Rebecca E. Boon

Gretchen Carlson sued Roger Ailes, the chief executive of Fox News, for sexual harassment in July 2016, and the claims that followed reached Bill O’Reilly and others, with race discrimination claims alongside them. That summer Bernstein Litowitz, for the City of Monroe Employees’ Retirement System, a Fox shareholder, served the company with a demand under Delaware law for its books and records, and after negotiation Fox agreed to broad discovery of documents and witnesses on what the board and its senior executives had known and done. Boon took board-member depositions, drafted much of the governing terms, helped define the duties on reporting, investigation, oversight, discipline and public disclosure and, in the words of Max Berger, who led the team, “was on the frontlines saying, ‘OK, I think we can live with this; we can’t live with that.’” On November 20, 2017, after more than a year of litigation and negotiation, the fund filed its derivative complaint in the Delaware Court of Chancery against Rupert Murdoch and the other directors and officers, alleging that they had failed to stop conduct that was harming the company, and with it the settlement.

The money, $90 million, was recouped for the company from its management. The rest of the settlement was the Fox News Workplace Professionalism and Inclusion Council: six members, the chief human resources officers of the company and of Fox News and four from outside, two nominated by the fund and two by the company, so that a majority of the council were independent of the Murdoch family, the company and its board. The first four outside members were Barbara Jones, a former federal judge, Sylvia Hewlett, Brande Stellings and Virgil Smith. The council sat under the board’s nominating and corporate governance committee and could set its own agenda, meet in executive session, receive the complaints that came in and the company’s responses to them, interview current and former employees, recommend investigations, hire consultants and review the anonymous workplace surveys, and it reported to the committee and to the chief executive of Fox News. Its reports were public, and when its members disagreed the minority wrote its own. “Our agreement also provides for public reporting, which is critical, including a vehicle for dissenting voices,” Boon said. Managers had to report harassment, discrimination and retaliation; the company’s lawyers had to review the settlements of such claims; live training continued; the policy for recovering executives’ discretionary bonuses was extended to harassment, discrimination, retaliation and the failure to respond to complaints; and at the end of five years any decision to change or end the council had to be the board’s, with its reasons posted. Chancellor Bouchard approved the settlement on February 9, 2018. “I will commend everyone in the room on what happened here,” he said; it was “pretty unusual” and “a really sensible, practical way to resolve a really sticky situation,” and “there’s real meaning to the council.” “Governance structures like this are not needed if people just do the right thing,” Boon said afterward. “But if you give governance powers to the right people, then you can be much more effective at impeding bad actors.” “After our Fox settlement,” she said, “companies became a lot more proactive in calling out the abusers in their ranks.”

Statements Directly at Odds With the Conduct Alleged

Signet Jewelers, which sells through Kay, Jared and Zales, had told investors that its in-house credit portfolio was a strategic advantage, “conservatively managed” with “stringent” underwriting, and had described a class arbitration pending against it since 2008 as a dispute over store-level pay and promotion involving, at first, fifteen current and former employees. In 2016 the company disclosed a review of the credit book and that it had solicited offers for all of it, and in May 2017 it revealed that 45 percent of the portfolio was subprime. The arbitration produced more than 250 declarations from more than 200 employees describing harassment that reached the company’s senior executives, including its then chief executive, and when the Washington Post reported them the stock fell again. The Public Employees’ Retirement System of Mississippi was appointed lead plaintiff on July 27, 2017, and Boon co-led the trial team with John Rizio-Hamilton. On November 26, 2018 Judge McMahon denied the motion to dismiss the fifth amended complaint. The company had been bound to describe the factual basis of the arbitration claims accurately, and its filings had described store-level pay issues while the claims were of pervasive sexual harassment that reached the highest offices in the company; the statements in its code of conduct were not puffery, because such statements are “actionable where they are directly at odds with the conduct alleged in the complaint”; and scienter was adequately pleaded, since senior management, a named defendant among them, was implicated in the conduct. The credit claims survived with them.

The team carried the case through successive complaints, class proof, about 3.6 million pages of discovery, thirty-one depositions and twenty expert reports on underwriting, reserves, loan performance, the portfolio sale and what management knew and had disclosed. Judge McMahon certified a class of purchasers of Signet stock between August 29, 2013 and May 25, 2017 on July 10, 2019, and with the defendants’ petition to appeal the certification before the Second Circuit, the parties went to three full-day mediation sessions and signed a $240 million cash settlement on March 16, 2020. The court gave preliminary approval on April 14 and final approval, with the plan of allocation, on July 21, 2020; the fund has gone out to claimants in distributions in March 2022, May 2023, October 2024 and August 2025.

