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SIMON v. BECHERER

7 A.D.3d 66 (2004)

775 N.Y.S.2d 313

JOEL SIMON ET AL., Respondents, v. HANS W. BECHERER ET AL., Appellants.

Appellate Division of the Supreme Court of the State of New York, First Department.

April 27, 2004.

Attorney(s) appearing for the Case

Sullivan & Cromwell LLP (Michael A. Cooper and Carla Bedrosian of counsel), for Hans Becherer and others, appellants.

J.P. Morgan Chase & Co. Legal Department (Ahuva Genack, Mark E. Segall and Kent T. Stauffer of counsel), for J.P. Morgan Chase & Co., appellant.

Wechsler Harwood LLP (Robert I. Harwood and Samuel K. Rosen of counsel), Faruqi & Faruqi, LLP (Nadeem Faruqi and Shane T. Rowley of counsel), Berger & Montague, P.C. (Sherrie R. Savett and Michael T. Fantini of counsel), Spector, Roseman & Kodroff, P.C. (Robert M. Roseman of counsel), Schiffrin Barroway, LLP and James Orman for respondents.

BUCKLEY, P.J., SULLIVAN and GONZALEZ, JJ., concur.

OPINION OF THE COURT

WILLIAMS, J.

The question before us is whether, pursuant to Delaware law, the complaint in this shareholder derivative action should have been dismissed because plaintiffs failed to plead the requisite particularized facts establishing that a pre-suit demand on the corporation's board of directors was excused because the board was not disinterested and independent and thus, that a demand for the board to pursue this action would have...

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