Halebian v. Berv (869 F. Supp. 2d 420, 2012)

MEMORANDUM AND ORDER

NAOMI REICE BUCHWALD, District Judge.

I. Introduction

On July 31, 2007, in Halebian v. Berv (“Halebian I”), 631 F.Supp.2d 284 (S.D.N.Y.2007), we dismissed the complaint of John Halebian (“plaintiff’), which was brought against nine members of the board of trustees (“defendants”) of CitiFunds Trust III (the “Trust”), a business trust organized under the laws of the Commonwealth of Massachusetts. In his complaint, plaintiff challenges defendants’ decision in 2005 to continue to employ the existing investment adviser to the mutual funds comprising the Trust when the ownership of the investment adviser changed from Citigroup, Inc. to Legg Mason, Inc.

On August 29, 2007, plaintiff appealed from the judgment that we entered against him. In the intervening years, three appellate-court decisions have analyzed this case. In the last, the Second Circuit affirmed our judgment dismissing the complaint’s second and third claims but vacated our judgment dismissing the complaint’s first claim, a derivative claim. Remanding the case to us with specific instructions to convert the defendants’ original motion to dismiss this derivative claim into one for summary judgment under Federal Rule of Civil Procedure 56, the Second Circuit directed us to make an express finding as to the independence of defendants under the provision of state law governing the dismissal of derivative proceedings. In addition to this task, pending before us are plaintiffs motions to amend his complaint and for discovery, both of which he filed following remand. Addressing these three motions in reverse order and for the reasons stated below, plaintiffs motions are denied and defendants’ converted motion for summary judgment is granted.

II. Background

The general facts underlying this ease are now well reported in four published opinions. See Halebian I, 631 F.Supp.2d at 287-91; Halebian v. Berv (“Halebian II”), 590 F.3d 195, 199-203 (2d Cir.2009); Halebian v. Berv (“Halebian III”), 457 Mass. 620, 621-24, 931 N.E.2d 986, 987-89 (2010); Halebian v. Berv (“Halebian IV”), 644 F.3d 122, 124-27 (2d Cir.2011). Like the Second Circuit, “[w]e see no need to reiterate them here except insofar as we think it necessary to an understanding of our resolution” of the outstanding issues on remand. Halebian IV, 644 F.3d at 124. In light of the task with which the Second Circuit has charged us, however, we do set out facts here that have not been previously catalogued, particularly facts regarding defendants and their investigation of the alleged improprieties that- underlie this case.

A. The Citigroup-Legg Mason Transaction

On June 23, 2005, Citigroup, Inc. (“Citigroup”) entered into an agreement to sell substantially all of its asset management business to Legg Mason, Inc. (“Legg Mason”) (the “transaction”). Finn Decl. Exs. D (“Proxy Statement”) 10, K (“Report”) Ex. 17 (article announcing the transaction). As of that date, Citi Fund Management Inc. (“CFM”), a subsidiary of Citigroup, served as the investment adviser to the six mutual funds—each of which has its own separate shareholders—that then comprised the Trust, which was at that time an investment company registered with the Securities and Exchange Commission (the “SEC”). See Halebian I, 631 F.Supp.2d at 287-88; Proxy Statement 9-10, App. A A-3, App. B B-8. Under the Investment Company Act of 1940, as amended, 15 U.S.C. § 80a-l et seq. (the “ICA”), the sale of the asset management business and in particular CFM triggered the termination of the existing investment advisory agreements between the mutual funds comprising the Trust and CFM (the “Old Agreements”), requiring these mutual funds to enter into new investment advisory agreements (the “New Agreements”). See Halebian I, 631 F.Supp.2d at 288 (discussing applicable law). Pursuant to the ICA, the New Agreements had to be approved by a majority of the members of the board of trustees who are not “interested persons” under the ICA and by a vote of a majority of the outstanding shares of each of the mutual funds. See 15 U.S.C. § 80a-15(a), (c).

B. The Board

At all relevant times, the board of trustees (the “board”) of the Trust was composed of ten members. R. Jay Gerken (“Gerken”) was an acknowledged “interested person” under the ICA who served on the board and was also employed as a director and officer for multiple subsidiaries of Citigroup, including CFM. See Proxy Statement 50, 52. In addition to overseeing the six mutual funds that comprised the Trust, Gerken also served on the governing boards for well over a hundred other mutual funds, which were all within the family of funds for which subsidiaries of Citigroup served as investment advisers. See id. at 52.

Defendants occupied the remaining nine seats on the board. Like Gerken, defendants served on multiple governing boards within the Citigroup family of funds—between thirty-two and thirty-seven boards in each case at all relevant times—and so were involved as a result of the transaction in voting to approve new investment advisory agreements on behalf of many more mutual funds than only the six that comprised the Trust. See id. 50-52. Unlike Gerken, defendants were not employees or otherwise acknowledged to be “interested persons” under the ICA of Citigroup, CFM, the Trust, or any other relevant individuals or entities. See id. We list defendants’ names immediately below and note (i) the date on which they began serving as trustees or directors to mutual funds within the Citigroup family of funds; (ii) the compensation they received for their service on the board in the calendar year ended December 31, 2004; and (in) the overall compensation they received for their service as trustees or directors for mutual funds within the Citigroup family of funds in the calendar year ended December 31, 2004:

Elliot J. Berv (“Berv”) 1989/$4,663/$90, 200;

Donald M. Carlton (“Carlton”) 1997/ $4,797/$92,800;

A. Benton Cocanougher (“Cocanougher”) 1991/$4,276/$83,400;

Mark T. Finn (“Finn”) 1989/$4,939/$95, 400;

Stephen Randolph Gross (“Gross”) 1986/ $4,959/$95,300;

Diana R. Harrington (“Harrington”) 1992/$4,646/$90,100;

Susan B. Kerley (“Kerley”) 1992/$6,259/ $120,200;

Alan G. Merten (“Merten”) 1990/$4,239/ $82,600; and

R. Richardson Pettit (“Pettit”) 1990/ $4,699/$90,300.

Id. at 50-55. During the years preceding the events in question here, the compensation that several defendants received for their service as trustees and directors amounted to a significant portion of their annual income (i.e. 25% to 50%). Report 33. In addition, through their service as trustees and directors, defendants accrued retirement benefits as of the events in question here collectively worth $3,600,000.

