IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

LEBANON COUNTY EMPLOYEES’

RETIREMENT FUND and TEAMSTERS 

LOCAL 443 HEALTH SERVICES & 

INSURANCE PLAN,

Plaintiffs,

v.

STEVEN H. COLLIS, RICHARD W. 

GOCHNAUER, LON R. GREENBERG, JANE 

E. HENNEY, KATHLEEN W. HYLE, 

MICHAEL J. LONG, HENRY W. MCGEE, 

ORNELLA BARRA, D. MARK DURCAN, 

and CHRIS ZIMMERMAN,

Defendants,

 and

AMERISOURCEBERGEN CORPORATION,

 Nominal Defendant.

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C.A. No. 2021-1118-JTL

MEMORANDUM OPINION DENYING

RULE 60(b) MOTION

Date Submitted: February 6, 2023

Date Decided: March 21, 2023

Samuel L. Closic, Eric J. Juray, Robert B. Lackey, PRICKETT, JONES & ELLIOTT, P.A., 

Wilmington, Delaware; Gregory V. Varallo, BERNSTEIN LITOWITZ BERGER & 

GROSSMANN LLP, Wilmington, Delaware; Lee D. Rudy, Eric L. Zagar, KESSLER 

TOPAZ MELTZER & CHECK, LLP, Radnor, Pennsylvania; Jeroen van Kwawegen, Eric 

J. Riedel, BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP, New York, New 

York; Frank R. Schirripa, Daniel B. Rehns, Kurt Hunciker, Hillary Nappi, HACH ROSE 

SCHIRRIPA & CHEVERIE LLP, New York, New York; Gregory Mark Nespole, Daniel 
Tepper, LEVI & KORSINSKY, LLP, New York, New York; Brian J. Robbins, Craig W. 

Smith, ROBBINS LLP, San Diego, California; Counsel for Plaintiffs.

Stephen C. Norman, Jennifer C. Wasson, Tyler J. Leavengood, POTTER ANDERSON & 

CORROON LLP, Wilmington, Delaware; Michael S. Doluisio, Carla Graff, DECHERT 

LLP, Philadelphia, Pennsylvania; Matthew L. Larrabee, Hayoung Park, DECHERT LLP, 

New York, New York; Michael D. Blanchard, Amelia Pennington, MORGAN, LEWIS & 

BOCKIUS LLP, Boston, Massachusetts; Counsel for Defendants.

LASTER, V.C.
The plaintiffs are stockholders of AmerisourceBergen Corporation (the 

“Company”). They brought this action derivatively on its behalf to recover for the harm it 

suffered as a result of its involvement in the opioid pandemic. The plaintiffs contended that

the defendants breached the fiduciary duties they owed as officers and directors by 

knowingly causing the Company to suffer harm. 

First, the plaintiffs contended that the officers and directors failed to protect the 

Company despite witnessing a steady stream of red flags indicating that the Company was 

violating its anti-diversion obligations under the Controlled Substances Act (the “RedFlags Theory” or “Red-Flags Claim”). Those red flags took the form of congressional 

investigations, subpoenas from prosecutors, lawsuits by state attorneys general, and an 

eventual torrent of civil lawsuits. Meanwhile, as the opioid epidemic raged, the Company 

reported suspicious orders at incomprehensibly low rates. The plaintiffs contended that 

based on those red flags, the defendants knew that the Company was violating its antidiversion obligations. Yet the Company’s officers and directors consciously ignored the 

red flags and did not take any meaningful action to implement stronger systems of 

oversight until 2021 as part of a settlement in which they personally received releases from 

liability (the “2021 Settlement”).

Second, the plaintiffs asserted that the officers and directors took a series of acts 

which, when viewed together, supported a pleading-stage inference that they knowingly 

pursued a business plan that prioritized profits over compliance. In In re Massey Energy 

Co., this court made clear that “a fiduciary of a Delaware corporation cannot be loyal to a 

Delaware corporation by knowingly causing it to seek profit by violating the law.” 2011 
2

WL 2176479, at *20 (Del. Ch. May 31, 2011). The plaintiffs asserted that between 2010 

and 2015, the officers and directors aggressively expanded the Company’s distribution 

networks while consciously ignoring the effect the expansion would have on the 

Company’s anti-diversion efforts, resulting in the officers and directors knowingly causing 

the Company to violate the law (the “Massey Theory” or “Massey Claim”). As the decisive 

evidence of this illegal business strategy, the plaintiffs pointed to the 2015 implementation 

of a revised order monitoring program, which the officers and directors knew was designed 

to tank the rate of suspicious order reporting and evade the federal anti-diversion 

framework. The Company’s officers and directors then maintained their illegal business 

strategy until they could obtain releases for themselves as part of the 2021 Settlement. 

The defendants moved to dismiss the complaint for failing to support a reasonable

inference of demand futility. The plaintiffs argued that the demand was futile because the

complaint alleged facts supporting a reasonable inference that at least half of the directors 

in office when the lawsuit was filed faced a substantial threat of liability. 

Standing alone, the avalanche of investigations and lawsuits without any apparent 

response until the 2021 Settlement would have supported a well-pled Red-Flags Claim. 

