Carol V. Gilden

A Boeing 737 MAX went down in the sea off Indonesia on October 29, 2018 and a second in Ethiopia on March 10, 2019; everyone aboard both died, 346 people, and the aircraft was grounded worldwide until November 18, 2020. In December 2019 the Seafarers Pension Plan, a Boeing shareholder, sued the company’s officers and directors on Boeing’s behalf under Section 14(a) of the Exchange Act, alleging that the proxy statements of 2017, 2018 and 2019 had said materially false and misleading things about the development and operation of the 737 MAX, that the proxies had carried the re-election of directors who tolerated poor oversight of passenger safety, regulatory compliance and risk, and that they had misled shareholders into voting down a proposal to separate the chief executive from the chairman. The complaint set out what the proxies had left out: inadequate internal controls, a December 2015 settlement with the Federal Aviation Administration and the reporting obligations it carried, the failures in the MAX’s development, the alleged retaliation against employees who reported safety violations, and pay programs that rewarded concealing the aircraft’s design flaw. Boeing moved to dismiss on a bylaw that made the Delaware Court of Chancery the exclusive forum for derivative suits, and conceded that enforcing it would end the federal suit altogether, since Section 27 of the Exchange Act gives the federal courts exclusive jurisdiction over claims under the Act. Judge Harry D. Leinenweber dismissed on June 8, 2020 without reaching the merits.

Gilden argued the appeal on November 30, 2020. On January 7, 2022 Judge David Hamilton, joined by Judge Wood, reversed. The Exchange Act, he wrote, gives the federal courts exclusive jurisdiction over actions under it and deems void any contractual waiver of compliance with its requirements; Delaware’s Section 115, which authorizes forum bylaws, was “not intended to authorize a provision that purports to foreclose suit in a federal court based on federal jurisdiction,” and Delaware was not inclined to let corporations “close the courthouse doors entirely on derivative actions asserting federal claims.” A state court, he added, would have to be “bold indeed” to take jurisdiction of the claim. Judge Easterbrook dissented, reasoning that the plan could still sue directly under Section 14(a) in federal court and that the derivative claim could go to Delaware. The case went back to Chicago. Judge Leinenweber gave the settlement preliminary approval on August 25, 2022 and final approval and judgment on December 14, 2022, and the Delaware Court of Chancery entered final judgment on January 13, 2023 in the related class action the investors had brought against the bylaw itself. Boeing rewrote the bylaw so that stockholders may bring derivative claims within the federal courts’ exclusive jurisdiction in the District of Delaware or the Eastern District of Virginia, where the company is headquartered, a change the parties valued at more than $100 million, and the directors’ insurers paid Boeing $6.25 million on the Exchange Act claims. “Boeing’s Board and senior executives must be held accountable for these monumental failings,” Gilden said.

Where a Bayer Receipt Changes Hands

Bayer bought Monsanto in 2018, and with it the Roundup litigation, in which users of the glyphosate herbicide allege that it caused their non-Hodgkin’s lymphoma; Bayer went on to lose a series of those cases and set up a $10.9 billion fund to settle them. The Sheet Metal Workers’ National Pension Fund, the Teamsters Local 710 Pension Fund and the International Union of Operating Engineers Pension Fund of Eastern Pennsylvania and Delaware, which between them had bought close to 600,000 of Bayer’s American depositary receipts, sued the company, its chief executive, the chairman of its supervisory board and other senior executives in San Francisco in 2020 over what they had said about the due diligence done on that risk before the acquisition. Bayer’s receipts trade over the counter, not on an exchange, and each represents shares held on deposit at the Bank of New York Mellon, so the first question was whether purchasers of a receipt for a German company’s shares could invoke the Exchange Act at all. Chief Judge Richard Seeborg answered it on May 19, 2023 when he certified a class of everyone who bought the receipts between May 23, 2016 and July 6, 2020. Under Morrison, a plaintiff can establish a domestic transaction by showing that the buyer or seller incurred irrevocable liability in the United States or that title passed here, and “Only one of these prongs needs to be established to allay extraterritoriality concerns.” About four-fifths of the trades were in receipts already outstanding, which Bayer did not contest; for the rest, newly issued receipts, the depositary incurred its liability in the United States when broker-dealers deposited the underlying shares, and title passed through transfers here. Sponsorship alone, the judge said, does not make a receipt’s trading domestic, and he declined to follow a Toshiba decision that had looked only at the first prong. He found the market efficient for the whole class period, treating a price gap in June 2018 as the product of a cash distribution to receipt holders rather than of investors ignoring information, and appointed Cohen Milstein, with Gilden as lead counsel, class counsel. Discovery ran across continents; to take the testimony of Bayer’s former general counsel in Germany the plaintiffs opened Hague Convention proceedings under the supervision of courts in both countries. Bayer agreed to pay $38 million in cash; the court gave preliminary approval on June 27, 2025 and final approval on October 30, 2025. “This is an important settlement and resolution for our clients and investors who invest in publicly traded foreign companies,” Gilden said.

