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P was a stockholder of XTO Energy Inc. P filed a derivative action alleging that D's board committed waste by failing to adopt a plan that could have made its bonus payments tax deductible. Compensation awarded to corporate officers in excess of $1 million per year is tax deductible only if paid pursuant to §162(m) of the Internal Revenue Code. From 2004 - 2007, D paid executive bonuses totaling more than $130 million, and those payments were not tax deductible. The D board was aware that, under a qualified Section 162(m) plan, bonuses could be tax deductible, but it did not think its compensation decisions should be 'constrained' by such a plan. Shortly after P filed her complaint, D's board approved a Section 162(m) plan which was also approved by its stockholders. D never made use of the plan because it merged with and into a subsidiary of Exxon on June 25, 2010. P agreed to dismiss her complaint, as moot but she then filed a motion seeking $1 million in attorneys' fees, arguing that the complaint benefitted the company by causing D to adopt a Section 162(m) plan. The Court denied the motion. P appealed.

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