Document: FLI Deep Marine LLC v. McKim, C.A. No. 4138-VCN, Noble, V.C. (Del. Ch. April 21, 2009)
Plaintiffs initially made a demand on the Board of Deep Marine Holdings, Inc. (the “Company”) rather than bring a derivative action and allege demand futility. After the Company’s Board established a special committee to consider the demand, but before the committee acted, Plaintiffs brought this action claiming demand was excused. The Court dismissed the complaint based on settled law that once having made a pre-suit demand, plaintiffs are precluded from arguing demand futility, and thus must first allow the special committee to consider and respond to the demand.