Lukas Ex Rel. Miller Energy Resources, Inc. v. McPeak

DOWD, D., District Judge, dissenting.

I respectfully dissent.

The issue on appeal is whether the district court correctly found that Plaintiff, in a shareholder derivative action, failed to adequately allege an excuse for pre-suit demand under Tennessee Rule 23.1 and Tenn. Ann.Code § 48-17-401(b). The decision turns upon the question, “What is the Tennessee substantive law requirement for pleading futility of demand?” To put the questions in terms of the parties’ arguments, “Is the Tennessee law of refusal governed by older decisional law, or by a Delaware standard referenced in a Tennessee…