Spiegel v. Buntrock
In Spiegel v. Buntrock, 571 A.2d 767, 775-76 (Del. 1990), the Delaware Supreme Court held:
A stockholder who asserts a derivative claim cannot stand neutral, in effect, with respect to the board of directors' ability to respond to a request to take legal action, by simultaneously making a demand for such action and continuing to argue that demand is excused.
By making a demand, a stockholder tacitly acknowledges the absence of facts to support a finding of futility. Thus, when a demand is made, the question of whether demand was excused is moot. (571 A.2d at 775.)