Opinion for the Court filed by Circuit Judge KAVANAUGH, with whom Circuit Judge RANDOLPH joins, and with whom Senior Circuit Judge WILLIAMS joins except as to the second sentence of footnote five.

KAVANAUGH, Circuit Judge:

In the early 1990s, members of the Guatemalan army killed rebel fighter Efrain Bamaca-Velasquez during Guatemala’s civil war. Bamaca’s widow, Jennifer Harbury, sued various U.S. Government officials, claiming they were legally responsible for the physical abuse and death of her husband. The District Court long ago dismissed most of Harbury’s claims. Harbury now appeals the District Court’s order dismissing her common-law tort claims. We affirm for either of two alternative jurisdictional reasons: (1) Under this Court’s precedents, the case presents a nonjusticiable political question; or (2) the Federal Tort Claims Act applies to Harbury’s claims, and the FTCA bars suits based on injuries that occurred in a foreign country.

I

Jennifer Harbury is a U.S. citizen and the widow of Efrain Bamaca-Velasquez, who was a citizen of Guatemala and a commander of rebel forces in that country’s 35-year civil war. According to Harbury, in the 1990s the U.S. Central Intelligence Agency hired and trained Guatemalan army officers as informants so that the CIA could gather information about the rebel forces. Harbury alleges that the CIA obtained information from the Guatemalan army officers and shared it with the White House and the State Department during the Administrations of President George H.W. Bush and President Clinton. Harbury claims, moreover, that “it was understood ... and/or intended by the CIA that this information would be obtained through torture and similar means.” Second Amended Complaint at 11, Harbury v. Hayden, 444 F.Supp.2d 19 (D.D.C.2006) (Civ. No. 96-438).

Harbury specifically contends that Bamaca was captured in March 1992 by Guatemalan army officers affiliated with the CIA. The CIA allegedly reported, to the White House and U.S. Government agencies that its Guatemalan counterparts had captured Bamaca “and that they would probably fabricate his combat death in order to be able to maximize their ability to extract information” from him. Id. at 9. At the same time that the Guatemalan army publicly maintained that Bamaca had committed suicide, its officers allegedly “detained, psychologically abused and physically tortured” Bamaca in an attempt to get information from him. Id. According to Harbury, the Guatemalan officers then killed Bamaca.

Harbury initially sued and sought damages from many U.S. Government officials *391 in their personal capacities — (i) at the CIA, Directors John M. Deutch, R. James Woolsey, and Robert M. Gates; Deputy Directors David Cohen, John J. Devine, Thomas A. Twetten, John C. Gannon, Douglas J. MacEachin, and John L. Helgerson; Latin American Division Chief Terry R. Ward; National Intelligence Officer Brian Latelle; National Intelligence Council Chiefs Richard N. Cooper, Christine N. Williams, Joseph S. Nye, and Fritz W. Esmarth; Guatemala Station Chiefs Dan Donahue and Frederick A. Brugger; and “unnamed employees” of the CIA; (ii) at the State Department, Secretary of State Warren Christopher; U.S. Ambassador to Guatemala Marilyn MacAfee; Assistant Secretary Alexander Watson; Deputy Assistant Secretary Anne Patterson; Guatemala Desk Officer Peg Willingham; and “unnamed employees” of the State Department; and (iii) at the National Security Council, National Security Advisor Anthony Lake; NSC staff member Richard E. Feinberg; and “unnamed employees” of the National Security Council. See id. at 1-2, 5-8.

The District Court previously dismissed most of Harbury’s claims. See Harbury v. Hayden, 444 F.Supp.2d 19, 24 (D.D.C.2006) (citing cases and orders); see also Christopher v. Harbury, 536 U.S. 403, 405, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002).

Harbury’s only remaining claims are common-law tort claims against the individual CIA Defendants. Harbury alleges that the individual CIA Defendants conspired to cause Bamaca’s imprisonment, torture, and execution; negligently supervised their Guatemalan counterparts, re-suiting in Bamaca’s injury and death; and caused emotional distress to Harbury as a result of Bamaca’s injury and death. The District Court dismissed these claims under Federal Rule of Civil Procedure 12(b)(1). Harbury now appeals; our review is de novo.

II

To explain the District Court’s decision and Harbury’s appeal, we begin with a brief overview of the Federal Tort Claims Act and the Westfall Act.

The Federal Tort Claims Act is a limited waiver of the Government’s sovereign immunity. Under the FTCA, plaintiffs may sue the United States in federal court for state-law torts committed by government employees within the scope of their employment. 28 U.S.C. §§ 1346(b), 2671-80. But the FTCA does not create a statutory cause of action against individual government employees.

If a plaintiff files a state-law tort suit against an individual government employee, a companion statute — the Westfall Act — provides that the Attorney General may certify that the employee was acting within the scope of employment “at the time of the incident out of which the claim arose.” 28 U.S.C. § 2679(d)(1). Upon the Attorney General’s certification, the tort suit automatically converts to an FTCA “action against the United States” in federal court; the Government becomes the sole party defendant; and the FTCA’s requirements, exceptions, and defenses apply to the suit. Id. 1

*392In many cases, the Attorney General’s certification begins and ends the scope-of-employment analysis. The Government takes over as the sole party defendant, and the suit proceeds under the FTCA. From the plaintiffs perspective, this can produce a net positive: Although the plaintiff must now litigate against the Federal Government, the original defendant — a potentially judgment-proof federal employee — has been replaced by the seemingly bottomless U.S. Treasury.

Plaintiffs do not always view certification so charitably, however. As mentioned earlier, the FTCA is a limited waiver of sovereign immunity. The Act contains several exceptions — for example, it does not apply to claims for lost mail, suits in admirality, claims arising out of the military’s combatant activities during wartime, claims based on discretionary functions, or claims that arise in foreign countries, among other exceptions. See 28 U.S.C. § 2680. men one of the FTCA’s exceptions applies — that is, when the Government has not waived its sovereign immunity — the Attorney General’s scope-of-employment certification has the effect of converting the state-law tort suit into an FTCA case over which the federal courts lack subject-matter jurisdiction. In other words, the combination of the scope-of-employment determination and the FTCA’s exceptions may absolutely bar a plaintiffs case. See United States v. Smith, 499 U.S. 160, 166, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991).

In such cases, to try to preserve their lawsuits, plaintiffs often contest the Attorney General’s scope-of-employment certification. Plaintiffs typically argue that the individual government employee defendants did not act within the scope of their employment and that the suits should therefore continue as state-law tort suits against the government officials in their personal capacities. Once a plaintiff advances this argument, courts consider the scope-of-employment issue essentially de novo based on the state law of the place where the employment relationship exists. If the court agrees with the Attorney General, the suit becomes an action against the United States that is governed by the FTCA. But if the court disagrees with the Attorney General’s determination, the state-law tort suit may proceed against the defendant government employee in his or her personal capacity. See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 423-24, 434, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995); Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 662 (D.C.Cir.2006).

Harbury’s case followed this procedural course. Among other claims, Harbury brought common-law tort claims against the individual CIA Defendants. In March 2000, Attorney General Reno certified that the individual CIA Defendants had acted within the scope of their employment. The Attorney General’s certification removed the individual CIA Defendants from the tort action, substituted the United States as the sole party defendant, and rendered all of Harbury’s tort claims subject to the FTCA and its exceptions, including the foreign-country exception.

Harbury then challenged the Attorney General’s certification, arguing based on D.C. law that the individual CIA Defendants did not act within the scope of their employment. The District Court disagreed: It ruled that the FTCA applied to all of Harbury’s tort claims and held that it lacked subject-matter jurisdiction because the claims fell within the FTCA’s exception for claims “arising in a foreign country.” 28 U.S.C. § 2680(k); see also Sosa v. Alvarez-Machain, 542 U.S. 692, 712, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (foreign-country exception “bars all claims *393based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred”).

On appeal, Harbury argues that the individual CIA Defendants did not act within the scope of their employment under D.C. law because “acts of torture can never fall within the scope of employment.” Harbury Br. at 14. According to Harbury, Attorney General Reno and the District Court erred in certifying the acts as within the individual CIA Defendants’ scope of employment, the FTCA therefore does not apply, and Harbury can maintain tort claims against the individual CIA Defendants in their personal capacities. To the extent the scope-of-employment certification was proper and Harbury’s claims are converted into FTCA claims against the United States, Harbury separately argues that at least some of the claimed injuries, such as her emotional distress, occurred in the United States, and that the FTCA’s foreign-country exception therefore does not bar those claims against the Government.2

Ill

Pointing to recent cases from this Circuit, the Government contends that all of Harbury’s claims pose “political questions” that the federal coui’ts may not consider.

The political question doctrine is an important tenet of separation of powers and judicial restraint. But the doctrine is notorious for its imprecision, and the Supreme Court has relied on it only occasionally. As Judge Bork explained a generation ago, “That the contours of the doctrine are murky and unsettled is shown by the lack of consensus about its meaning among the members of the Supreme Court and among scholars.” Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 803 n. 8 (D.C.Cir.1984) (Bork, J., concurring) (citations omitted). Judge Bork’s observation remains true today.

The Supreme Court has held that the political question doctrine bars judicial resolution of certain issues textually and exclusively committed by the Constitution to one or both of the other branches of the Federal Government. Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); see also Nixon v. United States, 506 U.S. 224, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993); Goldwater v. Carter, 444 U.S. 996, 1002, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979) (opinion of Rehnquist, J., for four Justices); Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973). The Court in Baker also held that the political question doctrine applies when there is a “lack of judicially discoverable and manageable standards for resolving” a case; in practice, however, this is often equivalent to a merits determination. 369 U.S. at 217, 82 S.Ct. 691; see also Vieth v. Jubelirer, 541 U.S. 267, 277-291, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) (plurality opinion).

Although those first two factors— textual commitment and lack of judicially manageable standards — are the most important, the Court also considers others: “the impossibility of deciding without ah initial policy determination of a kind clear*394ly for nonjudieial discretion”; “the impossibility of a court’s undertaking independent resolution without expressing lack" of the respect due coordinate branches of government”; “an unusual need for unquestioning adherence to a political decision already made”; and “the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Baker, 369 U.S. at 217, 82 S.Ct. 691. As the Baker Court recognized in discussing those political question factors, judicial restraint in the area of foreign affairs is often appropriate because such cases “frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature.” Id. at 211, 82 S.Ct. 691. The Court cautioned, however, that “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” Id. Instead, each case involves a “discriminating analysis of the particular question posed.” Id.

Although the contours of the political question doctrine may be uncertain, this Court has relied on the doctrine in three recent cases that are indistinguishable from this case and control our decision here.

In Schneider v. Kissinger, children of a deceased Chilean general brought tort claims against former U.S. officials. 412 F.3d 190, 192 (D.C.Cir.2005); see also Schneider v. Kissinger, 310 F.Supp.2d 251, 257 (D.D.C.2004) (describing claims). The plaintiffs alleged that, in 1970, then-National Security Advisor Henry Kissinger and then-CIA Director Richard Helms supported Chileans in Chile as they kidnapped, tortured, and killed General René Schneider during a military coup d’etat. 412 F.3d at 191-92. In response to the plaintiffs’ charges against Kissinger and Helms, the Attorney General certified that both men had acted within the scope of their federal employment. Id. at 192.

This Court held that the case presented a nonjusticiable political question. Id. at 198. The Court explained that the suit challenged the merits of foreign policy decisions that the Constitution assigns to the political branches. Id. at 195. The Court also found a lack of judicially discoverable and manageable standards regarding “the government’s use of covert operations in conjunction with political turmoil in another country.” Id. at 197. Citing Baker, the Court stated that it could not entertain the lawsuit without expressing a lack of respect for á coordinate branch of the Government. Id. at 197-98, 82 S.Ct. 691.

This Court again applied the political question doctrine in Gonzalez-Vera v. Kissinger, 449 F.3d 1260 (D.C.Cir.2006). In that case, the plaintiffs brought tort claims against former National Security Advisor Kissinger. Id. at 1263. According to the plaintiffs, after the U.S. Government and Kissinger supported the 1973 coup d’etat in Chile that installed Augusto Pinochet as President of the newly formed military junta, they supported a “Chilean terror apparatus” that “brutally repressed and attempted to eliminate individuals opposed to Pinochet’s regime” — including the plaintiffs and their relatives. Id. at 1261 (internal quotation marks and alterations omitted). In response to the plaintiffs’ charges, the Attorney General certified that Kissinger had acted within the scope of his employment as a U.S. official. Id. at 1262.

As in Schneider, the Gonzalez-Vera Court held that the plaintiffs’ claims posed a nonjusticiable political question. The plaintiffs attempted to distinguish their case from Schneider by arguing that they challenged “specific acts of torture” that occurred after the coup d’etat rather than the “Government’s policy decision to sup*395port Pinochet’s rise to power.” Id. at 1263 (internal quotation marks omitted). But this Court found that evaluating “the legal validity of those measures would require us to delve into questions of policy textually committed to a coordinate branch of government.” Id. (internal quotation marks omitted). The Court also rejected the plaintiffs’ attempt to characterize the defendants’ actions as “ultra vires,” noting that Kissinger had acted within the authority delegated to him by the President. Id. at 1264.

The third of this Court’s cases that bears directly on the political question analysis is Bancoult v. McNamara, 445 F.3d 427 (D.C.Cir.2006). In that case, former residents of the island of Diego Garcia sued several current and former officials of the Departments of Defense and State under international law. Id. at 430-31. The plaintiffs claimed that the U.S. Government and individual U.S. officials caused the forcible relocation, torture, and killing of island residents in the 1960s as the Government depopulated the island to establish a military base. Id. In response to the plaintiffs’ allegations, the Attorney General certified that the defendant government officials had acted within the scope of their employment. Id. at 431.

This Court concluded that the case presented a nonjusticiable political question because the “specific tactical measures allegedly taken” to depopulate Diego Garcia and build the base were “inextricably intertwined” with foreign policy questions— such as “the decision to establish a military base” and “the underlying strategy of establishing a regional military presence,” neither of which was renewable. Id. at 436. The Bancoult Court rejected the plaintiffs’ efforts to distinguish between foreign policy and government officials’ implementation of that policy. Id. at 436-37. Even if the individual defendants’ “actions were not in conformance with presidential orders, the actions alleged were still closely enough connected to [their] employment to bring them within the ambit of the political question doctrine.” Id. at 437. The individual defendants acted in pursuit of an authorized goal — establishing a military base — and as “high-level executive officers,” they “inherently possessed a large measure of discretion in carrying out the tasks assigned to them by the President.” Id. at 438. The Court held that “when the political question doctrine bars suit against the United States, this constitutional constraint cannot be circumvented merely by bringing claims against the individuals who committed the acts in question within the scope of their employment.” Id.

Under our recent decisions in Schneider, Gonzalez-Vera, and Bancoult, the political question doctrine plainly applies to this case. In all three cases, as in Harbury’s case, the Attorney General certified that the defendants had acted within the scope of their employment. See Schneider, 412 F.3d at 192; Gonzalez-Vera, 449 F.3d at 1262; Bancoult, 445 F.3d at 431. In Schneider and Gonzalez-Vera, as in Harbury’s case, the plaintiffs contended that U.S. officials were responsible for physically abusing and killing foreign nationals in their home country. Schneider, 412 F.3d at 191-92; Gonzalez-Vera, 449 F.3d at 1261. And although the plaintiffs in all three cases argued that they challenged specific acts and not general Executive Branch foreign policy decisions, this Court reasoned that the cases sought determinations whether the alleged conduct should have occurred, which impermissibly would require examining the wisdom of the underlying policies. Schneider, 412 F.3d at 197; Gonzalez-Vera, 449 F.3d at 1263-64; *396 Bancoult, 445 F.3d at 436.3

In sum, we find no remotely plausible basis to distinguish this case from Schneider, Gonzalez-Vera, and Bancoult. Therefore, under our precedents, we must dismiss Harbury’s claims based on the political question doctrine.

IV

A recent decision of this Court considered allegations similar to Harbury’s and did not rely on the political question doctrine. See Rasul v. Myers, 512 F.3d 644 (D.C.Cir.2008). Even if we likewise do not rely on the political question doctrine, however, we still affirm the dismissal of Harbury’s case on alternative jurisdictional grounds. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584-85, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). The FTCA applies to Harbury’s tort claims, and the FTCA bars suits based on injuries suffered in a foreign country.

In Rasul, former detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, sued a former Secretary of Defense and several military officers in their personal capacities, alleging wrongful detention, physical abuse, and “cruel, inhuman or degrading treatment.” 512 F.3d at 651. In response to the charges, the Attorney General issued a Westfall Act certification that the individual defendants had acted within the scope of their employment, thereby converting the claims against the individual officials into FTCA claims against the United States. Id. at 655. The Court then dismissed'the FTCA claims against the Government for lack of subject-matter jurisdiction because the plaintiffs had failed to exhaust their administrative remedies as required by the FTCA. Id. at 661; see also 28 U.S.C. § 2675(a).

In the Rasul litigation, the Government did not argue that the case was nonjusticiable under the political question doctrine. And this Court did not address that doctrine or our decisions in Schneider, Gonzalez-Vera, or Bancoult.

The Rasul Court instead considered the detainees’ challenge to the Attorney General’s scope-of-employment certification. Applying D.C. law, the Court held that the defendants’ alleged conduct fell within the scope of their employment because the alleged wrongful acts were “tied exclusively to the plaintiffs’ detention in a military prison and to the interrogations conducted *397therein.” 512 F.3d at 658 (internal quotation marks omitted). The alleged torts therefore were “incidental to the defendants’ legitimate employment duties” in detaining and interrogating suspected enemy combatants. Id. at 659. The Court rested its scope-of-employment analysis on several D.C. cases holding that seriously criminal and violent conduct can still fall within the scope of a defendant’s employment under D.C. law — including sexual harassment, a shooting, armed assault, and rape. See id. at 657-58 (citing Howard Univ. v. Best, 484 A.2d 958, 987 (D.C.1984) (university dean acted within scope of employment in sexually harassing faculty member during meetings); Johnson v. Weinberg, 434 A.2d 404, 409 (D.C.1981) (laundromat employee acted within scope of employment in shooting customer during dispute over removing clothes from washing machine); Lyon v. Carey, 533 F.2d 649, 652 (D.C.Cir.1976) (mattress deliveryman acted within scope of employment in raping customer after dispute arose during delivery)).4

Under D.C. law as applied in Rasul, the individual CIA Defendants in this case similarly acted within the scope of their employment. Their jobs involved hiring and managing informants, conducting covert operations, and gathering intelligence. See 50 U.S.C. §§ 403-4(b), 403-4a(d). In performing those responsibilities, they allegedly gathered information related to a decades-long civil war in Guatemala and worked with individuals in Guatemala who abused and killed Harbury’s husband. Under D.C. law, those actions were incidental to their authorized conduct: The actions were “foreseeable” as a “direct outgrowth” of their responsibility to gather intelligence and were “undertaken on the [Government’s] behalf.” Rasul, 512 F.3d at 657 (internal quotation marks omitted). Although Harbury alleges that her husband suffered physical abuse, that does not alter the scope-of-employment analysis: The Rasul decision — and the D.C. cases on which the Rasul Court relied — hold that allegations of physical abuse still fall within the scope of employment if such actions were foreseeable. See id. at 660 (“[T]he tortious conduct was triggered or motivated or occasioned by the conduct then and there of the employer’s business even though it was seriously criminal.”) (internal quotation marks and alterations omitted); see also Lyon, 533 F.2d at 655; Weinberg, 434 A.2d at 409; Restatement (Second) of Agency § 228(1) (1958).

Because the alleged actions of the individual CIA Defendants were within the scope of their employment, Harbury’s claims against the individual CIA Defendants are properly converted into claims against the Government under the FTCA. But Harbury’s FTCA claims against the Government fall squarely within the *398FTCA’s exception for claims “arising in a foreign country.” 28 U.S.C. § 2680(k). In particular, Harbury’s claims on behalf of her husband’s estate arise in Guatemala because he suffered the alleged injuries there. See Sosa v. Alvarez-Machain, 542 U.S. 692, 700-01, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). And to the extent Harbury alleges her own emotional injuries in the United States as a result of the death of her husband, those derivative claims similarly arise in Guatemala for purposes of the FTCA because they are based entirely on the injuries her husband suffered there. A plaintiff in Harbury’s situation cannot plead around the FTCA’s foreign-country exception simply by claiming injuries such as “emotional distress” that are derivative of the foreign-country injuries at the root of the complaint. Much like the now-defunct “headquarters doctrine,” that practice would threaten to “swallow the foreign country exception whole.” Id. at 703; see also Harbury v. Hayden, 444 F.Supp.2d 19, 43 (D.D.C.2006). We follow the lead of Sosa and decline to allow this kind of creative pleading to water down the foreign-country exception to the FTCA.

In sum, even apart from the political question doctrine, we lack subject-matter jurisdiction to consider Harbury’s tort claims because the FTCA applies and the claims fall within that statute’s foreign-country exception.5

We affirm the District Court’s judgment dismissing .Harbury’s suit.

So ordered.

BIRCH, Circuit Judge:

At issue before us is the application of 42 U.S.C. § 1981 to a claim for discrimination arising out of a verbal contract for the delivery of food. Plaintiff-appellant Valerie Kinnon appeals from the district court’s grant of summary judgment in favor of Defendant-appellee Judith Gopman. Kin-non contends that she was subject to racially motivated discrimination at the hands of Gopman, in the form of excessive delivery changes and tardy delivery, and racist, threatening telephone calls from Gopman after Kinnon refused delivery of the food. The district court granted summary judgment in favor of the defendant. We AFFIRM.

I. BACKGROUND

The relevant record evidence, viewed in the light most favorable to Kinnon, is as follows. Kinnon is an African-American female who works as a project director at a non-profit organization in Miami. On the morning of 21 January 2005, Kinnon’s supervisor asked Kinnon to order lunch for a staff meeting. Kinnon decided to order pizza from Flora’s Pizzaria, and at approximately 11:45 a.m., Kinnon called Flora’s and placed an order for delivery. Kinnon spoke with Flora’s manager, Judith Gop-man, and explained that she was ordering food for a staff meeting that was to begin at 12:00 p.m. Gopman told Kinnon that Flora’s did not usually deliver to the address given by Kinnon, but she offered to do so for an additional charge of $5.00, to which Kinnon agreed. Kinnon gave her personal mobile telephone number to Gop-man, for use in the event Flora’s needed to contact Kinnon.

At 1:30 p.m., approximately one hour and forty five minutes after Kinnon placed the order, Kinnon still had not received the food. She called Flora’s to inquire about the delivery, and was told that it would arrive within five minutes. At approximately 2:00 p.m., the food still had not arrived, and Kinnon and her coworkers left the office to eat lunch at a restaurant. Kinnon did not call Flora’s to cancel the order, and the delivery driver arrived shortly after Kinnon and her coworkers left the office to eat elsewhere. An employee who had stayed behind called Kin-non and told her the pizza had arrived, and Kinnon responded that the pizza was no longer needed. The employee told the driver the pizza was not needed, and sent the driver away without paying for the food.

Almost immediately after the driver was sent away without payment, and while *889Kinnon was eating lunch out of the office at a restaurant, Gopman began calling Kinnon in an attempt to obtain payment for the food. At 2:09 p.m., Gopman called Kinnon and left a voice message stating “Here’s a real blessed voice message for you, Valerie. This is Ju _”1 R2-68, Exh. 7 at 1. Shortly thereafter, Gopman called Kinnon again and told Kinnon that she did “not know who [she was] dealing with,” that Gopman was a member of “one of the most important families in Dade County,” and that she would “get [Kinnon] fired” and “make [her] lose [her] benefits.” R2-69 at 9. After Kinnon ended the conversation, Gopman called back, and this time spoke to Kinnon’s supervisor. Kin-non’s supervisor recounted that Gopman stated “you don’t know who you are messing with, you people think you can get away with this, by the end of the day you are going to lose your jobs, you are going to lose your benefits, you have messed with the wrong person.” R2-68, Exh. 13 at 11. At approximately 2:32 p.m., Gop-man called again, this time leaving a voice message stating:

[S]o funny ... [a] nigger trying to sound important. When I’m finished with you, you’re not gonna look like yourself. We can’t even resell the pizzas because your pathetic people, the people you work with, touched the food. I can’t wait to find you. You don’t know who you’re dealing with. We’re like the old fashioned kind of Italian restaurant people. It’s gonna be beautiful. Can’t wait to find you, you piece of shit nigger. Nigger bitch.

R2-68, Exh. 7 at 1. After leaving this message, Gopman continued to call Kin-non, leaving additional messages of similar character.

Kinnon brought suit under 42 U.S.C. § 1981 against Gopman, and the district court granted summary judgment in favor of the defendant. Relying on Domino’s Pizza, Inc. v. McDonald, the court first found that Kinnon was acting as an agent for either her employer or her supervisor when she placed the delivery order with Flora’s, and that as an agent she had no contractual rights under the food order and therefore could not maintain an action under § 1981. 546 U.S. 470, 126 S.Ct. 1246, 1249, 163 L.Ed.2d 1069 (2006) (agent could not maintain § 1981 action on basis of contract under which he had no rights).

The court also found that, even if Kin-non had contractual rights, she had failed to state a claim under § 1981. The court did not address the calls Gopman made to Kinnon in an attempt to collect payment after the delivery was refused, explaining that, because they occurred after the delivery was refused, the calls constituted post-contractual activity and were therefore outside the purview of § 1981. Rather, the court analyzed only whether Kinnon’s allegations regarding the delayed delivery and the $5.00 surcharge were sufficient to state a claim under § 1981. Finding no direct evidence of discrimination, the court turned to the issue of circumstantial evidence of discrimination.

The court acknowledged that our circuit has not articulated a prima facie test to apply in § 1981 cases involving commercial establishments, as opposed to employment cases, and, after reviewing several prima facie tests applied by district courts in our circuit, the court selected the test applied in Jackson v. Waffle House, Inc., 413 F.Supp.2d 1338, 1361 (N.D.Ga.2006). That test requires that plaintiffs identify similarly situated white customers who received more favorable treatment *890than the plaintiffs. See id. Because Kin-non could not identify ,any such comparators, the district court held she could not make out a prima facie case of discrimination, and granted Gopman’s motion for summary judgment. The court also stated that Kinnon could not prevail even if she had established a prima facie case of discrimination, as the defendant had offered a nondiscriminatory reason for their actions, and Kinnon had not demonstrated that the reason was pretextual. Kinnon appeals.

II. DISCUSSION

A. Standard of Review

“We review the district court’s grant of summary judgment de novo, applying the same legal standards that bound the district court, and viewing all facts and reasonable inferences in the light most favorable to the nonmoving party.” Cruz v. Publix Super Markets, Inc., 428 F.3d 1379, 1382 (11th Cir.2005) (citation and internal quotation omitted). “Summary judgment is appropriate when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting Fed.R.Civ.P. 56(c)).

B. Whether Kinnon Had Rights Under the Contract at Issue

To state a claim under § 1981, a plaintiff must identify “an impaired ‘contractual relationship’ ... under which the plaintiff has rights.” Domino’s Pizza, 126 S.Ct. at 1249 (quoting 42 U.S.C. § 1981(b)) (footnote omitted). In Domino’s Pizza, the president of a corporation brought suit under § 1981 against Domino’s, arguing that Domino’s had breached a contract with his company because of his race. Id. at 1248. The plaintiff alleged that in doing so, Domino’s interfered with his right to make contracts on behalf of his principal, citing § 1981’s protection of the right to “make and enforce” contracts. Id. The Supreme Court held that § 1981 does not protect an agent’s right to negotiate a contract on behalf of a principal, but rather applies only where the plaintiff has rights under the contract at issue. Id. at 1249.

In the present case, the district court held that, because Kinnon acted at the request of her supervisor when she placed the delivery order with Flora’s, Kinnon acted only as an agent, and therefore did not have rights under the contract. The court found that, therefore, under Domino’s Pizza, Kinnon could not state a claim under § 1981.

