Imagine the derivative action that will go against

Imagine the derivative action that will go against the new management if they win and try this stunt. Make the prior derivative action against the current management look like child's play. If what you believe is what the 13Ds have done and intend to do, the 13Ds should be aware that this will not go down without a huge fight, including lawsuits against them. Their victory will likely be undoubtedly obliviated by claw backs and their paying back every penny, plus attorney's fees and costs. This is not a threat because you are making a hypothetical theory, but I am playing along with your hypothetical theory here. (And, disclaimer: This is not legal advice).