The chemical company has connected six Cumberland County homes contaminated with forever chemicals to public water lines and says it has identified 104 more that could benefit.
Representatives of the Chemours chemical company are expected to show up at Laura Adams’ Cumberland County home next week to walk her through the policies, procedures and potential cost of connecting to public water under a new pilot program.
Adams found out in June that the well water at her home on Anniston Street – in the Black Bridge subdivision between Hope Mills and Parkton in Cumberland County – is polluted with per-and polyfluoroalkyl substances known as PFAS, or forever chemicals.
Since then, the Chemours Fayetteville Works plant has been supplying Adams and thousands of other people in Cumberland, Robeson and Bladen counties with either bottled water, under-the-sink reverse osmosis filtration systems or whole-house granular activated carbon systems to keep them from drinking their potentially cancer-causing well water.
Now, as part of the pilot program, Chemours has been reaching out to some homeowners to determine whether they qualify to have their homes connected to public water lines owned by the Fayetteville Public Works Commission. So far, six homes have been connected, Chemours spokeswoman Lisa Randall said.
- $5m Kiisi Fund opens development scheme with focus on human capital.
- BB Fakae, other highly trusted citizens put in charge.
Oniland is witnessing quiet revolution outside the ever-controversial schemes such as the Niger Delta Development Commission (NDDC) or the clean up exercise, but from the activities of its sons that died as martyrs led by Ken Saro-Wiwa.
The then late head of state, Sanni Abacha, may have hanged Saro-Wiwa and other Ogoni-9 in 1994 but the worldwide troubles from it did not allow the king to sleep. At the end, the martyrs have won huge enablement that have made them to launch a development fund that is now creating a silent revolution especially in human capital development and other physical infrastructure projects.
The $5m or N2bn seed capital came from $15.5m which families of Saro-Wiwa and the others won in New York in 2009. They used the fund to create a Foundation that is strictly managed along international standards in order to keep delivering value in the area to all Ogoni.
The scheme is managed by an environmentalist, lawyer, former lawmaker, and recently the secretary to Imo State government, Uche Onyeagucha, who hails from Obinze, Owerri West. A true Port Harcourt boy, he worked with Oronto Douglas and Ken Saro-Wiwa to bring justice to Ogoniland on the vast environmental devastation and injustice done to the area. He suffered several detentions in his career of fighting against military dictatorship. He served as legal adviser to the Ijaw Youth Council and founder-member of Environmental Rights Action/Friends of the Earth Nigeria, as well as founder, Right to Know, among others. He is chairman of the Foundation.
Now, the Foundation has a Governance/Programme Subcommittee overseen by one of Africa’s most celebrated and trusted education transformers and an international researcher of repute, BB Fakae, who revived the Bori Polytechnic and was later drafted for eight years to rescue the then traumatised and degenerated Rivers State University of Science and Technology, now Rivers State University.
Fakae hails from Kbangha in Nyokhana district of Khana LGA, Rivers State. He was a Commonwealth Academic Staff Scholar and lecturer at the University of Nigeria Nsukka (UNN), before transferring his service to his home state starting at the RSUST. He is on record to have transformed the Bori Poly to a strong institution in Rivers State before taking the RSUST to the best state-owned university in Nigeria with earth-shaking legacies such as 1000 computer centre, online examinations, total automation of admission, results, payments, and hostel allocations and student identification.
Other board members include tested men and women such as Chet Tchozewski (President of the RTC Impact Fund), Deezia Hannah Karikpo, Lebatam B. Ndegwe (PhD), a public health sector/toxic exposure expert who is now the project director. It looks like who are put in charge of the foundation is as crucial as the fund itself because of the high propensity for fraud, waste and mismanagement in Nigeria’s national life.
Now, Kiisi has been sponsoring development projects in Ogoni made up of four local council areas of Khana, Gokana, Tai and Eleme through some accredited civil society organisations (CSOs). They later changed their model and rather created a foundation to directly execute various programmes and projects especially in human capital development and health.
Background of the fund
Ogoni land is now known globally for struggle over environmental disasters. Studies show that in 15 years from 1976 to 1991, there were reportedly 2, 976 oil spills of about 2.1 million barrels of oil in Ogoniland, accounting for about 40 percent of the total oil spills in Shell worldwide.
The struggle of Saro-Wiwa and other Ogoni activists eventually led to the cessation of oil production activities in the area in 1993, but widespread environmental damage was already done.
