In this stockholders' derivative action, the individual defendants, who are the directors of the American Express Company, move for an order dismissing the complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), and alternatively, for summary judgment pursuant to CPLR 3211(c).

[1] The complaint is brought derivatively by two minority stockholders of the American Express Company, asking for a declaration that a certain dividend in kind is a waste of *811 corporate assets, directing the defendants not to proceed with the distribution, or, in the alternative, for monetary damages. The motion to dismiss the complaint requires the Court to presuppose the truth of the allegations. It is the defendants' contention that, conceding everything in the complaint, no viable cause of action is made out.

After establishing the identity of the parties, the complaint alleges that in 1972 American Express acquired for investment 1,954,418 shares of common stock of Donaldson, Lufken and Jenrette, Inc. (hereafter DLJ), a publicly traded corporation, at a cost of $29.9 million. It is further alleged that the current market value of those shares is approximately $4.0 million. On July 28, 1975, it is alleged, the Board of Directors of American Express declared a special dividend to all stockholders of record pursuant to which the shares of DLJ would be distributed in kind. Plaintiffs contend further that if American Express were to sell the DLJ shares on the market, it would sustain a capital loss of $25 million, which could be offset against taxable capital gains on other investments. Such a sale, they **810 allege, would result in tax savings to the company of approximately $8 million, which would not be available in the case of the distribution of DLJ shares to stockholders. It is alleged that on October 8, 1975 and October 16, 1975, plaintiffs demanded that the directors rescind the previously declared dividend in DLJ shares and take steps to preserve the capital loss which would result from selling the shares. This demand was rejected by the Board of Directors on October 17, 1975.

It is apparent that all the previously-mentioned allegations of the complaint go to the question of the exercise by the Board of Directors of business judgment in deciding how to deal with the DLJ shares. The crucial allegation which must be scrutinized to determine the legal sufficiency of the complaint is paragraph 19, which alleges:

'19. All of the defendant Directors engaged in or acquiesced in or negligently permitted the declaration and payment of the Dividend in violation of the fiduciary duty owed by them to Amex to care for and preserve Amex's assets in the same manner as a man of average prudence would care for his own property.'

[2] Plaintiffs never moved for temporary injunctive relief, and did nothing to bar the actual distribution of the DLJ shares. The dividend was in fact paid on October 31, 1975. Accordingly, that portion of the complaint seeking a direction not to *812 distribute the shares is deemed to be moot, and the Court will deal only with the request for declaratory judgment or for damages.

Examination of the complaint reveals that there is no claim of fraud or self-dealing, and no contention that there was any bad faith or oppressive conduct. The law is quite clear as to what is necessary to ground a claim for actionable wrongdoing.

'In actions by stockholders, which assail the acts of their directors or trustees, courts will not interfere unless the powers have been illegally or unconscientiously executed; or unless it be made to appear that the acts were fraudulent or collusive, and destructive of the rights of the stockholders. Mere errors of judgment are not sufficient as grounds for equity interference, for the powers of those entrusted with corporate management are largely discretionary.' Leslie v. Lorillard, 110 N.Y. 519, 532, 18 L.E. 363, 365.

[3] More specifically, the question of whether or not a dividend is to be declared or a distribution of some kind should be made is exclusively a matter of business judgment for the Board of Directors.

'* * * Courts will not interfere with such discretion unless it be first made to appear that the directors have acted or are about to act in bad faith and for a dishonest purpose. It is for the directors to say, acting in good faith of course, when and to what extent dividends shall be declared * * * The statute confers upon the directors this power, and the minority stockholders are not in a position to question this right, so long as the directors are acting in good faith * * *‘ Liebman v. Auto Strop Co., 241 N.Y. 427, 433—4, 150 N.E. 505, 506.

[4] [5] Thus, a complaint must be dismissed if all that is presented is a decision to pay dividends rather than pursuing some other course of conduct. Weinberger v. Quinn, 264 App.Div. 405, 35 N.Y.S.2d 567, affd. 290 N.Y. 635, 49 N.E.2d 131. A complaint which alleges merely that some course of action other than that pursued by the Board of Directors would have been more advantageous gives rise to no cognizable cause of action. Courts have more than enough to do in adjudicating legal rights and devising remedies for wrongs. The directors' room rather than the courtroom is **811 the appropriate forum for thrashing out purely business questions *813 which will have an impact on profits, market prices, competitive situations, or tax advantages. As stated by Cardozo, J., when sitting at Special Term, the substitution of someone else's business judgment for that of the directors ‘is no business for any court to follow.’ Holmes v. St. Joseph Lead Co., 84 Misc. 278, 283, 147 N.Y.S. 104, 107, quoting from Gamble v. Queens County Water Co., 123 N.Y. 91, 99, 25 N.E. 201, 208.