This case is readily distinguishable from Domino’s Pizza. Here, unlike the plaintiff in Domino’s Pizza, Kinnon did not indicate to Flora’s that she was acting on behalf of a principal, and did not identify any principal. Accordingly, Kinnon was at the very least acting as an agent for an undisclosed principal. See Robinson & St. John Adver. & Pub. Relations, Inc. v. Lane, 557 So.2d 908, 909-10 (Fla. 1st DCA 1990); Van D. Costas, Inc. v. Rosenberg, 432 So.2d 656, 658 (Fla. 2d DCA 1983). Under Florida law, an agent who makes a contract on behalf of an undisclosed principal is a party to the contract. Lane, 557 So.2d at 910 (“In order for an agent to avoid personal liability on a contract negotiated [on] his principal’s behalf, he must disclose not only that he is an agent but also the identity of his principal, regardless of whether the third person might have known that the agent was acting in a representative capacity.”); Van D. Costas, 432 So.2d at 658 (“Unless otherwise agreed, a person purporting to make a contract with another for a partially disclosed principal is a party to the contract.”). See also Restatement (Third) of *891Agency § 6.02 (“When an agent acting with actual or apparent authority makes a contract on behalf of an unidentified principal ... the agent is a party to the contract unless the agent and the third party agree otherwise”) Because Kinnon was either not acting as an agent, or acting as an agent on behalf of an undisclosed principal when she ordered food from Flora’s, Kinnon was a party to the contract, and is not barred by Domino’s Pizza from proceeding under § 1981. See id.

C. Whether Kinnon has Created a Genuine Issue of Material Fact as to Each Element of a Cause of Action Under 12 U.S.C. § 1981

The elements of a cause of action under § 1981 are “(1) that the plaintiff is a member of a racial minority; (2) that the defendant intended to discriminate on the basis of race; and (3) that the discrimination concerned one or more of the activities enumerated in the statute.”2 Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1270 (11th Cir.2004) (citation omitted). Thus, to survive summary judgment, Kin-non must identify a genuine issue of material fact as to each element. There is no dispute that Kinnon is a member of a racial minority. Moreover, Kinnon has presented evidence that Gopman referred to her using the highly offensive racial slur “nigger,” which, if true, constitutes direct evidence of discriminatory intent. See, e.g., Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189-90 (11th Cir.1997) (collecting Eleventh Circuit cases in which racial slurs were held to constitute direct evidence of discriminatory intent); Green v. Dillard’s, Inc., 483 F.3d 533, 540 (8th Cir.2007) (stating, in § 1981 commercial establishment context, that “calling customers ‘niggers’ is direct evidence of discrimination”); Brooks v. Collis Foods, Inc., 365 F.Supp.2d 1342, 1359 (N.D.Ga.2005) (recognizing, in § 1981 commercial establishment context, “the level of racial animus” present when individuals are “subjected to racial slurs, expletives or name-calling”). Accordingly, Kinnon has created a genuine issue of material fact as to the second element of her § 1981 claim, and only the third element, which requires that the discrimination concern an activity enumerated in § 1981, is at issue.

Though we have previously addressed § 1981 claims in the employment context, see, e.g., BellSouth Telecomms., 372 F.3d 1250; Hall v. Ala. Ass’n of Sch. Bds., 326 F.3d 1157 (11th Cir.2003) (per curiam), there exists scant authority in our circuit applying § 1981 to claims brought by customers against commercial establishments. We are persuaded, however, by the Fifth Circuit’s approach in Arguello v. Conoco, Inc., which involved a § 1981 claim brought by a customer of a convenience store alleging discrimination arising out of a retail transaction. 330 F.3d 355 (5th Cir.2003). We agree with the Fifth Circuit that “[tjhere is a significant distinction ... between employment agreements and retail transactions” for the purposes of § 1981. Id. at 360.

*892In Arguello, the plaintiff and her father, both of whom were Hispanic, entered a gas station to pay for gasoline and purchase beer. Id. at 356-57. When Arguel-lo approached the counter, the clerk treated her rudely, but eventually Arguello completed the purchase. Id. Arguello’s father was upset at the way Arguello had been treated, however, and left without making his purchase. Id. at 357. At that point, the clerk began to shout obscenities at Arguello and made racially derogatory comments. Id. After Arguello and her father left the store, the clerk began shouting racist remarks over the intercom system, and when Arguello’s father attempted to enter the store to determine the clerk’s name, the clerk locked him out of the store. Id. The Fifth Circuit recognized that the first two elements of a § 1981 claim, the plaintiffs minority status and the defendant’s discriminatory intent, were present. Id. at 358. As to the third element, however, the court found that Arguello successfully completed her transaction and was not actually denied the ability to engage in any contractual activity, and therefore could not establish a § 1981 claim. Id. at 358-60. The court also stated that discriminatory conduct that occurred after the transaction at issue was completed could not support a § 1981 claim. Id. at 360-61.

Here, Kinnon argues that she has adduced sufficient evidence to establish a § 1981 claim, because Gopman’s discriminatory conduct arose from Gopman’s efforts to enforce contractual rights, which is within the scope of § 1981’s language protecting the right to “make and enforce” contracts. We disagree with this analysis. Section 1981 does not provide a general cause of action for all racial harassment that occurs during the contracting process. Rather, “in the retail context, the plaintiff must demonstrate the loss of an actual ... contract interest.” Id. at 358 (quotation omitted). Kinnon has not introduced evidence showing that “[she] was actually denied the ability either to make, perform, enforce, modify, or terminate a contract” on account of Gopman’s conduct. See id. at 359 n. 5. Kinnon successfully entered into a verbal contract with Flora’s for the delivery of pizza, and when the delivery was late, Kinnon successfully took steps to terminate the contract and ate out of the office at a restaurant. See Sinclair Refining Co. v. Butler, 172 So.2d 499, 502 (Fla. 3d DCA 1965) (per curiam) (discussing termination of contract by abandonment); Kuharske v. Lake County Citrus Sales, 44 So.2d 641, 643 (Fla.1950) (same). That Gopman sought to enforce putative contractual rights against Kinnon at the time the discrimination occurred is insufficient to support a § 1981 claim if Kinnon herself was not denied any of the rights enumerated in the statute. See Arguello, 330 F.3d at 359 n. 5; see also Hampton v. Dillard Dept. Stores, Inc., 247 F.3d 1091, 1118 (10th Cir.2001) (“We are aligned with all the courts that have addressed the issue that there must have been interference with a contract beyond the mere expectation of being treated without discrimination while shopping.” (citation omitted)). Because Kinnon’s exercise of her contractual rights was not “in some way thwarted” by Gopman, she cannot succeed on her § 1981 claim. See Arguello, 330 F.3d at 359.

Moreover, here, as in Arguello, the discriminatory conduct occurred after the contract at issue had been terminated. See id. at 360. In the retail context, unlike the employment context, “the [contractual] relationship is based on a single, discrete transaction.” Id. As a result, “there is no continuing contractual relationship” after that transaction has been terminated. Id. As the district court correctly observed, the contract at issue here was terminated *893before Gopman began her campaign of discriminatory telephone calls. As such, those telephone calls constituted post-contractual activity, and cannot form the basis of a § 1981 claim by Kinnon.3

Kinnon also argues that the late delivery of the food and the $5 delivery surcharge were acts of racially motivated discrimination that occurred during the contractual relationship, and that she was thereby denied the ability “to enjoy the fruits of [the] contractual relationship” on the same terms as a white person. See id. at 359, n. 5. To succeed on this claim, Kinnon must establish that the delivery charge and tardy delivery were motivated by racial animus. See BellSouth Telecomms., 372 F.3d at 1270. The district court found that Kinnon could not demonstrate that the late delivery and surcharge were the result of discriminatory intent. The court held that, setting aside the telephone calls, which occurred after the termination of the contract, there was no direct evidence of discrimination, and Kinnon could not succeed in establishing circumstantial evidence of discrimination by making out a prima facie case.

To determine whether Kinnon could establish discriminatory intent via circumstantial evidence, the court attempted to apply the burden-shifting framework set out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Because our circuit has not articulated a prima facie test to apply in § 1981 claims arising out of retail transactions, the district court applied the test used by the court in Jackson v. Waffle House, 413 F.Supp.2d 1338. That test required Kin-non, in order to make out a prima facie case, to identify non-minority customers of Flora’s who received more favorable treatment. See id. at 1355 (requiring showing that “the defendant treated the plaintiff less favorably with regard to the allegedly discriminatory act than it treated other similarly-situated persons outside of the individual’s protected class”). The court found that because Kinnon could not identify any similarly situated non-minority comparators, she could not make out a prima facie case.

We need not decide whether the particular formulation of the prima facie test applied by the district court was the appropriate test under the circumstances, however, because even if Kinnon did make out her prima facie case, she has not rebutted the legitimate, non-discriminatory reason offered by Gopman for the delivery surcharge and late delivery. See Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1142 (11th Cir.1983). Specifically, Gopman argued that the $5 delivery charge was requested because the delivery address was outside Flora’s usual delivery range, and that the food was late because the restaurant was busy at the time of the events in question. Because Kinnon has not introduced evidence to show that those reasons are pretextual, she cannot estab*894lish a presumption that the late delivery and surcharge were based on discriminatory intent. Id. Accordingly, she cannot make out a § 1981 claim on the basis of the delivery charge and delay.

III. CONCLUSION

Because Kinnon was either not acting as an agent, or acting as an agent on behalf of an undisclosed principal when she ordered food from Flora’s, the district court erred in holding that she had no contractual rights and was therefore barred from proceeding on her § 1981 claim. Yet because Kinnon has not created a genuine issue of material fact as to each element of a cause of action under § 1981, we nonetheless AFFIRM the district court’s entry of summary judgment in favor of Gopman.

Opinion of the Court by

Justice NOBLE.

This case presents two primary questions. First, is the sole member of a limited liability company liable under a lease expressly stating that the company is the tenant even though the lease is the product of a release that does not mention the member’s company capacity or the company in any direct way? Second, assuming the member has not directly obligated herself, can she be held personally liable if the lease was entered into while the company was, administratively dissolved and was subsequently reinstated? Based on the facts in this case, the member did not directly obligate herself because she clearly signed the lease in her representative capacity and the lease was expressly with the company. And because Kentucky’s Limited Liability Company Act provides *61for retroactive effect of the reinstatement of an administratively dissolved company, the member continues to enjoy statutory immunity and cannot be personally liable solely by reason of being a member, manager, or agent of the company. Moreover, she cannot be personally liable under the theory that she exceeded her authority as an agent of the company during the dissolution.

I. Background

Ann Shannon organized Elegant Interiors, LLC in 2000 under the Kentucky Limited Liability Company Act, KRS Chapter 275, and was the company’s sole member. In February 2004, Elegant Interiors, LLC entered into a lease for 3,645 square feet of commercial space with Rick Pannell, who owned the property. Shannon signed the lease on behalf of Elegant Interiors, LLC.

In 2005, Elegant Interiors, LLC failed to file its annual report as was then required by KRS 275.1901 and to pay the $15 filing fee. As a result, on November 1, 2005, the Kentucky Secretary of State ad*62ministratively dissolved Elegant Interiors LLC, as was then allowed by KRS 275.295, by issuing a certificate of dissolution.

In March 2006, the parties negotiated new leasing terms, entering into a release of the old lease and a new lease for less than half the previous space. The release was prepared by Shannon, and was signed on March 2, 2006. It stated:

I agree to release 1991 SF of my current space and all responsibility of payment for the 1991 SF, located at 148 W. Tiver-ton Way, STE 140, beginning today, Mar. 2, 2006. The purpose of this release is to grant Rick Pannell the right to lease STE 140 (consisting of 1991 SF) to Dr. Mike Nemastil. It is agreed upon that the signing of this document by both parties assures that Ann Shannon will not be held responsible for the building of any walls, construction, cam costs, or any expenses pertaining to STE 140, beginning today, March 2, 06, and will only be responsible for payment of the remaining 1654 SF @ 18.00 SF [18.856 written by hand above 18.00 and initialed by both parties] and known as STE 150, located at the same address. Upon acceptance of this document, a new lease will be signed by Ann Shannon, for the changes in SF (1654 SF@ 18.00 SF [18.856 written' by hand above 18.00 and initialed by both parties]) and cam costs only for the STE 150. All other stipulations will remain the same as in the initial lease.2

The release was signed by both Ann Shannon and Rick Pannell. It does not mention Elegant Interiors, LLC.

*63The new lease was also signed on March 2, 2006. Rather than using a new- document, the parties used a copy of the original lease and simply wrote new terms over some of the old ones (such as the length of the lease, square footage, and amount of rent) and initialed the changes. The amended lease, like the original lease, stated that the tenant was Elegant Interiors, LLC. Shannon and Pannell signed the document at the end a second time, just above their original signatures. Shannon did not indicate her company title, despite a line for it, but her original signature line was preceded by the word “By.”

Despite the reduced cost, the rent payments for June and July of 2006 were not made. Panned sued for breach of the lease agreement on July 21, 2006. He named both the LLC and Shannon individ-uady, seeking to hold her personally liable for the rent through various theories, including that she had no authority to enter into the lease for the LLC and that the corporate veil of the LLC should be pierced because the company was simply the “alter ego” of Shannon.

Shortly after, Shannon sought to reinstate the administratively dissolved LLC, as was then allowed by KRS 278.295.3 On August 11, 2006, the Secretary of State issued a certificate of existence for the LLC that, by its own terms, “cancelled] the certificate of dissolution issued on November 1, 2005.”

Shannon then sought summary judgment on the basis that she could not be held personally liable for the breach of the lease because the tenant on the lease was Elegant Interiors, LLC, which had been reinstated. She argued that because she was a member of the LLC, she was shielded from personal liability by KRS 275.150, the statute granting immunity to LLC members for acts of the LLC.

Panned argued that despite the LLC being'named the tenant in the lease, Shannon personally executed the lease, as evidenced by her signature on the release without any reference to the LLC, and thus she entered into the lease in her individual capacity. He also argued that Shannon could not have acted on behalf of the LLC because there was no such entity in existence at the time.

The circuit court disagreed. It held that the LLC, not Shannon individually, had entered into the lease, noting that the lease specifically described the tenant as “Elegant Interiors, a LLC corporation [sic].” As a result, according to the circuit court, the LLC was “the party assuming the obligations of Tenant.” As to the secondary argument, the court cited KRS 275.295(3)⅛ which stated in part that an LLC’s “reinstatement shad relate back to and take effect as of the effective date of the administrative dissolution, and the limited liability company shad resume carrying on business as if the administrative dissolution had never occurred.” KRS 275.295(3)(c). The court held that since the lease specifically named the LLC and the reinstatement of Elegant Interiors, LLC occurred before entry of judgment, actions taken in the name of the company in entering into the 2006 lease were effective as if the dissolution had not occurred. As a result, Shannon was entitled to immunity from personal liability. The circuit court then awarded Panned damages against Elegant Interiors, LLC under the lease.

The Court of Appeals affirmed unaniT mously, holding that the lease was with the *64LLC and that the administrative dissolution had no effect once the LLC was reinstated. In reaching this conclusion, the court relied in part on one of its own published decisions, Fairbanks Arctic Blind Co. v. Prather & Associates, Inc., 198 S.W.3d 143, 146 (Ky.App.2005), which stated that “reinstatement validates any action taken by a corporation between the time it was administratively dissolved and the date of its reinstatement.”

This Court granted discretionary review.

II. Analysis

This case presents two broad legal questions. First, did Shannon sign the release and lease in her individual capacity, thereby making her personally liable? Second, did the administrative dissolution of the LLC and Shannon’s signing the lease during the period of dissolution, regardless of whether she signed in her company-member or individual capacity, make her personally liable?

A. Shannon did not sign the lease or release in her individual capacity.

Pannell’s initial argument is that regardless of the status of Elegant Interiors, LLC, Shannon signed the release and the second lease in her individual capacity. To support this argument, he notes that the lease states on its cover page that it is “for Ann Shannon,” and that Shannon failed to indicate that her signature was in a representative capacity for the LLC. This, he claims, makes the document ambiguous, and thus subject to clarification through parol evidence. He also argues that the release, which was prepared by Shannon, mentions only Shannon and not the LLC, which would make her personally liable. This Court agrees with the Court of Appeals that Shannon did not sign the March 2006 lease in her personal capacity.

As to the claim that the lease states it is “for Ann Shannon,” it suffices to say that the lease defines the “Tenant” as Elegant Interiors, LLC, and throughout its terms refers to the “Tenant” as the party to the lease. The only reference to the lease agreement being “for Ann Shannon” appears on the cover page of the lease, which also states that the “tenant” is Elegant Interiors, LLC.

The cover page is but “introductory or prefatory” material. It had less substance than even the traditional recitals of a contract, which are “not an essential part of the operative portions of the contract.” Jones v. City of Paducah, 283 Ky. 628, 142 S.W.2d 365, 367 (1940). Like recitals, the statement on the cover page is not an essential part of the operative terms of the lease.

As for the claim that Shannon did not include her title or otherwise indicate her representative capacity along with her signature, it is worth noting that her signature line was preceded by the word “By,” which indicates that the signature is in a representative capacity. See 7 William Meade Fletcher et ah, Fletcher Cyclopedia of the Law of Private Corporations § 3032 (rev.vol.2012) (noting that a representative signature is ideally “preceded by the word ‘For’ or ‘By’ or some equivalent”). And the simple fact is that Shannon did not have to list her title, though clearly the better practice is to include it. “[Fjailure of the officers signing to add the title of their office is not ordinarily fatal to the validity of a corporate contract where the contract on its face is a contract of the corporation and the other parties have notice of the officer’s relation to the corporation.” Id. § 3035; see also Star Supply Co. v. Jones, 665 S.W.2d 194, 198 (Tex.App.1984) (“The signature of a corporate officer on a contract does not render it his personal contract, where in the body of the *65contract, it is purported to be a corporation contract.”).4

There appears to be no Kentucky case stating this rule. The only cases addressing who is bound by the signature of a business entity’s officer or agent are those where the body of the document does not state that the business entity is a party to the agreement and only the signature could so indicate. See, e.g., Simpson v. Heath & Co., 580 S.W.2d 505, 506 (Ky.App.1979) (construing agreement binding “the undersigned” and signed by corporation’s president with “Pres.” after his signature). But that is not the situation before this Court, given that the lease expressly states it binds the LLC.

This Court sees no reason to depart from the rule that if the body of the contract states that the agreement is with a corporation or other entity, then the officer or agent signing the agreement has not signed in her individual capacity and cannot be held personally liable solely because of her signature. This makes sense in light of the cases noting that “[i]t is ... fundamental that an officer of a corporation will not be individually bound when contracting as an agent of that corporation within the scope of his employment.” Potter v. Chaney, 290 S.W.2d 44, 46 (Ky.1956). As long as the third party has notice that the agent is acting on behalf of a principal, “the agent is not liable, generally speaking, for his own authorized acts, or for the subsequent dealings between the third person and the principal.” Id.

Again, as noted above, the lease describes Elegant Interiors, LLC as the party to be bound as the tenant. This identified Elegant Interiors, LLC as the principal and gave Pannell notice that he was dealing with Shannon as an agent of the company.

There is no ambiguity in the lease, at least none based on the cover-page statement or the fact that Shannon did not indicate that her signature was on behalf of the limited liability company. It is thus clear that the lease was a contract of the limited liability company, not Shannon individually, and therefore Shannon cannot be liable as having signed the lease in her personal capacity.

Pannell also claims that the release, by stating that the bound party was “Ann Shannon” without mentioning Elegant Interiors, LLC, made Shannon personally liable or, at the very least, created ambiguity as to the overall agreement when read with the second lease by misleading him. While the release does state that “Ann Shannon ... will only be responsible for payment of the remaining.” square footage, it is equally clear that the release was aimed primarily at giving up some of the rights to occupy commercial space under the original lease, which was with Elegant Interiors, LLC. This is evinced by the use of the word “only,” to suggest that the release reduces an existing obligation. The release clearly related to the first lease in that it allowed Pannell to rent some of the space to a third party, reduced the rent to be paid, and put the burden of paying for any construction costs on Pan-nell.

The last sentence of the terms of the first (and second) lease stated that “[n]o modification to this lease shall be binding unless such modification shall be in writing and signed by the parties hereto.” The parties to the original lease were unques*66tionably Elegant Interiors, LLC and Panned, and the release was entered into because of this no-modifications-except-in-writing provision. By operation of this provision, Shannon could not have executed the release personally and could only do so on behalf of the LLC. The release cannot be read in a vacuum to be an independent agreement that personally obligated Shannon. In fact, the rélease said that a “new lease” would be signed and that “[a]ll other stipulations w[ould] remain the same as in the initial lease.” This would necessarily include the provision that the lease was with Elegant Interiors, LLC.

Ultimately, the release and the second lease must be read in light of the statutory preference for maintaining an LLC member’s limited liability. KRS 275.150(2) states that the immunity provision, KRS 275.150(1), can give way “under a ... written agreement,” in which “a member or manager may agree to be obligated personally for any of the debts, obligations, and liabilities of the limited liability company.” But as this Court has stated, allowing personal liability is “antithetical to the purpose of a limited liability company.” Racing Investment Fund 2000, LLC v. Clay Ward Agency, Inc., 320 S.W.3d 654, 659 (Ky.2010). The business statutes of this Commonwealth disfavor personal liability, and even when a member of the company intends to take on such liability, it “must be stated in unequivocal terms leaving no doubt that the member or members intended to forego a principal advantage of this form of business entity.” Id. The release and second lease do not state in unequivocal terms that Shannon was binding herself personally and foregoing her statutory immunity.

As to the notion that the release and second lease could or should be read together to create ambiguity, it suffices to point out that the second lease included what is known as an integration or merger clause. The very last clause of the lease states that “[t]his writing contains the entire agreement of the parties hereto.”5 At least as to items contained in the terms of the lease — such as the amount of rent and who is a party to the agreement — the lease contains the entire agreement.6 Parol evidence as to the “actual” terms of the lease agreement would not be permissible because “[w]hen the negotiations are completed by the execution of the contract, the transaction, so far as it rests on the contract, is merged in the writing.” Bryant v. Troutman, 287 S.W.2d 918, 920 (Ky.1956). There is no allegation of fraud or mistake here that would justify reforming the agreement. See id.; Morguelan v. Nat. Levy Realty Co., 311 Ky. 845, 847, 226 S.W.2d 20, 21 (1950). Thus, the second lease is the controlling document with re*67gard to who is responsible for paying rent and who is otherwise bound under it.

Pannell also suggests that the second lease’s provision stating that the tenant is Elegant Interiors, LLC was “scrivener’s error” and that the intent of the parties was for Ann Shannon to be listed as the tenant. While scrivener’s error can be grounds for reforming a contract as the, result of mutual mistake, “it is the well-established rule in this state that reformation of an executed contract on the ground of mistake will not be decreed unless the mistake be established by full, clear, and decisive evidence,” and “[t]he ground of relief must appear beyond reasonable controversy.” Nichols v. Nichols, 182 Ky. 18, 205 S.W. 953, 954 (1918); see also Abney v. Nationwide Mut. Ins. Co., 215 S.W.3d 699, 704 (Ky.2006) (“The mutual mistake must be proven beyond a reasonable controversy by clear and convincing evidence.” (quoting Campbellsville Lumber Co. v. Winfrey, 303 S.W.2d 284, 286 (Ky.1957), brackets omitted)). While a mutual mistake as to the identity of one of the parties surely would go to a material term of the agreement, there simply is insufficient proof here to justify finding a scrivener’s error.

Nonetheless, “merely finding that [Shannon] signed ... in a[limited liability company capacity] rather than an individual capacity does not dispose of this appeal.” White v. Winchester Land Development Corp., 584 S.W.2d 56, 60 (Ky.App.1979), overruled on other grounds by Inter-Tel Technologies, Inc. v. Linn Station Properties, LLC, 360 S.W.3d 152 (Ky.2012). Pannell’s other arguments about the administrative dissolution and Shannon’s authority as an agent of the LLC must also be addressed.

B. What was the effect of the administrative dissolution of the limited liability company and subsequent reinstatement ?

Pannell also argues that because Elegant Interiors, LLC had been administratively dissolved ■ at the time the second lease was entered into, any liability must fall-on Shannon personally, regardless of whether she signed the lease in her individual capacity. Shannon of course argues that the reinstatement of the LLC was retroactive, thus giving the company continuous existence and placing liability on the company alone. This actually presents two different questions. First, did the dissolution strip Shannon of her statutory immunity as a member of the LLC and thereby make her personally liable? Second, was Shannon liable as an agent for the LLC during its administrative dissolution, either by reason of being an agent or because she was without authority to enter into the lease?

I. Shannon, as a member of the limited liability company, cannot be held personally liable solely by reason of her member status for actions taken during a period of administrative dissolution because the company was reinstated.

■ This Court concludes that a member of a limited liability company enjoys statutory immunity from liability under KRS . 275,150 for actions, .taken during a period of administrative dissolution so long as the company is reinstated before a final judgment is rendered against the member.

Pannell begins by claiming that the “well-established and ancient rule” in Kentucky is that shareholders and officers are personally liable for debts made in the name of a dissolved corporation. He implies that the same rule should extend to limited liability companies. This, however, was “the rule at common law,” Moore v. Occupational Safety and Health Review *68 Com’n, 591 F.2d 991, 995 (4th Cir.1979), and the common law of business entities has largely been abrogated by the adoption of the various statutes, like the Kentucky Business Corporation Act and the Kentucky Limited Liability Company Act. In fact, “limited liability companies are creatures of statute,’ controlled by Kentucky Revised Statutes (KRS) Chapter 275,” Tuner v. Andrew, 413 S.W.3d 272, 275 (Ky.2013) (quoting Spurlock v. Begley, 308 S.W.3d 657, 659 (Ky.2010)), not primarily by the common law. To the extent that common law doctrines could arguably govern limited liability companies, the Kentucky Limited Liability Company Act “is in derogation of common law,” KRS 275.003(1), and the traditional rule of statutory construction that “require[s] strict construction of statutes which are in derogation of common law shall not apply to its provisions.” Id. Thus, to the extent the statutes conflict with common law, the common law is displaced.

This Court must therefore first look at the controlling statutory law. The obvious place to start, then, is the source of limited liability in the LLC context, KRS 275.150. That statute grants immunity from personal liability to members, managers, employees and other agents of an LLC, stating in relevant part:

Except as provided in subsection (2) of this section or as otherwise specifically set forth in other sections in this chapter, no member, manager, employee, or agent of a limited liability company ... shall be personally hable by reason of being a member, manager, employee, or agent of the limited liability company, under a judgment, decree, or order of a court, agency, or tribunal of any type, or in any other manner, in this or any other state, or on any other basis, for a debt, obligation, or liability of the limited liability company, whether arising in contract, tort, or otherwise.... That a limited liability company has a single member or a single manager is not a basis for setting aside the rule otherwise recited in this subsection.

KRS 275.150(1). Subsection (2) allows liability only if the operating or other written agreement allows a member or manager to agree to become personally liable, which is not the case here, as discussed above.

The question, however, is not whether this immunity exists (obviously, it does), but whether it ceases to apply when the LLC is administratively dissolved and the LLC continues to conduct its business, even though later reinstated. When the events of this case occurred, KRS 275.295 provided that when an LLC is reinstated after administrative dissolution, “the reinstatement shall relate back to and take effect as of the effective date of the administrative dissolution, and the limited liability company shall resume carrying on business as if the administrative dissolution had never occurred.” KRS 275.295(3)(c) (emphasis added). The plain meaning of the relate-back language is that the company is deemed viable on reinstatement from the point of administrative dissolution onward, which necessarily includes the time of suspension between the date of administrative dissolution and reinstatement.

Reinstatement under the statute literally undoes the dissolution. This is why the Secretary of State was required to “cancel” the certificate of dissolution and issue a certificate of existence. See KRS 275.295(3)(a). And that certificate of existence took effect, by statute, retroactively on the date of dissolution.

The Court of Appeals has read the same language that appeared in KRS 255.295, albeit in KRS 271B. 14-220, the statute *69relating to corporations,7 to mean that the “General Assembly ... intended for reinstatement to restore a corporation to the same position it would have occupied had it not been dissolved and that reinstatement validates any action taken by a corporation between the time it was administratively dissolved and the date of its reinstatement.” Fairbanks Arctic Blind Co. v. Prather & Associates, Inc., 198 S.W.3d 143, 146 (Ky.App.2005).

The problem is that a conjunctive “and” follows this relate-back language and leads to the language that the company shall “resume carrying on its business as if the administrative dissolution or revocation had never occurred.” Absent the word “resume,” the meaning of the statute would be unquestionable — if a business entity is reinstated, its entity status is to be deemed seamless, with no loss of identity — just as the Court of Appeals held in Fairbanks.

