UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SIMON BRONNER, et al. , : : Plaintiffs, : Civil Action No.: 16-0740 (RC) : v. : Re Document No.: 21 : LISA DUGGAN, et al. , : : Defendants. : MEMORANDUM OPINION G RANTING IN P ART AND D ENYING IN P ART D EFENDANTS ’ RENEWED M OTION TO D ISMISS
I. INTRODUCTION Plaintiffs bring this suit in their individual capacities and d erivatively on behalf of the American Studies Association, a lleging that a group of academic leaders improperly introduced and implemented an academic boyco tt of Israel. Plaintiffs seek injunctive relief and damages from the American Studies Associ ation for alleged breach of fid uciary duty, ultra vires acts, breach of contract, and violation of the D.C. Nonprofit Corpora tion Act. They seek recovery for alleged ultra vires acts and waste against the pro- boycott leaders directly. Defe ndants move to dismiss on several grounds, inclu ding lack of subject-matter jurisdiction, l ack of personal jurisdiction, the Firs t Amendment, and failure to state a claim . With respect to their contention that Plaintiffs do not state cognizab le claims, Defendants’ arg ument does not extend to Plaintiffs’ claims for waste or violation of the D.C. Nonprofit CorporationAct. Although the Court finds that it possesses jurisdiction and it would not violate the First Amendment to rule against Defenda nts in this case, it also find s that Plaintiffs, in part, failed to state cognizable claims. Although Plaintiffs allege plausible direct claims for breach of contract and waste, their failure to ade quately demand that the nonprofi t corporation remedy the situation2 internally makes them inelig ible to proceed derivatively under District of Columbia law. Additionally, because Plaintiffs do not allege facts suggesting that Defendants acted in violation of an express prohibition in the bylaws, they fail to state cog nizable ultra vires claims. Accordingly, the Court will dism iss Plaintiffs’ derivative clai ms and ultra vires claim. The case will proceed, however, with Plaintiffs’ direct claims for waste , breach of contract, and violation of the D.C. Nonprofit Corporati on Act, which survive dismissal.

II. FACTUAL BACKGROUND Plaintiff Simon Bronner brings this action derivatively on beha lf of the American Studies Association (“ASA”) against De fendants Lisa Duggan, Curtis Mare z, Avery Gordon, Neferti Tadiar, Sunaina Maira, and Chandan Reddy (collectively “Individ ual Defendants”) for breach of fiduciary duty, ultra vires acts, and waste. See Am. & Verified Compl. for Derivative and Direct Claims (“Compl.”) at 1, ECF N o. 19. Plaintiffs Bronner, Michae l Rockland, Michael Barton, and Charles Kupfer (collectively “ Individual Plaintiffs”) bring this action directly against the ASA for breach of contract and v iolation of the D.C. Nonprofit Corporation Act, and against all Defendants for ultra vires acts and waste. Compl. at 1–2. Individual Plaintiffs are or were members of the ASA during the time period at issue. See Compl. ¶¶ 11–14. Individual Defendants were involved with the ASA in different capacities d uring the relevant time period. See Compl. ¶¶ 16–21. Individual Plaint iffs are citizens of Pennsyl vania and New Jersey. Compl. ¶¶ 11–14. Individual Defendan ts are citizens of California, New York, and Washington. Compl. ¶¶ 16–21. The ASA is orga nized under the District of Co lumbia’s nonprofit laws and maintains its corporate hea dquarters there. Compl. ¶ 15.3 A. The American Studies Association The ASA is a nonprofit organization whose object is “the promot ion of the study of American culture through the enc ouragement of r esearch, teachin g, publication, the strengthening of relations among persons and institutions in th is country and abroad devoted to such studies, and the broade ning of knowledge among the general public about American culture in all its diversit y and complexity.” See Const. & Bylaws of the A m. Studies Ass’n (“ASA Const. & Bylaws”), Const., A rt. I § 2, Defs.’ Ex. 1, ECF No. 21 -3. 1 Founding documents of the ASA provide that the society was “organized exclusively for edu cation and academic purposes.” Compl. ¶ 24. The president of the ASA presides over the Nation al Council and has a duty to “fulfill the chartered obligati ons and purposes of the [ASA].” ASA Const. & Bylaws, Const., Art. IV § 2. The National Council is charged with “conduct[ing ] the business, set[ting] fiscal policy, . . . and oversee[ing] the gene ral interest s of the [AS A].” ASA Const. & Bylaws Const. Art. V § 2. There are 23 voting mem bers of the National Counci l. Compl. ¶ 74; ASA Const. & Bylaws, Const., Art. V § 1. Under the ASA’s bylaws, “[n]o subs tantial part of the activities of the [ASA] shall be the carry ing on of propaganda, or otherwise attempting, to influence legislation, and the corporation s hall nor participate in, or i ntervene in . . . any political campaign on behalf of any candidate for public office.” Compl. ¶ 25. A ccording to the complaint, the ASA has conformed to these rules for decades and has establishe d a “uniform practice” that prevents the ASA from advocating for particular positions on U. S. government policy. Compl.

