IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

JENNA HARPER, derivatively on behalf 

of T-Mobile US, INC.,

Plaintiff,

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C.A. No. 2022-0819-SG

G. MICHAEL SIEVERT,

TIMOTHEUS HÖTTGES,

MARCELO CLAURE, SRIKANT M.

DATAR, SRINIVASAN GOPALAN,

CHRISTIAN P. ILLEK, RAPHAEL

KÜBLER, LETITIA A. LONG,

THORSTEN LANGHEIM,

DOMINIQUE LEROY, TERESA A.

TAYLOR, KELVIN R.

WESTBROOK, BAVAN

HOLLOWAY, MICHAEL WILKENS,

OMAR TAZI, LAWRENCE H.

GUFFEY, and RONALD D. FISHER,

Defendants,

-andT-MOBILE US, INC.,

 Nominal Defendant. 

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MEMORANDUM OPINION

Date Submitted: February 1, 2024

Date Decided: May 31, 2024

Joseph L. Christensen, MCCOLLOM D’EMILIO SMITH UEBLER LLC, 

Wilmington, Delaware; OF COUNSEL: Brian J. Dunne and Edward M. Grauman, 
BATHAEE DUNNE LLP, Austin, Texas; Yavar Bathaee and Andrew C. Wolinsky,

BATHAEE DUNNE LLP, New York, New York, Attorneys for Plaintiff.

A. Thompson Bayliss, Peter C. Cirka, and E. Wade Houston, ABRAMS & BAYLISS 

LLP, Wilmington, Delaware; OF COUNSEL: Roger A. Cooper and Mark E. 

McDonald, CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New 

York, Attorneys for Defendants.

GLASSCOCK, Vice Chancellor
1

This matter is an action brought by a stockholder of a Delaware corporation, 

T-Mobile US, Inc. (“T-Mobile”). Plaintiff brings her claims derivatively, seeking 

to hold current and former directors liable for a business decision of T-Mobile:

aggregating its user data in a way that was vulnerable to hacking. In fact, T-Mobile 

was hacked, leading to corporate trauma.

Per the Complaint, T-Mobile is controlled by a German company, non-party 

Deutsche Telekom AG (“DTK”). That entity caused its European subsidiaries to 

aggregate their data so that DTK could mine it in a variety of ways profitable to 

DTK. This aggregation program was called “sharing is caring.”1 Plaintiff alleges 

that T-Mobile imposed a “sharing is caring” regime on its data in the United States, 

leading, as described above, to corporate trauma. This would seem to be a 

quintessential business decision on behalf of T-Mobile. Instead, the Complaint 

proposes that DTK wanted to share the T-Mobile data, and to that end coerced the 

T-Mobile board to enter a dangerous aggregation scheme, risk be damned, and 

without benefit to T-Mobile itself. Thus, the corporate trauma was the “result of a 

conscious design decision by T-Mobile at the direction of its captured board and 

management, one foisted upon it by its DTK overlords.”2

1 A moniker so saccharine as to arouse instant suspicion.

2 Am. Verified S’holder Deriv. Compl. ¶ 10, Dkt No. 32 (“Am. Compl.”). Per Plaintiff, and to 

paraphrase Kent Brockman: T-Mobile, for one, welcomed its DTK overlords.
2

Therefore, Plaintiff posits that the corporate trauma was the result of a risky 

decision by a majority of T-Mobile directors who lacked independence from DTK, 

and taken solely for purposes of DTK, for which decision non-party DTK and these 

Defendant Directors are liable; Plaintiff thereby stating both a claim of equitable tort 

and excusing demand.

The matter is before me on a motion to dismiss. The Complaint adequately 

alleges that the majority of T-Mobile directors lack independence from the corporate 

controller, DTK. Plaintiff also asserts that DTK “forced” T-Mobile to “implement 

its unilateral business interests,”3 benefiting DTK at the expense of foreseeable 

corporate trauma to T-Mobile. But these are mere assertions not supported by nonconclusory averments of fact. There is no specific allegation supporting that 1) DTK 

instructed T-Mobile to aggregate its data, let alone in a risky way, 2) T-Mobile’s 

board considered data consolidation, in disregard of its risks to the company, let 

alone at DTK’s direction, or 3) DTK made any use of T-Mobile’s consolidated data, 

let alone use that constitutes a non-ratable benefit seized by DTK.4

Because I find that demand is not excused under the facts alleged, the matter 

is dismissed under Court of Chancery Rule 23.1. My rationale follows.

