The 9th Circuit's finding in In Re: Rigel Pharmaceuticals Inc. Securities Litigation that a mere disagreement with a clinical trial's statistical methodology does not constitute a fraud claim is in line with other decisions courts have made about business judgment. For example, merger litigation in Delaware often deals with such issues, according to Morrison & Foerster Partner Sean Prosser.

“Delaware law is clear that a director's failure to take any particular steps in the sale of a company cannot demonstrate the required 'conscious disregard' of duties required to demonstrate bad faith,” Prosser says.

In Lyondell v. Ryan, the Delaware Supreme Court ruled as such, writing: “There is a vast difference between an inadequate or flawed effort to carry out fiduciary duties and a conscious disregard for those duties.”

Prosser explains that the decision in Rigel reasonably follows this type of established judicial thinking. “Courts should not be in the business of secondguessing business or scientific decisions,” he adds.