corporate claim in Delaware

2015A corporate claim is an asset of the corporation, so authority over the claim ordinarily rests with the board of directors.1 The power and authority afforded to directors by Section 141(a) of the DGCL 1 Aronson v. Lewis, 473 A.2d 805, 811 (Del. 1984).

1996See Aronson, 473 A.2d at 815 ; Pogostin v. Rice, Del.Supr., 480 A.2d 619, 625 (1984).

2023C. § 141(a)) (subsequent history omitted)); Zapata Corp. v. Maldonado, 430 A.2d 779, 782 (Del. 1981) (explaining that the board’s authority to manage the corporation encompasses the power to decide whether the corporation should litigate a corporate claim). 12 Rales v. Blasband, 634 A.2d 927, 932 (Del. 1993) (subsequent history omitted). 13 Ct. Ch.

2015A corporate claim is an asset of the coloration, so authority over the claim ordinarily rests with the board of directors. 1 The power and authority afforded to directors by Section 141(a) of the DGCL “encompasses decisions ■ whether to initiate, or refrain from entering, litigation.” Zapata Corp. v. Maldonado, 430 A.2d 779, 782 (Del. 1981) (footnote omitted).

2023R. 23.1(a). 14 Brehm v. Eisner, 746 A.2d 244, 254 (Del. 2000). 15 Wood v. Baum, 953 A.2d 126 , 140 (Del. 2008) (emphasis in original) (internal quotation marks omitted).

2023Accord Grobow v. Perot, 539 A.2d 180, 187 (Del. 1988) (“A trial court need not blindly accept all allegations as true . . . .”) (subsequent history omitted); see also Brehm, 746 A.2d at 255 (Rule 23.1 “does not permit a stockholder to cause the corporation to expend money and resources in discovery and trial in the stockholder’s quixotic pursuit of a purported corporate claim based solely on conclusions, opinions or speculation.”).

2023See El Paso, 113 A.3d at 179–80.

2023See El Paso, 113 A.3d at 179–80.

2019For the reasons explained below, I hold that Plaintiff fails to allege particularized facts sufficient to create a reasonable doubt as to the three Audit Committee members who together with Peterson, Shackouls, and Burk constitute a majority of the board of directors. “[T]he independence inquiry requires us to determine whether there is a reasonable doubt that any one of these . . . directors is capable of objectively making a business decision to assert or not assert a corporate claim against [defendant].” 82 “Delaware law is clear that directors are presumed to be independent for purposes of

2019The test for [establishing demand futility on this ground] is thus necessarily high, similar to the legal test for waste.”). 108 Sandys v. Pincus, 152 A.3d 124, 128 (Del. 2016) (quoting Sanchez, 124 A.3d at 1023 n.25); see also Beam v. Stewart, 845 A.2d 1040, 1049 (Del. 2004) (“the independence inquiry requires us to determine whether there is a reasonable doubt that any one of these three directors is capable of objectively making a business decision to assert or not assert a corporate claim”). 38 determination made in the context of a particular case.

2004See, e.g., Parnes v. Bally Entm't Corp., 722 A.2d 1243, 1245 (Del.1999) ("Since a stockholder suing derivatively is bringing a corporate claim not a personal one, the stockholder must maintain his or her status as a stockholder in order to continue the litigation.”); In re First Interstate Bancorp Consol.

2000Parnes v. Bally Entertainment Corp., Del.Supr., 722 A.2d 1243, 1245 (1999) ("Since a stockholder suing derivatively is bringing a corporate claim, not a personal one, the stockholder must maintain his or her status as a stockholder in order to continue the litigation.”); Kramer v. Western Pac.

2023Corp. Litig., 669 A.2d 59, 70 (Del. 1995))).

1996Id. at 70 .

1996See Aronson, 473 A.2d at 815 ; Pogostin v. Rice, Del.Supr., 480 A.2d 619, 625 (1984).

1986Aronson, 473 A.2d at 812 ; and Pogostin v. Rice, Del.Supr., 480 A.2d 619 (1984).

2023Accord Grobow v. Perot, 539 A.2d 180, 187 (Del. 1988) (“A trial court need not blindly accept all allegations as true . . . .”) (subsequent history omitted); see also Brehm, 746 A.2d at 255 (Rule 23.1 “does not permit a stockholder to cause the corporation to expend money and resources in discovery and trial in the stockholder’s quixotic pursuit of a purported corporate claim based solely on conclusions, opinions or speculation.”).