3 Pl.'s Br. in Opp’n to Defs.' Mot. to Dismiss 37, Dkt. No. 35 (“Pl.’s Opp’n”). 

4 The comic Bob Newhart had a routine where he played a skeptical TV host interviewing a man 

who owned “the world’s smallest horse.” He asked the owner for proof: “How do you know he’s 

the world’s smallest horse?” Well, the owner replied, “Just look at him!” This bald, and bold, 

assertion in comedy led to laughter; here, to dismissal.
3

I. BACKGROUND5

A. Factual Background

1. The Parties

Plaintiff Jenna Harper is a stockholder of T-Mobile.6 Ms. Harper asserts that 

she has been a continuous stockholder at all times relevant to the claims contained 

in this action.7

Defendants G. Michael Sievert,

8 Timotheus Höttges, Marcelo Claure, Srikant 

M. Datar, Christian P. Illek, Srinivasan Gopalan, Raphael Kübler, Letitia A. Long, 

Thorsten Langheim, Dominique Leroy, Teresa A. Taylor, Kelvin R. Westbrook, and 

Bavan Holloway are directors of T-Mobile US, Inc. (collectively, the “Director 

Defendants”).9

Defendants Michael Wilkens, Lawrence H. Guffey, Ronald D. Fisher, and 

Omar Tazi are former directors of T-Mobile US, Inc. (collectively, the “Former 

Director Defendants” and, together with the Director Defendants, the “Individual 

Defendants”).10

5 This Memorandum Opinion includes only those facts necessary to my analysis. 

6 Am. Compl. ¶ 17. 

7

Id.

8 The Complaint also asserts claims against Sievert in his capacity as a T-Mobile officer regarding 

his position as the Company’s CEO since 2020 and former positions as its President and COO 

since 2018. Id. ¶ 39. 

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Id. ¶¶ 21–34. 

10 Id. ¶¶ 35–38. 
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Nominal Defendant T-Mobile US, Inc. (“T-Mobile” or the “Company”) is a 

Delaware corporation headquartered in Bellevue, Washington.11 T-Mobile is a 

wireless communications services company that provides wireless voice and data 

services to approximately 100 million customers nationwide.12

Non-party Deutsche Telekom AG (“DTK”) is T-Mobile’s largest 

stockholder.

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2. The “Sharing is Caring” Initiative is Allegedly Developed in 

DTK’s Europe Subsidiaries

The Amended Verified Shareholder Derivative Complaint (the “Complaint”) 

describes a time period in which a team within DTK’s Telekom Innovation 

Laboratories subgroup was directed to analyze ways that DTK could potentially 

benefit from user data through the adoption of Data Driven Business Models.14 After 

its analysis, the team discovered that there was a demand for data-driven solutions 

across each department at DTK.15 The Complaint alleges DTK encountered two 

hurdles to implementing these data-driven solutions. First, at the time, DTK’s data 

systems were segregated by each subsidiary in Europe (the “NatCos”), set up to not 

be commingled or jointly mined.16 Second, the proposal for the use of DTK’s 

11 Id. ¶ 18. 

12 Id. ¶ 19. 

13 Id. ¶ 1. 

14 Id. ¶ 62.

15 Id. ¶ 66. 

16 Id. ¶ 68. 
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customer data brought forth privacy concerns considering Germany’s uniquely 

restrictive privacy laws.17 Although these hurdles existed, the team continued to 

work to provide data-driven solutions to DTK’s executives and board, through a 

subsidiary wholly owned by DTK.18

According to the Complaint, to overcome the hurdle for privacy concerns, 

DTK considered accessing and processing data in the United States where data 

privacy regulations were more lax.19 The Complaint states that DTK presented these 

differences in “Processing of Personal Data in Principle Permitted” within the 

United States and Europe during a presentation to DTK employees at a 2016 

conference.20 The Complaint further alleges that at a 2018 DTK supervisory board 

meeting presentation, DTK discussed its reliance on the U.S. market for its revenue 

and its “[m]ore friendly regulatory environment” for revenue generation.21 As stated 

by the Complaint, DTK embraced conglomeration of data from its subsidiaries and 

began pursuing centralization of data sources across the entire Deutsche Telekom 

Group to overcome the hurdle of accessing data from across businesses.

