Delaware corporations are not permitted to pursue profits by violating the law. Under Caremark and its progeny, directors' fiduciary duties include the good faith obligation to oversee and monitor the corporation's compliance with laws and regulations that are material to its business. See In re Caremark International Derivative Litigation, 698 A.2d 959 (Del. Ch. 1996). Recently, the Delaware Court of Chancery dismissed a derivative claim premised upon the notion that independent directors breached their fiduciary duties by failing to ensure compliance with a consent decree. See In re TransUnion Derivative Shareholder Litigation, 2024 WL 4355571 (Del. Ch. Oct. 1, 2024). In dismissing for failure to plead demand futility, Vice Chancellor Lori W. Will explained that that allegations of independent directors' knowledge of "imperfect compliance" did not provide a reasonable inference of bad faith "intentional lawbreaking."

Following a Consumer Financial Protection Bureau (CFPB) investigation into misleading advertising and marketing practices, TransUnion entered into a consent decree requiring remediation efforts. As reflected in board meeting minutes, presentations and other documents from TransUnion's pre-suit books and records production, the board of directors, the audit committee and a separate committee formed to ensure compliance with the consent decree all oversaw changes to the specific advertising and marketing practices. They did so with the benefit of advice from senior officers, in-house counsel and outside counsel who formerly served as a CFPB enforcement attorney. TransUnion began to make some changes but refrained from making others due to legal advice that they were not required until the CFPB approved of its compliance plan. The CFPB then expressed that TransUnion had not complied in certain respects. The board and management continued to receive regular updates, and the company communicated with the CFPB to attempt to avoid sanctions. Ultimately, the CFPB brought suit, and its complaint survived a motion to dismiss. TransUnion continued to contest any wrongdoing, and the litigation remained pending.