1 Because Plaintiffs specificall y reference the ASA Constitutionand Bylaws in their complaint, see, e.g. , Compl. ¶¶ 22, 32, the Court consid ers them in the context of this motion to dismiss without converting the m otion to one for summary judgme nt. See Banneker Ventures, LLC v. Graham , 798 F.3d 1119, 1133 (D.C. Cir. 2015) (ci ting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1327 (4th ed. 2014)).4 ¶ 25. Based “solely on the condi tion and understanding that th is practice would be followed,” Individual Plaintiffs donated tim e and money to the ASA. Compl . ¶ 26. The ASA bylaws provide that “[t] he Executive Committee [may] sp eak for the [ASA] on public issues [that] directly a ffect” the scholarly work of the ASA’s members. See ASA Const. & Bylaws, Bylaws, Art. XI § 1. These bylaws also provide that if “an issue arise[s] which, in the opinion of the Executive Committee or Council, seems to require public action, sp eech[,] or demonstration by the association at a particular annual meeting , . . . [t]he Council shall convene an emergency meeting of the membership on the first full day of the annual meeting[] to recommend a course of action [a nd] conduct a public discussion of the issue.” See ASA Const. & Bylaws, Bylaws, Art. XI § 3. The votes of two-thirds of the members in attendance at the emergency meeting are required for such a proposition to pass. See ASA Const. & Bylaws, Bylaws, Art. XI § 3. In 2013, the ASA elected DefendantMarez to be its president. Compl. ¶ 28. Mr. Marez ran on a platform of campus openness and “making knowledge less privatized and more equally distributed.” Compl. ¶ 28. He di d not mention Israel or the c oncept of an academic boycott during his campaign. See Compl. ¶ 28. According to the complaint, after he was elected, Mr. Marez made Israel the “central focus” of the ASA under his lead ership, and generally began turning the ASA into a “soci al justice” organization. Compl. ¶ 29. B. ASA’s Boycott Resolution At the ASA’s annual meeting i n November 2013, ASA leadership in troduced a resolution advocating for the boycott of Isr aeli academic institutions on the grounds that Israel restricted academic activity in formerly Jordanian-occupied territory that came under Israe li control after the Six Day War in 1967. See Compl. ¶ 41. The boycott resolutio n’s preambulatory clauses5 stated that the ASA is devoted t o “the struggle against all for ms of racism,” that the United States helps enable Israel to illegall y occupy Palestine, that there i s “no effective or substantive academic freedom for Palestinian s tudents and scholars under co nditions of Israeli occupation,” and that the ASA is dedicated to the rights of students and sch olars in Israeli in stitutions. Compl. ¶ 31. The operative clause of the resolution read as follows: It is resolved that the American Studies Association (ASA) endo rses and will honor the call of the Palestinia n civil society for a boycott o f Israeli academic institutions. It is also resolv ed that the ASA supports the pr otected rights of students and scholars everywhere to engage in research and publ ic speaking about Israel–Palestine and in support of the boycott, divestment, and sanctions (BDS) movement. Compl. ¶ 31. During the presentati ons in support of the resolu tion, the proponents allegedly did not present any data or research, d id not address how the affec ted institutions were founded, and did not specifically address “any . . . aspect of the actual st ate of academic freedom in the [t]erritories at any time.” Compl. ¶ 45. Instead, the speaker s’ “principal focus” was on an alleged apartheid state in the territories at issue, and the ne ed for the ASA to support the ending of “the so-called settler-coloni alist Zionist project” and Amer ica’s support for these policies. Compl. ¶ 48. Plaintiffs allege that no speakers in opposition to the resolution were invited to speak during the course of th e discussion, Compl. ¶ 47, and tha t Defendants “actively prevented an informed and methodical discus sion of the Boyc ott resolution ” in part by actively preventing opponents of the measure from being heard. Compl. ¶ 46. Individual Defendants were invo lved with the boyc ott resolutio n in varying degrees. Defendants Marez and Gordon co- hosted the discussion of the res olution. Compl. ¶ 16–17. Defendant Tadiar is alleged t o have helped plan the 2013 conven tion. Compl. ¶ 18. Defendants Maira, Duggan, and Reddy are alle ged to have been members of th e 2013 National Council and Executive Committee. Compl. ¶¶ 19–21. Plaintiffs allege that Individual Defendants each6 engaged in actions that were i ntended to, and did in fact, alte r the nature and purpose of the ASA. Compl. ¶ 30. Individual Defe ndants are alleged to have j ointly led the campaign for the ASA to adopt the boycott resolution. Compl. ¶ 2. Plaintiffs f urther allege that a majority of the current National Council members are supporters of the boycott resolution, but do not specifically plead facts showing that a majority actually parti cipated in the adoption of the resolution. Compl. ¶ 74. According to the Amended Complai nt, the ASA National Committee allowed ASA members to vote at any time during a ten-day period in December , the month following the 2013 convention. Compl. ¶ 33. Plaintiffs allege that, although aro und 5,000 people were members of the ASA at the time of the conference, Compl. ¶ 33, only 1,252 voted on the proposal, with 828 voting in favor of the resolution. Compl. ¶ 33. So, according to Plaintiffs, of the members who voted on the resolution, just unde r two-thirds voted in favor. Compl. ¶ 33. Plaintiffs also suggest that De fendants manipulated the vote. According to the complaint, members of the ASA who supported the resolution encouraged thei r students to join the ASA because they knew the students would vote in favor of the resol ution. Compl. ¶ 40. Around the same time, at least one Individua l Plaintiff attempted to vote but was told by ASA leadership that he could not vote on the resolution “ostensibly because he rene wed [his ASA membership] too late to vote.” Compl. ¶ 35. Plaintiffs allege that at least o ne other person who renewed his membership just before the vote was allowed to vote despite the individual plaintiff being barred from doing so under similar circumstances. Compl. ¶ 38. At th e end of voting, the ASA asserted that the reso lution passed. Compl. ¶ 33. Plaintiffs allege that since the boycott, several members of the ASA have resigned in protest of the boycott, financia lly depriving the ASA of member ship dues for years to come.7 Compl. ¶ 60. Moreover, Plaintiffs allege that the ASA has expe rienced a significant decline in reputation because of the boycott. The ASA is alleged to have suffered financial harm as a result of the boycott because of an all eged decrease in donations and an increase in public-relations spending required by the need to de al with the public backlash resulting from the boycott. Compl. ¶ 61. Although Plaintiffs do notallege any specific am ounts of damages in their complaint, they do, in their “Juri sdiction and Venue” section, assert that “the amount in controversy exceeds $75,000.” Compl. ¶ 9. The ASA, through its Executive Di rector, has countered that the ASA’s membership dues actually increased in the year following the boycott and have n ot significantly changed since then. See Decl. of John Stephens (“Stephens Decl.”) ¶¶ 5–8, ECF No. 21-2. The ASA also claims that it received an incr ease in grants and contributions following the boycott. This increase is alleged to have amounted to almost $40,000 in the f irst year, with a total of $49,000 specifically designated by donors for support of the boycott re solution. Stephens Decl. ¶ 9. However, the ASA acknowledges that it spent $20,000 of the fund s received in support of the boycott resolution on a media strategist, and spent over $15,00 0 on boycott-related expenses during annual meetings. Stephe ns Decl. ¶¶ 10–14. All said, ac cording to the Executive Director of the ASA, “there has been no fin ancial loss on ASA’s part as a result of the Resolution[, and] [i]f anything, there has been anet gain of at least $11,770[]. ” Stephens Decl. ¶ 16. Prior to filing this suit, some Individual Plaintiffs allege t hat they attempted to get the ASA to rescind the resolution and reorient its focus away from Israel. Compl. ¶ 8. According to the complaint, two Individual Plaintiffs, one of whom was an of ficer and member of the ASA governing council, “repeatedly att empted to have the Defendant ASA usurpers abide by the rules and procedures set forth in [th e] ASA’s [c]onstitution.” Compl . ¶ 8.8 But the complaint does not further specify what actions Plainti ffs took to resolve these issues short of filing this su it. According to the Complaint, “Plaintiff Bronner has issued a written Demand to the Council that i t investigate these claims and that it cause the ASA to prosecute such claims.” Compl. ¶ 75. Although the complaint d oes not indicate when this demand was made, Defendants atta ch the demand letter as an exhi bit to their motion to dismiss. Defs.’ Mot. Dismiss Ex. 2, ECF N o. 21-4. It is dated April 18, 2016, two days before Plaintiffs filed their complaint in this case, and a pparently attached a c opy of the original complaint. Defs.’ Mot. Dismiss Ex. 2, E CF No. 21-4. Plaintiffs do not con test the authenticity of the demand document. Pls.’ Mem. Opp’ n Defs.’ Renewed Partial Mot. Dismiss (“Pls.’ Opp’n”) at 19–25, ECF No. 23. Plaintiffs allege that, despite t heir pre-suit efforts to resol ve these issues and their written demand, Defendants have allegedl y “made clear that they will no t voluntarily redress Plaintiffs’ concerns.” Compl. ¶ 8. Plain tiffs support this contention by citing the ASA’s expenditures on public relations, continued effort s to turn the ASA into a “soc ial justice” organization, and their publicly-stated positions in fa vor of the boycott and efforts t o defend the boycott i n publications. Pls.’ Opp’n at 22.

III. LEGAL STANDARDS A. 12(b)(1) Plaintiffs have the burden of show ing subject-matte r jurisdicti on, and their allegations are not presumed to be truthful. Carmona v. Snow , 2007 WL 915220, at *2 (D.D.C. Mar. 26, 2007) (quoting Mortensen v. First Fed. Sav. & Loan Ass’n , 549 F.2d 884, 891 n.16 (3d Cir. 1977)). Indeed, the Court must give the p laintiff’s allegations “closer scrutiny when resolving a Rule 12(b)(1) motion than would be requi red for a Rule 12(b)(6) moti on for failure to state a claim.”9 Ludvigson v. United States , 525 F. Supp. 2d 55, 56–57 (D.D.C. 2007). In doing so, the Co urt may consider evidence outside of the pleadings. Herbert v. Nat’l Acad. of Scis. , 974 F.2d 192, 197 (D.C. Cir. 1992); Al-Owhali v. Ashcroft , 279 F. Supp. 2d 13, 21 (D.D.C. 2003). B. 12(b)(2) The plaintiff bears the burde n of establishing per sonal jurisdi ction over each defendant. Crane v. N.Y. Zoological Soc’y , 894 F.2d 454, 456 (D.C. Cir. 1990). A nd, although the court must resolve any factual discrepa ncies in favor of the plaintif f, Crane , 894 F.2d at 456, “[b]are allegations and conclusory statements are insufficient,” Johns v. Newsmax Media, Inc. , 887 F. Supp. 2d 90, 95 (D.D.C. 2012). See also Second Amendment Found. v. U.S. Conference of Mayors , 274 F.3d 521, 524 (D.C. Cir. 2001). A court may consider evi dence outside of the pleadings to resolve questi ons of personal jurisdiction. See Mwani v. bin Laden , 417 F.3d 1, 7 (D.C. Cir. 2005). C. 12(b)(6) To survive a motion to dismiss for failure to state a claim und er Federal Rule of Civil Procedure 12(b)(6), a complaint m ust contain sufficient factual allegations that, if accepted as true, would state a plausi ble claim to relief. Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). “Threadbare recitals of the eleme nts of a cause of action, supp orted by mere conclusory statements, do not suffice.” Id. Instead, plaintiffs must “nudge [] their claims across the lin e from conceivable to plausible.” See Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). “In evaluating a Rule 12(b)(6) moti on to dismiss, a court may consi der the facts alleged in the complaint, documents attached as exhibits or incorporated by re ference in the complaint, or documents upon which the plaintiff’s complaint necessarily reli es even if the document is10 produced not by [the parties].” Busby v. Capital One, N.A. , 932 F. Supp. 2d 114, 133–34 (D.D.C. 2013) (alteration in orig inal) (internal citations and quotation marks omitted).

IV. ANALYSIS Defendants move to dismiss on sev eral grounds. First, they con tend that the Court lacks subject-matter jurisdiction because Plaintiffs do not meet the amount-in-controversy requirement to maintain this diversity suit . Second, they argue that the C ourt lacks personal jurisdiction over Individual Defendants because their only alleged connection with the District of Columbia was the fortuitous location of the ASA’s annual meeting. Third, De fendants argue that a ruling in favor of Plaintiffs—and thus again st the boycott resolution—wou ld constitute state action infringing on their Fir st Amendment rights . As their fourth gr ounds for dismissal, Defendants argue that Plaintiffs failed to m ake an adequate pre-suit deman d on the ASA because the demand was made only two days prior to the commencement of this lawsui t, and that the demand would not have been futile. Fifth, Defe ndants contend that, because the ASA had the authority to pass the boycott resolution, it did not act ultra vires . Sixth, Defendants argue that they did not breach any contractual obligations owe d to the ASA membership—in other words, that they did not violate the bylaws. Finally, Def endants argue that the D.C. No nprofit Corporation Act does not allow Plaintiffs’ claims to pro ceed against Individual Defendan ts. For the reasons set forth below , the Court grants Defendants’ M otion to Dismiss in part and denies it in part. The Court concludes that it has both su bject-matter and personal jurisdiction. It has subject-ma tter jurisdiction because Plain tiffs have shown, beyond the low standard of legal possibility, tha t they could recover more than $75,000 if they prevailed. The Court has personal jurisdicti on over the Individual Defendants because they voluntarily served as directors of a nonprofit register ed in D.C. and attended an ann ual meeting in D.C. and, thus, have11 purposefully availed themselves of the laws and protections of the District of Columbia. Moreover, because a judgment against Defendants would be based on generally-applicable laws with only incidental effects on expression, it would not violat e the First Amendment. But Plaintiffs’ claims begin to falte r when the Court moves to thei r substantive claims. Because Plaintiffs bring a derivative cla im, they were required to make a demand of the ASA before bringing suit. But Plaintiffs fa iled to wait the required time after making their demand—which would not necessarily have been f utile—to maintain their deriva tive claims. Plaintiffs also fail to show that Defendants acted contrary to any express prohibitions in the bylaws, and thus do not

state an ultra vires claim. Plaintiffs do, however, state a cognizable claim for b reach of contract and Defendants do not move to dismi ss their claim for waste. A ccordingly, the Court will dismiss Counts I and II in the ir entirety, and Count III insofar as it seeks derivative relief on behalf of the ASA. A. The Court Has Subject-Matter Jurisdiction, Because It is No t