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During 2017 and 2018, the Complaint alleges, DTK changed into a data and 

artificial intelligence-driven company, in which its data solutions team created tools, 

17 Id. ¶¶ 69, 70–71. 

18 Id. ¶ 71. 

19 Id. ¶ 73. 

20 Id. ¶ 75. 

21 Id. ¶ 74. 

22 Id. ¶¶ 79–82. 
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strategies, and frameworks to share information across DTK’s European subsidiaries 

and affiliates.23 According to the Complaint, each NatCo within DTK was expected 

to have a pooled and centralized repository of data available to it and then 

commingle and dispense information learned from that data for the benefit of DTK 

as a whole.24 The resulting data analyses would then be used to benefit DTK as a 

whole to improve its profitability and to increase its savings.25

In addition, as specified by the Complaint, each NatCo and subsidiary was 

directed to model its data model and align its machine learning and artificial 

intelligence activities with those of the parent company, which were developed by 

Dr. Susan Wegner, a former DTK employee, and her team.26 The Complaint refers 

to this model as the “sharing is caring” initiative.27 The Complaint alleges that, in 

addition to requiring each entity to have a pooled and centralized repository of data, 

DTK also set up “an internal DTK-wide data platform,” which automatically in a 

centralized way controlled permission, linked to local sources, and processed 

requests virtually.28

23 Id. ¶ 82. 

24 Id. ¶ 85. 

25 Id. ¶¶ 85, 89–90, 95, 98. 

26 Id.

27 Id. ¶ 87. 

28 Id. ¶¶ 92, 94. 
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3. The “Sharing Is Caring” Initiative is Allegedly Implemented at TMobile in the United States

In 2018, T-Mobile announced a merger with Sprint, which, according to the 

Complaint, created a bigger pool of customer data.29 That same year, the Complaint 

asserts that DTK incorporated the “sharing is caring” data strategy within TMobile.30 The Complaint alleges that T-Mobile hired a small team to facilitate the 

execution of the program and gave the team unrestricted access to all of T-Mobile’s 

data and systems with a consolidated credential and data repository system.31

According to the Complaint, afterwards, T-Mobile created a new datadriven/AI infrastructure to streamline accessibility to data across its organization, 

which, per Plaintiff, was “beat-for-beat” similar to the framework developed by 

DTK’s team in Europe.32 To facilitate centralized data access across the Company, 

the Complaint states T-Mobile created a system called qAPI, which allowed quick 

access to data throughout T-Mobile in a centralized fashion using a standardized 

API.33 Overall, the Complaint alleges that T-Mobile implemented a program that 

was modeled after DTK’s data program, which in turn ultimately benefited DTK.

29 Id. ¶¶ 110–14. 

30 Id. ¶ 114. 

31 Id. ¶ 119. 

32 Id. ¶¶ 118, 130. 

33 Id. ¶ 172. qAPI “is a micro-service that converts an API call to a database query” and API is 

application programming interface. Id. ¶ 185. 
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4. T-Mobile Suffers Repeated Cyberattacks After Allegedly 

Implementing the “Sharing is Caring” Initiative 

The Complaint alleges that the centralization of data and access credentials to 

facilitate single point access put T-Mobile at a heightened risk for cyberattacks.34

After the implementation of the “sharing is caring” data strategy within T-Mobile, 

the Company suffered numerous data breaches.35 In August 2021, T-Mobile 

experienced such a data breach, where a hacker discovered “an unprotected [TMobile] router exposed on the internet.”36 The hacker used that access point to gain 

access to “more than 100 servers.”37 In response, the Complaint alleges T-Mobile’s 

CEO, Michael Sievert, issued a statement attributing the breach to a specialized 

knowledge-based attack.38

To remedy the effects of cyberattacks, the Complaint asserts that T-Mobile 

agreed to a $500 million settlement for class action suits arising from the August 

