Halebian v. Berv (2009)

Nor is the Trustees’ independence called into question by (1) the Trustees’ use of echo-voting, see Halebian II, 590 F.3d at 210 (holding that, regardless of its legality, there was no evidence that Trustees knew that “echo-voting” was illegal or that they misled investors in Proxy Statement); (2) the Trustees’ approval of an investment advisory agreement with a “soft dollars” provision, see generally Krantz v. Fidelity Mgmt. & Research Co., 98 F.Supp.2d at 156-57 (rejecting…

Defendants cite a number of cases from other circuits for the proposition that abuse-of-discretion review applies when the determination of the sufficiency of allegations of demand futility “depends on the circumstances of the individual case.” See, e.g., Halebian v. Berv, 590 F.3d 195, 203 (2d Cir.2009); Kanter v. Barella, 489 F.3d 170 , 175 (3d Cir.2007).

SACK, Circuit Judge: Descriptions of the facts underlying this appeal have now been published in three different reported decisions — in the opinion of the United States District Court for the Southern District of New York, Halebian v. Berv (“Halebian I”), 631 F.Supp.2d 284, 287-91 (S.D.N.Y.2007); in this Court’s previous opinion certifying a question of state law to the Supreme Judicial Court of Massachusetts, Halebian v. Berv (“Halebian II”), 590 F.3d 195, 199-203 (2d Cir.…

Gomes, 710 F.3d at 815 (quoting Halebian v. Berv, 590 F.3d 195, 211 (2d Cir. 2009), abrogated on other grounds by Espinoza ex rel.

We have stated that “[wjhere ‘determination of the sufficiency of allegations of futility depends on the circumstances of the individual case, the standard of review for. dismissals based on Fed.R.Civ.P. 23.1 is abuse of discretion.’ ” Halebian v. Berv, 590 F.3d 195, 203 (2d Cir.2009) (quoting Scalisi v. Fund Asset Mgmt., L.P., 380 F.3d 133, 137 (2d Cir.2004)).

Rather, it is “a rule of pleading” that “requires that the complaint in such a case allege the facts that will enable a federal court to decide whether such a demand requirement has been satisfied.” Halebian v. Berv, 590 F.3d 195, 211 (2d Cir.2009) (internal quotations omitted).

Where “determination of the sufficiency of allegations of futility depends on the circumstances of the individual case, the standard of review for dismissals based on Fed.R.Civ.P. 23.1 is abuse of discretion.” 1 Halebian v. Berv, 590 F.3d 195, 203 (2d Cir.2009) (citation omitted).

Halebian v. Berv, 590 F.3d 195, 204 (2d Cir.2009).

Halebian v. Berv, 590 F.3d 195, 206 (2d Cir.2009); May v. Coffey, 291 Conn. 106 , 967 A.2d 495 , 501 n. 6 (2009).

See Halebian I, 631 F.Supp.2d at 287-91 ; Halebian v. Berv (“Halebian II”), 590 F.3d 195, 199-203 (2d Cir.2009); Halebian v. Berv (“Halebian III”), 457 Mass. 620, 621-24 , 931 N.E.2d 986, 987-89 (2010); Halebian v. Berv (“Halebian IV”), 644 F.3d 122, 124-27 (2d Cir.2011).

Century Cos., 710 F.3d 811, 815 (8th Cir.2013) (citing Kamen, 500 U.S. at 96 , 111 S.Ct. 1711 and Halebian v. Berv, 590 F.3d 195, 211 (2d Cir.2009)).

Laws ch. 156D, § 7.44, be applied to a derivative complaint filed timely under section 7.42 but prior to a corporation’s rejection of the demand that serves as the basis for the suit?” Halebian v. Berv, 590 F.3d 195, 214 (2d Cir. 2009).

Halebian v. Berv, 590 F.3d 195, 204 (2d Cir.2009) (quoting Fed.

As to the procedural component, “the pleading of derivative actions must satisfy the requirements set forth in” Federal Rule of Civil Procedure 23.1, which requires that a complaint asserting derivative claims “ ‘state with particularity ... any effort by the plaintiff to obtain the desired action from the directors or comparable authority and, if necessary, from the shareholders or members; and ... the reasons for not obtaining the action or not making the effort.’ ” Halebi…

Pleading Standard Under Rule 23.1 In addition to the general pleading requirements set forth in the Federal Rules of Civil Procedure, “the pleading of derivative actions must satisfy the requirements set forth in Rule 23.1 of the Rules.” Halebian v. Berv, 590 F.3d 195, 204 (2d Cir. 2009).