Likewise, the series of decisions that the officers and directors made would have supported

a well-pled Massey Claim. But there was a final factor that fatally undermined the 

reasonableness of the inferences that the plaintiffs sought. In 2022, the United States 

District Court for the Southern District of West Virginia (the “West Virginia Court”) issued 

a post-trial decision in a case brought against the Company and other major opioid 

distributors by the City of Huntington and the Cabell County Commission. City of 
3

Huntington v. AmerisourceBergen Drug Corp. (West Virginia Decision), — F. Supp. 3d 

—, 2022 WL 2399876 (S.D.W. Va. July 4, 2022). The plaintiffs in that action sought to 

prove that the defendants had failed to comply with their anti-diversion obligations, thereby 

fueling the opioid epidemic in those localities. After a two-month trial, during which 

seventy witnesses testified either live or by deposition, the West Virginia Court rejected 

the plaintiffs’ theory and found that the defendants had not violated their anti-diversion 

obligations. The West Virginia Court expressly found that the Company had complied with 

its anti-diversion obligations.

Both the Red-Flags Theory and the Massey Theory depended on the court being 

able to draw reasonable inferences that the officers and directors knowingly failed to cause 

the Company to comply with its anti-diversion obligations and therefore faced a substantial 

risk of liability. In light of the West Virginia Court’s post-trial findings, it was not possible 

to draw those inferences. The court therefore held that demand was not futile and dismissed 

the plaintiffs’ complaint. Lebanon Cnty. Emps.’ Ret. Fund v. Collis, 2022 WL 17841215, 

at *15 (Del. Ch. Dec. 22, 2022) (the “Opinion”).

One week later, on December 29, 2022, the United States Department of Justice (the 

“DOJ”) filed a complaint against the Company in the United States District Court for the 

Eastern District of Pennsylvania. Dkt. 44 Ex. A (the “DOJ Complaint”). The DOJ 

Complaint alleges that the Company violated the Controlled Substances Act “by refusing 

or negligently failing to report suspicious orders to [the] DEA on numerous occasions 

during the relevant period.” Id. ¶ 272. The DOJ Complaint states:
4

Defendants’ violations fall into four broad and non-exclusive 

categories: (1) failures to report orders that were suspicious 

because of indications that the customers placing the orders 

likely were facilitating diversion of controlled substances; 

(2) failures to report suspicious orders that breached 

Defendants’ thresholds and were flagged, and which 

Defendants’ reviewers rejected because they recognized that 

they could not dispel the suspicions raised by the orders; 

(3) failures to report suspicious orders that breached 

Defendants’ thresholds and were flagged for review, but which 

Defendants cleared to be shipped and not reported without 

dispelling all suspicions; and (4) failures to report other 

suspicious orders that Defendants’ faulty algorithms did not 

flag. Certain violations fall into more than one of these 

categories.

Id. The DOJ Complaint contended that the violations were “at least negligent” in light of 

the “pervasive problems” with the Company’s compliance program. Id. ¶ 273.

The plaintiffs assert that the DOJ Complaint constitutes new evidence. On January 

9, 2023, they filed a Motion for Relief from Judgment and Order Pursuant to Rule 60(b) 

(the “Motion”). This decision denies the Motion. 

I. LEGAL ANALYSIS

Court of Chancery Rule 60(b) states in relevant part:

On motion and upon such terms as are just, the Court may relieve a party or 

a party’s legal representative from a final judgment, order, or proceeding for 

the following reasons: (1) Mistake, inadvertence, surprise, or excusable 

neglect; (2) newly discovered evidence; (3) fraud (whether heretofore 

denominated intrinsic or extrinsic), misrepresentation or other misconduct of 

an adverse party; (4) the judgment is void; (5) the judgment has been 

satisfied, released, or discharged, or a prior judgment upon which it is based 

has been reversed or otherwise vacated, or it is no longer equitable that the 

judgment should have prospective application; or (6) any other reason 

justifying relief from the operation of the judgment. 
5

A court applies those criteria with two important values in mind: “the integrity of the 

judicial process and the finality of judgments.” Credit Lyonnais Bank Nederland, N.V. v. 

Pathe Commc’ns Corp., 1996 WL 757274, at *1 (Del. Ch. Dec. 20, 1996) (Allen, C.). “A 

Rule 60(b) motion is not an opportunity for a do-over or an appeal.” Carlyle Inv. Mgmt. 

L.L.C. v. Nat’l Indus. Gp. (Hldg.), 2012 WL 4847089, at *5 (Del. Ch. Oct. 11, 2012), aff’d, 

67 A.3d 373 (Del. 2013). A Rule 60(b) motion is also not “a substitute for a [Rule 59] 

motion for a new trial.” 1 Donald J. Wolfe & Michael A. Pittenger, Corporate and 

Commercial Practice in the Delaware Court of Chancery § 4.09[d][1] at 4-47 (2d ed. 

2021).

“The determination whether to grant a motion for relief pursuant to Rule 60(b) rests 

in the sound discretion of the trial court.” Joseph v. Shell Oil Co., 1985 WL 21146, at *1 

(Del. Ch. June 6, 1985). “Because of the significant interest in preserving the finality of 

judgments, Rule 60(b) motions are not to be taken lightly or easily granted.” Epstein v. 

Matsushita Elec. Indus. Co., Ltd. (In re MCA, Inc. S’holder Litig.), 785 A.2d 625, 635 (Del. 

2001). Although not specifically identified in the rule, “[e]quitable principles may be taken 

into account by a court in the exercise of its discretion under Rule 60(b).” 11 Charles Alan 

Wright & Arthur R. Miller, Federal Practice and Procedure § 2857 (3d ed.) Westlaw 

(database updated Apr. 2022) [hereinafter Wright & Miller]. The language of the rule 

incorporates equitable principles of fairness by calling for the court to grant relief “upon 

such terms as are just.” Ct. Ch. R. 60(b). 

