In Sirott v. Superior Court, 2022 Cal. App. LEXIS 389 (Cal. App. May 5, 2022), the First Appellate District of the California Court of Appeal (Humes, J.) analyzed the ownership requirements a plaintiff must satisfy to pursue derivative claims on behalf of a limited liability company.  Under California Corporations Code § 17709.02 (“Section 17709.02”), a putative derivative plaintiff must show both “contemporaneous” and “continuous” ownership to proceed with a derivative lawsuit.  Subject to certain statutorily defined exceptions, the contemporaneous ownership prerequisite requires the plaintiff to plead that it was a member of the limited liability company at the time of the transaction or any part of the transaction of which the plaintiff complains took place.  The continuous ownership requirement, in turn, obligates the plaintiff to remain a member of the limited liability company through the conclusion of the litigation.  In Sirott, the plaintiff’s derivative claims were properly ordered dismissed because the plaintiff lacked standing after it lost its interest in the limited liability company—i.e., the real party in interest with respect to the derivative claims.    Continue Reading California Court of Appeal Clarifies that a Derivative Plaintiff Must Demonstrate Both “Contemporaneous” and “Continuous” Ownership to Maintain a Derivative Suit on Behalf of a Limited Liability Company

In Crest v. Padilla, No. 20STCV37513 (Cal. Super. Apr. 1, 2022), the Superior Court of California for the County of Los Angeles (Green, J.) declared that Section 301.4 of the California Corporations Code is unconstitutional under the California state Constitution.  Section 301.4 requires publicly held corporations which have their principal executive offices located in California to include “underrepresented communities” on their boards of directors.  The trial court granted the taxpayer plaintiffs’ motion for summary judgment, concluding that the statute violated equal protection clause of the California Constitution.  The court’s decision renders the constitutionality of Section 301.4 ripe for appellate review by the California Court of Appeal.
Continue Reading Los Angeles Superior Court Invalidates California Board Diversity Statute, Rendering It Ripe for Review by the California Court of Appeal

In Tola v. Bryant, No. 16150, 2022 Cal. App. LEXIS 241 (Cal. App. Mar. 24, 2022), the First Appellate District of the California Court of Appeal applied Delaware’s new formulation of the test for determining whether a stockholder has standing to assert derivative claims on behalf of a company.  Under the test articulated by the Delaware Supreme Court in United Food & Commercial Workers Union v. Zuckerberg, 262 A.3d 1034, 1058 (Del. 2021), a stockholder of a Delaware corporation has standing to assert derivative claims when the stockholder can plead particularized facts, on a director-by-director basis, demonstrating that at least half of the board in place at the time the complaint is filed:
Continue Reading California Court of Appeal Addresses Derivative Standing and Failure of Oversight Claims Under Delaware Law

In United Food & Commercial Workers Union & Participating Food Industry Employers Tri-State Pension Fund v. Zuckerberg, No. 404, 2020, — A.3d –, 2021 WL 3433261 (Del. Sept. 23, 2021), the Delaware Supreme Court adopted a new three-pronged test for determining whether pre-suit demand by a stockholder plaintiff would have been futile.  This new test builds up and refines the Aronson and Rales demand futility tests for derivative claims.  The Court’s decision comes on the heels of Brookfield Asset Mgmt. v. Rosson, where the Court clarified derivative standing by overruling the oft-criticized direct-and-derivative “dual-natured” claim under Gentile v. Rossette (see blog article here).  This decision is another step toward simplifying Delaware law with respect to derivative claims.
Continue Reading Delaware Supreme Court Adopts New Three-Prong Test for Demand Futility

In Brookfield Asset Mgmt. v. Rosson, No. 406, 2020, 2021 Del. LEXIS 291 (Del. Sept. 20, 2021), the Delaware Supreme Court held that claims for wrongful equity dilution may be pursued only derivatively on behalf of the corporation and not directly.  Brookfield is noteworthy because it overruled Gentile v. Rossette, 906 A.2d 91 (Del. 2006), which previously permitted stockholder plaintiffs to assert direct claims for equity dilution where a controlling stockholder orchestrated a dilutive equity issuance that expropriated both economic value and voting power from the minority stockholders.  The Delaware Supreme Court revisited the Gentile rule, in part, because it conflicts with the simple test for determining whether a claim is direct or derivative established in Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031 (Del. 2004).  Under Tooley, a court must determine whether a claim is direct or derivative based solely upon the answer to the following questions: (1) who suffered the alleged harm (the corporation or the stockholders, individually)?; and (2) who would receive the benefit of any recovery or other remedy (the corporation or the stockholders, individually)?  Applying Tooley, the Delaware Supreme Court held that a claim for wrongful equity dilution is clearly derivative irrespective of whether shares were issued to a controlling stockholder as part of the dilutive transaction.  In the sixteen years since the Delaware Supreme Court decided Gentile, the decision was subject to a steady drumbeat of criticism and proved difficult to apply, which warranted the Court’s reconsideration of Gentile.
Continue Reading Delaware Supreme Court Holds that Equity Dilution and Expropriation Claims May Only Be Brought Derivatively, Overruling Prior Precedent

