In a case of first impression in New York, the Appellate Division, First Department, has adopted the test the Delaware Supreme Court developed in Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031, 1039 (Del 2004) for determining the difference between a “derivative” claim and a “direct” claim in shareholder derivative lawsuits.
In Yudell v. Gilbert, --- N.Y.S.2d ----, 2012 N.Y. Slip Op. 05896, 2012 WL 3166788 (1st Dept. Aug. 7, 2012), plaintiff asserted a derivative claim, seeking to recover for injury to the business entity in which he is a shareholder.
In many such cases, the court is faced with determining whether the claim asserted is a direct claim for injury suffered by the plaintiff, or whether it is a derivative claim to redress an injury suffered by the corporation. Often, whether the nature of the claim is direct or derivative is not readily apparent.
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