Dow CEO Jumps Ship on All Fools’ Day… Replacement Facing Tough Shareholder Resolutions on Bhopal

Jim Fitterling will become CEO of Dow Chemical, on April 1, 2018, as previous incumbent Andrew Liveris steps down after close to 14-years in office. Liveris’ Tenure culminated in the chemical giant’s merger, with erstwhile rival DuPont Co, last summer.

Liveris may go down in history as having done everything to keep the thorny, Bhopal Disaster issue at bay, but Fitterling will not be thanking him for the fact that THREE highly critical, Bhopal-related, shareholder resolutions have made it onto the agenda of the first DowDuPont AGM later in the month^.1,2,3

Investors have been flagging up omissions and misrepresentations within Dow submissions to the SEC on the issue of Bhopal for at least ten years. This has resulted in two direct requests to the SEC for investigations, and a formal complaint.⁴

Investor believe that Dow’s refusal to address the Bhopal issue represents a material impediment upon Dow investment’s in India.⁵ Investors also complain that Dow does not disclose pending liabilities, connected with Bhopal-related court cases, in proxy materials and SEC submissions.⁶

Within days of the announcement over Liveris replacement, the Indian Supreme Court announced, on March the 8^th, that a further five communities near to the abandoned Bhopal Disaster site are now officially recognised as being contaminated by the remaining toxic chemical waste. This brings the number of communities up to 27 with tens of thousands of families affected.⁷

1. 1.  Shareholder resolution AGM agenda items 7, 8, 9
   2.  DowDuPont 2018 Proxy Statement, AGM date 25 April, 2018
   3.  Shareholder Resolutions on Bhopal Disaster Filed Before Inaugural AGM DowDuPont Co.
   4. The first request, in 2004, focused upon Dow management’s denial of remaining liabilities in Bhopal. See http://www.trilliuminvest.com/news-articles-category/thinking-capital/dow-chemical-%E2%80%93-in-deep-deniala/ The investors contentions of 2004 – that Dow was misleading shareholders – are amply borne out in the fact that Dow is today a named party in civil, criminal and environmental litigation in India.
      The second request, in 2007, highlighted that Dow-India communications suggested Bhopal to be a material impediment upon Dow investment’s in India, which fact was not being disclosed to investors by Dow. See http://web.archive.org/web/20090317051120/http://www.amnestyusa.org/business/AmnestyDowApril12.pdf. The request drew a response from Dow: http://www.reports-and-materials.org/Dow-response-re-Amnesty-and-Bhopal-26-Apr-2007.doc and AI’s counter-response: http://www.reports-and-materials.org/Amnesty-response-to-Dow-re-SEC-ltr-on-Bhopal-7-May-2007.pdf .
   5. The concerns raised in 2007 – that Dow faced impediments to investing in a strategically important market due to Bhopal – are again borne out in failed recent investments and the abandoned plan to invest $5 billion by 2015.
   6. Investors’ complaints, in 2008, pointed out that pending liability cases (criminal and environmental) could be impeding Dow investments in India, and that Dow had not disclosed this to investors. See http://www.icis.com/resources/news/2008/05/20/1104207/dow-responds-to-bhopal-related-sec-complaint/. The complaint is vindicated by materials submitted to the SEC in 2014 by co-filers, demonstrating that investment failures have been clearly associated with pending liability cases, not least the criminal case still requiring Dow to attend court in Bhopal. See point 2: https://www.bhopal.org/the-dow-chemical-companys-bhopal-related-legal-liabilities/?preview_id=17376&preview_nonce=07cab35fbe&_thumbnail_id=-1&preview=true.
      Submissions to the SEC, by shareholders in March 2014, demonstrate omissions in Dow’s assertion of no financial, operational or reputational impact due to Bhopal. Shareholders provided proof that significant business deals, and a broader $5 billion investment plan, have been impeded in India due to Bhopal. They also demonstrated that the reputational impact upon Dow has been global, leading to a 300% fall in brand rating and putting Dow in the top 20 corporations targeted by activists globally.
   7. Dow Chemical CEO to Retire Just as Supreme Court Says Contamination Disaster Spreading in Bhopal: https://www.bhopal.org/dow-chemical-ceo-to-retire-just-as-supreme-court-says-contamination-disaster-spreading-in-bhopal/