In an apparent effort to confirm that defendants were still not “interested persons” under the ICA or otherwise subject to a conflict of interest, defendants were asked to complete a questionnaire shortly prior to their approval and recommendation of the New Agreements (the “First Questionnaire”). In the First Questionnaire, defendants answered questions bearing on their backgrounds as well as their interests in and relationships to the Trust and the various individuals and entities related to it that were tied to Citigroup and Legg Mason in one manner or another. In particular, defendants addressed sets of questions that were similarly posed to all of the directors and trustees serving within the Citigroup family of funds and that delved inter alia into (i) their ownership of securities in any of the mutual funds within the Citigroup family of funds; (ii) their recent employment histories, see First Questionnaire 7-8; (iii) their relationships with any of the mutual funds within the Citigroup and Legg Mason families of funds as well as the directors, trustees, and officers of those mutual funds, see id. at 8-10; (iv) their relationships with any of the investment advisers or other financial service providers to the mutual funds within the Citigroup and Legg Mason families of funds as well as certain of their officers, see id. at 10-13; (v) their involvement in any pertinent legal proceedings, see id. at 15-17; (vi) their level of expertise with accounting and financial matters, see id. at 17-18; and (vii) their nomination to the governing boards on which they served. See id. at 18-19. At the conclusion of the First Questionnaire, defendants signed their names, attesting that “[t]he foregoing answers are correctly stated to the best of my knowledge, information and belief.” Id. at 19.

The answers that defendants provided to these questions between July 15, 2005 and July 26, 2005, reveal the breadth and depth of their professional experience: four defendants worked as professors at well-respected colleges and universities where two of them self-identified that they served as professors of finance, see, e.g., Cocanougher First Questionnaire 7 (reflecting employment history with Texas A & M University); six defendants worked in one or another capacity in finance, consulting, or accounting, see, e.g., Finn First Questionnaire 7 (reflecting employment history in investment management); and one defendant, Carlton, noted that he served on the board of directors of at least two large corporations (i.e. American Electric Power, Co., Inc. and National Instruments Corp.). Carlton First Questionnaire 7. All defendants confirmed their ability to read and understand financiál statements, and many of them further indicated a considerable level of experience with assessing such statements and supervising their preparation and audit. See, e.g., Merten First Questionnaire 17-18 (reflecting service on the audit committees of several public companies). Six defendants disclosed their ownership of securities in mutual funds within the Citigroup family of funds. The only other answer of “yes” appearing in the questionnaires reflected that Cocanougher owned common shares valued at $136,213.00 of General Electric Co., which served as a sponsoring insurance company to the Citigroup family of funds. See Cocanougher First Questionnaire 10; First Questionnaire App. D.

In a subsequent questionnaire completed after the approval of the New Agreements and roughly contemporaneous to the circulation of plaintiffs demand letter (the “Second Questionnaire”), defendants answered similar questions now addressing their interests in and relationships to the Trust but with a primary perspective on the new nexus of ties to Legg Mason that resulted from its acquisition of CFM, which continued to serve as the investment adviser to the mutual funds within the Trust, as discussed in Part II.C below. The questions included in the Second Questionnaire almost entirely mirror in their substance those in the First Questionnaire, and, as with the First Questionnaire, the Second Questionnaire inquires into various possible relationships with individuals and entities related to Legg Mason and those entities acquired by Legg Mason from Citigroup in the transaction. The answers that defendants provided between February 6, 2006 and March 1, 2006 to the Second Questionnaire are substantively identical to their prior answers to the First Questionnaire. The lone exception involves Harrington, who identifies that she by this time held securities in a mutual fund that she oversaw within the Legg Mason family of funds, joining the six of her colleagues who previously indicated their ownership of securities and who now affirmed in the Second Questionnaire that their continued holdings were also in mutual funds that they oversaw. See Harrington Second Questionnaire 10. As before, the only other answer of “yes” appearing in the questionnaires reflected Cocanougher’s ownership of common shares of General Electric Co., which he now valued at $132,000.00. See Cocanougher Second Questionnaire 13; Second Questionnaire App. D.

C. The Approval and Recommendation of the New Agreements

The transaction between Citigroup and Legg Mason was formally disclosed to defendants on June 21, 2005'—two days before the companies formally signed on to it—during an “all-boards” telephone meeting, one in which the members of all of the boards of trustees and directors within the

Citigroup family of funds participated. See Report 44. Over the ensuing six weeks, defendants analyzed the transaction and determined whether to approve the New Agreements, participating in six in-person and telephone board meetings as well as seven further executive sessions at which defendants met alone with their counsel, Sullivan & Worcester LLP (“S & W”). See id. at 42. Occurring roughly simultaneously to this review, defendants also addressed the annual renewal of the Old Agreements. See id. at 43-44. On August 7, 2005, defendants voted unanimously to renew the Old Agreements and approve the New Agreements, demonstrating inter alia their support for CFM continuing to serve as the investment adviser to the mutual funds comprising the Trust after the transaction closed and CFM’s acquisition by Legg Mason was completed. See id. at 42, 56-57, Ex. 34 7.

While defendants approved the New Agreements on August 7, 2005, they initially refused to permit the release of a proxy statement recommending shareholder approval of the New Agreements. Among the issues that had attracted the concern of defendants during their review of the transaction was the branding of the money-market mutual funds that comprised the Trust. See Report 54-59. In particular, defendants believed that it was in the best interests of shareholders of these money-market mutual funds to secure the ongoing support of Citigroup and the right to retain the “Citi” name for a period of time following the transaction. See, e.g., Report Ex. 31 (letter of August 2, 2005 from S & W to representatives of Citigroup emphasizing “the [independent [trustees are concerned about the money market funds, whether the [fjunds will be branded with a ‘Citi’ name, and whether and how Citigroup and its businesses and customers will support such [f]unds postclosing of the proposed ... transaction”). Following indications that such an arrangement could be achieved, defendants approved the New Agreements but specified that a proxy statement to shareholders could not be mailed until the branding issue was definitively resolved. See Report Ex. 33 2 (minutes of board meeting held on August 5, 2005 noting “Citigroup had made a proposal to Legg Mason for use of the ‘Citi’ brand”), Ex. 35 1 (email of August 10, 2005 from S & W to representatives of Citigroup memorializing “the [independent [trustees’ request ... that proxy materials not be mailed ... until [they] are apprised of the satisfactory resolution of the branding matter”). On September 2, 2005, defendants received confirmation that Citigroup had agreed to license “Citi” to the money-market mutual funds comprising the Trust and also to provide access to its distribution channels for their benefit for a period of three years. See Report Ex. 38 (minutes of board meeting held on September 2, 2005). Accordingly, defendants permitted the proxy statement conveying their recommendation of the New Agreements to be mailed to shareholders. See id.

