What is the test for dismissing a derivative action for failing to comply with Rule 23.1?

² We recognize that our decision in Potter v. Hughes , 546 F.3d 1051, 105455 (9th Cir. 2008), suggests that where shareholders have failed to comply with Rule 23.1, and their derivative suit is also plagued by an independent jurisdictional defect, we can choose either ground as a basis for dismissing their action. Because in this case we can cure any jurisdictional problems, however, we have no need to rely on Potter.

² We recognize that our decision in Potter v. Hughes , 546 F.3d 1051, 105455 (9th Cir. 2008), suggests that where shareholders have failed to comply with Rule 23.1, and their derivative suit is also plagued by an independent jurisdictional defect, we can choose either ground as a basis for dismissing their action. Because in this case we can cure any jurisdictional problems, however, we have no need to rely on Potter.