The plaintiffs invoke Rule 60(b)(2) and Rule 60(b)(6). Neither provides grounds for 

relief. 
6

A. Rule 60(b)(2) 

“Rule 60(b)(2) affords a disappointed litigant an opportunity to obtain judicial 

reconsideration of the merits of his claim on account of ‘newly discovered evidence.’”

Norberg v. Sec. Storage Co., 2002 WL 31821025, at *2 (Del. Ch. Dec. 9, 2002). Because 

of the interest in the finality of judgments, the newly discovered evidence must indicate 

“that an injustice is clearly threatened.” Credit Lyonnais, 1996 WL 757274, at *4. Plaintiffs 

argue that the DOJ Complaint constitutes “new, material evidence supporting the inference 

that [the Company’s] directors face a substantial likelihood of liability under either a RedFlag[s] Claim or Massey Theory.” See Dkt. 44 at ¶ 20. That is not so. 

1. Clarifying The Standard For A Motion Under Rule 60(b)(2)

Two lines of Delaware authority have interpreted Rule 60(b)(2). The first addresses 

a scenario in which a final judgment has been entered, then a party moves for relief based 

on evidence discovered after the entry of the final judgment.1In that setting, the movant 

must show:

(1) the newly discovered evidence has come to his knowledge since the 

judgment; (2) that it could not, in the exercise of reasonable diligence, have 

been discovered for use before the judgment; (3) that it is so material and 

relevant that it will probably change the result; (4) that it is not merely 

cumulative or impeaching in character; and (5) that it is reasonably possible 

that the evidence will be produced at the trial.

1 See, e.g., Wimbledon Fund LP v. Special Situations LP, 2011 WL 378827, at *5 

(Del. Ch. Feb. 4, 2011); 99-Year Lease Tenants v. Key Box “5” Operatives, Inc., 2005 WL 

1924193, at *3 (Del. Ch. Aug. 10, 2005); Norberg, 2002 WL 31821025, at *2; In re U.S. 

Robotics Corp. S’holder Litig., 1999 WL 160154, at *10 (Del. Ch. Mar. 15, 1999). 
7

Levine v. Smith, 591 A.2d 194, 202 (Del. 1991) (cleaned up).

2

The second line of authority addresses a scenario in which a party seeks leave to 

supplement the record with newly discovered evidence after the close of the evidence at 

trial but before a judgment has been entered.3 Rule 60(b)(2) does not strictly apply in that 

2

In Brehm v. Eisner, 746 A.2d 244, 253–54 (Del. 2000), the Delaware Supreme 

Court overruled seven precedents, including Levine, to the extent that they reviewed a Rule 

23.1 decision by the Court of Chancery under an abuse of discretion standard or otherwise 

suggested deferential appellate review. Id. at 253 n.13 (overruling in part on this issue 

Scattered Corp. v. Chi. Stock Exch., 701 A.2d 70, 72–73 (Del. 1997); Grimes v. Donald, 

673 A.2d 1207, 1217 n.15 (Del. 1996); Heineman v. Datapoint Corp., 611 A.2d 950, 952 

(Del. 1992); Levine, 591 A.2d at 207; Grobow v. Perot, 539 A.2d 180, 186 (Del. 1988); 

Pogostin v. Rice, 480 A.2d 619, 624–25 (Del. 1984); and Aronson v. Lewis, 473 A.2d 805, 

811 (Del. 1984)). The Brehm Court held that going forward, appellate review of a Rule 

23.1 determination would be de novo and plenary. Brehm, 746 A.2d at 254. The seven 

partially overruled precedents otherwise remain good law. This decision does not rely on 

any of them for the standard of appellate review. Having described Brehm’s relationship 

to these cases, this decision omits their cumbersome subsequent history. 

More recently, the Delaware Supreme Court overruled Aronson and Rales v. 

Blasband, 634 A.2d 927 (Del. 1993), to the extent that they set out alternative tests for 

demand futility. United Food & Com. Workers Union & Participating Food Indus. Empls. 

Tri-State Pension Fund v. Zuckerberg, 262 A.3d 1034, 1059 (Del. 2021). The high court 

adopted a single, unified test for demand futility. Although the Zuckerberg test displaced 

the prior tests, the Court stated that cases properly applying Aronson and Rales remain 

good law. Id. This decision therefore does not identify any precedents as having been 

overruled by Zuckerberg.

3 E.g., Vianix Del. LLC v. Nuance Commc’ns, Inc., 2011 WL 487588, at *3 (Del. 

Ch. Feb. 9, 2011). This type of motion is often called a “motion to reopen the record.” See 

Fitzgerald v. Cantor, 2000 WL 128851, at *1 (Del. Ch. Jan. 10, 2000) (citing El Paso Nat. 

Gas Co. v. Amoco Prod. Co., 1992 WL 43925, at *10 (Del. Ch. Mar. 4, 1992)).
8

setting, because no judgment has been entered.

4 By its terms, the more appropriate 

procedural vehicle is Rule 59(a), which provides that 

[a] new trial may be granted to all or any of the parties, and on all or part of 

the issues for any of the reasons for which rehearings have heretofore been 

granted in suits in equity. The Court may open the judgment if one has been 

entered, take additional testimony, amend or make new factual findings and 

legal conclusions, and direct the entry of a new judgment. A new trial will 

not be granted after the filing of an appeal.