With defendants’ consent secured, the proxy statement was filed with the SEC on the afternoon of September 2, 2005 and circulated to shareholders on September 3, 2005. See Quitt Decl. ¶8; Proxy Statement 1. The proxy statement advised shareholders of the procedures that would govern their vote on the New Agreements and specifically informed them:

With respect to any shares for which a Citigroup-affiliated service agent (other than a broker-dealer) is the holder of record and for which it does not receive voting instructions from its customers, such service agent intends to vote those shares in the same proportion as the votes received from its customers for which instructions have been received.

Id. at 8. This voting practice, commonly known as “echo voting,” was expressly permitted pursuant to the Trust’s operative charter and most recent prospectus. See Halebian I, 631 F.Supp.2d at 288 n. 2 (discussing charter and prospectus provisions that advised shareholders of the use of echo-voting procedures).

D. The Demand, the Complaint, the Investigation, the Report, and the Rejection of the Demand

Following defendants’ and also shareholders’ approval of the New Agreements, on February 8, 2006, plaintiffs counsel wrote a demand letter to the board (the “demand letter”), generally asserting that “[a] review of the lengthy discussion of the board’s deliberations over the new advisory agreements set forth in the proxy statement fails to disclose that the board ever considered the best interests of the [N.Y. Tax Free Fund of which plaintiff is a shareholder].” Finn Decl. Ex. E (“Demand Letter”) 1. In the demand letter, plaintiffs counsel continued to insist “that the board take action which would include, among other things, the institution of an action for breach of fiduciary duty against any and all persons who are responsible for the board’s dereliction of its duties in connection with the ... transaction” and that “appropriate remedial measures should be undertaken, including seeking bids for the advisory contract from other qualified investment advisers, negotiating new terms more favorable to the [N.Y. Tax Free Fund] with Legg Mason, or both.” Id. at 2. As the Second Circuit noted in Halebian II, plaintiffs counsel also stated in a footnote that “ ‘shareholder approval does not appear to have been obtained properly,’ ” which was “presumably a reference to the echo voting practices described in the proxy statement.” 590 F.3d at 200 (quoting Demand Letter 1 n. 1). In the demand letter, plaintiffs counsel “did not, however, make a demand with respect to this purported impropriety because, [it] said, the impropriety ‘gives rise to direct, rather than derivative, claims.’ ” Id. (quoting Demand Letter 1 n. 1).

Following receipt of the demand letter, as we detailed in Halebian I:

On March 24, 2006, the [b]oard voted to appoint ... [trustees] Finn and ... Gross to serve as a Demand Review Committee ([the] “DRC”).... Gerken ... abstained from this vote because he is an “interested person” under the ICA. Thus, the vote was taken by the remaining nine [ ] trustees.... The [DRC] retained independent counsel, Leboeuf, Lamb, Greene & MacRae L.L.P. (“LeBoeuf’), led by Ralph C. Ferrara, former General Counsel of the [SEC], to assist in the inquiry of [plaintiffs demand, and counsel undertook a review of the adoption of the new advisory agreements. During the investigation, Mr. Ferrara wrote to [Joel C. Feffer,] plaintiffs counsel, on April 10, 2006, to inform him of the appointment of the DRC and to invite him to provide any additional information which might support the assertions made in the [demand [l]etter. [Mr.] Feffer, sent a response dated April 20, 2006 to Mr. Ferrara, noting that he was “unclear” about the DRC’s mandate, members, and powers in light of “the obvious anomaly of appointing people to consider suing themselves or their colleagues.” After asking “[w]hat type of ‘additional information or support’ does the [DRC] believe could be either relevant or in my possession”, Mr. Feffer declined to provide any further information. Accordingly, on April 28, Mr. Ferrara sent a letter enclosing the resolution appointing the DRC which was passed by the [b]oard ... in response to the [d]emand [l]etter, and invited plaintiff and [Mr. Feffer] to meet with the DRC towards the end of the review process. [Mr. Feffer’s] response, dated May 3, 2006, again asked what “additional information or support” was necessary. Mr. Ferrara’s letter, dated May 9, 2006, once again invited plaintiff and counsel to meet with the DRC to discuss the demand.

631 F.Supp.2d at 290 (internal citations omitted).

In response to this last piece of correspondence, plaintiffs counsel filed the complaint that initiated this action on May 30, 2006. The complaint consisted of three claims. Claim I, “styled as a derivative claim for breach of fiduciary duty, alleged] that members of the [b]oard breached their fiduciary duties of good faith and loyalty under Massachusetts law in their consideration of the ... transaction and in recommending the” New Agreements. Halebian II, 590 F.3d at 201 (internal quotation marks and brackets omitted). As the Second Circuit has summarized:

The complaint allege[d] that the “[defendants limited their consideration to whether the ... transaction would be worse for [the Trust’s] beneficiaries than their current situation” and “made no effort to investigate whether a transaction could be fashioned which would benefit [the Trust’s] beneficiaries, either with Legg Mason or another asset manager.”

Id. (quoting Compl. ¶ 36) (second set of brackets and ellipsis in original). In particular, plaintiff “contend[ed] that the soft-dollar arrangements [for which the New Agreements provided] allow for the payment of ‘higher than necessary brokerage commissions,’ ... referring to those payments as ‘kickback[s].’ ” Id. (quoting Compl. ¶¶ 43, 44) (third set of brackets in original). Claims II and III, styled as direct claims on behalf of all beneficial interest holders in the Trust as of August 22, 2005, alleged that the proxy statement violated ICA § 20(a) and unspecified provisions of the law of Massachusetts because the proxy statement failed to disclose to shareholders that (i) the echo-voting procedures used in securing approval of the New Agreements were illegal and (ii) the assets of the Trust were being diverted to benefit others, “presumably via soft[-]dollar payments.” Id.

