Park Emp. and Retirement Bd. Emp. Annuity and Benefit Fund v. SmithAnnotate this Case
Plaintiff, a stockholder, filed suit alleging corporate wrongdoing involving, among others, directors of BioScrip, Inc. Plaintiff made allegations intended to demonstrate that demand against the allegedly faithless directors would be futile. Before service of the complaint could be made, the anticipated change in board composition took place, such that the majority of the current directors are not the subject of the allegations of the complaint. Defendants moved to dismiss. The court agreed that, in these particular circumstances, plaintiff must demonstrate demand futility with respect to the new - that is, the current - board of directors. In light of this determination, which involves an application of the Delaware demand requirement to circumstances heretofore unlitigated, the court found it appropriate to defer a ruling on defendants’ motions to dismiss sufficient to allow plaintiff an opportunity to consider whether it should move to amend the complaint.