On August 6, 2021, the Securities and Exchange Commission (“SEC”) approved Nasdaq’s Board Diversity Rule (Nasdaq Stock Market LLC Rules 5605(f) and 5606), which requires listed companies to have at least two diverse board members or to explain their failure to meet the requirement, with some exceptions.  The Board Diversity Rule also requires companies to publish statistics on the diversity of their board members.  The rule is intended to increase transparency into the diversity of corporate boards, giving investors more information to consider when deciding which companies are worthy of investment.  As investors have increasingly voiced concern over enhanced diversity in corporate leadership, the Board Diversity Rule may not only increase board transparency, but also cause Nasdaq-listed companies to increase board diversity.
Continue Reading SEC Approves Nasdaq Diversity Rule

In Coster v. UIP Companies, Inc., No. 49-2020, 2021 WL 2644094 (Del. June 28, 2021), the Delaware Supreme Court reversed a Court of Chancery ruling, No. 2018-0440-KSJM, 2020 WL 429906 (Del. Ch. Jan. 28, 2020) (McCormick, V.C.), that members of a board of directors did not breach their fiduciary duties when they approved a transaction with an “inequitable purpose” because the process and substance of the transaction were “entirely fair” to the aggrieved stockholder.  The Court held that even though the board’s action passed Delaware’s rigorous “entire fairness” review, the Court of Chancery should have further considered whether the board acted for inequitable reasons or for the primary purpose of interfering with the stockholder’s statutory or voting rights.  As the Supreme Court explained, “inequitable action does not become permissible simply because it is legally possible.”  Coster provides an important reminder to board members that ensuring a transaction is “entirely fair” does not necessarily shield directors from liability if the directors acted in bad faith or for the “primary purpose of thwarting” a stockholder’s franchise rights.
Continue Reading Delaware Supreme Court Holds That Surviving “Entire Fairness” Review is Not Conclusive of a Breach of Fiduciary Duty Claim Where Directors Acted Inequitably

In Ocegueda v. Zuckerberg, No. 20-CV-04444, 2021 WL 1056611 (N.D. Cal. Mar. 19, 2021), the United States District Court for the Northern District of California became the first court
Continue Reading Facebook Defeats Shareholder Suit Challenging Alleged Failures In Its Diversity and Inclusion Practices

Section 220 of the Delaware General Corporation Law, 8 Del. C. § 220 (“Section 220”), permits a stockholder of a Delaware corporation to inspect corporate books and records upon a showing of a proper purpose.  The Delaware courts have long urged stockholders to avail themselves of Section 220 — the “tools at hand” — to inspect relevant corporate documents before commencing plenary derivative litigation.  See, e.g., Grimes v. Donald, 673 A.2d 1207, 1216 & n.11 (Del. 1996).  Perhaps as a result of stockholders heeding this advice, recent years have seen an increase in litigation arising out of Section 220 demands, with corporations pursuing various objections and defenses to resist inspection.  In AmerisourceBergen Corp. v. Lebanon County Employees’ Retirement Fund, 2020 WL 7266362 (Del. Dec. 10, 2020), the Delaware Supreme Court (Traynor, J.) weighed in on and ultimately rejected two objections commonly proffered by corporations who seek to limit or resist Section 220 stockholder inspection demands.  The Court held that (i) it is not necessary for a stockholder to specify the “ultimate objectives” of the investigation in the stockholder’s Section 220 demand; and (ii) a stockholder is not required to establish that the alleged corporate wrongdoing would be judicially “actionable” in order to obtain corporate records under Section 220.  This decision of the Delaware Supreme Court provides essential guidance to Delaware corporations and practitioners on the full panoply of issues related to Section 220 demands.
Continue Reading Delaware Supreme Court Provides Important Guidance Regarding Section 220 Demands, Rejecting Several Limiting Principles Frequently Offered By Corporations Resisting Stockholder Inspection Demands