Ct. Ch. R. 59(a). That rule expressly contemplates that the court may “take additional 

testimony,” “amend or make new factual findings and legal conclusions,” and grant a new 

4

“Judgment” in this context is a technical term referring to an order giving rise to a 

right of appeal. Ct. Ch. R. 54(a) (“‘Judgment’ as used in these Rules includes any order 

from which an appeal lies.”). That generally means the order constituting the trial court’s 

last act in the case. See, e.g., Tyson Foods, Inc. v. Aetos Corp., 809 A.2d 575, 579 (Del. 

2002) (“In short, a final judgment is one that determines all the claims as to all the parties.”

(internal citation omitted)); Emerald P’rs v. Berlin, 811 A.2d 788, 790 (Del. 2001) (“An 

aggrieved party can appeal to this Court, as a matter of right, only after a final judgment is 

entered by the trial court. ‘A “final decision” is generally defined as one that ends the 

litigation on the merits and leaves nothing for the trial court to do but execute the 

judgment.’”); Bush v. Reyes, 2001 WL 760827, at *1 (Del. May 25, 2001) (TABLE) (“An 

order is deemed final and appealable if the trial court has clearly declared its intention that 

the order be the court’s ‘final act’ in disposing of all justiciable matters within its 

jurisdiction.”). The term does not refer to an interlocutory ruling nor to a post-trial decision 

that has not been implemented through a judgment. See 10 Wright & Miller, supra, § 2651

(“The terms ‘decision’ and ‘judgment’ are not synonymous under the federal rules. The 

decision consists of the court’s findings of fact and conclusions of law; the rendition of 

judgment is the pronouncement of that decision and the act that gives it legal effect.”). 

Compare, e.g., Ct. Ch. R. 59(f) (contemplating a motion for reargument after the issuance 

of an “opinion” or “decision”), with Ct. Ch. R. 59(e) (contemplating a motion to alter or 

amend “the judgment”), and Ct. Ch. R. 60(a) (contemplating relief from a “judgment” or 

“order”). Under the Federal Rules of Civil Procedure, Rule 58 governs the entry of 

judgments and provides detailed instructions regarding when and how judgment is entered. 

Court of Chancery Rule 58 is not comparable. It states only that “[t]he order of the Court 

shall constitute the judgment of the Court.” Ct. Ch. R. 58. That laconic framing 

understandably breeds confusion.
9

trial “on all or part of the issues.” Id. Those options encompass all that is necessary to 

supplement the record.

The time to move for a new trial under Rule 59(a) logically begins when trial begins 

and continues until “10 days after the entry of judgment,” when the period for seeking relief 

under Rule 59(a) expires. Ct. Ch. R. 59(b). Rule 59(a) is thus the proper vehicle for 

supplementing or reopening the record before judgment is entered (or within the first ten 

days after its entry). Yet our decisions have not relied on Rule 59(a), seemingly interpreting 

that rule as being available only for a ten-day window beginning after the entry of 

judgment, rather than for the longer period that begins with the end of trial and ends ten 

days after the entry of judgment. See Vianix, 2011 WL 487588, at *2 (asserting that Rule 

59(a) was not “directly on point” where “the motion [to supplement the record] does not 

seek a new trial and [the court had] not yet entered a final judgment”). To read the rule as 

only creating a momentary aperture that opens upon entry of judgment and closes ten days 

later is erroneous. See Wright & Miller, supra, § 2812 (“Rule 59(b) sets a maximum time 

for filing new-trial motions; there is nothing to prevent making a motion for a new trial 

before judgment has been entered, however.”). The period in which to move for a new trial 

starts when trial starts. The period ends ten days after the entry of judgment. During that 

period, a party can rely on Rule 59(a) to seek a new trial. During the time before judgment 

is entered, a party can invoke Rule 59(a) as a procedural vehicle to supplement the record. 

Believing Rule 59(a) to be unavailable until after judgment is entered, this court

sought to fill the resulting gap by invoking its inherent authority and looking to Rule 

60(b)(2) as “both analogous and instructive.” Vianix, 2011 WL 487588, at *3. And when 
10

doing so, this court went beyond the Levine factors by introducing two additional 

considerations: (i) whether undue prejudice will inure to the nonmoving party and

(ii) considerations of judicial economy. Carlson v. Hallinan, 925 A.2d 506, 520 (Del. Ch. 

2006), opinion clarified, 2006 WL 1510759 (Del. Ch. May 22, 2006). As assembled in 

Carlson, the full list reads:

Among the factors the Delaware courts have considered in deciding [a 

motion to reopen the record] are (1) whether the evidence has come to the 

moving party’s knowledge since the trial, (2) whether the exercise of 

reasonable diligence would have caused the moving party to discover the 

evidence for use at trial, (3) whether the evidence is so material and relevant 

that it will likely change the outcome, (4) whether the evidence is material 

and not merely cumulative, (5) whether the moving party has made a timely 

motion, (6) whether undue prejudice will inure to the nonmoving party and 

(7) considerations of judicial economy.

Id. at 520. Oddly, the Carlson decision did not draw the first five factors from Levine, but 

rather concatenated them from other Court of Chancery decisions. See id. 

When appending the last two factors, the Carlson court drew on Fitzgerald v. 

