Evolution of concepts of derivative claims in the USA

Abstract

Despite the genetic similarity with the law of the United Kingdom, the institution of a derivative action in the United States has acquired great national specificity, manifested in a different terminology (derivative action), weak influence of the rules of the case Foss v. Harbottle, the development of independent conditions at the level of judicial precedents for the admissibility of the presentation and consideration of a derivative claim (demand requirement, continuous ownership rule, formation of the will of the corporation by a special judicial committee), aimed, on the one hand, at ensuring the possibility for participants in a legal entity to exercise the latter's right to judicial protection, but to a greater extent — to prevent the presentation of unreasonable actions, because the judicial practice of the United States proceeds from the general rule on the inadmissibility of court interference in the internal affairs of the company. As a result, these conditions themselves have been overgrown with numerous exceptions, exempting from the need to comply with them and leading to confusion and contradictory judicial practice. An analysis of the literature and judicial practice indicates the gradual spread of a derivative claim to the organizational and legal forms of legal entities that were previously denied this, a fairly calm attitude towards multiple derivative actions and even the assumption of "derivative protection" while maintaining the opposition of a derivative action to a direct one, for which the criteria of direct damage are used to distinguish, answering the question: which person — the corporation or its participants — was the first to be harmed; special damage, which allows you to bring a direct claim when a participant has suffered damage that is special and unrelated not only to the damage to the company itself; corresponding rights and obligations.

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