Plausible Allegations That Could, and Did, Arise

In 2018 Kate Upton and other models accused Paul Marciano, the co-founder and executive chairman of Guess, of sexual harassment and assault. The board’s special committee concluded that June that plausible allegations of improper conduct “could, and did, arise”; Guess removed Marciano as an officer and executive chairman and adopted anti-harassment policies, kept him on the board, and in January 2019 made him chief creative officer again. More women came forward. In September 2022 the Employees’ Retirement System of Rhode Island sued Marciano and the other directors on the company’s behalf, with Boon leading the trial team, alleging that Marciano had propositioned models for contracts in exchange for sexual favors, dropped or rejected the ones who refused and offered hush money, and that the directors had ignored the allegations, had failed to interview several of the accusers in an investigation that produced a brief report, and had left him his seat and his title. The company acknowledged in court that the suit played a part in the departure from the board of Maurice Marciano, Paul’s brother and the other co-founder. Under the settlement signed October 12, 2023, the defendants and their insurers agreed to pay the company $30 million, $22 million within ten days of approval and the first $8 million recovered in the company’s suit against its insurers; Guess adopted a sexual harassment policy protecting its models and prospective models, created an independent committee to review reported violations and recommend consequences to the board, and agreed to appoint two new independent directors. The Court of Chancery approved the settlement on January 4, 2024 and entered final judgment the next day.

A Meeting on September 10, 2015

Towers Watson and Willis Group agreed in May 2015 to merge, Willis’s holders to own 50.1 percent of the combined company and Towers’s 49.9 percent with a $4.87 dividend, and when the deal was announced in June Towers’s stock fell 8.8 percent while Willis’s rose. On September 10, 2015, before the vote, John Haley, Towers’s chief executive and the man who would run the combined company, met Jeffrey Ubben of ValueAct, who was to sit on its compensation committee, and heard a plan that could pay him as much as $165 million over three years, more than six times what Towers paid him; he told no one. The October proxy said the board had considered all conflicts of interest. In November, with the shareholders poised to vote the deal down, Haley agreed to raise the dividend to $10 and add a buyback, and the proxy supplement said nothing of the compensation discussions; the shareholders approved the merger the next month, it closed on January 4, 2016, and the new company adopted a pay plan for Haley substantially like the one Ubben had proposed. The Regents of the University of California, appointed lead plaintiff on February 20, 2018, sued the company, Haley, ValueAct and Ubben under Section 14(a) in the Eastern District of Virginia, and the district court dismissed the case on July 12, 2018 as filed too late and the omissions as immaterial.

Boon was on the brief for the appeal, with Salvatore Graziano arguing. On August 30, 2019 Judge Diaz, joined by Judge King, with Judge Quattlebaum dissenting, vacated the dismissal: the limitations period ran from discovery notice, and the facts had not been discoverable until 2017; “a reasonable shareholder would have found this undisclosed conflict to be a material change” to the mix of information; “Haley had a powerful interest in closing the merger to get the compensation he’d discussed with Ubben”; and the proxy’s statement that all conflicts had been considered could be found misleading. Boon led the trial team on remand. The district court denied the renewed motions to dismiss on January 31, 2020 and refused to certify the question for appeal, discovery closed on August 10, the class was certified on September 4, 2020, and the parties briefed expert and summary-judgment issues. On November 19, 2020 the parties agreed to $90 million, $75 million in the federal case and $15 million in the related fiduciary-duty case in the Delaware Court of Chancery; the court entered judgment approving the federal settlement on May 21, 2021, and the money has gone out in three distributions since May 2022.

Beyond #MeToo

Boon was a senior member of the team in the Wells Fargo securities class action over the bank’s fake accounts, which recovered $480 million, and prosecuted the General Motors securities case for the New York State Teachers’ Retirement System, which recovered $300 million. Her pending cases include fiduciary-duty suits against the directors of eXp, over the alleged drugging and sexual assault of the company’s real estate agents, and of Jacobs Solutions, over alleged labor abuses and trafficking, and a securities class action against Meta over the harm Instagram does to young people. She co-founded and chairs Beyond #MeToo, a working group on corporate governance, compliance and risk that gives companies, investors and advocates a neutral forum for the next generation of policies on workplace misconduct, harassment and discrimination, and co-leads the firm’s Women’s Committee. The New York City Bar Association gave her a Lifetime Achievement Award at its fifth International Law Conference on the Status of Women in 2024 for that work. She was elected junior vice president of the Institute for Law and Economic Policy’s advisory board in 2024, is a fellow of the American Bar Foundation, sits on the Federal Bar Council’s program committee and served three years on the board of The Feminist Institute; she narrated a MarketWatch documentary about the Fox litigation, lectures at law schools, universities and conferences in the United States and abroad on ESG, corporate governance and shareholder litigation, and has published in Bloomberg Law, Law360 and Responsible Investor.

She has litigated securities-fraud and shareholder-rights actions for more than seventeen years; she came to the firm from Shearman & Sterling, where she was a litigation associate, and was made a partner in January 2020. She took her bachelor’s degree at Vassar in 2004, where she was a Social Justice Community Fellow, and her law degree, cum laude, at Hofstra in 2007, where she was a Charles H. Revson Foundation public interest fellow and an editor of the law review, and she is admitted in New York. “Historically, these types of cases,” she has said of shareholder suits over workplace misconduct, “were not successful.” “I think people are recognizing that and starting to bring cases in the aftermath of what we did.”