Omar8
17 hours ago
Yman,
There were other came and went very quickly.......
Who knows how much BS was being sling around. ? Was it true sales experienced a significant increase in Q3 or was he just blowing smoke up the shareholders rears ?
Giles Manley came and went maybe when saw what was going on he didnt want any part of it like the rest ? I think Giles was on the other board too at one time before he joined like that other young college person named Rails Splitter I think it was, he came and went never to be heard from again.
NanoLogix is pleased to announce sales experienced a significant increase in Q3. Essentially all of Q3 and current sales have been, and are, directly to the US Federal government or to Corporations for use on classified US Government projects. These sales are comprised of BNP kits and filled Petri plates. Major marketing for BNP and BioNanoFilter (BNF) bacteria detection kits is pending publication of two recently completed third-party studies in peer-reviewed science journals.
The company has had increasing interest in both its BioNanoPore (BNP) Petri-based sandwiched-membrane bacteria detection kits and also in standard filled Petri plates, both packed in NanoLogix's proprietary extended-life packaging. The internally developed patent pending packaging enables storage of both BNP and Petri for over one year in cold storage, and for at least three months at room temperature.
NanoLogix is honored to welcome Giles Manley, MD to the NanoLogix Science Advisory Board (SAB). Dr. Manley brings a wealth of medical, legal and business knowledge to the SAB.
"Dr. Manley's acceptance statement: "I am grateful for the invitation, and very excited about being part of NanoLogix by serving on their Science Advisory Board. What NanoLogix has accomplished over the last several years is truly amazing. There is no comparable system in the world that can deliver bacterial identification as cost effectively, quickly and accurately as their BNF and BNP product line... Through my career I have formed acquaintances with the Chiefs of Obstetrics at some of the top medical institutions in our country. I will make a concerted effort to get the necessary trials started and finished at places such as Harvard, Johns Hopkins and other institutions. I am hopeful that by the end of 2013 the standard for GBS screening will include our near-15 minute test at time of labor."
Omar8
3 days ago
Too bad he won't talk....
I have seen many releases with RVA and N-Assay but never seen it worded like this below with the Flatpak..."exclusively licensed to NanoLogix "
This release is the only one I recall stating some tech being exclusively licensed to Nanologix.....ALL the releases with RVA and N-Assay I have seen don't word it like that Flatpak......ultimately It comes down to who owns RVA and N-Assay Patents....I see it as the shareholders but I base it on the releases....thats all I have to go by.
NanoLogix Provides Operations Update
June 11, 2013 02:31 AM Eastern Daylight Time
HUBBARD, Ohio--(BUSINESS WIRE)--NanoLogix Inc. (NNLX), an innovator in the accelerated detection, identification and antibiotic sensitivity determination of live bacteria, announces that the US Environmental Protection Agency and NanoLogix have agreed to extend their existing Cooperative Research and Development Agreement (CRADA) for two years, with the new expiration being mid-2015. The CRADA is focused on using NanoLogix-based technologies for development of a comprehensive water quality test kit for testing drinking and source waters in all ten EPA regions.
NanoLogix continues to develop new products and new markets. The company has advanced in a number of areas, including development of new technologies, increasing sales and customer bases, and gaining substantial recognition in published research on NanoLogix products and techniques.
The technology developments at NanoLogix are revolutionary. Improving on existing bacterial diagnostic products and protocols, the Company is achieving success in the market for its Extended-Life Petri dishes and BNP diagnostic kits, both vacuum-packed in gas-charged FlatPacks. The FlatPack technology – exclusively licensed to NanoLogix – represents a major breakthrough in supply-chain management for these products.
Omar8
3 days ago
Another Interesting Release
So is this Nanologix and collaboration with University of Texas Health Science Center ( Faro ?) the early stuff that eventually became N-Assay ?
https://www.biospace.com/nanologix-inc-announces-development-of-multi-well-rapid-diagnostic-test-variant-and-exhibits-at-the-b-american-society-for-microbiology-b-genera
NanoLogix, Inc. Announces
Development of Multi-Well, Rapid Diagnostic Test Variant and Exhibits at the American Society for Microbiology General Meeting in San Francisco
June 13, 2012 | 3 min read
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HUBBARD, Ohio, June 13, 2012 /PRNewswire/ -- NanoLogix (OTC Markets:NNLX) announced today its R&D team in collaboration with University of Texas Health Science Center - Houston (UTHSC-Houston) researchers, are developing a multi-well, microplate reader variant of the company’s BioNanoFilter (BNF) diagnostics for use in large volume laboratory environments. Early analysis of the multi-well plates shows exceptionally fast live-threat results similar to the company’s standard BNF technology. Starting this week, the NanoLogix BNF and BioNanoPore (BNP) technology will be on exhibit at booth #841 at the 112th General Meeting of the American Society for Microbiology in San Francisco, June 16 June 19.