Legally Impossible for Plaint iffs to Recover More than $75,000 The court first addresses Defenda nts’ argument that Plaintiffs do not exceed the $75,000 amount-in-controversy requirement to maintain this diversity su it. See Defs.’ Mem. Supp. Renewed Mot. Dismiss (“Defs.’ Mot. Dismiss”) at 8–11, ECF No. 2 1. Defendants contend that Plaintiffs do not allege any speci fic losses to the ASA as a re sult of the boycott, and thus have not adequately shown that the C ourt possesses subject-matter jurisdiction. The Court concludes that Plaintiffs have shown, beyond t he low standard of legal po ssibility, that they could recover more than $75,000 if they were to prevail. “Federal courts are courts of limited jurisdiction. They posses s only that power authorized by Constitution and statute . . . .” Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377 (1994). Congress has th e “prerogative to restric t the subject-matte r jurisdiction of12 federal district courts” base d on the types of claims brought b y particular plaintiffs. Arbaugh v. Y & H Corp. , 546 U.S. 500, 515 n.11 (2006). Congress has limited the Court’s Article III jurisdiction over dive rsity cases to matters where the amount i n controversy exceeds $75,000.
See 28 U.S.C. § 1332(a). The parties he re do not dispute diversityof citizenship. In general, “the sum claimed by the plaintiff controls if the c laim is apparently made in good faith.” St. Paul Mercury Indem. Co. v. Red Cab Co. , 303 U.S. 283, 288 (1938) (footnote omitted). For a court to reject the amount claimed by the plai ntiff, “[i]t must appear to a legal certainty that the claim is reall y for less than the jurisdicti onal amount.” Id. at 289. This means that a court should find jurisdict ion at this motion-to-dismiss stage of the proceedings even if it has serious doubts as to the base s for establishing the amount in controversy. See Compton v. Alpha Kappa Alpha Sorority, Inc. , 64 F. Supp. 3d 1, 14 (D.D.C. 2014), aff’d , 639 F. App’x 3 (D.C. Cir. 2016). Even a “cursory” allegation of the amount incontroversy, if it exceeds the jurisdictional requir ement, is sufficient to survive a motion t o dismiss. 14AA C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3702, p. 314 (4th ed. 2011); see also Rosenboro v. Kim, 994 F.2d 13, 17 (D.C. Cir.1993) (“[T]he Supreme Court’s yardst ick demands that courts be very confident th at a party cannot recover the j urisdictional amount before dismissing the case for wa nt of jurisdiction.”); Martin v. Gibson, 723 F.2d 989, 991, 993 (D.C. Cir. 1983) (characterizing the St. Paul Mercury test as “exacting” and “st ringent” in favor of the plaintiff). Plaintiffs’ claims plainly meet the low standard for establishi ng a sufficient amount in controversy. The complaint a sserts that over $75,000 is in con troversy in the cas e, albeit in a cursory fashion. See Compl. ¶ 9. It is far from legallycertain that Plaintiffs cou ld not recover over $75,000. The complaint seeks monetary, injunctive, and de clarative relief for waste, breach13 of contract, breach of fiduciary duties, ultra vires acts, and violation of the D.C. Nonprofit Corporation Act. See Compl. at 25–31. It specifically a lleges that the ASA will los e membership dues from many former members for years to come. Co mpl. ¶ 60. The complaint also specifically states that the boycott resolution has “resul ted in the improper expenditure of ASA funds related to membershi p dealings, public relations, leg al matters, and . . . employee time and effort,” and that Indivi dual Defendants are “conscious ly attempting to appropriate the assets and reputation of the A SA to achieve purposes . . . at o dds with[] [the] purposes and mission . . . [of] the ASA.” Compl. ¶¶ 80, 84. Defendants’ evidence allegedly s howing that the ASA has profite d because of the boycott resolution is irrelevant at this stage. Even if the ASA has ex perienced a short-term increase in revenues, it is possible that the long-term losses could surpas s the short-term financial benefits of the boycott resolution. At this stage of the litigation, befor e any discovery has been taken and Defendants’ rosy financial asse rtions have been tested, Plainti ffs’ allegations are sufficient to overcome the low bar of “legal impossibility.” The Court accor dingly finds that the amount-incontroversy requirement is satisfied. B. The Court Has Personal Jurisd iction Over Individual Defenda nts Because They Voluntarily Assented to the Laws and Protections of the Distric t of Columbia Defendants also move to dismiss th e claims against Individual D efendants for lack of personal jurisdiction. See Defs.’ Mot. Dismiss at 11–14. Defe ndants argue that the only a lleged connection between Individual De fendants and the District of Co lumbia is that they attended the ASA annual meeting in the Distri ct of Columbia, where the ASA d ebated and voted on the boycott resolution. The Court conc ludes that Individual Defend ants have sufficient contacts with this jurisdiction related to the claims for this Court to asser t personal jurisdiction against them.14 “A personal jurisdicti on analysis requires that a court determi ne whether jurisdiction over a party is proper under the appli cable local long-arm statute and whether it accords with the demands of due process.” United States v. Ferrara , 54 F.3d 825, 828 (D.C. Cir. 1995); accord GTE New Media Servs. Inc. v. BellSouth Corp. , 199 F.3d 1343, 1347 (D.C. Cir. 2000). There are two distinct types of pe rsonal jurisdiction: g eneral jurisdicti on, whereby a court can entertain claims against the defendant reg ardless of the claim’s relation ship to the forum, and specific jurisdiction, where jurisdicti on is based on acts by the defend ant that touch and concern the forum. See D’Onofrio v. SFX Sports Grp., Inc. , 534 F. Supp. 2d 86, 90 (D.D.C. 2008). General jurisdiction “sets a high bar,” requiring that the defendant have “continuous and systematic” contacts with the forum state. Id. Specific jurisdiction, in compari son, requires only sufficient “‘minimum contacts’ with [the forum],” but requires that the pl aintiffs’ claims arise from those

