The National Legal and Policy Center (NLPC) filed its reply brief in the U.S. Court of Appeals for the Eighth Circuit in St. Louis, MO, seeking to overturn a lower federal court’s decision in Omaha that dismissed NLPC’s 2024 lawsuit against Berkshire Hathaway and Warren Buffett for having NLPC’s Chairman Peter Flaherty, arrested for trespass at Berkshire’s 2023 Annual Meeting.
Click here for NLPC’s reply brief.
Mr. Flaherty’s presentation at the annual meeting in May 2023, as part of the meeting agenda, supported NLPC’s shareholder proposal to have the positions of Chairman and CEO be held by separate individuals, as a matter of good corporate governance. As part of NLPC’s shareholder presentation, Mr. Flaherty criticized Mr. Buffett’s billions of dollars of support to the Bill and Melinda Gates Foundation, which promotes the controversial Critical Race Theory teaching that “math is inherently racist,” and a Gender Identity Toolbox, “which asserts that gender is a result of socially and culturally constructed ideas.”
Mr. Flaherty also pointed out Bill Gates‘s relationship with convicted sex offender Jeffrey Epstein, which had been reported in a Wall Street Journal story two days before the meeting. Recently released emails by Congress also show Epstein’s relationship with Gates. As he spoke, Buffett cut off Flaherty’s microphone even though he told Flaherty he could continue with his remarks as long as he kept them within the allotted three minutes, and ordered his security guards to eject Mr. Flaherty from the arena, who had an Omaha Police officer arrest Flaherty on the spot. Trespassing charges were dropped shortly thereafter.
“The silencing and arrest of a shareholder who was invited to speak in favor of a shareholder proposal has never before occurred at an annual meeting of a public company in the United States,” Flaherty said. “My remarks about Warren Buffett’s support of Bill Gates and Gates’ well-known connection to Jeffrey Epstein were relevant to the risk of reputational damage to the company,” Flaherty added
“Berkshire Hathaway’s argument that Mr. Buffett can eject an invited shareholder proponent from an annual meeting for any reason or no reason at all and have them criminally charged as a trespasser under Nebraska law not only lacks a legal basis but also is an outrageous display of strong-arm tactics to silence a shareholder,” said Paul Kamenar, counsel to NLPC.
Besides claims for civil liability for the false arrest and assault of Mr. Flaherty, a claim for false imprisonment was made on behalf of James “Jamie” Tovar, NLPC’s Development Director who accompanied Mr. Flaherty to the meeting and was also credentialed to attend. Mr. Tovar was blocked by security guards from following Mr. Flaherty out of the auditorium during his arrest and was ordered to remain seated.
A final claim was made for promissory estoppel since Berkshire and Mr. Buffett breached its promise that NLPC would be able to make its three-minute presentation, cut short even after Mr. Buffett told Mr. Flaherty that he could proceed with his remarks after an initial interruption by a Berkshire officer, as long as it was limited to three-minutes.
The Court of Appeals for the Eighth Circuit also notified the parties to the case that it will schedule an oral argument to hear the appeal in the near future. Only about 25 percent of all appeals are scheduled for oral argument.
“This is good news, indicating that the court considers this a serious case demanding a full hearing,” Kamenar added.
NLPC is represented in its appeal by Jeffrey E. McFadden, an expert appellate counsel and First Amendment law in Maryland with 35 years’ experience, and a former partner with two major Washington, D.C., law firms. Mr. McFadden is also a graduate of the Naval Academy and Georgetown University Law Center.
Founded in 1991, the National Legal and Policy Center promotes ethics in public life through research, investigation, education and legal action.
For more information or to schedule an interview with a NLPC spokesperson, please contact Dan Rene at 202-329-8357 or [email protected].
