Bader v. Anderson, No. H032372

In plaintiff's shareholder derivative suit against Apple, Inc., and its directors and officers challenging a cash performance bonus plan for non-directors that was approved by Apple shareholders after the dissemination of a proxy statement that plaintiff claimed was misleading, dismissal of plaintiff's complaint is affirmed where: 1)  plaintiff lacked standing to assert derivative claims on behalf of Apple because of her failure to make a presuit demand on the board and her failure to allege that the making of such a demand would have been futile; and 2) the claims plaintiff purported to assert in the complaint as direct claims on behalf of herself and all similarly situated shareholders are not maintainable because the gravamen of those claims is corporate in nature and may therefore be asserted only by the corporation. 

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Filed November 23, 2009

Judges

Opinion by Judge Duffy

Counsel
For Appellant:   Jeffrey M. Forster

For Appellee:  Dean S. Kristy, Kevin P. Muck, Jennifer C. Bretan, Fenwick & West