Case Name:   In re Intel Corporation Shareholder Derivative Litigation

Case No.:       1-14-CV-261831[1]

 

This is a consolidated shareholder derivative action by shareholders of nominal defendant Intel Corporation (“Intel”) arising out of alleged anticompetitive agreements that Intel entered into with technology companies to suppress the compensation of highly-skilled technical employees.  The plaintiffs are three current Intel shareholders, The Police Retirement System of St. Louis, Barbara Templeton, and Robert Achermann (“Plaintiffs”).[2]

 

The eighteen “Individual Defendants” named in the operative Amended Consolidated Shareholder Derivative Complaint (the “Amended Complaint”) are: Craig R. Barrett, Charlene Barshefsky, Carol Bartz, Andy D. Bryant, Susan L. Decker, John J. Donahoe, Patrick P. Gelsinger, D. James Guzy, Reed E. Hundt, Renée J. James, Brian M. Krzanich, Patty Murray, Paul S. Otellini, James D. Plummer, David S. Pottruck, Jane E. Shaw, Frank D. Yeary, and David B. Yoffie.[3]

 

In the Amended Complaint, Plaintiffs allege that an investigation by the Antitrust Division of the United States Department of Justice (“DOJ”) found that agreements between Intel, Google Inc. (“Google”), Apple Inc. (“Apple”), Pixar, Adobe Systems Incorporated (“Adobe”), and Intuit Inc. (“Intuit”) were anticompetitive because they eliminated a significant form of competition to attract high tech employees and substantially diminished competition to the detriment of the affected employees who were likely deprived of competitively important information and access to better job opportunities.[4]  In 2010, Intel and five other companies entered into a settlement with the DOJ broadly prohibiting future agreements relating to employee recruitment and solicitation,[5] but Intel did not pay any monetary penalty in connection with the settlement, and Intel’s officers and directors did not disclose any information about the DOJ investigation or settlement in Intel’s public filings for more than two years after the final judgment was entered in 2011.[6]

 

Plaintiffs allege that Intel has a history of allowing anticompetitive conduct at Intel, and by 2005, Intel had entered into an agreement with Google to stop recruiting each other’s employees.[7]  In the spring of 2006, Otellini allegedly informed Murray (Intel’s Senior Vice President of Human Resources) of the agreement.[8]  In April 2007, Otellini informed Bryant of the agreement.[9]  Throughout 2006 and 2007, Intel executives and employees allegedly reported Google’s “escapes” or breaches of the agreement to Otellini,[10] and Otellini sought to enforce the agreement by calling on Google CEO Eric Schmidt.[11]  Otellini allegedly confirmed Intel’s agreement with Google in a September 2007 email to Murray and Gabrielle Thompson, then-Director of Intel’s Global Staffing Operations.[12]  Otellini sought to enforce the agreement when Intel employees moved to Google.[13]

 

Plaintiffs further allege that Intel entered into similar anticompetitive agreements with Dell in February of 2005,[14] Apple in September 2008,[15] and Pixar in 2008.[16]  Plaintiffs allege that Intel kept these agreements from the public eye, and the Individual Defendants either knew about the agreements or turned a blind eye to their existence.[17]

 

On September 24, 2010, the DOJ filed its complaint against Adobe, Apple, Google, Intel, Intui, and Pixar alleging that their antipoaching agreements amounted to restraints of trade that were per se unlawful under the antitrust laws.[18]  Plaintiffs allege that despite the ongoing investigation, the Individual Defendants did not inform shareholders of the DOJ’s concerns until after the settlement was reached in September of 2010 when Intel disclosed the investigation for the first time in its Quarterly Report on Form 10-Q filed with the U.S. Securities and Exchange Commission on October 28, 2013.[19]  Plaintiffs allege that Intel’s Proxy Statements on Form DEF 14-A filed with the SEC on April 4, 2011, April 4, 2012, and April 3, 2013 made no mention of the DOJ investigation, settlement or final judgment, and Intel’s Annual Reports on Form 10-K filed with the SEC on February 18, 2011, February 23, 2012 and February 19, 2013 did not mention the DOJ’s investigation, settlement or final judgment in the “Legal Proceedings” section or elsewhere.[20]

