Given the lack of detail and the general nature of appellants' allegations, it is clear that the district court did not abuse its discretion in its determination on the sufficiency of the allegations of futility. See Greenspun v. Del E. Webb Corp., 634 F.2d 1204, 1209 (9th Cir. 1980) (allegations of control rejected as conclusionary); Vernars v. Young, 539 F.2d 966, 968 (3d Cir. 1976) (claim that majority shareholder controlled key director does not fulfill requirement of pleading with sufficient particularity); In re Kauffman Mutual Fund Actions, 479 F.2d 257, 264 (1st Cir.) (conclusionary pleading that directors dominated by wrongdoers insufficient), cert. denied, 414 U.S. 857, 94 S.Ct. 161, 38 L.Ed.2d 107 (1973). Therefore the court's dismissal of the complaint for failure to satisfy the conditions of Rule 23.1 would have been proper in the absence of the cross-motion for leave to amend.

Second, even if there were, the complaint lacks any factual allegation in support of domination and control. See Vernars v. Young, 539 F.2d 966 (3d Cir. 1976). It is concluded on the basis of conventional Rule 23.1 analysis that demand is not excused.

Consequently, there is no reason why a plaintiff cannot assert the facts from which it is believed an inference of control could be drawn." Vernars v. Young, 539 F.2d 966, 968 (3d Cir. 1976). We agree that the issue is intensely factual, but when faced with no facts beyond simple employment by either UB or a subsidiary, we find that the plaintiff has not met his burden.

See id. at 1082 n. 1. See also Vernars v. Young, 539 F.2d 966 (3d Cir. 1976) (upholding invasion of privacy claim under Pennsylvania law when corporate officer opened and read personal mail addressed to fellow employee). Unlike the other forms of tortious invasion of privacy, an action based on intrusion upon seclusion does not require publication as an element of the tort.

"Even in a public place, however, there may be some matters about the plaintiff, such as his underwear or lack of it, that are not exhibited to the public gaze; and there may still be invasion of privacy when there is intrusion upon these matters." In Vernars v. Young, 539 F.2d 966 (3d Cir. 1976), the court held that the plaintiff had stated a cause of action for invasion upon privacy. The plaintiff there alleged that the defendant, a 50% stockholder, officer, and director of a corporation, had opened and read, without plaintiff's consent, mail addressed to the plaintiff (also a stockholder, officer, and director), which had been delivered to the office of their corporation, but addressed to plaintiff and marked "personal."

It involved an inquiry which is "intensely factual" and requires particularized pleading by the plaintiff. See Vernars v. Young, 539 F.2d 966, 968 (3d Cir. 1976). In a conventional shareholder suit, the evaluation of the directors' decision to refuse demand or terminate suit is equally factual, and it makes sense, as we stated in Lewis, to employ the same standard of interestedness.

Cf. Note, supra, at 181-82 ("Participation by the directors in the challenged transaction absent self-interest or bias should not excuse [demand]).") See also Vernars v. Young, 539 F.2d 966, 968 (3d Cir. 1976) (finding demand necessary "where the allegations do not make charges against a majority of a Board"). Indeed, allegations similar to those in this case have been found as a matter of law to excuse demand under rule 23.1.

The tort covers direct intrusions on seclusion; for example, when someone opens a neighbor's mail. See id. at cmt. b (citing Vernars v. Young, 539 F.2d 966 (3d Cir. 1976) (Pennsylvania law)).

In the present case, McKamey had a reasonable expectation in the privacy of his email messages. Accord Vernars v. Young, 539 F.2d 966, 969 (3d Cir. 1976) (“Just as private individuals have a right to expect that their telephonic communications will not be monitored, they also have a reasonable expectation that their personal mail will not be opened and read by unauthorized persons.”)

This suffices to state a claim for intrusion upon seclusion. See, e.g., Vernars v. Young, 539 F.2d 966, 969 (3d Cir. 1976) (stating that "opening plaintiff's private mail and reading it without authority" would constitute an intrusion upon seclusion); Doe v. Kohn Nast & Graf, P.C., No. 93-CV-4510, 1994 WL 517989, at *2 (E.D. Pa. Sept. 20, 1994) (same); see also Restatement (Second) of Torts, § 652B(b) (1977) ("The invasion may be . . . by some other form of investigation or examination into his private concerns, as by opening his private and personal mail . . . ." (emphasis added)). Once again, Kornotzki's counterarguments are unavailing.