Pannell, however, argues that we cannot ignore the word “resume” in the statute, claiming that it means something different from “continue” and that it necessarily requires that the entity have quit doing business while administratively dissolved. He also cites KRS 275.300, which states that a dissolved LLC “shall continue its existence but shall not carry on any business except that appropriate to wind up and liquidate its business and affairs.” KRS 275.300(2).

He also cites a 2-1 unpublished opinion by the Court of Appeals, Forleo v. American Products of Kentucky, No. 2005-CA-000196-MR, 2006 WL 2788429 (Ky.App. Sept. 29, 2006), interpreting the same language construed in Fairbanks. Again, while that language was in the corporation statute, it was identical to that in the LLC statute. In Forleo, the court held that a corporation’s shareholders were personally liable for business conducted during a period of administrative dissolution despite the reinstatement statute. In Forleo, judgment was entered against the shareholders finding them personally liable. After entry of the judgment, the shareholders had the corporation reinstated and moved to have the judgment set aside through the retroactive application of the reinstatement KRS 271B.14-220. Rather than applying laches or a similar theory, the Court of Appeals reasoned that the shareholders had acted in contravention of the provision allowing only “winding up” after dissolution, KRS 27113.14-210(3), making the actions non-corporate in nature. The Court reasoned that the choice of the word “resume” in the statute “necessarily implies that the corporation ceased doing business after dissolution” Id. at *2. Therefore, the court reasoned, the acts taken in the interim could not have been corporate acts. Unfortunately, Forleo apparently failed to address Fairbanks, despite being decided later in time.

With Fairbanks and Forleo, though only one was a published and therefore prece-dential opinion, there is an apparent split of opinion in the Court of Appeals. Indeed, another panel of the Court of Appeals has applied Fairbanks, in another unpublished decision, to mean that if “reinstatement of a corporation relates back to the effective date of dissolution and oper*70ates as if dissolution never occurred, it naturally follows that the shareholders and officers of such corporation are not individually liable for actions undertaken on behalf of the corporation during its dissolution.” Harshman Const. & Elec., Inc. v. Witte, 2011-CA-000609-MR, 2012 WL 2471445, at *2 (Ky.App. June 29, 2012).

The statute’s inclusion of “resume” does seem to offer some ambiguity. Admittedly, “resume” is ordinarily understood to require an interruption in activities. See, e.g., Merriam-Webster’s Collegiate Dictionary 999 (10th ed.1997) (defining “resume” to mean “to return to or begin again after interruption” and “to begin again something interrupted”).

But in interpreting statutes, this Court is required to give effect to all the language in a statute if possible. “No single word ... is determinative, but the statute as a whole must be considered.” Cosby v. Commonwealth, 147 S.W.3d 56, 58-59 (Ky.2004) (quoting County of Harlan v. Appalachian Reg’l Healthcare, Inc., 85 S.W.3d 607, 611 (Ky.2002)). Thus, all the language of KRS 275.295 must be considered, and it must be considered in relation to the other statutes in the chapter. The word “resume” must therefore be read in light of the other parts of KRS 275.295(3)(c) that clearly contemplate a seamless existence for the company.

To understand the whole statute, we must look at what happens when the Secretary of State reinstates an administratively dissolved LLC. As noted above, if the requirements of reinstatement are met, then the Secretary of State “shall cancel the certificate of dissolution.” KRS 275.295(3)(b) (emphasis added). “Cancel” means “to terminate a promise, obligation, or right.” Black’s Law Dictionary 218 (8th ed.2004). Thus, the certificate of dissolution is undone — voided—and has no effect.

More importantly, the Secretary of State must also “prepare a certificate of existence stating the effective date of reinstatement.” KRS 275.295(3)(a). This “effective date” is dictated by KRS 275.295(3)(c), which says that the reinstatement shall “take effect as of the effective date of the administrative dissolution.” Thus, the Secretary of State certifies the existence of the corporation as of the date of dissolution, with the net effect that the corporation was never suspended.8 This is consistent with the language in KRS 275.300(2) stating that a limited liability company “shall continue its existence” even while dissolved if it has not wound up its affairs, and even though it is barred from carrying on ordinary business.

So what then is the effect of reinstatement? The company, of course, “resumes” its business. But the reinstatement “relate[s] back to and take[s] effect as of the effective date of the administrative dissolution,” and the company “resumes” its business “as if the administrative dissolution had never occurred.” KRS 275.295(3)(c). This other language cannot be ignored, nor can “resume” be read to trump it. To do so would effectively delete this other language, which anticipates that the company has a seamless existence and functionality. Giving effect to that language, however, does not ignore or elide “resume”; rather, it suggests that “resume,” as used in this *71context, is more akin to “continue,”9 which is an accepted sense of the word. See, e.g., Compact Oxford English Dictionary 763 (2d ed.1991) (noting “resume” can mean “to continue”). And “continue” is often used to describe action without interruption. This reading is the only way to give effect to the entire provision. This means that under the statute, “the existence of the LLC is not interrupted, and it is as if the administrative dissolution never took place.” Thomas E. Rutledge & Lady E. Booth, The Limited Liability Company Act: Understanding Kentucky’s New Organizational Option, 83 Ky. L.J. 1, 38 n. 179 (1995).10

Indeed, the Court of Appeals, in Fairbanks, addressed the argument that a court should “focus solely on the word ‘resume’ found in KRS 271B.14-220(3) and construe the statute to disavow interim corporate activities.” Fairbanks, 198 S.W.3d at 147. That court declined to follow this interpretation, stating:

This would effectively redact the statute to read, “When the reinstatement is effective ... the corporation shall resume carrying on its business[.]” However, as noted above, we may not subtract language from a statute nor may we render any of its language meaningless, if we can avoid doing so.

Id. (alteration and omission in original). Instead, the court gave effect to the language following “resume,” which requires acting “as if the administrative dissolution ... had never occurred” and treating the effective date of reinstatement as the date of the dissolution. Id. at 146.

That this is the proper reading of KRS 275.295 is buttressed by subsequent amendments and enactments of the General Assembly in this area. “Where a former statute is amended, or a doubtful meaning clarified by subsequent legislation ... such amendment or subsequent legislation is strong evidence of legislative intent of the first statute.” Kotila v. Commonwealth, 114 S.W.3d 226, 238 (Ky.2003) (quoting 2B Norman J. Singer, Sutherland Statutory Construction § 49:11, at 120-21 (6th ed.2000)), abrogated on other grounds by Matheney v. Commonwealth, 191 S.W.3d 599 (Ky.2006). This is part of the canon of construction requiring statutes to be read in pari materia. See id. (“If it can be gathered from a subsequent statute in pari materia what meaning the legislature attached to the words of a former statute, they will amount to a legislative declaration of its meaning, and will govern the construction of the first statute.” (quoting California Sch. Township, Starke Cty. v. Kellogg, 109 Ind.App. 117, 33 N.E.2d 363, 366 (1941))).11

*72At least one statute was changed in response to Forleo, even though it was not binding precedent. KRS 271B.14-050, which states what dissolution of a corporation shall not do (e.g., shall not transfer title of corporate property), was amended in 2007 — the next regular session after Forleo — to add a provision stating that dissolution “shall not ... [a]bate or suspend KRS 271B.6-220.” KRS 271B.14-050(2)(i); see 2007 Ky. Acts ch. 137, § 68 (effecting the change). KRS 271B.6-220 is the statute limiting the liability of corporate shareholders, which, under KRS 271B.14 — 050(2) (i), is not abated or suspended by dissolution. This change was “in response to” Forleo. Thomas E. Rutledge, The 2007 Amendments to the Kentucky Business Entity Statutes, 97 Ky. L.J. 229, 243 (2009).

This change alone undermines the claim in Forleo that actions during a period of administrative dissolution can lead to personal liability for a shareholder. The General Assembly, by making this change, has expressly stated that limited liability for shareholders is to continue despite an administrative dissolution.

The limited-liability-company analog to the corporate statute, KRS 275.305, was also changed in 2007 so that it too states that dissolution “shall not ... [a]bate or suspend KRS 275.150(1).” KRS 275.305(3)(i); see 2007 Ky. Acts ch. 137, § 120 (amending the statute). KRS 275.150(1), of course, is the provision giving immunity to a limited liability company’s members, managers, and employees. This amendment of the limited-liability-company statute clarified the intent of the legislature as to the effect of dissolution on the liability of a limited liability company’s members, just as the similar change did for corporate shareholders.

In fact, this matter has been further clarified by the adoption of the Kentucky Business Entity Filing Act, which replaced KRS 275.295 and similar statutes, as described above. That relevant portion of that Act states:

When the reinstatement is effective:

(a) It shall relate back to and take effect as of the effective date of the administrative dissolution;

(b) The entity shall continue carrying on its business as if the administrative *73dissolution or revocation had never occurred; and

(c) The liability of any agent shall be determined as if the administrative dissolution or revocation had never occurred.

KRS 14A.7-030(3). This new statute substitutes “continue” where the old statute stated “resume.”

Pannell argues that these changes are not evidence of what the statute formerly meant but instead show that his reading is correct, especially if the changes were necessary to correct the law in response to Forleo. That argument, however, ignores the in pari materia canon discussed above. This is not a matter of retroactive application of an entirely new statutory provision; rather, it is an application of old language, the meaning of which has been clarified by more recent amendments. The canon is a guide to meaning, not a substitute for it or a means of retroactively applying a statute. We have only used it as a guide here.

There is some concern that this reading of the statute ignores other aspects of the limited-liability laws, namely the command that a dissolved company “shall not carry on any business except that appropriate to wind up and liquidate its business and affairs.” KRS 275.300(2). There is, admittedly, some apparent conflict between this language and the notion that a company’s member or employee could go about non-winding-up business during an administrative dissolution and later enjoy immunity for those actions if the company has been reinstated. Nevertheless, this concern is unconvincing for several reasons.

First, this view would treat “actions after administration dissolution and prior to reinstatement that are beyond those necessary or appropriate to winding-up and liquidation as ultra vires and ... then hold the shareholders ... liable personally on ultra vires obligations.” Rutledge, supra, at 240-41. But this ignores the rule that the only parties with standing to challenge an act as ultra vires are insiders (members or shareholders) and, in some circumstances, the Attorney General, not third parties doing business with the company. See KRS 271B.3-040(2). In fact, with corporations, third parties are statutorily barred from challenging a corporation’s acts as ultra vires. See KRS 271B.3-040(1). While no analogous statute exists for limited liability companies, it stands to reason that third parties also should not be able to challenge an LLC’s act as ultra vires as they have no interest in the dispute. Such a third party would thus have no standing.12 Even if such a party could challenge the act, it could at most nullify the act, not use the claim as a tool to then pierce the veil of limited liability to reach the individual members.

Second, it does not make sense to enforce the winding-up-only limits on an LLC if it is not intended to be wound up and instead is meant to be a going concern. It is logical to view the language “carry on any business except that necessary to wind up and liquidate” as applying to companies that will not be seeking reinstatement. This is a sound principle, because it serves to prevent further acts by a business that does not intend to continue as a business entity. Even then, the Limited Liability Company Act allows that the LLC can be bound by non-winding-up acts under certain circumstances. See KRS 275.305(l)(b).

*74More importantly, the statutes anticipate that some companies will be administratively dissolved and later reinstated. Reinstatement can only occur if a member or agent of the LLC files papers with the Secretary of State. Reinstatement is a statutory process, which does not involve discretion on the part of the Secretary of State; if the applicant meets the statutory requirements, then the Secretary shall cancel the dissolution and issue a certificate of existence. But the filing of such paperwork is not part of winding up, and thus should be forbidden by the winding-up-only language if read strictly. If that were correct, then a company could never file for reinstatement. Thus, it is equally logical to read the winding-up-only limit as applying only to an entity that intends to wind up its affairs.

Additionally, there are some actions that must be taken during the dissolution before reinstatement to preserve the business of the company that plans to continue. It is a sound principle to allow ratification of acts of a company that intends to continue its entity status, so that the company may not avoid statutory and other regulation for the period of time it was under dissolution. This avoids a company purposely using dissolution to avoid legal restrictions on its conduct.

Since limited liability companies do not actually cease to exist during dissolution, it makes sense that the language about “relating back” and “as if the administrative dissolution or revocation had never occurred” is intended to create a seamless functional existence when the company wishes to continue doing business rather than closing up shop. Thus to read excessive meaning into the term “resume” would result in a poor business rule. That one word cannot mean more than the rest of the statutory language put together; it must be read to serve the business purpose intended by the legislation.

Pannell also argues that we should reject Shannon’s immunity claim because the reinstatement statute is silent as to the issue of personal liability. He is correct that the statute is silent, but that silence cuts both ways. Just as the statute does not say that shareholders are still immune, it does not say they lose their immunity. Yet, as discussed above, our statutory and case law strongly favors maintaining limited liability for corporate shareholders and limited-liability-company members. See Racing Investment Fund 2000, LLC v. Clay Ward Agency, Inc., 320 S.W.3d 654, 659 (Ky.2010). Immunizing this constituency from personal liability promotes entrepreneurship, and increases the number of persons willing to engage the risks of entering into business. Additionally, there is no question that “a limited liability company is a legal entity distinct from its members,” KRS 275.010(2); see also Turner v. Andrew, 413 S.W.3d 272, 275 (Ky.2013), and that a member of a limited liability company “shall not be a proper party to a proceeding by or against a limited liability company, solely by reason of being a member of the limited liability company,” KRS 275.155; see also Turner, 413 S.W.3d at 275-76. This is the case “even where there is only one member.” Turner, 413 S.W.3d at 276.

Statutes like KRS 275.150, 275.010, and 275.155 strongly suggest that the seeming gap in the reinstatement statute stemming from its silence on the issue of personal liability is filled by the strong policy in favor of limited liability. That the reinstatement statute does not include a provision expressly placing personal liability on various corporate dramatis personae during a period of dissolution is telling. Indeed, some other states have done exactly that. For example, Florida’s administra*75tive dissolution statute is almost identical to Kentucky’s, except it has a provision stating that a director, officer, or agent of an administratively dissolved corporation is personally liable if he or she purports to act for the corporation during dissolution. See Fla. Stat. Ann. § 607.1421(4).13 Kentucky has no such provision, even though the General Assembly could easily have included one. Instead, the General Assembly only enacted language providing for the continuous existence of the company and retroactive effect of reinstatement, along with an express grant of immunity from liability. This statutory scheme must be given effect as a whole.

To elevate the “resume” language over the rest of KRS 275.295, as happened in Forleo, undermines this strong preference for limited personal liability. It would also allow functional piercing of the corporate veil14 based on what amounts to little more than “a lack of attention to corporate formalities,” Thomas E. Rutledge, The 2007 Amendments to the Kentucky Business Entity Statutes, 97 Ky. L.J. 229, 240 (2009), which is but one in a long list of factors to consider in the veil-piercing context, id.; see also Inter-Tel Technologies, Inc. v. Linn Station Properties, LLC, 360 S.W.3d 152, 163 (Ky.2012). Yet “[i]t is fundamental corporate law that a shareholder is not liable for a debt of the corporation unless extraordinary circumstances exist to impose liability.” Morgan v. O’Neil, 652 S.W.2d 83, 85 (Ky.1983) (emphasis added); see also Schultz v. General Elec. Healthcare Financial Services Inc., 360 S.W.3d 171, 174 (Ky.2012) (“[A] court will disturb the legal fiction of corporate separateness only in the rarest of circumstances.”); White v. Winchester Land Development Corporation, 584 S.W.2d 56, 62 (Ky.App.1979) (“Generally speaking, the corporate veil should only be pierced ‘reluctantly and cautiously’.... ”). Surely a temporary, unintentional dissolution is not an extraordinary circumstance. The same fundamental law limiting veil piercing to extraordinary circumstances must apply to limited liability companies as well.15

*76The strong principle of favoring limited liability informs our understanding of the law applicable to limited liability companies. From it, we can even more readily conclude that the legislature intended the relation-back, effective-date, and as-if-the-administrative-dissolution-had-never-oe-curred language to create a seamless company functionality that protects the members of the LLC from personal liability for actions occurring during a period of administrative dissolution, as long as reinstatement occurs. And, despite the suggestion otherwise in Forleo, this would comport with the general rule in most jurisdictions that business-entity owners (usually shareholders of a corporation but sometimes, as in this case, members of a limited liability company) are not personally liable for actions during a period of dissolution followed by reinstatement. See 16A William Meade Fletcher et al., Fletcher Cyclopedia of the Law of Private Corporations § 8130, at 282-83 (rev.vol.2012) (“[T]he reinstatement of a corporation following dissolution by administrative action of the state ordinarily relates back to the effective date of its dissolution or suspension. Thus, shareholders of a reinstated corporation generally are not liable for actions undertaken during a period of dissolution or suspension.”).16

As noted above, this analysis applies to Shannon’s liability as a member of the LLC. But Pannell’s objection appears to actually be that Shannon is liable as an officer or agent of the corporation who acted without authority. Indeed, this makes sense, as a corporate shareholder or LLC member, while an owner, is not necessarily an agent of the business entity, at least not simply by reason of being an owner.17

Pannell’s reliance on Forleo is telling in this respect, as one of the major criticisms of the analysis in that case (but not necessarily the result) is that “it conflated the role of the shareholder, who lacks the authority to act on behalf of or to bind the corporation, with the roles of a director and an officer which, respectively, has the authority to direct the management of the corporation and the authority to bind the *77corporation to third parties.” Thomas E. Rutledge, The 2007 Amendments to the Kentucky Business Entity Statutes, 97 Ky. L.J. 229, 241 (2009) (footnote citations omitted). (Even Forleo phrased its rule at one point as applying to the liability of corporate officers, and its discussion of a majority rule, discussed more below appears to stem from cases involving the liability of officers and other agents rather than owners. See Forleo, 2006 WL 2788429, at * 1.) That this is really Pan-nell’s claim is further shown by the two cases he cites at the outset of his argument about Shannon’s lack of LLC protection, both of which concern the liability of an agent acting without or beyond her authority. See Steele v. Stanley, 237 Ky. 517, 35 S.W.2d 867 (1931); Oliver v. Wyatt, 418 S.W.2d 403 (Ky.1967).

But the liability of a director, officer, employee or other agent of a limited liability entity during a period of administrative dissolution is technically a separate question from the liability of the owners of the entity. Indeed, as noted above, the cases Pannell relies on, and the majority rule those cases allege exists, are about the liability of directors, officers and other agents, as distinct from the owners (e.g., shareholders and members) of a business entity. Those cases sometimes also place liability on owners, but they do so because those owners were also acting as agents of the companies in question. And not only is it a separate question, it is often a different question, since the immunity from liability for these two groups often stems from different places, with the immunity for owners stemming from statute, see, e.g., KRS 271B.6.220 (limiting liability of corporate shareholders), and the immunity of directors, officers, and other agents, at least for contractual obligations, stemming from the law of agency, see, e.g., Restatement (Third) Of Agency § 6.01 (2006).

That the liability questions are separate is easily shown by a situation where the owner (member) is a different person from the agent, but the act in question was that of the agent. It is further shown by the fact that a business entity can only act through an agent. Clearly, the agent’s personal liability for that act does not dictate whether the owner is personally liable. This case is analytically difficult in part because Shannon is both a member (owner) and manager (agent) of Elegant Interiors, LLC. But a member’s immunity cannot be set aside solely because the “limited liability company has a single member or a single manager.” KRS 275.150(1). Shannon’s potential liability as an agent of Elegant Interiors, LLC is therefore addressed separately below.

2. Shannon is not liable as an agent of the limited liability company.

This is the most difficult of the questions raised by this case, in part because it was not the focus of the litigation, or at least the decision, at the trial court. This question, however, again breaks down into multiple sub-questions. First, can Shannon under the circumstances of this case be personally liable by reason of her merely being an agent? Second, can she be personally liable because she acted as an agent without authority?

a. Shannon is not liable simply because she was an agent of the limited liability company.

The analysis above about liability of members also applies to agents of the limited liability company, to the extent their liability is alleged to exist simply by reason of their being agents, at least under the statute in effect when the events in this case occurred. Unlike the corporation limited-liability statute, the statute granting immunity to members of a limited lia*78bility company also grants the same immunity to a “manager, employee, [and] agent of a limited liability company” to the extent that the claimant alleges the person is “personally liable by reason of being a ... manager, employee, or agent of the limited liability company ... for a debt, obligation, or liability of the limited liability company, whether arising in contract, tort, or otherwise.” KRS 275.150(1). To the extent that any liability is claimed solely because Shannon was a manager or agent of the LLC, the analysis above for why she cannot be liable as a member applies. The reinstatement is retroactive to the date of dissolution, and it is as if the dissolution never occurred, giving the company a seamless existence. The limitation on the agent’s liability simply for being an agent is likewise seamless.

But it is when talking about the liability of agents that Forleo offers one last objection to this reading of the LLC reinstatement statute, namely, that this interpretation will place Kentucky in a minority position with regard to the effect of reinstatement as to the liability of officers and agents. Forleo interpreted language in a corporation reinstatement statute identical to that in the LLC reinstatement statute. In construing the effect of the corporation reinstatement statute, Forleo stated: “A majority of other jurisdictions considering this issue have found that reinstatement of the corporation does not shield the officers from personal liability for debts incurred after dissolution.” Forleo, 2006 WL 2788429, at * 1. In support of this conclusion, it cited Cardem, Inc. v. Marketron International, 322 Ill.App.3d 131, 255 Ill.Dec. 376, 749 N.E.2d 477 (2001), and WorldCom, Inc. v. Sandoval, 182 Misc.2d 1021, 701 N.Y.S.2d 834 (N.Y.Sup.Ct.1999). But neither of these cases stands for precisely the proposition claimed.

In Cardem, the defendant was the shareholder and president of the corporation, and was held liable. That decision was “based ... on a survey of the opinions of other jurisdictions that had addressed this question and agree[ment] with those that imposed personal liability on such an officer.” Cardem, Inc., 255 Ill.Dec. 376, 749 N.E.2d at 480. It did not suggest that it followed a majority rule, only that it agreed with those cases imposing liability. Moreover, Cardem was based largely on an Illinois statute expressly making directors of a corporation liable for debts incurred during dissolution. See id. (“The directors of a corporation that carries on its business after the filing by the Secretary of State of articles of dissolution, otherwise than so far as may be necessary for the winding up thereof, shall be jointly and severally liable to the creditors of such corporation for all debts and liabilities of the corporation incurred in so carrying on its business.” (quoting 805 Ill. Comp. Stat. 5/8.65(a)(3) (West 1998))). Kentucky does not have a statute like this one.

WorldCom at least claimed there is a “majority rule ... that ‘the officer may be held personally liable for debts incurred by the continuation of business of the dissolved corporation, regardless of the corporation’s subsequent reinstatement.’ ” WorldCom, Inc., 701 N.Y.S.2d at 837. But this so-called majority rule appears to be the case only where the statutory scheme speaks specifically to the liability of the directors or other officers, as happened in Cardem. For example, WorldCom cited as one of its examples Moore v. Occupational Safety and Health Review Com’n, 591 F.2d 991, 994 (4th Cir.1979), but. that case involved a Virginia statute specifically stating that “upon the entry by the Commission of an order of reinstatement, the corporate existence' shall be deemed to have continued from the date of dissolution [ejxcept that reinstatement shall have no *79 effect on any question of personal liability of the directors, officers or agents in respect of the period between dissolution and reinstatement.” Id. (quoting Va.Code Ann. § 13.1-92 (1950)) (emphasis added). Again, Kentucky has no such statute.

Interestingly, the Moore court noted that there was a “contrariety of judicial opinion” on the subject, though it ultimately concluded that a majority of states had followed the common-law rule of holding directors liable for interim acts. But it then stated that “the effect of a state reinstatement statute on the interim liability of the directors of a dissolved corporation is determined by the appropriate state’s interpretation or construction of the statute providing for the reinstatement or revival.” Id. at 995 (citation footnote and quotation mark omitted). Thus, a different statute can dictate a different result. And, as noted above, Kentucky has largely replaced its common law of business entities with statutes, and those statutes differ from those in some other states, such as Illinois.

WorldCom is thus distinguishable from this case because it was based on New York statutes that do not provide expressly for retroactive effect of the reinstatement, though they state that reinstatement “shall have the effect of annulling all of the proceedings theretofore taken for the dissolution” and the corporation “shall thereupon have such corporate powers, rights, duties and obligations as it had on the date of the publication of the proclamation [of dissolution], with the same force and effect as if such proclamation had not been made or published.” N.Y. Tax Law § 203-a(7), construed in WorldCom, Inc. 701 N.Y.S.2d at 837. WorldCom also relied heavily on Poritzky v. Wachtel, 176 Misc. 633, 27 N.Y.S.2d 316, 318 (N.Y.Sup.Ct.1941), which focused on the danger that corporate agents could use reinstatement to fraudulently shift personal debts to a corporation.

But in this light, it is not even clear that WorldCom or Poritzky correctly state New York law. First, both cases are decisions by trial courts deciding summary judgment motions, not appellate decisions. And as another, more recent New York trial court has noted, “[sjeductive though it may be, the Poritzky rationale is fallacious.” Department 56, Inc. v. Bloom, 186 Misc.2d 901, 720 N.Y.S.2d 920, 922 (N.Y.Sup.Ct.2001). That court went on to describe how there are no incentives to engage in the type of behavior bemoaned in WorldCom and Poritzky, and that there were in fact several disincentives. Id. at 923. For that reason, Department 56 declined to read New York law to create personal liability, holding that “the state itself imposes no personal liability upon offending corporate officers or directors.” Id.

Second, as one federal court has stated, WorldCom and Poritzky ignored “the literal language of the statute” in question. Nigro v. Dwyer, 438 F.Supp.2d 229, 235 (S.D.N.Y.2006). At best, based on Nigro’s review of the relevant case law, there appears to be “a fraud exception to the literal language of the [New York] Tax Law.” Id. at 236. But there is no allegation of fraud here. (Pannell’s suggestion that he was misled by the release’s use only of Ann Shannon’s name does not rise to the level of fraud, especially given that the lease clearly stated that the LLC was the tenant.)

The simple fact is that Kentucky’s corporation law and other business entity laws differ from those in other states. Additionally, many of the decisions establishing or proclaiming the “majority rule” are older decisions, depend on statutes different from Kentucky’s, and may not reflect the current statutory law in those *80jurisdictions. In fact, according to Fairbanks, “[t]he majority rule among [states with reinstatement statutes that are silent regarding a dissolved corporation’s interim acts] is that reinstatement validates a dissolved corporation interim acts.” Fairbanks, 198 S.W.3d at 144 (emphasis added). As to Pannell’s argument that Fairbanks was not about personal liability to a third party, and is thus distinguishable, other authorities clarify that this “majority rule” applies to such liability:

In most jurisdictions, the reinstatement of a corporation following dissolution by administrative action of the state relates back to the effective date of dissolution, and directors or officers are not personally liable for actions taken during the period of dissolution or suspension. Such matters become the exclusive liability of the corporation.

16A William Meade Fletcher et al., Fletcher Cyclopedia of the Law of Private Corporations § 8117, at 250 (rev.vol.2012).18

The existence of a majority rule can only be persuasive if the rule is based on statutes like those in Kentucky. We cannot say that our statutes expressly state who is liable for a company’s debts while under dissolution as is the case in some states. See, e.g., Frederic G. Krapf & Son, Inc. v. Gorson, 243 A.2d 713, 715 (Del.1968) (interpreting statute “providing] that upon reinstatement of a charter all contracts and other matters done and performed by the corporate officers during the time the charter was inoperative shall be validated, and be the exclusive liability of the corporation”). But they also do not expressly extend personal liability to officers and agents of a business entity when they act during a period of dissolution.

At best, the dissolution and reinstatement statutes are silent as to the question of personal liability. Yet we are charged with determining the effect of the reinstatement statute, which as noted above expressly makes the reinstatement retroactive, in the context of all the other statutes, such as those creating and favoring limited liability. The retroactivity of the reinstatement statute, when read with the provision making the company exist even after dissolution and the statutes creating immunity for agents, makes an agent immune if personal liability is alleged solely because the agent is an agent.19

b. Shannon cannot be held personally liable as an agent who acted without or beyond her authority because her authority never lapsed.

