Istruttiva sentenza statunitense nel caso Boeing circa i deficit organizzativi della Boeing , che non permisero agli amministratori di cogliere i difetti del velivolo <A 737 MAX>, causa di due disastri aerei nel 2018 e nel 2019.
Si tratta della corte del Delaware 07.09.2021, C.A. No. 2019–0907–MTZ , IN RE THE BOEING COMPANY DERIVATIVE LITIGATION. giudice Zurn.
Negligenze rilevate, p. 74 ss:
- The Board had no committee charged with direct responsibility to monitor airplane safety
- The Board did not monitor, discuss, or address airplane safety on a regular basis.
- The Board had no regular process or protocols requiring management to apprise the Board of airplane safety; instead, the Board only received ad hoc management reports that conveyed only favorable or strategic information
- Management saw red, or at least yellow, flags, but that information never reached the Board.
- the pleading–stage record supports an explicit finding of scienter.
La corte ricorda (p. 73) le analoghe negligenze rilevate dalla corte suprema del Delaware in Marchand v. Barnhill nel 2019, allorchè un azienda alimentare mise in circolazione cibo affetto da batteri:
- no board committee that addressed food safety existed;
- no regular process or protocols that required management to keep the board apprised of food safety compliance practices, risks, or reports existed;
- no schedule for the board to consider on a regular basis, such as quarterly or biannually, any key food safety risks existed;
- during a key period leading up to the deaths of three customers, management received reports that contained what could be considered red, or at least yellow, flags, and the board minutes of the relevant period revealed no evidence that these were disclosed to the board;
- the board was given certain favorable information about food safety by management, but was not given important reports that presented a much different picture; and
- the board meetings are devoid of any suggestion that there was any regular discussion of food safety issues.
Inoltre, punto importante nel diritto USA, i due aspetti posti dalla basilare sentenz aCaremark del 1996 sulla resposanbilit organizzativa (nessun sistema di controllo; mancato controllo di coretto funzionameton del sistema essitent) , possono coesistgere: <<classic prong two claim acknowledges the board had a reporting system,
but alleges that system brought information to the board that the board then
ignored.320 In this case, Plaintiffs’ prong two claim overlaps and coexists with their prong one claim; Plaintiffs assert the Board ignored red flags at the same time they utterly failed to establish a reporting system>>, p. 93