Following the filing of the complaint, the DRC completed its investigation on June 20, 2006, bringing to an end the inquiry with which defendants charged it on March 24, 2006. See Report 113. With the assistance of LeBoeuf, the DRC, which again consisted of Finn and Gross, examined the allegations in the demand letter as well the allegations regarding echo voting in the complaint. See id. See also Finn Decl. Ex. J (“Resolution”) 1H1B.2-B.3. In order to permit this examination, LeBoeuf, which operated at the direction of the DRC, expended over 1000 hours gathering relevant facts. Resolution ¶ B,4. In the course of the investigation, LeBoeuf interviewed twenty-one individuals who were involved in the transaction and the approval of the New Agreements, including (i) each defendant; (ii) Gerken, as well as three other senior executives within the investment-adviser subsidiaries of Citigroup; (iii) representatives of Bingham McCutchen L.L.P. (“Bingham”), which served as counsel to the Trust at all relevant times; and (iv) representatives of S & W, which served as counsel to defendants in their capacity as the “independent” trustees of the Trust at all relevant times. See Report 113-114, Ex. 48 (listing individuals other than counsel interviewed during investigation). LeBoeuf also collected and reviewed over 20,000 pages of both paper and electronic documents, the latter of which were collected and reviewed with the assistance of a discovery consultant, FTI Consulting. See Resolution ¶8.4; Report 114-27 (discussing collection and review of documents from defendants, S & W, Bingham, and representatives of investment-adviser subsidiaries of Citigroup). During the course of the investigation, the DRC held at least seven telephone meetings with LeBoeuf and participated in the selection of interviewees as well as the questions posed in interviews. See Resolution ¶6.6.

In a meeting on June 20, 2006, the DRC deliberated and concluded in light of its investigation that inter alia (i) Gerken should recuse himself from the board’s consideration of the demand letter; (ii) defendants—the members of the board— were independent with respect to the demand letter and formed a quorum of the board; (iii) defendants, therefore, should decide how to proceed as to the demand letter on behalf of the board; and (iv) the allegations in the demand letter and the complaint were without merit and, accordingly, the board should rebuff the requests in the demand letter. See Resolution ¶¶ C.1-C.6; Report 16-18. On June 29, 2006, the DRC finalized and disseminated to the board a report of considerable size (the “report”), which summarized the transaction and approval of the New Agreements as well as other events underlying the demand letter and the complaint, described the demand letter and the complaint, and laid out the facts developed in the investigation as well the DRC’s recommendations in light of supporting legal analysis. See Report 9 (discussing dissemination of the report to the board); Finn Decl. ¶ 21 (same).

On July 12, 2006, the board, less Gerken, met in person for a full day to review the report and underlying investigation of the DRC as well as the demand letter and the complaint. See Finn Decl. ¶ 22; Resolution ¶ D.l. On July 18, 2006, after deliberating at the meeting and thereafter further considering the issues presented, the board adopted a resolution (the “Resolution”), in which it rejected the requests of the demand letter. See Finn Decl. ¶ 23. In particular, the board resolved pursuant to what it represented was its “good faith exercise of its business judgment” that inter alia (i) its members, aside from Gerken, were not interested persons under the ICA or otherwise impaired in considering the demand letter and the complaint; (ii) the investigation of the DRC, undertaken with the assistance of LeBoeuf, was thorough and could be relied upon by the board in acting in the best interests of shareholders; (iii) the allegations in the demand letter and the complaint were without merit; (iv) the balance of the Trust’s interests weighed against taking the action that the demand letter requested; (v) the board would decline to pursue the requests of the demand letter; and (vi) the complaint should be dismissed. See Resolution ¶¶ 1-13.

E. The Four Prior Halebians

Following the board’s adoption of the Resolution, on October 24, 2006, defendants’ moved to dismiss the complaint in its entirety. In Halebian I, we granted the motion to dismiss on July 31, 2007. 631 F.Supp.2d at 303. As to Claim I, the derivative claim asserting that defendants’ breached their fiduciary duties, we held that § 7.44 of Chapter 156D of the Massachusetts General Laws, which provides a mechanism for dismissal of “derivative proceedings commenced after rejection of a demand,” Mass. Gen. Laws ch. 156D, § 7.44(a) (emphasis added), governed this case notwithstanding the fact that plaintiffs complaint was filed prior to the board’s adoption of the Resolution. See 631 F.Supp.2d at 294-95. We accordingly applied § 7.44, which states' in relevant part that where a court finds upon a corporation’s motion that a majority of independent directors representing a quorum of the board of directors has determined in good faith after conducting a reasonable inquiry that maintenance of derivative proceedings is not in the best interests of the corporation that those proceedings shall be dismissed. Mass. Gen. Laws ch. 156D, § 7.44(a), (b)(1). Because we found that “[pjlaintiff neither pleads nor proffers any reason why the [bjoard’s decision to reject the demand was illegitimate” and in particular that “plaintiff argues neither that the board was not duly constituted of independent directors at the time it made its decision, nor that they did not act in good faith after conducting a reasonable inquiry,” we dismissed Claim I pursuant to § 7.44 and further denied plaintiffs request for discovery into these issues. 631 F.Supp.2d at 296-98. As discussed in Part III.A below, we dismissed Claims II and III, which were styled as direct claims, because inter alia we found that they were in fact derivative in nature and that plaintiff had failed to make demand with regard to them prior to filing suit in violation of the universal demand requirement contained in § 7.42 of Chapter 156D of the Massachusetts General Laws. See 631 F.Supp.2d at 301-303.

In Halebian II, the Second Circuit on December 29, 2009 certified the question of whether § 7.44 applied in the circumstances of this case to the Massachusetts Supreme Judicial Court, expressing some doubt as to our interpretation of the law. See 590 F.3d at 214. While approving in relative part of our rationale described above for dismissing Claims II and III, the Second Circuit reserved decision on all issues pending the response of the Massachusetts Supreme Judicial Court. See id., 590 F.3d at 207-10, 215.

In Halebian III, the Massachusetts Supreme Judicial Court answered the certified question in the affirmative on August 23, 2010, agreeing with our conclusion that § 7.44 applied in the circumstances of this case. 457 Mass. at 633, 931 N.E.2d at 995. In addition, the Massachusetts Supreme Judicial Court definitively held that Chapter 156D applied to business trusts, such as the Trust, as well as corporations. See 457 Mass. at 623 n. 4, 931 N.E.2d at 988 n. 4.

