(1) A derivative proceeding commenced pursuant to this part 7 shall be dismissed by the court on motion by the limited liability company if any one of the groups specified in subsection (2) of this section has determined in good faith, after conducting an inquiry upon which the determination is based, that the maintenance of the derivative action is not in the best interests of the limited liability company.
(2) (a) Subject to the requirements of paragraph (b) of this subsection (2), the determination whether the maintenance of the derivative proceeding is in the best interests of the limited liability company shall be made by the independent manager of the limited liability company or, where there is more than one such manager, by a majority of said managers; except that, if there is no independent manager of the limited liability company or if the majority of such managers is unable to make the determination, the determination shall be made by a majority of the independent members of the limited liability company.
(b) If the determination is not made pursuant to paragraph (a) of this subsection (2), the determination shall be made by the person, or, in the case of more than one person, by a majority of such persons, sitting upon a panel of one or more persons appointed by a court upon motion filed with the court by the limited liability company for such purposes.
The court shall appoint only independent persons to the panel described in paragraph(b) of subsection (2) of this section.
None of the following shall by itself cause a person not to be considered independentfor purposes of subsection (2) of this section:
The naming of the person as a defendant in the derivative proceeding or as a personagainst whom action is demanded;
The approval by such person of the act being challenged in the derivative proceedingor demand where the act did not result in personal benefit to such person;
The making of the demand pursuant to section 7-80-714 or the commencement of thederivative proceeding pursuant to this section.
Subject to section 7-80-717, a panel appointed by the court pursuant to paragraph (b) of subsection (2) of this section shall have such authority to continue, settle, or discontinue the derivative proceeding as the court may confer upon such panel.
The plaintiff in the derivative proceeding shall have the burden of proving that any ofthe requirements of subsections (1) and (2) of this section have not been met.
Source: L. 2002: Entire section added, p. 1725, § 160, effective October 1.