In a March 28, 2012, decision by Justice Kapnick, the court granted defendants’ motion to dismiss. Plaintiff-investors brought suit derivatively on behalf of two securitization trusts holding certain mortgage-backed securities against defendant-lenders alleging breach of the agreements governing the administration of the mortgage loans sold by defendants. Defendants moved to dismiss the complaint contending that plaintiffs were… Continue Reading
Category Archives: Demand Futility Doctrine
Subscribe to Demand Futility Doctrine RSS FeedDerivative Claims Brought on Behalf of an LLC Cannot Be Intermingled with Individual Claims: Waxman Real Estate LLC v Sacks
Posted in Breach of Contract, Breach of Fiduciary Duty, Compel Arbitration, CPLR 3016, CPLR 3211, CPLR 6301, CPLR 7503, Demand Futility Doctrine, Derivative Actions, Fraud, Industry: real estate, Justice Fried, Bernard J., Limited Liability Companies, LLCL 409, LLCL 414, Motion to Dismiss, New York, Unjust EnrichmentIn a September 7, 2011, decision by Justice Fried, the court granted in part defendant-LLC members’ motion to dismiss and denied their motion to compel arbitration. The court also denied plaintiff-investors’ cross-motion for injunctive relief under CPLR 6301, as well as for an order under LLCL 414, removing the defendants from a real estate investment company. In… Continue Reading
Affiant’s Health Issues at the Time of Original Dismissal Motion Justify Submission of Evidence of Lack of Standing on Later Renewal Motion: Koenig v Koenig
Posted in BCL 1104, BCL 626, Breach of Fiduciary Duty, CPLR 1206, CPLR 2221, CPLR 3211, Deadlock, Demand Futility Doctrine, Derivative Actions, Dissolution, Industry: technology, Justice Driscoll, Timothy, Motion to Dismiss, Motion to Reargue, Motion to Renew, Nassau, ReceivershipIn a September 17, 2010, decision by Justice Driscoll in connection with a post-dissolution derivative action on behalf of a microscope-servicing company, and on defendant’s motion for leave to renew his motion to dismiss for lack of standing based on an affidavit from the company’s receiver affirming that plaintiff failed to make a demand on… Continue Reading
Pre-Suit Demand in Derivative Action Not Met: Security Police & Fire Professionals of Am. Retirement Fund v Mack
Posted in Business Judgment Rule, Demand Futility Doctrine, Derivative Actions, Duty of Loyalty, Fiduciary Duty, Industry: financial services, Justice Kornreich, Shirley Werner, New York, Unjust Enrichment, WasteIn a December 9, 2010 decision by Justice Kornreich, the Court dismissed a derivative action brought by shareholders of Morgan Stanley, against Morgan Stanley and its executive officers and directors. The complaint sought damages for compensation that Morgan Stanley paid and planned to pay its employees from the years 2006, 2007 and 2009. Plaintiffs alleged claims of… Continue Reading
Bohigan v Pearson, Sup Ct, New York County, October 15, 2010, Schweitzer, J., Index No. 650149/10
Posted in Breach of Fiduciary Duty, CPLR 3211, Demand Futility Doctrine, Derivative Actions, Industry: financial services, Justice Schweitzer, Melvin L., Motion to Dismiss, New York, Unjust EnrichmentIn an October 15, 2010, decision by Justice Schweitzer in connection with a shareholder derivative action brought by plaintiff-shareholder on behalf of an asset-management company against its board of directors alleging an improper accounting of the company’s investments, and on defendants’ motion to dismiss for failure to state a cause of action and failure to… Continue Reading