About 250 Sales Representatives

On January 16, 2019 Pluralsight’s chief financial officer, James Budge, told investors that “today we have about 250” quota-bearing sales representatives. On March 7 the company sold $456 million of stock in a secondary offering. On July 31, 2019 Budge reported that billings growth had fallen from more than 40 percent to 23 percent, blamed representatives who had arrived late, and said the company had entered 2019 with about 200 of them; the stock fell $12.13, nearly 40 percent, to $18.56 the next day. The Indiana Public Retirement System and the Public School Teachers’ Pension and Retirement Fund of Chicago, appointed lead plaintiffs on March 25, 2020 with Cohen Milstein as sole lead counsel, alleged that the chief executive, Aaron Skonnard, Budge and the chief revenue officer had sold $22.2 million, $15.1 million and $9.7 million of stock during the class period through trading plans, the offering and the open market. The District of Utah dismissed the case on August 2, 2021.

Gilden argued the appeal. On August 23, 2022 Judge Rossman, for a panel with Judges Kelly and Murphy, held that the January statement “was at least misleading even if not literally false,” that “the complaint considered in its entirety readily compels the inference that Mr. Budge knew” the real number, that the executives’ sales could not “rebut the inference that personal financial gain was a motive for Defendants’ material misrepresentations,” and that “the mere fact that a trade was made under a 10b5-1 plan does not per se rebut the inference of scienter,” a point on which the district court had misread the circuit’s Level 3 decision. The court reversed the dismissal of the Exchange Act claims, revived the insider-trading claim under Section 20A, and sent back the question whether two months behind a sales-hiring plan was a “trend” that Item 303 of Regulation S-K required the company to disclose. The investors filed a second amended complaint in November 2022, the class was certified on December 27, 2023, and Judge David Barlow approved a $20 million settlement at a hearing on February 4, 2025, with Gilden speaking for the class.

Cautionary Words About a Risk That Had Already Happened

MF Global went public in July 2007 with a prospectus that called its risk-management system robust and warned that its “risk-management methods may prove to be ineffective.” On February 27, 2008 a broker named Evan Dooley lost $141.5 million trading wheat futures in positions far beyond the firm’s limits and collateral requirements; the firm absorbed the loss, and its stock fell 28 percent the next day and 17 percent the day after, a loss of market value in two days that exceeded $1.1 billion. The firm had risk controls but sometimes switched them off to speed transactions, and it acknowledged that they could have stopped the trades. The Iowa Public Employees’ Retirement System and its co-plaintiffs sued under Sections 11, 12(a)(2) and 15 of the Securities Act on March 6, 2008, and Judge Victor Marrero dismissed the risk-management claims under the bespeaks-caution doctrine on July 23, 2009. Gilden, with her partners Steven Toll and Daniel Sommers and the Barrack Rodos firm, took the appeal. On September 14, 2010 Chief Judge Dennis Jacobs, for a panel with Judges Parker and Hall, held that “the bespeaks-caution doctrine applies only to statements that are forward-looking,” that the omission that the firm’s risk protocols did not cover its own employees’ trading was one of present fact, and that “Cautionary words about future risk cannot insulate from liability the failure to disclose that the risk has transpired.” The dismissal was vacated as to the risk-management statements and as to the allegation that telephone orders escaped the controls, and the case settled for $90 million, approved on November 18, 2011.

A Plant in Sturgis, Michigan

Abbott Laboratories made about 40 percent of the country’s infant formula, much of it at a plant in Sturgis, Michigan, where Food and Drug Administration inspectors found Cronobacter sakazakii in September 2019 and again in September 2021, and where whistleblowers reported lax cleaning and leaks. In an inspection that ran from late January into February 2022 the agency found the bacterium at several sites in the plant and the plant unsanitary; Abbott stopped production on February 15, 2022, recalled its formula on February 17 and widened the recall on February 28, and the shutdown left the country short of formula for months. Several infant deaths were linked to Sturgis formula, a link Abbott disputes. The Teamsters Local 710 Pension Fund and the Southeastern Pennsylvania Transportation Authority sued the company’s chief executive, Robert Ford, and its directors on Abbott’s behalf in Chicago, alleging that the board had failed to oversee the safety of the formula and had authorized billions of dollars in stock repurchases while the stock was inflated by false statements about production and safety. Gilden was on the Cohen Milstein team that the court appointed lead counsel, with Scott & Scott, on September 18, 2023. She and her co-counsel defeated the motion to dismiss, which Judge Sunil R. Harjani denied on August 7, 2024, and the motion for reconsideration, which he denied on November 12. On February 14, 2025 they beat back most of the special litigation committee’s motion to stay, so that written discovery went on. Under the settlement they negotiated, which the judge approved on June 4, 2026, Abbott will spend $40 million on targeted capital improvements at Sturgis over five years and has adopted reforms to product safety and regulatory compliance, to the review and escalation of complaints, to executive management review and to the board’s oversight.

