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Matthew Lintner and Albert Carroll L-R Matthew Lintner and Albert Carroll of Morris James.

A derivative claim for harm befalling a corporation belongs to the corporation itself. Under the state’s board-centric model of corporate governance, Delaware law empowers the board of directors to control such claims, provided the directors are sufficiently impartial on the subject. A shareholder plaintiff therefore must either make a pre-suit demand on the board to take action concerning the prospective derivative claim or plead with particularity that a pre-suit demand would be futile, i.e., a majority of the board is interested or lacks independence on the claim’s subject.

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