concurring in the judgment.
There are two petitioners in this case, the Mutual Fund and its investment adviser. Even if the former could properly assert an action against the latter under § 36(b) of the Investment Company Act of 1940, 84 Stat. 1428, 15 U. S. C. §80a-35(b) (1982 ed.) — an action which in turn could be “derivatively” brought by a security holder — in my opinion it would nevertheless remain clear that respondent, as a shareholder of the Fund, could maintain this action without first making a demand on the directors of the Fund to do so.
The rule that sometimes requires a shareholder to make an appropriate demand before commencing a derivative action *543has its source in the law that gives rise to the derivative action itself. Rule 23.1 of the Federal Rules of Civil Procedure merely requires that the complaint in such a case allege the facts that will enable a federal court to decide whether such a demand requirement has been satisfied; Rule 23.1 is not the source of any such requirement. The plain language of the Rule makes that perfectly clear; the Rule does not require a demand, it only requires that the complaint allege with particularity what demand if any has been made on the corporation.1 Moreover, the history of Rule 23.1 and its predecessors, which the Court recites ante, at 529-533, demonstrates that the demand requirement was not created by the Rule, but rather by a decision of this Court, Hawes v. Oakland, 104 U. S. 450 (1882). When the current Rule’s predecessor was promulgated shortly after Hawes, it did not create a demand requirement — that had already been done by Hawes. Rather it operated to ensure that the pleadings would be adequate to enable courts to decide whether the applicable demand requirement had been satisfied. Thus the *544Rule concerns itself solely with the adequacy of the pleadings; it creates no substantive rights.2
In this case the respondent fully complied with Rule 23.1. Having made no effort to obtain action from the directors, he simply pleaded that no demand had been made.3 The question in this case is not whether the complaint complies with the pleading requirements in Rule 23.1.4 Rather, the ques*545tion is whether the federal statute that expressly creates a cause of action that the shareholder may maintain on behalf of the mutual fund implicitly conditions that express right on an unmentioned intracorporate procedural requirement. For two reasons it is clear to me that it does not.
First, the text and legislative history of the statute are inconsistent with a demand requirement. No such condition is mentioned in the statute, and it is a matter of sufficient importance to warrant express mention if Congress had intended it. Instead, the express terms of the statute are inconsistent with such a requirement. A demand requirement is premised upon the usual respect courts accord the managerial prerogatives of directors, see n. 2, supra; however, in § 36(b) Congress explicitly rejected the usual rule. As the Court has previously recognized, and acknowledges again today, § 36(b) stands in contrast to the rest of the Act in that unlike its other provisions, § 36(b) limits the usual discretion accorded directors by providing that the directors’ position shall be given only “such consideration by the court as is deemed appropriate under all the circumstances.” See ante, at 539-541; Burks v. Lasker, 441 U. S. 471, 484 (1979).5 Congress laid out its own test for consideration of the directors’ position in § 36(b), rather than relying on a demand requirement and the usual respect for managerial decision-making which it embodies.
The reason for congressional rejection of the usual deference paid directorial expertise and prerogatives is clear enough. The history of the statute is replete with findings that directors could not be relied upon to control excessive advisory fees. See ante, at 537-541; Wharton School Study of Mutual Funds, H. R. Rep. No. 2274, 87th Cong., 2d Sess., 30, 34, 66-67 (1962); Securities and Exchange Commission, Public Policy Implications of Investment Company Growth, H. R. Rep. No. 2337, 89th Cong., 2d Sess., 128-148 (1966); *546Hearings on S. 1659 before the Senate Committee on Banking and Currency, 90th Cong., 1st Sess., 1193-1200 (1967); S. Rep. No. 91-184, pp. 2, 5-6 (1969). In light of these findings, it cannot be maintained that Congress intended that the very directors who had failed to control excessive fees be involved in the decision whether to challenge those fees.
Moreover, Congress specifically considered the demand issue, in a predecessor version of § 36(b), passed by the Senate in 1968, which required that a security holder make a demand on the Securities and Exchange Commission prior to filing suit. S. 3724, 90th Cong., 2d Sess., §8(d)(6) (1968). After further consideration this requirement was deleted. Thus, it cannot be said that Congress was unaware of the demand concept, yet it decided not to impose it even with respect to the SEC.