According to a handbook, one of the first philanthropic actions of the plaintiffs of the 2009 Wiwa vs. Shell lawsuit was the creation of the Kiisi Trust Fund with $5 million out of the $15.5 million out-of-court settlement in the U.S. District Court for the Southern District of New York.
At the time of the settlement, the Ogoni plaintiffs stated that the Kiisi Trust “should stand as one legacy of the labours of our heroes past.” This incredibly generous and selfless act by the plaintiffs was intended to be used by the Kiisi Trust Fund to support programmes in education, health, community development, and other benefits for the Ogoni people and their communities, including educational endowments, skills development, agricultural development, women’s programs, small enterprise support, and adult literacy.
In 2016, according to records made available to BusinessDay-Sunday, the Trustees of the Kiisi Trust, in a competitive bidding process, hired TrustAfrica to oversee the management of the fund as a donor-advised-fund manager on behalf of the Trustees of the Kiisi Trust in Nigeria. The funds of the Kiisi Trust are kept in separate bank accounts from TrustAfrica’s bank accounts, with most of the funds held in an investment portfolio with a reputable international investment firm, where it is generating additional income for the Kiisi Trust.
The Trust operates as a community foundation that advances the original aims and intentions of the plaintiffs of the Wiwa vs. Shell lawsuit.
. . .
Ogoni future under Kiisi
If this pace of human capital transformation and other physical infrastructure development projects continue undisturbed, the future of Ogoniland would look different, according to some board members.
The management of the Fund was also made stronger by bringing in the likes of Fakae and Ndgwe. The board said a more aggressive fundraising strategy will also be implemented with the aim to at least double the initial endowment to the Trust, allowing it to deepen its support to institutions in the Ogoni area. Perhaps, in the near future, mega organisations such as the HYPREP, NDDC, oil majors, Ecological fund, may find Kiisi worthy for donations to ensure credible application and project execution. That is what a good name and strong brand may do to the Trust if the managers keep building up the reputation capital. “This is coupled with an investment strategy that is low risk, investing in US bonds and conservative markets globally. “Success to the Trust is an empowered Ogoniland with strong institutions mandated to provide different values. “An underlying thread amongst all the components and aspirations is the need to change mindsets from an entitled one to an empowered and accountable one.”
Conclusion
In life and in death, Saro-Wiwa and his co-martyrs have lived on and have continued to make positive impacts on the Ogoni landscape and on the people the playwright so loved. If other development agencies copy the Kiisi formula, Ogoni may become a national model and pacesetter.
A federal judge on Friday denied an Illinois casino company’s motion to dismiss a proposed class action from former employees who allege they were cheated out of tens of millions of dollars in a series of multimillion-dollar transactions involving their retirement plan that violated the Employee Retirement Income Security Act.
U.S. District Judge David W. Dugan wrote in a memorandum and order that the proposed class, led by former Casino Queen employees and employee stock ownership plan participants Tom Hensiek and Jason Gill, had adequately pled their case against Casino Queen’s holding company board of directors and the Casino Queen ESOP’s administrative committee.
The riverboat casino company, Casino Queen, moved on land in 2007 and suffered a series of financial difficulties as the company’s investors tried and failed to sell the company. Eventually, the company created a parent called CQ Holding Co. Inc. to structure an ESOP deal subject to the ERISA lawsuit.
The ruling means Casino Queen executives will have to face claims from the former employees, first alleged in a complaint filed in April 2020, that they mismanaged the ESOP in breach of their fiduciary duty under ERISA, including by structuring a deal in which the ESOP severely overpaid for the casino holding company’s stock in a $170 million purchase in 2012.
Hensiek and Gill are represented by Mary Bortscheller and Michelle Yau of Cohen Milstein Sellers & Toll PLLC.
For several weeks now Chemours, a chemical maker that owns a manufacturing plant outside Fayetteville, has been running a 30-second commercial throughout Southeastern North Carolina touting itself as a good neighbor.
The ad, titled “Good Neighbors Care,” exudes the idea of being neighborly and caring for one another. The commercial starts by stating “good neighbors care and at Chemours we care,” because as the narrator states North Carolina is Chemours’ home (despite Chemours being headquartered in Wilmington, Delaware).
Images of nature and employees hard at work paint this picturesque scene as the narrator explains that Chemours cares about its neighbors and the environment, which is why the company has invested $100 million in new technology and set a goal to reduce PFAS emissions by 99%.
