Also, under the "common fund" doctrine, if a few succeed in securing a benefit for a group, the entire group shares the cost of procuring the benefit. Gone is the venerable legal principle that a shareholder is under no obligation to demand that the corporation bring the suit if such demand would be futile.
Heitnerwhich ultimately reached the United States Supreme Courtoriginated with a shareholder derivative suit against Greyhound Lines.
States have enacted laws that put a financial roadblock in the way of derivative actions. Hopefully, future courts will not interpret this decision as requiring a plaintiff to submit to the Board a document that could not possibly be created until after discovery in order to have standing to commence the suit and take the discovery.
There were two complaints The derivative suit the pre-suit demand in Schmitz: If the shareholder loses the action, she may be required to pay the legal expenses of the corporation. The court stated that a rule requiring the corporation always to accept nominally higher offers would result in harm sometimes to the shareholders and would subvert the business judgment rule in Texas.
Despite its high walls and fortifications, a castle is not capable of defending itself. The court notes that mandamus might be inappropriate if another shareholder has made a proper demand, or if the lawsuit will go forward regardless on other non-derivative claims, or if recovery of expenses from the shareholder is an adequate remedy.
Much of this reluctance to make a demand can be traced to changes in the corporate law of Delaware in the s. Almost all states require the plaintiff to allege and prove that he first made a Good Faith effort to obtain action by the corporation before filing a derivative suit.
Demand futility is no longer a legal concept in Texas.
The demand requirement is not merely pro forma, but is a question of state substantive law. Larger shareholders could bring lawsuits, however, their incentives are The derivative suit to settle the claims with the management, sometimes to the detriment of the small shareholders.
Despite these efforts to restrain derivative actions, they have not prevented the filing of doubtful claims by attorneys seeking a quick settlement. However, the Supreme Court holds that mandamus review is available. After hearing evidence on the suit, the committee ultimately determined that the claim lacked merit.
If the committee fails to make a showing, the shareholder suit may proceed. This good faith demand requirement is contained in state corporation laws and rules of court.
Conversely, if the shareholder is requesting that the board perform some certain act, that request must likewise be made prior to commencing the suit. She has discovered that the company has been consistently losing money because the firm keeps allowing managers to use the corporate jet and various corporate cars and houses without including it in their compensation packages.
Although the laws of each state differ, the laws of the states such as DelawareNew YorkCaliforniaand Nevada where corporations often incorporate, institute a number of barriers to derivative suits.In nearly all jurisdictions, any damages or other proceeds collected as a result of a successful shareholder derivative lawsuit are retained by the corporation, rather than the shareholder who initiated the suit.
Definition A shareholder derivative suit is a lawsuit brought by a [wex:shareholder] on behalf of a [wex:corporation]. Generally, a shareholder can only sue on behalf of a corporation when the corporation has a valid [wex:cause of action], but has refused to use it.
Nonetheless, unlike the dockets of other types of cases, the dockets of derivative suits typically note that the case is a derivative suit on the docket itself, usually by specifying that the shareholder sued derivatively on behalf of the plaintiff corporation.
Enter the derivative action. At its essence, a derivative suit is used as a means for a shareholder or group of shareholders, acting on behalf of the corporation, to reclaim value lost to the corporation by its management.
Essentially, the form of a derivative action is the same as the form of any other lawsuit. What is a Derivative Suit?
First, a quick reminder of the nature of derivative suits. Derivative suits are brought by current shareholders under state corporate law and allege that directors and/or officers have breached their fiduciary duties to the shareholders.
Stockholder's Derivative Suit A legal action in which a shareholder of a corporation sues in the name of the corporation to enforce or defend a legal right because the corporation itself refuses to sue.Download