In Halebian IV, following the answer of the Massachusetts Supreme Judicial Court, the Second Circuit on May 6, 2011 affirmed our judgment dismissing Claims II and III but vacated our judgment dismissing Claim I. See 644 F.3d at 133-34. As further discussed in Part III.B and III.C below, the Second Circuit held that in Halebian I we had failed to affirmatively find whether the board was independent, as § 7.44 dictates, and that in order to make such a finding on remand we would necessarily have to entertain evidentiary submissions, requiring us to convert the defendants’ motion to dismiss into one for summary judgment. See id. at 127-33. As further discussed in Part III.B, the Second Circuit instructed that on remand we should reevaluate any renewed application from plaintiff for discovery. See id. at 133. Following remand, plaintiff not surprisingly filed such a motion for discovery as well as a motion to amend his complaint, both of which we must now decide alongside defendants’ converted motion for summary judgment.

And thus the stage is set for “Halebian the Fifth”: once more unto the breach.

III. Discussion

A. Plaintiffs Motion to Amend

At the outset, we must decide whether plaintiff may amend his complaint pursuant to Federal Rule of Civil Procedure 15(a)(2), which provides that under the circumstances here “a party may amend its pleading only with the opposing party’s written consent or the court’s leave” before noting that “[t]he court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Although Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend ‘shall be freely given when justice so requires,’ it is within the sound discretion of the district court to grant or deny leave to amend.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.2007). Furthermore, it is well estab-

lished that “a motion to amend should be denied if there is an ‘apparent or declared reason-—such as undue delay ... or futility of amendment.” Dluhos v. Floating and Abandoned Vessel, Known as N.Y., 162 F.3d 63, 69 (2d Cir.1998) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). As to undue delay, “[w]hen the moving party has had an opportunity to assert the amendment earlier, but has waited until after judgment before requesting leave, a court may exercise its discretion more exactingly.” State Trading Corp. of India, Ltd. v. Assuranceforeningen Skuld, 921 F.2d 409, 418 (2d Cir.1990). “[A] busy district court need not allow itself to be imposed upon by the presentation of theories seriatim.” Id. (internal quotation marks omitted). As to futility of amendment, it is typically the case that such futility is discussed in the context of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) where it is argued that a plaintiffs proposed amendment fails to state a claim upon which relief can be granted as a matter of law. See, e.g., Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir.2002) (“[a]n amendment to a pleading will be futile if a proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6)”). However, the principle is no less applicable in the context of a motion to amend brought while a motion for summary judgment is pending where “even if the amended complaint would state a valid claim on its face, the court may deny the amendment as futile when the evidence in support of the plaintiffs proposed new claim creates no triable issue of fact and the defendant would be entitled to judgment as a matter of law under Fed. R. Civ. P. 56(c).” Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir.2001). See also Azurite Corp. v. Amster & Co., 844 F.Supp. 929, 939 (S.D.N.Y.1994) (rejecting plaintiffs motion to amend where proposed amendment “would be futile because the factual foundations of [its] new allegations are insufficient, as a matter of law, to withstand defendants’ motion for summary judgment”), aff'd, 52 F.3d 15 (2d Cir.1995).

In support of his motion to amend, plaintiff has submitted his proposed amended complaint for our review. See First Feffer Decl. Ex. B (“Proposed Am. Compl.”). As plaintiff describes in the letter submitted together with his moving papers, the “new material” in his proposed amended complaint largely concerns two broad issues. Pl.’s Mot. Letter of Sept. 19, 2011 1. First, one set of the new allegations is addressed to “demonstrating the [Demand Review Committee]’s lack of independence and good faith based solely on a careful reading of the materials submitted by defendants in support of their pending motion.” Id. See Proposed Am. Compl. ¶¶ 2, 4, 20, 21, 55-59. Second, the other set of new allegations is intended to squarely raise “the legality of the ‘echo voting’ procedures employed to assist Citigroup[ ] in completing its deal with Legg Mason, Inc.” PL’s Mot. Letter of Sept. 19, 20111-2. Instead of challenging the legality of echo voting through a theory of nondisclosure, as in Claims II and III of the complaint, plaintiff now wishes to argue that defendants breached their fiduciary duties to plaintiff and other shareholders in permitting echo ' voting because the practice is illegal under federal and state law. See Proposed Am. Compl. ¶¶ 3, 4, 28, 30(a), 49, 50, 58(b), 66. In an effort to cover his proverbial bases, plaintiff explains that while he believes his refashioned echo-voting claim is direct he also pleads it in the alternative as derivative. See id. at ¶ 66.

Addressing these two sets of new allegations in reverse order, we are somewhat incredulous at plaintiffs efforts to revive his original echo-voting claims under a new theory of liability. Going back in time almost six years, in a pre-motion letter, dated September 29, 2006, defendants sought leave to file a motion to dismiss the complaint, identifying a number of reasons for dismissing Claims II and III, two of which are relevant here. See Defs.’ PreMot. Letter of Sept. 29, 2006 2-3. First, defendants argued that the claims must be dismissed because, contrary to plaintiffs characterization, they were derivative and plaintiff had expressly chosen not to address them in the demand letter to the board. See id. at 3. See also Demand Letter 1 n. 1 (observing “shareholder approval does not appear to have been obtained properly” before declaring that “as this issue gives rise to direct, rather than derivative, claims it will not be addressed in this letter”). Second, defendants asserted that the claims failed because the proxy statement was not misleading as a matter of law. See Defs.’ Pre-Mot. Letter of Sept. 29, 2006 3. In particular, defendants stated, “the [p]roxy [statement was not required to include legal conclusions regarding the validity of the voting system.” Id. Having been put on notice of these arguments, plaintiff chose not to amend the complaint either before defendants filed their motion to dismiss or after-wards as was still his right under Federal Rule of Civil Procedure 15(a)(1)(B).

