In re Capital One Derivative Shareholder Litigation, --- F.Supp.2d ----, 2013 WL 3242685 at *16 n.25 (E.D. Va. 2013):
Although there is some force to the notion that it is always futile to ask directors to sue themselves, nonetheless settled Delaware law requires that this be done unless the pleadings show that the majority of the directors face a substantial likelihood of liability. The “substantial likelihood of liability” test strikes a balance between (1) the principle that ordinarily directors, not shareholders, are presumed to act in the best interest of the corporation and make decisions on behalf of the corporation and (2) the principle that shareholders should have a remedy when directors fail to act on behalf of a corporation. Should plaintiffs fail to re-plead successfully their assertion that demand would be futile, they will be required to make demand of Capital One's board of directors. Should the board decline to sue themselves after demand is made, plaintiffs may seek judicial review of the board's decision not to bring a suit, but the reviewing court will evaluate the decision in accordance with the business judgment rule. SeeSpiegel v. Buntrock, 571 A.2d 767, 776 (Del.1990) (citing Aronson, 473 A.2d at 813; Zapata Corp. v. Maldonado, 430 A.2d 779, 784 n. 10 (Del.1981)); See also Stephen Bainbridge, Corporate Law 211 (2nd ed. 2009).