Second, the Complaint lacks allegations showing that Plaintiffs were “shareholder[s] . . . at the time of the transaction of which [they] complain[].” FED. R. CIV. P. 23.1; Lewis v. Chiles, 719 F.2d 1044, 1047 (9th Cir. 1983). The Complaint simply alleges in conclusory fashion that “[p]laintiff is and was an owner of Brocade common stock during all times relevant to the 11 Plaintiffs also do not allege particularized facts showing why Brocade’s Board could not act in an independent and disinterested manner in considering a demand to bring suit against KPMG, a third party.

Whether Plaintiffs' assertion that they made a demand moots the question of demand futility is distinct from whether Plaintiffs have adequately pleaded demand and demand refusal in accordance with Fed. R. Civ. P. 23.1. See In re Sapient Corp. Deriv. Litig., 555 F. Supp. 2d at 263 (holding that "Plaintiffs' mid-suit demand moots any claims of demand futility," even though the same mid-suit demand fails to satisfy Rule 23.1). As discussed, Plaintiffs have failed to plead that they requested the directors to bring suit on the Funds' behalfprior to filing suit and that their demand was refused, as required under the applicable law.

Rule 23.1 states that “[t]he complaint shall . . . allege with particularity the efforts, if any, made by the plaintiff to obtain the action the plaintiff desires from the directors . . . and the reasons for the plaintiff’s failure to obtain the action or for not making the effort.” Fed. R. Civ. P. 23.1 (emphasis added). The United States Supreme Court has explained that Rule 23.1 is grounded in “the basic principle of corporate governance that the decisions of a corporation – including the decision to initiate litigation – should be made by the board of directors.” Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 530 (1984).

Fed. R. Civ. P. 23.1(b)(1).7 Thus, any prospective derivative plaintiff must meet these two criteria (at a minimum) in order to “maintain” a derivative suit under Fed. R. Civ. P. 23.1. As Amalgamated concedes, “there is no specific statutory framework for the appointment of lead plaintiff and lead counsel in shareholder derivative actions.”

1, plaintiffs bringing derivative actions must have owned shares of the corporation at the time the challenged transaction took place. Fed.R.Civ.P. 23.1; see also Kona Enters ., Inc. v. Estate of Bishop, 179 F.3d 767, 769–79 (9th Cir.1999); Lewis v. Chiles, 719 F.2d 1044, 1047 (9th Cir.1983).

1, a derivative plaintiff must specifically “allege that the plaintiff was a shareholder . . . at the time of the transaction of which the plaintiff complains.” Fed. R. Civ. P. 23.1(b)(1). To have standing to assert the purported claims in the Complaint, therefore, plaintiffs must have purchased Toll Brothers stock before February 2005, the beginning of the Complaint’s Relevant Period.10 Plaintiffs, however, do not allege when they purchased their Toll Brothers stock.

. Both Fed. R. Civ. P. 23.1 and Mass. R. Civ. P. 23.1 (individually and together, “Rule 23.1”) codify the demand requirement and its exception, excusing plaintiffs from making an initial demand if they “allege with particularity …the reasons…for not making the effort.” 36 The recently enacted Massachusetts Universal Demand Statute, Mass. Gen. Laws ch.156D, § 7.42 (enacted on July 1, 2004), does not apply because the statute is not retroactive and Plaintiffs’ initial complaint was filed before the statute was passed.

In re Bank of N.Y. Deriv. Litig., 320 F.3d 291, 297 (2d Cir. 2003) (emphasis added); see In re Zoran Corp. Deriv. Litig., 511 F. Supp. 2d 986 (N.D. Cal. 2007) (plaintiff only had standing to assert claims based on wrongs that occurred while holding stock and rejecting argument that it could challenge prior events). Under Rule 23.1, claims based on conduct pre-dating Plaintiff’s ownership of stock must be dismissed. II.

Under the circumstances of this case, the current Proposed Notice is inadequate. Fed. R. Civ. Proc. 23.1(c); Miller v. Republic Nat. Life Ins. Co., 559 F.2d 426, 429 (5th Cir. 1977).

, she has failed to plead any facts explaining “the reasons for not obtaining the action.” Fed. R. Civ. P. 23.1. Accordingly, her complaint does not satisfy Rule 23.1. B. Breach of Fiduciary Duty Even assuming that Ott’s demand was adequate, she fails to state a claim for breach of fiduciary duty.