See Smith v. Waste Mgmt., Inc., 407 F.3d 381, 384 (5th Cir. 2005) ("This court looks to the Delaware law, including the Delaware Supreme Court's recent opinion in Tooley, to decide whether Smith's claims are direct or derivative."); San Diego Cnty. Emps. Ret. Ass'n v. Maounis, No. 07 Civ. 2618, 2010 WL 1010012, at *19 (S.D.N.Y. Mar. 15, 2010) ("Because the Fund was incorporated in Delaware, the Court applies Delaware law to determine whether the suit may be brought directly on behalf of investors or whether it must be brought derivatively."); Hogan v. Baker, No. 3:05-CV-0073-P, 2005 WL 1949476, at *2 (N.D. Tex. Aug. 12, 2005) ("To determine whether a claim is direct or derivative, the Court must first look to the law of the state in which the fund was incorporated.
See Polivka v. Auch, No. 05 CV 297 (BSJ) andGlickman v. Berman, No. 05 CV 288 (GEL) (both of which were voluntarily dismissed); and Masden v. Paulson, No. 05 CV 291 (LAK) (which was dismissed by the court). See, e.g., Dull v. Arch, 2005 U.S. Dist. LEXIS, 14988, 2005 WL 1799270 (N.D. Ill. July 27, 2005) (dismissing identical complaint against Van Kampen family of mutual funds); Hamilton v. Allen, 396 F. Supp. 2d 545 (E.D. Pa. 2005) (dismissing identical complaint against Gartmore family of mutual funds);Hogan v. Baker, 2005 U.S. Dist LEXIS 16888, 2005 WL 1949476 (N.D. Tex. Aug. 12, 2005) (dismissing identical complaint against Aim family of funds); Jacobs v. Bremner, 378 F. Supp. 2d 861 (N.D. Ill. 2005) (dismissing identical complaint against Nuveen family of mutual funds); Mutchka v. Harris, 373 F. Supp. 2d 1021 (C.D. Cal. 2005) (dismissing identical complaint against Allianz family of mutual funds); Stegall v. Ladner, 394 F. Supp. 2d 358, (D. Mass. 2005) (dismissing identical complaint against John Hancock family of mutual funds). Defendants in the instant case seek dismissal of all five causes of action on several bases.
Ch. Apr. 8, 2011).See, e.g., Hogan v. Baker, 2005 WL 1949476, at *4 (N.D. Tex. Aug. 12, 2005) ("Plaintiffs point to Strigliabotti . . . which allowed an investor to proceed with a direct action based on the `unique structure' of mutual funds. . . . However, the Court is unpersuaded that the distinction between mutual fund ownership and stock ownership described by Plaintiffs is sufficient to transform their claims from derivative to direct. . . . While Strigliabotti is on point, its reasoning is at odds with the overwhelming majority of courts who have addressed this issue.