Eisenberg v. Flying Tiger Line, Inc

Facts

In July of 1969, Defendant, a Delaware corporation, organized a wholly owned subsidiary. In August that wholly subsidiary in turn organized its own wholly own Delaware subsidiary. The three corporations then reorganized and merged with the August subsidiary being the only surviving corporation. The stockholders approved of this organization in September 1969. Plaintiff asserts that this reorganization diluted his, and similar minority shareholders, voting rights. Plaintiff brought suit to enjoin the reorganization. Defendant had the suit removed to the District Court for the Eastern District of New York, and they asserted that under New York state law, shareholders with less than 5% share or $50,000 of stock who file derivative suits must post security to pay for the opposing legal expenses in the event of an unsuccessful suit. Plaintiff argued that his suit was not a derivative suit as contemplated by the statute, but rather a suit for personal damages.