If the pleadings support a reasonable inference that either (i) 50% or more of the special committee was not disinterested and independent, or (ii) the minority of the special committee "somehow infect[ed]" or "dominate[ed]" the special committee's decisionmaking process, "then the plaintiffs have called into question this aspect of the MFW requirements."Dell, 2020 WL 3096748, at *35 (citing Beam ex rel. Martha Stewart Living Omnimedia, Inc. v. Stewart, 845 A.2d 1040, 1046 n.8 (Del. 2004), and Beneville v. York, 769 A.2d 80, 84-87 (Del. Ch. 2000)); Voigt, 2020 WL 614999, at *10 (citing In re Orchard Enters., Inc. S'holder Litig., 88 A.3d 1, 24-29 (Del. Ch. 2014)). In re GGP, Inc. S'holder Litig., 2021 WL 2102326, at *15 (Del. Ch. May 25, 2021), aff'd in part, rev'd in part, on other grounds, and remanded, 2022 WL 2815820 (Del. July 19, 2022).
In other words, Plaintiff must allege sufficient facts to cast reasonable doubt on the independence or disinterestedness of at least five of the ten directors on the Current Board. See Beneville v. York, 769 A.2d 80, 82 (Del. Ch. 2000) ("To establish demand futility, "a stockholder must show that a 'majority' of the directors could not impartially consider a demand . . . it would be logically incoherent for Delaware courts to refuse to excuse demand where half of the board cannot impartially consider a demand but to excuse demand where a bare majority cannot act impartially." ); Beam ex rel. Martha Stewart Living Omnimedia, Inc. v. Stewart, 845 A.2d 1040, 1046 n. 8 (Del. 2004) (explaining that demand is excused where if the board is evenly divided between interested and disinterested directors); In re SFBC Int'l, Inc. Sec. & Derivative Litig., 495 F. Supp. 2d 477, 486 n. 3 (D.N.J. 2007) ("An evenly divided board satisfies the requirement that a majority of the board be unable to consider a demand impartially.")
If one half of an even-numbered board is interested or lacks independence, “there is not a majority of independent directors and demand would be futile.” Beam, 845 A.2d at 1046 n. 8 (citing Beneville v. York, 769 A.2d 80, 85–86 (Del.Ch.2000)). Thus, Duthoit's disabling interest renders demand futile on the Settlement Agreement claims.
This notion, however, has been rejected when an interested director had the power to prevent the corporation from bringing suit. See Beneville v. York, 769 A.2d 80, 87 (Del.Ch.2000). On the other hand, “[a]n allegation that directors are dominated and controlled, standing alone, does not meet the demand futility standard.
Such reasonable doubt must be raised with respect to the board of directors sitting at the time the complaint is filed, see Harris v. Carter, 582 A.2d 222, 228 (Del.Ch. 1990), and in cases where the number of directors is even, reasonable doubt need only be raised as to half of the board. See Beneville v. York, 769 A.2d 80, 87 (Del. Ch. 2000). Whether or not "reasonable doubt" exists "must be decided by the trial court on a case-by-case basis" and not by any "rote and inelastic" criteria.
Though Condon has set forth a plausible claim that CORE competed with and harmed Manticore, Condon and CKC lack standing to complain about any injury CORE caused Manticore. Condon relies on two pre- Zuckerberg cases that he suggests are "consistent with the Zuckerberg test's first disjunctive prong" and support his position that he pleaded sufficient particular facts to meet the demand-futility test: Lola Cars International Ltd. , 2009 WL 4052681, and Beneville v. York , 769 A.2d 80 (Del. Ch. 2000). Of these, Beneville is the most favorable to his position.
Thus, demand is excused as to Count V for breach of fiduciary duty against the Director Defendants. See Beam v. Stewart, 845 A.2d at 1046 n.8 ("If three directors of a six person board are not independent and three directors are independent, there is not a majority of independent directors and demand would be futile.") (citing Beneville v. York, 769 A.2d 80, 85-86 (Del. Ch. 2000) (Strine, V.C.)); In re the Limited, Inc. S'holders Litig., 2002 WL 537692, at *7 (Del. Ch. Mar. 27, 2002) (citation omitted) ("[W]here the challenged actions are those of a board consisting of an even number of directors, plaintiffs meet their burden of demonstrating the futility of making demand on the board by showing that half of the board was either interested or not independent.").
Under Delaware law, a demand on a board of directors is excused where half of the members of an even numbered board are alleged to be interested or lack independence. Beneville v. York, 769 A.2d 80, 86 (Del.Ch. 2000) ("As a doctrinal matter, it thus makes little sense to find that demand is refused in an evenly divided situation."). The complaint also alleges that Saper, as Chief Executive Officer, has the power to engage consultants.
But in an evenly divided LLC, "it may be inferred that the [b]oard is incapable of exercising its power and authority to pursue the derivative claims directly." Beneville v. York, 769 A.2d 80, 86 (Del. Ch. 2000).
However, in order to survive a motion to dismiss based on failure to allege demand futility, "a stockholder must show that a 'majority' of the directors could not impartially consider a demand." Beneville v. York, 769 A.2d 80, 82 (Del. Ch. 2000). Here, the Synchronoss Board consists of five members, thus Plaintiff is required to allege sufficient facts demonstrating that demand would have been excused as to at least three members of the Board.