(Photo: http://photos.prnewswire.com/prnh/20120613/CL23734)
Research using NanoLogix technology from a recently completed clinical study will also be presented at the ASM General Meeting on June 17th. Dr. Jonathan Faro of UTHSC-Houston will present the research, which focused on detection, identification, and determination of antibiotic sensitivity of Group B Streptococcus (GBS) during pregnancy. Data showed NanoLogix diagnostics consistently provided results in a 4 to 6 hour window, dramatically shorter than standard culturing times of 48 to 72 hours. The data and the associated clinical study narrative is currently being formatted for submission for peer-review publication, as well as to the US FDA for acceptance as a non-invasive diagnostic technology.
“These are exciting times for NanoLogix,” said CEO Bret Barnhizer. “Our technology has the potential to dramatically affect the course of human health and events over the past eight months have greatly enhanced our position for the future.”
Rapid Live-Threat Tuberculosis Results
Recent R&D operations have also converged to dramatically enrich NanoLogix’ bacteria and protozoa detection technology portfolio.
The detection for Tuberculosis (TB) utilizing NanoLogix’ BNF and BioNanoPore (BNP) technologies has recently been completed by a major independent, third-party research laboratory. Live-threat TB was detected with NanoLogix BNP technology in 4 to 5 days, as opposed to 21 to 84 days with standard culture. TB was also detected and identified with the company’s BNF technology in less than two hours. Peer-reviewed publication and FDA submittal are in process for results from both BNP and BNF Tuberculosis research.
“We are thrilled to be dramatically cutting bacterial detection times from days to hours for many pathogens,” said Barnhizer. “Specifically, we have reduced wait times for TB from weeks to days, while protozoa detection times for Cryptosporidium, which is responsible for over 50 percent of waterborne illnesses, have been cut from weeks to hours. At the same time, we have been able to accomplish these results with improved quality of detection.”
About NanoLogix, Inc.
NanoLogix is a biotechnology company focused primarily on rapid diagnostics. Its products offer accelerated detection and identification of microorganisms. In addition to medical and homeland security applications, NanoLogix technology is applicable in pharmaceutical, industrial, veterinary and environmental testing. Patents granted to NanoLogix can be used in the areas of applied microbiology, soil microbiology, microbial physiology, molecular biology, pharmacology, pharmaco-kinetics, and antibiotic sensitivity. For more information visit www.nanologix.com.
Media Contact:
Lisa Ann Pinkerton
Technica Communications for NanoLogix
408-806-9626
lisaann@technicacommunications.com
Investor Contact:
Carol Surrena
NanoLogix, Inc.
330-534-0800
carol@nanologix.com
This press release contains statements, which may constitute “forward- looking statements” within the meaning of the Securities Act of 1933 and the Securities Exchange Act of 1934, as amended by the Private Securities Litigation Reform Act of 1995. Those statements include statements regarding the intent, belief or current expectations of NanoLogix, Inc., and members of its management as well as the assumptions on which such statements are based. Prospective investors are cautioned that any such forward-looking statements are not guarantees of future performance and involve risks and uncertainties, and that actual results may differ materially from those contemplated by such forward-looking statements. The Company undertakes no obligation to update or revise forward-looking statements to reflect changed assumptions, the occurrence of unanticipated events or changes to future operating results.
SOURCE NanoLogix, Inc.
Omar8
3 days ago
DP,
What I see online with John is he worked from February 2011- Jun 2013.....I do now find it interesting he left around same time this release on N-Assay came out.
So why would John leave in June just when this big news was starting ? Interesting. So it seems he was around for N-Assay but not RVA...maybe it would be interesting to hear from too bad he's not talking it seems.
https://www.businesswire.com/news/home/20130610006681/en/US-EPA-and-NanoLogix-to-Extend-Agreement-to-2015
US EPA and NanoLogix to Extend Agreement to 2015
NanoLogix Provides Operations Update
June 11, 2013 02:31 AM Eastern Daylight Time
HUBBARD, Ohio--(BUSINESS WIRE)--NanoLogix Inc. (NNLX), an innovator in the accelerated detection, identification and antibiotic sensitivity determination of live bacteria, announces that the US Environmental Protection Agency and NanoLogix have agreed to extend their existing Cooperative Research and Development Agreement (CRADA) for two years, with the new expiration being mid-2015. The CRADA is focused on using NanoLogix-based technologies for development of a comprehensive water quality test kit for testing drinking and source waters in all ten EPA regions.
NanoLogix continues to develop new products and new markets. The company has advanced in a number of areas, including development of new technologies, increasing sales and customer bases, and gaining substantial recognition in published research on NanoLogix products and techniques.
The technology developments at NanoLogix are revolutionary. Improving on existing bacterial diagnostic products and protocols, the Company is achieving success in the market for its Extended-Life Petri dishes and BNP diagnostic kits, both vacuum-packed in gas-charged FlatPacks. The FlatPack technology – exclusively licensed to NanoLogix – represents a major breakthrough in supply-chain management for these products. Customers using FlatPacked Petri dishes achieve significant cost savings and supply chain efficiencies over traditional Petri dishes available from other suppliers. Our products have virtually no breakage in shipment and storage, and have a shelf life far beyond that of traditional filled Petri dishes. Tests of our select nutrient agars demonstrate a usable shelf life, stored at room temperature, of at least one year. This is four times longer than the competition's filled Petri plates that require cold storage. Not requiring refrigeration of select media in filled Petri plates is one of the most important developments in bacterial culture and Petri in decades and provides the potential for use of our products throughout the world, with cold storage, expiration, and fragility no longer the concerns they have been for many decades. Shelf life tests of our filled Petri plates that are kept in cold storage, to date, have shown a usable shelf life of at least two years. All shelf life tests have been conducted by a major independent third-party research laboratory and are continuing.