That said, the thrust of Pannell’s argument is really that Shannon acted on her own behalf, not for the limited liability company, and without authority to do so. Part of this claim — that Shannon signed the lease not in her representative capacity, but in her personal capacity — has been addressed above. Whether Shannon actu*81ally had authority to enter into the lease when the company was administratively dissolved is a close question, but ultimately this Court concludes that she did have such authority because of the retroactive effect of the reinstatement statute.20

Again, this is a separate question from whether Shannon can be liable solely by reason of being an agent. The immunity provided by KRS 275.150 extends only to liability by reason of her being an agent. By alleging that Shannon acted without authority, Pannell is not claiming she is hable solely because of her status as an agent, but because she had no authority to act as an agent.

Business entities, as legal fictions, can only act through their agents, and the law of agency dictates when an agent or a principal is bound by a transaction and whether the agent is therefore personally liable.21 While various provisions of the Limited Liability Company Act address how the law of agency operates with respect to LLCs, to the extent the act is not inconsistent with the common law of agency, the latter still applies.

And it is the universal law of agency that when an agent acts with authority in a transaction with a third party, and the third party is aware of the agency, the transaction is between the principal and the third party. See Restatement (Third) Of Agency § 6.01 (2006). In such circumstances, the agent is not liable. Id. The agent of a business entity (or any agent, for that matter) can be personally liable only when he or she purports to be an agent but actually acts without authority. When that happens, responsibility for the transaction falls back to the agent and does not bind the principal. Thus, when acting in the .capacity of an agent for the LLC, Shannon could only be personally liable if she acted without authority. Otherwise, the contract in question was between the principal (the LLC) and the third party (Pannell), and Shannon had no personal liability for the agreement.

Pannell, of course, argues that Shannon lacked the authority to act on behalf of the LLC because there was no LLC in existence at the time the release and second lease were entered into. Pannell also ar*82gues that the effect-of-dissolution statute, KRS 275.300, limits a dissolved LLC to winding up its business and prohibits “any other business,” KRS 275.300(2), which in turn bars an agent from doing such other business.

This line of reasoning is one argument for why Forleo reached the correct result,22 since the defendants in that case, in addition to being shareholders, were also officers and therefore agents of the corporation. After noting that changes to the Kentucky Business Corporation Act would undermine Forleo going forward, one critic, Thomas Rutledge, has argued that Forleo was nevertheless correct because officers and agents of a corporation conducting business during a period of dissolution act without authority, either because the corporation “lacked the capacity to appoint an agent to engage in activities other than for that limited scope [winding up],” or because “to the extent that the agents sought to bind the principal on a transaction upon which the principal could not at law be bound, those same agents will have exceeded the scope of the delegated authority and may as well have violated their warranty of authority.” Thomas E. Rutledge, The 2007 Amendments to the Kentucky Business Entity Statutes, 97 Ky. L.J. 229, 243 n. 95 (2009). This argument, however, depends on the false assumption that a corporation or LLC ceases to exist during a period of dissolution. See id. (“Unless the third party agrees otherwise, a person who makes a contract with a third party purportedly as an agent on behalf of a principal becomes a party to the contract if the purported agent knows or has reason to know that the purported principal does not exist or lacks capacity to be a party to a contract.” (quoting Restatement (Third) of Agency § 6.04 (2006))).

Indeed, that this approach depends on the non-existence of the business entity is shown by the Restatement’s claim that “[t]he classic instance of this situation arises when a person enters into a contract purportedly on behalf of an entity that has not yet been formed, such as a business or a not-for-profit corporation or a limited-liability company.” Restatement (Third) of Agency § 6.04 cmt. c (2006). Obviously, that is not the case here because Shannon’s company had been organized.

Of course, “[s]imilar questions arise when a person purports to take action on behalf of an entity ... when the entity has been dissolved.” Id. In such instances, “[t]he organizational statute applicable to the entity may specify the circumstances under which such action will result in individual liability to third parties.” Id. For example, the Restatement offers an illustration in which a business entity is dissolved and, under the applicable statutes, “the effect of the dissolution ... is to terminate [the entity’s] existence.” Id. *83This would create individual liability absent law providing otherwise. Id. And Pannell argues that the LLC did not exist in this case because of its dissolution.

But under Kentucky law, a “dissolved limited liability company shall continue its existence.” KRS 275.300(2). So Shannon’s authority did not cease to exist for lack of a principal because Elegant Interiors, LLC continued to exist as a matter of statutory law.

Pannell suggests that KRS 275.300 creates another limit on Shannon’s authority as an agent because the statute forbids the LLC and any erstwhile agent from doing any acts other than those necessary for winding up. By extension, this would mean that by command of the legislature, Shannon had no authority to engage in continuing business while the LLC was dissolved. This, of course, cannot be literally true because seeking reinstatement, which is clearly allowed, is not part of winding up.

More importantly, the retroactive effect of the reinstatement, which as noted above creates a seamless existence and functionality for the LLC, means there was never a failure of Shannon’s authority. She was both a member and an agent of the LLC, and the reinstatement requires us to treat the LLC as though it existed the entire time. If the company never ceased to exist, and its full “corporate” powers are retroactive to the dissolution date, so too is the authority of its agent. Thus, the limits in KRS 275.300 had no applicability, since the LLC was, in fact, reinstated and had a continuous existence.23 Because the agent’s acts bind the company, they are acts of the company, and not the agent. And, as noted above, the agent cannot be liable for acts of the company. Shannon, therefore, cannot be liable as an agent, as her authority never lapsed.

In a sense, the reinstatement was a kind of statutory ratification of Shannon’s acts on behalf of the company. Ratification “supplies original authority to do the act.” Kindred Nursing Centers Ltd. Partnership v. Leffew, 398 S.W.3d 463, 467-68 (Ky.App.2013) (quoting Capurso v. Johnson, 248 S.W.2d 908, 910 (Ky.1952)); see also Restatement (Third) of Agency § 4.02(1) (2006) (ratification “retroactively creates the effects of actual authority”). *84And ratification “relates back” to the time the transaction was entered into. Leffew, 398 S.W.3d at 468. Again, the LLC statutes anticipate that the LLC can ratify an agent’s acts during a period of dissolution, thereby making the acts those of the LLC. Specifically, KRS 275.305(3) states that “[a]n act of a member or manager which is not binding on the limited liability company pursuant to subsection (1) of this section [which makes a member’s non-winding-up actions binding in certain circumstances] shall be binding if it is otherwise authorized by the limited liability company.”

Reinstatement, however, is superior to traditional ratification. Ordinarily, ratification occurs either through “manifesting assent” or “conduct that justifies a reasonable assumption that the person so consents.” Restatement (Third) Of Agency § 4.01(2) (2006). And “whether conduct is sufficient to indicate consent” to ratification “is a question of fact,” id. § 4.01 cmt. d, which would require a jury finding. But as discussed above that the company never ceased to exist is a result of statute — a matter of law — and the effect of reinstatement is that the company’s continued existence is as though there was never dissolution. If there was never dissolution, then there was never a lapse in Shannon’s authority that would require traditional ratification.

Pannell complains in his brief that that the reinstatement occurred only after he filed suit and suggests that our reading of the statute has an inequitable effect. But it is not entirely clear how this reading is unfair to Pannell, except as viewed after the fact when it is clear that the LLC has no assets. But what if the circumstances were reversed, and the LLC still had assets but Shannon did not? Under Pan-nell’s proffered reading of the statutory scheme, he would have to settle for suing Shannon because the acts were hers and not the LLC’s.

The equities should be viewed from before the fact, at the time of the transaction, not after the fact once litigation is anticipated or begun. If Pannell had no notice of the dissolution and entered into the lease specifically with the LLC, then he cannot claim he is harmed or loses some bargain if the LLC is later reinstated and its agent’s action are legally imputed to it. Pannell will have gotten all that he expected at the time of the transaction, including any risk and any benefit. It is only after the fact, after seeing what has happened with the LLC and seeing the risk manifest into reality, that he appears to be harmed.

The simple fact is that reinstatement is between the LLC and the state. Indeed, the primary purpose of requiring business entities to file annual reports and to pay a filing fee is “the raising of revenue for the State.” Fairbanks Arctic Blind Co. v. Prather & Associates, Inc., 198 S.W.3d 143, 144 (Ky.App.2005) (quoting J.B. Wolfe, Inc. v. Salkind, 3 N.J. 312, 70 A.2d 72, 76 (1949)). Indeed, the filing fees were once called a “franchise tax.” Any inequity would actually be in permitting Pannell to use the temporary faltering of the relationship between the LLC and the state to his advantage when he has no interest in that relationship. Cf. id. at 144-45 He cannot be allowed to take advantage of the LLC’s failure to file its report and pay what amounts to a tax to bypass the LLC and hold its owners or agents liable, at least not once the failures have been remedied. Cf id.

III. Conclusion

Shannon did not sign the second lease in her personal capacity, and thus liability cannot be assigned directly to her, bypassing the limited liability company in this case. Additionally, that the limited liabili*85ty company was dissolved when the transactions in this case occurred cannot make Shannon personally liable solely by reason of her having been a member or agent of the company, because the reinstatement of the company was retroactive to the time of dissolution, thus giving the company (and any resulting immunity) a seamless existence. Finally, reinstatement resolves any question about whether Shannon had authority to act as an agent for the company during the period of dissolution because the reinstatement is effective to the date of dissolution, which means that, legally speaking, there was never a lapse in the company’s existence and thus never a lapse in Shannon’s authority. For these reasons, this Court concludes that the trial court properly granted summary judgment in favor of Shannon, albeit for different reasons, and thus the Court of Appeals’ decision affirming it was correct. The judgment of the Court of Appeals is thus affirmed.

All sitting. All concur.

Connolly, J.

The appellant, George W. Woodward III, was married to the appellee Nancy K. Andersen. As part of a divorce settlement, Andersen gave Woodward 245 shares of a corporation and retained 255 shares. Woodward filed suit alleging that before the divorce, Andersen took excess funds from the corporation, and that after the divorce, Andersen mismanaged the corporation and oppressed the shareholders. Woodward sought an accounting, a return of money to the corporation, and dissolution of the corporation. The district court granted partial summary judgment in Andersen’s favor for events occurring before the divorce. After a trial, the court denied Woodward relief on his other claims. Woodward appeals. We affirm in part, and in part reverse and remand for further proceedings.

*982I. BACKGROUND

Woodward and Andersen were married in 1980. In 1986, Andersen incorporated WE and NW, Inc., for the purpose of acquiring and developing a parcel of land along the Platte River for use as a private campground. Since that time, Andersen has served as president and director of the corporation. Initially, the corporation issued 500 shares of stock to G.W. Egermayer, Jr., and 500 shares to Andersen. The property was conveyed to the corporation in 1988. The campground was named “Woods Landing” and operated by selling memberships as part of a nationwide chain of campgrounds known as Coast-to-Coast.

In 1988, Egermayer redeemed his 500 shares in the corporation. This left Andersen as the sole shareholder in the corporation. Woodward did not own any shares in the corporation, but testified that he had an interest in the corporation due to his marriage to Andersen and has contended that Andersen held shares in trust for him. Both parties testified that they took active roles in the management and development of the campground.

Woodward testified that he never received a salary from the corporation and that when he wanted to be paid, he asked Andersen for money. In addition, the couple used revenue from the corporation to pay a majority of their bills and to purchase items. Woodward testified that “millions” were taken out of the corporation, stating that an average of $30,000 to $60,000 was taken out per month and that up to $300,000 might be taken out in a month in order to buy things such as a farmhouse, jewelry, or a Jaguar convertible. Andersen testified that she believed less than $20,000 per month was taken out and that there were probably instances where over $200,000 was taken out, but not over $250,000.

1. Prior Divorce Proceedings and Property Settlement Agreement

Andersen filed for divorce in June 1992. A temporary restraining order was issued precluding any transfers from the corporation outside of the ordinary course of business. Woodward then began to claim that Andersen was wrongfully withdrawing money from the corporation. At a deposition taken in November, Woodward stated that he was investigating *983amounts Andersen had received from the corporation and indicated that there were payments made outside of the ordinary course of business. In his deposition, Woodward also stated that he was concerned about where money from the corporation was going and that he wanted an accounting. The record contains evidence indicating that money withdrawn by Andersen in 1992 was used to finance purchases for Woodward and to pay to him $30,000 per month under a temporary support order in the divorce proceedings.

The record contains letters exchanged between Woodward’s and Andersen’s attorneys during the divorce proceedings. These letters indicate that there was considerable disagreement over the amount of information that was provided through discovery regarding the corporation. The record shows, however, that in response to a motion to compel, Andersen made the financial records of the corporation available for review and inspection by Woodward. A letter from Woodward’s attorney dated February 1, 1993, states that he hired an accountant to perform a review of all corporate records at the campground office. The record indicates that Andersen did not allow such an audit to be performed. Instead, the record contains a letter dated March 8, 1993, stating that such a request was too broad and stating that a document request should be provided. A letter dated March 11, 1993, indicates that a settlement was then reached between the parties.

On March 29, 1993, a shareholder agreement was executed which was incorporated into the divorce decree. Under the decree, Andersen transferred 245 shares of her 500 shares to Woodward. The decree states that “[Woodward] acknowledges that [Andersen] is not indebted to W.E. & N.W., Inc. nor does W.E. & N.W., Inc. have any claims against [Andersen].” The agreement indemnifies both Woodward and Andersen for all liabilities asserted against them as past or present officers, directors, or employees of the corporation. The agreement provides that to the extent not indemnified by the corporation, the parties agreed to bear in equal shares any liabilities that arose by virtue of any distribution, compensation payment, cash transfer, or other property transfer from the corporation to any person at any time or any liabilities by virtue of Andersen’s or Woodward’s actions or admissions as a shareholder, officer, or director of the corporation. The *984parties also agreed to indemnify each other against liability transpiring after entry of the decree. The agreement also has provisions for indemnification between the parties. The record does not contain evidence of a resolution or provision allowing the corporation to indemnify Andersen for attorney fees.

The agreement states that it was designed in part to provide for past and future liabilities and to place certain restrictions on Andersen’s control of the corporation. Woodward contends that he and Andersen agreed that he would be made an officer of the corporation. The agreement, however, does not include such a provision. After the divorce, Woodward was made an officer of the corporation, but was later removed.

2. Trial

As noted, the trial court granted summary judgment against Woodward’s claims occurring before the divorce. At trial, on the claims after the divorce concerning the dissolution of the corporation and the accounting action, Woodward attempted to provide evidence of an oral agreement between himself and Andersen providing that he would be made an officer and director of the corporation after March 1993. Andersen’s attorney objected on the basis that the parol evidence rule barred testimony of any agreements that were not ultimately included in the shareholder agreement. The trial court did not allow the testimony on the basis that Woodward did not plead that he was wrongfully induced to sign the shareholder agreement. Woodward then made a motion to amend his petition, which the district court denied. The articles of incorporation dealing with officers and directors state that when the shares of the corporation are owned by either one or two stockholders, the number of directors may be less than three but not less than the number of shareholders.

Andersen presented evidence that after the divorce, Woodward encouraged campground members to withhold their dues and he broke into the campground office and took some documents. Woodward denies these allegations and contends that an anonymous camper called him and told him that missing documents were on the clubhouse steps. Woodward states that he then picked up the documents and gave them to his attorney.

*985The record reflects a litany of charges and countercharges between the parties. Woodward testified that Andersen was not holding annual shareholders’ meetings. Andersen testified that one meeting was held but that it “didn’t work,” that she and Woodward could not agree, and that they could not be in the same room together. At trial, Woodward testified that he believed the campground was being poorly run. Andersen disagrees.

In 1996, Woodward hired a certified fraud examiner to examine the books of the corporation. The examiner concluded that Andersen took $423,400 from the corporation in 1992, mostly through telephone transactions. The record contains a short affidavit from the examiner which does not provide any detailed information regarding the examiner’s experience in conducting fraud examinations. The examiner did not testify at trial.

In December 1996, Woodward filed suit individually and on behalf of the shareholders alleging that Andersen received excessive compensation, withdrawals, and benefits from the corporation before the divorce. Woodward alleged that he was unable to discover the extent and nature of the excessive payments until November and December 1996. He also alleged that after the divorce, Andersen acted in an oppressive and fraudulent manner with respect to Woodward and the corporation in breach of her fiduciary duties to both. Woodward alleged that he was improperly ousted as an officer and director of the corporation, that Andersen allowed her mother and a sibling to run the corporation, and that he was denied access to records. Woodward further alleged that Andersen received excessive payments from the corporation and that the corporation’s books show a loan made to Woodward and a dividend resolution that never occurred. Finally, under a section labeled “Dissolution,” Woodward alleged that Andersen had mismanaged the corporation, failed to keep Woodward informed of business decisions, and was in violation of the shareholder agreement by receiving a salary that was ordered by the Internal Revenue Service. Woodward sought an accounting, money judgment on behalf of the corporation, removal of the loan and the dividend resolution from the books, attorney fees, and dissolution of the corporation. In the alternative, Woodward alleges that Andersen should *986be removed as officer and director or that Woodward should be reinstated as an officer or director.

The district court granted Andersen’s motion for partial summary judgment for claims arising before the divorce decree, finding that all matters in dispute occurring before the decree had been settled in the divorce action. At the hearing on the motion for summary judgment, Woodward sought a continuance on the grounds that a motion to compel remained outstanding. The outstanding motion to compel does not appear in the record. The district court did not allow a continuance.

A trial was later held on the remaining claims. The district court determined that Andersen’s actions did not diminish the value of the corporation, that Andersen had provided Woodward with all the information she was required to provide, and that none of her actions rose to the level of a breach of the shareholder agreement. The district court then concluded that Woodward had failed to meet his burden of proof on all claims and dismissed Woodward’s operative petition with prejudice. Woodward appeals.

II. ASSIGNMENTS OF ERROR

Woodward assigns, rephrased, that the district court erred in (1) entering partial summary judgment on his claims for actions occurring before March 29, 1993; (2) dismissing his operative petition with prejudice; (3) overruling his motion for a new trial; (4) failing to grant his motion for a continuance; (5) failing to allow him to amend his petition; and (6) failing to award attorney fees. Woodward also assigns that the district court erred “in its evidentiary rulings at trial.”

III. STANDARD OF REVIEW

A derivative action which seeks an accounting and the return of money is an equitable action. Evans v. Engelhardt, 246 Neb. 323, 518 N.W.2d 648 (1994). See Anderson v. Clemens Mobile Homes, 214 Neb. 283, 333 N.W.2d 900 (1983). An action seeking corporate dissolution is also an equitable action. See, Ammon v. Cushman Motor Works, 128 Neb. 357, 258 N.W. 649 (1935); Miller v. M. E. Smith Building Co., 118 Neb. 5, 223 N.W. 277 (1929). See, generally, Anderson v. Clemens Mobile Homes, supra.

*987In an appeal of an equitable action, an appellate court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court, provided that where credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Hall v. Progress Pig, Inc., 259 Neb. 407, 610 N.W.2d 420 (2000); Anderson v. Cumpston, 258 Neb. 891, 606 N.W.2d 817 (2000).

Summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Morrison Enters. v. Aetna Cas. & Surety Co., 260 Neb. 634, 619 N.W.2d 432 (2000).

The applicability of the doctrines of collateral estoppel and res judicata is a question of law. In re Estate of Wagner, 246 Neb. 625, 522 N.W.2d 159 (1994). On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. Riggs v. Riggs, ante p. 344, 622 N.W.2d 861 (2001); Jones v. Paulson, ante p. 327, 622 N.W.2d 857 (2001).

IV. ANALYSIS

1. Collateral Estoppel

Woodward argues that the district court erred in determining that claims based on actions taken by Andersen before March 29, 1993, were barred by res judicata or collateral estoppel. Woodward argues that he did not know of withdrawals made by Andersen until after November or December 1996 and that he was unable to raise the issue of improper withdrawals at the time of the divorce because he was not a shareholder.

The doctrine of res judicata provides that a final judgment on the merits is conclusive upon the parties in any later litigation involving the same cause of action. In re Estate of Wagner, supra. Under collateral estoppel, when an issue of ultimate fact has been determined by a final judgment, that issue cannot again be litigated between the same parties in a future *988lawsuit. Id. There are four conditions that must exist for the doctrine of collateral estoppel to apply: (1) The identical issue was decided in a prior action, (2) there was a judgment on the merits which was final, (3) the party against whom the rule is applied was a party or in privity with a party to the prior action, and (4) there was an opportunity to fully and fairly litigate the issue in the prior action. Id.: Farm Credit Bank v. Stute, 248 Neb, 573, 537 N.W.2d 496 (1995). We analyze this case under the doctrine of collateral estoppel.

Woodward argues that he was unable to raise issues regarding withdrawals Andersen made from the corporation before the divorce. The corporation, however, was marital property subject to distribution. In order to equitably distribute the property, a necessary determination involved the value of the corporation. Any claim that Woodward or the corporation had against Andersen at the time of the divorce would affect the valuation of the corporation, bringing directly into issue whether Andersen improperly withdrew money from the corporation. Woodward and Andersen entered into a settlement agreement under which the property was distributed and the parties agreed that Andersen was not indebted to the corporation and that the corporation did not have any claims against Andersen. This agreement was made a part of the divorce decree that was ultimately approved by the court, creating a final judgment on the merits. By logical implication, this judgment included a determination that there were no existing claims by the corporation against Andersen and decided any issues Woodward had regarding the valuation of the corporation. See Hofsommer v. Hofsommer Excavating, Inc., 488 N.W.2d 380 (N.D. 1992). See, generally, Eggland v. Eggland, 240 Neb. 393, 482 N.W.2d 245 (1992).

Woodward argues that he lacked the opportunity to fully and fairly litigate issues regarding withdrawals Andersen made from the corporation because Andersen hid withdrawals from him. He claims that he relied on a statement by Andersen that money which was taken out of the corporation in the form of a bonus was deposited back into the corporation. In support of his argument, Woodward relies on Larkin v. Ethicon, Inc., 251 Neb. 169, 556 N.W.2d 44 (1996).

*989In Larkin, we reversed a summary judgment when a plaintiff was provided with incorrect information during discovery. Without the cooperation of the defendant, the plaintiff in Larkin had no means by which to discover the information. In this case, however, the record shows that Woodward expressed concerns about withdrawals Andersen made from the corporation and that he brought numerous discovery motions. Woodward then sought to hire an accountant to thoroughly examine the books, something Andersen resisted. But instead of making a motion to compel or attempting to pursue additional discovery into transactions made by Andersen, Woodward chose to enter into a settlement agreement. In the agreement, he stipulated that the corporation had no claims against Andersen. Therefore, Woodward had the opportunity to investigate the issue further and either go forward with litigation or structure the settlement accordingly. Unlike Larkin, where a court entered summary judgment against the plaintiff’s wishes, Woodward freely chose to discontinue investigating his concerns and enter into a settlement agreement. Further, Woodward did not later seek to set aside the decree based on an allegation of fraud. See Grant Fritzsche Enterprises v. Fritzsche, 107 Ohio App. 3d 23, 667 N.E.2d 1004 (1995).

We determine that Woodward was collaterally estopped from relitigating issues concerning withdrawals Andersen made from the corporation before March 29, 1993. These issues were conclusively decided as part of the divorce action. Accordingly, the district court was correct in sustaining Andersen’s motion for partial summary judgment.

2. Dissolution and Accounting

Woodward next argues that the district court erred in failing to dissolve the corporation. Woodward argues that after March 29, 1993, Andersen breached her fiduciary duties and engaged in oppressive conduct. In particular, Woodward alleges that Andersen mismanaged the corporation, failed to hold shareholders’ meetings, failed to retain him as an officer of the corporation, and wrongfully withdrew funds from the corporation in order to pay attorney fees. Woodward argues that the corporation is deadlocked and must be dissolved.

*990The district court concluded that Andersen had the authority and discretion to operate the corporation without consulting Woodward, that she had done nothing to diminish the value of the corporation, and that she had done nothing that rose to the level of violating the shareholder agreement. The district court found Andersen’s assertions of unreasonable conduct on the part of Woodward to be “quite credible” and were corroborated by Woodward’s vague responses at trial. The court then concluded that Woodward had failed to meet his burden of proof on all claims.

(a) Burden of Proof

The district court assumed that Woodward bore the entire burden of proof. An officer or director of a corporation, however, occupies a fiduciary relation toward the corporation and its stockholders, and is treated by the courts as a trustee. Evans v. Engelhardt, 246 Neb. 323, 518 N.W.2d 648 (1994). Although the burden is ordinarily upon the party seeking an accounting to produce evidence to sustain the accounting, when another person is in control of the books and has managed the business, that other person is in the position of a trustee and must make a proper accounting. Anderson v. Clemens Mobile Homes, 214 Neb. 283, 333 N.W.2d 900 (1983). The burden of proof is upon a party holding a confidential or fiduciary relation to establish the fairness, adequacy, and equity of a transaction with the party with whom he or she holds such relation. Rettinger v. Pierpont, 145 Neb. 161, 15 N.W.2d 393 (1944).

In this case, once a fiduciary relationship between Woodward and Andersen was established and evidence was presented that certain transactions existed that allegedly breached a fiduciary duty, the burden shifted to Andersen to prove the fairness of those transactions. See, Coduti v. Hellwig, 127 Ill. App. 3d 279, 469 N.E.2d 220, 82 Ill. Dec. 686 (1984), overruled on other grounds, Schirmer v. Bear, 174 Ill. 2d 63, 672 N.E.2d 1171, 220 Ill. Dec. 159 (1996). In a claim for dissolution of a corporation, however, the burden of proof remains on the party seeking the dissolution. Id.; Churchman v. Kehr, 836 S.W.2d 473 (Mo. App. 1992). Sec Hockenberger v. Curry, 191 Neb. 404, 215 N.W.2d 627 (1974). Woodward had the burden to prove that the corporation should be dissolved.

*991(b) Dissolution

The Business Corporation Act provides:

[T]he court may dissolve a corporation:

(2)(a) In a proceeding by a shareholder if it is established that:

(i) The directors are deadlocked in the management of the corporate affairs, the shareholders are unable to break the deadlock, and irreparable injury to the corporation is threatened or being suffered or the business and affairs of the corporation can no longer be conducted to the advantage of the shareholders generally because of the deadlock;

(ii) The directors or those in control of the corporation have acted, are acting, or will act in a manner that is illegal, oppressive, or fraudulent;

(iii) The shareholders are deadlocked in voting power and have failed, for a period that includes at least two consecutive annual meeting dates, to elect successors to directors whose terms have expired; or

(iv) The corporate assets are being misapplied or wasted. Neb. Rev. Stat. § 21-20,162 (Cum. Supp. 2000). The meaning of the term “deadlocked” within the context of § 21-20,162 is a corporation which, because of decision or indecision of the stockholders, cannot perform its corporate powers. Kollbaum v. K & K Chevrolet, Inc., 196 Neb. 555, 244 N.W.2d 173 (1976).

Although the Business Corporation Act has given to the courts the power to relieve minority shareholders from oppressive acts of the majority, the remedy of dissolution and liquidation is so drastic that it must be invoked with extreme caution. Hockenberger v. Curry, supra. We have stated that the ends of justice would not be served by too broad an application of the statute, for that would merely eliminate one evil by the substitution of a greater one — oppression of the majority by the minority. Id.

We agree with the district court that Woodward has failed to meet his burden of proof. Woodward is correct that the articles of incorporation state that the corporation must have at least two directors when there are two shareholders. However, nothing in the articles of incorporation dictates that a shareholder must be the additional officer or director. Nothing in the shareholder *992agreement or the articles of incorporation entitles Woodward to act as an officer or director of the corporation. Woodward is also correct that Andersen has failed to properly hold shareholders’ meetings. We determine, however, that Andersen’s failure to appoint a second director and to hold shareholders’ meetings are insufficient reasons to dissolve the corporation. In this case, Woodward has failed to show how Andersen’s actions affect the corporation in a manner that would allow dissolution under § 21-20,162. Further, the Business Corporation Act provides other remedies for Woodward’s complaints. See, e.g., Neb. Rev. Stat. § 21-2053 (Reissue 1997).

Although Woodward may disagree with certain management decisions made by Andersen, it is Andersen who is the majority stockholder, officer, and director of the corporation. Absent a showing that the factors enumerated in § 21-20,162 apply, a minority shareholder’s disagreement with management’s decisions or the shareholder’s dislike of another shareholder does not create a corporate deadlock. Woodward has failed to show that the corporation cannot perform its corporate powers. We also agree with the district court that the record shows that the corporation has made a profit and that Woodward has failed to show how corporate assets are being misapplied or wasted. We conclude that the district court was correct in determining that Woodward failed to meet his burden of proof and in refusing to dissolve the corporation.

