Wednesday, April 27, 2016

Derivative suits and the futility of making a demand of the board.

Practice point:  Business Corporation Law § 626(c) provides that in a shareholders' derivative suit, "the complaint shall set forth with particularity the efforts of the plaintiff to secure the initiation of such action by the board or the reasons for not making such effort."  To overcome a motion to dismiss for failure to plead demand futility, a plaintiff must have alleged with particularity that (1) a majority of the directors are interested in the transaction, or (2) the directors failed to inform themselves to a degree reasonably necessary about the transaction, or (3) the directors failed to exercise their business judgement in approving the transaction.

Student note:  The Appellate Division did not consider plaintiff's argument because it was made for the first time on appeal, and it contradicted the allegations in his complaint.

Case:  Goldstein v. Bass, NY Slip Op 03060 (1st Dep't 2016)

Here is the deision.

Tomorrow's issue:  The common interest privilege.