Cantor, 2000 WL 128851 (Del. Ch. Jan. 10, 2000), and Kahn v. Tremont Corp., 1997 WL 

689488, at *5 (Del. Ch. Oct. 28, 1997). In Fitzgerald, the defendants sought to reopen the 

record so the court could take judicial notice of a filing with the United States Securities 

and Exchange Commission. The court denied the motion “[a]fter balancing the relative 

impact of this proposed new evidence against considerations of further delay in disposition 

of this case, the unfair prejudice caused to plaintiff by its concomitant need for further 

development of the record in order to meet defendants’ interpretation of the evidence and 

the necessary additional commitment of judicial resources.” 2000 WL 128851, at *1. That 

was the only time that the concepts of “unfair prejudice” and “judicial resources” appeared
11

in the decision, and the court did not provide reasoning or authority for adding them as 

considerations. The motion already merited denial, because the court separately concluded 

that the SEC filing did not constitute newly discovered evidence. In Tremont, the court 

considered whether to admit new evidence on remand following a reversal by the Delaware 

Supreme Court. 1997 WL 689488, at *5. Relying on federal precedent that spoke to that 

setting, the court stated that it ”must weigh several factors, including: (i) the burden placed 

on the parties and their witnesses; (ii) whether undue prejudice will result by not taking 

new testimony; and (iii) what considerations should be given to judicial economy.” Id. That 

is a wholly different, three-factor test that substitutes grander and more flexible concepts 

for the five specific factors identified in Levine. Neither Fitzgerald nor Tremont support

appending two additional considerations to Levine’s five-factor test.

Because both the Levine list and the Carlson list are associated with Rule 60(b)(2), 

they are easy to confuse. A party opposing relief under Rule 60(b)(2) generally will find it 

advantageous to embrace the seven factors from Carlson because the issues of undue 

prejudice and judicial economy provide additional bases for opposing the motion. But if 

factors (1) through (5) are satisfied, is there a setting when the risk of undue prejudice and 

judicial economy could carry the day? At that point, the court will have determined that 

newly discovered evidence exists that the moving party could not have found earlier, which 

the moving party has raised in timely fashion, and which is noncumulative and likely to 

change the result. When those factors are present, they would seem to outweigh the risk of 

undue prejudice and the desire for judicial economy, creating a context where concern for 

the integrity of the judicial process outweighs the otherwise significant interest in the 
12

finality of judgments. See Credit Lyonnais, 1996 WL 757274, at *1. Such a case is one 

where “injustice is clearly threatened,” warranting relief under Rule 60(b)(2). Id. at *4.

The factors that the Delaware Supreme Court identified in Levine accurately state 

the requirements that a movant must meet to prevail on a motion under Rule 60(b)(2). The 

two additional factors from Carlson should not be part of the test. To the extent that unique 

circumstances require additional consideration, then a court can take those matters into 

account when determining whether to grant relief “upon such terms as are just.” Ct. Ct. R. 

60(b); see Wright & Miller, supra, § 2857 (explaining that a court can take into account 

“equitable considerations” when granting relief under Rule 60(b)).

2. Applying The Standard For A Motion Under Rule 60(b)(2) 

Under Levine, the plaintiffs must show that (1) the DOJ Complaint constitutes newly 

discovered evidence that has come to the plaintiffs’ knowledge since the entry of judgment; 

(2) the DOJ Complaint could not have been discovered before the judgment through the 

exercise of reasonable diligence; (3) the DOJ Complaint is sufficiently material and 

relevant that it would probably change the outcome; (4) the DOJ Complaint is not merely 

cumulative or impeaching in character; and (5) it is reasonably possible that the evidence 

will be produced at the trial.

No one disputes that the DOJ Complaint did not exist when the court entered the 

judgment, meaning that the plaintiffs could not have discovered it before the judgment

through the exercise of reasonable diligence. Whether the DOJ Compliant will be 

admissible at trial depends on the purpose for which it is introduced, and legitimate 

purposes plainly exist. The pivotal issues are elements one, three, and four.
13

a. Element One: Is The DOJ Complaint Newly Discovered 

Evidence?

The plaintiffs argue that the DOJ Complaint is newly discovered evidence. The DOJ 

Complaint is plainly “evidence,” although whether it is admissible at trial depends on how 

the plaintiffs seek to use it. The real question for purposes of the first element is whether 

the evidence was “newly discovered.” The answer to that question would seem obvious—

the DOJ Complaint was not filed until after judgment was entered, but the law draws a 

distinction between “new” evidence and “newly discovered” evidence. The latter can 

support a Rule 60(b)(2) motion. The former cannot. 

The leading Delaware decision on this issue is Bachtle v. Bachtle, 494 A.2d 1253 

(Del. 1985), where the Delaware Supreme Court considered whether the Family Court 

abused its discretion in refusing to reopen a judgment dividing real property after a divorce. 

During the proceeding, the husband and wife each presented expert testimony regarding 

the valuation of the marital residence. Id. at 1255. The wife’s expert appraised the residence

at between $172,000 and $195,000, and the husband’s expert appraised the residence at 

$150,000. The Family Court valued the residence at $150,000 and awarded it to the 

husband. Approximately nine months later, the husband sold the residence for $218,000. 

Approximately ten months after that, the wife petitioned the Family Court to reopen the 

judgment so that the sale price of the house could be included in a modified distribution of 

marital property. The Family Court denied the motion. 

On appeal, the Delaware Supreme Court started its analysis with a statute providing 

that a property disposition may be modified or terminated “only upon a showing of 
14

circumstances that would justify the opening or vacation of a judgment under the Rules of 

the Superior Court of this State . . . .” 13 Del. C. § 1519(a)(3). The high court therefore 

turned to Superior Court Civil Rule 60(b)(2), which permits relief from a judgment for 

“newly discovered evidence which by due diligence could not have been discovered in 

time to move for a new trial under Rule 59(b).” Super. Ct. R. 60(b)(2). Because the sales 

price for the property “was not in existence at the time of judgment,” the valuation 

constituted “‘new evidence,’ not ‘newly discovered evidence.’” Bachtle, 494 A.2d at 1255.