(c) Accounting

In alleging a breach of fiduciary duty and seeking an accounting, Woodward argues that Andersen improperly withdrew approximately $2,000 from the corporation to pay attorney fees before trial of this case. Any withdrawals made after trial are not the subject of this action. Andersen argues that she could use corporate funds to pay attorney fees under the shareholder agreement. The shareholder agreement, however, only provides for indemnification between Andersen and Woodward. The agreement is silent regarding indemnification by the corporation to Andersen. Therefore, the agreement does not provide for indemnification by the corporation to Andersen.

*993Accordingly, Woodward is entitled to an accounting of indemnification of expenses Andersen received before trial. If Andersen cannot show that she was entitled to an advance for expenses, she must reimburse the corporation for the improperly received indemnification.

We have reviewed Woodward’s remaining assignments of error and determine they have no merit.

V. CONCLUSION

We determine that the district court was correct in sustaining Andersen’s motion for partial summary judgment on the basis of collateral estoppel. We also determine that the district court was correct in finding that Woodward failed to meet his burden of proof when seeking a dissolution of the corporation and in his other claims. We further conclude that the district court did not err in overruling Woodward’s motions for a continuance and directed verdict and did not err in the evidentiary rulings that Woodward assigns as error. We do determine, however, that Woodward is entitled to an accounting of money Andersen withdrew from the corporation to pay attorney fees before trial. Accordingly, we reverse, and remand for further proceedings on that issue only.

Affirmed in part, and in part reversed and REMANDED FOR FURTHER PROCEEDINGS.

McCormack, J., not participating.

OPINION

STRINE, Vice Chancellor.

I. Introduction

In the derivative portion of this action, stockholder plaintiffs (the “Stockholder Plaintiffs”) seek to recover funds to make American International Group, Inc. whole for harm it suffered when it was revealed that the corporation’s financial statements were materially misleading and overstated the value of the corporation by billions of dollars. According to the Stockholder Plaintiffs, the false financial statements did not come about inadvertently, but were the consequence of intentional misconduct by AIG’s top managers.

Indeed, it does not overstate things to say that the Stockholder Plaintiffs allege that AIG embarked on widespread illegal misconduct at the direction and under the control of the Chairman of its board of directors and Chief Executive Officer, defendant Maurice R. Greenberg. According to the Stockholder Plaintiffs, Greenberg and a core “Inner Circle” directly oversaw all aspects of AIG’s business and kept a close watch on their subordinates. Green-berg’s Inner Circle was comprised of a small group of long-time AIG executives who Greenberg rewarded with very lucrative compensation packages. These executives oversaw almost all of AIG, including the parts that are implicated in the misconduct alleged by the Stockholder Plaintiffs. Among this Inner Circle were three defendants who feature prominently in this case: Howard I. Smith, who was an AIG director and its Chief Financial Officer; Edward E. Matthews, who served on AIG’s board for almost thirty years and was Vice Chairman of Investments and Financial Services; and Thomas R. Tizzio, who was a director, Senior Vice Chairman of General Insurance, and a member of AIG’s reinsurance security committee (together with Smith and Matthews, the “Inner Circle Defendants”).

Most of the wrongdoing alleged in the First Amended Combined Complaint (the “Complaint”) involved action by AIG insid*775ers to misstate AIG’s financial performance in order to deceive investors into believing that AIG was more prosperous and secure than it really was. The single largest act of deception alleged involved a fraudulent $500 million reinsurance transaction in which various AIG insiders staged an elaborate artificial transaction with defendant Gen Re Corporation. Although AIG portrayed the transaction as providing Gen Re with reinsurance, in reality the transaction had no substance and was simply staged to make AIG’s balance sheet look better. In other instances, AIG insiders allegedly used secret offshore subsidiaries to mask AIG losses, blatantly misstated accounts with no basis for their adjustments, failed to correct well-documented accounting problems in an AIG subsidiary, and hid AIG’s involvement in controversial insurance policies that involved betting on when elderly people would die.

But, the complaint alleges, Greenberg and his Inner Circle were not content with merely hiding AIG’s financial performance. Various insiders at AIG also caused the corporation to engage in schemes to avoid taxes by falsely claiming that workers’ compensation policies were other types of insurance and by engaging in “covered calls” to recognize investment gains without paying capital gains taxes.

Similarly, various insiders allegedly involved AIG in conspiracies with other companies to rig markets. In both the municipal derivative and general insurance markets, AIG supposedly conspired with competitors and others to subvert supposedly competitive auctions by secretly pre-selecting the winners.

Finally, the Stockholder Plaintiffs allege that Greenberg and other defendants exploited their own familiarity with improper financial machinations by causing AIG to sell its “expertise” in balance sheet manipulation. AIG sold insurance policies that did not involve the actual transfer of insurable risk to other companies with the improper purpose of helping those companies report better financial results. AIG also created special purpose entities for other companies without observing the required accounting rules for the similarly improper purpose of helping those companies hide impaired assets that they did not want on their balance sheets.

Eventually, all of these schemes were uncovered. As a result, AIG suffered serious harm. The corporation was forced to restate years of financial statements, eventually reducing stockholder equity by $8.5 billion. And, AIG still faces litigation and regulatory proceedings on a number of fronts, an on-going process that has already required the corporation to pay over $1.6 billion in fines and other costs necessary to resolve proceedings against it.

When this case was first brought by the Stockholder Plaintiffs in 2004, it only involved some of the bid-rigging claims. As AIG and regulatory authorities disclosed more evidence of fraud and improper accounting practices at the company, the Stockholder Plaintiffs expanded their complaint to address the full scope of the revealed wrongdoing. In response, AIG’s board of directors appointed a special litigation committee (“SLC”) to investigate the claims. This litigation was stayed for eighteen months while the investigation was conducted. In the end, the SLC chose to take a fragmented approach. It decided to pursue claims against Greenberg and Smith on its own, seek the dismissal of certain other defendants, and take no position on the claims against the remaining defendants.

As a result, the pleading at issue on this motion is unusual. The First Amended Combined Complaint (the “Complaint”) brings two sets of claims. Consistent with *776the SLC’s decision, AIG has joined the case as a direct plaintiff, and in two counts of the Complaint asserts breach of fiduciary duty and indemnification claims against Greenberg and Smith. In the same Complaint, the Stockholder Plaintiffs have brought derivative claims against two other defendants they regard as part of Greenberg’s Inner Circle: Matthews and Tizzio. They also bring a claim against Greenberg arising out of a bid-rigging scheme in the municipal derivatives market. The Stockholder Plaintiffs have also sued several other former AIG officers and employees who they contend were compli-citous in the wrongdoing at AIG and filed claims against entities that allegedly participated in the various frauds with AIG as well as twenty-two employees of those companies. Finally, the Stockholder Plaintiffs bring derivative claims for malpractice and breach of contract against PricewaterhouseCooper LLP (“PWC”), who served as AIG’s auditor at all relevant times, and certified as accurate and GAAP-compliant AIG financial statements that later had to be revised downward by several billions of dollars.

Virtually every defendant has moved for dismissal. This decision addresses motions brought by defendants who were directors, officers, or employees of AIG, and by PWC.1

First, I address Greenberg, Matthews, and Tizzio’s attempt to convince me that the Complaint does not state a viable claim against them. I grant that motion in very small part, but otherwise deny it. The small part is that the Stockholder Plaintiffs, despite the exculpatory provision authorized by § 102(b)(7) in AIG’s certificate of incorporation, bring a breach of the duty of care claim seeking monetary damages from Tizzio, a former director protected by that provision. The due care claim cannot be a source of recovery here and must be dismissed.

The remainder of the claims against these defendants stand, however. These defendants quibble about whether the Complaint sufficiently pleads facts supportive of a non-exculpated claim of breach of fiduciary duty. But, a fair reading of the Complaint using the plaintiff-friendly lens required by Rule 12(b)(6) refutes that argument. The Complaint contains well-pled allegations of pervasive, diverse, and substantial financial fraud involving managers at the highest levels of AIG. As to Greenberg, the Complaint pleads repeated instances of his direct involvement in a variety of allegedly improper transactions. As to Tizzio, the Complaint is less detailed, but also pleads specific instances of his involvement in wrongdoing. Matthews has more of a point to his dismissal motion, as the Complaint has sparse references to his role in the alleged misconduct. But, the problem for Matthews and Tizzio is fundamental.

At this stage, I must draw all reasonable inferences in favor of the plaintiffs. Each of the Inner Circle Defendants — including Matthews, who was one of Greenberg’s top *777managers, had been awarded an enormous amount of stock by Greenberg, had supervisory authority over AIG’s investments, and served on AIG’s Finance and Executive Committees — was directly responsible for business units whose conduct was critical to the pervasive misconduct alleged in the Complaint. That misconduct was not isolated; it permeated AIG’s way of doing business. The Stockholder Plaintiffs plead that the Inner Circle Defendants had personal knowledge of the wrongdoing, and the pled facts support that particular assertion. It may be that billions and billions of dollars in financial shenanigans involving diverse schemes that crossed business units at AIG occurred without the knowledge, approval, or support of Green-berg and his Inner Circle. A cosmic wrong may have been done to the Inner Circle Defendants, whose members were victimized by a large number of lower level employees who, despite good faith efforts at oversight and the use of internal controls by the Inner Circle Defendants, were able to avoid detection and engage in widespread financial fraud. For example, it may have been that Greenberg’s long-time subordinate Matthews, who was in charge of AIG’s investments, was kept in the dark by Greenberg or lower level employees when AIG invested hundreds of millions in off-shore subsidiaries and then entered into substanceless reinsurance contracts with them, or when AIG decided to invest in buying up elderly people’s existing insurance policies while telling the public it was issuing new insurance policies. At this stage, however, a plausible inference arises that Greenberg and the Inner Circle Defendants themselves inspired and oversaw a business strategy premised in substantial part on the use of improper accounting and other techniques designed to make AIG appear more prosperous than it in fact was.

Furthermore, each of these defendants received compensation packages involving large amounts of equity, the value of which was dependent on AIG maintaining a high stock-trading price. And, each of these defendants, the Complaints suggests, was a financial sharpie, deeply sophisticated and experienced in intricate transactions. That is, of course, why Greenberg entrusted them with positions of confidence and authority at the very top of a corporation legendary for its generation of profits through complex insurance and financial endeavors. At this stage, a fair inference arises that Greenberg and the Inner Circle Defendants employed their expertise in illicit ways that ultimately resulted in billions of dollars of harm to AIG.

Moreover, the pleading of direct involvement by Greenberg and the Inner Circle Defendants in many of the specific alleged wrongs gives rise to a fair inference that the defendants knew that AIG’s internal controls and compliance efforts were inadequate. That is, given that the Complaint pleads that Greenberg and the Inner Circle Defendants were able to implement several fraudulent schemes involving billions of dollars without detection by AIG’s auditor, Audit Committee, or in-house lawyers, a fair inference arises that these defendants were conscious that the corporation had a deficient compliance structure. Indeed, a related inference arises that these defendants knew of improper conduct and failed to bring it to the attention of the full AIG board. For these and other reasons, I reject the motions of Greenberg, Matthews, and Tizzio to dismiss the breach of duty of loyalty claims brought against them. Likewise, because the Complaint pleads facts supportive of the inference that Matthews and Tizzio sold AIG stock during time periods when they were aware that the corporation’s books and records were materially mis*778leading, I refuse to dismiss the fiduciary duty count based on those stock sales.

Relatedly, I reject an argument by Tizzio that the Stockholder Plaintiffs have not adequately alleged that he was part of the conspiracy to create the fake reinsurance transaction with Gen Re or that this transaction was not really fraudulent. Tizzio sat on the management committee that oversaw reinsurance transactions throughout AIG and oversaw the company that wrote the fake reinsurance policy. The Stockholder Plaintiffs have pled that Tizzio was part of a core group that was engaging in massive fraudulent conduct and that he chose not to do anything about various fraudulent transactions despite knowing their true nature. Combined with the fact that Tizzio oversaw the division engaged in the fraud, this supports an inference that Tizzio was involved in, or at the very least aware of, the improper Gen Re transaction, and did nothing to prevent it or to bring it to the attention of AIG’s independent directors. I also reject Tizzio’s argument that, because insiders at AIG knew that these transactions were phony, AIG was not defrauded as a matter of law because it is assumed to know everything that its agents do. Under Delaware law, where insiders have a disabling conflict that gives them a reason to hide information from the corporation’s independent directors and stockholders, their knowledge is not imputed to the corporation for purposes of a suit seeking to hold the insiders who committed wrongdoing accountable for the harm they caused to the corporation. Accordingly, the fact that the Stockholder Plaintiffs have pled that the Gen Re transaction was ginned up by Greenberg and top-level AIG directors other than Tizzio does not immunize Tizzio from fraud liability for his role in that transaction.

Next, I address the argument made by defendants Greenberg, Matthews, Tizzio, and PWC that the claims against them should be dismissed because the Stockholder Plaintiffs did not make a demand on AIG’s board of directors. Demand is not required where it would be futile. Here, the AIG board vested authority in the SLC to determine how AIG should address this litigation, including whether AIG should seek to prosecute the claims asserted by the Stockholder Plaintiffs itself or seek to have those claims dismissed. The SLC engaged in an investigation and made a decision to have AIG prosecute the claims against Greenberg and Smith and to have the claims against certain other defendants dismissed, but otherwise to take no position, positive or negative, regarding the remaining claims raised by the Stockholder Plaintiffs. Because the duly-empowered SLC made a conscious decision to remain neutral in this action, any further demand on the AIG board would be futile and is thus excused. As a result, to the extent that these defendants wish to have the Complaint dismissed for failure to state a claim, I find that they must prevail under the plaintiff-friendly Rule 12(b)(6) standard rather than the particularized pleading standard of Rule 2B.1.

Afterwards, I address the motions of the defendants who were not directors of AIG, but held positions as officers or employees. Their alleged misconduct predates the amendment to 10 Del. C. § 8114 expanding that provision’s reach to certain officers of Delaware corporations. Therefore, the Stockholder Plaintiffs must rely on Delaware’s long-arm statute as a basis for this court to exercise personal jurisdiction over these defendants. To satisfy the long-arm statute, the Stockholder Plaintiffs argue that Delaware has personal jurisdiction over them under the conspiracy theory of jurisdiction because these defendants were engaged in a conspiracy to harm AIG, a *779Delaware corporation. The problem for the Stockholder Plaintiffs is that there must be a statutory method for serving process on a defendant for a Delaware court to have personal jurisdiction over her. This means that for the conspiracy theory of jurisdiction to aid the Stockholder Plaintiffs, it must not only satisfy constitutional due process requirements, it must provide a basis for serving the defendants under the long-arm statute. The only basis for such jurisdiction that the Stockholder Plaintiffs have fairly argued is 10 Del. C. § 3104(c)(3), which creates jurisdiction over a person who, in person or through an agent, “[cjauses tortious injury in the State by an act or omission in this state.”2 The conspiracy theory of jurisdiction has often been used in concert with § 3104(c)(3) to impute one conspirator’s tortious act in Delaware to the other co-conspirators. But, despite filing a 211-page Complaint, the Stockholder Plaintiffs fail to plead that any wrongful act occurred in Delaware. Given that failure, § 3104(c)(3) does not provide a basis for personal jurisdiction over the defendants who were not directors of AIG and the claims against them must be dismissed without prejudice.

Finally, I address PWC’s motion to dismiss. Although PWC’s duties as auditor affect AIG’s internal affairs, the internal affairs doctrine is not directly invoked by the claims against PWC, and thus I must use the Restatement’s “most significant relationship” test to determine what law applies to the claims against PWC. Because AIG is headquartered in New York and PWC’s allegedly wrongful conduct occurred in New York, the Restatement considers New York to have the most significant relationship to the claims against PWC, and thus I must apply New York law. This choice of law question is critical because, unlike what may be the case under Delaware law, New York law immunizes an auditor’s breach of its professional duty of care where it fails to discover a fraud committed by a corporation’s top insiders. As a result, despite the fact that the Stockholder Plaintiffs have pled facts suggesting that PWC did not live up to its responsibilities, New York law immunizes PWC from suit, and thus I must dismiss the claims against it.

II. Factual Background

In accordance with the standards applicable on a motion to dismiss, I have assumed the truth of the plaintiffs’ allegations and have granted the plaintiffs the benefit of all reasonable inferences.3 The facts I outline have been drawn entirely from the operative Complaint and the various AIG securities filings which the Stockholder Plaintiffs have explicitly incorporated into that Complaint.4

The Complaint is lengthy and alleges that Greenberg, his Inner Circle, and other AIG employees engaged in a diverse array of financial and transactional wrongdoing. Most of the misconduct was aimed at concealing AIG’s actual financial information from the market, so that investors would believe that AIG was in better financial health than it actually was. But, *780the Stockholder Plaintiffs also claim that the defendants caused AIG to engage in schemes to avoid paying taxes, to rig markets so that AIG did not have to compete with other firms, and to market illegal products designed to help other companies conceal their financial performance. All of these schemes were eventually uncovered, and, as a result of the plots, AIG suffered substantial harm and continues to be the subject of several pending legal actions. The Stockholder Plaintiffs allege that, as a consequence of the wrongful conduct challenged in the Complaint, AIG has had to restate its shareholder equity by $3.5 billion, pay another $1.6 billion to settle investigations by both the State of New York and the federal government, and spend millions of dollars on investigations to uncover and defend cases relating to proceedings involving the various machinations the Stockholder Plaintiffs describe. They also allege a range of continuing investigations and lawsuits that may uncover more fraud or expose AIG to additional liability for the schemes that have been uncovered.

A. Parties

As explained below, this action has two separate groups of plaintiffs: (1) AIG suing on its own behalf; and (2) the Stockholder Plaintiffs suing derivatively on AIG’s behalf.5

Plaintiff and nominal defendant AIG is a Delaware corporation with its primary executive office in New York. Through its subsidiaries, AIG engages in insurance, insurance-related, and finance businesses in over 130 countries.6

The Stockholder Plaintiffs have sued a large number of defendants. I describe here only the defendants relevant to this motion. For the sake of clarity, it is useful to group the defendants. The first group, which I have termed the Inner Circle Defendants, consists of defendant Greenberg and those of the defendants who were AIG directors and that the plaintiffs allege were within Greenberg’s Inner Circle of trusted, top-level subordinates. The second group consists of those defendants who were officers or employees of AIG but did not serve on AIG’s board of directors, who I will refer to as the “Employee Defendants.” The final relevant defendant is PWC, which is a Delaware limited liability partnership of certified public accountants and related professionals. At all times pertinent to this litigation, PWC was AIG’s auditor and principal accounting firm.7

Before discussing the specific illegal schemes alleged in the Complaint, I will discuss more about the Inner Circle Defendants, because the positions, incentives, and scope of influence those Defendants had are important to the resolution of their motions to dismiss the claims against them.

While the alleged fraud was going on at AIG, the company was overseen by Maurice Greenberg, who had been AIG’s CEO since 1968 and the Chairman of AIG’s board of directors since 1969. But, according to the Stockholder Plaintiffs, Greenberg’s domination of AIG exceeded even what one would expect of a long-time CEO. Not only did Greenberg run the company, he allegedly knew everything *781that went on within it.8 As a former AIG executive put it, “[i]f a twig snaps in a Chinese forest, Maurice Greenberg hears it.”9 His domination even extended to the board that was supposed to be overseeing Greenberg and the rest of AIG’s management. AIG’s directors were allegedly so in Greenberg’s thrall that they avoided asking questions around him lest they seem ignorant.10 In fact, when an AIG director proposed that AIG investigate a conflict of interest of Greenberg’s, Greenberg allegedly ended the discussion by saying “[t]hat would be stupid!” 11

Greenberg’s total control of the massive enterprise that is AIG was allegedly effectuated, at least in part, through Starr International Company, Inc. (“SICO”) and C.V. Starr & Co., Inc. (“Starr”), two vehicles which owned huge amount of AIG stock and which Greenberg used to reward those who were loyal to him.12 By January 31, 2004, these two vehicles held 13.7% of AIG’s common stock, holdings which, at the time, were worth billions.13 Those who Greenberg deemed worthy were granted the right to buy into Starr or SICO. In this way, Greenberg could, at his sole discretion, award tens of million of dollars to members of his Inner Circle who stayed in his good graces. And if the chosen few did not remain loyal, and Greenberg removed the insider from AIG, the insider would allegedly forfeit the entirety of his holdings, at least in Starr.14 Matthews, Tizzio, and Smith emerge from the Complaint as particularly lucky beneficiaries of Greenberg’s fealty-generating largesse.

By January 2005, Tizzio, who had been an AIG officer since 1982, held 5.4% of Starr and 8.3% of SICO.15 The Stockholder Plaintiffs estimate that his holdings in Starr alone had a liquidation value of $32 million.16 In addition to sitting on AIG’s board, where he was on the Executive Committee, Tizzio served as Senior Vice Chairman of General Insurance17 and was on AIG’s internal reinsurance security committee. These key positions gave Tiz-zio responsibility for some of the most critical parts of AIG. The General Insurance division, which is what I must assume, at this stage, that Tizzio oversaw as Senior Vice Chairman of General Insurance, reported over $5 billion in operating income in 2003.18 The General Insurance division also contained AIG’s Domestic Brokerage Group, as well as AIG subsidiaries National Union Fire Insurance of Pittsburgh, Pennsylvania (“National Union) and American Home Assurance Company (“American Home”) all of which, as we shall see, engaged in major transac*782tions infected with deceit.19 When Tizzio left AIG’s board of directors in 2003 he was made an “Honorary Director.”

Matthews, who in addition to being an AIG officer, had been on AIG’s board of directors since 1973, retired in 2003 holding 9.8% of Starr and 8.3% of SICO.20 Although the Stockholder Plaintiffs do not estimate the value of these holdings, it is a reasonable inference that, based on the value assessed to Tizzio’s somewhat smaller stakes, these had a liquidation value of over $50 million. Matthews was also on the Finance and Executive Committees of the AIG board. And before retiring in 2002, Matthews was Vice Chairman of Investments and Financial Services, a position that put him in charge of AIG Financial Products Corporation, another subsidiary that was allegedly involved in substantial wrongdoing.

Similarly, Smith, who is only being sued directly, was a director from 1997 to 2005 and served on the Finance and Executive Committees. He also held various sensitive positions within AIG, including Chief Administrative Officer, Chief Financial Officer, and Executive Vice President. And, like Matthews and Tizzio, he was handsomely rewarded for his fealty. He eventually owned 8.3% of SICO and 8.6% of Starr.21

Having discussed the positions of power Greenberg and the Inner Circle Defendants occupied at AIG, I now summarize the various wrongful schemes alleged in the Complaint. Although the Stockholder Plaintiffs provide detailed allegations about the illegal transactions and schemes that proliferated at AIG, they are not able to tie all of the defendants directly with specific facts to all of the schemes. In some instances, the Stockholder Plaintiffs plead that Greenberg, Matthews, Tizzio, or Smith received memoranda describing the transactions, or even inspired the transactions. But in others, the Complaint only outlines the misconduct that occurred, or pleads the involvement of other members of Greenberg’s Inner Circle. But, as discussed above, this is a motion to dismiss, and thus I must grant the Stockholder Plaintiffs the benefit of all reasonable inferences. Even the transactions that cannot be tied to specific defendants support the inference that, given the pervasiveness of the fraud, Greenberg and his Inner Circle knew that AIG was engaging in illegal conduct.

B. The Schemes

The Complaint pleads that the members of Greenberg’s Inner Circle caused AIG to engage in a diverse array of complex transactions that were, at bottom, deceptive. For simplicity’s sake, one can distill these down to four essential types of alleged fraudulent schemes involving the following conduct:

• transactions designed to hide AIG’s true financial situation;

• illegal schemes to avoid taxes;

• selling illegal financial products to other companies; and

• schemes to rig markets.

1. Transactions Designed To Hide AIG’s True Financial Situation

a. Alleged Fraudulent Transaction With Gen Re To Overstate Loss Reserves

The largest single fraudulent transaction alleged in the Complaint was motivated by a desire to improve AIG’s loss reserves *783and make the company appear to be in sounder shape than it was. That $500 million transaction was entered into with defendant Gen Re Corporation, a subsidiary of Berkshire Hathaway Inc. As described by the Stockholder Plaintiffs, this transaction was a phony reinsurance contract. National Union, a subsidiary in defendant Tizzio’s sphere of oversight,22 purported to sell reinsurance to Gen Re but immediately paid all of the premiums it collected right back to Gen Re as a payout on the policy (the “Gen Re Transaction”). The result was that AIG was able to report increases in its loss reserves and claim the amount of premiums it received as income when no actual transfer of insurable risk had occurred. The only “real” part of the Gen Re Transaction was a $10 million fee that AIG allegedly paid Gen Re to go along with the scheme.

The Stockholder Plaintiffs allege that this scheme arose in response to stock market analyst commentary about AIG in late 2000. On October 26, 2000, AIG issued its earnings report for the third quarter of 2000 which stated that general insurance reserves had fallen by $59 million.23 This drew what the Stockholder Plaintiffs characterize as “sharp criticism,” and allegedly led to a 6% decline in the value of AIG stock.24 Concerned about this criticism, Greenberg conceived of and negotiated a transaction with defendant Gen Re that would make it appear as if AIG had increased its loss reserves25

As completed, Gen Re paid National Union $500 million to assume the risk from certain insurance policies that Gen Re had on its books. But, allegedly both Gen Re and key personnel at AIG, including Greenberg and Tizzio, understood that this would be a reinsurance transaction in name only.26 Greenberg and Tizzio also allegedly knew that AIG would, upon transacting with Gen Re, almost immediately have to pay out the same $500 million face value on the policy. The defendants involved in this transaction also arranged for AIG to pay Gen Re a $10 million fee for being the counterparty to this transaction, the only purpose of which was financial manipulation. The Stockholder Plaintiffs also allege that various defendants at AIG and Gen Re worked together to create a false paper trail that would make it look like the transaction was a genuine sale of reinsurance by AIG to Gen Re.27

These efforts at concealment eventually failed, and AIG was forced to admit in its 2004 10-K that the Gen Re Transaction had been improperly accounted for on the company’s books.28 To correct the material misstatement, AIG had to reduce its premiums and net loss reserves by $250 million and increase its reported liabilities by $245 million.29 On May 26, 2005 the New York Attorney General filed a complaint against Greenberg and Smith relating to, among other accounting issues, the Gen Re Transaction. Regulatory proceedings of various kinds ensued against AIG and Gen Re officers and employees. The U.S. Government eventually secured a guilty verdict against AIG’s Vice President *784for Reinsurance, defendant Christian M. Milton, as well as various Gen Re employees. A variety of proceedings against Greenberg and Smith related to Gen Re remain pending.30

b. Various AIG Officers Encourage AIG Employees To Misstate Reserves

The Stockholder Plaintiffs also allege that in 2000 and 2001, AIG’s senior management took a very direct route to making the company look better by simply altering AIG’s consolidated financial statements to reflect the image AIG wanted to portray (the “Topside Adjustments”). The Topside Adjustments occurred at the highest levels of AIG. Smith, AIG’s CFO, would meet with other top-level AIG executives. At these meetings, Smith allegedly told the other participants what he would like a number in AIG’s financials to look like.31 The internal financial staff would then monkey with the books to meet Smith’s desired targets. For example, capital gains would be reclassified as net income or income would be “smoothed.”32 In this way, the Topside Adjustments overstated AIG’s loss reserves, increasing their reported value by $32 million in the fourth quarter of 2000, and by $70 million in the first quarter of 2001.33

As with the Gen Re Transaction, AIG was not able to overstate its financial statements indefinitely. According to the Stockholder Plaintiffs, “AIG has since acknowledged that it was unable to find any documentation or supporting analysis for the [Topside Adjustments].”34 In late 2004, AIG reduced consolidated shareholders’ equity by $206 million to reverse the misstatements caused by the Topside Adjustments.35

c. Improperly Disclosed Transactions With Off-Balance Sheet Affiliates Of AIG

The Stockholder Plaintiffs also allege that the defendants caused AIG to engage in transactions that it represented to the investing public were arms-length transactions between AIG and entities that AIG did not own or control, when, in fact, AIG controlled these contractual counterparties (the “Secret Subsidiary Transactions”). Specifically, the Stockholder Plaintiffs allege that AIG secretly controlled Capeo Reinsurance Company, Union Excess Reinsurance Company, Ltd., Coral Reinsurance Co., Astral Reinsurance Co., and Richmond Insurance Company Ltd., but did not disclose its control and ownership stake in these companies. Using the fact that the outside world believed the four companies to be third-parties, Smith and other officers, with Greenberg and Tizzio’s knowledge, caused AIG to enter into transactions with these entities on a false basis as a method of transforming operating losses that AIG had suffered in its insurance business into investment losses, which the market would perceive as less value-threatening.36 But, in reality these were AIG affiliates, and had AIG’s interest in these companies been properly reported, the results of these affiliates would have been consolidated into AIG’s finan-cials. In other words, if properly accounted for, these were transactions between AIG and itself that involved no transfer of *785real economic risk and no accounting effect.