[6] [7] [8] It is not enough to allege, as plaintiffs do here, that the directors made an imprudent decision, which did not capitalize on the possibility of using a potential capital loss to offset capital gains. More than imprudence or mistaken judgment must be shown.

'Questions of policy of management, expediency of contracts or action, adequacy of consideration, lawful appropriation of corporate funds to advance corporate interests, are left solely to their honest and unselfish decision, for their powers therein are without limitation and free from restraint, and the exercise of them for the common and general interests of the corporation may not be questioned, although the results show that what they did was unwise or inexpedient.' Pollitz v. Wabash Railroad Co., 207 N.Y. 113, 124, 100 N.E. 721, 724.

Nor does this appear to a be a case in which a potentially valid cause of action is inartfully stated. The defendants have moved alternatively for summary judgment and have submitted affidavits under CPLR 3211(c), and plaintiffs likewise have submitted papers enlarging upon the allegations of the complaint. The affidavits of the defendants and the exhibits annexed thereto demonstrate that the objections raised by the plaintiffs to the proposed dividend action were carefully considered and unanimously rejected by the Board at a special meeting called precisely for that purpose at the plaintiffs' request. The minutes of the special meeting indicate that the *814 defendants were fully aware that a sale rather than a distribution of the DLJ shares might result in the realization of a substantial income tax saving. Nevertheless, they concluded that there were countervailing considerations primarily with respect to the adverse effect such a sale, realizing a loss of $25 million, would have on the net income figures in the American Express financial statement. Such a reduction of net income would have a serious effect on the market value of the publicly traded American Express stock. This was not a situation in which the defendant directors totally overlooked facts called to their attention. They gave them consideration, and attempted to view the total picture in arriving at their decision. While plaintiffs contend that according to their accounting consultants the loss on the DLJ stock would still have to be charged against current earnings even if the stock were distributed, the defendants' accounting experts assert that the loss would be a charge against earnings only in the event of a sale, whereas in the event of distribution of the stock as a dividend, the proper accounting treatment would be to charge the loss only against surplus. While the chief accountant for the SEC raised some question as to the appropriate accounting treatment of this transaction, there was no basis for any action to be taken by the SEC with respect to the American Express financial statement.

[9] [10] [11] [12] [13] The only hint of self-interest which is raised, not in the complaint but in **812 the papers on the motion, is that four of the twenty directors were officers and employees of American Express and members of its Executive Incentive Compensation Plan. Hence, it is suggested, by virtue of the action taken earnings may have been overstated and their compensation affected thereby. Such a claim is highly speculative and standing alone can hardly be regarded as sufficient to support an inference of self-dealing. There is no claim or showing that the four company directors dominated and controlled the sixteen outside members of the Board. Certainly, every action taken by the Board has some impact on earnings and may therefore affect the compensation of those whose earnings are keyed to profits. That does not disqualify the inside directors, nor does it put every policy adopted by the Board in question. All directors have an obligation, using sound business judgment, to maximize income for the benefit of all persons having a stake in the welfare of the corporate entity. See, Amdur v. Meyer, 15 A.D.2d 425, 224 N.Y.S.2d 440, appeal dismissed 14 N.Y.2d 541, 248 N.Y.S.2d 639, 198 N.E.2d 30. What we have here as revealed *815 both by the complaint and by the affidavits and exhibits, is that a disagreement exists between two minority stockholders and a unanimous Board of Directors as to the best way to handle a loss already incurred on an investment. The directors are entitled to exercise their honest business judgment on the information before them, and to act within their corporate powers. That they may be mistaken, that other courses of action might have differing consequences, or that their action might benefit some shareholders more than others presents no basis for the superimposition of judicial judgment, so long as it appears that the directors have been acting in good faith. The question of to what extent a dividend shall be declared and the manner in which it shall be paid is ordinarily subject only to the qualification that the dividend be paid out of surplus (Business Corporation Law Section 510, subd. b). The Court will not interfere unless a clear case is made out of fraud, oppression, arbitrary action, or breach of trust.

