In Laties v. Wise, download file, Chancellor Chandler granted a motion to dismiss for failure to comply with the particularity requirements of Rule 23.1 that oblige a derivative plaintiff to explain in detail why pre-suit demand on the Board of Directors should be excused. In this case, the plaintiff brought a derivative claim for unjust enrichment, and against the directors for waste, based on allegations that they should have pursued a claim against the ex-CEO for unjust enrichment when his bonuses were paid based on profits that were later determined to have been losses according to restated financial statements. The court applied the test enunciated in Rales v. Blasland, 634 A.2d 927, 932 (Del. 1993), for evaluating a derivative action challenge of a board’s failure to take action — as opposed to challenging an actual decision of the board. The court found that there were no particularized actual allegations that would impugn the independence of the board or its ability to evaluate a demand in respect to either claim. Nor did the court find that the plaintiff established a substantial likelihood that the directors were subject to personal liability as opposed to a “mere threat.” In addition, the plaintiff did not establish that the directors would not enjoy the protection of the Section 102(b)(7) provision in the Certificate of Incorporation, especially in light of the absence in the complaint of allegations of bad faith, intentional misconduct, knowing violation of the law or any other conduct for which the directors might be liable.