By way of example, the Stockholder Plaintiffs offer AIG’s $210 million “insurance” transaction with Capeo in 2000 and 2001. According to the Stockholder Plaintiffs, that transaction was inspired by a $210 million loss from insurance operations at National Union, an AIG subsidiary in Tizzio’s division, that AIG’s top management was not keen to report.37 To avoid reporting it, Greenberg, Smith, and Tizzio developed a complicated fake transaction with Capeo, a Barbados-domiciled reinsurance company that was originally a subsidiary of Western General Insurance Ltd.38

The first step in this scheme was to take control of Capeo secretly. This had to be done indirectly because, under New York law, if AIG owned more than 10% of Capco’s voting stock, it would be presumed to control Capeo.39 To accomplish this indirect acquisition of control, Western General emptied Capeo of most of its business.40 AIG then invested $170 million in non-voting stock and had its Swiss bank find three non-U.S. investors who AIG loaned $19 million to buy voting stock in Capeo. But, these were loans in name only. When AIG made the loans it knew that they were unlikely to ever be paid back.41 In this way AIG made it look like Capeo was an independent company, when AIG was really Capco’s only investor.

Then, having assumed control of Capeo without disclosing that fact to anyone, AIG transferred insurance operation losses to Capeo. AIG did this through the same type of sham reinsurance transaction that AIG used with Gen Re. But, this time AIG did not have to compensate its partner, because in reality it was dealing with itself. Capeo reinsured $210 million dollars of National Union auto warranty losses for only $20 million in premiums. From the beginning, AIG never expected Capeo to make money on the transaction. In fact, the entire point was for Capeo to recognize the loss instead of National Union. This loss did carry through to AIG as an investment loss on its holdings in Capeo, but the Stockholder Plaintiffs allege that an investment loss was “far less noticeable,” and thus less important to AIG, than the insurance business operating loss AIG would have otherwise recognized.42

In 1999 and 2000, AIG also allegedly used two fraudulent transactions with Union Excess to conceal losses in AIG’s Brazilian underwriting business. The subjects of these transactions were sizable losses at Unibanco Seuros, AIG’s Brazilian life insurance business.43 These negative results should have shown up in the financial results of American Reinsurance, AIG’s Bermuda subsidiary. Rather than admit to those losses, the Stockholder Plaintiffs allege that Greenberg and Smith caused AIG to engage in two sham reinsurance contracts. In the first such transaction, Union Excess, an off-balance sheet AIG entity, reinsured American Reinsurance’s known losses in Nan Shan Life Insurance Company, Ltd., an AIG company located in Taiwan whose results were also reflected in American Reinsurance’s balance sheet.

*786American Reinsurance then entered into a swap transaction with Union Excess. This transferred the losses back to American Reinsurance, but as investment losses.44 In the first of these transactions, undertaken in early 1999, AIG allegedly transformed $34 million in insurance underwriting losses into $38 million in investment losses and $1 million in premiums.45 In a second such transaction in 2000, AIG allegedly eliminated the need to recognize $30 million in insurance underwriting losses, instead recognizing a $28 million investment loss and paying $2 million as a premium.46

The Stockholder Plaintiffs also allege that while the Inner Circle was in charge of AIG, the company entered into similar transactions with Coral Re, Richmond, and Astral. Although the individual details differ, the essence was the same: AIG engaged in reinsurance transactions with companies it secretly controlled in order to mask its financial performance.47 In restatements relating to Richmond and Coral Re alone, AIG had to reduce shareholders’ equity by over $1 billion 48

The Stockholder Plaintiffs allege not only that Greenberg and Smith inspired these transactions, but that Tizzio helped implement Capeo and received reports on its status.49

d. AIG Allegedly Masked Its Involvement In The Sale Of Controversial Insurance Products

Greenberg and Smith also allegedly caused AIG to engage in wrongdoing related to controversial “life settlement” investments. Life settlement transactions involve buying life insurance policies that have already been made. After acquiring the policy, the purchaser keeps making premium payments and is entitled to receive the death benefits upon the original policy holder’s death. Most commonly, these investments are made by buying policies from sick or elderly people in a bet that the original holder will die soon enough that the purchase will pay off.50 Although not illegal, these policies are controversial because they involve a ghoulish bet that sick and elderly people will die sooner rather than later. Greenberg allegedly wanted to make profits from this type of transaction while concealing from the public that AIG was engaging in it. And, AIG’s managers did not like what flowed from proper accounting treatment of the transactions, which was the possibility that AIG would have to carry the investments at a loss on its books.51

To get around both problems, Green-berg, Smith, Tizzio, and other high-level AIG executives designed a complex scheme whereby Coventry Settlement Trust (“Coventry”), a separate entity, would invest in these policies for AIG.52 Although AIG set up Coventry, it was owned by Hanover Life Reassurance (Ireland) Limited, which was not part of AIG.

Starting in 2001, American Home Assurance Corporation, an AIG affiliate, lent Coventry funds which it used to take out fake insurance policies from American In*787ternational Specialty Lines Insurance Co. (“Specialty Lines”), an Alaskan subsidiary of AIG. Coventry then filed claims on the policies equal to the value of its premiums and used those funds to purchase life settlements. When death benefits were collected, Coventry paid them to Specialty Lines as additional premiums.53 Earnings from these controversial policies thus showed up as normal underwriting income. AIG did not have to carry the policies as investments on its books or admit its involvement in this controversial market.

When the Alaska Department of Insurance learned of Specialty Lines’ activities, it demanded that Specialty Lines stop them. The policies were then moved to AIG’s now-familiar Bermuda subsidiary, American Reinsurance. But, that shift only deferred the inevitable. Eventually, AIG had to admit that its scheme violated GAAP and, as a result, decreased its stockholders’ equity by almost $400 million.54

The Stockholder Plaintiffs allege that Smith and Tizzio knew about these transactions and the structure built to hide them.55

e. Improper Accounting In The Domestic Brokerage Group

The Stockholder Plaintiffs also allege that Greenberg, Tizzio, and Smith failed to correct a number of accounting errors in AIG’s Domestic Brokerage Group. The Domestic Brokerage Group was a key part of AIG’s business and was responsible for all of AIG’s general insurance operations in the United States, generating over half of AIG’s net premiums in 2001.56 Problems in the Domestic Brokerage would affect all of AIG. But, as it became clear that the Domestic Brokerage Group had major accounting problems that were overstating AIG’s reserves, Tizzio, Greenberg, and Smith did not take meaningful action to correct them.57

The specific errors were both long lived and varied. Some of the issues at AIG’s Domestic Brokerage Group dated back to the early 1990s, and the problems ranged from the mundane, like uncollectable receivables, to more troubling problems, like accounts that did not reconcile with each other.58 AIG officers allegedly hid these deficiencies and then worked to slowly remedy them instead of quickly and accurately correcting the accounting.

Of the various issues in the Domestic Brokerage Group, the Stockholder Plaintiffs focus primarily on what was known as the “AIGRM Legacy.” This matter involved discrepancies in accounts related to AIG’s risk management unit. The Stockholder Plaintiffs allege that various officers, including defendant Tizzio, who was ultimately in charge of the Domestic Brokerage Group, knew about these problems as early as 199859 and that Smith and Greenberg were involved in these issues by late 2003.60

Despite possessing information that AIG was not properly accounting for a range of transactions, Tizzio, Greenberg, and Smith allegedly did not do anything to correct the misstated accounts or increase AIG’s reserves to deal with the problem. Instead, the Stockholder Plaintiffs allege *788that memoranda continued to circulate and, on occasion, officers would have certain amounts set aside as reserves or increase operating expenses to slowly adjust for the problems.61 But, no effort was made to correct the substantial errors with alacrity and in full. Eventually, AIG was forced to admit that its failure to timely correct the misstated accounts in the Domestic Brokerage Group had caused its financial statements to be incorrect to the tune of $300 million, a hit to stockholders’ equity that was recognized in May 2005.62

2. Illegal Schemes To Avoid Taxes The Stockholder Plaintiffs also allege that the defendants caused AIG to engage in various frauds to avoid taxes.

a. Workers’ Compensation Scheme Designed To Avoid Taxes

The Stockholder Plaintiffs allege that unnamed senior executives and directors caused AIG to mask workers’ compensation insurance as general or auto liability insurance in order to lower its tax bill (the “Workers’ Compensation Scheme”).63 In New York and other states, workers’ compensation policies are commonly subject to higher taxes than other types of insurance.64 Workers compensation insurers must also put aside money into special assessment funds.65 Both requirements cost insurers money and make workers’ compensation policies more expensive to issue dollar-for-dollar than other types of policies. To avoid these costs, AIG pretended that portions of its workers’ compensation policies were for general or auto liability insurance. This avoided the higher taxes, at least for a time. Eventually, New York State and the federal government discovered the fraud and forced AIG to pay out over $400 million.66

Unlike many of the other alleged wrongful schemes, the Workers’ Compensation Scheme allegedly drew concern from AIG legal staff well before the scheme came to public light. Apparently the mischaracter-izations of policies stretched as far back as 1989, when the president of AIG Risk Management, Inc. prevented one of his Vice Presidents from stopping the practice.67 In 1992, Mike Joye, who was AIG’s General Counsel at the time, issued a memorandum to both Tizzio and Green-berg describing thirteen ways in which AIG’s actions regarding workers’ compensation policies were illegal.68

Joye also suggested corrective actions that AIG could take, including discharging the employees involved and making restitution. But according to the Stockholder Plaintiffs, Tizzio told Joye that AIG planned to take no corrective action.69 The Stockholder Plaintiffs concede that AIG hired an outside law firm to follow up, but allege that Tizzio and the other top managers involved never caused AIG to come clean about its past practices and that AIG continued hide what it had done. It was only after government investigators called the question that AIG publicly disclosed the Workers Compensation Scheme. In February 2006, AIG had to announce that it was paying $344 million to settle *789legal actions brought by New York State.70 It also had to pay a $100 million fíne,71 and, as of the filing of AIG’s Form 10-Q in June 2007, other proceedings relating to the Workers’ Compensation Scheme remained pending.72

b. AIG Uses “Covered Calls” To Recognize Gains Without Paying Capital Gains Taxes

AIG also engaged in complicated financial transactions designed to recognize gains on its investments without having to pay capital gains taxes. Normally, a company does not recognize any gain on its assets until it sells the asset. But, when it sells the asset it must also pay taxes on the asset’s appreciation. Although the specifics are not detailed, the Stockholder Plaintiffs allege that between 2001 and 2008 AIG sold call options on assets with unrealized appreciation and then used forward transactions and swaps to reacquire the assets that it had sold using the call options. By this allegedly unlawful tactic, AIG allegedly recognized the appreciation of its assets on its books but did not pay capital gains taxes. Between 2001 and 2004, AIG used these complicated transactions to recognize improper investment income to the tune of $297 million. But, like the other frauds, this one was also discovered, and in May 2005 AIG reduced its previously reported investment income by $297 million.73

3. Selling Illegal Financial Products To Other Companies

The Stockholder Plaintiffs further allege that AIG officers and directors caused AIG to exploit its expertise in balance sheet manipulation by turning it into a saleable commodity. They had AIG develop and sell “income smoothing products” to other companies that allowed those companies to misstate their financial statements. These products involved sham insurance policies and fake third-parties.

The first type of product that AIG sold was simply a variant on the transaction with Gen Re. AIG underwrote carefully tailored insurance policies whose only purpose was to improve the appearance of the counterparty’s own financial statements. As in the Gen Re Transaction, there was never a transfer of insurable risk in the genuine sense. Rather, AIG’s counterparty was, from the get-go, expected to eventually file claims on the full amount of the policy, which AIG would in turn pay without asking questions.74 The counterparty would then report the insurance proceeds as income, generating revenues to offset some or all of its losses.75 AIG would continue charging a premium on the policy and by the time the policy was terminated, AIG would have recovered the full amount it paid out on the bogus claim plus a healthy fee for engaging in the sham.

In early 1999, AIG allegedly entered into such a sham insurance policy with Brightpoint Inc. Brightpoint had suffered a loss of $29 million, and rather than admit the loss to its stockholders, it chose to hide the loss through a fake policy with AIG’s National Union subsidiary, which was in Tizzio’s sphere of oversight as Senior Vice Chairman of General Insurance.76 In appearance, Brightpoint took out a policy *790from National Union, and then immediately submitted an $11.9 million claim.77 Brightpoint reported the $11.9 million as an insurance receivable, providing a source of income to offset its losses.

But, this was an insurance policy in name only. Brightpoint and AIG had allegedly worked out in advance exactly how much Brightpoint would submit a claim for. And Brightpoint was to maintain the policy for three years, submitting “premiums” that were in reality payments on the money that AIG had advanced as a sham payout.78 Using this scheme, Brightpoint reported an insurance receivable of $11.9 million.79 For its part in the transaction, AIG received $15.3 million.80 Like the other alleged frauds, this one eventually surfaced. In July 2000, the SEC began questioning the Brightpoint transaction, and AIG was served with a subpoena in November 2001.81 By February 2002, AIG had refunded the excess money it received for structuring the fraudulent insurance policy.82 The SEC also instituted an action against AIG, which was eventually settled for $10 million.83

The second type of income smoothing product involved a more complicated variation on the Secret Subsidiary Transactions. These income smoothing products were based on the use of special purpose entities (“SPEs”) by AIG’s clients to house problematic assets and avoid disclosing their performance. As long as one of these SPEs held an asset, a change in the asset’s value would not carry through to the client’s balance sheet. If the asset lost some or even most of its value, the client’s balance sheet would be unaffected. But, if the value of the assets ever increased, the client could liquidate the SPE and recognize the appreciation on its books.

But, these structures only work legally if the SPE is considered to be a separate entity under GAAP. At the relevant time period for purposes of the sale of these products, an SPE had, at the very least, to have an outside investor that made an investment equal to 3% of the assets of the SPE to qualify as a separate entity that need not be consolidated.84 AIG Financial Products, an AIG subsidiary under defendant Matthews’ sphere of oversight as the head of Financial Services,85 allegedly made a business of being the third-party that invested. But, AIG would immediately receive a “structuring fee” higher than the 3% it was supposedly putting at risk as an investment in the client’s SPE.86 AIG was thus investing with the other company’s money, despite the fact that the entire point under GAAP was that AIG — as the outside investor — was supposed to have its own capital at risk. In addition, for accounting reasons, AIG would sell 30-year notes to the SPE in exchange for cash.

To help market these products, which AIG referred to as Contributed Guaranteed Alternative Investment Trust Securities (“C-GAITS”), AIG allegedly sought *791the approval of an outside accounting firm.87 The idea was to provide AIG with a letter it could show to potential clients to assure the clients that the C-GAITS were legal. But, the accounting firm told AIG that, as structured, there were problems with C-GAITS. Although it did not raise the issue that AIG was being paid more than it was investing, the accounting firm did raise a related issue. Because AIG would be issuing 30-year notes, it would immediately be getting cash from the SPE in exchange for those notes. The auditor worried that the cash might be deemed a payout. And, since AIG Financial Products only planned to invest the 3% minimum, if regulators thought AIG received any payout, no matter how small, AIG would not have a sufficient interest in the SPE, and thus the entire scheme would fail.88 AIG’s auditor recommended that AIG remedy this problem by increasing the investment in any C-GAITS SPE to 5%.89 This would have kept AIG’s investment in the SPE small, while also providing a cushion with respect to the minimum 3% required by GAAP in case the cash exchanged for the 30-year notes was considered a return on AIG’s investment.

But, rather than taking even the small step of investing more money to make sure that the C-GAITS complied with GAAP, the problem was simply hidden. In its final opinion letter on the matter, the auditor, presumably at AIG’s insistence, glazed over the problem by simply omitting who would be issuing the 30-year notes.90 In this way, it could issue a clean bill of health without AIG even taking a minimal step to achieve GAAP compliance. And, AIG Financial Products continued to market the product with AIG-issued notes— that is, in the form that AIG had been warned might cause the entire SPE to fail GAAP requirements.

Although the SEC ultimately attacked the problem from a different perspective, AIG wound up paying over $100 million in fines because its investments in C-GAITS SPEs were deemed too small. At issue were three SPEs that AIG created for PNC Financial Services Group. The SPEs AIG sold PNC were designed so PNC could remove $762 million in faulty assets from its balance sheet. For its part, AIG received a $46 million fee.91 In this instance, the specific problem of the 30-year notes was avoided because PNC, based on the counsel of its own auditors, decided to get another issuer for the 30-year notes.92

But, AIG’s capital investment remained at 3% despite the fact that it had received more than that in fees. When the SEC investigated, it seized on this issue and argued that AIG never had a 3% investment because PNC had paid AIG more than that in fees and no AIG cash was ever at risk.93 The United States Department of Justice also joined in the suit. In the end, AIG settled the suits, paying an $80 million penalty to the Department of Justice and $46 million to an SEC disgorgement fund.94

4. AIG Schemes To Rig Markets

The Stockholder Plaintiffs also allege that Greenberg, Matthews, and Tizzio *792caused AIG to participate in bid-rigging conspiracies in two separate product markets.95

The essence of both alleged plots were false auctions. These created the appearance of a competitive bidding process in which AIG and other firms would submit bids. But, the relevant market maker would have allegedly predetermined who, as between AIG and its competitors, would offer the best deal and thus “win” the auction. Potential customers would think that they had engaged in a competitive bidding process providing them with a competitive rate when all that had really happened was a carefully choreographed play.

a. AIG Participates In A Bid-Rigging Scheme With Marsh & McLennan Companies, Inc.

The primary form of bid-rigging involved an alleged scheme run by defendant Marsh & McLennan Companies, Inc., the world’s largest provider of insurance brokerage and consulting services.96 Starting in 1999, it was also run by Jeffrey Green-berg, who is defendant Maurice Green-berg’s son.97 On the surface, Marsh & McLennan’s business model is simple. Companies pay Marsh & McLennan to locate the best deal available on insurance, a service for which Marsh & McLennan receives a percentage of its clients’ premium payments.98

But, the Stockholder Plaintiffs allege that instead of locating the best deal available, Marsh & McLennan ran a rigged game. AIG and other insurers would pay Marsh & McLennan a certain amount of money in order to get Marsh & McLennan clients. Marsh & McLennan would then pre-select which insurer would insure which client, and the various insurers would submit bids that guaranteed that the pre-determined insurer would “win.”

The process began with “Placement Service Agreements” and “Market Service Agreements” in which AIG and other insurers would pay “contingent commissions.” 99 In reality, this was all euphemism for a pay-to-play scheme. By making these payments, AIG became a “preferred market,” a status which gave it inside information and which allegedly also led to Marsh & McLennan virtually guaranteeing AIG that it would have the chance to sell certain policies.100

Marsh & McLennan could guarantee that AIG would receive policies because it was secretly manipulating the market. For example, the Stockholder Plaintiffs allege that another large insurance and reinsurance seller, defendant ACE, Ltd., was also allegedly involved in the conspiracy. According to the Complaint, Marsh & McLennan would tell AIG and ACE which bids each was to win. Whoever was to win was instructed to submit an “A Quote” and the pre-determined loser would then offer a “B Quote,” which was designed to be less attractive to Marsh’s client than the A Quote.101 Marsh & McLennan’s clients would then think that there had been an active bidding process that allowed them to find competitive offers.

When the bid-rigging conspiracy was uncovered, criminal prosecutions ensued and, already, former AIG employees and *793defendants Tateossian, Mohs, Radke, and Coello have pled guilty to criminal charges.102 Of these defendants, at least Tateossian and Radke participated as employees of American Home, a subsidiary in the General Insurance operations that Tiz-zio was in charge of.103 The Stockholder Plaintiffs allege that Greenberg, Matthews, Tizzio and Smith knew about this misconduct and did nothing.104

b. AIG Rigs Bids For Municipal Derivatives

The Stockholder Plaintiffs also allege that Greenberg, Matthews, and Tizzio caused AIG, through its subsidiaries AIG Financial Products and SunAmerica, to participate in a scheme to manipulate the market for municipal derivatives (the “Municipal Derivatives Scheme”).105 Municipal derivatives are tax exempt entities in which governments invest proceeds from bond offerings until the cash is needed. To win these contracts, the counterparty will often guarantee a return, only making money if the funds outperform the guarantee. The municipalities believed that the brokers they used were generating competitive bids that would increase the returns the municipalities would receive. Instead, certain brokers allegedly conspired with AIG and others to rig bids.

As in the scheme orchestrated by Marsh & McLennan, AIG and its co-conspirators,106 would choose who would win a contract and manipulate the process to make sure that the pre-selected winner would prevail. The only difference is that this was, allegedly, not as centrally orchestrated as the Marsh & McLennan scheme. The various providers allegedly communicated what were supposed to be secret terms, either directly or through brokers. The selected bidder would then go last, with full knowledge of the other bids and thus how high it could bid and still win the “auction.”107

When the federal government learned of the Municipal Derivatives Scheme, it launched a series of investigations. AIG Financial Products and SunAmerica are currently both named as defendants in a civil complaint filed in New York which bears a threat of treble damages.108

Notably, AIG Financial Products was part of AIG’s Financial Services operations and thus under Matthews’ purview.109

5. The Harm Allegedly Suffered By AIG As A Result Of The Improper Schemes Detailed In The Complaint

In concrete monetary terms, the harm suffered by AIG as a result of the machinations outlined in the Complaint is huge. AIG has had to pay out over $1.6 billion so far in the form of fines and other payments to resolve proceedings.110 Most prominently, it had to pay over $440 million to settle litigation related to the Workers’ Compensation Scheme and $800 mil*794lion in disgorged profits and civil penalties related to the various fraudulent transactions.111 In addition, AIG’s financial statements had to be restated twice, reducing shareholders’ equity by a total of $8.5 billion.

Nor do those numbers represent the total cost of the defendants’ alleged malfeasance. Millions have been spent on legal fees, and AIG is still subject to multiple suits alleging violations of federal securities and antitrust law.

The Complaint suggests that current company management continues to be distracted by these problems, that AIG’s credibility in the markets has been deeply damaged, and that out-of-pocket costs will continue to mount. By early 2009, of course, these problems may seem a trifle compared to the setbacks AIG suffered during the recent financial industry collapse and its need to accept a huge infusion of support — some $150 billion — from the U.S. government to restore its solvency and viability. But billions of dollars were lost, a substantial amount even given recent events in the capital markets.

III. Legal Analysis

This decision deals with the motions to dismiss brought by Greenberg, the Inner Circle Defendants, the Employee Defendants, and AIG’s auditor, PWC. These defendants have advanced a plethora of arguments.

For the benefit of clarity, I start with the arguments most dependent on the detailed factual allegations of the Complaint. By beginning with them first, they can be considered when those allegations are freshest in the reader’s mind. Factual arguments of that kind have been advanced by several of the Inner Circle and Employee Defendants. But, I need only address those made by Inner Circle Defendants Matthews and Tizzio because, as we shall later see, this court does not have personal jurisdiction over the other defendants making those arguments.

After addressing the factually-based arguments for dismissal, I address the argument made by several of the defendants that this case should be dismissed because the Stockholder Plaintiffs failed to make a demand on AIG’s board. Then, I address the contention of defendants Matthews and Tizzio that the claims against them are time-barred. From there, I turn to the argument of the Employee Defendants that this court cannot exercise personal jurisdiction over them.

Finally, I conclude this decision by addressing PWC’s argument that, notwithstanding the existence of pled facts supporting a claim that PWC’s negligent performance of its duties as AIG’s auditor contributed to the ability of certain AIG directors, officers, and employees to implement and carry out for long periods of time unlawful schemes that resulted in material misstatements of AIG’s books and records, PWC cannot be held liable to AIG. According to PWC, New York law governs the claims against it and immunizes a negligent auditor from liability if corporate insiders commit fraud, even if the auditor could have detected that fraud through the use of professionally adequate audit procedures.

A. The Stockholder Plaintiffs State A Claim That Matthews And Tizzio Violated Their Fiduciary Duties

Two members of Greenberg’s Inner Circle, defendants Matthews and Tizzio, seek to have the claims against them dismissed for failure to state a claim.112 Matthews’ *795and Tizzio’s motions on this subject have inspired a confusing serve and volley in which they and the Stockholder Plaintiffs debated nuances of corporate law, many of which are irrelevant to what, at this stage, is the basic issue: whether, under the plaintiff-friendly Rule 12(b)(6) standard, the Complaint states a claim that Matthews and Tizzio committed a non-exculpated breach of their fiduciary duties.113

The confusion here was no doubt inspired, in part, by the Stockholder Plaintiffs’ mélange of arguments, which range from the proposition that Matthews and Tizzio knew of and helped inspire and implement the various wrongful schemes in the Complaint to the weaker assertion that they knowingly tolerated a lax system of internal controls that they knew were inadequate and easily bypassed.

But, the confusion also stems from Matthews’ and Tizzio’s attempt to focus on each scheme individually instead of on whether the Complaint as a whole supports a reasonable inference that they breached their fiduciary duties. To make this argument, Matthews and Tizzio focus on a weakness the Stockholder Plaintiffs have, which is the comparative absence of fact pleading about the specific involvement of Matthews (more particularly) and Tizzio (to a lesser degree) in the fraudulent financial schemes compared to the detailed fact pleading about the schemes themselves.

From this, Matthews and Tizzio try to escape the relevant inquiry at this stage— which is whether the Complaint pleads facts supporting a reasonable inference of a non-exculpated breach of fiduciary duty — and instead asks the separate question, whether the Complaint pleads facts tying Matthews and Tizzio to each and every one of the alleged schemes. This tactic, while understandable, ignores the relevant procedural standard, which, for reasons I later explain, is not the particularized pleading standard of Rule 23.1, and tries to evade a very plausible inference that I must draw in the Stockholder Plaintiffs’ favor at this stage.

That inference is that those who engage in sophisticated forms of financial fraud do their best not to leave an obvious paper trail. Rather, consistent with their improper objectives, those at the top of such schemes try to conceal their roles and not leave marked paths leading to their doorsteps. And, although the Stockholder Plaintiffs have had access to a lot of written materials, they have obviously not had full discovery. Accordingly, the absence of detailed facts tying the Matthews and Tiz-zio to each fraud does not defeat the reasonable inference that Matthews and Tiz-zio were involved in these schemes, or at least knew about them. And, as we shall see, the Complaint pleads facts supporting this inference, which is all it must do to survive Matthews’ and Tizzio’s motions.

For present purposes, I need not burden the reader with the detailed analysis appropriate for a post-trial decision. Rather, it is enough to explain why the Complaint pleads facts supporting a fair *796inference that both Matthews and Tizzio: (1) knew of and helped Greenberg implement a diverse array of fraudulent schemes; and (2) knew that AIG’s internal controls were inadequate.

I begin by briefly describing where Matthews and Tizzio were positioned within AIG’s hierarchy, which was at the very top level and within Greenberg’s Inner Circle.

Matthews was a long-serving Greenberg subordinate. He had been on AIG’s board since 1973, and by the time he retired he held 9.8% of Starr and 8.3% of SICO. By 2005, Matthews’ stake in Starr alone would have had a liquidation value of over $50 million. Matthews was also on the Executive Committee of AIG’s board, which was made up of Greenberg, Matthews, Tizzio, and Frank J. Hoenemeyer, an executive at another insurance company.114 Traditionally, the Executive Committee is the board committee comprised of the core managers of the organization, and AIG, it is fairly pled, was a traditional company that gave a very strong (if not steroidal) hand to management. Matthews was also Vice Chairman of Investments and Financial Services and served on the Finance Committee of the board. And he sat on the Credit Risk Committee that approved AIG Financial Products’ sale of non-GAAP-compliant SPEs.

