On September 19th, a divided panel of the Sixth Circuit affirmed the dismissal of plaintiff's derivative shareholder lawsuit for failing to plead demand futility. A majority of the panel concluded that Tennessee courts have adopted Delaware's demand futility standard announced by Aronson v. Lewis, 473 A. 2d 805, 814 (Del. 1984). A dissenting judge, however, contended that a Tennessee Supreme Court decision from 1874 still controls and that under that case, pre-suit demand is excused when the directors and officers who would be charged with responding to such a demand have been named as defendants.Lukas v. McPeak.