As a result of considerable work by the Florida Bar’s Business Law Section new amendments to the Florida Business Corporation Act expressly provide that a plaintiff can allege, “The reason or reasons the shareholder did not make the effort to obtain the desired action from the board of directors or comparable authority.” The commentary by the Florida Bar’s business law section makes it clear that the amendment allows a plaintiff to plead futility as “a reason” why a demand was not made, but that it will ultimately be up to the courts to determine when, and under what circumstances, the futility of a demand will excuse the failure to make one.
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