Delaware Business Litigation Report

Court Of Chancery Applies Demand Rules To Amended Complaint

Fotta v. Morgan, C.A. 8230-VCG (February 29, 2016)

In general, an amended derivative complaint does not need to show that demand is excused if it was excused for the filing of the initial complaint. However, as this decision points out, when the amended complaint alleges an independent, new derivative claim that fails to meet the “claims already in litigation” standard (which refers broadly to the acts and transactions in the original complaint), then the right to assert that new claim must be established by showing that demand was excused.

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