The intermediate step is the Doctrine of exhaustion, which states that a person must exhaust their administrative remedies if available. That is what I did in my obtaining a ruling mandating the Directors have their annual meeting and an election as required by law. Calypso management did what it is best at, it simply ignored the Articles of Incorporation and Bylaws, as well as the rules, regulations and Laws of the State of Delaware and the SEC (feds).
So, yes, I guess now a shareholder can file a derivative, or even a regular, action against the Directors. Directors, as well as Corporate counsel, have a fiduciary duty to the shareholders. They are granted great tolerance for "mistakes" as long as those mistakes are not a breach of that fiduciary duty. (Stupidity is a crime against nature but not against shareholders). In my opinion, the Directors have knowingly breached their duties to us on MANY MORE than one occasion.
So the question of "can you now?" is clear, at least to me. More important is the question of when you have to file such suits. In Delaware Law this is best answered in: Smith v. McGee, (Del. Ch. Oct. 16, 2006). This Chancery Court case discusses the concept of equitable tolling of statutes of limitations. The Court notes that the three (3) year statute of limitations for breach of fiduciary duty, fraud, and conversion begins to run at the time of the alleged wrongful act being committed. The Court also notes that statute of limitations are applied to equitable claims only by analogy and may be suspended under several tolling theories which are threefold: (1) inherently unknowable injuries; (2) equitable tolling and (3) fraudulent concealment. All three could apply here. Thus any improper actions of "new Management" could be actionable until at least 3 years from April 2008.
I have a bad feeling Pattin is still working with Daic to give him the farm, even though he is not authorized to do so. We'll see. When we find out, that may start a new 3 year deadline. I am going to try to get in touch with Turrini to see if he knows what they are trying to pull now.
... I ... A M ... N O T ... A ... L A W Y E R !