In reaching this conclusion, the Bachtle decision relied on federal precedent

interpreting the concept of “newly discovered evidence” to mean evidence “‘in existence 

and hidden at the time of judgment.’”5 Federal courts continue to apply that rule. E.g., 

ChromaDex, Inc. v. Elysium Health, Inc., 2021 WL 1648596, at *1 (D. Del. Apr. 27, 2021); 

11 Wright & Miller, supra, § 2808 (“As is true under Rule 60(b)(2), in order to comply 

5

Id. (quoting Ryan v. United States, 303 F.2d. 430, 434 (2d Cir. 1962); citing Brown 

v. Pennsylvania R.R. Co., 282 F.2d 522, 526–527 (3rd Cir. 1960) (defining “newly 

discovered evidence” to mean “evidence of facts in existence at the time of trial of which 

the aggrieved party was excusably ignorant”) (internal citation omitted), cert. den., 365 

U.S. 818 (1961)); accord United States v. Rutkin, 208 F.2d 647, 649–650 (3rd Cir. 1953)

(“The United States and Rutkin have agreed that to warrant the granting of a new trial on 

the ground of newly discovered evidence, ‘There must ordinarily be present and concur 

five verities, to wit: (a) The evidence must be in fact, newly discovered, i.e., discovered 

since the trial; (b) facts must be alleged from which the court may infer diligence on the 

part of the movant; (c) the evidence relied on, must not be merely cumulative or 

impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of 

such nature, as that, on a new trial, the newly discovered evidence would probably produce 

an acquittal.’” (quoting Johnson v. United States, 32 F.2d 127, 130 (8th Cir. 1929)).
15

with Rule 59, the court must find that the newly discovered evidence itself, as well as the 

facts that it supports, were in existence at the time of trial.”).

Under the Bachtle decision, Rule 60(b)(2) does not apply to “new” as opposed to 

“newly discovered” evidence.6 The valuation in Bachtle met that definition because the 

sale had not taken place at the time of judgment. The transaction occurred afterward, 

making the sale price a new fact. At a superficial level, the DOJ Complaint seems to fit 

that mold, because when the court entered the judgment in this case, the DOJ had not filed 

suit yet. 

On another level, however, the DOJ Complaint differs from the sale of the residence 

in Bachtle, because the DOJ Complaint refers to historical events predating the judgment. 

While serving as a member of this court, Justice Jacobs dealt with a similar situation in 

Grobow v. Perot (Grobow III), 1988 WL 127094 (Del. Ch. Nov. 25, 1988). After then6 Although Bachtle considered Superior Court Civil Rule 60(b)(2), its holding 

applies equally to Chancery Court Rule 60(b)(2), which is substantively identical. See 

Sullivan v. Maughan, 608 A.2d 730 (Del. 1991) (treating Family Court Civil Rule 60(b), 

Superior Court Rule 60(b), and Court of Chancery Rule 60(b) as substantively identical

“counterparts”); see also Cheswold v. Cent. Del. Bus. Park, 2017 WL 2463689, at *4 (Del. 

Super. Ct. June 6, 2017) (“The language found in Rule 60(b) is identical in both the Court 

of Chancery and the Superior Court Civil Rules.”), rev’d on other grounds, 188 A.3d 810

(Del. 2018); In re U.S. Robotics Corp. S’holder Litig., 1999 WL 160154, at *8 (Del. Ch. 

Mar. 15, 1999) (same)); cf. Daniel L. Herrmann, The New Rules of Procedure in Delaware, 

18 F.R.D. 327, 327–28 (1956) (discussing Rule 60(b) without distinguishing between the 

Superior Court and the Chancery Court versions). The two versions are not precisely 

identical, because Superior Court Civil Rule 60(b)(2) authorizes relief from judgment for 

“newly discovered evidence which by due diligence could not have been discovered in 

time to move for a new trial under Rule 59(b),” while the Court of Chancery Rule refers 

more parsimoniously to “newly discovered evidence.” The meaning of the two versions is 

undoubtedly the same.
16

Vice Chancellor Jacobs dismissed the complaint, the plaintiffs sought relief from judgment 

under Rule 60(b)(2) based on a tell-all book published after the dismissal of the complaint, 

as well as post-dismissal depositions taken in related litigation. Id. at *1. No one suggested 

that the post-judgment book and depositions were new evidence, as opposed to newly 

discovered evidence about events that preceded the judgment. Then-Vice Chancellor 

Jacobs granted the motion. Id. at *4. The Grobow III decision indicates that when a plaintiff 

seeks to rely on evidence about pre-judgment events, it constitutes newly discovered 

evidence for purposes of Rule 60(b)(2), even if the evidence takes form after the judgment.

These precedents point to a distinction between the filing of the DOJ Complaint and 

the contents of the DOJ Complaint. To the extent the plaintiffs seek to rely on the filing of 

the DOJ Complaint as evidence of the DOJ’s belief in the strength of its allegations, the 

DOJ Complaint is “new evidence” that cannot support relief under Rule 60(b)(2). That is 

because the filing itself took place after the judgment. To the extent the plaintiffs rely on 

the contents of the DOJ Complaint, the DOJ Complaint constitutes newly discovered 

evidence about past events that can be considered for purposes of Rule 60(b)(2). That is 

because although the form of the evidence manifested itself after the judgment, it relates to 

events that predated the judgment.

b. Element Three: Is The DOJ Complaint Sufficiently Material To 

Change The Result?