[14] Courts should not shrink from the responsibility of dismissing complaints or granting summary judgment when no legal wrongdoing is set forth. As stated in Greenbaum v. American Metal Climax Inc., 27 A.D.2d 225, 231—2, 278 N.Y.S.2d 123, 130:

'It is well known that derivative actions by stockholders generally involve extensive pretrial procedures, including lengthy examinations before trial, and then, finally, prolonged trials; and that they also entail large litigation costs, including the probability of a considerable liability upon the corporation for the defense costs of defendant officers. Such actions are a heavy burden upon the courts and litigants. Consequently, the summary judgment remedy should be fully utilized and given due effect to challenge such an action which appears to be in the nature of a strike suit or otherwise lacks apparent merit * * * (plaintiffs) are bound to bear in mind that matters depending on business judgment are not actionable (Cf. Steinberg v. Carey, 285 App.Div. 1131, 140 N.Y.S.2d 574). They are required to set forth something more than vague general charges of wrongdoing; the charges must be supported by factual assertions of specific wrongdoing; conclusory allegations of breaches of fiduciary duty are not enough.'

In this case it clearly appears that the plaintiffs have failed as a matter of law to make out an actionable claim. Accordingly, the motion by the defendants for summary judgment and dismissal of the complaint is granted.

本案诉讼提出后，被告以原告的请求没有诉因为由请求法院驳回起诉并进行简易判断。所以法院使按照简易判决的要求进行审理的。

爱德华 J.格林非尔德法官(Edward J. Greenfield, J.)发表了法庭意见：

在这场股东的派生诉讼中，被告，美国快递公司的董事，动议法院发布一项命令，以原告未能提出有效诉因而驳回原告的起诉。

这是场由两个少数股东向美国快递公司提起的派生诉讼，宣称公司的股利分配是浪费公司的财产，并要求金钱赔偿。要同意被告的主张驳回起诉，法院必须首先假设原告所提出的事实是正确的。被告认为，即使承认原告在诉讼中所提出的所有事实，原告也没有提出有效的诉因。

确认了当事人的身份以后，原告在起诉中提出，1972年，美国快递公司以29,000,000美元的价格收购了唐纳森，卢佛金&杰瑞特公司（Donaldson, Lufkin & Jenrette公司，下称DLJ），一个公开上市公司1，954，418股股票，作为投资。原告指出，这些股票的现有价值大约为4,000,000美元。原告诉称，1975年7月28日，美国快递公司的董事会宣布向所有在公司登记的股东分配一项特别的红利，这项特别的红利就是DLJ的股票。原告争论道，如果美国快递公司在市场上出售其所拥有的DLJ股票，其资产将有25,000,000美元的损失，而该项损失可以与其他投资的应纳税资产收益相抵销。他们认为这样的出售，可以给公司节约大约8,000,000美元的税收，而将DJL股票分发给股东的情况下，就不可能有这样的税收方面的益处。1975年10月8日和1975年10月16日，原告要求董事会撤消之前声明的DLJ股票分配红利决定，同时采取措施出售这些股票，保留出售股票可以产生的资本损失。这项要求被董事们在1975年10月17日拒绝了。

很明显，原告前面提到的所有主张，都集中于董事如何决定并处理DJL股票的商业判断。要决定原告起诉是否有足够的法定理由，我们必须要仔细阅读并审查起诉书中关键的第19自然段，该段称：“19.所有参加了或默许或冒然地同意了以DLJ股票分红的董事会声明和红利支付的被告董事，都违反了他们对美国快递公司所负有的诚信义务，即以一个一般人谨慎地对待自己的财产那样来谨慎对待和保护美国快递公司的财产。”

通过我们对起诉的审查，我们发现原告并没有提出被告存在欺诈或自我交易的行为，也没有任何恶意或排挤的行为。在什么条件下对一个可诉的错误行为起诉，相关的法律表述是十分清楚的，“在由股东提起的对董事和受托人的起诉中，除非权利被非法或极不公平地行使，或者显示出这些行为是欺诈性或合谋的，对股东权利是毁灭性的，否则法院不会干预。仅仅因为判断的失误是不足以引起衡平法上的干预的；因为这些由于信任而被授予公司经营管理权的人员，他们所拥有的权利，具有很大自由裁量范围。” ^[1]更具体的一点说，是否宣告分红，或以那种方式进行分配，都是排他的属于董事会的商业判断的问题。

