Last year, the Delaware Supreme Court adopted a tripartite test for assessing demand futility allegations in derivative actions. United Food & Commercial Workers Union v. Zuckerberg 262 A.3d 1034 (Del. 2021). Under this test, courts are to determine (on a director-by-director basis) whether the director:
- received a material personal benefit from the alleged misconduct that is the subject of the litigation;
- faces a substantial likelihood of liability on any of the claims; or
- lacks independence from someone who received a material personal benefit from the alleged misconduct...
