Although the committee’s comments to the new statute focus on the issue of futility, the language used in the new provision—“The reason or reasons the shareholder did not make the effort to obtain the desired action from the board of directors or comparable authority”—leaves the door open for courts to allow litigants to fail to provide the required notice for reasons which have nothing to do with the futility of the notice. Whether subsequent judicial decisions excuse the provision of the notice for reasons other than futility remains to be seen. What is clear at this point is that persons serving on boards of corporate entities can no longer assert the failure to give a futile notice as a defense to a derivative action.
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