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In re Kraft Heinz Co. Deriv. Litig.
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.
The case that follows, Kraft Heinz, provides another example of this derivative head counting exercise in action. As you read the facts try to anticipate how the court will rule with respect to the salient questions applicable under Zuckerberg on a Rule 23.1 Motion to Dismiss.
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