The ensuing decisions have vindicated defendants’ position at the outset of this litigation. In Halebian I, we dismissed Claims II and III because inter alia we agreed with defendants that the claims, though styled as direct, were actually derivative in nature and accordingly failed because plaintiff did not make a demand with regard to them prior to filing suit. See 631 F.Supp.2d at 301-303. On appeal, the Second Circuit considered this rationale and affirmed our dismissal of Claims II and III on that basis. See Halebian IV, 644 F.3d at 125 (“[i]n Halebian II, we agreed with the defendants and the district court, classifying the second and third claims asserted in the plaintiffs complaint as derivative by looking to Massachusetts law”). In addition, the Second Circuit also seized on the other of the defendants’ arguments discussed above, reasoning that because “the [b]oard was apparently not of the view, nor had it been told, that using a Citigroup-affiliated service agent other than a broker-dealer to echo vote shares violated the ICA or Massachusetts law, or indeed any law, its failure to inform shareholders to the contrary does not appear ... to have been potentially false and misleading so as to be cognizable” as a nondisclosure claim “under Massachusetts or federal law.” Halebian II, 590 F.3d at 210.

While plaintiff begs to be excused from his “inartfully drafted initial complaint,” under these circumstances, we easily exercise our discretion to deny the motion to reframe plaintiffs echo-voting claims. First Feffer Decl. ¶ 7. As the Second Circuit found in Halebian II, “[t]he essence of [plaintiff’s [original] elaim[s] [were] not that the defendants failed to inform him and others similarly situated that the voting procedures incorporated echo voting, but that echo voting [was] unlawful.” Id. at 209. In the wake of having judgment entered against him and the dismissal of his echo-voting claims having been affirmed on multiple grounds that were brought to his attention by defendants’ prior to their moving to dismiss the complaint, plaintiff cannot now raise again the central thrust of his prior allegations (ie. that echo voting is illegal) merely draped in a different legal mantle that he now thinks with the benefit of hindsight would have better withstood judicial scrutiny. When viewed in this historical context, we are not sympathetic whatsoever to plaintiffs protestations that his motion to amend is not brought after undue delay. See McKinnon v. Hermes of Paris, Inc., No. 06 Civ. 1001(NRB), 2007 WL 1098707, at *4 n. 5 (S.D.N.Y. Apr. 10, 2007) (denying motion to amend and stating “[pjlaintiff was given notice of defendant’s intention to move for judgment on the pleadings by defendant’s letter to the Court dated September 29, 2006” in which “defendant summarized why it believed these causes of action were legally deficient” before concluding that “having not availed herself of ... opportunities [to amend her complaint], and by requiring defendant to incur the legal fees—and defendant’s counsel to expend the time—required to file this motion, plaintiff has forfeited her right to amend the complaint”).

As to the other set of new allegations in the proposed amended complaint that bear on the defendants’ independence and/or their good faith in deciding after reasonable inquiry that maintenance of this action was not in the best interests of the Trust, we similarly exercise our discretion and deny plaintiffs motion to amend. As discussed in Part III.C.3 and 4, infra, these new allegations and the evidence that plaintiff brings to our attention in support of them do not alter our conclusion that defendant is entitled to summary judgment, rendering the contemplated amendment futile.

B. Plaintiffs Motion for Discovery

We now turn to plaintiffs motion for discovery. In light of the direction from the Second Circuit to convert defendants’ motion to dismiss into one for summary judgment, we analyze the plaintiffs application under Federal Rule of Civil Procedure 56(d), formerly 56(f), which provides:

If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition [to a motion for summary judgment], the court may:

(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations or to take discovery; or

(3) issue any other appropriate order.

Fed. R. Civ. P. 56(d). See also Fed. R. Civ. P. 56 advisory committee notes (discussing 2010 amendments and noting “[subdivisión (d) carries forward without substantial change the provisions of former subdivision (f)”). “Rule 56(f) is the safety valve that, when satisfied, prevents the entry of summary judgment against a party where there is good reason to believe that evidence sufficient to defeat the motion for summary judgment exists, but the non-moving party legitimately needs discovery to get that evidence.” Emigra Group, LLC v. Fragomen, Del Rey, Bemsen & Loewy, LLP, 612 F.Supp.2d 330, 363 (S.D.N.Y.2009). “[A]s [the Second Circuit] often ha[s] said, a party resisting summary judgment on the ground that it needs discovery in order to defeat the motion must submit an affidavit showing (1) what facts are sought to resist the motion and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts.” Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir.1999). The requirement of a sufficient affidavit or declaration is a strict one. See id. at 43-44 (“the failure to file such an affidavit is fatal ... even if the party resisting the motion for summary judgment alluded to a claimed need for discovery in a memorandum of law”); Paddington Partners v. Bouchard, 34 F.3d 1132, 1137 (2d Cir.1994) (“[a] reference to Rule 56(f) and to the need for additional discovery in a memorandum of law in opposition to a motion for summary judgment is not an adequate substitute for a Rule 56(f) affidavit”). Further, “a bare assertion that the evidence supporting plaintiffs allegations is in the hands of the moving party is insufficient to justify the denial of summary judgment.” Jasco Tools, Inc. v. Dana Corp., 574 F.3d 129, 149 (2d Cir.2009). See also Emigra, 612 F.Supp.2d at 363 (“Rule 56(f) requires far more than simply a claim that the non-moving party has not had or wants more discovery”). “Even where a Rule 56(f) motion is properly supported, a district court may refuse to allow additional discovery ‘if it deems the request to be based on speculation as to what potentially could be discovered.’ ” Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Stroh Cos., Inc., 265 F.3d 97, 117 (2d Cir.2001) (quoting Paddington, 34 F.3d at 1138).

With that said, it is only a rare case in which summary judgment may be granted against a plaintiff who has not been permitted to conduct discovery. Hellstrom v. U.S. Dep’t of Veterans Affairs, 201 F.3d 94, 97 (2d Cir.2000). However, while such a case is rare, it is also true that “the party opposing summary judgment is not automatically entitled to discovery.” Seneca Beverage Corp. v. Healthnow N.Y., Inc., 200 Fed.Appx. 25, 27 (2d Cir.2006). See also Haran v. Dow Jones & Co., Inc., No. 99-9143, 2000 WL 777982, at *3 (2d Cir.2000) (unpublished opinion) (rejecting argument that district court “erred in deciding the motion for summary judgment without providing [plaintiffs] with an opportunity to conduct discovery” because “mere references to the lack of discovery are insufficient ... plaintiffs failed to identify the specific facts they needed to resist defendants’ motion or how those facts would have reasonably created a genuine issue of material fact”). Moreover, “it is clear that a plaintiff cannot defeat a motion for summary judgment by merely restating the conclusory allegations contained in his complaint, and amplifying them only with speculation about what discovery might uncover.” Contemporary Mission, Inc. v. U.S. Postal Serv., 648 F.2d 97, 107 (2d Cir.1981) (affirming denial of Rule 56(f) motion and grant of summary judgment motion). “An opposing party’s mere hope that further evidence may develop prior to trial is an insufficient basis upon which to justify the denial of the motion” for summary judgment. Id. at 107. See also Tennenbaum Capital Partners LLC v. Kennedy, No. 07 Civ. 9695(LTS), 2009 WL 2913679, at *5 (S.D.N.Y. Sept. 11, 2009), aff'd, 372 Fed. Appx. 180 (2d Cir.2010) (citing Contemporary Mission and stating “[nonmovant] proffers no good faith basis for [his] belief that discovery would produce any information contrary to [movant]’s declarations and the Court will not permit [nonmovant] to engage in a fishing expedition based on mere speculation”).