To the extent the DOJ Complaint constitutes newly discovered evidence, the third 

element requires a showing that the DOJ Complaint is so material as to change the result. 

Credit Lyonnais, 1996 WL 757274, at *1. The DOJ Complaint does not meet this standard.
17

When determining whether to dismiss a complaint under Rule 23.1, a court 

evaluates whether the complaint’s allegations identify “with particularity the efforts, if any, 

made by the plaintiff to obtain the action the plaintiff desires from the directors or 

comparable authority and the reasons for the plaintiff’s failure to obtain the action or for 

not making the effort.” Ct. Ch. R. 23.1(a). The requirement of particularized facts means a 

“[p]laintiffs’ pleading burden [in the demand excused context] is . . . more onerous than 

that required to withstand a Rule 12(b)(6) motion.” Levine, 591 A.2d at 207. Under the 

heightened pleading requirements of Rule 23.1, “conclusionary [sic] allegations of fact or 

law not supported by allegations of specific fact may not be taken as true.” Grobow, 539 

A.2d at 187. But the requirement of factual particularity does not entitle a court to discredit 

or weigh the persuasiveness of well-pled allegations. “Plaintiffs are entitled to all 

reasonable factual inferences that logically flow from the particularized facts alleged, but 

conclusory allegations are not considered as expressly pleaded facts or factual inferences.”

Brehm, 746 A.2d at 255. Rule 23.1 requires that a plaintiff allege specific facts, but “he 

need not plead evidence.” Aronson, 473 A.2d at 816; accord Brehm, 746 A.2d at 254 

(“[T]he pleader is not required to plead evidence.”).

The Opinion applied that standard. The Opinion acknowledged and accepted as true 

the plaintiffs’ allegation that the Company had been “named as a defendant in more than 

1,800 lawsuits” by governmental entities and other plaintiffs. Compl. ¶ 6. The Opinion also 

credited that the Company had been the subject of numerous governmental investigations, 

including “a long running and expanding U.S. Department of Justice (‘DOJ’) civil and 

criminal investigation.” Id. The Opinion acknowledged that the complaint’s allegations, 
18

standing alone, were sufficient to support an inference that the directors knew that the 

Company’s existing anti-diversion systems were inadequate and consciously decided not 

to take any action in response to the red flags. 

The challenge was whether the inferences were reasonable. In the West Virginia 

Decision, the West Virginia Court found on the merits after a lengthy trial that the 

Company had established and maintained an adequate anti-diversion program. West 

Virginia Decision, 2022 WL 2399876, at *61. The West Virginia Court found no evidence 

that the Company distributed opioids to pill mills. Id. at *53. Based on its findings, the 

West Virginia Court ruled that “[n]o culpable act by defendants caused an oversupply of 

opioids in Cabell/Huntington.” Id. at *61. 

Given the findings in the West Virginia Decision, the court could not draw a 

reasonable pleading-stage inference that the defendants had acted in bad faith in failing to 

cause the Company to comply with its anti-diversion obligations. The pled facts supported 

that inference, but the West Virginia Court’s post-trial findings rendered that inference 

unreasonable. 

The plaintiffs do not assert that the DOJ Complaint contains materially new 

information, and they acknowledge that the existence of another lawsuit is unlikely to 

change the outcome of the Opinion. Dkt. 53 ¶ 6. They argue that “the U.S. Government’s 

decision to pursue an enforcement action, based on the conclusion of multi-year 

investigations, flips the inferences supporting the Opinion.” Id. (formatting in original)

(footnote omitted). In other words, they contend that because the DOJ decided to file the 

DOJ Complaint, after the issuance of the West Virginia Decision, it remains reasonable to 
19

infer that the defendants knowingly failed to cause the Company to comply with its antidiversion obligations. But as previously discussed, the act of filing the DOJ Complaint is 

new evidence, not newly discovered evidence. It therefore cannot be considered for 

purpose of the plaintiffs’ application for relief under Rule 60(b)(2). 

To the extent the plaintiffs rely on the contents of the DOJ Complaint, rather than 

the act of filing, those allegations would not change the outcome. The plaintiffs recognize 

that the contents of the DOJ Complaint largely parallel their complaint. And the allegations 

remain allegations, so they cannot support reasonable inferences in the face of the factual 

findings made by the West Virginia Court.

Finally, the DOJ Complaint’s allegations do not otherwise address the issues 

pertinent to demand futility. The DOJ Complaint does not mention the individual 

defendants, and it contains no allegations supporting an inference that the Company’s 

directors knowingly took action that would support a Red-Flags Claim or a Massey Claim. 

The DOJ Complaint rests on theories that require no greater level of culpability than 

negligence. 

The West Virginia Court made findings of fact. The allegations in the DOJ 

Complaint, even recognizing that it was filed by the DOJ, do not support reasonable 

inferences of noncompliance under the particularized pleading standard required by Rule 

23.1. Considering the contents of the DOJ Complaint would not change the result. 

c. Element Four: Is The DOJ Complaint Cumulative?

Element four of the Rule 60(b)(2) test requires that the plaintiff show that the DOJ 

Complaint is not cumulative. They cannot make that showing. 
20

As this decision has discussed, a reference to the DOJ Complaint bundles two 

events: the filing of the complaint and the contents of the complaint. The filing of the DOJ 

Complaint is not cumulative. It is a new event, so it is new evidence, not newly discovered 

evidence. It therefore cannot be considered for purposes of Rule 60(b)(2).