 

Plaintiffs further allege that in May 2011, technology employees filed a series of class action lawsuits against Intel, and these actions were consolidated under the caption In re High-Tech Employee Antitrust Litigation, No. 5:11-cv-02509-LHK (N.D. Cal.) (the “Employee Action”).[21]  On April 24, 2014, the parties to the Employee Action informed the court that had reached an agreement to settle the Employee Action for $324.5 million, but at a June 19, 2014 hearing regarding the proposed settlement, U.S. District Judge Lucy H. Koh questioned whether the settlement amount was adequate, and multiple putative class members have come forward to object to the proposed settlement.[22]

 

 

The Police Retirement System of St. Louis filed the first Complaint in this consolidated action on March 7, 2014.  The Amended Complaint was filed on July 7, 2014 and asserts two causes of action for: (1) breach of fiduciary duty/aiding and abetting; and (2) indemnification and contribution.  Plaintiffs allege that as a result of the Individual Defendants’ actions, Intel entered into unlawful anticompetitive agreements that damaged Intel’s reputation, significantly reduced its ability to hire qualified employees, and caused it to lose innovation.[23]  The Individual Defendants allegedly impeded technological and economic growth at Intel by entering into illegal non-solicitation agreements with Intel’s competitors to artificially decrease employee salaries at Intel and at other companies.[24]

 

Intel and the Individual Defendants (collectively “Defendants”) demur to the Amended Complaint on the grounds that Plaintiffs fail to plead particularized facts establishing that demand on the Intel Board would have been futile, and the statute of limitations bars Plaintiffs’ claims.

 

Defendants also apply for an order admitting Steve M. Pyser, George Borden, and Greg Hillson to appear as counsel pro hac vice in this case.

 

Pro Hac Vice Applications

 

“A person who is not a member of the State Bar of California but who is a member in good standing of and eligible to practice before the bar of any United States court or the highest court in any state, territory or insular possession of the United States, and who has been retained to appear in a particular cause pending in a court of this state, may in the discretion of such court be permitted upon written application to appear as counsel pro hac vice, provided that an active member of the State Bar of California is associated as attorney of record.  No person is eligible to appear as counsel pro hac vice under this rule if the person is (1) A resident of the State of California; (2) Regularly employed in the State of California; or (3) Regularly engaged in substantial business, professional, or other activities in the State of California.”  (Cal. Rules of Court, rule 9.40(a).)

 

“A person desiring to appear as counsel pro hac vice in a superior court shall file with the court a verified application together with proof of service by mail in accordance with Code of Civil Procedure section 1013a of a copy of the application and of the notice of hearing of the application on all parties who have appeared in the cause and upon the State Bar of California at its San Francisco office.  The notice of hearing shall be given at the time prescribed in Code of Civil Procedure section 1005 unless the court has prescribed a shorter period.”  (Cal. Rules of Court, rule 9.40(c).)

 

The application must state:
(1) The applicant’s residence and office address;
(2) The courts to which the applicant has been admitted to practice and the dates of admission;
(3) That the applicant is a member in good standing in those courts;
(4) That the applicant is not currently suspended or disbarred in any court;
(5) The title of court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted; and
(6) The name, address, and telephone number of the active member of the State Bar of California who is attorney of record.

 

(Cal. Rules of Court, rule 9.40(d).)

 

Here, the applications for admission of Steve M. Pyser, George Borden, and Greg Hillson to appear as counsel pro hac vice are in compliance with the requirements set forth in California Rules of Court, rule 9.40.  Associated attorneys of record from the McManis Faulkner firm are active members of the State Bar of California in good standing.  The pro hac vice applications are GRANTED.

