Application of the Zuckerberg standard in response to a 23.1 Motion to Dismiss requires the court to go through a "head counting" exercise in order to determine whether a majority of the board could have properly considered a demand. If the answer is yes, then the litigation will be dismissed for failure to make demand. If the answer to that question is no, then the stockholders will be permitted to pursue the litigation and temporarily stand in the shoes of the corporation to vindicate the corporation's rights.
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