contacts. See Helicopteros Nacionales de Colombia, S.A. v. Hall , 466 U.S. 408, 414 (1984) (quoting Int’l Shoe Co. v. Washington , 326 U.S. 310, 316 (1945)). For cla ims brought pursuant to a court’s specific jurisdicti on, the relationship between th e defendant, the forum, and the litigation “is the essential f oundation of [personal] jurisdict ion.” Id. In a diversity-jurisdiction case, “the federal district c ourt’s personal jurisdiction over the defendant is coextensive with that of a District of C olumbia court.” Helmer v. Doletskaya , 393 F.3d 201, 205 (D.C. Cir. 2004). Accordingly, an assertion of pers onal jurisdiction here must co mply with due process and District of Columbia law. Courts give District of Columbia law concerning specific jurisdiction an expansive reading, making D.C.’ s long-arm statute coextensiv e with the Due Process Clause with respect to defendants trans acting business in the District of Columbia. See id. ; see also D.C. Code § 13-423.15 In determining whether specifi c jurisdiction over an individual defendant exists, the court looks to whether “there [is] s ome act by which the defendant purposefully avails itself to the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Burger King Corp. v. Rudzewicz , 471 U.S. 462, 475 (1985) (quoting Hanson v. Denckla , 357 U.S. 235, 253 (1958)); accord Heller v. Nicholas Applegate Capital Mgmt., LLC , 498 F. Supp. 2d 100, 109 (D.D.C. 2007). The “purposeful avai lment” requirement exists to ensure that a court doe s not exercise personal jurisd iction over parties who have only “random, fortuitous, or attenuated c ontacts” with the forum sta te. Heller , 498 F. Supp. 2d at 109 (quoting Burger King Corp. , 471 U.S. at 475). A single act by the defendant that creates a “substantial connection” to the f orum is sufficient for a court to assert specific jurisdiction. Id. (quoting Burger King Corp. , 471 U.S. at 475 n.18). Because the District of Columbia has not adopted an “absolute f iduciary doctrine”—that is, a rule that an employee’s actions taken on behalf of a corp oration cannot give rise to specific jurisdiction over that employee —under certain circumstances, in dividual defendants can fairly be haled into court based on ac tions they took on behalf of the ir business organization. See Family Fed’n for World Peace v. Hyun Jin Moon , 129 A.3d 234, 243 (D.C. 2015). There is no “mechanical test” for determini ng whether a court has personal jurisdiction over an individual defendant who acted on behalf of a n organization; courts “weighthe facts of each case.” Id. (citing Holder v. Haarmann & Reimer Corp. , 779 A.2d 264, 270–71 (D.C. 2001)).
In Family Federation for World Peace , the individual defendants , who were directors of a nonprofit corporation, allegedly e nriched themselves without proper authority. Id. at 243. The nonprofit was organized under Di strict of Columbia law. Id. at 238. However, none of the individual defendants were D.C. residents. Id. at 242. Nonetheless, because the directors16 voluntarily served as the govern ing body that was “in total con trol of the [D.C.] corporation,” and participated in at least one wrong that went “to the very e ssence of th[e] corporation’s existence” in the District of C olumbia, the D.C. Court of Appea ls “ha[d] little difficulty in concluding [that the] directors clearly could anticipate being hauled into [a District of Columbia] court to account for their activities.” Id. at 243–44 (third alteration in original). Similarly, in Daley v. Alpha Kappa Alpha Sorority, Inc. , members of a sorority brought claims of breach of fiduciary duty, breach of contract, fraud, unjust enrichment, corporate waste, and ultra vires acts against several sorority officials alleging that they mis managed the sorority’s finances. 26 A.3d 723, 726 (D.C. 2011) . The plaintiffs conten ded that the di rectors made several expenditures without authorization from the sorority’s legislative body, which the sorority’s constitution and bylaw s vested with the power to runthe sorority. See id. at 726–27. The plaintiffs specifically alle ged that the directors failed t o put the expenditures on the legislative agenda at a biannua l meeting in the District of Col umbia, and “suppress[ed] any discussion of the[] expenditures.” See id. at 728 (also reasoning that the case “focus[es] in large part on wrongdoing with respect t o the [biannual meeting]”). N one of the individual defendants were D.C. citizens and the sororityitself was a foreign corpor ation. Id. at 727. The only apparent connection between the i ndividual defendants and this jurisdiction was that they participated in the legislative sessions—which allegedly involv ed the suppression of dissenting opinions and resulted in unauthor ized spending—in the District of Columbia. The D.C. Court of Appeals found that “in th[o]se cir cumstances, the participants could reasonably anticipate being required to defend their actions in the District without offend ing traditional notions of fair play and substantial justi ce,” rejecting the no tion that such contac ts were “random [or] fortuitous.” Id. at 727–28. That court added that once the court had personal j urisdiction over the parties, the17 plaintiffs’ claims need not be l imited to the scope of the acti vity that occurred in the District of Columbia. Id. (citing D.C. Code § 13-423). This case falls squarelywithin the holdings in Family Federation for World Peace and Daley and leads the Court to the conc lusion that, taken together, th e facts weigh in favor of finding personal jurisdiction. Ind ividual Defendants all volun tarily served as officers of the ASA which is a District of Columbi a nonprofit corporation located i n the District of Columbia and organized under District of Col umbia law. Compl. ¶¶ 15–21. Th eir respective positions charged them with leading the ASA. See ASA Const. & Bylaws, Const., A rt. IV (outlining the governing structure of the ASA); Compl . ¶ 28 (noting that Defendant Marez was the president of the ASA). Individual Defendants also vol untarily participated in the 2013 annual meeting in the District of Columbia. Compl. ¶ 30. Each Indivi dual Defendant allegedly to ok part in the purportedly injurious activities of the ASA i n the District of Columbia: De fendants Marez and Gordon cohosted the discussion of the resol ution where diss enting ideas were allegedly suppressed, as in Daley ; Defendant Tadiar helped orga nize the programming of the 2013 convention, which included the allegedly ultra vires act of introducing, debating, and voting on the boycott resolution; Defendants Maira , Duggan, and Reddy were members of the National Council and Executive Committee at the time. See Compl. ¶¶ 16–21. Moreover, Individual Defendants together led the effort to adopt the allegedly inappropriate bo ycott resolution, and allegedly did so with the intent to alter the nature and purpose of the ASA, a District of Columbia entity, as in Family Federation for World Peace . Compl. ¶¶ 2, 30. As the D.C. Court of Appeals concluded in Daley , Individual Defendants’ attendance at the meeting in D.C. where they allegedly suppressed ideas and m ismanaged the ASA was not “fortuitous.” See 26 A.3d at 728. Nor was it fortuit ous that Individual Defendan ts assumed18 leadership positions in the D.C. nonprofit organization. See Family Federati on for World Peace , 129 A.3d at 243. Taken together, give n that the allegedly inju rious acts occurred at a meeting in the District of Columbia and Indi vidual Defendants voluntarily assumed leadership roles in the District of Columbia organizati on they allegedly injured, the C ourt finds that each Individual Defendant could reasonably antic ipate being haled into a Distri ct of Columbia court to answer for alleged wrongdoing in connectio n with their roles in the bo ycott resolution. And, because the Court finds specific jurisdiction over each defendant, the Court need not limit its analysis of Plaintiffs’ claims to activity that took place within the Distr ict of Columbia. See Daley , 26 A.3d at 728 (citing D.C. Code § 13-423).

C. Ruling Against Defendants would not Violate the First Amend ment, Because the Laws at Issue are Generally Applicable and Defendants Voluntarily Ag reed to Them With the jurisdictional issues resolved, the Court moves to Def endants’ claim that judicial enforcement of the law s under which Plaintiffs seek re dress would violate Defendants’ First Amendment rights. 2 See Defs.’ Mot. Dismiss at 19–21. In e ssence, Defendants argue tha t they have a First Amendment r ight to engage in a boycott, and that enforcing District of Columbia law to suppress that right would constitute unconstitutional action by the Court. See Defs.’ Mot Dismiss 19–20. Defendants cite to New York Times Co. v. Sullivan , a case in which the Supreme Court held that “[ w]hat a State may not constitutio nally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel.” 376 U.S. 254, 277 (1964).

