Overview
On August 23, 2022, Chief Judge Alegenon L. Marbley of the United States District Court for the Southern District of Ohio granted final approval of a $180 million global settlement of all shareholder derivative cases, including Employees Retirement System of the City of St. Louis and Electrical Workers Pension Fund, Local 103, IBEW v. Charles E. Jones, FirstEnergy Corp., et al., (S.D. Ohio) that of Miller v. Anderson (N.D. Ohio) and In re FirstEnergy Corp., Stockholder Derivative Litigation, (Crt. of Common Pleas, Summit County).
Under the settlement, FirstEnergy will obtain a $180 million recovery funded by the Company’s insurers – which Plaintiffs represent as “among the largest derivative recoveries ever achieved” in the United States and “three times greater than any prior derivative recovery in the history of the Sixth Circuit.” Moreover, FirstEnergy will commit to a series of internal governance reforms, including:
- The departure of six Directors.
- Active Board oversight of FirstEnergy’s political spending and lobbying activities.
- Specific disclosures in the annual proxy statement issued to shareholders.
Other Important Rulings
Aside from the landmark settlement, since May 2021, both the Southern District and Northern District courts issued significant rulings in favor of the Plaintiff shareholders.
- On May 11, 2021, the Southern District of Ohio denied Defendants’ motion to dismiss, holding, among other things, that Plaintiffs adequately pled demand futility and sufficiently alleged that FirstEnergy’s proxy statements from 2018 through 2020 falsely and misleadingly represented that the Board effectively managed risk, particularly as it related to the Board’s involvement in the Ohio bribery scheme.
This decision represented an important victory for investors because the Court further expanded upon the view that a company’s directors cannot solicit shareholders’ votes using a misleading proxy statement that conceals a company’s illegal activities and the company’s true financial status. The Court held that a misleading proxy statement can provide an “essential link” in causing harm to a company for purposes of establishing Section 14(a) claims in the context of the re-election of directors. Subsequently, First Energy formed a Special Litigation Committee (“SLC”) and filed a motion to stay discovery for six months so the SLC could evaluate the lawsuit and Plaintiffs’ claims.
- On September 16, 2021, the Northern District of Ohio, denied as moot Defendants’ motion to dismiss, citing the Southern District of Ohio’s May 11, 2021 Order and further denied FirstEnergy’s request to stay the proceedings in the Northern District in order to allow FirstEnergy’s newly formed SLC to evaluate the lawsuit. Judge Adams noted that the SLC was not formed until July 1, 2021 – after the Southern District of Ohio dismissed Defendants’ motion to dismiss the derivative action.
- Then on October 20, 2021, the Southern District of Ohio denied the SLC’s motion to stay, ordering discovery to commence without further delay.
- The SLC appealed both district courts’ denials of the motion to stay the litigation to the United States Court of Appeals for the Sixth Circuit and filed petitions for writs of mandamus to order the district courts to stay the litigation. On December 16, 2021, the Sixth Circuit granted Plaintiffs’ motions to deny those appeals and petitions for lack of jurisdiction.
*On December 21, 2022, Law360 ranked the FirstEnergy global settlement as one of the top 10 securities settlements in 2022.
Case Background
On January 25, 2021, Cohen Milstein and co-lead counsel, Saxena White P.A. and Bernstein Litowitz Berger & Grossman LLP, filed an amended, consolidated shareholder derivative complaint in the Southern District of Ohio on behalf of nominal Defendant FirstEnergy, Co-Lead Plaintiffs Employees Retirement System of the City of St. Louis and Electrical Workers Pension Fund, Local 103, I.B.E.W., and additional plaintiff Massachusetts Laborers Pension Fund against certain current and former officers (collectively, “Defendants”) of FirstEnergy. Plaintiffs allege that Defendants breached their fiduciary duties, unjustly enriched themselves, wasted FirstEnergy’s assets, and violated Section 14 of the Exchange Act of 1934.
On June 3, 2021, on behalf of the same plaintiffs, Cohen Milstein and co-lead counsel filed an Interveners’ Verified Shareholder Derivative Complaint in Miller v. Anderson, No. 5:20-cv-1743-JRA, U.S. District Court for the Northern District of Ohio, asserting the same claims as the January 25, 2021 complaint filed in the U.S. District Court for the Southern District of Ohio.
Cohen Milstein represents Massachusetts Laborers Pension Fund in both cases.
These cases arise out of what the United States Attorney for the Southern District of Ohio declares “is likely the largest bribery, money laundering scheme ever perpetrated against the people of the state of Ohio.” FirstEnergy stands accused of funneling over $60 million of FirstEnergy funds to the former Speaker of the Ohio House of Representatives Larry Householder (“Householder”) and other public officials in exchange for favorable legislation, causing the largest political bribery scandal in the history of Ohio and one of the most egregious examples ever of the misuse of corporate funds to undermine our country’s system of representative government.
FirstEnergy is one of the largest investor-owned electric utility companies in the country. By late 2016, the Company was struggling to remain profitable due to the ebb of demand in nuclear power. Faced with these difficulties, Defendants decided to seek “legislative solutions” to the Company’s financial woes. Between 2017 and 2019, FirstEnergy transferred tens of millions of dollars—while publicly reporting only a fraction of that amount—to various entities controlled by Householder to support Householder’s bid for Speaker of the House, and to support other House candidates that FirstEnergy and Householder believed would vote for Householder’s Speakership candidacy. Eventually, through the use of these illegally secured funds, Householder was elected Speaker of the House in 2019. Subsequently, Householder and his associates introduced and passed HB6, which subsidized FirstEnergy’s power plants to the tune of over $1 billion dollars. During the same period of time, FirstEnergy’s board of directors repeatedly rejected concerned shareholders’ proposals to increase transparency into FirstEnergy’s political spending. Defendants’ ploy would meet a rude awakening, however, as on July 17, 2020, the U.S. Attorney for the Southern District of Ohio filed an 80-page criminal complaint with an FBI affidavit against two FirstEnergy lobbyists, Householder, and Householder staff members, identifying FirstEnergy in all but name. Various stakeholders have subsequently filed lawsuits against FirstEnergy, both civil and criminal. On July 22, 2021, FirstEnergy announced its entry into a historic deferred prosecution agreement with the United States Department of Justice, which included a fine of $230 million. In its DPA, FirstEnergy admitted that it had “paid millions of dollars to [Householder] . . . in return for [Householder] pursuing nuclear legislation for FirstEnergy Corp.’s benefit in his capacity as a public official.”
The Southern District of Ohio case is Employees Retirement System of the City of St. Louis and Electrical Workers Pension Fund, Local 103, IBEW v. Charles E. Jones, FirstEnergy Corp., et al., Case No. 2:20-cv-04813-ALM-KAJ D, United States District Court for the Southern District of Ohio, Eastern Division. The Northern District of Ohio case is Jennifer Miller v. Michael J. Anderson, et al., Case No. 5:20-cv-01743-JRA, United States District Court for the Northern District of Ohio.