A derivative suit against Google, Inc. officers and defendants survived a motion to dismiss aided by company admissions in a non-prosecution agreement (NPA). In City of Orlando Police Pension Fund v. Page, No. 13-2038 (N.D. Cal. Sept. 26, 2013), Google had entered into an NPA with the Department of Justice relating to advertisements placed with Google’s search engines by Canadian pharmacies seeking to sell prescription drugs to be imported into in the U.S. Among other things, the NPA contained an admission of wrongdoing by the company, an admission that the company was on notice that Canadian advertisers targeted U.S. customers and imported drugs into the U.S. in violation of federal law, and an agreement to forfeit $500 million to the U.S. government. Plaintiff made a demand on the company’s board to investigate and hold directors and senior executives responsible. The company formed a committee which investigated the conduct but refused the demand. The investigation resulted in a 149-page report, the conclusions of which were reflected in a six-page demand refusal letter (“DRL”). Plaintiff then brought a derivative action, and defendants moved to dismiss, arguing that plaintiff had not adequately alleged that the refusal of its demand was wrongful, relying on the conclusions of the investigation. The court denied the motion to dismiss. It initially noted that the defendants’ refusal to release the entire report, while not demonstrating itself that the refusal of the demand was wrongful, unreasonably insulated the investigation from scrutiny. The court then stated that on the record before it (which conspicuously did not include the full report), it could not conclude that the investigation was conducted reasonably and in good faith, given the inconsistencies between its conclusions and the admissions of wrongdoing in the NPA. Finally, the court credited the plaintiff’s argument that any reasonable investigation would have included an interview of the DOJ’s lead investigator or someone knowledgeable about the DOJ’s investigation.