From these roles, one must, at this stage, infer that Matthews was a close confederate of Greenberg’s, deeply sophisticated in financial investments, and, due to his lengthy experience with AIG’s insurance operations, privy to and involved in financial investment strategies and product developments that were innovative, risky in nature, or sizable in scope.

Likewise, Tizzio was at the very top level at AIG and inferably a close confidante of Greenberg’s. Tizzio had been a director since at least 1999, served on the Executive Committee, and was Senior Vice Chairman for General Insurance. Tizzio was also a member of the committee of senior AIG managers who oversaw the company’s reinsurance operations. And, like Matthews, Tizzio was initiated by Greenberg into coveted ownership roles at Starr and SICO, where Tizzio owned 5.4% and 8.3% of these entities respectively. Tizzio’s Starr position alone was worth over $32 million in 2005. Given these facts, it is inferable that Tizzio was one of Greenberg’s confidantes, deeply sophisticated in insurance and reinvestment matters, and both privy to and personally involved in AIG insurance and reinsurance policies and practices that were innovative, risky in nature, or sizable in scope.

Ignoring their roles at AIG, Matthews and Tizzio attack the Complaint as deficient because several of the allegations against them simply refer to the “D & O Defendants,” a term the Stockholder Plaintiffs define as including, in addition to Matthews and Tizzio, Employee Defendants Michael J. Castelli, Christian M. Milton, and L. Michael Murphy.115 That is, it is not a huge group, but instead a focused one. Nonetheless, Matthews and Tizzio take issue with the allegations in the Complaint that use the term “D & O Defendants,” arguing that they are deficient because, in some instances, the Complaint does not detail precisely how or why Mat*797thews and Tizzio were in the know in these instances. According to the Complaint, this group was involved in a range of wrongdoing, including: developing the Nan Shan transactions to hide underwriting losses,116 failing to heed the advice of AIG’s general counsel about the Workers’ Compensation Scheme,117 causing or allowing AIG to start selling fake insurance policies and SPEs to third-parties,118 preventing AIG from properly disclosing the accounting problems with the C-GAITS,119 and causing or allowing AIG to enter into phony reinsurance transactions with companies it secretly owned.120

Although these allegations are varied and far reaching, I, unlike Matthews and Tizzio, believe these allegations are supported by the pled facts. For starters, the Complaint is not laden with such accusations against the D & 0 Defendants as a group; these group accusations are used sparingly. Even more important, the Complaint pleads details about the fraudulent schemes that, when taken with the pled facts regarding Matthews’ and Tiz-zio’s roles at AIG, support the inference that they knew of and approved much of the wrongdoing.

As to Matthews, for example, it is relevant that several of the fraudulent schemes involved novel and substantial financial investments by AIG. The decision by AIG, for example, to purchase life settlement policies was a new business line that, although ghoulish, was at its core an investment, and thus something one would expect a Vice Chairman of Investments and Financial Services to be involved with. Ditto for AIG’s use of option purchases in connection with “covered calls” to recognize capital gains without paying capital gains tax. Similarly, the schemes involving AIG’s engagement in reinsurance transactions with its own controlled, offshore subsidiaries are ones suggestive of Matthews’ direct involvement. It is implausible — at this stage — that Matthews did not know that AIG had investments totaling at least tens, if not hundreds or more, of millions of dollars in Union Excess, Richmond, and Astral. It is equally implausible that he was not aware that AIG invested $19 million through Swiss front-men, plus another $170 million directly, to gain control of Capeo. Those kinds of investments were unlikely to get made without the knowledge of a top dog like Matthews, who was one of Green-berg’s longest-serving and closest aides, a Vice Chairman of Investments and Financial Services and a member of AIG’s Executive and Finance Committees.

And, of course, AIG’s development and sale of the Orwellian-named “income smoothing” products directly implicates Matthews’ roles as both a member of the Credit Risk Committee and the head of Financial Services, which contained the subsidiary that sold the SPEs. At this stage, one cannot infer that such innovative and risky products came to market through the spontaneous, unsupervised actions of lower-level AIG actors, that Greenberg cut trusted long-term confidantes like Matthews out of these loops, or even that Matthews did not know that AIG Financial Products had been specifically warned that its SPEs might not be GAAP-compliant. Rather, the more plausible inference is that Matthews got and stayed where he was precisely because Greenberg relied on his advice and expertise in these *798critical areas. Similarly, given Matthews’ sensitive position and overall power and influence within AIG, I cannot assume at this stage in the litigation that AIG Financial Products, a subsidiary under Matthews’ supervision, took part in a scheme to collude with competitors in rigging markets without Matthews knowing about it.

The same type of analysis holds for Tiz-zio. Many of the fraudulent schemes detailed in the Complaint involved novel, risky, and substantial insurance and reinsurance transactions. As to the Workers’ Compensation Scheme, for example, the Complaint pleads Tizzio’s direct involvement in a discussion about how to address illegal conduct spotted by AIG’s General Counsel. The Complaint fairly pleads that Tizzio was complicitous in covering these practices up and not remedying them in a swift and full manner. To my mind, in this procedural posture, one cannot attribute the decision to falsely characterize workers’ compensation policies as other kinds of insurance in a tax dodge to underlings, or otherwise infer that this decision was made in a way that did not involve the managers in charge of AIG’s insurance operations.121 Similarly, the Complaint pleads that Tizzio knew that AIG’s critical Domestic Brokerage Group was not accounting for a range of matters correctly. In fact, Tizzio allegedly prepared memos as early as 1997 detailing some of these problems.

Tizzio was also on the integral reinsurance security committee that AIG proclaimed “closely monitored” AIG’s “utilization of reinsurance.”122 Thus, I cannot, on a motion to dismiss, assume that AIG engaged in very large sales of reinsurance to its own subsidiaries without Tizzio’s knowledge. Taken together, the magnitude, frequency, and riskiness of these transactions suggests top-level involvement by Green-berg’s Inner Circle, especially by the member of that circle who was Senior Vice Chairman of General Insurance and sat on AIG’s critical reinsurance security committee. In fact, the Stockholder Plaintiffs plead that Tizzio was receiving memos updating him on the status of Capeo. Given Tizzio’s place on the AIG food chain, it is also improbable that Tizzio did not know that Capeo, Union Excess, Richmond, and Astral were AIG affiliates.

And, in the case of the Gen Re Transaction, the inference that the Tizzio is asking me to improperly draw against the Stockholder Plaintiffs has an even weaker basis. Not only was Tizzio on the committee that was tasked with closely monitoring AIG’s reinsurance operations, but the reinsurance was written by one of the subsidiaries in Tizzio’s General Insurance division. The notion that this subsidiary made a phony $500 million sale of reinsurance without Tizzio knowing about it is not one that I can accept on a motion to dismiss.

Thus, for these and other similar reasons, I conclude that the Complaint pleads a claim that Tizzio breached his fiduciary duty of loyalty by being directly complici-tous in various fraudulent schemes.

In addition, I find that the Complaint states a breach of loyalty claim against *799Matthews and Tizzio for knowingly tolerating inadequate internal controls and knowingly failing to monitor their subordinates’ compliance with legal duties.123 Again, this is an area in which the briefing was, for purposes of a motion to dismiss, needlessly intricate. And once again, the question here is a simple one: does the Complaint plead facts supporting an inference that Matthews and Tizzio knew that AIG’s internal controls were broken?

Although Matthews and Tizzio once again try to deal with this question on a scheme-by-scheme analysis, the Stockholder Plaintiffs do not rest their monitoring, or Caremark,124 claim on the failure of AIG’s internal controls in one discrete instance of serious wrongdoing. If that were not true, and only one fraud occurred under their watch, Matthews and Tizzio would be well positioned — particularly in a case governed by Rule 23.1, rather than as here, by Rule 12(b)(6) — to argue that the Complaint needs more specifics about them individually to create a reasonable inference that they knew that AIG’s internal control were broken.

But here? Really? The Complaint fairly supports the assertion that AIG’s Inner Circle led a — and I use this term with knowledge of its strength — criminal organization. The diversity, pervasiveness, and materiality of the alleged financial wrongdoing at AIG is extraordinary. The proposition that Matthews and Tizzio, who the Complaint fairly alleges were directly knowledgeable of and involved in much of the wrongdoing, did not also know that AIG’s internal controls were inadequate and too easily bypassed is not, for present purposes, an interpretation to ground a Rule 12(b)(6) dismissal order on. Indeed, for present purposes, it is inferable that even when Matthews and Tizzio were not directly complicitous in the wrongful schemes, they were aware of the schemes and knowingly failed to stop them. In that regard, I find it inferable that Matthews and Tizzio were aware of misconduct that should have been brought to the attention of AIG’s independent directors (including the Audit Committee) but chose to conceal their knowledge, despite having a fiduciary duty to speak.

Although I fully recognize the difficulty of pleading a breach of the duty of loyalty based on a failure to monitor,125 even under a Rule 12(b)(6) standard, the Stockholder Plaintiffs have done so here. Our Supreme Court has recognized that directors can be liable where they “consciously failed to monitor or oversee [the company’s internal controls] thus disabling themselves from being informed of risks or problems requiring them attention.”126 And although satisfaction of this standard requires scienter, the pled facts support an inference that Matthews and Tizzio were “conscious of the fact that they were not doing their jobs.”127 Therefore, the fiduciary duty counts against Matthews and Tizzio stand.128

*800B. The Plaintiffs State A Claim That Matthews And Tizzio Breached Their Fiduciary Duties By Trading On Their Insider Knowledge

Matthews and Tizzio also argue that the separate breach of fiduciary duty claim against them premised on insider trading should be dismissed for failure to state a claim. The Stockholder Plaintiffs claim that Matthews and Tizzio breached their fiduciary duties by selling them stock based on material non-public information, specifically their knowledge of the pervasive fraud that was occurring at AIG.

Under Delaware law, “directors who misuse company information to profit at the expense of innocent buyers of their stock should disgorge their profits.” 129 A breach of fiduciary duty claim premised on insider trading, also known as a Brophy 130 claim, arises where “1) the corporate fiduciary possessed material, nonpublic company information; and 2) the corporate fiduciary used that information improperly by making trades because she was motivated, in whole or in part, by the substance of that information.”131

The Stockholder Plaintiffs claim that Matthews and Tizzio sold hundreds of thousands of shares of AIG stock between March 1999 and May 2004 in order to take advantage of the price AIG stock was trading at while the market was oblivious to the frauds the Stockholder Plaintiffs have alleged. Specifically at issue are sales by Matthews and Tizzio that totaled $21 million and $6 million respectively.132 Of course, at the time these sales were occurring, AIG was allegedly permeated by the frauds described earlier, all of which, if known, would have made AIG a much less attractive investment.

By way of defense, Matthews and Tizzio both reiterate their argument that the Stockholder Plaintiffs have not created a *801reasonable inference that they knew of the insider information, and thus the Stockholder Plaintiffs do not state a claim that any insider trading occurred. It is, of course, true that in order to trade on inside information one must first know of the information.133 But I have already concluded that the Complaint supports the inference that Matthews and Tizzio were aware of pervasive, eamings-inflating frauds at AIG. That knowledge buttresses the Brophy claim.

In addition, Matthews and Tizzio both argue that the Stockholder Plaintiffs fail to show that they were motivated at least in part by their knowledge of the fraud at AIG. But, although the Stockholder Plaintiffs do not specifically allege this, they have pled facts that create a reasonable inference that Matthews and Tizzio sold stock to take advantage of their material non-public information. As has been shown, Matthews and Tizzio both were provided huge equity incentive packages, rendering both their total net wealth and ongoing income highly dependent on AIG’s stock-trading price. Moreover, much of the fraud alleged was motivated by a desire to prop up that price. If Matthews and Tizzio knew about much or all of the fraud that was occurring, as I must infer at this stage that they did, it is reasonable to assume that they sold their stock to diversify their holdings and lock in the value the market placed on AIG while in ignorance of AIG’s real worth.

Notwithstanding this reasonable inference, Matthews and Tizzio argue that they sold so little stock that they were obviously not motivated by the insider information. Although he did sell almost $6 million worth of stock during the relevant period, Tizzio argues that this could not be insider trading because this was only about 7% of his total holdings.134 And, similarly, Matthews points to the fact that the $20 million worth of stock he sold was only 15% of his AIG stock.135 In other words, they claim that there could not have been scien-ter because, if they were going to violate their fiduciary duties, they would have done so on a much more massive scale. But it is not a defense that Matthews and Tizzio could have committed an even larger breach of their fiduciary duties, and this motivation argument is not one I can accept on a dismissal motion.

Furthermore, although it may be that the “small” quantity of stock Matthews and Tizzio sold is evidence of their innocence, that is not the only possible reason for such “small” sales. There are any number of reasons why they might have chosen to keep their insider trading to a limit, not least of which is that they wanted to avoid getting caught or tipping off the market as to the fraud that prompted them to sell their stock. Accordingly, the small scale of their purchases does not defeat the reasonable inference of scienter, and thus I do not dismiss the claims against them.

C. The Stockholder Plaintiffs State A Claim For Contribution And Indemnification Against Matthews And Tiz-zio

Matthews and Tizzio also ask this court to dismiss the separate contribution and *802indemnification claim against them. Aside from repeating that the Stockholder Plaintiffs do not adequately state a claim that they did anything -wrong (which we have already seen is not true),136 Matthews and Tizzio assert a variety of procedural grounds why AIG should not be able to recover against them. They argue that they are not sufficiently liable, that the claims against them are not ripe, or that the claims against them are barred because they were settled. I address each of these objections in turn.

First, Matthews and Tizzio assert that even if the Stockholder Plaintiffs have a claim for contribution, their claim for indemnification fails because the Complaint does not explicitly say that they are “entirely liable to AIG.”137 The issue here is that “indemnification differs from contribution because it places the entire burden of a loss upon the party ultimately liable or responsible for it, and by whom the loss should have been discharged initially.” 138 In other words, contribution is a remedy between two actors, both of whom broke the law, while indemnification is the remedy for an innocent actor that is liable for indemnifier’s conduct. Admittedly, these causes of action address different situations and are thus mutually exclusive.139 But, neither defendant has pointed out any case in which the indemnification part of a claim was dismissed on the pleadings when it was unclear exactly how a defendant may be liable. A corporation like AIG only acts through humans like Matthews and Tizzio. They have not provided a sound reason why, as between a corporation that only faces liability because a human caused it to break the law, and that human, the corporation should not be indemnified by the human wrongdoer for the harm suffered by the corporation. Perhaps statutes or public policy bar indemnification in certain circumstances, but neither defendant has made arguments of that kind. Given that, I refuse to now indulge the blanket and unsubstantiated assertion that AIG has no plausible indemnification claim against Matthews or Tiz-zio. Rather, the better practice is to allow these claims to go forward until the nature of Matthews’ and Tizzio’s liability to AIG is more clear.

With respect to Matthews’ and Tizzio’s ripeness objection, the question is one of timing rather than one of actual liability. The issue is that “[u]nder Delaware law claims for common law indemnity do not accrue until the indemnitee can be confident that any claim against him has been resolved with certainty.”140 Given the large number of pending actions brought against AIG as a result of the widespread fraud, it is not surprising that some of them are not fully concluded. Several are concluded, and as an overall matter, there is no question that the Complaint puts Matthews and Tizzio on fair notice of the proceedings that may later *803support a contributory judgment. Although it is true that the contribution and indemnification claims for the pending actions will not formally accrue until these claims are finally resolved, Delaware courts have taken a pragmatic approach to the ripeness of a contribution claim when the defendant faces a viable direct claim for the same conduct buttressing the contribution claim. In the interests of judicial economy, Delaware courts allow contribution and indemnification claims to proceed along with the claims that will create liability, considering the claim to be ripe even when it has not yet accrued.141 This instance is slightly different because the claims that will support a right of indemnification or contribution are proceeding elsewhere and not in this court. But, making the Stockholder Plaintiffs bring separate actions or file an amended complaint as each of the remaining actions is completed would only burden the court, AIG’s stockholders, and the defendants themselves. This action is currently stayed pending the outcome of one action,142 and many of the other actions will likely be resolved before this action is decided. Accordingly, it is not appropriate to dismiss any action from being considered for contribution or indemnification until it is clear what will or will not be reduced to a settlement or verdict by the time this case is decided. Rather, I will address the legitimate concerns of Matthews and Tiz-zio about timing when the contribution claims against them are tried.

Finally, Matthews and Tizzio argue that AIG cannot seek contribution or indemnification for claims that it settled. But that argument simplifies our law. The statute Matthews and Tizzio cite to only prevents a party that has settled from suing another party whose liability was not extinguished by that settlement; it does not prevent the settling party from suing a joint-tortfeasor whose liability was settled in the same settlement.143 In other words, if AIG entered into a settlement agreement that did not absolve Matthews or Tizzio, it cannot sue them for their share of the settlement, but if that settlement agreement extinguished claims against Matthews and Tizzio as well, then AIG may sue. Although I do not have a complete record in front of me, it is clear at this stage that at least some of the settlements released Matthews and Tizzio from liability along with AIG.144 And as to *804the remaining settlements, the present record does not provide a basis to conclude that AIG has settled cases in a manner that bars it from seeking contribution from Matthews and Tizzio. Notably, Matthews and Tizzio have not cited any precedent for dismissing a claim at this stage of the litigation because it is not clear whether or not the settlement also extinguished their liability and thus I do not dismiss the contribution and indemnification claims against them.145

D. The Stockholder Plaintiffs State A Claim That Tizzio Committed Fraud And Engaged In A Conspiracy To Defraud AIG

Tizzio also argues that the fraud and conspiracy claims against him arising out of the Gen Re Transaction should be dismissed for failure to state a claim. The Stockholder Plaintiffs have argued that Tizzio both committed fraud and was part of a conspiracy to commit that fraud. But, Tizzio argues that the Stockholder Plaintiffs have not pled his involvement with the requisite particularity and that, in any case, the involvement of other AIG insiders exculpates him from liability. But, both of those arguments fail as a matter of law.

Under our law, fraud can occur on in one of three ways: (1) an overt misrepresentation; (2) silence in the face of a duty to speak; or (3) active concealment of material facts.146 Here, the Stockholder Plaintiffs base their claim on the second *805type of fraud, alleging that as an AIG director and officer, Tizzio had a duty to speak,147 and that Tizzio failed to disclose the illegitimate nature of the Gen Re Transaction to AIG’s independent directors and Audit Committee despite that duty.148

And, the Stockholder Plaintiffs allege that Tizzio was part of the conspiracy to carry out the Gen Re Transaction. In Delaware, civil conspiracy is an independent wrong that occurs when there is: “(1) [a] confederation or combination of two or more persons; (2) [a]n unlawful act done in furtherance of the conspiracy; and (3) [a]ctual damage.”149

Both fraud and a conspiracy to commit fraud must be alleged with particularity.150 Tizzio attempts to seize on this requirement of particularity to argue that the Stockholder Plaintiffs do not sufficiently plead that he committed fraud or engaged in the conspiracy in question. In making this argument, Tizzio does not dispute that the fraud itself is stated with the requisite particularity. And with good reason, as the Stockholder Plaintiffs devote over thirty pages to describing the ins and outs of the Gen Re Transaction and the conspiracy that allegedly existed to make the Transaction appear legitimate. Instead, as in the duty of loyalty claims against him, Tizzio focuses on whether the Stockholder Plaintiffs adequately tie him to the Transaction. But, even though fraud must be stated with particularity, this is still a motion to dismiss, and the *806Stockholder Plaintiffs are entitled to have me draw all reasonable inferences in their favor.

In a case like this one, “where pleading a claim of fraud ... that has at its core the charge that the defendant knew something, there must, at least, be sufficient well-pleaded facts from which it can reasonably be inferred that this ‘something’ was knowable and that the defendant was in a position to know it.”151 As I have stated before, I believe that the pled facts support the inference that, as the Stockholder Plaintiffs allege, Tizzio knew the Gen Re Transaction was a sham. I have discussed why that is so before. To briefly reiterate, Tizzio was one of Green-berg’s top aides, sat on the reinsurance security committee, and was head of AIG’s General Insurance division, which includes the subsidiary that wrote the fake reinsurance policy. Together these alleged facts create the reasonable inference that the true nature of the transaction was knowable and that Tizzio was in a position to know that the Gen Re Transaction was a sham.

Having adequately pled fraud, the Stockholder Plaintiffs are entitled to an inference that Tizzio did so not as an independent actor, but rather as part of the conspiracy to defraud AIG. Even to prevail at trial the Stockholder Plaintiffs do not need to prove the existence of an explicit agreement; a conspiracy can be inferred from the pled behavior of the alleged conspirators.152 And to survive a motion to dismiss, all that is needed is a reasonable inference that Tizzio was part of this conspiracy. Given Tizzio’s relationship with Greenberg and others involved in the Gen Re Transaction, a fair inference of Tizzio’s complicity in concerted misconduct exists.

Tizzio also argues that any malfeasance was immunized by the fact that other members of Greenberg’s Inner Circle knew the Gen Re Transaction was a hoax, and thus AIG was not deceived. To make this argument, Tizzio does not assert that the independent directors on AIG’s board of directors knew of this transaction. Instead, he attempts to use a legal shortcut. As Tizzio correctly notes, the knowledge of an agent is normally imputed to the agent’s principal.153 From this, Tizzio argues that as a matter of law AIG “knew” the Transaction was a sham because AIG had employees that knew the Transaction was a sham. But, under Delaware law, where officers and directors have disabling conflicts that give them an interest in hiding information from a corporation’s independent directors and stockholders, the conflicted fiduciaries’ knowledge is not imputed to the corporation for purposes of holding those fiduciaries liable for the harm they caused to the corporation.154 In *807colloquial terms, a fraud on the board has long been a fiduciary violation under our law and typically involves the failure of insiders to come clean to the independent directors about their own wrongdoing, the wrongdoing of other insiders, or information that the insiders fear will be used by the independent directors to take actions contrary to the insiders’ wishes.155 Delaware law provides no safe harbor to high-level fiduciaries who group together to defraud the board. The Stockholder Plaintiffs have alleged that Tizzio and the other AIG insiders who participated in the Gen Re Transaction violated their fiduciary duties by causing AIG to engage in illegal conduct. If true, that was bad faith conduct that gave Tizzio and the other guilty insiders an interest in hiding what they had done. As a result, the knowledge of those culpable fiduciaries is not imputed to AIG, and Tizzio cannot draw immunity by being among a complement of other AIG top managers who are also alleged to have violated their fiduciary duties and committed fraud on the board.

For all of these foregoing reasons, I deny Tizzio’s motion to dismiss the fraud and conspiracy claims against him.

Having addressed the heavily fact dependent claims against Matthews and Tiz-zio, I now turn to the procedurally based claims brought by various defendants. The first of these is the argument that the Complaint should be dismissed because no demand was made on AIG’s board. But, as we shall see, in this unique circumstance AIG created an SLC that chose to take no position on the claims that the Stockholder Plaintiffs have brought, and thus demand was futile.

E. Because AIG’s Board Delegated Authority Over This Lawsuit To The SLC And The SLC Has Taken No Position, Demand Is Excused

Defendants Greenberg, Tizzio, Matthews, and PWC have all filed separate briefs seeking to have all the claims asserted by the Stockholder Plaintiffs against them dismissed for failure to make a demand on AIG’s board of directors. These defendants argue that demand was not futile with respect to the board of directors that existed back in 2004 and 2005, when the first claims in this action were brought, and that even to the extent it was, the Stockholder Plaintiffs have pled nothing to support demand futility with respect to the board of directors in 2007 and 2008 (when the two most recent versions of the Stockholder Plaintiffs’ complaints were filed). The Stockholder Plaintiffs respond that the SLC’s adoption of a “no position” stance excused demand as to all of the claims they bring against the defendants in this case. I agree with that argument.

Under Delaware law, the directors, rather than the stockholders, are empowered to manage a corporation.156 *808This includes control over litigation brought in the corporation’s name. To prevent derivative suits from usurping this right, a stockholder seeking to bring such a suit must normally first make on a demand on the board of directors.157 But, demand is excused when it' is futile.158 As a result, when bringing a derivative suit, a stockholder plaintiff is required to “allege with particularity the efforts, if any, made by the [stockholder] plaintiff to obtain the action the [stockholder] plaintiff desires from the directors or comparable authority and the reasons for the [stockholder] plaintiffs failure to obtain the action or for not making the effort.”159

The demand requirement does not exist for the benefit of defendants in derivative suits.160 It exists to preserve the primacy of board decisionmaking regarding legal claims belonging to the corporation.161 Our law implements this policy objective by establishing the default rule that a derivative plaintiff must make a demand on the board and requiring the plaintiff to prove why demand is excused if she chooses to forego that default route.162

But, this is not the typical situation where a corporation is objecting to litigation brought in its name.163 Here, the AIG board’s primacy in decisionmaking has *809been fully honored. The AIG board invested complete authority in an SLC to decide what position the corporation would take with regard to this lawsuit.164 This case was then delayed for a lengthy period during which the SLC evaluated what position to take.

The SLC’s task was a complicated one, especially given the reality that the fraudulent schemes pled in the Complaint were ones that exposed AIG itself to liability. Thus, the SLC had to weigh the advantage of having AIG prosecute claims against the defendants with the disadvantage of affirmatively accusing AIG officials of wrongful acts that third-party plaintiffs would impute to AIG itself. In the end, the SLC chose to have AIG sue Greenberg and Smith itself, to seek dismissal of certain defendants, and to otherwise take no position on the Stockholder Plaintiffs’ claims. Consistent with the nature of complex litigation, the Stockholder Plaintiffs’ claims evolved to some extent after the SLC made its initial decision to take no position. But, the SLC has remained empowered to address the lawsuit and has reiterated as to some newer counts brought by the Stockholder Plaintiffs that it continues to take no position.165

Given this reality, the Stockholder Plaintiffs need not make a demand because demand would be futile. The SLC has had a full and fair opportunity to decide whether to prosecute the claims brought by the Stockholder Plaintiffs, seek them dismissal, or take no position and permit the Stockholder Plaintiffs to proceed. Having taken the latter course, the SLC recognized that the Stockholder Plaintiffs would go forward without the demand requirement being a barrier to their claims.166

The SLC’s decision, although unusual, is not unprecedented and, as noted, is likely inspired in some part by the cross-cutting pressures faced by AIG. The effect of that decision on this lawsuit is dictated by prior precedent, which is based on sound logic. In Kaplan v. Peat, Marwick, Mitchell & Co., the only case the parties have cited addressing a situation where a board that refused to take a position on derivative litigation, our Supreme Court found that:

When a corporation takes a position regarding a derivative action asserted on its behalf, it cannot effectively stand neutral. Because of the inherent nature of the derivative action, a corporation’s failure to object to a suit brought on its behalf must be viewed as an approval for the shareholders’ capacity to sue derivatively. We hold, therefore, that when a corporation chooses to take a position in regards to a derivative action asserted on its behalf, it must affirmatively object to or support the continuation of the litigation.167

*810Accordingly, the Supreme Court considered the board’s position of neutrality to be a “tacit approval for the continuation of the litigation.”168

The moving defendants seek to avoid this precedent by nitpicking and psychoanalyzing the SLC’s motivations. They argue that the SLC really did not approve of these suits, but merely considered allowing them to go forward to be the lesser of two evils. Specifically, they point to a statement the SLC’s counsel made to this court that the reason the SLC took no position was because the “defendants appeared to have good defenses and the SLC thought it not in the interest [of AIG], given pending class actions, to ventilate its investigative record.”169 The defendants argue that because the SLC chose not to oppose the claims because they feared that taking that route might expose information developed in the SLC’s investigation to parties with interests adverse to AIG, the SLC did not endorse the derivative claims, and thus the Stockholder Plaintiffs should be required to make a demand on the full board, which may not have the same concerns about disclosure.170

That reasoning, however, is unpersuasive. As stated above, the point of Rule 23.1 is to prevent stockholders from usurping the board’s right to manage the affairs of the corporation.171 Here, there is no such concern. AIG’s board has decided to give full authority to the SLC to address this litigation, and through its duly empowered SLC, the AIG board has had the chance to assert control over this lawsuit, prosecute some claims and dismiss others. Instead, it chose to take over two claims, seek the dismissal of certain defendants, and take no position on the rest of the litigation. Its decisionmaking primacy has been honored, and that is all our law requires.

