In the latest Delaware corporate decision concerning AmerisourceBergen’s role in the nation’s opioid epidemic, the Delaware Court of Chancery largely rejected arguments that laches barred fiduciary duty claims against AmerisourceBergen’s directors and officers for acting in bad faith by disregarding red flags in safety reporting and monitoring systems and knowingly operating the business in a manner to violate positive law. See Lebanon County Employees’ Retirement Fund v. Collis, 2022 WL 17687848 (Del. Ch. Dec. 15, 2022). Addressing an issue of first impression, Vice Chancellor J. Travis Laster applied a “separate accrual” analysis, which regards “a series of related decisions and conscious nondecisions as a sequence of wrongful acts, each of which gives rise to a separate limitations period.”

The Court of Chancery’s Decision

AmerisourceBergen is one of the nation’s largest opioid distributors, a middleman between manufacturers and pharmacies. It has faced many federal, state and local government investigations, enforcement actions and other lawsuits arising from its alleged business strategy of selling greater quantities of opioids to suspicious purchasers despite increasing legal risk. Previously the stockholder-plaintiffs sought books and records under 8 Del. C. Section 220 to investigate potential wrongdoing by the company’s directors and stockholders, and ultimately prevailed before the Delaware Supreme Court. See Lebanon County Employees’ Retirement Fund v. Collis. 2020 WL 132752 (Del. Ch. Jan. 13, 2020), aff’d, 243 A.3d 417 (Del. 2020).

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