Customers to date include the US EPA, independent research and hospital laboratories, and defense contractors. NanoLogix products are at present being used on at least six classified Federal government projects, with expanded use expected this year. Those projects are funded by the US Departments of Defense, Homeland Security, and the US Environmental Protection Agency. In the past month, NanoLogix has hired four new production employees to cope with added demand.
NanoLogix has recently signed agreements with companies and distributors in Europe and Asia governing expansion of our business beyond US borders. The Company is currently in talks with other US and foreign-based corporations on use of BNP, BNF and Petri products. In April the Company received a granted patent in Japan for its BNP diagnostic technology. Since that event interests in Japan have approached NanoLogix regarding purchase of BNP for use in TB research.
In the past year we and our collaborators in research at University of Texas Health Science Center at Houston have made significant refinements to our existing technologies and have also developed one additional rapid test. The new test has been named the N-Assay. The N-Assay is a unique ELISA multi-well machine-readable assay that provides results for bacteria identification and antibiotic sensitivity in less than one hour with high sensitivity and specificity. Indications are that the N-Assay will provide rapid results for any bacteria for which an antibody exists. We at NanoLogix and the researchers using the N-Assay are very excited at this new development. The N-Assay is projected to provide a premier platform for Point-of–Care rapid diagnostics. N-Assay patent filings were made in 2013. It is projected that the N-Assay will be more suitable for use in some developed areas than our BNF identification technology, with the BNF useful in areas or regions that are less developed.
The Company exhibited at three professional conferences this year --- The American Society for Microbiology (ASM) BioDefense and Emerging Diseases Research meeting in Washington, DC in February, the Food Safety Summit in Baltimore, and the ASM Annual Meeting in Denver, both in May. At all of these meetings there was strong interest in our products, with sales and promise of sales as a result. At the Denver ASM meeting, the general and specific interest was far beyond any the Company has experienced at any of the consecutive ASM meetings attended since 2008.
About NanoLogix, Inc.
NanoLogix is a biotechnology company focused primarily on rapid diagnostics. Its products offer accelerated detection and identification of microorganisms. In addition to medical and homeland security applications, NanoLogix technology is applicable in pharmaceutical, industrial, veterinary and environmental testing.
Patents granted to NanoLogix can be used in the areas of applied microbiology, soil microbiology and bioremediation, microbial physiology, molecular biology, pharmacology, pharmaco-kinetics, and antibiotic sensitivity
For more information visit www.nanologix.com.
This press release contains statements, which may constitute "forward- looking statements" within the meaning of the Securities Act of 1933 and the Securities Exchange Act of 1934, as amended by the Private Securities Litigation Reform Act of 1995. Those statements include statements regarding the intent, belief or current expectations of NanoLogix, Inc., and members of its management as well as the assumptions on which such statements are based. Prospective investors are cautioned that any such forward-looking statements are not guarantees of future performance and involve risks and uncertainties, and that actual results may differ materially from those contemplated by such forward-looking statements. The Company undertakes no obligation to update or revise forward-looking statements to reflect changed assumptions, the occurrence of unanticipated events or changes to future operating results.
Contacts
NanoLogix, Inc.
Investors:
Carol Surrena, 330-534-0800
carol@nanologix.com
Ant4
6 days ago
TO THE HONORABLE COURT:
Plaintiff, Thomas Fagan, proceeding on his own behalf, respectfully submits this Motion for Reconsideration of the Court’s Order (ECF No. 23) granting Defendants’ Motion to Dismiss, pursuant to Local Civil Rule 7.1(i). Plaintiff seeks reconsideration on the grounds that (1) the Court erred in classifying the action as derivative and dismissing it for failure to satisfy the demand requirement under Federal Rule of Civil Procedure 23.1(b)(3), (2) Given that all directors and officers of Nanologix had resigned prior to the initiation of this action, and the corporation was voided in 2018, Plaintiff asserts that a derivative claim was impossible to pursue, and therefore, the action should be recognized as a direct claim, and (3) the Faro Defendants lack standing to argue this action must be derivative. .
I. STANDARD FOR RECONSIDERATION
A motion for reconsideration under Local Civil Rule 7.1(i) is appropriate when the moving party demonstrates: (1) an intervening change in controlling law, (2) the availability of new evidence, or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. See Max’s Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
II. ARGUMENT
A. The Court’s Dismissal Was Based Solely on its Derivative Classification and Must Be Reconsidered
The Court’s order dismissing the complaint was entirely predicated on its determination that this case is derivative in nature. In its reasoning, the Court dismissed the action solely because Plaintiff allegedly failed to meet the requirements for a derivative suit under Delaware law and Federal Rule of Civil Procedure 23.1. However, this rationale does not apply if the action is direct.
