Aviv

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OREN AVIV, Case No. 21-cv-09047-VC

Plaintiff,

ORDER GRANTING MOTION TO

v. DISMISS

PIOTR SZULCZEWSKI, et al., Re: Dkt. No. 23 Defendants.

The defendants’ motion to dismiss is granted. Rule 23.1 requires that a shareholder derivative complaint “state with particularity” the futility of making a demand on the board of directors. Fed. R. Civ. P. 23.1. Demand futility is assessed “on a director-by-director basis.” United Food and Commercial Workers Union and Participating Food Industry Employers Tri‑State Pension Fund v. Zuckerberg, 262 A.3d 1034, 1058 (Del. 2021). Demand is excused as futile where, among other things, a director would “face a substantial likelihood of liability on any of the claims that are the subject of the litigation demand.” Id. Directors may be held liable where they “knew” or “should have known that violations of law were occurring,” and where their inaction produces harm to the company. In re Caremark International Inc. Derivative Litigation, 698 A.2d 959, 971 (Del. Ch. 1996). Two routes can lead to liability under Caremark. A plaintiff must…