But the commercial has “infuriated” residents, environmental groups, local public utilities and state officials because they say Chemours is anything but a good neighbor, and the commercial is completely inaccurate, they say.
The commercial omits the fact that Chemours, and before it DuPont, dumped toxic chemicals into the Cape Fear River for nearly 40 years, contaminating the drinking water of more than 300,000 of their supposed neighbors.
…
The entire commercial is an attempt by Chemours to create a new, misleading narrative around what’s happened to the Cape Fear River, said Ted Leopold, an attorney representing property owners in Fayetteville, Wilmington and throughout Southeastern North Carolina in a class-action lawsuit against Chemours and DuPont.
“The commercial talks about Chemours being a good corporate citizen, but the evidence is just the opposite,” Leopold said. “Both they and DuPont have for years and years been silently contaminating the Cape Fear River with highly toxic chemicals, and instead of stepping up and taking responsibility, they’re trying to cover it up.”
Chemours can claim it’s one of many contributors to the Cape Fear River, and that it cares about the environment, but where was that belief 40 years ago when it and its predecessor DuPont began dumping toxic chemicals into the Cape Fear River, Leopold said.
Chemours itself had to research what PFAS chemicals are present in the Cape Fear River due to the court order, Leopold said. It found more than 250 substances present in the river water, but it couldn’t identify many of them, despite the chemicals coming from its Fayetteville Works plant.
Boeing shareholders still have an uphill fight ahead after winning a Seventh Circuit ruling that ran right through the crossroads of corporate law and a Catch-22 company bylaw restricting federal derivative claims to Delaware’s Chancery Court, which is barred from hearing them.
Experts said the decision last week in Seafarers Pension Plan v. Robert Bradway, if upheld, closes a loophole in securities law seen as limiting stockholder rights, potentially reducing the risk federal regulators or Congress will see the state’s corporation law as tilted too far in favor of big corporations.
Boeing can still appeal the split decision by a three-judge circuit panel that sent the case back to the U.S. District Court for the Northern District of Illinois. It is already pushing for the dismissal of a shareholder suit in Chancery Court seeking a state law declaration that the same forum-selection bylaw is invalid.
Stakes are enormous for both sides.
The suits all focus on the company’s multiyear record of alleged safety failures and regulatory violations while managing the rollout of the new 737 Max jetliner. Those problems were tied to two deadly crashes and were alleged to have cost the company billions, including costs stockholders are seeking to recover from directors and officers through derivative actions pursued on behalf of the corporation.
Minor Myers, a University of Connecticut School of Law professor, described the federal court reversal as an important development in the “ongoing struggle” at the intersection of Delaware corporate law and stockholder rights under federal securities laws.
“There’s a tangle of confusion lurking in much federal securities law — but Delaware bylaws aren’t a vehicle for opting out of the Exchange Act, as Boeing tried to do,” Myers told Law360.
“The lower court had flubbed the initial decision, allowing Boeing to use Delaware corporate law to generate an outcome that’s straightforwardly inconsistent with common understandings of the federal securities laws,” he added.
Myers said the Seventh Circuit potentially “saved the day” while also potentially averting the need for the Chancery Court to weigh in. He added: “The odd thing is that Boeing tried to use its bylaw to achieve something that both the Delaware General Assembly and courts have clearly telegraphed is out of bounds.”
At issue is a Boeing forum-selection bylaw that requires filing all stockholder derivative claims under Section 14(a) of the Securities Exchange Act of 1934 — which prohibits material misrepresentations and omissions in proxy statements — in Delaware’s Chancery Court.
Federal law, however, gives the federal government exclusive jurisdiction for 1934 Exchange Act claims, potentially snuffing out avenues for suits against Boeing in Delaware courts and dead-ending federal cases like the one in Illinois because of Boeing’s state-preference bylaw.
Targeted in recent shareholder cases are Boeing’s actions before and after catastrophic crashes of the new 737 Max jetliners in late 2018 and early 2019 that killed 346 people, as well as alleged negligence and fraud in issuing false proxies and public statements from 2017 to 2019 on the program, the crashes, and subsequent investigations and costs.
The episode and scandals cost the company some $9 billion, with the federal suit in Illinois seeking damages on the company’s behalf for oversight and disclosure failures, fiduciary duty breaches, and unjust enrichment.
