Opinion
2013-02-28
Martin J. SIEGEL, Plaintiff–Appellant, v. J.P. MORGAN CHASE & CO., et al., Defendants–Respondents.
Ballon Stoll Bader & Nadler, P.C., New York (Irving Bizar of counsel), for appellant. Debevoise & Plimpton LLP, New York (Gary W. Kubek of counsel), for respondents.
Ballon Stoll Bader & Nadler, P.C., New York (Irving Bizar of counsel), for appellant. Debevoise & Plimpton LLP, New York (Gary W. Kubek of counsel), for respondents.
TOM, J.P., SWEENY, RENWICK, ABDUS–SALAAM, JJ.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered August 24, 2012, which granted defendants' motion to dismiss the complaint, unanimously affirmed, with costs.
Delaware law governs the issue of whether pre-suit demand in this derivative action is excused ( see Hart v. General Motors Corp., 129 A.D.2d 179, 182–183, 517 N.Y.S.2d 490 [1st Dept. 1987], lv. denied70 N.Y.2d 608, 521 N.Y.S.2d 225, 515 N.E.2d 910 [1987] ). Contrary to plaintiff's contention, the choice of law analysis based on the grouping of contacts is inapplicable ( see Richbell info. Servs. v. Jupiter Partners, 309 A.D.2d 288, 301, 765 N.Y.S.2d 575 [1st Dept. 2003] ), and the fact that the defendant Morgan entitieshave their principal places of business in New York City is irrelevant ( see e.g. Simon v. Becherer, 7 A.D.3d 66, 71, 775 N.Y.S.2d 313 [1st Dept. 2004] ). We need not address whether plaintiff set forth particularized facts to show demand futility ( see Brehm v. Eisner, 746 A.2d 244, 254 [Del. 2000] ), since he failed to address this issue in his appellate briefs. We note, however, that the motion court correctly found that plaintiff failed to set forth particularized facts to show that the directors were not independent or could be subject to liability for decisions beyond the scope of the business judgment rule.
We have considered plaintiff's remaining contentions and find them unavailing.