《商业公司法》720条，允许在以下的情况下对董事提起诉讼：“过错、不行其职务范围内对于公司财产的处置和管理责任，或者其他的违反其对于公司财产的处置和管理责任的行为。”这并不是说，一个董事因为作了一个不合适的决定，或不小心的行为之类的普通过错而受控。“过错” 在法条中，指的是对职责的忽视（比如，违法乱纪和懈怠）而并非错误判断。声称一个董事“过失地同意宣布分配红利或支付红利”而没有提出欺诈、不诚实或不履行其职责，那就仅仅是说董事作了一个决定，而这个决定，他不同意。

股东不同意董事的决定，并非是一个潜在的有力诉因，也不仅仅是原告提出的方式不恰当的问题。被告的答辩状和附件表明，对于原告所提出的有关红利分配的异议，应原告的请求，董事会专门召开了一个特别会议，进行了认真的考虑，最终董事会一致否决了原告的意见。这次特别会议记录表明，被告董事很清楚，如果不分配DJL股票，选择出售的话，可以使公司得到大量的收入税节省。但是，董事会得出的结论是，这样的出售会给公司的财务报表带来很大的负面影响，主要在于，25,000,000美元的损失将会出现在美国快递公司的财务报告上。在净收入上的减少将对公开上市交易的美国快递公司的股票市场价格产生严重影响。这对于被告董事来说，是个不可以完全忽视的事实。他们对此进行了认真的考虑，并试图在做出决定之前对事实有全面的了解。原告争论道，根据他们的财务顾问的意见，即使DLJ股票作为红利分配了，DLJ股票的损失仍然要与收入相抵；被告的财务专家认为只有在出售时，损失才会与收入相抵，在股票以股利形式分配时，适当的财务处理可以使得损失只与盈余相抵。尽管SEC的首席会计师对这项交易的会计处理上有些问题，但SEC对于美国快递公司的财务报告并没有采取任何行动。

原告关于被告存在自我交易问题的异议，并没有在起诉中提出，而是在动议的文件中提出，他们称，20个董事中有4个是美国快递公司的管理层和雇员，这四个董事是公司行政激励补偿计划的成员。这样，原告指出，由于分配了DLJ股票而不是出售了DLJ股票，公司的收入可能被夸大，他们的行政激励补偿计划补偿金也会因此受影响。这样的控诉几乎是凭空想象的，单独的这样一个理由不足以作为法院对自我交易干预的足够理由。所有的董事都有一项义务，做出适当的商业判断，为与公司实体有利益关系的所有人的福址的最大化而努力。我们这里，从起诉书、答辩状和附件中看到的是，在两个小股东和保持一致战线的董事会之间关于如何更好地处理一个在投资上已经出现的损失的分歧。董事们有权在公司赋予的职权范围内根据现有信息运用他们的诚实商业判断。他们可能犯了错误，其他的行动可能会产生不同的结果，或者他们的行为可以使一些股东比另一些股东得到更大的收益，只要董事表现出的是本着善意进行行为，法院就不能以此作为司法干预的理由。至于在什么情况下宣布分红，以什么方式进行红利支付，通常的要求是应当在公司盈余的范围内进行分配。 ^[2]法院不会进行干预，除非案件表明存在欺诈、排挤、违反信托义务或武断的行为。***

这个案子清楚表明，原告没有在法律上提出可诉的请求。因此，准予被告关于简易判决和驳回起诉的动议。

股东投资于公司当然是为了取得经济回报，这种回报表现为两种形式，一种形式是从公司获得红利的分配，另一种形式是公司股票价格的上涨。但是使股东利益最大化的责任，应当由谁来承担，股东利益最大化的义务是什么？在公司股东与董事就公司经营管理权的分配中，我们已经知道，依据美国的法律，除了公司法规定的股东具有投票权的事项，“公司的业务和事务应在董事会的指导下进行管理” ^[3]。因此，谁有义务和权利为股东谋取最大利益，是公司的董事。如何争取股东利益的最大化，是属于公司的商业判断，根据美国公司法商业判断的规则，公司董事会的决议受商业判断规则的保护。“商业判断是法院审查董事行为是否违反其谨慎职责的司法审查准则。它体现了法院是否由法官在事后评价董事行为是非曲折的审慎态度” ^[4]因此，依据商业判断的规则，法院对于不存在欺诈、自我交易的商业判断不作事后的判断与干预，即使在事后看来当时的判断是错误的。