2 For the first time in their rep ly, Defendants argue that this case falls within the purview of the District of Columbia’s Anti-SLAPP statute, yet puzzlingl y concede that “the statute does not apply in diversity cases.” See Defs.’ Reply Br. at 3 & n.1, ECF No. 25. Defendants are correct that the D.C. Circuit has held that the D.C. Anti-SLAPP Act does not apply under Erie principles, see Abbas v. Foreign Policy Grp., LLC , 783 F.3d 1328, 1337 (D.C. Cir. 2015), so it is unclear how the argument applie s here. At any rate, because De fendants first raise this argument in their reply, the Court will not consider it. See Walker v. Pharm. Research & Mfrs. of Am. , 461 F. Supp. 2d 52, 58 n.9 (D.D.C. 2006).19 Although it is true that the courts cannot serve as conduits fo r certain private actions that deprive others of constituti onally-protected rights, see, e.g. , Shelley v. Kraemer , 334 U.S. 1, 13– 14, 18–20 (1948), there is a “well-es tablished line of decision s holding that gene rally applicable laws do not offend the First Amendment simply because their enf orcement . . . has incidental effects on” expression, see Cohen v. Cowles Media Co. , 501 U.S. 663, 669 (1991). To trigger First Amendment protection, the infringement upon speech must h ave arisen from state action of some kind. See Blum v. Yaretsky , 457 U.S. 991, 1002–03 (1982). “Mere approval of or acquiescence in the initiatives of a private party” does not co nstitute state action in the First Amendment context. See id. at 1004–05; see also Edwards v. Habib , 397 F.2d 687, 691 (D.C. Cir. 1968) (“[I]f, for constitutional purposes, every private r ight were transformed into governmental action by the mere f act of court enforcement of it , the distinction between private and governmental action would be ob literated.”). Thus, when a court merely enforces obligations explicitly assume d by the parties, there is no stat e action. See Cohen , 501 U.S. at 669–70. To hold otherwise would mean that courts could never e nforce non-disclosure agreements. See United Egg Producers v. Standard Brands, Inc. , 44 F.3d 940, 943 (11th Cir. 1995) (holding that court enforcemen t of a settlement agreementis not state action for constitutional purposes). Formal constitutions and bylaws of o rganizations are construed by courts as contracts between the organization and its members. See Meshel v. Ohev Sholom Talmud Torah , 869 A.2d 343, 361 (D.C. 2005). This case does not present a First Amendment issue because the Court’s passive enforcement of the obligations expressly assumed by the parties does not constitute state action. Plaintiffs take issue with ac tions by Defendants that were alle gedly inconsistent with the ASA’s organizational purpose, constitution, and bylaws. See Compl. ¶ 1 (“An academic boycott of a20 foreign country is simply outside of the ASA’s authority to act .”). Thus, Plaintiffs ask the Court to enforce the contract that th e Plaintiffs and Defendants free ly entered into when they voluntarily subjected themselve s to the constitution and bylaws of the ASA. See Meshel , 869 A.2d at 361. Defendants, Plainti ffs argue, voluntarily assumed certain obligations toward the ASA when they took on leadership p ositions within the organizat ion, and that the y violated those obligations through their roles i n passage of the boycott resol ution. See Compl. ¶¶ 79–80, 83– 84, 88–89, 92–93. Plaintiffs’ claims all arise unde r generally-applicable laws. See Armenian Genocide Museum & Mem’l, Inc. v. Cafesjian Family Found., Inc. , 607 F. Supp. 2d 185, 190–91 (D.D.C. 2009) (setting forth the element s of breach of fiduciary duty); Adamski v. McHugh , No. 14-cv0094 (KBJ), 2015 WL 4624007, at *6 ( D.D.C. July 31, 2015) (desc ribing the law governing ultra vires claims); Daley , 26 A.3d at 730 (describing the doctrine of waste); Compton v. Alpha Kappa Alpha Sorority, Inc. , 64 F. Supp. 3d 1, 16 (D.D.C. 2014) (sett ing forth the element s of breach of contract), aff’d , 639 F. App’x 3 (D.C. Cir. 2016) ; D.C. Code § 29-405.24 (outli ning the procedures all nonprofit organizations must follow). They also only seek to enforce rights created at the initiation of private partie s; Individual Defend ants voluntarily assumed roles where their right to expression w ould be limited by bylaws, the commo n law, and statute. Because Defendants voluntarily assented to these laws and the ASA’s con stitution and bylaws, the Court’s interference with speec h is passive and in cidental to e nforcement of a contract. Thus, enforcement of Plaintiffs’ righ ts derived from that contract wo uld not constitute state action as contemplated under Sullivan and Shelley , meaning there would be no First Amendment issue with a judgment for Pla intiffs in this case.21 D. Failure to State a Claim Defendants move to dismiss severa l of Plaintiffs’ claims under Federal Rule of Procedure 12(b)(6). Specifically, Defendant s argue that all of Plaintiff s’ derivative claims fail because they did not make an adequate pre-laws uit demand, that Plaintiffs di d not act ultra vires , that they did not breach any contract, and that Individual Defendants cannot be sued for acting outside the scope of their corporate positions. See Defs.’ Mot. Dismiss at 14–19, 21–29. Defendants do not specifically move to dismiss Plai ntiffs’ waste or D.C. Nonprofi t Act claims under Rule 12(b)(6). See generally Defs.’ Mot. Dismiss. For the reas ons set forth below, the Court will dismiss all of Plaintiffs’ derivative claims and Plaintiffs’ ultra vires claim, but allow the case to proceed to discovery on their other claims. 1. Plaintiffs Failed to Make an Adequate Pre-Suit Demand The Court first addresses Defe ndants’ contention that Plaintiff s’ derivative claims must be dismissed because Plaintiffs f ailed to make a proper pre-la wsuit demand, as required by the D.C. Nonprofit Corporation Act. See Defs.’ Mot. Dismiss at 14–19. Def endants’ contention has merit. A derivative action is a law suit brought by members of a corpor ation, on behalf of the corporation to remedy injur ies done to the corporation. 18 C.J .S. Corporations § 482. Derivative suits are often brought against mem bers of the corporation’s bo ard of directors, and allege that a member or members either disreg arded their duties or put their personal interest s ahead of the corporation’s. Id. The corporation itself is inc luded as a nominal defendant for reasons of issue preclusion. Knop v. Mackall , 640 F. Supp. 2d 58, 61 (D.D.C. 2009), rev’d in part on other grounds , 645 F.3d 381 (D.C. Cir. 2011). In many cases, before filing a derivative suit against a corporation to remedy injuries to the corporation, a member mus t attempt to have the22 corporation’s board of director s remedy the problem itself. See 7C Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 1831 (3d ed.). D.C. law requires a member of a nonprofit organization to make ademand on its directors ninetydays before initiating a lawsuit. See D.C. Code § 29-411.03(2). Demand re quirements arise from the c oncept of corporate selfgovernance. See Wright & Miller § 1831. Demand sta tutes are rooted in “the bas ic principle of corporate governance that the de cisions of a corporation—includ ing the decision to initiate litigation—should be made by the bo ard of directors or the majo rity of shareholders.” Kamen v. Kemper Fin. Servs., Inc. , 500 U.S. 90, 101 (1991) (quoting Daily Income Fund, Inc. v. Fox , 464 U.S. 523, 530 (1984)). In comparison, demand requirements do n ot exist in direct claims by shareholders against a corporat ion, because in th at situation the plaintiff alleges harm to himself as an individual, not the corporation. Defendants claim that Plaintiffs failed to make a proper demand because they did so only two days before filing the instant lawsuit, not having waited t he ninety days required by statute. See Defs.’ Mot. Dismiss at 14–19; Defs.’ Mot. Dismiss Ex. 2, ECF No . 21-4. Plaintiffs respond that their demand was sufficient because over ninety days have now passed since the demand was made, even if only two days passed before they filed this l awsuit. Pls.’ Opp’n at 19. In the alternative, Plaintiffs argue tha t even if their demand was def icient, the lack of demand should be excused because a demand would have been futile. See Pls.’ Opp’n at 19–25. The Court will first address the sufficiency of the demand made before analyzi ng the futility argument. a. Plaintiffs Failed to Wait Ninety Days after Making a Pre-Suit Demand At issue under the D.C. Code is wh ether a plaintiff may file a derivative lawsuit less than ninety days after f ormally demanding a nonprofit corp oration to take the plaintiff’s desired action, s o long as ninety days have passed between the demand and the23 court’s order on the motion t o dismiss. Plaintiffs do not disp ute that they filed the instant suit a mere two days after serving their formal demand. See Pls.’ Opp’n at 19. Despite Defendants’ argument that Federal Rule of Civil Procedure 23.1 “require[s] that a demand be made before suit,” see Defs.’ Mot. Dismiss at 14, the federal rule concerns only the form pleadings must take, see Fed. R. Civ. P. 23.1; see also
Kamen , 500 U.S. at 96. It does not impos e legally substantive requi rements any more than Rule 8 does with resp ect to ordinary complaints. See id. Because this is a diversity case applying D.C. law, Rule 23.1 i s animated by the District o f Columbia’s substantive law requiring a pre-suit de mand, D.C. Code § 29-411.03. The te xt of the D.C. law leads the Court to an easy answer to the Court’s inquiry—with certainexceptions, after submitting a demand, a party must wait ninety days before filin g suit. Under District of Columbia Code § 29-411.03, A person shall not commence a derivative proceeding until: (1) A demand in the form of a r ecord has been delivered to the nonprofit corporation to take suitable action; and (2) Ninety days have expired fro m the date the demand was effec tive unless: (A) The person has earlier bee n notified that the demand has be en rejected by the corporation; or (B) Irreparable injury to the corporation would result by waiti ng for the expiration of the 90-day period. 3 The Court’s interpre tation of this provis ion “begins with the s tatutory text, and ends there as well if the text is unambiguous.” BedRoc Ltd., LLC v. United States , 541 U.S. 176, 183 (2004). Abridged, the statute provide s that “[a] person shall not commence a derivative proceeding until . . . [a] demand . . . has been delivered to the nonprofit corporation. . . and . . . [n]inety days have

3 The D.C. nonprofit corporation de mand statute is identical to the demand statute for forprofit corporations. Compare D.C. Code § 29-411.03 with D.C. Code § 29-305.52.24 expired from the date the demand was effective” unless the exce ptions apply. 4 D.C. Code § 29- 411.03 (emphasis added). The statute defines “derivative proce eding” as “a civil action in the right of a domestic nonprofit corporation.” Id. § 29-411.01. Under both the D.C. and federal rules of civil procedure, “[a ] civil action is commenced by fil ing a complaint with the court.” See D.C. Super. Ct. R. Civ. P. 3; Fed. R. Civ. P. 3. Thus, D.C. no nprofit corporation law provides that a person is precluded from filing a civil derivative action until the demand has been delivered to the nonprofit cor poration and ninety days have act ually expired (unless a rejection is received earlier or irreparable harm will occur in the interim) . Thus, the act of filing the lawsuit before waiting ninety days is im proper under D.C. law, unless s ome exception to the demand requirement applies.
In Arkansas Teacher Retirement System ex rel. Progress Software Corp. v. Alsop , the District of Massachusetts reach ed the same result with a nearly identical statute. There, the plaintiff filed its original com plaint before making a formal d emand, but filed an amended