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U.S. District Judge Harry D. Leinenweber, while expressing sympathy for the stockholders’ effort to litigate federal law in a federal court, ruled in 2020 that “the weight of authority backs Boeing’s position” that the company’s bylaws required dismissal under Delaware law.
Circuit Judges Diane P. Wood and David F. Hamilton reversed the lower court, pointing to exclusive federal jurisdiction over Exchange Act matters and the risk that Boeing’s bylaw would lead to dead-end suits under the 1934 Act. The remand remains subject to a full Seventh Circuit review and a potential U.S. Supreme Court appeal, however.
Waiting in the wings, meanwhile, is a Delaware Chancery Court case, stayed pending the Seventh Circuit decision, filed by the same plaintiff in the federal action, seeking a state court rejection of the same Boeing forum-selection bylaw at issue in the federal court dispute.
Boeing in both cases defended its bylaw as permissible and accused the stockholders of using the Chancery Court suit to relitigate the dismissal in Illinois. The stockholders in turn accused Boeing of using its bylaw to improperly protect directors and officers from personal liability for derivative claims.
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Jill Fisch, a law professor at the University of Pennsylvania’s Carey Law School, said the federal courts could have posed the shareholder standing issue to Delaware’s Supreme Court as a formal question, avoiding speculation about Delaware’s position.
But Fisch also said she was sympathetic to the idea that forum-selection bylaws should not trump federal statutes providing for exclusive federal jurisdiction.
“Most forum-selection bylaws are written in a way that expressly preserves access to the federal courts, although typically it’s the district court in Delaware,” Fisch said. “That’s the norm.”
Fisch also said the current dispute continues one that emerged in the Delaware Supreme Court’s Salzburg v. Sciabacucchi ruling in 2020. That decision reversed the Chancery Court’s rejection of federal-court-only charter mandates for certain Securities Act cases.
Salzburg covered challenges to claims that three Delaware-chartered companies — Blue Apron Inc., Roku Inc. and Stitch Fix Inc. — wrongly adopted charter provisions barring stockholders from filing state court complaints for violations of Section 11 of the federal Securities Act of 1933.
Justice Karen L. Valihura, writing for the state Supreme Court, rejected Vice Chancellor J. Travis Laster’s finding that a corporate charter cannot mandate an exclusive federal forum for some Securities Act suits if the claim doesn’t involve an internal matter of the company. Instead, the justices unanimously concluded some “intra-corporate” matters can be kept away from state courts if companies choose.
The issue was vexing enough at the time that Delaware’s justices took an unusual “let me draw you a picture” posture in its Salzburg ruling and included a Venn diagram in the opinion illustrating the internal, external and “intra” overlaps.
Seafarers “kind of goes back to this question Justice Valihura was struggling with in Salzburg, that these cases aren’t clearly external affairs and aren’t clearly internal,” Fisch said.
The complete article can be viewed here.
A shareholder of battery-electric truck manufacturer Nikola Corp. sued 10 of its officers and directors in Delaware’s Court of Chancery for allegedly allowing the company’s founder to carry out a criminal fraud leading up to and following its $3.3 billion merger with VectoIQ Acquisition Corp. In a 140-page derivative complaint filed late Wednesday, shareholder Barbara Rhodes alleged that insiders of the Phoenix-based company stood by while its founder and former CEO and Executive Chairman Trevor Milton intentionally misled investors and overstated the company’s worth, artificially inflating the valuation of the company to as high as $28.77 billion post-merger.
Milton was indicted on charges of securities fraud and wire fraud about a year after the merger.
“Milton’s actions were nothing more than an old fashioned ‘pump and dump’ scheme designed to enrich Milton and Nikola’s insiders,” the complaint alleged. “The Nikola insiders, including its board members, knowingly went along for the ride.”
The pre- and post-merger boards breached their fiduciary duties by allowing Milton and Nikola to engage in illegal conduct, aiding and abetting Milton’s materially false and misleading statements to stockholders, failing to control Milton from making false statements after the merger, and repeatedly ignoring signs of illegal conduct, the complaint says.
The complaint alleges that the company insiders also profited from Milton’s scheme, and seeks damages for breaches of fiduciary duty, aiding and abetting, and unjust enrichment, among other claims.
Nikola’s board members allowed Milton to resign “with virtually no financial consequences” after his conduct came under investigation by the Department of Justice, the U.S. Securities Exchange Commission and other authorities, the complaint says.
