del. Ch. 2007)................................................................................10 Dillon v. Berg, 326 F. Supp. 1214 (D. Del. 1971), aff'd, 453 F.2d 876 (3d Cir. 1971)..................13 In re Dow Chem. Co. Deriv. Litig., C.A. No. 4349-CC, 2010 WL 66769 (Del. Ch. Jan. 11, 2010)...................... passim Fairthorne Maint. Corp. v. Ramunno, C.A. No. 2124-VCS, 2007 WL 2214318 (Del. Ch. July 20, 2007).........................3 In re Frederick’s of Hollywood, Inc. S’holder Litig., C.A. No. 15944, 2000 WL 130630 (Del. Ch. Jan. 31, 2000), aff’d sub nom. Malpiede v. Townson, 780 A.2d 1075 (Del. 2001)..................19, 35 In re Gen. Motors (Hughes) S’holder Litig., C.A. No. 20269, 2005 WL 1089021 (Del. Ch. May 4, 2005), aff’d, 897 A.2d 162 (Del. 2006)..................................................................... passim In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162 (Del. 2006) ........................................................................................3 iv Globis Partners, L.P. v. Plumtree Software, Inc., C.A. No. 1577-VCP, 2007 WL 4292024 (Del. Ch. Nov. 30, 2007)..........12, 25, 34 Grobow v. Perot, 539 A.2d 180 (Del. 1988), overruled on other grounds by Brehm v. Eisner, 746 A.2d 244 (Del. 2000) .................................................. passim Guttman v. Huang, 823 A.2d 492 (Del. Ch. 2003).....................................................................................
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