 

Requests for Judicial Notice

 

In support of the demurrer, Defendants request judicial notice of (1) Complaint, United States v. Adobe Systems, No. 1:10-cv-1629 (D.D.C. Sept. 24, 2010);[25] (2) Proposed Final Judgment, United States v. Adobe Systems, No. 1:10-cv-1629;[26] (3) Competitive Impact Statement, United States v. Adobe Systems, No. 1:10-cv-1629-RBW;[27] (4) Consol. Amend. Compl., In re High-Tech Employee Antitrust Litigation, No. 11-CV-026509-LHK (N.D. Cal. Sept. 13, 2011);[28] (5) Intel’s 2014 Proxy Statement;[29] (6) California’s Third Amended Complaint, California v. eBay, Inc., No. 5:12-CV-05874-EJD (N.D. Cal. May 5, 2014);[30] (7) Press Release, DOJ, Justice Department Requires Six High Tech Companies to Stop Entering into Anticompetitive Employee Solicitation Agreements (Sept. 24, 2010);[31] (8) Thomas Catan & Brent Kendall, U.S. Tech Probe Nears End, Wall St. J., Sept. 17, 2010;[32] (9) Steve Lohr, Six Technology Firms Agree to More Hiring Competition, NY Times, Sept. 24, 2010;[33] (10) Tom Krazit, DOJ settles no-recruit claims against tech companies, C-NET, Sept. 24, 2010;[34] and (11) Patrick May, Mike Swift and John Boudrea, Apple, Google, Intel, other tech firms admit secret agreements to not poach employees, San Jose Mercury News, Sept. 24, 2010.[35]

 

Exhibits 1-4 and 6 are court records from the DOJ’s actions against Adobe, the Employee Action, and the State of California’s action against eBay.  The Court may take judicial notice of these relevant court records.  (See Cal. Evid. Code, § 452, subd. (d).)

 

Regarding Intel’s Proxy Statement (RJN Exh. 5), judicial notice may be taken of the existence of the proxy statement and the fact that it was filed with the SEC.  (See StorMedia Inc. v. Sup. Ct. (1999) 20 Cal.4th 449, 456-457 [judicial notice of proxy statement and registration statement filed with SEC]; Evid. Code § 452, subd. (h) [facts not reasonably in dispute].)

 

The Court may take judicial notice of the existence of the DOJ’s press release (RJN Exh. 7) and the four media reports discussing the DOJ investigation (RJN Exhs. 8-11) as facts not reasonably subject to dispute.  (See Seelig v. Infinity Broad. Corp. (2002) 97 Cal.App.4th 798, 807, fn. 5.)  Plaintiffs oppose the request as to Exhibits 8-11 on the grounds that there is a dispute as to whether the DOJ investigation and settlement was “widely publicized.”  However, Plaintiffs do not dispute that these media articles were published on the dates shown.

 

Defendants also seek judicial notice of the First Amended Consolidated Complaint filed in In re INFOUSA, Inc. S’holders Litig., No. 1956-CC (Del. Ch.), a case cited by Plaintiffs in their opposition brief.  The Court may take judicial notice of this relevant court record.  (See Evid. Code, § 452, subd. (d).)

 

For these reasons, Defendants’ requests for judicial notice are GRANTED.

 

Demurrer

 

The Amended Complaint alleges that Intel is a Delaware corporation,[36] and the parties agree that Delaware law governs whether a derivative plaintiff sufficiently pleads demand futility.  In general, disputes regarding the internal affairs of a corporation are governed by the state of incorporation, and demand futility requirements involve the internal affairs of the corporation.  (See State Farm Mutual Automobile Ins. Co. v. Superior Court (2003) 114 Cal.App.4th 434, 442; Kamen v. Kemper Fin. Servs. (1991) 500 U.S. 90, 101.)

