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Pacheco v. Guyer

Litigation Demand Prior to Shareholder's Derivative Action Would Have Been Futile

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OPINION & ORDER   Shareholder plaintiff Luis Pacheco, derivatively on behalf of Ophthotech Corporation, brings this action against eight current and former Ophthotech directors and officers for breach of fiduciary duty, unjust enrichment, and waste of corporate assets. Before me is Defendants’ motion to dismiss the derivative complaint based upon Plaintiff’s failure to make a demand on Ophthotech’s Board of Directors (the “Board”) before filing suit. Because I find that Plaintiff has alleged particularized facts demonstrating that demand would have been futile, Defendants’ motion to dismiss is DENIED. Background1 A. The Parties Ophthotech is a biopharmaceutical company incorporated under Delaware law, which has its “principal executive offices [] at One Penn Plaza, 35th Floor, New York, New York.” (Compl.

2, 15.) Plaintiff Luis Pacheco, a Florida resident, was an Ophthotech stockholder during the period of the wrongdoing complained of (March 2, 2015 through December 12, 2016 (the “Relevant Period”)), and has continued to hold Ophthotech stock as of the filing of the Complaint. (Id. 14.) Defendants are six current members of the Ophthotech Board of Directors2 (“Ophthotech Board” or “Board”) and two former members of the Board.3 (Id.

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