Delaware Business Litigation Report

Court of Chancery Addresses Fiduciary Insider Trading Claims Under Brophy in Fitbit Litigation

In re Fitbit Inc. Stockholder Derivative Litigation, C.A. No. 2017-0402-JRS (Del. Ch. Dec. 14, 2018)

Delaware law recognizes a claim for breach of fiduciary duty based on insider trading under the Brophy decision.  This is an important opinion because it recognizes an extension of potential liability under Brophy for trades made, not by the insider himself, but by an entity he or she controls.  It is a natural extension that furthers the important policy of preventing insiders from profiting based on non-public information.  The opinion also addresses demand futility principles under Braddock.  That decision deals with how to conduct a demand futility analysis on an amended complaint after changes in the board’s composition.

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