Zapata Corp. v. Maldonado

17 Citing briefs

  1. Gamoran v. Neuberger Berman LLC et al

    MEMORANDUM OF LAW in Support re: 56 MOTION to Dismiss / INDEPENDENT TRUSTEES' NOTICE OF MOTION TO DISMISS PLAINTIFF'S AMENDED VERIFIED DERIVATIVE COMPLAINT.. Document

    Filed August 24, 2012

    “[T]he final substantive judgment whether a particular lawsuit should be maintained requires a balance of many factors ethical, commercial, promotional, public relations, employee relations, fiscal as well as legal.” Zapata Corp., 430 A.2d at 788 (citation omitted).14 And “Delaware law does not permit a plaintiff to overcome the business judgment rule simply by asserting that the substance of a board of director’s decision was wrong.” Merrill Lynch & Co., Inc.

  2. Gamoran v. Neuberger Berman Management LLC et al

    MEMORANDUM OF LAW in Opposition re: 27 MOTION to Dismiss /INDEPENDENT TRUSTEES' NOTICE OF MOTION TO DISMISS PLAINTIFF'S VERIFIED DERIVATIVE COMPLAINT., 23 MOTION to Dismiss the Complaint.. Document

    Filed March 25, 2011

    Courts should therefore “find a balancing point where bona fide stockholder power to bring corporate causes of action cannot be unfairly trampled on by the board of directors, but the corporation can rid itself of detrimental litigation.” Zapata, 430 A.2d at 787. It is difficult to see how Trustee Defendants could genuinely uphold the policy goals of Zapata if they chose to forego claims that this Court rules are viable.

  3. Warren Rubin et al v. Shlomo Margalit et al --- (In re MRV Communications, Inc. Derivative Litigation)

    MEMORANDUM in Support of MOTION for Settlement Approval Motion for Preliminary Approval of Derivative Settlement 280

    Filed March 28, 2013

    The 28 -8- MRV SLC'S MEMO ISO OF MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT Case 2:08-cv-03800-GAF-MAN Document 287 Filed 03/28/13 Page 11 of 16 Page ID #:6058 1 procedures for the establishment and conduct of a special litigation committee are 2 well settled under Delaware law. See, e.g., Zapata, 430 A.2d at 785-89; Kaplan v. 3 Wyatt, 484 A.2d 501, 510 (Del. Ch. 1984 ). The board of directors begins the 4 process by appointing a committee of disinterested, independent directors to 5 review the allegations of the complaint and to make a recommendation as to the 6 complaint and its allegations of injury to the corporation.

  4. Middlesex County Retirement System et al v. Semtech Corp. et al

    MEMORANDUM in Opposition to MOTION for Review of Magistrate Judge's Order Denying Plaintiff's Motion to Compel Discovery Requested in the Subpoena Issued

    Filed February 1, 2010

    Case 2:07-cv-07114-CAS-FMO Document 162 Filed 02/01/10 Page 28 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -22- findings and recommendations” in order to sustain its burden of proving the independence and good faith of the special litigation committee, as well as the reasonableness of its investigation. Zapata Corp. v. Maldonado, 430 A.2d 779, 788 (Del. 1981);24 see also Abercrombie, 2008 WL 1844357, at *3 (citing Perrigo, 128 F.3d at 441, for the proposition that “disclosure of the report . . . is essentially involuntary, at least in the sense that once the corporation chooses to take advantage of the statutory procedure and move to dismiss the derivative case, it must . . . disclose it to the derivative plaintiffs”); Kaplan v. Wyatt, 484 A.2d 501, 506 (Del. 1984) (citing Zapata, 430 A.2d 779) (holding that a corporation’s motion to terminate derivative litigation “must be supported by a thorough written record,” which describes the special litigation committee’s investigation, findings, and recommendation) (emphasis added). In the Ninth Circuit, such compelled production is thus not a waiver.

  5. Nursing Home Pension Fund et al v. Oracle Corporation et al

    MOTION to Compel

    Filed June 3, 2005

    Case3:01-cv-00988-SI Document275 Filed06/03/05 Page15 of 20 PLAINTIFFS’ MOTION TO COMPEL THE REPORT OF ORACLE CORP.’S SLC AND ALL MEMORANDA OR NOTES CONSIDERED BY THE SLC - C-01-0988-MJJ - 12 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. Defendants Must Produce the SLC Report and the SLC’s Interview Memoranda Because They Routinely Use the Court’s Opinion in Delaware, Which Depended, in Part, on These Documents, to Defend This Case Courts routinely require special litigation committees to produce to plaintiffs their reports and investigative memoranda where, as here, they are necessary to address arguments advanced by the committee in defending against the suit. See, e.g., Zapata, 430 A.2d at 788 (“Under appropriate Court supervision, akin to proceedings on summary judgment, each side should have an opportunity to make a record on the motion.”).