2021 breach.39 According to the Complaint, after the breach, T-Mobile’s directors 

did not meaningfully address nor agree to end its use of centralized credential 

repositories.40 The Complaint alleges that these individuals are beholden to DTK 

34 Id. ¶¶ 142, 191. 

35 Id. ¶¶ 199–294. 

36 Id. ¶ 254. 

37 Id. ¶ 255. 

38 Id. ¶ 277. 

39 Id. ¶¶ 295–98. 

40 Id. ¶ 283. The fourteen members of T-Mobile’s Board at the time this lawsuit was filed in 

September 2022 were: Marcelo Claure, Srikant M. Datar, Srinivasan Gopalan, Bavan Holloway, 
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and sought to carry out DTK’s bidding to the detriment of the Company and its 

stockholders.41 The Complaint states the “sharing is caring” plan is currently still in 

place under the purview of T-Mobile’s directors and that T-Mobile’s users are still 

at risk.42

In essence, the Complaint alleges that DTK, the majority stockholder, desired 

consumer data to be aggregated, and in spite of the risks such implementation posed 

to the Company and its stockholders, the company (presumably, via the Individual 

Defendants) implemented the “sharing is caring” plan, from which DTK extracted a 

non-ratable benefit.

B. Procedural History

Plaintiff filed her initial complaint on September 16, 2022,43 and later filed 

the operative Complaint on April 5, 2023.44 The Complaint asserts breach of 

fiduciary duty claims against the Director Defendants, the Former Defendants, and 

against Sievert as an Executive Officer.45 Thereafter, on June 13, 2023, Defendants 

filed their Motion to Dismiss the Complaint46 and an Opening Brief in Support 

Timotheus Höttges, Christian P. Illek, Raphael Kübler, Thorsten Langheim, Dominique Leroy, 

Letitia A. Long, G. Michael Sievert, Teresa A. Taylor, Omar Tazi, and Kelvin R. Westbrook 

(collectively, the “Demand Board”). Id. ¶¶ 21, 36. 

41 Id. ¶ 313. 

42 Id. ¶¶ 313, 322. 

43 Verified Shareholder Derivative Compl., Dkt. No. 1. 

44 Am. Compl. 

45 Id. ¶¶ 373–400. 

46 Defs.' Mot. to Dismiss the Am. Verified S’holder Deriv. Compl., Dkt. No. 34. 
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of their Motion to Dismiss.47 Plaintiff filed her Opposition to Defendants’ Motion to 

Dismiss on August 15, 2023,48 and Defendants filed its Reply Brief on October 13, 

2023.49 I heard oral argument on Defendants’ Motion to Dismiss on February 1, 

2024, and took the matter under advisement that day.50

II. ANALYSIS

When seeking to bring a derivative action on behalf of a corporation, a 

stockholder must either (i) seek to have the corporation bring the action itself by 

making a demand on the board– and if the board refuses, show that such refusal was 

wrongful– or (ii) demonstrate with particularity that such an effort would be futile.51 

If not, the derivative action will be dismissed.52 Court of Chancery Rule 23.1 

provides the applicable standard of review to assess demand futility and requires that 

the plaintiff must “allege with particularity” within her complaint “the reasons for 

not . . . making the effort.”53

Derivative actions are obviously value-enhancing when strictly necessary; in 

those cases where the directors cannot monetize a litigation asset, value for the entity 

47 Defs.' Opening Br. in Supp. of Their Mot. to Dismiss the Am. Verified S’holder Deriv. Compl., 

Dkt. No. 34 (“Defs.’ OB”). 

48 See Pl.’s Opp’n. 

49 Def.s' Reply Br. in Supp. of Their Mot. to Dismiss the Am. Compl., Dkt. No. 37 (“Defs.’ RB”). 

50 Oral Arg. before Vice Chancellor Sam Glasscock dated 2.1.24, Dkt. No. 40. 

51 United Food & Com. Workers Union & Participating Food Indus. Empls. Tri-State Pension 

Fund v. Zuckerberg, 262 A.3d 1034, 1047 (Del. 2021).

52 Id. at 1058. 

53 Ct. Ch. R. 23.1(a). 
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is created by letting a stockholder fill the breach. They do, however, violate the core 

idea of our corporate law, that directors—not stockholders—control the company. 