$310 Million and the End of Mandatory Arbitration

In January 2019 Cohen Milstein, for the Northern California Pipe Trades Pension Plan and the Teamsters Local 272 Labor Management Pension Fund, sued Alphabet’s directors and officers in Santa Clara County on the company’s behalf, alleging that its leadership had fostered a culture of concealment and a double standard under which powerful executives could harass and discriminate against women without consequence, one of them leaving with a reported $90 million exit package, and that the company had failed to disclose a breach that exposed the data of about 500,000 Google+ users in violation of a 2011 consent decree with the Federal Trade Commission. The court appointed Cohen Milstein co-lead counsel on May 16, 2019, with Gilden on the firm’s team, and the settlement she and her co-counsel negotiated, signed August 18, 2020, committed Alphabet to $310 million for diversity, equity and inclusion and workplace-equity programs, created an advisory council of outside experts and Alphabet executives including the chief executive, Sundar Pichai, ended mandatory arbitration of harassment, discrimination and retaliation claims across the company, limited non-disclosure agreements so that employees may discuss what happened to them and how it was handled, and calibrated discipline across business units so that senior executives face the same consequences as everyone else. Judge Brian C. Walsh approved it on November 30, 2020, calling it “groundbreaking,” “extremely valuable” and a “best in class approach” to harassment and inclusion in the workplace.

Five Years at the Commission

Gilden spent five years as an enforcement attorney in the Securities and Exchange Commission’s Division of Enforcement, investigating and litigating securities-fraud cases from inside the regulator, then practiced at a Chicago firm, where she became a partner and vice chair of its class-action group, before joining Cohen Milstein in 2007. She is a partner in its Securities Litigation and Investor Protection practice in Chicago and represents public pension funds, Taft-Hartley pension and health and welfare funds and other institutional investors in securities class actions, individual and transaction cases and derivative suits over common stock, bonds, preferred shares, American depositary receipts, interest rate swaps, Treasury bonds and exchange-traded notes. She was lead counsel in IntraLinks, one of the first securities class actions certified after the Supreme Court’s decision in Halliburton II, and co-lead counsel in the Huron Consulting case, which settled in 2011 for $27 million in cash and 474,547 shares of the company’s stock. Her cases since include Silvergate Capital, whose investors in $1.3 billion of securities received $37.5 million on September 3, 2025; the interest rate swaps antitrust case, in which $71 million in settlements won final approval on July 17, 2025; InnovAge, certified in January 2025 and settled for $27 million on December 11, 2025; and the Credit Suisse XIV notes case, in which classes were certified in March 2023 and, for the market-manipulation claims, on February 19, 2025. She co-signed the briefs filed in the Supreme Court in Slack Technologies v. Pirani and Nvidia v. E. Ohman J:or Fonder, and her current cases include the Live Nation derivative action for the Chicago Teachers’ Pension Fund over the Ticketmaster consent decrees, the Perrigo infant-formula case, the FMC channel-stuffing case and the Organon case over Nexplanon.

She was the first woman to serve as president of the National Association of Shareholder and Consumer Attorneys, sat on the Council of Institutional Investors’ corporate governance and market advisory councils, and has been a vice president of the Institute for Law and Economic Policy since 2023. She took her bachelor’s degree in business administration at the University of Illinois Urbana-Champaign in 1979 and her law degree, with honors and on the law review, at Chicago-Kent College of Law in 1983, and is admitted in Illinois. “I fight for institutions and people who have been harmed by fraud in the financial marketplace,” she says, and of the cases themselves: “Fraud is never sustainable. The truth always comes out.” As a young lawyer, she has said, her hardest lesson was finding her voice, learning to say, “Excuse me, I’m not done,” when people tried to talk over her. “I don’t cut corners in my cases,” she says. “No two cases are ever the same. I’m continually learning new things and loving every second of it.”