4 In a cursory fashion, Plaintiffs assert in their complaint that waiting the ninety-day period would have brought about irr eparable harm to the ASA, be cause “[e]ach day without redress is a day when the sc holarly goals for the ASA . . . are not pursued . . . a[t] the expense of the ASA itself and its scholar members.” Compl. ¶ 76. This ar gument can be rejected out of hand for three reasons. First, t his claim is conclusory and fa ils to meet the heightened pleading standards of Rule 23.1, as explai ned below. Plaintiff in no wa y articulates what harms flow from scholarly goals not being pursue d on a daily basis, other than the ambiguous “expense[s]” that it is costing the ASA and its members. Compl. ¶ 76. Second, assuming the plaintiffs had literal financial expenses in mind, “economic loss does not, in and of itself, constitute irreparable harm.” Mexichem Specialty Resins, Inc. v. EPA , 787 F.3d 544, 555 (D.C. Cir. 2015) (quoting Wis. Gas Co. v. FERC , 758 F.2d 669, 674 (D.C. Cir. 1985)). Third, with full knowle dge of the resolution that was a llegedly causing irreparable injury each a nd every day, Plaintiffs waited over two years to file a lawsu it. This significantly undermine s Plaintiffs’ claims that waiting an additional 88 days would have caused irreparable harm. See Hispanic Affairs Project v. Perez , 141 F. Supp. 3d 60, 68 (D.D.C. 2015) (noting that the “[t]he D. C. Circuit has found that a delay of even forty-four days before br inging action” was “inexcusabl e,” and “bolstered the conclusion that” irreparable harm did not exi st in the context of a motionfor a preliminary injunction (quoting Fund for Animals v. Frizzell , 530 F.2d 982, 987 (D.C. Cir. 1975))).25 complaint ninety after the de mand, and thus argued that the mot ion to dismiss for failure to make a demand was moot. 2007 WL 7069 609, at *5 (D. Mass. 2007). Th e relevant statute provided that “[n]o shareholder may commence a derivative proceeding unt il . . . a written demand has been made upon the corporation t o take suitable action[] and . . . 90 days have elapsed from the date the demand was made.” Id. at *7 (emphasis removed). That court concluded that “[t]he plain language requires a demand prior to commencing suit.” Id. at *8. As noted above, Federal Rule of Civil Procedure 23.1 outlines the pleading requirements for derivative actions br ought in federal court. See Weiner v. Winters , 50 F.R.D. 306, 309 (S.D.N.Y. 1970). As a rule of proc edure, it instructs parties how to demonstrate that they have complied with a substantive demand requirement. See Fed. R. Civ. P. 23.1. Rule 23.1 requires plaintiffs to submit a verified c omplaint stating, with specifi city, any effort by the plaintiff to comply with the substantive demand statute—in this case, D.C. n onprofit law—or the reasons for not making any such efforts, assuming that the substantive law allows plaintiffs to avoid making such a demand. Rule 23.1 requires plaintiffs to be substantial ly more thorough than does Rule 8. See Gaubert v. Fed. Home Loan Bank Bd. , 863 F.2d 59, 68 (D.C. Cir. 1988). Plaintiffs plainly did not make an adequate pre-suit demand. T hey delivered a formal demand letter, with their origin al complaint attached, to the A SA National Council on April 18, 2016. 5 Then, two days later, Plaintiffs filed a civil de rivative act ion in federal court. See Original Compl., at 31, ECF No. 1. Under the plain text of the D.C. demand statute, this was too

5 The Court considers this letter because Plaintiffs explicitly relied upon it in their complaint. See Compl. ¶ 75; Busby , 932 F. Supp. 2d at 133–34.26 early. Because Plaintiffs did not m ake an adequate pre-suit de mand, the Court next addresses whether plaintiff’s lack of demand can be excused as futile. 6
b. Demand was not Futile as a Matter of Law Plaintiffs argue that the demand requirement should be excused as futile because Defendants could not reasonably have been expected to fairly ju dge whether to bring this action themselves. Pls.’ Opp’n at 20–22. D efendants respond that Pla intiffs have not adequately pled futility. Reply Br. Supp. Mot. Dismiss at 8–15, ECF No. 25. B ecause Plaintiffs have not shown that a majority of the members on the National Council at the t ime of filing had bias against the corporation to the po int of being unable to independently evalu ate the merits of the suit, the Court concludes that demand would not have been futile. In determining whether pre-su it demand would have been futile, the court focuses on whether the complaint alleges enough particularized facts to cr eate a reasonable doubt as to whether a majority of the offi cers responsible for bringing suc h an action could have made an independent and disinteres ted response to the demand. See Behradrezaee v. Dashtara , 910 A.2d 349, 358 (D.C. 2006). Under Federal Rule of Civil Procedure 23 .1, “mere allegations or conclusory statements regardi ng directors’ dual allegiances, se lf-interest, or c ontrol by others is insufficient.” Gaubert , 863 F.2d at 68. Indeed, “[m]ere al legations of improper moti ves” are inadequate, and showing “mere participation or acquiescence by the directors” is not enough. Id. (quotation marks omitted).

6 The complaint also vaguely suggest s that some Individual Plain tiffs made efforts to stop the Israel boycott and force plai ntiffs to adhere to the ASA ru les. Compl. ¶ 8. However, those allegations are far from suffici ent to show that Plaintiffs “de livered” the demand to take “suitable action,” let alone that it did s o more than ninety days before filing this suit.27 Instead, the plaintiff must alleg e specific facts demonstrating an “unmistakable link” between the alleged wrongdoing and di rectors’ self-interest or other form of personal bias that could get in the way of correction. See In re Kauffman Mut. Fund Actions , 479 F.2d 257, 264 (1st Cir. 1973); Gaubert , 863 F.2d at 68. “The predominant fe deral view is that the bo ard of directors must have been activel y involved in th e alleged wrong doing for demand to be excused.” Gaubert , 863 F.2d at 65. Because “rare is the significant corporate a ct that has not in one way or another been ‘appr oved of,’” it is not enough for a party to simply show that a director supported a particular action that allegedly harmed th e corporation. See id. (quoting In re Kauffman Mut. Fund Actions , 479 F.2d at 265). Plaintiffs have not adequately pleaded fac ts showing that pre-suit demand woul d have been futile for four in dependently-suffici ent reasons. First, the conclusory allegati on that Individual Defendants 7 “have made clear that they will not voluntarily redress Plaintiffs’ concerns,” Compl. ¶ 8, is not only conclusory, see Gaubert , 863 F.2d at 68, but it is inapposite. It is not Defendants who must have been open to voluntary redress, but the members of the ASA’s National Counci l at the time the suit was filed. See Behradrezaee , 910 A.2d at 358. This is because it was the Council at the t ime of demand that was charged with determini ng whether the corporation would remedy the situation internally. See ASA Const. & Bylaws Const. Art. V § 2. Plaintiffs acknowledge in their complaint that only two Individua l Defendants were members of t he National Council when Defendants filed this suit. See Compl. ¶ 74.

7 The most natural reading of paragraph 8 of Plaintiffs’ complai nt suggests that only Individual Defendants have “ma de clear that they will not volun tarily redress Plaintiffs’ concerns. See Compl. ¶ 8. In the preceding sen tence, Plaintiffs refer to the ir attempts to get “the Defendant ASA usurpers” to abide by the ASA’s rules. See Compl. ¶ 8. Moreover, as noted above, the organizational defe ndant in a derivative action is n ominal only. Knop , 640 F. Supp. 2d at 61.28 Second, Plaintiffs’ argument woul d not be salient even if Defen dants were a majority of the National Council. Their argument confuses bias with support for the actions underlying the suit. Plaintiffs, in essence, ar gue that Defendants have shownthat they could not independently evaluate a demand because of their passion for the boycott reso lution. See Pls.’ Opp’n at 22. This is insufficient under Gaubert , which notes that one could rar ely find a major corporate action that has not been approve d by a majority of directors. 863 F.2d at 65. If shareholders could skirt the demand requireme nt by showing that directors be lieved in their own actions, shareholders would almost never have to make a demand at all. As Plaintiffs themselves assert in their complaint, this lawsu it is not about the substance of the boycott resolution, but rather “turns on straightforward legal questions: whether . . . an aca demic boycott of Israel is an act that falls under the ASA’s ‘exempt purpose.’” Compl. ¶ 2. Plaintif fs do not show that any single Individual Defendant would be una ble to independently analyze w hether the actions of the ASA were in line with that exempt purpose. Nor do they show that a ll of the Individual Defendants were more than “mere participan ts” in the boycott resolution. Third, and perhaps most obviousl y, Plaintiffs have not shown th at a majority of the 23- member National Council—which is expressly charged with the gov ernance of the ASA and changes every year, see ASA Const. & Bylaws, Const., A rt. V §§ 1, 2—as composed at the time of filing, even contributed to the actions at issue. Without that showing, Plaintiffs have not pleaded facts demonstrating that a majority of the ASA board me mbers participated in or acquiesced to the boycott re solution, a standard below the requirement articulated in Gaubert , which requires active involvement in the alleged wrongdoing. See 863 F.2d at 68. Finally, even assuming that bei ng in favor of a past Council’s actions could demonstrate bias, Plaintiffs have not shown a nything more than “mere allega tions of improper motives” by29 citing to piecemeal statements of support by current councilmem bers. See id. ; Compl. ¶ 74. Thus, Plaintiffs have not adequate ly pleaded fact s supporting i ts claim of futility. Accordingly, the Court will dismiss Plainti ffs’ derivative claims pursuant t o Federal Rule of Civil Procedure 23.1. 2. Defendants Did Not Act Ultra Vires Plaintiffs’ ultra vires claim hinges on the idea that the boycott resolution falls out side the scope of the purpose of the ASA, a nd that Defendants are operat ing the ASA as a “social justice organization” instead of as an academic organization. 8 See Compl. ¶¶ 82–83. Plaintiffs primarily cite the purpose of the ASA—which is the “promotion o f the study of American culture through the encouragement of research, teaching, public ation, and the strengthening of relations among persons and inst itutions in this country and ab road devoted to such studies”— and the bylaw prohibiting the carrying on of propaganda. See Compl. ¶¶ 22, 82. Defendants contend that the boycott resolution was within the ASA’s author ity to “engage in any and all lawful activities incidental to” the purpose of the organizatio n. Defs.’ Mot. Dismiss at 22; see also ASA Const. & Bylaws, Const., A rt. I § 2. Defendants further ar gue that the ASA constitution requires the orga nization to promote the study of American culture both domestically and abroad, and tha t no particular provision precl uded the adoption of the boycott resolution. Defs.’ Mot. Dismiss at 22–23. Because Plaintiffs have not pleaded facts showing that the boycott resolution was expressly prohibited by any sta tute or ASA bylaw, their ultra
vires claim must be dismissed.

