At the later stages of stockholder litigation, a board may use a special litigation committee to attempt to take control of litigation back from stockholders. However, at that time the burden of proof with respect to the independence of the board and its special committee have shifted. The special committee bears the burden of proving its independence. At this stage, facts that might not have been troublesome at the 23.1 stage take on a different light. Oracle puts a spotlight on the difference the procedural posture makes when assessing social relationships amongst directors.
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