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The Doris Behr 2012 Irrevocable Trust v. Johnson & Johnson

United States District Court for the District of New Jersey

April 8, 2019, Decided; April 8, 2019, Filed

Civil Action No. 19-8828 (MAS) (LHG)



SHIPP, District Judge

This matter comes before the Court upon Plaintiff The Doris Behr 2012 Irrevocable Trust's ("Plaintiff or "Trust") request for an Order to Show Cause ("OTSC") Why a Preliminary Injunction Should Not Be Granted. (ECF No. 7.) Defendant Johnson & Johnson ("Defendant") subsequently filed correspondence requesting the Court decline to enter the OTSC and allow the matter to proceed in the ordinary course. (ECF No. 10.) Plaintiff filed responsive correspondence on March 27, 2019. (ECF No. 11.) On March 29, 2019, the Court granted Defendant leave to file a reply (ECF No. 13), which Defendant filed on the same date (ECF No. 14).

The Court has carefully considered the parties' submissions and decides the matter without oral argument pursuant to Local Civil Rule 78.1. For the reasons set forth below, the Court denies Plaintiff's application [*2]  for an Order to Show Cause and orders the matter to proceed in the ordinary course.

I. Background

Plaintiff is a shareholder in Defendant's company. (See PL's OTSC Br. 1, ECF No. 8.) As a shareholder, Plaintiff would like its shareholder proposal included in Defendant's proxy materials, which will be considered at Defendant's next annual shareholder meeting, scheduled for April 25, 2019. (Id.) That proposal, essentially, is that Defendant amend its bylaws to require mandatory arbitration of shareholders' federal securities law claims.1 (Ex. 1, ECF No. 8-1.) On November 9, 2018, Plaintiff submitted its proposal to Defendant for inclusion in its proxy materials.2 (Id.)

On December 11, 2018, Defendant informed the Securities and Exchange Commission's ("SEC") Division of Corporate Finance (the "Division") that it intended to exclude Plaintiff's proposal from the annual shareholder meeting's proxy materials. (Ex. 2, ECF No. 8-2.) See 17 C.F.R. § 240.14a-8(i)(2) (allowing a company to exclude a shareholder proposal "[i]f the [*4]  proposal would, if implemented, cause the company to violate any state, federal, or foreign law to which it is subject"). Defendant asked the Division to concur with Defendant's belief that the proposal would cause it to violate federal law.3 (Id.)

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2019 U.S. Dist. LEXIS 60359 *; 2019 WL 1519026




shareholder, arbitration, proxy, correspondence, irreparable harm, preliminary injunction, show cause, mandatory, injunction, application for an order, annual, state law, reasons