On February 12, 2020, Glencore plc, a commodities and mining company based in Switzerland, its CEO Ivan Glassenberg, and its CFO Steven Kalmin filed a motion to dismiss the class action currently pending against them in US District Court for the District of New Jersey. The class action was brought by a class of investors who alleged that they lost money on investments in over-the-counter securities because Glencore made false statements and failed to disclose information concerning investigations by the US Department of Justice (DOJ) into alleged bribery and related conduct in the Democratic Republic of Congo, Venezuela, and Nigeria.
In their motion to dismiss, defendants argue that the complaint should be dismissed for lack of personal jurisdiction because all defendants are physically located overseas and none of the alleged communications took place in the US. Defendants also argue that plaintiffs’ theory that Glencore misled investors fails because Glencore generally disclosed that bribery risks were inherent in its investments, and specifically disclosed government investigations against it in a timely manner. Finally, defendants argue that, because Glencore is headquartered in Switzerland, the court should exercise its discretion to dismiss the case in favor of litigating it in Switzerland, under principles of forum non conveniens.
Glencore previously disclosed that it is being investigated by the DOJ, the US Commodity Futures Trading Commission and the UK’s Serious Fraud Office, in connection with activities by the Company and its subsidiaries relating to Nigeria, the Democratic Republic of Congo, and Venezuela between at least 2007 and 2018. In December 2018, Glencore also paid more than $22 million to the Ontario Securities Commission to resolve allegations that it had made materially misleading disclosures related to subsidiary Katanga’s copper production and financial performance.