 

“The controlling legal standard for determining the sufficiency of a complaint to withstand dismissal based on a claim of demand futility under Court of Chancery Rule 23.1 is well-established.  The [Rales v. Blasband (Del. 1993) 634 A.2d 927] test applies where the subject of a derivative suit is not a business decision of the Board but rather a violation of the Board’s oversight duties.  The Rales test requires that the plaintiff allege particularized facts establishing a reason to doubt that the board of directors could have properly exercised its independent and disinterested business judgment in responding to a demand.”  (Wood v. Baum (Del. 2008) 953 A.2d 136, 140 [internal citations, footnotes, and quotation marks omitted].)  “[T]he mere threat of personal liability…is insufficient to challenge either the independence or disinterestedness of directors”; a reasonable doubt that a majority of directors is incapable of considering demand is only found where there is “a substantial likelihood” of personal liability.  (See Rales, supra, 634 A.2d at p. 936; Aronson v. Lewis (Del. 1984) 473 A.2d 805, 815.)

 

At the time this action was filed, Intel’s Board consisted of ten individuals: Bryant, Krzanich, Barshefsky, Decker, Donahoe, Hundt, Plummer, Pottruck, Yeary and Yoffie.[37]  Plaintiffs allege that demand on the Board is futile because the Individual Defendants have various relationships with the other companies that were involved in the anticompetitive scheme, including Google, Adobe, Apple, Pixar, and eBay, and with their officers and directors.[38]  Plaintiffs also allege that demand is futile because at least seven of the 10 Board members (Bryant, Krzanich, Yeary, Barshefsky, Decker, Donahoe, and Hundt) face a substantial likelihood of liability for breaching their fiduciary duties of loyalty and/or care.[39]  Plaintiffs further allege that demand is futile to at least three Board members (Krzanich, Barshefsky and Yeary) because they lack independence from interested Director Defendants.[40]  Finally, Plaintiffs allege that at least five of the Director Defendants (Decker, Donahoe, Yeary, Hundt and Bryant) have various business and financial relationships with other companies that were involved in the collusive scheme that preclude them from being able to impartially consider a demand.[41]

 

The Court finds that Plaintiffs allege sufficiently particularized facts to raise a reasonable doubt as to the disinterestedness and independence of only one director: Bryant.  Plaintiffs allege Bryant’s knowledge of and direct involvement in the anticompetitive employee recruitment, evidenced by his communications with Otellini on Intel’s “no poaching policy” with Google.[42]  Defendants argue Bryant’s April 16, 2007 email discussion with Otellini on the “no poaching policy” is insufficient to demonstrate that Bryant faces a substantial likelihood of personal liability because no-poaching policies can be perfectly legal in some types of joint development agreements.  However, the Amended Complaint clearly alleges an illegal no-poaching agreement between Intel and Google, and the allegations regarding Bryant are reasonably read in conjunction with this illegal agreement.

 

Plaintiffs fail to allege sufficiently particularized facts to raise a reasonable doubt as to the disinterestedness and independence of the other nine directors who were on the Intel Board at the time this action was filed.  There are no particularized fact allegations against Plummer and Krzanich.  Although Plaintiffs allege in a conclusory fashion that Krzanich “knew, or was reckless or grossly negligent in not knowing” about Intel’s anticompetitive recruitment, hiring and compensation practices due to his responsibility for hiring employees and determining their compensation, this allegation is based merely on Krzanich’s long employment at Intel and his positions as Vice President, Fab/Sort Manufacturing and Vice President, Assembly and Test.[43]  However, it is insufficient to charge directors with knowledge of alleged corporate activity solely upon the basis of their status as directors or their service in various capacities.  (See Rattner v. Bidzos (Del. Ch. Oct. 7, 2003) 2003 Del. Ch. LEXIS 103 at *35, fn. 53, 38-39.)

