Recently, in the decision of Feuer v. Redstone, (Del. Ch. Apr. 19, 2018), the Delaware Court of Chancery considered a motion to dismiss brought in response to a derivative complaint against certain directors of CBS Corporation for excessive compensation paid to media titan, Sumner Redstone, at a time when plaintiff alleged he could no longer render meaningful services to the company.  The derivative plaintiff complained that his receipt of millions in salary from his “at will” employment since 2014 resulted in corporate waste and breaches of the director defendants’ fiduciary duties.

The derivative plaintiff challenged several different payments made to Mr. Redstone, including bonuses and annual salary payments received as executive chairman, and later income received as chairman emeritus.  The complaint alleged that Mr. Redstone, a nonagenarian, was suffering from diminished health and no longer could contribute to the company.

The defendants moved to dismiss pursuant to Rule 23.1 for failure to plead demand futility.  The Court applied the Rales test for determining demand futility, given that plaintiff did not challenge specific decisions by the company’s board of directors.  Plaintiff did not challenge the independence of the directors, but argued that they could not disinterestedly consider a demand because of the potential for personal liability against them, in that, as plaintiff alleged, the payments were not made in good faith, and constituted “waste”.

In denying in part defendants’ motion to dismiss, Chancellor Bouchard found that based upon the “extreme factual scenario” alleged in the complaint, i.e. that millions were paid to an individual who could not provide services to the company, plaintiff successfully plead demand futility as to at least a portion of the contested transfers.  Accordingly, the motion to dismiss was denied in part.

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