Q: What was the holding in the case J.I. Case Co. v. Borak (1964)?
J.I. Case Co. v. Borak (1964): Implied right of action b/c private enforcement necessary to supplement Commission action and effectuate purpose (stockholder alleges merger effected by circulation of false and misleading statements)
-JM – puzzle is why public can’t derivatively pursue rights of public if shareholder can sue on behalf of corporation
-JM – big missing discussion is federalism b/c we’re talking about corporations law
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A: Phillip Goldstein's Answer
I question whether any derivative action, on behalf of a private organization or the public, can be brought in federal court since, according to Vermont Agency Nat. Resources v U.S., 529 U.S. 765, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000), a plaintiff must have either (1) himself suffered an injury in fact or (2) been assigned the claim of someone who has suffered and injury in fact. Neither circumstance is present in a derivative action.