UnitedHealth Option Backdating Lawsuit Complaint

Bill Sjostrom —  26 April 2006

As I noted in this post, there are a variety of federal securities law claims that could be alleged with respect to option backdating. The case filed against UniteHealth, however, is a derivative suit which indicates it is based on state law claims. I was curious as to what exactly the claims are so I tracked down a copy of the complaint (see here). The complaint specifies the following five counts:

Count 1: Breach of fiduciary duty (care, loyalty, reasonable inquiry, oversight, good faith and supervision).
Count 2: Gross mismanagement.
Count 3: Waste of corporate assets.
Count 4: Unjust enrichment.
Count 5: Breach of contract.

I was surprised not to see a specific reference to a breach of the duty of disclosure/candor ala Malone v. Brincat. UnitedHealth, however, is a Minnesota corporation, and perhaps Minnesota does not recognize the duty. Also, counts 2 and 3 seem redundant to me in that they constitute breach of duty of care claims.

It will be interesting to see if the case goes anywhere in light of the business judgment rule and the exculpation provision which I assume UnitedHealth has in its articles of incorporation.  However, I could see the plaintiffs arguing that the backdating resulted in an intentional misstatement of material fact in the UnitedHealth proxy statement which constitutes a knowing violation of law thereby rebutting the business judgment rule and piercing the exculpation provision.