Oct. 14, 2014) (citing Halebian v. Berv, 590 F.3d 195, 203 (2d Cir. 2009)). laintiff’s claims.

Halebian, 590 F.3d at 206-07 (abrogated on other grounds by Espinoza ex rel.

“Rule 23.1 is a ‘rule of pleading that creates a federal standard as to the specificity of facts alleged with regard to efforts made to urge a corporation’s directors to bring the action in question.’ ” Halebian v. Berv, 590 F.3d 195, 204 (2d Cir.2009) (quoting RCM Secs.

Halebian v. Berv, 590 F.3d 195, 204 (2d Cir.2009) (quoting Fed.R.Civ.P. 23.1). .

While Rule 23.1 governs the procedural aspects of the demand requirement, the second, substantive dimension of the demand requirement, which concerns the adequacy of the efforts actually put forth by a'plaintiff, is governed by state law.”) Rule 23.1 is solely concerned with the adequacy of the SAC, “merely requiring] that, [it] allege the facts that will enable [the] court to decide whether such a demand requirement has been satisfied.” Halebian v. Berv, 590 F.3d 195, 211 (…

Importantly, this approach is more often applied to claims under RICO, see Rand, 794 F.2d at 849 , or under the Investment Act of 1940 which incorporates application of state law, see Halebian v. Berv, 590 F.3d 195, 208 (2d Cir.2009).

Halebian v. Berv, 590 F.3d 195, 199 (2d Cir.2009) (citation omitted). 4 The Court is to accept the factual matters pled in the complaint as true and draw all reasonable inferences in plaintiffs’ favor, unless the allegations are supported by mere conelusory statements.

Rule 23.1 is a “rule of pleading that creates a federal standard as to the specificity of facts alleged with regard to efforts made to urge a corporation’s directors to bring the action in question.” Halebian v. Berv, 590 F.3d 195, 211 (2d Cir.2009) (citation omitted).

See Halebian v. Berv, 590 F.3d 195, 203 (2d Cir. 2009); Scalisi, 380 F.3d at 137 .

See Halebian v. Berv, 590 F.3d 195, 203 (2d Cir.2009); Scalisi, 380 F.3d at 137 .

See Halebian v. Berv, 590 F.3d 195, 203 (2d Cir. 15 2009); Scalisi, 380 F.3d at 137 .

See Halebian v. Berv, 590 F.3d 195, 203 (2d Cir. 15 2009); Scalisi, 380 F.3d at 137 .

Id.; see also Halebian v. Berv, 590 F.3d 195, 204 (2d Cir.2009) (“The underlying demand requirement, ... is ... governed by state law.”).

See Halebian v. Berv, 590 F.3d 195, 204 (2d Cir.2009).

See Halebian v. Berv, 590 F.3d 195, 211 (2d Cir.2009).

See generally Halebian v. Berv, 590 F.3d 195, 211 (2d Cir. 2009) (stating that Rule 23.1 is a “rule of pleading that creates a federal standard” enabling federal courts to evaluate whether a plaintiff has adequately pleaded a claim under substantive state law), unrelated certified question answered, 457 Mass. 620 (2010), and abrogated on other grounds by Espinoza ex rel.

See 590 F.3d 195, 209-10 (2d Cir. 2009) (subsequent history on unrelated grounds omitted from citation). 22 of any injury to the corporation and implicates a duty of disclosure owed to shareholders.”).

See Halebian v. Berv, 590 F.3d 195, 211 (2d Cir.2009)) BoA moves to dismiss Steinberg’s complaint for failure to comply with either of these rules.

See Halebian v. Berv, 590 F.3d 195, 204 (2d Cir.2009) (“[Wjhether the action is properly classified as derivative or direct is ordinarily determined by state law.”).

See Halebian v. Berv, 590 F.3d 195, 204 (2d Cir.2009) (holding demand requirement, “in delimiting the respective powers of the individual shareholder and of the directors to control corporate litigation,” is a matter of “substance” and therefore governed by state law).

See Halebian v. Berv, 590 F.3d 195, 204 (2d Cir.2009) (“The underlying demand requirement ... in delimiting the respective powers of the individual shareholder and of the directors to control corporate litigation[,] clearly is a matter of ‘substance,’ not ‘procedure.’ It is therefore governed by state law.” (internal citations and quotation marks omitted)).