Applying Delaware law, this decision affirms summary judgment for Google’s executives in a consolidated derivative action arising from the executives’ participation in the “no cold call” agreement with hi-tech competitors like Apple. Delaware’s three-year limitations period applies to the claim. Plaintiffs filed suit more than three years after the “no cold call” agreement was highly publicized in a Dept. of Justice lawsuit and simultaneous settlement banning the “no cold call” agreement in the future. The DOJ press release in connection with the suit and settlement said that high-level officials at the defendant corporations had participated in the illegal agreement. That was enough to put shareholders on inquiry notice of potential derivative actions against the executives; the later discovery in other litigation of emails from the defendant executives was merely proof of the claim. Limitations tolling ends when the plaintiff knows enough to suspect wrongdoing; he cannot wait to sue until he has all the evidence needed to prove his case—that’s what discovery is for.
California Court of Appeal, Sixth District (Grover, J.); April 16, 2018; 2018 WL 1790807