Thus, Rule 23.1 strikes a balance between these two interests. A stockholder 

wishing the entity to vindicate a litigation asset must demand that the board do so, 

thus conceding that the board is able to apply its business judgement on behalf of 

the entity in consideration of the demand. Or, if the stockholder determines that such 

a demand would be futile, she must demonstrate that fact in her complaint, before 

she may attempt to vindicate the asset.54 The standard of review to assess demand 

futility is more stringent, thus, than that applicable to a motion to dismiss pursuant 

to Rule 12(b)(6). To justify circumvention of board’s default role, Rule 23.1 requires 

derivative complaints to allege demand futility with particularity, “which differ[s] 

substantially from notice pleading.”55

This Court assesses demand futility on a director-by-director basis by 

considering the following:

(i) whether the director received a material personal 

benefit from the alleged misconduct that is the subject of 

the litigation demand; 

54 See, e.g., United Food & Comm. Workers Union v. Zuckerberg, 250 A.3d 862, 875–77 (Del. Ch. 

2020), aff'd, 262 A.3d 1034.

55 Zuckerberg, 262 A.3d at 1048 (internal quotations omitted) (quoting Brehm v. Eisner, 746 A.2d 

244, 254 (Del. 2000)).
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(ii) whether the director faces a substantial likelihood of 

liability on any of the claims that would be the subject of 

the litigation demand; and 

(iii) whether the director lacks independence from 

someone who received a material personal benefit from 

the alleged misconduct that would be the subject of the 

litigation demand or who would face a substantial 

likelihood of liability on any of the claims that are the 

subject of the litigation demand.

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Demand is excused “[i]f the answer to any of the questions is ‘yes’ for at least half 

of the members of the demand board, then demand is excused as futile.57

Although a plaintiff must plead facts with particularity, she is still entitled to 

the benefit of all reasonable inferences and the Court must accept as true all 

particularized and well-pled allegations contained in the complaint.58 The 

reasonable inferences “must logically flow from particularized facts alleged by the 

plaintiff.”59

Plaintiff did not make a pre-suit demand before filing this action,

60 and, in the 

Complaint, asserts that demand is futile based on the allegations that the majority of 

the Demand Board lacks independence from the controller, DTK, which Plaintiff 

alleges received a material benefit or faces a substantial likelihood of liability.61

56 Id. at 1058. 

57 Id. at 1059.

58 Id. at 1048. 

59 Wood v. Baum, 953 A.2d 136, 140 (Del. 2008).

60 Am. Compl. ¶ 350.

61 Id. ¶¶ 351–72. Plaintiff has not argued in briefing or at oral argument that the Demand 

Defendants satisfy prong two of Zuckerberg.
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Plaintiff’s basis for liability against the Individual Defendants and DTK within the 

Complaint is a new species, at least insofar as I am aware, but appears to be a 

member of the genus Caremark.

62 That is, as I understand, the Complaint asserts 

that DTK wanted access to T-Mobile’s customer data, a result to which a majority 

of the directors acquiesced, disloyally ignoring the obvious risk to T-Mobile.

The Motion to Dismiss seeks dismissal under Rule 23.1 for failure to allege 

with particularity that demand is in fact futile due to (i) the Individual Defendants’ 

substantial likelihood of liability or (ii) that DTK faces a substantial likelihood of 

liability or received a material personal benefit from the challenged conduct.63

During briefing on the Motion to Dismiss, it became apparent that Plaintiff’s 

argument for demand futility resided under prong three of the Zuckerberg analysis–

whether the Demand Board lacks independence from DTK, which is alleged to have 

receive a material benefit from misconduct or faces substantial likelihood of 

liability.

64 At oral argument, Plaintiff conceded that its sole argument for demand 

futility is based on whether DTK derived a material benefit from the alleged 

62 The Complaint contends that these officers and directors failed to act because they were 

beholden to DTK and took actions to act against the interest of stockholders by: “(a) implementing 

a dangerous data centralization strategy, (b) failing to disclose that their loyalty is divided and that 

they are implementing a strategy set or expected by majority shareholder DTK, and (c) recklessly 

failing to put in place any safety or supervision measures to prevent further attacks.” Id. ¶ 313. 