 

With regard to Hundt, Yoffie and Pottruck, Plaintiffs merely allege that they were on Intel’s Compensation Committee during the time the illegal policies were in place.[44]  Plaintiffs allege that as part of the Compensation Committee, Hundt, Yoffie and Pottruck reviewed, discussed and rewarded the efforts of Otellini and his team to control costs and increase margins by actively and effectively controlling salaries and compensation packages.[45]  Plaintiffs do not, however, allege particularized facts that Hundt, Yoffie and Pottruck knew of or were involved in the illegal policies, and their knowledge cannot be inferred simply from the fact of their service on the Compensation Committee.  (See Rattner, supra, 2003 Del. Ch. LEXIS 103 at *35, fn. 53, 38-39; Desimone v. Barrows (Del. Ch. 2007) 924 A.2d 908, 938 [“vague and conclusory statement” that stock option plan was “administered by the Compensation Committee…does not suggest in any way that the Compensation Committee was involved in or had knowledge of any backdating”].)  The Amended Complaint falls well short of alleging particularized facts showing a substantial likelihood of personal liability for Hundt, Yoffie and Pottruck.  Plaintiffs expressly disavow alleging a Caremark claim for failure to monitor,[46] and the Court finds that the Amended Complaint would not sufficiently allege that as members of the Compensation Committee, Hundt, Yoffie and Pottruck knew they were not discharging their fiduciary obligations or that they demonstrated a conscious disregard for their responsibilities such as by failing to act in the face of a known duty to act.  (See In re Citigroup Inc. S’holder Deriv. Litig. (Del. Ch. 2009) 964 A.2d 106, 123 [discussing test of In re Caremark Int’l Inc. Deriv. Litig. (Del. Ch. 1996) 698 A.2d 959].)

 

The allegations against Decker and Donahoe are based on their service at other companies – Decker at Pixar and Donahoe at eBay.  Plaintiffs allege that Pixar entered into an unlawful anticompetitive hiring agreement with LucasFilm in January 2006, during which time Decker was a Pixar director and a member of Pixar’s Compensation Committee, and Plaintiffs allege that this policy was “generally…known inside of Pixar[.]”[47]  Donahoe was CEO and director of eBay since 2008 and allegedly knew of unlawful anticompetitive agreements with Intuit.[48]  These are not sufficiently particularized allegations as to Decker’s and Donahoe’s knowledge of wrongful conduct at Intel.  Nor do these allegations demonstrate a substantial likelihood of personal liability based on Decker’s and Donahoe’s service at these other companies.

 

Plaintiffs also allege that Krzanich, Barshefsky and Yeary lack independence from interested Director Defendants and cannot impartially consider a demand.[49]  As discussed above, Plaintiffs allege sufficiently particularized facts of potential personal liability only as to Bryant.  Because Plaintiffs base Yeary’s lack of independence on his association with Hundt (e.g., Hundt is an investor and member of the board of directors of Level Financial, a start-up co-founded by Yeary),[50] and Plaintiffs have not sufficiently alleged particularized facts to establish Hundt’s lack of disinterestedness or independence, this association fails to establish Yeary’s inability to impartially consider a demand.

 

As for Krzanich, Plaintiffs allege he lacks independence from Bryant, Decker, Donahoe, Hundt, Yoffie, and Pottruck because he has received substantial compensation as determined by Compensation Committee members Donahoe, Pottruck and Yoffie, and approved by the entire Board.[51]  As discussed above, Plaintiffs have not sufficiently alleged particularized facts to establish lack of disinterestedness or independence by the members of the Compensation Committee or the remaining members of the Board other than Bryant.  Plaintiffs do not otherwise allege specific facts showing how Krzanich is so beholden to Bryant alone that Krzanich cannot impartially consider a demand.  (See Aronson v. Lewis (Del. 1984) 473 A.2d 805, 815 and Beam v. Stewart (Del. 2004) 845 A.2d 1040, 1052.].)

 

