Opinion
10-13-2015
INTERNATIONAL PAINTERS, etc., Plaintiff–Appellant, v. CANTOR FITZGERALD, L.P., et al., Defendants–Respondents, BGC Partners, Inc., Nominal Defendant–Respondent.
Wolff Popper LLP, New York (Eric L. Zagar of counsel), for appellant. Mayer Brown LLP, New York (Michele L. Odorizzi of counsel), for respondent.
Wolff Popper LLP, New York (Eric L. Zagar of counsel), for appellant.
Mayer Brown LLP, New York (Michele L. Odorizzi of counsel), for respondent.
Opinion Judgment, Supreme Court, New York County, (Eileen Bransten, J.), entered April 10, 2014, dismissing the complaint with prejudice, and bringing up for review orders, same court and Justice, entered September 25, 2013 and on or about March 25, 2014, which, respectively, granted defendants' motion to dismiss the complaint and denied plaintiff's motion for reargument, unanimously affirmed, with costs.
This shareholder derivative action involving a Delaware corporation and governed by Delaware law was properly dismissed. Plaintiff failed to plead particularized facts that would, if proved, suffice to raise a reasonable doubt that defendant board members were disinterested and independent, or that their approval of challenged transactions was other than the result of a valid exercise of business judgment, and, accordingly, failed to allege grounds for dispensing with a prelitigation demand upon the subject corporation's directors as an exercise in futility (see Del. Ch. Ct. R 23.1 ; Aronson v. Lewis, 473 A.2d 805 [Del.1984] ). Plaintiff's argument, that the entire fairness standard applies and demand is excused whenever a transaction is between a corporation and its putative controlling stockholder, is inconsistent with controlling Delaware authority (see Teamsters Union 25 Health Servs. & Ins. Plan v. Baiera, 2015 WL 4237352, 2015 Del. Ch. LEXIS 185 [Del.Ch., July 13, 2015, C.A. No. 9503–CB] ; but see Montgomery v. Erickson Air–Crane, Inc., 2014 WL 2207409 [Del.Ch., Apr. 15, 2014, No. 8784–VCL] ).
TOM, J.P., ANDRIAS, RICHTER, KAPNICK, JJ., concur.