In moving for discovery, plaintiff repeats an application that he originally made in the course of opposing defendants’ motion to dismiss. See Pl.’s Opp’n 11-18 (arguing that plaintiff was entitled to discovery). In Halebian I, we denied that application, stating “[a]bsent a specific allegation in the complaint as to why the [b]oard was not disinterested, nor why the demand was refused, and absent a specific argument from plaintiff as to what more discovery would yield, we decline to allow plaintiff to avail himself of a premature opening of the floodgates to discovery in an effort to cure the deficiencies in the complaint.” 631 F.Supp.2d at 298. In Halebian IV, the Second Circuit specifically addressed the question of discovery in remanding this case to us, stating “[although [plaintiff] contended in the district court, and does so again on appeal, that he should have been afforded the opportunity to conduct additional discovery in order to rebut the [b]oard’s filing, under both ... Rule 56 and [§ ] 7.44, the availability of further discovery is a matter within the district court’s discretion.” 644 F.3d at 133. The Second Circuit continued to observe:

While we decline to decide the question, the district court may well have acted within its discretion in denying the plaintiffs request for discovery, particularly in light of the defendants’ submission of “thousands of pages detailing the backgrounds of the directors at issue, as well as the extensive efforts made by the independent counsel in preparing its review of the demand for the committee and the [b]oard.” Halebian I, 631 F.Supp.2d at 298. We nonetheless think that a reevaluation of any such application by the plaintiff for more discovery in light of Rule 56 case law and procedures would be advisable on remand.

Id. With this direction from the Second Circuit in mind, we turn to analyze plaintiffs renewed application.

We begin our analysis by considering the scope of the discovery that plaintiff seeks. In a declaration accompanying plaintiffs moving papers, plaintiffs counsel insists that “[t]he discovery needed” on the issues of defendants’ independence, good faith, and reasonableness of inquiry includes: (1) “all documents reviewed by or on behalf of the DRC”; (2) “all minutes, notes, or transcriptions of DRC meetings”; (3) “all notes or transcriptions of interviews, as well as interview outlines and all communications between the DRC or its attorneys and the interviewee or any person acting on behalf of the interviewee”; (4) “all drafts of the ... report”; and (5) “depositions of the DRC members as well as at least some of the interviewees” whose identity “cannot be ascertained until after a review of documents.” First Feffer Decl. ¶ 4. In addition, plaintiffs counsel suggests that it is necessary to “test” the independence of the DRC’s retained counsel and implicitly the extent to which such retained counsel can buttress the independence of defendants and that he will accordingly require: (1) “time, expense, and billing records concerning the DRC engagement”; (2) “all documents sent to or received from the members of the DRC or any of the other defendants or their counsel”; (3) “documents sufficient to establish the percentage of similar engagements in which a committee represented by counsel recommended that a derivative action continue”; and (4) “depositions from one or more of the attorney’s working on the DRC engagement, as determined by plaintiff following document review.” Id. at ¶ 5. Finally, plaintiffs counsel asserts that “[p]laintiff believes that the substance of plaintiffs claims is also an appropriate area of discovery” at this stage of the proceedings, possibly advancing this position, though it is not clear, on the theory that defendants’ alleged breach of their fiduciary duties reflects on their independence. Id. at ¶ 6.

The discovery sought by plaintiff is facially unreasonable in its breadth and is not in any meaningful way tailored to the issues presented in defendants’ converted motion for summary judgment: namely, whether defendants were independent and acted in good faith and after a reasonable inquiry in rejecting the requests of the demand letter. Without regard for the narrowness of these questions, plaintiff expressly seeks discovery on his underlying cause of action despite asserting that “[t]he discovery requested ... is the minimum required to test defendants’ independence, as well as the reasonableness and good faith of the [DRCJ’s investigation.” Pl.’s Reply 3 (emphasis added). The unreasonableness of plaintiffs application is further heightened in light of the considerable disclosure that defendants provided plaintiff in the form of the report and its dozens of exhibits, which together with the proxy statement provide considerable information regarding the background of defendants and their service as trustees, all of which is material to the threshold evaluation of their independence. See, e.g., Report Ex. 13 (setting out defendants’ answers to the Second Questionnaire). Plaintiffs general failure to specify the particular facts that he seeks from discovery—especially in light of the information that is already available to him—renders his application deficient as to the initial requirement for receiving relief under Rule 56(d), namely that the nonmovant show “what facts are sought.” Gurary, 190 F.3d at 43.

Plaintiffs apparent inability to identify the facts that he seeks with any particularity reveals that his motion for discovery is a de facto application for a fishing expedition. After articulating a number of arguments that are constructed from facts already in his possession and that are intended to assail defendants’ independence, plaintiff merely asserts that he “expects discovery to uncover other examples of defendants putting the interests of Citigroup before those of the investors.” Pl.’s Br. 5. In Part III.C below, we address these arguments and the others that plaintiff raises in his various submissions and find them insufficient to create a dispute as to a material fact sufficient to withstand the converted motion for summary judgment. In the absence of any facts or other than conclusory allegations from which to infer that defendants were not independent and that their decision to reject the requests in the demand letter was not made in good faith and after a reasonable inquiry, plaintiffs confidence that discovery will reveal any evidence favorable to him at all is merely speculation. See Paddington, 34 F.3d at 1138 (“[a] court can reject a request for discovery, even if properly and timely made through a Rule 56(f) affidavit, if it deems the request to be based on speculation as to what potentially could be discovered”).

