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Wiener v. Eaton Vance Distributors, Inc. et al

MEMORANDUM in Support re MOTION to Dismiss the Amended Complaint

29 Cited authorities

  1. Ashcroft v. Iqbal

    556 U.S. 662 (2009)   Cited 257,305 times   280 Legal Analyses
    Holding for a complaint to survive Rule 12(b), it must "state a claim to relief that is plausible on its face"

  2. Kamen v. Kemper Financial Services, Inc.

    500 U.S. 90 (1991)   Cited 1,213 times   5 Legal Analyses
    Holding that while Federal Rule of Civil Procedure 23.1 establishes procedural requirements concerning the "adequacy of the shareholder representative's pleadings," state law governs the substance of the demand requirement

  3. Brehm v. Eisner

    26 Del. 3 (Del. 2000)   Cited 1,155 times   18 Legal Analyses
    Holding that the Delaware Supreme Court reviews de novo all demand futility rulings by the Delaware Court of Chancery

  4. Daily Income Fund, Inc. v. Fox

    464 U.S. 523 (1984)   Cited 290 times   1 Legal Analyses
    Holding that there is no demand prerequisite for § 36(b) claims

  5. IN RE CAREMARK INTERN. INC. DERIV. LIT

    698 A.2d 959 (Del. Ch. 1996)   Cited 523 times   140 Legal Analyses
    Holding that a board of directors violates the duty of good faith by a “sustained or systematic failure ... to exercise reasonable oversight”

  6. Desimone v. Barrows

    924 A.2d 908 (Del. Ch. 2007)   Cited 265 times   2 Legal Analyses
    Holding that allegations about extensive backdating of stock options did not support inference "that [the corporation's] internal controls were deficient, much less that the board, the Audit Committee, or [the corporation's] auditors had any reason to suspect that they were or that backdating was occurring"

  7. Grimes v. Donald

    673 A.2d 1207 (Del. 1996)   Cited 285 times   2 Legal Analyses
    Holding that a plaintiff must "allege with particularity why the stockholder was justified in not having made the effort to obtain board action"

  8. Levine v. Smith

    591 A.2d 194 (Del. 1991)   Cited 310 times   1 Legal Analyses
    Finding that requirement to undertake particular form of investigation would constitute an "unwarranted intrusion upon the board's authority"

  9. Harhen v. Brown

    431 Mass. 838 (Mass. 2000)   Cited 115 times
    Holding that receipt of "usual and customary director's fees and benefits" does not render director interested

  10. Halebian v. Berv

    590 F.3d 195 (2d Cir. 2009)   Cited 62 times
    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

  11. Rule 8 - General Rules of Pleading

    Fed. R. Civ. P. 8   Cited 158,801 times   196 Legal Analyses
    Holding that "[e]very defense to a claim for relief in any pleading must be asserted in the responsive pleading. . . ."

  12. Rule 9 - Pleading Special Matters

    Fed. R. Civ. P. 9   Cited 39,307 times   323 Legal Analyses
    Requiring that fraud be pleaded with particularity

  13. Rule 23.1 - Derivative Actions

    Fed. R. Civ. P. 23.1   Cited 1,958 times   28 Legal Analyses
    Requiring only that the plaintiff allege demand futility "with particularity"

  14. Section 80b-2 - Definitions

    15 U.S.C. § 80b-2   Cited 220 times   16 Legal Analyses
    Defining investment adviser

  15. Section 80a-46 - Validity of contracts

    15 U.S.C. § 80a-46   Cited 50 times   1 Legal Analyses
    Providing a remedy in the event that "a contract described in paragraph has been performed"

  16. Section 156D:7.42 - Demand

    Mass. Gen. Laws ch. 156D § 7.42   Cited 27 times   2 Legal Analyses

    No shareholder may commence a derivative proceeding until: (1) a written demand has been made upon the corporation to take suitable action; and (2) 90 days have elapsed from the date the demand was made, or, if the decision whether to reject such demand has been duly submitted to a vote of the shareholders, not including the holders of those shares referred to in section 7.44(b)(3), within 60 days from the date when demand was made, 120 days have elapsed from the date the demand was made, unless

  17. Section 156D:7.44 - Dismissal

    Mass. Gen. Laws ch. 156D § 7.44   Cited 17 times   1 Legal Analyses
    Affording board option of refusing demand by vote of majority of independent directors

  18. Section 270.12b-1 - Distribution of shares by registered open-end management investment company

    17 C.F.R. § 270.12b-1   Cited 37 times   2 Legal Analyses

    (a) (1) Except as provided in this section, it shall be unlawful for any registered open-end management investment company (other than a company complying with the provisions of section 10(d) of the Act (15 U.S.C. 80a-10(d) ) ) to act as a distributor of securities of which it is the issuer, except through an underwriter; (2) For purposes of this section, such a company will be deemed to be acting as a distributor of securities of which it is the issuer, other than through an underwriter, if it engages