As for Barshefsky, Plaintiffs allege that Barshefsky is a senior partner at the law firm of Wilmer Cutler Pickering Hale and Dorr LLP (“WilmerHale”), which derives significant revenue from Intel, and any disapproval by Barshefsky about the actions of senior Intel executives or other Board members will risk jeopardizing WilmerHale’s relationship with Intel and the significant revenues that the firm derives from this relationship.[52]  Plaintiffs allege that Intel has paid WilmerHale between 1%-5% of the firm’s total annual revenue in each of the past three years and cite In re infoUSA, Inc. S’holders Litig. (Del. Ch. 2007) 953 A.2d 963 for the position that significant payments to a director’s law firm can demonstrate lack of independence.  Defendants argue that In re infoUSA is distinguishable because there, the plaintiffs alleged that the defendant’s compensation was determined in part by the fee income paid to his firm by infoUSA,[53] while here, Plaintiffs alleges that Barshefsky does not receive any personal compensation from WilmerHale that is related to Intel’s payments to the firm.  The point is well-taken.  The Amended Complaint admits that “Barshefsky may not receive personal financial compensation from WilmerHale that is directly related to Intel’s payments to the firm[.]”[54]  Thus, even if Intel were to terminate its relationship with WilmerHale, there are insufficient factual allegations to suggest that this termination would be personally material to Barshefsky.  (See White v. Panic (Del. Ch. 2000) 793 A.2d 356, 366-367 [“plaintiff has not alleged particular facts indicating that $33,440 allegedly paid to Bayh or his firm was so material as to taint Bayh’s judgment as a director.”].)  Plaintiffs go on to allege that Barshefsky “still enjoys substantial reputational and other personal benefits due to her affiliation with Intel.  For example, defendant Barshefsky recently became a Senior International Partner at WilmerHale in 2012.”[55]  However, Plaintiffs do not allege any specific facts of Barshefsky’s “reputational and other personal benefits” or that Barshefsky received the position of Senior International Partner as a result of her associations with Intel.

 

Plaintiffs further allege that Decker, Donahoe, Yeary and Bryant cannot consider a demand because they would risk exposing themselves or others to liability for conduct at companies other than Intel.  Plaintiffs allege that Decker could be exposed to liability for perpetrating the collusive scheme at Pixar,[56] Donahoe could be exposed to liability for his role in the scheme at eBay,[57] Yeary could expose Google director John Doerr – who is also a partner at venture capital firm Kleiner Perkins Caufield & Byers, which funds Yeary’s start-up Level Financial – to liability for perpetrating the scheme at Google,[58] and Bryant could expose former Adobe CEO Bruce Chizen, who also sits on the board of Voyage Capital with Bryant, to liability.[59]  However, Plaintiffs fail to allege particularized facts supporting a substantial risk of personal liability for any of these individuals, including how a demand on Intel’s Board would expose Doerr and Chizen to liability for their involvement in other companies, or how Yeary and Bryant are so beholden to Doerr and Chizen, respectively, that Yeary and Bryant could not impartially consider a demand.

 

Because Plaintiffs fail to allege particularized facts establishing a reason to doubt that a majority of the Intel Board of Directors is incapable of considering demand, the demurrer to the Amended Complaint is SUSTAINED with 30 days’ leave to amend.[60]

 

[1] Consolidated with Case Nos. 1-14-CV-262488 and 1-14-CV-265053.

[2] Amended Consol. S’holder Deriv. Compl. ¶¶ 12-14.

[3] Id. ¶¶ 16-33.

[4] Id. ¶5.

[5] Id. ¶6.

[6] Id. ¶ 6.

[7] Id. ¶ 59.

[8] Id. ¶60.

[9] Id. ¶ 61.

[10] Id. ¶62.

[11] Id. ¶ 62.

[12] Id. ¶ 66.

[13] Id. ¶ 67.

[14] Id. ¶ 69.

[15] Id. ¶ 72.

[16] Id. ¶ 75.

[17] Id. ¶ 83.

[18] Id. ¶ 84.

[19] Id. ¶ 85.

[20] Id. ¶ 85.

[21] Id. ¶ 7.

[22] Id. ¶ 7.

[23] Id. ¶92.

[24] Id. ¶ 93.

[25] Exh. 1 to Decl. F. Whitten Peters ISO Defs’ RJN.

[26] Peters RJN Exh. 2.

[27] Peters RJN Exh. 3.

[28] Peters RJN Exh. 4.

[29] Peters RJN Exh. 5.

[30] Peters RJN Exh. 6.

[31] Peters RJN Exh. 7.

[32] Peters RJN Exh. 8.