In December, Nikola reached a settlement with the U.S. Securities and Exchange Commission, agreeing to pay a $125 million penalty to settle allegations that Milton deceived investors about the company’s ability to build electric- and hydrogen-powered trucks.
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Barbara Rhodes is represented by Julie Goldsmith Reiser, Richard A. Speirs and Benjamin F. Jackson of Cohen Milstein Sellers & Toll PLLC and Peter B. Andrews, Craig J. Springer, Andrew J. Peach and David M. Sborz of Andrews & Springer LLC.
A year after the Seventh Circuit ruled that fewer than 40 workers in an overtime suit may be enough for class certification, attorneys told Law360 the decision highlights other factors to consider when assessing whether a class action meets a key requirement in a category called numerosity.
In Anderson v. Weinert Enterprises Inc., the appeals court denied class certification for a group of 37 roofing company employees because all but two of them lived near the courthouse. The workers’ geographic proximity indicated that the suit was amenable to ordinary group litigation procedures, rather than class action status.
But as the three-judge panel rejected class certification, they noted that a class with fewer than 40 individuals may pass muster if “joinder of these employees in a single lawsuit (with multiple named plaintiffs) would be impracticable.” The comment echoed Rule 23 of the Federal Rules of Civil Procedure, which governs class actions and specifies that an individual may sue as a representative on behalf of others if “the class is so numerous that joinder of all members is impracticable.”
Joinder is the standard method of conducting a case with multiple plaintiffs, in which they operate as co-plaintiffs. A class action is an exception for situations where letting one person act as a class representative would be more manageable.
Christine Webber, a partner at Cohen Milstein Sellers & Toll PLLC, said the key question is whether it’s feasible to litigate with a bunch of individuals, rather than how many of them there are. She represents workers in class actions as co-chair of the firm’s civil rights and employment practice group.
“Forty is the rule of thumb, but I think I’ve seen courts say as low as 20,” she said. The circumstances of the case and the plaintiffs guide the analysis, she said.
For example, cases involving guest workers from another country who come to the United States temporarily for seasonal agriculture work are more likely to be certified with a small number because of the difficulty in contacting each of them, she said.
“Those present some significant logistical hurdles to people all just joining in the case as individual plaintiffs,” she said. Certifying the case as a class action makes it easier for a few individuals to provide representative testimony and evidence on behalf of the group, she said.
When the proposed class includes current employees who fear retribution for speaking out, courts may certify a class action as a way to let them avoid the spotlight, she said.
A split Seventh Circuit panel said Friday that Boeing can’t use its bylaws to prevent shareholders from bringing federal derivative claims alleging its board directors and officers issued false and misleading statements concerning the 737 Max jets in the years leading up to two fatal crashes.
The 2-1 appellate panel revived a shareholder derivative suit that the Seafarers Pension Plan had filed in Illinois federal court alleging current and former board members and executives of The Boeing Co. issued false and misleading proxy materials about the development and operation of the 737 Max from 2017 to 2019.
The Seventh Circuit majority overturned a Northern Illinois district court’s June 2020 decision dismissing the suit based on a forum selection clause in Boeing’s bylaws establishing that the Delaware Chancery Court is the “sole and exclusive forum” for any derivative action or proceeding brought on behalf of the corporation. Boeing’s headquarters are in Chicago, but it’s incorporated under Delaware law.
The panel’s majority concluded Friday that Boeing’s forum selection bylaw is unenforceable in this case because it runs afoul of Delaware corporation law and federal securities law.
. . .
Seafarers alleges that Boeing’s false and misleading proxy statements hurt the company by “enabling the improper re-election of directors who had for years tolerated poor oversight of passenger safety, regulatory compliance, and risk management during the development of the 737 Max airliner.”
Seafarers also alleges that the false and misleading statements were used to obtain shareholder votes to reelect and entrench the very board members whose oversight failures led to the 737 Max disasters, as well as to approve executive compensation packages and reject shareholder proposals that sought to separate the roles of the CEO and the board chairman, according to court documents.
The 737 Max was involved in two fatal overseas crashes in five months: the October 2018 crash of Lion Air Flight 610 in the Java Sea, which killed 189 people, and the March 2019 crash of Ethiopian Airlines Flight 302, which killed 157.
What followed was an unprecedented 20-month global grounding of the jets, multiple investigations targeting Boeing’s missteps in the jet’s development and the Federal Aviation Administration’s oversight lapses, and scores of lawsuits from crash victims’ families, shareholders, airline customers and others accusing Boeing of shortcutting safety in its pursuit of profits. The FAA in November 2020 cleared the 737 Max to return to service.
