In the case of Jill S. Kamen v. Kemper Financial Services, Inc., et al., 1990, Kamen sued Kemper and its directors for allegedly violating their fiduciary duties by investing in a failing bank without proper investigation into the bank's financial status. The Supreme Court ruled that federal law does not require demand on directors before filing a derivative suit under Investment Company Act of 1940 (ICA). However, it held that courts should apply the Federal Rule of Civil Procedure regarding derivative suits which requires shareholders to make a pre-suit demand on directors unless such demand would be futile or useless. In this case, since Kamen did not make any pre-suit demand nor provided reasons why such action would have been futile, her claim was dismissed.

The dissenting opinion in the case of Jill S. Kamen v. Kemper Financial Services, Inc., et al., argued that the majority's decision to dismiss Kamen's derivative suit was incorrect and overly restrictive. The dissenters believed that the court should have allowed Kamen to proceed with her lawsuit without first demanding action from Kemper’s board of directors because this requirement is not explicitly stated in Investment Company Act or Rule 23.1, which governs derivative suits under federal law. They also pointed out that such a demand would be futile given that most of the board members were defendants themselves and unlikely to sue themselves for alleged misconducts they committed as fiduciaries on behalf of shareholders like Kamen.