8 Plaintiffs devote much of their complaint and opposition to th e idea that Individual Defendants hijacked the ASA for the improper purpose of turning it into a social justice organization. See Compl. ¶¶ 26, 59, 64. This alleged hi jacking is not a discrete cause of action, but does tangentially relate to Plaintiffs’ ultra vires claim. See Compl. at 25–31.30 A member of an organization may di rectly sue that organization to enjoin actions that the organization did not have power to execute. See D.C. Code § 29-403.04(b)(1); see also Daley v. Alpha Kappa Alpha Sorority, Inc. , 26 A.3d 723, 729 (D.C. 2011). Ac tions taken by the organization that are “expre ssly prohibited by statute or by-law” or outside the powers conferred upon it by its articles of incorporation are ultra vires

. Compton v. Alpha Kappa Alpha Sorority,
Inc. , 64 F. Supp. 3d 1, 18 (D.D.C. 2014), aff’d , 639 F. App’x 3 (D.C. Cir. 2016); see also Daley , 26 A.3d at 730 (emphasis omitted) (quoting Columbia Hosp. for Women Found., Inc. v. Bank of Tokyo-Mitsubishi Ltd. , 15 F. Supp. 2d 1, 7 (D.D.C. 1997), aff’d , 159 F.3d 636 (D.C. Cir. 1998)). “In certain circumstances, along-standing pattern or practice of corporate behavior may give rise to a by-law.” Family Fed’n for World Peace , 129 A.3d at 251. Interpretation of an organization’s constitution and byl aws, including whether they are ambiguous, presents legal questions to be resolved by the text of the documents, unless that text is fairly susceptible to different interpretations. See Bazarian Int’l Fin. Assocs., LLC v. Desarrollos Aerohotelco, C.A. , 168 F. Supp. 3d 1, 20 (D.D.C. 2016) (using such a rule in the c ontext of D.C. contract law). Where there is ambiguity in the t ext of the articles of incorpo ration, the Court determines whether the action is reasonably in furtherance of the objects of the organization. See Hollar v. Gov’t of the Virgin Islands , 857 F.2d 163, 169 (3d Cir. 1988) (cting 6 Am. Jur. 2d, Associations and Clubs § 11 (1963)). Plaintiffs advance three theori es to support their claim that A SA’s adoption of the boycott resolution was an ultra vires act. First, Plaintiffs conte nd that the adoption of the boyco tt resolution violated the express purpose of the ASA. Second, Pl aintiffs argue that it violated the Article of Incorporation banni ng the carrying on of propaganda. And third, Plaintiffs assert that31 it violated a bylaw create d by a longstanding practice of not b ecoming involved with American political issues. See Compl. ¶¶ 81–85. None of these the ories are sufficient to stat e a claim. In support of their first theory—that the adoption of the boyco tt resolution was an ultra
vires act because it violated the exp ress purpose of the ASA—Plainti ffs cite to the ASA’s “organic documents” that allege dly provide that “[t]he corporat ion is organized exclusively for education and academic purposes,” and Article I § 2 9 of the ASA Constitution, which provides that “[t]he object of the associ ation shall be the promotion of the study of American culture through the encouragement of research, teaching, publication, the strengthening of relations among persons and institutions in this country and abroad devot ed to such studies, and the broadening of knowledge among the general public about Americanculture in all its diversity and complexity.” Compl. ¶¶ 22, 24 . Neither of these provision s “expressly prohibited” the boycott resolution, and the ASA was within i ts powers to do so. See Daley , 26 A.3d at 730. The boycott resolution “endorse[d] and . . . honor[e d] the call of Palestinian civil society [to] boycott . . . Israeli academic institutions.” 10 Compl. ¶ 31. As shown by the preamble of the resolution, the ASA passed the boycott resolution because, in its view, Isr ael suppresses the academic freedom of Palestinian scholars and students, and the United St ates “plays a significant role in enabling” that suppression. Com pl. ¶ 31. The ASA also did so as a show of solidarity with

9 Later in their complaint, Plai ntiffs cite to “Article II” to e stablish the ASA’s purpose. See Compl. ¶ 82. Based on earlier citat ions in the complaint and the ASA Constitution & Bylaws attached to Defendants’ motion to dismiss, it seems apparent that Plaintiffs intended to cite to Article I § 2. See Compl. ¶ 22. 10 To the extent Plaintiffs argue that Defendants’ true purpose w as different from the stated purpose in the resolution— and it is far from clear that they do—those ulterior motives do not matter. “The power of a co rporation to do an act is not af fected by the motives or intent with which the act is done.” 6 Fletcher Cyc. Corp. § 2477; see also 18B Am. Jur. 2d Corporations § 1716 (noting that an act is “not rendered ultra vires by the mere fact that the corporation intends to use the proceeds [of the act] for an ultra vires purpose”).32 those scholars. Compl. ¶ 31. T he boycott resolution was, ther efore, enacted for “academic purposes,” at least to a point where it was not in violation of the ASA’s founding documents. See Daley , 26 A.3d at 730. It also was reason ably in furtherance of the ASA’s purpose of advancing education and the prom otion of the study of American culture through encouraging research, teaching, and strengthening relations among persons and institutions in the United States and abroad

. See Hollar , 857 F.2d at 169. The boycott resolution was aimed both at encouraging academic freedom for Palestinians and strengthening relations between American institutions and Palestinians. At the very least, it was “reas onably in furtheran ce of the objects” of the ASA. See id. Thus, it was not contrary to the ASA’s express purposes. Plaintiffs’ second theory—that the adoption of the boycott reso lution was an ultra vires act because it violated the Articles of Incorporation banning t he carrying on of propaganda—also comes up short. According to the A SA’s bylaws, “[n]o substanti al part of the activities of the corporation shall be the carrying on of propaganda, or otherwis e attempting, to influence legislation, and the corporati on shall not participate in . . . any political campaign on behalf of any candidate for public offi ce.” Compl. ¶ 25. Without the ph rase offset by commas (“or otherwise attempting”), the byl aw plainly reads as a restrictio n only on using propaganda to influence legislation: “[n]o subs tantial part of the activities of the corporation shall be the carrying on of propaganda . . . to influence legislation.” 11 Compl. ¶ 25. The boycott resolution

