Dunn

MEMORANDUM *

Indiana Electrical Workers Pension Trust Fund, Service Employees International Union (“SEIU”) Affiliates’ Officers and Employees Pension Fund, SEIU National Industry Pension Fund, and Pension Plan for Employees of SEIU (collectively “IEW”), appeal from the district court’s order dismissing their Second Amended Complaint (“SAC”) for failure to allege demand futility under Federal Rule of Civil Procedure 23.1.

The SAC challenged the propriety of the Hewlett-Packard Company’s (“HP” or the “Company”) Board of Directors’s (“Board”) decision to make a $21.4 million payment to former HP Chief Executive Officer (“CEO”) Carleton S. Fiorina (“Fiorina”), as part of a settlement agreement, after she was terminated as CEO. The SAC asserted direct claims on behalf of HP’s shareholder and derivative claims on behalf of the Company. The district court, however, concluded that all the claims were derivative, and that dismissal of all claims was required for failure to allege demand futility. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

We review de novo dismissals for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), accepting as true the…