The demand requirement is not, as these defendants would have it, an immunity shield for defendants. It is an assurance that the stockholders’ duly elected representatives control the legal rights of the corporation unless there is a basis for excusing their control. In fact, the particularized pleading requirement of Rule 23.1 is expressly designed to ensure that boards are not lightly bypassed by derivative plaintiffs; that is why a plaintiff hoping to avoid demand must plead particularized facts demonstrating the board’s inability to impartially respond to a demand or a breach of fiduciary duty claim.172 The latter method of bypass is related to the first, in the sense that if a *811plaintiff can satisfy a particularized pleading standard for pleading a fiduciary breach, the intuition is that the board faces a sufficiently real threat of liability that it cannot act objectively on the demand.173

When, however, a corporate board has had the chance to consider what position to take regarding a derivative suit and has decided to take no position, the resulting procedural implications are clear. Demand in such a situation is excused, and the derivative plaintiff is free to proceed against the defendants under the procedural rules ordinarily applicable. In particular, this means that the derivative plaintiff may survive dismissal of its complaint if it pleads a non-exculpated claim for breach of fiduciary duty under the plaintiff-friendly Rule 12(b)(6) standard.174

F. The Claims Against Matthews And Tizzio Are Not Timo-Barred

Finally, Matthews and Tizzio argue that the Stockholder Plaintiffs have not brought their claims in a timely manner and are thus barred from bringing them.175 Some of the frauds that are alleged in the Complaint date back over a decade. As a result, Matthews that Tizzio argue that the statutes of limitations on some of the frauds have long since run, and thus the Stockholder Plaintiffs can no longer bring claims based on them. Specifically at issue are the Municipal Derivatives Scheme, the Workers’ Compensation Scheme, and the C-GAITS transactions.

Under Delaware law, a cause of action normally accrues at the moment *812of the alleged harmful act.176 Even though this is a court of equity, equity follows the law, and this court will apply statutes of limitations by analogy.177 For a breach of fiduciary duty or fraud claim, the statute of limitation is three years.178

Tizzio argues that because the Workers’ Compensation Scheme ended in the 1990s, AIG’s stockholders have long since missed them chance to bring claims against him based on that Scheme. Similarly, Matthews notes that the only C-GAITS described in detail were sold to PNC in 2001 and no claim was brought against him until more than three years later, in Februaiy 2005. Finally, both Tizzio and Matthews argue that, by the Stockholder Plaintiffs’ own admission, the Municipal Derivatives Scheme ended in December 2003, and thus the claims relating to that fraud are barred because they were not asserted until April 2008.

But, the only reason that it took so long to bring any of these claims is because AIG’s public filings, upon which its stockholders were entitled to rely, concealed the wrongdoing. Under the doctrine of equitable tolling, if Matthews and Tizzio did betray AIG in the manner that the Stockholder Plaintiffs allege, Matthews and Tizzio cannot escape liability because it took time for AIG’s stockholders to discover their bad faith.179 “[T]he doctrine of equitable tolling stops the statute [of limitations] from running while a plaintiff has reasonably relied upon the competence and good faith of a fiduciary. No evidence of actual concealment is necessary in such a case....”180 Because their claims are brought outside the applicable limitations period, the Stockholder Plaintiffs must plead facts that support the existence of equitable tolling.181 But, if they meet this burden, and equitable tolling applies, the statute of limitations is tolled until the Stockholders Plaintiffs were “objectively aware of the facts giving rise to the wrong, ie., on inquiry notice.” 182

Tizzio attempts to circumvent this inquiry in the first instance by arguing that equitable tolling only applies to cases of pure self-dealing. Where fiduciaries have engaged in fraud that artificially inflates the corporation’s balance sheet, he *813says that equitable tolling does not apply. But, although he can point to some case law support for that assertion, I do not believe that position is an accurate reflection of our law. The obvious purpose of the equitable tolling doctrine is to ensure that fiduciaries cannot use their own success at concealing them misconduct as a method of immunizing themselves from accountability for their wrongdoing.183 Where the fiduciaries of a Delaware corporation engage in -wrongdoing that involves the manipulation of the corporation’s financial statements and public disclosures, and where the manipulation of those statements has the effect of misleading investors, it is no defense to argue that the stockholders were somehow on inquiry notice simply because the misconduct did not involve pure self-dealing. Many of the worst acts of fiduciary misconduct have involved frauds that personally benefited insiders as an indirect effect of directly inflating the corporation’s stock price by the artificial means of cooking the books. To allow fiduciaries who engaged in illegal conduct to wield a limitations defense against stockholders who relied in good faith on those fiduciaries when their disclosures provided no fair inquiry notice of claims would be inequitable.

Of course, the equitable tolling doctrine only applies if the Stockholder Plaintiffs were actually lulled into repose by AIG’s public filings. If AIG’s public filings had given the Stockholder Plaintiffs good reason to be suspicious about the existence of a claim more than three years before the filing of that claim — i.e., if the public filings provided them with inquiry notice— tolling would have then stopped and the Stockholder Plaintiffs would now be barred.184 But, neither Matthews nor Tiz-zio has pointed to public notice given by AIG that would have provided fair inquiry notice within the relevant time frame.185 *814Accordingly, the claims against them are not time-barred.186

Having addressed all of Matthews’ and Tizzio’s arguments, I now address the claims of the Employee Defendants’ argument that this court has no personal jurisdiction over them.

G. This Court Has No Jurisdiction Over The Employee Defendants Who Served Only As AIG Officers Or Employees

The Employee Defendants have all moved to have the claims against them dismissed for lack of personal jurisdiction. None of these defendants resides in Delaware, worked in Delaware for AIG, or committed an act in Delaware relevant to this case. Importantly, at the time of the wrongs of which they are accused, Delaware had not yet revised 10 Del. C. § 3114 to expand its scope to reach corporate officers.

The Employee Defendants argue that this court may not exercise personal jurisdiction over them. The Stockholder Plaintiffs have responded by relying upon the so-called “conspiracy theory” of personal jurisdiction, a theory most associated in our state’s jurisprudence with the Supreme Court’s decision in Istituto Bancar-io, which recognized that theory in our law.187 The Stockholder Plaintiffs argue that the Complaint pleads facts that satisfy the test outlined in Istituto and that the satisfaction of that test is enough to sustain this court’s jurisdiction.

The fundamental problem for the Stockholder Plaintiffs, however, is that the conspiracy test must, when deployed, satisfy both necessities for the exercise of personal jurisdiction over this court which are: 1) that a statute permits service of process on the defendants; and 2) that exerting jurisdiction over the defendants will not offend the Due Process Clause of the Fourteenth Amendment of the United States Constitution.188 Although the Stockholder Plaintiffs muster a good effort at showing why the latter requisite is met, they have not pointed to a statutory basis for service on the Employee Defendants.

The conspiracy theory of jurisdiction has often been used by plaintiffs in concert with Delaware’s long-arm statute, 10 Del. C. § 3104. The value of this combination is that acts of one conspirator that satisfy the long-arm statute can be attributed to the other conspirators.189 In par*815ticular, the theory has been successfully used in concert with § 3104(c)(3).190

Section 3104(c)(3) provides for personal jurisdiction over a defendant who “in person or through an agent: [c]auses tortious injury in the State by an act or omission in this state.” 191 For jurisdictional purposes, conspirators are considered agents of each other when acting in furtherance of the conspiracy.192 Thus, when the Istituto conspiracy test is met, § 3104(c)(3) is satisfied if one of the conspirators caused tortious injury in Delaware by an act in this state because the other conspirators are then deemed to have committed that act through an agent within the meaning of the statute.193

But, the insurmountable problem for the Stockholder Plaintiffs here is that their 211-page Complaint does not allege a single act in Delaware in furtherance of the fraudulent schemes that the Complaint details. Lacking an act in Delaware by a co-conspirator that can be imputed to the Employee Defendants, the Stockholder Plaintiffs have failed to articulate a viable statutory basis for this court’s exercise of personal jurisdiction over these defendants.194 Thus, the claims against *816them are dismissed without prejudice.195

H. New York Law Bars The Claims Against PWC

Finally, I address the motion to dismiss brought by PWC. The Complaint alleges that PWC committed malpractice, that as a result of that malpractice the fraudulent schemes at AIG were not timely discovered and rectified, and that AIG suffered more grievous harm than would have been the case had PWC lived up to Generally Accepted Audit Standards (“GAAS”). PWC argues that a New York variation of the in pari delicto doctrine bars the malpractice claim and a substantively similar breach of contract claim the Stockholder Plaintiffs assert against it. This New York rule immunizes an auditor if its client had top-level managers who knew of or participated in the financial wrongdoing that gave rise to the errors in the financial statements that the auditor certified as GAAP-compliant.196 And, it applies to immunize an auditor even if the auditor’s fulfillment of its professional duty of care would have resulted in the detection of the underlying fraud and the avoidance of harm to its client.197

The Stockholder Plaintiffs respond obliquely to this argument. I say obliquely because they largely avoid engaging PWC regarding the appropriate choice of law to apply to the claims against PWC. The Stockholder Plaintiffs then seek to ground the survival of their claims against the PWC in the application of the law of states other than New York.

*817As I next explain, I conclude that the malpractice and breach of contract claims against PWC are governed by New York law. I then conclude that PWC is correct about the immunity that New York appears to afford auditors in situations like this. I reach that conclusion reluctantly, because I do not believe that this rule of auditor immunity is, in the blunt manner in which it has been adopted, a sound one, and I expressly avoid any indication that the rule is one that Delaware law embraces. But, the weight of available New York authority suggests that this rule of auditor immunity is the law of New York. Thus, despite the fact that PWC was paid to use its professional skill in accordance with GAAS to ensure that AIG’s financial statements were prepared properly and to be alert to the possibility that the management of its client might engage in fraud,198 New York law bars any claim against PWC for any professional failures in this regard, even if those failures amounted to gross negligence. Therefore, New York law mandates that I dismiss the claims against PWC. I now explain this conclusion in more detail.

1. New York Law Applies To PWC’s Conduct

In resolving PWC’s motion to dismiss, I must first make a determination of what state’s law applies to the claims against PWC. Those claims are straightforward and related. PWC allegedly breached its contractual duties to AIG because it was contractually required to comply with GAAS in performing its duties and failed to do. The malpractice count is similar, and alleges that PWC acted negligently by failing to meet the professional standards expected of an auditor. According to PWC, New York applies to these claims because PWC performed most of its audit work through its New York office, which is in the same city where AIG was headquartered, and because PWC signed its audit opinions for AIG in New York.

In a rather weak attempt to avoid- New York law, the Stockholder Plaintiffs assert that PWC’s liability relates to the internal affairs of a Delaware corporation and thus is governed by our law under the internal affairs doctrine. But, the internal affairs doctrine, although potent, has very specific applications. That “doctrine governs the choice of law determinations involving matters peculiar to corporations, that is, those activities concerning the relationships inter se of the corporation, its directors, officers and shareholders.” 199 Although PWC’s role as an auditor relates to the internal affairs of the corporation, PWC was still a contractual agent employed by AIG to carry out certain contractual duties rather than a part of AIG. PWC’s role in helping AIG’s board ensure that the corporation prepared accurate books and records and maintained adequate internal controls is an important one to corporate stockholders and other coiporate constituencies, but a simple appeal to the internal affairs doctrine does not suffice to allow Delaware to impose its law on claims of any possible nature brought against the auditor, or any other third-party contractor, of a Delaware-chartered corporation. Rather, as our own Supreme Court has instructed, *818this court must determine choice of law questions like these by applying the traditional choice of law rules.200

Under our law, such choice of law questions are governed by the most significant relationship test of the Restatement (Second) of Conflict of Laws.201 I assume our Supreme Court has called on our courts to apply the Restatement principles precisely so as to promote consistency among the states and avoid unnecessary clashes of interest, where that can be sensibly achieved.202 I therefore approach the application of the Restatement with that goal in mind, which leads me to give deference to the official commentary to the Restatement even when that commentary might advocate an approach that, while rational, is not one that this court might adopt in the first instance if it were crafting the Restatement itself.203 In other words, I take the need to apply the Restatement faithfully regardless of whether it always points in the direction that this court might find optimal as a necessary cost of accepting the Restatement and the predictability it provides to parties seeking to understand their legal obligations before disputes arise.204 This consideration is important because the Restatement uses factors of such plasticity that it is possible to apply them on their face to a similar problem and reach divergent outcomes in a linguistically plausible manner.205

But, what I believe our Supreme Court rightly expects is that our state’s trial courts will try to apply the Restatement consistent with its official commentary and the weight of reasoned precedent following the Restatement.206 Using that approach, *819courts create the best chance to promote predictability.

Here, therefore, I hew to that approach and focus on the specific claims the Stockholder Plaintiffs make, which are for professional negligence and breach of contract. In the case of a tort like professional malpractice, the Restatement considers the following factors the most relevant:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and

(d) the place where the relationship, if any, between the parties is centered.207

Similarly, in a breach of contract action the Restatement considers:

(a) the place of contracting,

(b) the place of negotiation of the contract,

(c) the place of performance,

(d) the location of the subject matter of the contract, and

(e) the domicil, residence, nationality, place of incorporation and place of business of the parties.208

In accordance with the precedent of this state, I do not simply add up the number of contacts in applying these factors, but instead weigh them in the unique circumstances of the case at hand.209

Here, the relevant factors point mostly toward New York. In coming to that conclusion, I am somewhat hampered by the procedural posture of this case. The Complaint avoids any fact pleading about where PWC did its work for AIG, and the Stockholder Plaintiffs stress that AIG is a Delaware corporation and that PWC is a Delaware limited liability partnership.210

But, a fair reading of the Complaint and the documents it incorporates indicates that PWC performed most of its audit services in New York, and performed no acts in Delaware that are relevant to the claims against it. In particular, PWC signed its audit letters relating to the financial statements that were later restated in New York.211 And, although it is a multinational company with offices around the world, AIG maintains its “principal executive office” in New York City.212 Notably, the Complaint is filled with details regarding how involved in the fraudulent schemes AIG’s top managers were, managers who worked out of AIG’s headquarters. It is fairly inferable given where the audit letters were signed and where most of the fraudulent conduct occurred that most of PWC’s work was also done in that same state, which is New York. Indeed, the only fair inference is that PWC performed *820most of its work in New York or somewhere other than Delaware, as the Complaint alleges no actions of any kind in Delaware.

For both torts like negligence and for breach of contract claims, the Restatement gives substantial weight to the place of performance of the acts that were negligent or that breached the contract. Those factors both favor New York, and so does the related factor of where the relationship between AIG and PWC was centered. Moreover, factors like the place of contracting or negotiation do not favor Delaware, as the Stockholder Plaintiffs fail to allege that PWC and AIG contracted or negotiated in Delaware. Indeed, given what is pled in the Complaint, it seems probable that those factors would, after discovery, also tilt the analysis toward New York.

The applicability of New York law under the Restatement’s test is also reinforced by the fact that, to the extent the place of AIG’s injury or its domicile are relevant, those questions favor the application of New York law. In this regard, the Restatement is, to my mind, more than a bit outmoded in the weight it gives to the physical in its examination of these factors. That is, the Restatement cares more about where a corporation has physical assets than about where the corporation is centered from the perspective of those most interested in its financial health — its investors and creditors. Thus, the commentary to the Restatement indicates that a corporation’s principal place of business is a more important connection than the corporation’s state of incorporation for determining both where a corporation is domiciled and where the injury to a corporation occurs.213 Regardless of whether a reasonable mind can quibble with that approach, it is the Restatement’s approach and the Restatement is what this court is bound to follow. Moreover, even if one were to deem an injury to have occurred to AIG in Delaware, one could not deny that AIG also suffered an injury in New York. In some genuine sense, financial injuries of the kind at issue here are suffered by AIG wherever it is present.

Taken together, the Restatement factors therefore tilt in favor of New York. Importantly, to my mind, other courts that have addressed similar situations when corporations have sued outside professionals for malpractice or breach of contract have normally read the Restatement as requiring the application of the law of the state where the work was performed when that is also the state where the corporation was headquartered.214 The trend of the au*821thority in that direction is not entirely surprising, as it is consistent with the notion that professionals practicing in a certain state should be able to practice in reliance upon the law of that state.215 This is not to say that there is not an argument that the practice of auditing public companies that are chartered by another state should subject the auditor to the responsibility to answer to the laws of the chartering state, it is only to admit that the trend of the authority toward using the law of the state where the professional did its work when that location coincided with the corporation’s headquarters is defensible.

That said, I confess to being troubled by the implications that, as will soon be seen, result from the application of New York law. To my mind, Delaware has a substantial policy interest in protecting investors in its corporations, as well as the other constituencies — such as providers of debt capital — vital to corporate success. This policy interest is, in my view, implicated by the question of whether the corporation may hold its auditors accountable for meeting their professional obligations to the firm. Indeed, as we shall see, the New York law immunizing auditors is itself in part inspired by views about the respective responsibility of corporate directors and company auditors for using due care to detect fraud by insiders. Arguably, the state of incorporation that addresses the internal affairs of the corporation has a more important policy interest than the state where the corporation is headquartered and the auditors performed their work. If the outside auditor’s fulfillment of its important gatekeeping duties is, as I think, important to ensuring that Delaware corporations comply with their legal duties and conduct them affairs in a way that advances them investor’s interests, it is troubling to think that another state’s law could render an auditor immune from accountability.216

These considerations are on my mind as I turn to the final step in the choice of law analysis. Having applied the Restatement’s tort- and contract-specific considerations, I must apply § 6 of the Restatement, which entitles me to consider general policy issues, including Delaware’s public policy and the unique nature of accountants for public corporations in making my choice of law determination.217 It is frankly tempting to give heavy weight to this factor and slight the Restatement’s emphasis on physical location in addressing contract and negligence claims. But, to give into that temptation would undercut the predictability that should flow from use of the Restatement. Although the Restatement may be outmoded, its directional guidance is not un*822clear and it points to our sister state, New York.

In reaching this conclusion, however, I will make one important caveat. Had the Stockholder Plaintiffs accused PWC of aiding and abetting breaches of fiduciary duty, my choice of law determination might be quite different. Under Delaware law, a complaint for aiding and abetting a breach of fiduciary duty can only be sustained if the pled facts support an inference that the defendant knowingly helped a fiduciary breach her fiduciary duties.218 If the Complaint stated a claim that PWC was a knowing accomplice in serious breaches of fiduciary duty injuring a Delaware corporation, Delaware’s policy interest would, it seems to me, be paramount. Although another state might have a policy interest in applying its own standards of professional accountability to auditors practicing within its borders, it is difficult to see how such a state could exculpate an auditor for knowing complicity in a breach of fiduciary duty against a Delaware corporation and trump Delaware’s interest in holding the auditor accountable for its purposeful wrongdoing.219 In other words, it would be more difficult for Delaware to give way if the professional is alleged to have been a knowing accomplice in a scheme to injure a Delaware corporation than when a professional is only accused of failing to live up to professional standards.220

Because PWC only faces claims for malpractice and breach of contract, rather than claims that it consciously aided wrongful managerial misconduct, I apply New York law to the claims against it.

2. New Yor/c Law Makes PWC Immune From The Stockholder Plaintiffs’ Claims

Having determined that New York law applies, I must apply the in pari delicto doctrine as the New York Court of Appeals likely would.221 In a situation like *823this one, where the New York Court of Appeals has not spoken definitively on the question at hand, I must consider the available precedent from other courts applying New York law, and come to a reasoned prediction about how the New York Court of Appeals would decide this motion. In this predictive process, I note the strong weight New York State courts give to federal court rulings applying New York law, particularly those of the U.S. Court of Appeals for the Second Circuit.222

New York has embraced a very strong version of in pari delicto doctrine, which bars one tortfeasor from suing another tortfeasor for harm the first tortfeasor suffered because of their joint wrongdoing.223 This doctrine is based, in part, on the notions that courts should not have to sum up accounts between wrongdoers engaged in an illegal enterprise.224

In this context, in pari delicto comes into play because of agency principles that are traditionally used to hold a corporation liable for acts of its directors, officers, employees, and agents. Agency law imputes employees’ official misconduct (or torts committed in the course of business) to the corporation.225 Under that traditional principle, a corporation can be held liable for wrongful acts of its directors and officers on behalf of the corporation that injure third parties.226

New York and many other states use these same agency law principles in cases where the corporation seeks to sue other parties who allegedly conspired with corporate insiders in committing tortious or illegal acts in their official capacities. Because the corporation is deemed to have known what its directors and officers knew, if any of those directors and officers committed a wrong, the corporation is deemed to have known about and approved that act.227 Thus, the wrongdoing is imputed to the corporation, and third-parties alleged to have conspired with the corporate insiders in the wrongdoing may raise the defense of in pari delicto. Specifically, New York law presumes “ ‘that an agent [will normally] discharge [ ] his duty to disclose to his principal all the material facts coming to his knowledge with reference to the subject of his agency,’ and thus any misconduct engaged in by a manager is with — at least— his corporation’s tacit consent.” 228 Ac-*824eordingly, if imputation applies, AIG is deemed to have participated in its directors’, officers’, and employees’ fraudulent schemes and AIG is deemed to have been as or more guilty of wrongdoing than its auditor, PWC, AIG is barred from recovering against PWC.229

The New York Court of Appeals has applied these principles of imputation firmly, subject only to a narrow exception where “the agent [has] totally abandoned his principal’s interests and [is] acting entirely for his own or another’s purposes.” 230 Termed the “adverse interest exception,” this carve out is an extremely narrow one. “It cannot be invoked merely because [an agent] has a conflict of interest or because he is not acting primarily for his principal.”231 As a result, New York courts have stated that knowledge is imputed as long as a corporation benefited “to any extent” from an agent’s actions.232

The U.S. Court of Appeals for the Second Circuit has had a major influence in shaping the current New York approach to in pari delicto, under the Wagoner233 line of cases. This line of eases refashions the in pari delicto doctrine into a rule of standing, and the Second Circuit has broadly framed the Wagoner rule as barring a corporation from bringing “[a] claim against a third party for defrauding a corporation with the cooperation of management.” 234 This line of cases was, in turn, heavily influenced by a Seventh Circuit decision, Cenco Inc. v. Seidman & Seidman. 235 Cenco is a free-ranging opinion, *825which at bottom is rested on the notion that:

Fraud on behalf of a corporation is not the same thing as fraud against it. Fraud against the corporation usually hurts just the corporation; the stockholders are the principal if not only victims; their equities vis-a-vis a careless or reckless auditor are therefore strong. But the stockholders of a corporation whose officers commit fraud for the benefit of the corporation are beneficiaries of the fraud. Maybe not net beneficiaries, after the fraud is unmasked and the corporation is sued — that is a question of damages, and is not before us. But the primary costs of a fraud on the corporation’s behalf are borne not by the stockholders but by outsiders to the corporation, and the stockholders should not be allowed to escape all responsibility for such a fraud, as they are trying to do in this case.236

Following this judgment in applying agency principles and Wagoner, the New York courts have imputed the knowledge of faithless directors, officers, and employees even where the corporation had independent directors and there is no evidence that the wrongdoer brought the fraud to the independent directors’ attention.237 In that regard, the recent trend of New York law has been strongly against the adoption of a so-called innocent insider exception, which would limit the use of the in pari delicto doctrine in a situation where there were independent directors without knowledge of the wrongdoing.238 The Stockholder Plaintiffs have cited no New York authority suggesting that the New York Court of Appeals would buck this strong trend.

And, critically for AIG’s claims, New York courts have consistently applied the in pari delicto doctrine to bar claims against auditors in situations where the auditors failed to detect or expose fraud committed by top corporate managers.239 *826In taking that approach, these decisions appear to have been heavily influenced by the Seventh Circuit’s free-wheeling opinion in Cenco, which is essentially based on the notion that immunizing auditors from malpractice claims, even in situations where the auditor’s compliance with professional standards might have helped catch the fraud and limit the harm to the corporation, is good policy because it incentivizes independent directors and even stockholders to be effective monitors of managerial behavior.240 Cenco thus simplifies the complexity in statements such as this one:

From the standpoint of deterrence, the question is whether the type of fraud that engulfed Cenco between 1970 and 1975 will be deterred more effectively if Cenco can shift the entire cost of the fraud from itself (which is to say, from its stockholders’ pockets) to the independent auditor who failed to prevent the fraud. We think not.241

Cenco even blithely takes the same position as to conscious auditor participation in the fraud.242

Although the New York Court of Appeals has itself never addressed the application of the Wagoner line of cases to a claim against an auditor like PWC, the New York cases that do exist have consistently applied this law to claims against auditors in these circumstances, and the Stockholder Plaintiffs have not cited to any decision under New York law which suggests that the New York Court of Appeals would take a different position than the decisions reached by state trial courts in New York and by federal courts applying New York law. Rather, the New York courts have warmly embraced Wagoner and the Cenco approach, and have moved away from embracing an innocent insider exception.

Therefore, unless the Complaint pleads facts that give rise to a reasonable inference that all of the AIG insiders had totally abandoned AIG’s interests and that the narrow adverse interest exception applies, I must dismiss the claims against PWC.

Although the Stockholder Plaintiffs argue that the Complaint contains facts supporting the applicability of the adverse interest exception, that argument is not supported by the Complaint itself. Even read in the most plaintiff-friendly way, the Complaint contends that the fraud was not implemented solely to benefit the insiders committing it. No doubt many of the AIG insiders stood to reap indirect personal benefits if AIG’s stock price stayed artificially high or if AIG reaped revenue from selling questionable income-smoothing products, receiving its healthy share of rigged bids, or secretly buying up elderly people’s insurance policies. And, although *827some courts applying New York law have arguably strained logic and linguistics to avoid applying the adverse interest exception faithfully, this court must apply the test as it has been articulated by the New York Court of Appeals.243 As indicated, that exception only applies when the corporate insiders have acted entirely for their own benefit and without any intention to benefit the corporation. That is not the situation that existed here. The pled facts do not support any inference except that Greenberg and his subordinates wanted AIG to benefit in the first instance from the misconduct, and that they would derive their gains from those reaped by AIG, in the form of higher actual revenues, higher reported earnings, and a higher stock price.

Thus, the Complaint is replete with ways in which AIG itself can be thought to have benefited from the fraudulent schemes, even if those benefits turned out to be short-lived once the fraud was discovered. For example, the Complaint alleges that the manipulation of AIG’s loss reserves in the Gen Re transaction may have been done to keep AIG’s stock price high, so that AIG could use that acquisition currency “to more cheaply acquire an unrelated insurance company.” 244 Similarly, by engaging in the various accounting frauds, the AIG directors were acting to make AIG more attractive to investors. The schemes to avoid taxes temporarily provided AIG with more money because it had to pay out less cash to various governments. AIG’s bid-rigging schemes were done to secure business for AIG. And, AIG sold income-smoothing products to other companies to make money. These efforts ultimately backfired and AIG was exposed to liability that erased any fraudulently crafted appearance of health and forced AIG to pay out fines, but the Complaint does not support any conclusion other than that AIG’s directors and officers acted, at least in part, to benefit AIG. In reaching this conclusion, I note that in applying the in pari delicto doctrine, New York law does not embrace the notion that any conscious act of a fiduciary causing a corporation to break the law is against the corporation’s charter and best interests. In the in pari delicto context, what the adverse interest test is directed to is whether the insider is essentially stealing from the corporation as opposed to engaging in improper acts that, even if also self-interested, have the effect of benefiting the corporation financially, even if that benefit rested on illegal accounting or other illicit conduct.

Given that the adverse interest exception does not apply, the wrongdoing of AIG’s directors, officers, and employees is imputed to AIG and the in pari delicto doctrine bars the malpractice and breach of contract claims against PWC.245 This is *828an outcome dictated by New York law and does not necessarily reflect the outcome that would be reached if Delaware applied.246 Accordingly I dismiss the claims *830against PWC. Because the New York *831Court of Appeals has not addressed the applicable issues with certainty, I dismiss the claims without prejudice.247

IV. Conclusion

For the foregoing reasons, the claims against the Employee Defendants (i.e., Michael Castelli, Christian M. Milton, Karen Radke, Carlos Coello) and Pricewaterhou-seCoopers LLP are dismissed without prejudice. The motions to dismiss or strike the First Amended Combined Complaint filed by defendants Maurice Green-berg, Edward E. Matthews, Thomas R. Tizzio, and Howard I. Smith are denied. IT IS SO ORDERED.