In Silverberg ex rel. Dendreon Corp. v. Gold, No. 7646 (Del. Ch. Dec 31, 2013), a derivative plaintiff was allowed to proceed with his insider-trading, or Brophy, action against the directors of Dendreon Corp. even though the plaintiff failed to make a pre-suit demand on the board. Central to the court’s holding was the conclusion that at least 6 of the 11 directors were “interested” as a result of the potential for personal liability from insider trading and, therefore, those six likely would have refused a demand from the plaintiff if it had been made. The court noted that these six directors had sold large quantities of their stock in the company immediately after the FDA approved a new drug produced by the company. Although there were “entirely legitimate reasons that corporate insiders would sell large amounts of their stock after a major public announcement,” plaintiff alleged that the directors – but not the public – were also aware of a reluctance of physicians to prescribe the new drug because of its cost. The court reasoned that with this non-public knowledge, these directors sold their stock at what they believed was the “high water mark.” Thus, the court found that the plaintiff’s allegations were sufficient to render more than half the board “interested,” which excused the need to make a demand on the Dendreon board before filing suit.