In Re:: Docket #2454 Date Filed: 3/3/2010
In Re:: Docket #2454 Date Filed: 3/3/2010
In Re:: Docket #2454 Date Filed: 3/3/2010
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:
In re: : Chapter 11
:
WASHINGTON MUTUAL, INC., et al., : Case No. 08-12229 (MFW)
: (Jointly Administered)
Debtors. :
:
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OFFICIAL COMMITTEE OF EQUITY Adversary Proceeding No. __________
SECURITY HOLDERS,
Plaintiff,
v.
Defendant,
COMPLAINT
Plaintiff, the Official Committee of Equity Security Holders (the "Equity Committee" or
bring this adversary proceeding pursuant to Federal Rule of Bankruptcy Procedure (collectively,
the "Bankruptcy Rules") 7001 and Revised Code of Washington ("RCW") 23B.07.030 and
NATURE OF ACTION
shareholders' meeting for nearly two years. Debtor, a publicly traded company, has also failed to
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submit any required annual and quarterly reports, including financial statements, with the U.S.
Securities and Exchange Commission ("SEC") for two years. Consequently, Debtor has
deprived the Equity Committee and other shareholders of useful and relevant information
regarding WMI's operations and has prevented them from nominating and voting for WMI
directors.
summarily compelling Debtor to hold the required shareholders' meeting on a date certain, to be
fixed by the Court, in accordance with Washington law, and to issue additional orders pursuant
3. This Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C.
§§ 157, 959, 1334, and Bankruptcy Rule 7001. This is a core proceeding within the meaning of
28 U.S.C. § 157(b)(2).
PARTIES
5. WMI is a corporation organized and existing under the laws of the State of
registered agent for service of process in Washington is Corporation Service Company, 300
6. The Office of the United States Trustee appointed the Official Committee of
Equity Security Holders on January 11, 2010 (the "Equity Committee") [Docket No. 2130]. On
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January 27, 2010, the Equity Committee filed an Application to Employ Venable LLP
("Venable") as counsel nunc pro tunc to January 11, 2010 [Docket No. 2256], and the Court
entered an Order approving Venable's employment on February 22, 2010 [Docket No. 2404].
FACTUAL ALLEGATIONS
Mutual Bank, which was the largest savings and loan association in the United States of
America. On September 25, 2008, the United States Office of Thrift Supervision ("OTS")
seized Washington Mutual Bank from WMI and placed it into the receivership of the
Federal Deposit Insurance Corporation ("FDIC"). The FDIC sold the banking subsidiaries
(minus unsecured debt or equity claim) to JP Morgan Chase for $1.9 billion. The next day,
September 26, 2008, Debtor filed a voluntary petition for relief under Chapter 11 of Title 11 of
approximately 20 million shares of Class K preferred stock, and approximately 1.7 billion shares
of common stock.
9. Members of the Equity Committee are shareholders of WMI and the beneficial
owners of shares of preferred and common stock of WMI. They are entitled to vote in the
10. RCW 23B.07.030(1) provides that the superior court of the county in which a
corporation's registered office is located may, after notice to the corporation, summarily order a
meeting to be held: (a) On application of any shareholder of the corporation entitled to vote in
the election of directors at an annual meeting, if an annual meeting was not held within the
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earlier of six months after the end of the corporation's fiscal year or fifteen months after its
last annual meeting or approval of corporate action by shareholder consent in lieu of such a
meeting; or (b) On application of a shareholder who executed a demand for a special meeting
valid under RCW 23B.07.020, if (i) Notice of the special meeting was not given within thirty
days after the date the demand was delivered to the corporation's secretary; or (ii) The special
11. WMI's 2007 fiscal year follows the calendar year, and therefore ended on
12. WMI's last annual shareholder meeting was held on or about April 20, 2008.
13. WMI's 2008 fiscal year ended on December 31, 2008, and an annual WMI
shareholders' meeting was not held within six months after the end of WMI's 2008 fiscal year.
14. An annual WMI shareholders' meeting was not held within fifteen months after its
last annual meeting or approval of corporate action by shareholder consent in lieu of such a
meeting.
15. WMI's 2009 fiscal year ended December 31, 2009. WMI has not set a date for an
annual meeting of shareholders in 2010, which, under WMI's Bylaws, would normally by held
16. WMI has not taken any action by written consent to elect WMI directors in lieu of
an annual meeting.
17. RCW 23B.07.010 provides that a corporation shall hold an annual meeting of
18. RCW 23B.07.030(2) provides that the court may, after notice to the corporation,
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fix the time and place of the meeting, determine the shares and shareholders entitled to
participate in the meeting, specify a record date for determining shareholders entitled to notice of
and to vote at the meeting, prescribe the manner, form, and content of the meeting notice, fix the
quorum required for specific matters to be considered at the meeting, or direct that the votes
represented at the meeting constitute a quorum for approval of those matters, and enter other
19. WMI should be compelled to schedule and hold an annual shareholders' meeting
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PRAYER FOR RELIEF
(i) Directing Debtor to promptly convene and hold an annual shareholders' meeting for
(ii) Designating the time, place, and procedures to be followed to hold the annual
meeting, as well as the form of notice of the meeting to be delivered to all shareholders by
Debtor; and
meeting.
-and-
Gregory A. Cross
Jorian L. Rose
VENABLE LLP
Rockefeller Center
1270 Avenue of the Americas
25th Floor
New York, New York 10020
Tel: 212-370-5500
Fax: 212-307-5598
Counsel to the Official Equity
Committee of Washington Mutual, Inc.