Having classified this suit as derivative, the Court then found three procedural deficiencies—all of which relate exclusively to derivative claims:
1. Failure to Specify Ownership at the Time of the Transaction – The Court ruled that Plaintiff did not adequately allege that he owned shares at the time of the wrongful acts, relying on 8 Del. C. § 327 and Fed. R. Civ. P. 23.1(b)(1). This requirement applies only to derivative actions and is irrelevant to a direct claim.
2. Failure to Meet Rule 23.1(b) Requirements – The Court cited Plaintiff’s failure to allege non-collusive jurisdiction (Rule 23.1(b)(2)) and failure to show a demand on directors or an excuse for demand futility (Rule 23.1(b)(3)). Again, these are procedural hurdles only applicable to derivative lawsuits and do not apply to a direct action.
3. Failure to Satisfy the Demand Requirement – The Court held that Plaintiff did not allege an effort to obtain relief from the Board or an excuse for failing to do so. This presupposes a functioning corporate board, which does not exist in this case due to the corporation’s void status.
Since the dismissal was entirely based on these derivative procedural rules, if the Court reconsiders its classification of the action as direct, then all the stated grounds for dismissal disappear. The Court has not ruled on the substantive validity of Plaintiff’s claims, and therefore, reconsideration is warranted to allow the case to proceed as a direct claim.
A. The Court Erred in Classifying This Action as Strictly Derivative
Under Delaware law, a claim is derivative only when the harm is suffered primarily by the corporation and the remedy would flow to the corporation. Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031, 1035 (Del. 2004). However, an exception exists where an action may be direct if the corporation no longer has a functioning governance structure to remedy the harm. See In re Direct Gen. Corp. S'holders Litig., 2020 WL 5121170, at *12 (Del. Ch. Aug. 31, 2020) ("[W]here no corporate authority remains to remedy the alleged wrongs, courts have recognized that shareholders may need to proceed with direct claims to vindicate their rights.").
In situations where a corporation has been voided and lacks a functioning board of directors, Delaware courts have recognized that shareholders may pursue direct legal action to address grievances. This approach acknowledges the impracticality of derivative claims when there is no board to which a demand can be made.
In re Puda Coal, Inc. Stockholders Litigation, the Delaware Court of Chancery addressed a scenario where the company's board was incapable of acting on behalf of the corporation. Chancellor Strine emphasized that requiring shareholders to make a demand on such a board would be futile, stating:
“To suggest that a stockholder has to ask the Puda board to file the lawsuit would be to turn the law into a joke."
This case illustrates that when a corporation is incapacitated—due to void status or the absence of directors—shareholders are permitted to initiate direct actions to protect their interests.
Therefore, Delaware law provides mechanisms for shareholders to pursue direct actions when a corporation is voided, and the board of directors is nonexistent or unable to fulfill its duties.
In the present case, Plaintiff was unable to satisfy the demand requirement under Rule 23.1(b)(3) because Nanologix’s board of directors and officers had completely resigned prior to Plaintiff filing suit, and the corporation itself was voided by the State of Delaware in 2018. Since there were no corporate fiduciaries left to respond to a demand and the corporation no longer existed as a legally recognized entity, compliance with Rule 23.1(b)(3) was impossible. Delaware courts have excused demand when such a request would be futile. See Aronson v. Lewis, 473 A.2d 805, 814 (Del. 1984); see also Rales v. Blasband, 634 A.2d 927, 934 (Del. 1993) ("A court must determine whether the board could have properly exercised its independent and disinterested business judgment in responding to a demand.").
Additionally, under Delaware law, all shareholders must be notified of a derivative action. Given that Nanologix has no remaining officers or directors, Plaintiff has no means to obtain a shareholder list or notify shareholders. This further demonstrates that a derivative remedy is unavailable, reinforcing Plaintiff’s need to proceed with a direct claim.
C. The Corporation Was Properly Named and Served, Yet Failed to Respond
Nanologix was named as a defendant in this action and was properly served through its agent in Delaware. Despite proper service, Nanologix failed to file an answer or otherwise respond to the complaint. This further underscores the absence of any corporate governance structure that could have addressed Plaintiff’s concerns through a derivative action, thereby reinforcing the necessity of proceeding with a direct claim.
D. Defendants Lack Standing to Argue This Action Must Be Derivative
The Faro Defendants, as individuals, lack standing to argue that Plaintiff’s claims must be asserted derivatively. Standing to challenge whether a claim is derivative or direct typically rests with the corporation itself. Where a corporation has been voided and lacks a governance structure, individual defendants cannot invoke derivative procedural requirements as a defense. See In re Puda Coal, Inc. Stockholders Litig., 2013 WL 6461399, at *16 (Del. Ch. Dec. 9, 2013) (noting that where a company has no board to act, derivative procedural rules should not prevent shareholders from seeking relief). As there is no functioning entity to assert procedural objections, the Defendants’ arguments regarding derivative standing must be disregarded.
E. The Court Should Permit Plaintiff to Proceed with a Direct Claim
Given the lack of a functional Nanologix board, the impossibility of shareholder notification, and the corporation’s voided status, the requirement for a derivative demand should be excused. Plaintiff respectfully requests that the Court reconsider its ruling and allow this action to proceed as a direct claim.
F. Request for Oral Argument
Pursuant to Local Civil Rule 78.1, Plaintiff respectfully requests oral argument on this motion. Given the complexity of the legal issues involved, oral argument would assist the Court in fully evaluating the factual and legal circumstances surrounding this case.
III. CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that the Court grant this Motion for Reconsideration and permit this case to proceed as a direct action. Because the Court’s dismissal was predicated entirely on its classification of the case as derivative, reconsideration is warranted. If the Court recognizes that Plaintiff’s claims are direct, then the previously cited procedural barriers to standing under Rule 23.1 and Delaware corporate law become irrelevant, and the case must be reinstated against all Defendants.
For the foregoing reasons, Plaintiff respectfully requests that the Court grant this Motion for Reconsideration and permit this case to proceed as a direct action.
Respectfully submitted,
Ant4
6 days ago
TO THE HONORABLE COURT:
Plaintiff, Thomas Fagan, proceeding on his own behalf, respectfully submits this Motion for Reconsideration of the Court’s Order (ECF No. 23) granting Defendants’ Motion to Dismiss, pursuant to Local Civil Rule 7.1(i). Plaintiff seeks reconsideration on the grounds that (1) the Court erred in classifying the action as derivative and dismissing it for failure to satisfy the demand requirement under Federal Rule of Civil Procedure 23.1(b)(3), (2) Given that all directors and officers of Nanologix had resigned prior to the initiation of this action, and the corporation was voided in 2018, Plaintiff asserts that a derivative claim was impossible to pursue, and therefore, the action should be recognized as a direct claim, and (3) the Faro Defendants lack standing to argue this action must be derivative. .
I. STANDARD FOR RECONSIDERATION
A motion for reconsideration under Local Civil Rule 7.1(i) is appropriate when the moving party demonstrates: (1) an intervening change in controlling law, (2) the availability of new evidence, or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. See Max’s Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
II. ARGUMENT
A. The Court’s Dismissal Was Based Solely on its Derivative Classification and Must Be Reconsidered
The Court’s order dismissing the complaint was entirely predicated on its determination that this case is derivative in nature. In its reasoning, the Court dismissed the action solely because Plaintiff allegedly failed to meet the requirements for a derivative suit under Delaware law and Federal Rule of Civil Procedure 23.1. However, this rationale does not apply if the action is direct.
Having classified this suit as derivative, the Court then found three procedural deficiencies—all of which relate exclusively to derivative claims:
1. Failure to Specify Ownership at the Time of the Transaction – The Court ruled that Plaintiff did not adequately allege that he owned shares at the time of the wrongful acts, relying on 8 Del. C. § 327 and Fed. R. Civ. P. 23.1(b)(1). This requirement applies only to derivative actions and is irrelevant to a direct claim.
2. Failure to Meet Rule 23.1(b) Requirements – The Court cited Plaintiff’s failure to allege non-collusive jurisdiction (Rule 23.1(b)(2)) and failure to show a demand on directors or an excuse for demand futility (Rule 23.1(b)(3)). Again, these are procedural hurdles only applicable to derivative lawsuits and do not apply to a direct action.
3. Failure to Satisfy the Demand Requirement – The Court held that Plaintiff did not allege an effort to obtain relief from the Board or an excuse for failing to do so. This presupposes a functioning corporate board, which does not exist in this case due to the corporation’s void status.
Since the dismissal was entirely based on these derivative procedural rules, if the Court reconsiders its classification of the action as direct, then all the stated grounds for dismissal disappear. The Court has not ruled on the substantive validity of Plaintiff’s claims, and therefore, reconsideration is warranted to allow the case to proceed as a direct claim.
A. The Court Erred in Classifying This Action as Strictly Derivative
Under Delaware law, a claim is derivative only when the harm is suffered primarily by the corporation and the remedy would flow to the corporation. Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031, 1035 (Del. 2004). However, an exception exists where an action may be direct if the corporation no longer has a functioning governance structure to remedy the harm. See In re Direct Gen. Corp. S'holders Litig., 2020 WL 5121170, at *12 (Del. Ch. Aug. 31, 2020) ("[W]here no corporate authority remains to remedy the alleged wrongs, courts have recognized that shareholders may need to proceed with direct claims to vindicate their rights.").
In situations where a corporation has been voided and lacks a functioning board of directors, Delaware courts have recognized that shareholders may pursue direct legal action to address grievances. This approach acknowledges the impracticality of derivative claims when there is no board to which a demand can be made.
In re Puda Coal, Inc. Stockholders Litigation, the Delaware Court of Chancery addressed a scenario where the company's board was incapable of acting on behalf of the corporation. Chancellor Strine emphasized that requiring shareholders to make a demand on such a board would be futile, stating:
“To suggest that a stockholder has to ask the Puda board to file the lawsuit would be to turn the law into a joke."
This case illustrates that when a corporation is incapacitated—due to void status or the absence of directors—shareholders are permitted to initiate direct actions to protect their interests.
Therefore, Delaware law provides mechanisms for shareholders to pursue direct actions when a corporation is voided, and the board of directors is nonexistent or unable to fulfill its duties.
In the present case, Plaintiff was unable to satisfy the demand requirement under Rule 23.1(b)(3) because Nanologix’s board of directors and officers had completely resigned prior to Plaintiff filing suit, and the corporation itself was voided by the State of Delaware in 2018. Since there were no corporate fiduciaries left to respond to a demand and the corporation no longer existed as a legally recognized entity, compliance with Rule 23.1(b)(3) was impossible. Delaware courts have excused demand when such a request would be futile. See Aronson v. Lewis, 473 A.2d 805, 814 (Del. 1984); see also Rales v. Blasband, 634 A.2d 927, 934 (Del. 1993) ("A court must determine whether the board could have properly exercised its independent and disinterested business judgment in responding to a demand.").
Additionally, under Delaware law, all shareholders must be notified of a derivative action. Given that Nanologix has no remaining officers or directors, Plaintiff has no means to obtain a shareholder list or notify shareholders. This further demonstrates that a derivative remedy is unavailable, reinforcing Plaintiff’s need to proceed with a direct claim.
C. The Corporation Was Properly Named and Served, Yet Failed to Respond
Nanologix was named as a defendant in this action and was properly served through its agent in Delaware. Despite proper service, Nanologix failed to file an answer or otherwise respond to the complaint. This further underscores the absence of any corporate governance structure that could have addressed Plaintiff’s concerns through a derivative action, thereby reinforcing the necessity of proceeding with a direct claim.
D. Defendants Lack Standing to Argue This Action Must Be Derivative
The Faro Defendants, as individuals, lack standing to argue that Plaintiff’s claims must be asserted derivatively. Standing to challenge whether a claim is derivative or direct typically rests with the corporation itself. Where a corporation has been voided and lacks a governance structure, individual defendants cannot invoke derivative procedural requirements as a defense. See In re Puda Coal, Inc. Stockholders Litig., 2013 WL 6461399, at *16 (Del. Ch. Dec. 9, 2013) (noting that where a company has no board to act, derivative procedural rules should not prevent shareholders from seeking relief). As there is no functioning entity to assert procedural objections, the Defendants’ arguments regarding derivative standing must be disregarded.
E. The Court Should Permit Plaintiff to Proceed with a Direct Claim
Given the lack of a functional Nanologix board, the impossibility of shareholder notification, and the corporation’s voided status, the requirement for a derivative demand should be excused. Plaintiff respectfully requests that the Court reconsider its ruling and allow this action to proceed as a direct claim.
F. Request for Oral Argument
Pursuant to Local Civil Rule 78.1, Plaintiff respectfully requests oral argument on this motion. Given the complexity of the legal issues involved, oral argument would assist the Court in fully evaluating the factual and legal circumstances surrounding this case.
III. CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that the Court grant this Motion for Reconsideration and permit this case to proceed as a direct action. Because the Court’s dismissal was predicated entirely on its classification of the case as derivative, reconsideration is warranted. If the Court recognizes that Plaintiff’s claims are direct, then the previously cited procedural barriers to standing under Rule 23.1 and Delaware corporate law become irrelevant, and the case must be reinstated against all Defendants.
For the foregoing reasons, Plaintiff respectfully requests that the Court grant this Motion for Reconsideration and permit this case to proceed as a direct action.
Respectfully submitted,
Ant4
6 days ago
I filed a Motion for Reconsideration yesterday that asks that the dismissal be vacated and the action be reinstated. it will take a few days to show up on the courts system. The basis for the motion is as individual defendants has no standing to argue that the action is a derivative one, only a corporation can argue that and when the corporation no longer exists and is voided and it has no officers or directors the Delaware Courts allow for the suit to filed filed as a "direct" suit.
FYI.....a derivative suit is filed when all shareholders were exposed to the same harm, ie they failed to tell all shareholders that the corp was voided in 2018, they now claim they own the patents, etc etc. In other words we were all harmed not just me. The reason they are claiming it is a derivative suit is it would have had to have been filed on behalf of all shareholders which I could not have done because as a non attorney I can only represent myself.
II. ARGUMENT
A. The Court Erred in Classifying This Action as Strictly Derivative
Under Delaware law, a claim is derivative only when the harm is suffered primarily by the corporation and the remedy would flow to the corporation. Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031, 1035 (Del. 2004). However, an exception exists where an action may be direct if the corporation no longer has a functioning governance structure to remedy the harm. See In re Direct Gen. Corp. S'holders Litig., 2020 WL 5121170, at *12 (Del. Ch. Aug. 31, 2020) ("[W]here no corporate authority remains to remedy the alleged wrongs, courts have recognized that shareholders may need to proceed with direct claims to vindicate their rights.").
In situations where a corporation has been voided and lacks a functioning board of directors, Delaware courts have recognized that shareholders may pursue direct legal action to address grievances. This approach acknowledges the impracticality of derivative claims when there is no board to which a demand can be made.
In In re Puda Coal, Inc. Stockholders Litigation, the Delaware Court of Chancery addressed a scenario where the company's board was incapable of acting on behalf of the corporation. Chancellor Strine emphasized that requiring shareholders to make a demand on such a board would be futile, stating:
To suggest that a stockholder has to ask the Puda board to file the lawsuit would be to turn the law into a joke."
This case illustrates that when a corporation is incapacitated—due to void status or the absence of directors—shareholders are permitted to initiate direct actions to protect their interests.
Therefore, Delaware law provides mechanisms for shareholders to pursue direct actions when a corporation is voided, and the board of directors is nonexistent or unable to fulfill its duties.
A. The Court’s Dismissal Was Based Solely on its Derivative Classification and Must Be Reconsidered
The Court’s order dismissing the complaint was entirely predicated on its determination that this case is derivative in nature. In its reasoning, the Court dismissed the action solely because Plaintiff allegedly failed to meet the requirements for a derivative suit under Delaware law and Federal Rule of Civil Procedure 23.1. However, this rationale does not apply if the action is direct.
Having classified this suit as derivative, the Court then found three procedural deficiencies—all of which relate exclusively to derivative claims:
Failure to Specify Ownership at the Time of the Transaction – The Court ruled that Plaintiff did not adequately allege that he owned shares at the time of the wrongful acts, relying on 8 Del. C. § 327 and Fed. R. Civ. P. 23.1(b)(1). This requirement applies only to derivative actions and is irrelevant to a direct claim.
Failure to Meet Rule 23.1(b) Requirements – The Court cited Plaintiff’s failure to allege non-collusive jurisdiction (Rule 23.1(b)(2)) and failure to show a demand on directors or an excuse for demand futility (Rule 23.1(b)(3)). Again, these are procedural hurdles only applicable to derivative lawsuits and do not apply to a direct action.
Failure to Satisfy the Demand Requirement – The Court held that Plaintiff did not allege an effort to obtain relief from the Board or an excuse for failing to do so. This presupposes a functioning corporate board, which does not exist in this case due to the corporation’s void status.
Since the dismissal was entirely based on these derivative procedural rules, if the Court reconsiders its classification of the action as direct, then the only grounds for dismissal disappear. The Court has not ruled on the substantive validity of Plaintiff’s claims, and therefore, reconsideration is warranted to allow the case to proceed as a direct claim.
D. Defendants Lack Standing to Argue This Action Must Be Derivative
The Faro Defendants, as individuals, lack standing to argue that Plaintiff’s claims must be asserted derivatively. Standing to challenge whether a claim is derivative or direct typically rests with the corporation itself. Where a corporation has been voided and lacks a governance structure, individual defendants cannot invoke derivative procedural requirements as a defense. See In re Puda Coal, Inc. Stockholders Litig., 2013 WL 6461399, at *16 (Del. Ch. Dec. 9, 2013) (noting that where a company has no board to act, derivative procedural rules should not prevent shareholders from seeking relief). As there is no functioning entity to assert procedural objections, the Defendants’ arguments regarding derivative standing should be disregarded.
Not an attorney but I've had 3 attorneys tell me they are great arguments.
FYI the delay in all of this is that for the past 4 months I have been battling 2 different cancers and between therapies and surgeries I was unable to concentrate on this, in fact I'm lucky to be alive. However I beat both and cancer free and back to concentrating on this. I beat 2 cancers ..........I'll beat these thieves.
Ant4
6 days ago
I filed a Motion for Reconsideration yesterday that asks that the dismissal be vacated and the action be reinstated. it will take a few days to show up on the courts system. The basis for the motion is as individual defendants has no standing to argue that the action is a derivative one, only a corporation can argue that and when the corporation no longer exists and is voided and it has no officers or directors the Delaware Courts allow for the suit to filed filed as a "direct" suit.
FYI.....a derivative suit is filed when all shareholders were exposed to the same harm, ie they failed to tell all shareholders that the corp was voided in 2018, they now claim they own the patents, etc etc. In other words we were all harmed not just me. The reason they are claiming it is a derivative suit is it would have had to have been filed on behalf of all shareholders which I could not have done because as a non attorney I can only represent myself.
II. ARGUMENT
A. The Court Erred in Classifying This Action as Strictly Derivative
Under Delaware law, a claim is derivative only when the harm is suffered primarily by the corporation and the remedy would flow to the corporation. Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031, 1035 (Del. 2004). However, an exception exists where an action may be direct if the corporation no longer has a functioning governance structure to remedy the harm. See In re Direct Gen. Corp. S'holders Litig., 2020 WL 5121170, at *12 (Del. Ch. Aug. 31, 2020) ("[W]here no corporate authority remains to remedy the alleged wrongs, courts have recognized that shareholders may need to proceed with direct claims to vindicate their rights.").
In situations where a corporation has been voided and lacks a functioning board of directors, Delaware courts have recognized that shareholders may pursue direct legal action to address grievances. This approach acknowledges the impracticality of derivative claims when there is no board to which a demand can be made.
In In re Puda Coal, Inc. Stockholders Litigation, the Delaware Court of Chancery addressed a scenario where the company's board was incapable of acting on behalf of the corporation. Chancellor Strine emphasized that requiring shareholders to make a demand on such a board would be futile, stating:
To suggest that a stockholder has to ask the Puda board to file the lawsuit would be to turn the law into a joke."
This case illustrates that when a corporation is incapacitated—due to void status or the absence of directors—shareholders are permitted to initiate direct actions to protect their interests.
Therefore, Delaware law provides mechanisms for shareholders to pursue direct actions when a corporation is voided, and the board of directors is nonexistent or unable to fulfill its duties.
A. The Court’s Dismissal Was Based Solely on its Derivative Classification and Must Be Reconsidered
The Court’s order dismissing the complaint was entirely predicated on its determination that this case is derivative in nature. In its reasoning, the Court dismissed the action solely because Plaintiff allegedly failed to meet the requirements for a derivative suit under Delaware law and Federal Rule of Civil Procedure 23.1. However, this rationale does not apply if the action is direct.
Having classified this suit as derivative, the Court then found three procedural deficiencies—all of which relate exclusively to derivative claims:
Failure to Specify Ownership at the Time of the Transaction – The Court ruled that Plaintiff did not adequately allege that he owned shares at the time of the wrongful acts, relying on 8 Del. C. § 327 and Fed. R. Civ. P. 23.1(b)(1). This requirement applies only to derivative actions and is irrelevant to a direct claim.
Failure to Meet Rule 23.1(b) Requirements – The Court cited Plaintiff’s failure to allege non-collusive jurisdiction (Rule 23.1(b)(2)) and failure to show a demand on directors or an excuse for demand futility (Rule 23.1(b)(3)). Again, these are procedural hurdles only applicable to derivative lawsuits and do not apply to a direct action.
Failure to Satisfy the Demand Requirement – The Court held that Plaintiff did not allege an effort to obtain relief from the Board or an excuse for failing to do so. This presupposes a functioning corporate board, which does not exist in this case due to the corporation’s void status.
Since the dismissal was entirely based on these derivative procedural rules, if the Court reconsiders its classification of the action as direct, then the only grounds for dismissal disappear. The Court has not ruled on the substantive validity of Plaintiff’s claims, and therefore, reconsideration is warranted to allow the case to proceed as a direct claim.
D. Defendants Lack Standing to Argue This Action Must Be Derivative
The Faro Defendants, as individuals, lack standing to argue that Plaintiff’s claims must be asserted derivatively. Standing to challenge whether a claim is derivative or direct typically rests with the corporation itself. Where a corporation has been voided and lacks a governance structure, individual defendants cannot invoke derivative procedural requirements as a defense. See In re Puda Coal, Inc. Stockholders Litig., 2013 WL 6461399, at *16 (Del. Ch. Dec. 9, 2013) (noting that where a company has no board to act, derivative procedural rules should not prevent shareholders from seeking relief). As there is no functioning entity to assert procedural objections, the Defendants’ arguments regarding derivative standing should be disregarded.
Not an attorney but I've had 3 attorneys tell me they are great arguments.
FYI the delay in all of this is that for the past 4 months I have been battling 2 different cancers and between therapies and surgeries I was unable to concentrate on this, in fact I'm lucky to be alive. However I beat both and cancer free and back to concentrating on this. I beat 2 cancers ..........I'll beat these thieves.
Ant4
1 week ago
The Court Erred in Classifying This Action as Strictly Derivative
Under Delaware law, a claim is derivative only when the harm is suffered primarily by the corporation and the remedy would flow to the corporation. Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031, 1035 (Del. 2004). However, an exception exists where an action may be direct if the corporation no longer has a functioning governance structure to remedy the harm. See In re Direct Gen. Corp. S'holders Litig., 2020 WL 5121170, at *12 (Del. Ch. Aug. 31, 2020) ("[W]here no corporate authority remains to remedy the alleged wrongs, courts have recognized that shareholders may need to proceed with direct claims to vindicate their rights.").
In the present case, Plaintiff was unable to satisfy the demand requirement under Rule 23.1(b)(3) because Nanologix’s board of directors and officers had completely resigned prior to Plaintiff filing suit, and the corporation itself was voided by the State of Delaware in 2018. Since there were no corporate fiduciaries left to respond to a demand and the corporation no longer existed as a legally recognized entity, compliance with Rule 23.1(b)(3) was impossible. Delaware courts have excused demand when such a request would be futile. See Aronson v. Lewis, 473 A.2d 805, 814 (Del. 1984); see also Rales v. Blasband, 634 A.2d 927, 934 (Del. 1993) ("A court must determine whether the board could have properly exercised its independent and disinterested business judgment in responding to a demand.").
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