Simon

I. INTRODUCTION

In 2009, appellants Steven Simon, Michael Kallok, and Alexey Terskikh filed a putative class action on behalf of themselves and the other common shareholders of respondent Reliant Technologies, Inc. (RTI). They alleged that the defendants, including RTI and certain of the company’s officers and directors (respondents Eric Stang, president; Len DeBenedictis, chief technology officer; and Hank Gauthier, director), had unlawfully entered into a merger agreement with Thermage, Inc. (Thermage) that was not in the best interest of RTI’s common shareholders. In 2010, defendants brought a motion to dismiss or stay the action on the ground of forum non conveniens, arguing that the mandatory forum selection clause in the merger agreement required litigation of plaintiffs’ claims in Delaware. The trial court granted the motion to stay the action in its order of September 28, 2010, its amended stay order of November 3, 2010, and its extended stay order of September 19, 2011. Plaintiffs did not appeal any of the stay orders. In May 2011, the trial court issued an order to show cause why the action should not be dismissed due to plaintiffs’ failure to take any action to…