Shareholder Derivative Actions

A derivative action is a lawsuit filed by a shareholder on behalf of the company against a third party.

Shareholder Derivative Actions

A derivative action is a lawsuit filed by a shareholder on behalf of the company against a third party. Usually the third party is a director or officer of the company. Common allegations presented in a shareholder derivative complaint include:

  • Fraud
  • Conflict of interest
  • Breach of fiduciary duty
  • Self-dealing
  • Inaccurate accounting
  • Waste of corporate assets
  • Misleading, false, or inflated financial statements
  • Decisions that open the company to harm, violates consumer protection or other laws
  • Inflation of executive compensation

Standing

To have legal capacity to bring a derivative action, plaintiff must have been a shareholder when the offenses occurred or received the shares through a legal stock transfer from someone who held them at that time.

Written Demand

Under Florida Statute 607.0742, “The demand, if any, made to obtain the action desired by the shareholder from the board of directors; and
Either:
(a) If such a demand was made, that the demand was refused, rejected, or ignored by the board of directors prior to the expiration of 90 days from the date the demand was made;
(b) If such a demand was made, why irreparable injury to the corporation or misapplication or waste of corporate assets causing material injury to the corporation would result by waiting for the expiration of a 90-day period from the date the demand was made; or
(c) The reason or reasons the shareholder did not make the effort to obtain the desired action from the board of directors or comparable authority.”

Investigation

If the company begins an investigation into the demand, the court may put the lawsuit on hold until the outcome of the investigation. The court may dismiss the lawsuit if, after the conclusion of a reasonable investigation, a disinterested and independent majority of the board, a committee thereof or other appointed individuals have determined in good faith that pursuit of the complaint would not be in the best interests of the company.

Termination of the Suit & Attorney’s Fees

The court’s approval is required before the suit may be dismissed or settled, and notice to affected shareholders may be required. A defendant may recover reasonable attorney’s fees if the court finds that the suit was brought without reasonable cause. A successful plaintiff may recover reasonable attorney’s fees from a judgment or settlement. The remainder of the recovery belongs to the company.

Consult the Tampa Derivative Action Attorneys at Lieser Skaff

Shareholders expect senior management to exercise sound business judgment. Senior management expects to have the ability to respond properly to shareholder demands. Our thorough understanding of corporate practices and law allows us to research, prepare and assert shareholder demands when appropriate and investigate and respond thoroughly to shareholder demands. Our negotiation skills and dispute resolution experience allows us to facilitate beneficial compromises and help the parties return to the business of running a company.

Blog Posts About Shareholder Derivative Actions

Internal Limited Liability Company (LLC) Disputes: Direct or Derivative Claim?

January 12, 2022
LLC members in Florida can file direct claims for personal rights violations or derivative claims for company-related harm. Derivative claims require that you make a formal demand to other members or managers, allowing 90 days to act, unless doing so would be futile or cause irreparable harm, as outlined in Fla. Stat. § 605.0802.
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