Second, a demand requirement would serve no meaningful purpose and would undermine the efficacy of the statute. As noted above, Congress intended to authorize this type of shareholder action even though the contract between the fund and its investment adviser had been expressly approved by the independent directors of the fund. Since the disinterested directors are required to review and approve all advisory fee contracts under §15 of the Act, 15 U. S. C. § 80a-15 (1982 ed.), a demand would be a futile gesture after the directors have already passed on the contract. Because the directors may not terminate a suit, see Burks, supra, at 484, the only effect of a demand requirement would be to delay the commencement of the suit. That in turn would reduce the effectiveness of the Act as a vehicle for protecting investors, since § 36(b)(3) limits recovery to actual damages incurred beginning one year prior to commencement of suit. Thus the demand process would permit investment advisers to keep several months of excessive fees — a consequence squarely at odds with the purposes of the Act and hence congressional intent.
*547I find nothing in the statute or its history supporting the notion that Congress intended to condition the maintenance of a § 36(b) action on any antecedent intracorporate demand procedure. I would therefore affirm the judgment of the Court of Appeals without reaching the question whether the Fund itself could maintain an action under § 36(b).
“In a derivative action brought by one or more shareholders or members to enforce a right of a corporation or of an unincorporated association, the corporation or association having failed to enforce a right which may properly be asserted by it, the complaint shall be verified and shall allege (1) that the plaintiff was a shareholder or member at the time of the transaction of which he complains or that his share or membership thereafter devolved on him by operation of law, and (2) that the action is not a collusive one to confer jurisdiction on a court of the United States which it would otherwise not have. The complaint shall also allege with particularity the efforts, if any, made by the plaintiff to obtain the action he desires from the directors or comparable authority and, if necessary, from the shareholders or members, and the reasons for his failure to obtain the action or for not making the effort. The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interest of the shareholders or members similarly situated in enforcing the right of the corporation or association. The action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to shareholders or members in such manner as the court directs.” Fed. Rule Civ. Proc. 23.1.
This construction of the Rule is consistent with the Rules Enabling Act, which states that the federal “rules shall not abridge, enlarge or modify any substantive right,” 28 U. S. C. §2072. The thrust of petitioners’ position, and our prior eases, is that demand requirements enhance the role of managerial prerogatives and expertise by requiring the submission of disputes to management. See United Copper Securities Co. v. Amalgamated Copper Co., 244 U. S. 261, 263-264 (1917); Delaware & Hudson Co. v. Albany & Susquehanna R. Co., 213 U. S. 435, 446 (1909); Hawes v. Oakland, 104 U. S. 450, 457 (1882). It cannot be doubted that this type of requirement, designed to improve corporate governance, is one of substantive law. See Walker v. Armco Steel Corp., 446 U. S. 740 (1980); Ely, The Irrepressible Myth of Erie, 87 Harv. L. Rev. 693 (1974). Therefore, there is substantial doubt whether the Rule could create such a requirement consistently with the Rules Enabling Act. See Mississippi Publishing Corp. v. Murphree, 326 U. S. 438, 445-446 (1946); Sibbach v. Wilson & Co., 312 U. S. 1, 14 (1941). Since the Rule does not clearly create such a substantive requirement by its express terms, it should not be lightly construed to do so and thereby alter substantive rights. See Hanna v. Plumer, 380 U. S. 460, 470-471 (1965).
Paragraph 14 of respondent’s complaint states: “No demand has been made by the plaintiff upon the Fund or its directors to institute or prosecute this action for the reason that no such demand is required under § 36(b) of the Act. Moreover, all of the directors are beholden to R&T for their positions and have participated in the wrongs complained of in this action. Their initiation of an action like the instant one would place the prosecution of this action in the hands of persons hostile to its success.” App. 7ar-8a.
The Court does not reject this reading of the Rule, but rather leaves the question open. See ante, at 532-533, n. 8. In my judgment the Rule and its history are sufficiently clear that the question left open by the Court should be decided, rather than embarking on the more difficult private right of action analysis in which the Court engages. This is all the more justified since, in my view, there could be no demand requirement irrespective of the correct answer to the private right of action question.
See also S. Rep. No. 91-184, p. 15 (1969).