2023C. § 141(a)) (subsequent history omitted)); Zapata Corp. v. Maldonado, 430 A.2d 779, 782 (Del. 1981) (explaining that the board’s authority to manage the corporation encompasses the power to decide whether the corporation should litigate a corporate claim). 12 Rales v. Blasband, 634 A.2d 927, 932 (Del. 1993) (subsequent history omitted). 13 Ct. Ch.

2023On a Rule 12(c) motion, the Court may consider documents integral to the pleadings, including documents incorporated by reference and exhibits attached to the pleadings, and facts subject to judicial notice.” (footnotes and citations omitted)), aff’d, 237 A.3d 68 , 2020 WL 4207625 (Del. 2020) (TABLE); 7547 P’rs v. Beck, 682 A.2d 160, 163 (Del. 1996) (“[W]here there is a corporate claim based upon inadequate or misleading disclosures, a court may refer to A. Defendant MiraDx, Inc. (“MiraDx” or the “Company”) is a Delaware corporation that “was founded and continues to conduct cancer research ai

2019The test for [establishing demand futility on this ground] is thus necessarily high, similar to the legal test for waste.”). 108 Sandys v. Pincus, 152 A.3d 124, 128 (Del. 2016) (quoting Sanchez, 124 A.3d at 1023 n.25); see also Beam v. Stewart, 845 A.2d 1040, 1049 (Del. 2004) (“the independence inquiry requires us to determine whether there is a reasonable doubt that any one of these three directors is capable of objectively making a business decision to assert or not assert a corporate claim”). 38 determination made in the context of a particular case.

2016“Both the old and new indemnification statute declare that their provisions are not exclusive of other rights under any ‘by-law, agreement, vote of stockholders or disinterested directors or otherwise.’”65 The drafting committee said the power to indemnify was “non-exclusive so that other rights to indemnification may still exist by contract, by-law or charter within such limits of public policy as the courts may establish.”66 “Thus, one may become entitled to indemnification outside the terms of the statute by virtue of an express contract awarding indemnity, such as an 63 131 A.3d 325, 332-4

2015See Lewis v. Ward, 852 A.2d 896, 900-901 (Del.2004).

2004S'holder Litig., 729 A.2d 851, 867 (Del.Ch.1998), aff'd sub nom.

2000Indus., Del.Supr., 546 A.2d 348, 354 (1988). 11 .

1992See generally Strain v. Seven Hills Assocs., L.P., 75 A.D.2d 360 , 429 N.Y.S.2d 424, 431-32 (1980) (after noting that stockholders and limited partners hold similar positions within their respective entities, the Court looked to corporate law for guidance in determining the nature of a suit by a limited partner); Field Enters. v. Gresser, 160 Wis.2d 45 , 468 N.W.2d 30 (TABLE) (1990) (text in Westlaw, at 19) (the Court looked to the corporate standard contained in Bio-Scientific Laboratory, Inc. v. Todd, 149 Ill.App.3d 845 , 103 Ill.

1992Dec. 171 , 174-75, 501 N.E.2d 192, 195-96 (1986) for the determination of whether a lawsuit was direct or derivative), appeal denied, Wis.Supr., 471 N.W.2d 509 (1991); 59A Am.Jur.2d Partnership § 1397 (1987) (author states that corporate law may be looked to for guidance in the determination of whether an action by a limited partner is derivative or direct).

1992See generally Strain v. Seven Hills Assocs., L.P., 75 A.D.2d 360 , 429 N.Y.S.2d 424, 431-32 (1980) (after noting that stockholders and limited partners hold similar positions within their respective entities, the Court looked to corporate law for guidance in determining the nature of a suit by a limited partner); Field Enters. v. Gresser, 160 Wis.2d 45 , 468 N.W.2d 30 (TABLE) (1990) (text in Westlaw, at 19) (the Court looked to the corporate standard contained in Bio-Scientific Laboratory, Inc. v. Todd, 149 Ill.App.3d 845 , 103 Ill.

1992See generally Strain v. Seven Hills Assocs., L.P., 75 A.D.2d 360 , 429 N.Y.S.2d 424, 431-32 (1980) (after noting that stockholders and limited partners hold similar positions within their respective entities, the Court looked to corporate law for guidance in determining the nature of a suit by a limited partner); Field Enters. v. Gresser, 160 Wis.2d 45 , 468 N.W.2d 30 (TABLE) (1990) (text in Westlaw, at 19) (the Court looked to the corporate standard contained in Bio-Scientific Laboratory, Inc. v. Todd, 149 Ill.App.3d 845 , 103 Ill.