Seafarers launched this suit in December 2019, and Boeing invoked its forum bylaw to get the action dismissed. The Seventh Circuit heard oral arguments in November 2020. The panel’s majority said Friday that the bylaw completely eliminates shareholders’ right to assert derivative claims under the Securities Exchange Act, in violation of Congress’ mandate that federal courts retain exclusive jurisdiction over those claims.
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Seafarers’ attorney Carol V. Gilden of Cohen Milstein Sellers & Toll PLLC said in a statement to Law360 on Monday that they are eager to present their arguments in federal court.
“We are pleased with the Seventh Circuit’s thorough and well-reasoned opinion. We look forward to proceeding with the litigation of the Seafarers derivative 14(a) claims,” Gilden said.
Seafarers Pension Plan is represented by Carol V. Gilden, Richard A. Speirs, Amy Miller, and Steven J. Toll of Cohen Milstein Sellers & Toll PLLC.
A federal judge in Washington on Monday wrestled with whether ex-President Donald Trump is immune from civil lawsuits filed over last year’s Jan. 6 riots at the U.S. Capitol.
U.S. District Judge Amit Mehta of the District of Columbia, who is simultaneously presiding over criminal prosecutions stemming from the Jan. 6 violence, pressed an attorney for the former president as well as those representing the lawmakers and U.S. Capitol Police officers suing Trump about comments the ex-president made at a rally ahead of the violence, and if they fell under the scope of his official duties.
A handful of civil lawsuits have been filed over the Jan. 6 riots, targeting Trump and others who spoke at the Jan. 6 events. Mehta on Monday heard arguments for five hours over several motions made in the cases, including multiple motions to dismiss.
Jesse Binnall, Trump’s attorney, failed to come up with an example of an act a president could commit while in office that would result in him having to face a civil lawsuit. He told the judge to not consider what Trump said at the rally, and instead view a president making public remarks as part of his official duties.
Mehta seemed skeptical of that sweeping view of immunity, He raised Trump’s call to the Georgia Secretary of State Brad Raffensperger, in which the then-president asked the official to “find” more votes in the state in his favor, and asked Binnall how that would fall under the scope of Trump’s duties as president as elections are run by states.
. . .
Joseph Sellers, a partner with Cohen Milstein Sellers & Toll who is representing several Democratic members of Congress in one of the lawsuits, told Mehta that Trump’s comments on Jan. 6 should be considered campaign activity and not part of his official duties.
The judge asked how Trump’s remarks about the Electoral College certification vote wouldn’t fall under a president’s responsibilities. Sellers replied that Trump had “no legitimate role” in that process.
WHAT TO KNOW:
- Seventh Circuit revives case after it was sent to Delaware
- Boeing bylaw would require waiver of unwaivable claims
Boeing Co. and its board must face federal securities litigation in Chicago over claims they misled investors about its 737 Max 8 jetliner before two high-profile crashes that killed 346 people, a federal appeals court ruled Friday, reversing a novel decision that had sent the case to Delaware.
A divided U.S. Court of Appeals for the Seventh Circuit revived the lawsuit, saying Judge Harry D. Leinenweber shouldn’t have deferred to a company bylaw requiring certain shareholder lawsuits to be filed in Delaware Chancery Court, widely considered the country’s top forum for business disputes.
The ruling comes about two months after Boeing’s board agreed to a $237.5 million settlement resolving parallel investor litigation in Delaware, where shareholder claims against Boeing were consolidated after Leinenweber dismissed the federal case in June 2020.
Judge David F. Hamilton, writing for the Seventh Circuit, said Leinenweber misread the Delaware law authorizing companies headquartered in the state—most major U.S. corporations—to require that derivative cases, a type of governance litigation, be heard there.
The statute refers to courts “in” the state, not courts “of” the state—meaning it includes federal courts—and it’s also limited by the caveat requiring the bylaws to be applied “consistent with applicable jurisdictional requirements,” Hamilton noted.
Because the Securities Exchange Act “gives federal courts exclusive jurisdiction” over federal securities fraud claims, applying the Boeing bylaw would mean the investor claims “may not be heard in any forum,” the judge wrote. “That result would be contrary to Delaware corporation law.”
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The pension fund is represented by Cohen Milstein Sellers & Toll PLLC. Boeing and its board are represented by Kirkland & Ellis LLP.