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    • 2.

      With what appears to be a degree of skepticism, however, he noted that the “future course of this proceeding, obviously, will depend upon whether the facts which Plaintiff can prove match its allegations.” Id. at *12 n.58.

  • VI.

    DISNEY IV -- “DO’S AND DON’TS” GUIDANCE FROM DELAWARE

A.

Ultimately, the Disney plaintiffs were unable to prove the facts to match their

allegations. However, the 37-day trial in Georgetown, Delaware provided the

Chancellor with a platform to provide guidance on the deficiencies in the Disney

board’s decision-making process that, while not giving rise to ultimate monetary

liability, subjected them to a lengthy trial on whether their decision was a “good

faith” business judgment. In re The Walt Disney Company Derivative Litigation,

Del. Ch., Consol. C.A. No. 15452, Chandler, C., slip. op. (Aug. 9, 2005) (“Disney

IV”).

B.

The Chancellor began his analysis by noting:

[s]tripped of the presumptions in their favor that have carried them to trial, plaintiffs must now rely on the evidence presented at trial to demonstrate by a preponderance of the evidence that the defendants violated their fiduciary duties and/or committed waste. More specifically, in the area of director action, plaintiffs must prove by a preponderance of the evidence that the presumption of the business judgment rule does not apply either because the directors breached their fiduciary duties, acted in bad faith or that the directors made an ‘unintelligent or unadvised judgment,’ by failing to inform themselves of all material information reasonably available to them before making a business decision.

Id.

at

126-27.

By

beginning

his

analysis

with

this

prominent

comment,

the

Chancellor appears to suggest that particularized factual allegations combined

with deferential procedural standards played a significant role in his decision in

Disney III.

17

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