A recent Delaware Supreme Court opinion addressed the independence and disinterestedness of corporate directors in the context of adequately pleading pre-suit demand futility as a prerequisite for pursuing a derivative claim. In Marchand v. Barnhill (Del. June 19, 2019), the court reversed the Court of Chancery’s dismissal of the case for failure to establish demand futility. This issue is one of the most nuanced and challenging in Delaware corporate litigation (evidenced by the disagreement on the outcome among the jurists deciding this case.)

Instead of my typical highlights of the case, I will share the scholarly insights of Prof. Ann Lipton as excerpted by Prof. Stephen Bainbridge on his blog, as follows: