Plaintiff was not entitled to proceed on its derivative action seeking to enjoin a merger because it had not waited for the 90 day period required by N.C.G.S. §55-7-42. Plaintiff failed to sufficiently plead irreparable harm, which might have excused it from waiting the 90 day period.

It was not irreparable harm that the company’s shareholders would be called upon to vote on the merger transaction before the expiration of the 90 day period, because there was an absolute statutory right to vote on the merger absent a showing of breach of fiduciary duty by the company’s directors, and plaintiff could present its position through a proxy fight if it desired.

Plaintiff’s rote allegations regarding a breach of fiduciary duty were insufficient to survive a motion to dismiss or to overcome the presumption of the business judgment rule.

Full Opinion