Opinions like this one today seem to me the twenty-first century equivalent of trying to figure out how many angels can dance on the head of a pin.
The dispositive question is whether the ostensibly independent shareholders of Wynn Resorts are sufficiently independent that they could be expected to decide to sue Steve Wynn, alongside other board members, on behalf of the corporation. The truth, for anyone who knows this industry, is obvious. Of course the board members aren't going to authorize such a lawsuit. Were there infinite numbers of parallel universes, in none of them do these board members vote to bring such a suit. Zero. The hand-picked members of the board simply aren't going to do that, and to pretend otherwise is silly.
Yet the federal courts nonetheless go through a facile exercise of trying to ascertain whether these board members are "really" independent and "could" decide to bring a lawsuit such that a demand on the board would be futile. I understand that such an inquiry is required by doctrine. But it's as silly as the angel/pin dispute. There's no real "there" there. It's an utterly artificial inquiry. Entirely divorced from the practical realities of many -- if not most -- modern board of directors. Especially in situations like this one.
So, sure, Judge O'Scannlain's opinion makes sense. Plus has a neat little stateless-citizen-federal-diversity-jurisdiction issue thrown in there for good measure.
But I nonetheless can't help thinking that it's the equivalent of an opinion that says that exactly 48.6 angels can fit on an average-size pin manufactured in the eastern seaboard of the United States. It really is that far divorced from reality.
Even though I fully understand that, yes, if the relevant precedent says that it's dispositive whether 45 or more angels can fit, we indeed are required to go through this entirely silly exercise.