63 See Defs.’ OB. 

64 Plaintiff’s Brief in Opposition to Defendants’ Motion to Dismiss only briefed issues concerning 

prong three of the Zuckerberg analysis. See Pl.’s Opp’n; see also Emerald P’rs v. Berlin, 726 A.2d 

1215, 1224 (Del. 1999) (holding issues not briefed are deemed waived).
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misconduct.65 Defendants concede for purposes of this Motion that the Demand 

Board lacks independence from DTK. Thus, this Memorandum Opinion will only 

consider whether the Defendant Directors acted disloyally, by causing DTK to 

receive a non-ratable benefit from the alleged misconduct, excusing demand as 

futile. 

A. Plaintiff Fails to Establish Allegations with Particularity that DTK 

Received a Material Benefit or Had an Interest in the Alleged Misconduct, so 

as to Excuse Demand 

Plaintiff asserts that a majority of the Demand Board is beholden to DTK, and 

therefore lacks independence to adequately assess a demand.66 Plaintiff also asserts 

that DTK received a material benefit through its misconduct of directing T-Mobile 

to centralize and aggregate its data to gain entry to T-Mobile’s customer data to 

advance DTK’s machine learning models, thus providing cost savings to DTK.67 

Plaintiff contends that DTK received these benefits while T-Mobile suffered $500 

million in liabilities arising from its accommodation of DTK’s misconduct.

68 In 

essence, Plaintiff contends that DTK is monetizing T-Mobile’s customer data to the 

detriment of the Company. Defendants do not dispute that a majority of the Demand 

Board lacks independence from DTK, the corporate controller.69 Rather, Defendants 

65 Tr. of 2-1-2024 Oral Arg. on Defs.’ Mot. to Dismiss 32:22–33:6, 68:16–69:21, Dkt. No. 41 

(“Oral Arg. Tr.”). 

66 Pl.’s Opp’n 24–28; Am. Compl. ¶¶ 354–72.

67 Pl.’s Opp’n 33–36; Am. Compl. ¶ 355; Oral Arg. Tr. 43:20–24. 

68 Pl.’s Opp’n 35; Am. Compl. ¶ 295. 

69 Defs.’ OB 28. 
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assert that Plaintiff has failed to allege with particularity that DTK derived a material 

benefit from the alleged misconduct.70

Assuming for purposes of this Motion that the Individual Defendants are in 

fact beholden to DTK, Plaintiff must allege facts with particularity that DTK held a 

material interest in the misconduct or received a material benefit in the 

wrongdoing.71 In Chester County Employees' Retirement Fund,

72 a plaintiff asserted 

direct and derivative claims against members of the company’s board of directors, 

other related individuals in their respective capacities, and the company’s corporate 

controller, for overpayment for assets.73 The plaintiff did not make demand on the 

company’s board before bringing its claims and asserted demand was futile.

74

In assessing demand futility, the Court held that the plaintiff alleged 

particularized facts to sufficiently call into question the director defendants’ 

disinterestedness in the transaction, as they held dual fiduciary positions within the 

company and the controller company.75 The Court, however, held that the plaintiff 

did not plead particularized facts to imply that the controller had a material interest 

in the challenged transactions “to show that the board had a disabling conflict that 

70 Id. at 28–34. 

71 See Zuckerberg, 262 A.3d 1034 at 1059; see also Chester Cty. Empls.' Ret. Fund v. New 

Residential Inv. Corp., 2016 WL 5865004, at *10 (Del. Ch. Oct. 7, 2016), aff'd, 186 A.3d 798 

(Del. 2018). 

72 2016 WL 5865004, at *1. 

73 Id. at *1.

74 Id. at *8.

75 Id. at *10. 
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excuse[d] demand . . . ”76 and held that “[a]llegations that some . . . effects of the 

challenged transactions benefited [the controller company] alone [were] not 

enough.77 The Court also held that the plaintiff failed to adequately allege an 

incentive on behalf of the director defendants’ for overpayment.78 Thus, the Court 

found the plaintiff did not allege sufficient facts to excuse demand.79

Here, I find that Plaintiff’s allegations concerning a material benefit are 

insufficient to satisfy a particularized pleading requirement under Rule 23.1. The 

Complaint is replete with conclusory allegations that DTK “directed” T-Mobile to 

implement the “sharing is caring” plan, however the Complaint fails to state with 

particularity (i) what actions DTK undertook to execute the implementation, or even 

how its wishes were transmitted to the directors, and (ii) how DTK benefited from 

such execution. 

