The Merits Don't Matter: A Final Word on In re InfoUSA

As we end our discussion of In re InfoUSA, we can sum it up no better than the court itself.

• "Therefore, a skilled litigant, and particularly a derivative plaintiff, recognizing the institutional advantages and competency of the judiciary reflected in our law, places before the Court allegations that question not the merits of a director's decision, a matter about which a judge may have little to say, but allegations that call into doubt the motivations or the good faith of those charged with making the decision."

In other words, the merits don't matter.  The only thing that matters is board independence but as the case itself illustrates, the courts approach the issue in an inconsistent manner that does not in fact ensure independence at all.  In other words, the courts do not care about the merits and defer to boards they know may not be independent.  This is where the "competency of the judiciary" has brought us.