11 Plaintiffs disregard this cav eat in their opposition, suggesti ng that there is both “an absolute ban on ‘propaganda’ and [ on] efforts ‘to influence leg islation.’” See Pls.’ Opp’n at 5. This is plainly not the case. At least one other court has rea ched the same conclusion interpreting similar text. See Williamson v. S. Reg’l Council, Inc. , 154 S.E.2d 21, 25 (Ga. 1967). The statute at issue in Williamson restricted the “carrying on propaga nda, or otherwise attempting to influence legi slation.’” 154 S.E.2d at 24. Desp ite the absence of a comma after “attempting,” the Georgia Supreme Court concluded that “[t]he u se of the word ‘otherwise’ indicates that ‘carry ing on propaganda’ relates to ‘attempting to influence legislation.” Id. at 25.33 was not an attempt to influence le gislation in any meaningful s ense of the term. See Haswell v. United States , 500 F.2d 1133, 1140 (Ct. Cl. 1974) (citing Cammarano v. United States , 358 U.S. 498, 512 (1959)) (tracing “the develo pment of the congressional policy against an exemption for organizations that attempt to promote or defeat legislation” (emphasis added)). Plaintiffs have not pointed to any existing, proposed , or pending legislation that the ASA may have been targeting with the resoluti on. Although one may be able to dra w an indirect link between any resolution and some potential pie ce of legislatio n in that it c alls attention to a public issue, that connection is far too attenuate d to make the boycott resolution“expressly prohibited” by the bylaw. See id. ; Daley , 26 A.3d at 730. Plaintiffs’ final theory—that the boycott resolution was a viol ation of longstanding practice—also falls short of s tating a plausible claim of ultra vires acts. As noted above, in certain circumstances, longstandi ng practice can give rise to abylaw. Family Fed’n for World
Peace , 129 A.3d at 251. The complaint alleges that a “long record o f uniform practice prevent[s] the ASA from taking action to a dvance a particular position on questions of U.S. government policy.” Compl.¶ 25. The boycott resolution was passed, at le ast in part, because the ASA believed that the United States’ policies toward Israel “play[] a significant role in enabling” Israeli suppression of academi c freedom for Palestinians. See Compl. ¶ 31. However, ultra vires acts are those that are “ expressly prohibited by statute or by-law.” Daley , 26 A.3d at 730 (emphasis added and omitted) (quoting Columbia Hosp. for Women Found., Inc. , 15 F. Supp. at 7). For a bylaw to “expressly” p rohibit an action, the prohibi tion must be “[c]learly and unmistakably communicated,” or , in other words, “stated with di rectness and clarity.” Express , Black’s Law Dictionary (10th ed. 2014); accord Threshold Techs., Inc. v. United States , 117 Fed. Cl. 681, 697 (Ct. Fed. Cl. 2014). A n “express” bylaw is o ne “whose terms [are] explicitly34 set out.” See Threshold Techs., Inc. , 117 Fed. Cl. at 697 (quoting Express Contract , Black’s Law Dictionary (10th ed. 2014)). Plaintiffs do not in any way allege that the “long record of un iform practice” actually functioned as a prospective, a ffirmative prohibition on taking a position on U.S. government policy. See Compl. ¶ 25. Even if the Court we re to read such a rule into t he complaint, Plaintiff does not suggest that the rule w as in any way “set out” by the ASA itself, its membership, its past National Council members, or any other relevant party. See Compl. ¶ 25; Threshold Techs.,
Inc. , 117 Fed. Cl. at 697. Still furthe r, there is no indication that the rule was clearly and directly set out in explicit terms. See Compl. ¶ 25. Without pointing to som e express form of a rule t hat Defendants could have violated a s a result of the “longstanding practice” of not involving the ASA in U.S. government policy, P laintiffs have not stated a cog nizable ultra vires claim. Thus, the Court dismisses Plaintiffs’ ultra vires claim. * * * Plaintiffs have not pled facts pl ausibly showing that Defendan ts acted ultra vires . The boycott resolution was, at the ve ry least, reasonably in furthe rance of the ASA’s organic documents and Articles of Incorpor ation, which provide that the ASA was organized exclusively for educational and academic purposes, and that the object of the ASA is the promotion of American culture through, inter alia , “the encouragement of research, teaching, publication, [and the] strengthening [of] relati ons among persons and institution s in this country and abroad devoted to such studies.” See Compl. ¶¶ 22, 24. The boycott resolution was aimed at promotin g academic freedom abroad, solidar ity with foreign institutions and scholars, and encouraging an array of studies at foreign ins titutions. The boycott resoluti on did not violate the ASA bylaws’ restriction on “th e carrying on of propaga nda . . . to influenc e legislation,” see Compl. ¶ 25,35 because Plaintiffs have not drawn the connection between the bo ycott resolution and any piece of legislation. Finally, Plainti ffs have not shown that an implie d bylaw exists that precludes commentary of U.S. governmental policy. Even if they had, howe ver, because that bylaw would not be “express,” violation of it would not constitute ultra vires action. 3. Plaintiffs have Stated a Plau sible Claim for Breach of Contract Plaintiffs’ breach of contract cla im assumes that even if the A SA had the authority to adopt the boycott resolution, its a uthority was contractually b ound by Article XI § 3 of the ASA Bylaws, which requires the affi rmative votes of two-thirds of v oting members on the first full day of the meeting, and the ASA f ailed to enact the resolution in accordance with those procedures. See Compl. ¶¶ 90–94. Defendants argue that Article XI § 3 did not apply to the boycott resolution, because the Committee itself had the power to speak on behalf of the ASA, and that the vote on the resolution was simply a legitimizing a ct on the controversial measure. Defs.’ Mot. Dismiss at 26–28. Because Plaintiffs have plausibl y alleged that the boycott resolution was enacted in violati on of the ASA’s bylaws, the Co urt denies Defendants’ motion to dismiss with respect to their breach of contract claim. A nonprofit organization’s “Cons titution and Bylaws form a contract between that [organization] and its members.” See Compton v. Alpha Kappa Alpha Sorority, Inc. , 64 F. Supp. 3d 1, 16 (D.D.C. 2014), aff’d , 639 F. App’x 3 (D.C. Cir. 2016). “Pl aintiffs’ breach of contract claims require (1) the existen ce of a valid contract, (2) an ob ligation or duty arising out of that contract, (3) a breach of the c ontract . . . , and (4) damages suffered by Plaintiffs due to the breach.” Id. Defendants only argue that the y did not breach the contract b y violating the ASA bylaws, because no obligation or duty arose from the inapplicab le provision of the bylaws. See Defs.’ Mot. Dismiss at 26–28.36 Article XI of the ASA Bylaws em powers the Executive Committee t o speak for the ASA on public issues that “directly aff ect [members’] work as schol ars and teachers.” ASA Const. & Bylaws, Bylaws, Art. XI § 1. That provision sets forth example s of the types of issues on which the Executive Committee may spea k for the ASA, including matter s of academic freedom, freedom of access to information, and policies concerning acade mic grants. ASA Const. & Bylaws, Bylaws, Art. XI § 1. Thi s provision extends only to is sues directly affecting ASA members. It seems based on the complaint—which contains the te xt of the boycott resolution itself, including the preamble— that the purportedly oppressive practices by Israel do not “directly” affect the scholarl y work or teaching of current ASA members. As a result, it is plausible that the ASA was not e ntitled to speak for the ASA onthis issue. Article XI also provides the following: Sec. 3. Should an issue arise whic h, in the opinion of the Exec utive Committee or Council, seems to require public action, speech or demonstratio n by the association at a particular annua l meeting, the Council shall m eet to formulate a response. The Council shall conv ene an emergency meeting of the membership on the first full day of the annual meeting, to recommend a course of action, and conduct a public discussion of the issue(s); and the vote of tw o-thirds of those in attendance may approve the recommended action. ASA Const. & Bylaws, Bylaws , Art. XI § 3. Breaking this provis ion down, anytime an issue arises that the Executive Comm ittee or Counsel feels requires ( 1) public action, speech, or demonstration (2) by the associat ion at a particular annual mee ting, the Council shall comply with the procedural require ments of Article XI § 3. Because it is plausible that the Executive Committee saw the U. S.–Israeli policy issue as the type “requir[ing] public ac tion, speech, or demonstration b y the association at [the 2013] annual meeting,” Plaintiffs state a plausible claim for breach of contract. Plaintiffs have pleaded multiple facts suggesting that the Executive Committee and Coun cil felt that the ASA needed to speak and demonstrate on the public issue of Israeli suppressio n of academic freedom as a matter37 of social justice. See Compl. ¶¶ 26, 59, 64, 78. They also plead facts plausibly show ing that the Executive Committee felt the demonstration must take place by the ASA at the 2013 annual meeting. At the annual meeting, the Executive Committee organi zed a variety of boycott-related programming, including a town-h all meeting, to discuss the issu e as an organization. See Compl. ¶¶ 30, 47. Moreover, the ASA Executive Committee appears to ha ve attempted to follow some procedural requirements of Article XI § 3—they “formulate[d] a response” in the form of the boycott resolution, they “recommen d[ed] a course of action,” th ey “conduct[ed] a public discussion of the issue[],” and they held a vote. But the Exec utive Committee did not secure “the vote of two-thirds of those in attendance” at the annual m eeting before implementing the resolution. See Compl. ¶ 33. Instead, the Executive Committee opened the vote to all ASA members and conducted the vote during the course of ten days inDecember. See Compl. ¶ 33. It is plausible that the Executive Committee attempted to follo w some, but not all, of the Article XI § 3 procedures because it saw th e issue as the type describe d therein. As noted above, if the Executive Committee or Council did indee d believe that Israeli policies “require[d] public act ion, speech[,] or demonstration by the [ASA] at [the] annual meeting,” the National Council wa s required to “meet to formula te a response,” “convene an emergency meeting of the membership on the first full day of th e annual meeting[] to recommend a course of action,” “conduct a public discussion of the issue[],” and obtain votes from two-thirds of those in att endance. At this stage, Defenda nts do not dispute that the National Council did not follow all of these steps. See Defs.’ Mot. Dismiss at 26–28. Thus, if it is established that this provision of the bylaws applies to the sc enario at issue, Plaintiffs have plausibly alleged that the ASA breached its contractual obligat ions to its members.38 4. Defendants’ Substantive Ultra Vires Arguments are Moot Defendants’ final argument is t hat, under the D.C. Nonprofit Co rporation Act, Plaintiffs cannot bring ultra vires claims directly againstIndividual Defendants. See Defs.’ Mot. Dismiss at 28–29. Because the Court dismisses Plaintiffs’ ultra vires claims brought against both the ASA and Individual Defendants, tha t argument appears to be moot . But Defendants assert, in conclusory terms, that, in addi tion to applying to the now-dism issed ultra vires counts, this statutory argument als o pertains to Plaintiffs’ claim for waste

. See Defs.’ Mot. Dismiss at 28–29. Defendants are wrong. The D.C. Nonprofit Corporation Act provides that individual mem bers of the nonprofit may only directly challenge an action as ultra vires by suing the corporation to enjoin the act. D.C. Code § 29-403.04(b)(1). By vi rtue of this provision, Defe ndants claim that Plaintiffs cannot bring waste claims againstIndividual Defendants. In co ntrast to ultra vires claims, however, claims of corporate wa ste need only “articulate an ‘ex change of corporate assets for consideration so disproportiona tely small as to lie beyond the range at which a reasonable person might be willing to trade,’ and must be ‘egregious or irrationa l.’” Daley , 26 A.3d at 730 (quoting In re Greater Southeast Comty. Hosp. Corp., I, 333 B.R. 506, 524 (Bankr. D.D.C. 2005)). Plaintiffs cite to this r ule in their Count for waste. See Compl. ¶ 87 (quoting 3A Fletcher Cyc. Corp. § 1102 at 150–51) (2010)). Although P laintiffs also assert that the motivation for the allegedly waste ful use of corporate assets w as a cause “beyond the purposes established by its organic docum ents,” Compl. ¶ 88, that langua ge is not essential to Plaintiffs’ claim for waste; improper motive is not an element, see Daley , 26 A.3d at 730. Thus, because the D.C. Nonprofit Corporation A ct does not prohibit Plaintiffs ’ waste claim against Individual Defendants, that claim survives dismissal.39 V. CONCLUSION For the foregoing reasons, Defenda nts’ Renewed Motion to Dismis s is GRANTED IN PART and DENIED IN PART . An order consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: March 31, 2017 RUDOLPH CONTRERAS United States District Judge