The Complaint fails to identify a specific transaction the board undertook or 

a board action that adopted data centralization within T-Mobile. Notably, Plaintiff 

did not undertake a Section 220 demand to determine whether the board assessed 

implementing the “sharing is caring plan.”80 Rather, Plaintiff in her Complaint 

utilizes information from public sources to support her allegations and contends that 

76 Id. at *11.

77 Id.

78 Id. at *12. 

79 Id.

80 Oral Arg. Tr. 45:1–46:17. 
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T-Mobile, as a subsidiary, like the European NatCos, was subjected to DTK’s global 

policy. Particularly, Plaintiff relies on YouTube videos of two public presentations 

given by Dr. Wegner, a PowerPoint slide from a 2018 DTK supervisory board 

meeting, and the public announcement of T-Mobile’s merger with Sprint, to provide 

an inference that DTK mandated implementation of the “sharing is caring” program 

in T-Mobile in the United States.81

The public presentations utilized by Plaintiff do not suggest that DTK directed 

T-Mobile to centralize data nor mention that DTK participated in mining T-Mobile’s 

data.82 For instance, the 2016 presentation slide that Plaintiff asserts leads to an 

inference that DTK mandated data centralization in T-Mobile, but the slide in 

actuality merely highlights the differences between regulations in Europe and the 

United States.83 Further, the slide presented at the 2018 DTK supervisory board 

meeting simply states that the “US market [is] more attractive.”84 In addition, Dr. 

Wegner’s July 2018 presentation solely states that DTK could save money by 

centralizing data.85 In sum, these presentations in combination show DTK’s intent

to centralize data, but fail to provide a particularized allegation that DTK directed 

T-Mobile to centralize its data, allowing DTK to monetize T-Mobile’s data, and 

81 Pl.’s Opp’n 29–33. 

82 See Compl. ¶¶ 63, 73–74, 76, 83, 87, 90, 92, 94. 

83 See id. ¶ 73. 

84 See id. ¶ 74. 

85 See id. ¶¶ 83, 87, 89, 90. 
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directing the board to disregard the (allegedly) manifest risk. Significantly, neither 

of these slides make reference to T-Mobile.

In addition, the public announcement of the merger between Sprint and TMobile, by itself without supporting facts, cannot support an inference that DTK 

initiated the merger to further its end goals. At oral argument, Plaintiff asserted that 

since the CEO of DTK sits on the T-Mobile board, it is implausible to infer that DTK 

was not involved with the implementation of the “sharing is caring” plan within TMobile.86

 I do not find such inference sufficient to satisfy the particularized 

requirement under Rule 23.1 because Plaintiff has failed to state what specific 

actions this director or any other director took to implement the plan. Presumably, 

this is because no documents or evidence supporting Plaintiff’s theory exist, or 

because they are unavailable to Plaintiff due to the absence of a Section 220 demand.

Overall, Plaintiff has not demonstrated that DTK in fact accessed or received 

T-Mobile’s customer data, resulting in a material benefit to DTK that would subject 

the Demand Board to a disabling conflict. Nor has it identified a specific transaction 

or board decision to which such a conflict might apply. The record is lacking

allegations on how the alleged benefit, i.e., the savings and monetization, was 

accessed by DTK. There are no specific pleadings showing that DTK instructed the 

directors to implement data integration, or that the directors ever assessed the issue. 

86 Oral Arg. Tr. 34:12–19. 
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Through the record that Plaintiff has established, Plaintiff has merely shown that 

both DTK and T-Mobile centralized data to make it easier to access. From the facts,

I cannot infer that DTK directed T-Mobile to structure implement data centralization 

to T-Mobile’s detriment, nor that DTK received a material benefit from such 

implementation. Further, the Plaintiff has not addressed why DTK, as a majority 

owner, would undertake actions to put the Company at risk, such as promoting lax 

data security, thus jeopardizing its majority interest in the Company. Plaintiff has 

failed to adequately plead that DTK received a material benefit from the misconduct, 

thus I find her demand was not excused. 

III. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss the Amended 

Verified Shareholder Derivative Complaint is GRANTED. The parties should 

submit a form of order consistent with this Memorandum Opinion.