The contents of the DOJ Complaint qualify as newly discovered evidence, but the 

evidence is cumulative. The DOJ Complaint covers the same general timeline as the 

plaintiffs’ complaint and describes many of the same events discussed in the Opinion. 

d. The Conclusion Regarding The Rule 60(b)(2) Test

The Levine test governs, and the Motion fails to satisfy it. The act of filing the DOJ 

Complaint is new evidence, not newly discovered evidence, and cannot be considered. The 

contents of the DOJ Complaint qualify as newly discovered evidence, but the information 

would not change the outcome because it is cumulative. The request for relief under Rule 

60(b)(2) is therefore denied. 

B. Rule 60(b)(6)

Plaintiffs argue in the alternative that the court should grant the Rule 60(b) motion 

under the catchall provision of Rule 60(b)(6), which permits the court to grant relief from 

judgment “for any other reason.” Ct. Ch. R. 60(b)(6). A party moving under Rule 60(b)(6) 

must carry a heavier burden than under other subdivisions of Rule 60(b). See, e.g., MCA, 

785 A.2d at 635 n.9. For purposes of Rule (b)(6), a plaintiff must identify “extraordinary 

circumstances.” Dixon v. Delaware Olds, Inc., 405 A.2d 117, 119 (Del. 1979); accord 11 

Wright & Miller, supra, § 2857.
21

Plaintiffs argue that “compelling policy considerations further support withdrawal 

of the Opinion under Rule 60(b)(6)” because the Opinion is “out of step with established 

jurisprudence.” Dkt. 44 ¶ 32. The gist of the plaintiffs’ objection is that the court considered 

the West Virginia Decision after the defendants raised it in their reply brief and after the 

parties discussed it at oral argument. According to the plaintiffs, such an approach departs 

from the rule that the demand futility analysis considers the directors in office at the time 

the complaint is filed. It also allegedly “improperly shifts the point in time that the futility 

determination must be made from the date of filing of the [plaintiffs] Complaint to a later 

point in time, or alternatively, allows a ‘floating’ assessment time, subject to reevaluation 

depending on changing circumstances.’” Id. ¶ 33.

The Opinion did not deviate from the principle that demand futility is evaluated 

using the directors in office when the complaint was filed. That is exactly what the Opinion 

did. By considering the West Virginia Decision, the court did not look to a different set of 

directors. The court considered whether it was reasonable to draw an inference that the 

directors in office when the complaint was filed faced a substantial risk of liability. 

The plaintiffs fare no better with their argument that by considering the West 

Virginia Decision, the court moved the date at which demand futility is considered. That 

is not the case. Like the plaintiffs’ complaint and the DOJ Complaint, the West Virginia

Decision looked backward. The West Virginia Court made findings about what the 

Company historically had done. The West Virginia Court found that no wrongdoing had 

occurred. Based on that finding, the court could not reasonably infer that the demand board 

faced a substantial risk of liability for the same conduct. 
22

The court acted properly by considering the West Virginia Decision. Other 

Delaware decisions have considered post-complaint developments.7 Under Delaware Rule 

of Evidence 202, “[e]very court in this State may take judicial notice of . . . case law of the 

United States and every state, territory and jurisdiction of the United States.” D.R.E. 

202(a)(1). The comments to the rule state:

It is the intention of this rule to encourage the admissibility of evidence of 

law rather than to discourage it. The only limitation imposed is that notice of 

the law of other jurisdictions sought to be relied upon should be given to all 

parties at a reasonable time.

D.R.E. 202 cmt. “The court may take judicial notice at any stage of the proceeding.” D.R.E. 

201(d). Both sides were on notice of the West Virginia Decision. The defendants raised it 

in their reply, and both sides addressed it at oral argument. Dkt. 33 at 6, 7, 10; Dkt. 40 at 

28–29, 40, 86–87.

Although considering the West Virginia Decision worked against the plaintiffs in 

this case, there is no reason to think that taking judicial notice of a post-filing development 

will systematically favor one side or the other. Suppose the West Virginia Court had ruled 

against the Company. One can be confident that the plaintiffs would have eagerly called 

the case to the court’s attention and argued that the court should consider it for purposes of 

7 See, e.g., Fisher v. Sanborn, 2021 WL 1197577, at *12 (Del. Ch. Mar. 30, 2021) 

(considering regulatory investigations that post-dating the filing of the complaint as part of 

demand futility analysis); Rojas v. Ellison, 2019 WL 3408812, at *6 (Del. Ch. July 29, 

2019) (considering a ruling by California appellate court that post-dated the filing of the 

complaint as part of demand futility analysis).
23

the Rule 23.1 analysis. This time, the plaintiffs’ ox was gored. Next time, the beast could 

belong to the defendants.

The plaintiffs’ real gripe is that their complaint was dismissed. There is nothing 

extraordinary or exceptional about that result. It also does not mean the Company cannot 

potentially recover from the individual defendants. The named plaintiffs in this case have 

taken their shot, but as contemplated by Rule 15(aaa), the court’s judgment only binds the 

named plaintiffs. If the West Virginia Decision is reversed on appeal, or if the DOJ prevails 

at trial, or if other potential events come to pass, then a future plaintiff may be able to assert 

viable derivative claims notwithstanding the Opinion. That ruling is not a panacea for the 

individual defendants, and it did not exonerate them or the Company. 

There is no basis to think that the consideration of the West Virginia Decision 

constituted an extraordinary circumstance supporting relief under Rule 60(b)(6). The 

request for relief under Rule 60(b)(6) falls well short of the mark. 

II. CONCLUSION

The DOJ Complaint does not provide grounds for granting relief from the judgment. 

The Motion is denied.