  6. Voss v. Sutardja et al

    REPLY

    Filed November 25, 2014

    W, the Company’s shareholders voted on the director candidates as follows: Director Candidate For Against Abstain Broker Non-Votes Dr. Sehat Sutardja 329,960,359 12,215,946 7,409,071 88,938,523 Dr. Juergen Gromer 330,599,054 14,254,732 4,731,590 88,938,523 Dr. John G. Kassakian 330,484,020 14,224,817 4,876,539 88,938,523 Arturo Krueger 327,791,594 17,058,526 4,735,256 88,938,523 Dr. Randhir Thakur 330,606,470 14,257,227 4,721,679 88,938,523 Case5:14-cv-01581-LHK Document65 Filed11/25/14 Page25 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -20- Case No. No. 14-cv-1581 LHK (HRL) REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS recommendation); Zapata Corp. v. Maldonado, 430 A.2d 779, 781 (Del. 1981) (reviewing motion to dismiss based on company’s recommendation that action was not in company’s best interest). These authorities are uniformly inapposite on this motion because the many reasons plaintiffs’ claims here should be dismissed with prejudice are not based on any sort of company recommendation, but rather relate to incurable legal defects in the claims themselves.

  7. IN RE: Bank of America Corp. Securities, Derivative and Employee Retirement Income Security Act (ERISA) Litigation

    MEMORANDUM OF LAW in Support re:

    Filed January 3, 2013

    Case 1:12-cv-04568-PKC Document 34 Filed 01/03/13 Page 11 of 19 A. The Complaint Must Plead Particularized Facts Showing that Demand Was Wrongfully Refused Wvhere a stockholder has made a demand upon a board, and that demand was considered and refused, the stockholder's legal ability to initiate a derivative action is "terminate [d]," unless the refusal is found to be "wrongful." Zapata Corp. v. Maldonado, 430 A.2d 779, 784 (Del. 198 1).4 In a court's evaluation of whether a plaintiff has adequately pleaded with particularity that a refusal is "wrongful," the board's decision is "entitled to the benefit of the business judgment rule." In re Merrill Lynch & Co..

  8. Gamoran v. Neuberger Berman LLC et al

    MEMORANDUM OF LAW in Opposition re: 56 MOTION to Dismiss / INDEPENDENT TRUSTEES' NOTICE OF MOTION TO DISMISS PLAINTIFF'S AMENDED VERIFIED DERIVATIVE COMPLAINT., 53 MOTION to Dismiss \Notice Of Motion To Dismiss The Complaint.. Document

    Filed October 9, 2012

    at 645-46 (citations omitted). Citing, inter alia, the decision of the Delaware Supreme Court in Case 1:11-cv-07957-TPG Document 60 Filed 10/09/12 Page 42 of 59 34 Zapata Corp. v. Maldonado, 430 A.2d 779 (Del.1981), the court said, “[t]he leading cases under state law formulate standards for judicial review based on the premise that the decision to terminate is made by a special litigation committee rather than by the board itself.” 750 F. Supp. at 646.

  9. In re Brocade Communications Systems, Inc. Derivative Litigation

    MOTION Partial Lifting of Stay and Approval of Settlement and Entry of Complete Bar Order NOTICE OF MOTION AND MOTION FOR PARTIAL LIFTING OF STAY AND FOR APPROVAL OF SETTLEMENT AND ENTRY OF COMPLETE BAR ORDER AS TO DEFENDANT GREGORY L. REYES

    Filed October 9, 2009

    1 is to the same effect. Similarly, the Delaware Supreme Court held in Zapata v. Maldonado, 430 A.2d 779, 788-89 (Del. 1980), that court approval is required where a special litigation committee seeks to take over and dismiss a shareholder derivative action. These rules do not apply to this case and to the settlement with Reyes, however, because Case3:05-cv-02233-CRB Document455 Filed10/09/09 Page9 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 7 - NOTICE AND MOTION FOR APPROVAL OF REYES SETTLEMENT (C 05-02233-CRB) this case is no longer a derivative action.

  10. King v. Baldino et al

    REPLY BRIEF re MOTION for Judgment on the Pleadings

    Filed June 23, 2008

    For example, special litigation committees (“SLCs”) are valid ways for a board of directors to assess demand, even where some members of the board may be tainted by interest. See 8 Del. C. §141(c); see also Zapata Corp. v. Maldonado, 430 A.2d 779, 786 (Del. 1981) (holding that an independent board committee may investigate and assess a demand even where there is an “interest taint of the board majority”). Here, Vaughn Kalian, an outside director, joined the Board in 2005, several years after the level of Actiq sales supposedly “sky-rocketed” and a year after the Justice Department’s investigation of Cephalon began.