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Simons v. Brookfield Asset Management, Inc.

2022 WL 223464 (2022)

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Simons v. Brookfield Asset Management, Inc.

Delaware Court of Chancery
2022 WL 223464 (2022)

RW

Facts

GrafTech International, Ltd. (GrafTech) (defendant) repurchased stock from its corporate parent, Brookfield Asset Management, Inc. (Brookfield), on terms that GrafTech shareholder Steven Simons (plaintiff) considered unfair. To undo the deal, Simons sued Brookfield and GrafTech in the Delaware Court of Chancery. Simons alleged that it would have been futile to demand that GrafTech sue Brookfield in GrafTech’s own right, because four of GrafTech’s nine directors were clearly compromised by their ties to Brookfield and because GrafTech’s other five directors either had mutually beneficial dealings with each other or were otherwise incapable of exercising disinterested and independent judgment regarding a litigation demand. Brookfield and GrafTech moved to dismiss on the grounds that Simons failed to satisfy the demand precondition for shareholder derivative litigation. As a threshold matter, the court brushed aside Simons’s contention that the GrafTech board engineered the ninth director’s appointment solely to sabotage Simons’s demand-futility claim.

Rule of Law

Issue

Holding and Reasoning (McCormick, J.)

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