[33] Peters RJN Exh. 9.

[34] Peters RJN Exh. 10.

[35] Peters RJN Exh. 11.

[36] Amend. Compl. ¶ 15.

[37] Id. ¶ 99.

[38] Id. ¶ 101.

[39] Id. ¶ 103.

[40] Id. ¶ 104.

[41] Id. ¶ 105.

[42] Id. ¶¶ 17, 64, 104(a).

[43] Id. ¶ 104(b).

[44] Id.¶¶ 22, 23, 25, 43, 103.

[45] Id. ¶ 43, 103(e).

[46] See Pltfs’ Opp. to Defs’ Dem. at p. 7:12-18.

[47] Amend. Compl. ¶ 103(c).

[48] Id. ¶ 103(d).

[49] Id. ¶ 104.

[50] Id. ¶ 104(c).

[51] Id. ¶ 104(a).

[52] Id.¶¶ 26, 104(b).

[53] See Suppl. RJN Exh. 12, First Am. Consol. Compl., In re infoUSA Inc. S’holders Litig., at ¶ 143.

[54] Amend. Compl. ¶ 104(b).

[55] Amended Compl. ¶ 104(b).

[56] Id. ¶ 105(a).

[57] Id. ¶ 105(b).

[58] Id. ¶ 105(c).

[59] Id. ¶ 105(d).

[60] In light of Plaintiffs’ failure to sufficiently allege demand futility, the Court need not reach the statute of limitations issue.  However, the Court observes that Delaware law allows for equitable tolling of the three-year statute of limitations for derivative suits “while a plaintiff has reasonably relied upon the competence and good faith of a fiduciary” and that “[n]o evidence of actual concealment is necessary in such a case, but the statute is only tolled until the investor ‘knew or had reason to know of the facts constituting the wrong.’”  (In re Tyson Foods, Inc. Consol. S’holder Litig. (Del. Ch. 2007) 919 A.2d 563, 584-585.)  Here, Plaintiffs allege that the Individual Defendants did not disclose information regarding the DOJ’s investigation in any public filings until October 28, 2013 (Amend. Compl. ¶ 85), which could support the inference that Plaintiffs justifiably relied on the Individual Defendants as fiduciaries during this time.  Although the Amended Complaint admits that the DOJ announced the settlement of its action on its own website on September 24, 2010, (Amend. Compl. ¶ 84) and four judicially-noticed newspaper articles discussed the DOJ investigation around the same time, it is not clear from the briefs whether Delaware law would permit dismissal as a matter of law.  Under California law, public awareness of a problem through media coverage does not create constructive suspicion for statute of limitations purposes.  “‘The statute of limitations does not begin to run when some members of the public have a suspicion of wrongdoing, but only “[o]nce the plaintiff has a suspicion of wrongdoing.” [Citation.]’ [Citation.]”  (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 364.)  Defendants’ cited Delaware authorities do not clearly hold otherwise.  In re Dean Witter P’ship Litig., (Del. Ch. 1998) 1998 Del. Ch. LEXIS 133, at *30, fn. 49 based inquiry notice on the plaintiff’s “possession of facts sufficient to make him suspicious or that ought to make him suspicious[.]”  Here, the Amended Complaint does not admit or suggest Plaintiffs’ possession of facts in September 2010 that should have made them suspicious about Intel’s involvement in the anticompetitive agreement scheme.  While federal courts in securities fraud cases “consider the extent of media coverage in deciding when inquiry notice for securities fraud claims was triggered”, “this determination of whether storm warnings existed ‘depends on the quantity of information available to the plaintiffs’…”  (Staehr v. Hartford Fin. Servs. Group (2d Cir. 2008) 547 F.3d 406, 427.)  Here, Defendants’ inquiry notice argument is based on the DOJ’s press release and four newspaper articles published on only two dates: September 17, 2010 (RJN Exh. 8) and September 24, 2010 (RJN Exhs. 9-11).  Arguably, it remains a question of fact whether this quantity of information was sufficient for inquiry notice purposes.