In arriving at this conclusion, we find a counterexample illuminating. In Seneca Beverage Corp. v. Healthnow New York, Inc., 200 Fed.Appx. 25, 28 (2d Cir.2006), the Second Circuit vacated a grant of summary judgment against a plaintiff, which had not been afforded the opportunity to take any discovery, noting that “under Rule 56(f), all that is required is for [a plaintiff] to point to potential facts that might raise an issue of material fact, that it has been unable to obtain without discovery.” In support of its motion pursuant to Rule 56(f), the plaintiff in Seneca had submitted affidavits from two of its employees, who both asserted that they recalled discussions with defendant, in which at least one case the employee was personally involved, that could bear on the possible oral modification of a contract underlying plaintiffs claim. See id. Remanding the case to permit discovery about these negotiations, the Second Circuit found that the “testimony [of the two employees is] sufficient to show that [plaintiffl’s requested discovery is no mere fishing expedition.” Id. Here, in contrast to Seneca, plaintiffs counsel merely identifies in a declaration the legal issues that are implicated as a threshold matter in defendants’ converted motion for summary judgment and then requests all discovery that is remotely likely to touch upon these issues.

In only one place in his moving papers does plaintiff actually identify any particular facts that he seeks to learn from discovery. After listing and briefly exploring in his reply papers seven reasons to doubt the independence of the defendants, which reasons are based on inferences drawn from information in the proxy statement and/or the report, plaintiff asserts that he “is confident that discovery will uncover further proof that defendants are not independent and that the DRC’s investigation was less than the vigorous examination contemplated under Massachusetts law.” Pl.’s Reply 5. Following this expression of confidence, plaintiff continues:

For example, the [r]eport vaguely states that “several [defendants] reported that at some time in recent years, the compensation [they] received for their service ... on the [b]oard constituted a significant portion (between 25% and 50%) of their annual income.” ... How many are “several”? What time period is “at some time in recent years”? Does compensation mean only a defendant’s share of the $860,000 paid currently for acting as trustee? Or does it include a defendant’s share of the $3,600,000 in retirement benefits?

Id. at 5-6. As an initial matter, we set aside for the sake of argument the fact that plaintiff raises these questions in a memorandum of law and not an affidavit or declaration as required under Rule 56(d), which is alone a sufficient reason to disregard them. See Gurary, 190 F.3d at 43-44. Proceeding arguendo, we interpret the passage as a request for discovery on three facts: (1) the number of defendants who stated that their compensation for serving as trustees constituted between 25% and 50% of their annual income; (2) the time period during which this was the case for each defendant; and (3) whether in answering this question defendants included their share of retirement benefits in their compensation. This particular application, unlike the remainder of plaintiffs motion for discovery, obviously does not suffer from a lack of specificity as to the facts that are sought. However, as discussed in Part III.C.3.d.i below, none of the possible answers to these questions would raise a dispute of material fact bearing on the only possibly relevant legal issue: whether the defendants are independent under the law of Massachusetts. Accordingly, discovery into these issues would serve no purpose other than to delay these proceedings, which stretch into their seventh year, and is denied for that reason.

Finally, in exercising our discretion to decide whether plaintiff is entitled to discovery, we do not dispute his argument that federal law governs the inquiry. See Pl.’s Opp’n 12 (citing Fagin v. Gilmartin, 432 F.3d 276, 285 n. 2 (3d Cir.2005) (holding “discovery in the demand-refused context is procedural, so federal law applies”)). See also In re Boston Scientific Corp. S’holders Litig., No. 02 Civ. 247(AKH), 2007 WL 1696995, at *5 (S.D.N.Y. June 13, 2007) (citing Fagin). However, in. exercising our discretion under federal law to deny plaintiffs application, we take some measure of confidence from the fact that our decision is supported by state law, which plainly contemplates that discovery need not occur in all cases before a court may decide whether to allow a derivative suit to proceed. Section 7.44(d) provides that “[a]ll discovery proceedings shall be stayed upon the filing by the corporation of the motion to dismiss and the filing required by this subsection until the notice of entry of the order ruling on the motion” before articulating an exception whereby “the court, on motion and after á hearing and for good cause shown, may order that specified discovery be conducted.” Mass. Gen. Laws ch. 156D, § 7.44(d). See also id. at cmt. 2 (“[discovery is stayed during the pendency of the motion to dismiss, subject to the ability of the court to allow limited discovery for good cause shown”). Indeed, in a very recent opinion, Justice Bernard Fried of the New York Supreme Court, New York County, held that the discovery provision of § 7.44 “is an integral part of the Massachusetts statute governing derivative proceedings,” thus leading to its application in the forum court under the internal affairs doctrine and resulting in a presumptive stay of all discovery proceedings in the absence of good cause. Curbow Family LLC v. Morgan Stanley Inv. Advisors, 36 Misc.3d 889, 892-93, 950 N.Y.S.2d 845 (N.Y.Sup.Ct.N.Y.Cnty.2012). In fact, if state procedural law did govern here, then we would find without hesitation that plaintiff has failed to show, good cause why he should be permitted to conduct specified discovery, not least of all because he has almost without exception failed to be specific.

C. Defendants’ Converted Motion for Summary Judgment

Having disposed of plaintiffs’ motions to amend his complaint and for discovery, we now address defendants’ converted motion for summary judgment.

1. Standard of Review

A motion for summary judgment is appropriately granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In this context, “[a] fact is ‘material’ when it might affect the outcome of the suit under governing law,” and “[a]n issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir.2007) (internal quotation marks and citations omitted). On a motion for summary judgment, “ ‘[t]he principles governing admissibility of evidence do not change,’ ” although we are afforded “ ‘broad discretion in choosing whether to admit evidence’ ” into the record before us. Presbyterian Church Of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 262 (2d Cir.2009) (quoting Raskin v. Wyatt Co., 125 F.3d 55, 65-66 (2d Cir.1997)). “In assessing th[at] record to determine whether there is a genuine issue [of material fact] to be tried, we are required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir.2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In the context of a motion for summary judgment, “[t]he moving party bears the initial burden of demonstrating ‘the absence of a genuine issue of material fact.’ ” F.D.I.C. v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir.2010) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Where that burden is carried, the non-moving party “must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Id. (citing Anderson, 477 U.S. at 249, 106 S.Ct. 2505). The non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts ...