Johnson & Johnson is facing a shareholder suit that seeks to restrict the filing of future shareholder suits against the company.

A federal judge has rejected a bid for emergent relief by a Johnson & Johnson shareholder asking the company to institute mandatory arbitration of shareholder disputes in lieu of class action litigation. U.S. District Judge Michael Shipp of the District of New Jersey denied a request by the Doris Behr 2012 Irrevocable Trust for expedited review of the trust's request to have the arbitration proposal included in proxy materials distributed to shareholders during an annual meeting. But the ruling allows the request to “proceed in the ordinary course,” Shipp said Monday.

The trust's suit seeks a declaratory judgment that Johnson & Johnson violated federal securities laws when it excluded the arbitration proposal from its proxy materials. The suit also seeks an order calling on the company to issue supplemental proxy materials that include the trust's proposal and to announce that the trust's proposal is legal under federal and state law.

According to the suit, the United States is the only developed country in which stockholders of a public company can form a class and sue their own company for violating securities laws. The litigation risk to U.S. public companies from shareholder suits is “billions of dollars annually,” the suit claims. Such litigation “effectively recirculates money within the same investor base, minus substantial attorneys' fees,” the suit claims. Arbitration “is an effective alternative to class actions. It can balance the interests and rights of plaintiffs to bring federal securities law claims, with cost-effective protections for the corporation and its shareholders,” the suit states.

The Behr Trust submitted its arbitration proposal to Johnson & Johnson on Nov. 9 for consideration at the 2019 annual shareholder meeting. In response, the company wrote to the SEC Division of Corporation Finance on Dec. 11 that it had decided to exclude the Behr Trust proposal from its proxy solicitation materials. Johnson & Johnson claimed the proposal violated Section 29(a) of the Securities Exchange Act, which states that any stipulation binding any person to waive compliance with agency rules shall be void.

The trust wrote to the SEC on Dec. 24 to dispute Johnson & Johnson's argument. Johnson & Johnson responded Jan. 16 with a letter claiming the trust's proposal would violate New Jersey law. It cited an advice letter it received from Lowenstein Sandler, which said New Jersey would likely follow cases interpreting Delaware and Pennsylvania law.

New Jersey Attorney General Gurbir Grewal sent the SEC correspondence Jan. 29 stating that the plaintiff's proposal would violate New Jersey law, a position the plaintiff contests. SEC Chairman Jay Clayton deferred to Grewal's opinion.

Shipp's decision noted the Behr Trust, which owns 1,050 shares of Johnson & Johnson stock, devoted one paragraph in its 45-page brief to the issue of why it would suffer irreparable harm if its motion was not granted. He criticized the trust's “dilatory conduct” in waiting until one month before the annual meeting to initiate its suit even though it knew for four months that Johnson & Johnson was not planning to present the proposal to shareholders. In addition, the trust failed to address why it deserves a mandatory preliminary injunction in light of its statement that it will attend Johnson & Johnson shareholder meetings in 2020 and every year thereafter until its proposal is adopted.

The suit and ruling were previously covered in The Intercept, an online news publication. That piece said Hal Scott of Harvard Law School, one of three lawyers to file the complaint, runs the Behr Trust and is a longtime critic of shareholder litigation. The article says Scott has suggested rescinding shareholders' rights to sue in his role as president of the Committee on Capital Markets Regulation, which is funded by Goldman Sachs, Citigroup and others.

The other lawyers bringing the suit are Jonathan Mitchell of Austin, Texas, and Walter Zimolong of Villanova, Pennsylvania. Mitchell has been nominated by President Donald Trump as chair of the Administrative Conference of the United States, an agency that recommends changes to administrative procedures, and he served on Trump's transition team.

Scott, Mitchell and Zimolong did not respond to requests for comment about the case. Nor did Johnson & Johnson.