This Manual is intended for distribution to a select audience - those citizens and citizen organizations who find themselves investing great energies, resources and time resisting one corporate harm at a time; and who have begun to ask "by what authority do today’s large corporations claim more rights and privileges than people?" This Manual is intended for those who are prepared to begin challenging these claims, as well as challenging the existence of corporations which time and again have violated the public trust. In addition, this Manual is intended for those that cannot afford legal assistance in this struggle and who do not have the means through which to afford to pay for legal counsel.

    This Manual, like our earlier publication concerning citizen litigation of inadequately prepared Environmental Impact Statements under the National Environmental Policy Act (NEPA), is intended as a guide to assist citizens who want to counter a major source of environmental and social justice assaults - the operations of corporations in a state. Part One of this Manual concentrates on a short "primer" of how we arrived at this lopsided situation. This Part will include an explanation of what a corporate "charter" is, how it is used, where it is filed, and how this information can be used by citizen activists against these destructive actors.

    For those who wish to focus on the full historical portion of this dilemma, and who are interested in "re-chartering" of corporations to formulate a better society, an excellent source is Richard Grossman and Frank Adam’s pamphlet, Taking Care of Business: Citizenship and the Charter of Incorporation. This pamphlet is available from the Program on Corporations, Law, and Democracy (POCLAD) for $4.00 plus a self-addressed, stamped envelope (.55) and can be ordered through Charter, Ink., P.O. Box 806, Cambridge, MA 02140. It is well worth the money. POCLAD has also begun distributing a "Contact Kit", which contains an annotated bibliography, a sampling of POCLAD articles, a full resource list, and a subscription to the POCLAD quarterly publication. Contact POCLAD at (508) 398-1145 for ordering information.

    Part Two of this Manual will concentrate on the concrete, pragmatic, on-the-ground steps that can be taken to begin the process of revoking a corporate charter, from compiling a list of instances in which the corporation has broken the law, to petitioning the Attorney General and the courts for redress. This is not to overstate the success of such strategies in recent years - in most states, these types of suits have not been brought since the early 20th Century and most Attorneys General know little about the state statutes. The importance of educating the public as well as the Attorneys General, however, should not be understated, as this is an important component of the journey that must be undertaken. In addition, CELDF is not a "master" of this strategy, having filed its first charter revocation litigation against Waste Management in Pennsylvania in November of 1996. Having said this, CELDF believes that this strategy is an essential one for both provoking debate and discussion about the corporate form, as well as removing an individual corporation that has a history of breaking the law.

    There have been several recent developments, however, that reveal a promising future for this type of strategy. In June of 1998, the Attorney General of New York initiated charter revocation proceedings against several non-profit organizations that were acting as the "propaganda arms" for the tobacco corporations. In July of 1998, a Circuit Court judge in Alabama (acting as a private citizen) brought a charter revocation suit against the tobacco corporations in that state. Articles addressing these actions are also included within Appendix II.

    The Legal Defense Fund has petitioned the Attorneys General of Pennsylvania, Mississippi, Arkansas, Maryland, West Virginia, and New Jersey to initiate charter revocation proceedings against various corporations.

    Appendix I of this booklet will offer a bibliography for citizen activists interested in learning more before they start down this road.

    A final note: the process outlined in this Manual is not for the weak hearted. Corporate bank accounts hold immense wealth, which is controlled by Directors and Officers intent on building more wealth for the corporation and its stockholders. If you pose enough of a threat to this structure, they will pursue you. The conclusion of this Manual deals with various arguments by which to keep the public on the side of the citizen and how to deal with corporate whitewashing.

    Anyone pursuing charter revocation is urged to coordinate their activities with the Legal Defense Fund, which can be reached at (717) 709-0457 or at (717) 709-0263 (fax). The Fund also maintains a Corporate Charter Program, which contains some useful information for individuals wishing to pursue charter revocation activities. The material within the Program can be accessed through the Fund’s web page at http://www.envirolink.org/orgs/celdf.

Happy Hunting.

Thomas Linzey, Esq./CEO
Community Environmental Legal Defense Fund (CELDF)
2859 Scotland Road
Chambersburg, PA 17201
(717) 709-0457
(717) 709-0263 (fax)
e-mail: tal@cvns.net
web: http://www.envirolink.org/orgs/celdf
 

    As Richard Grossman tells us, "Corporations were not supposed to reign in the United States." (Taking Care of Business at 1).

    But that is exactly what they do today. Whether it is the Exxon Valdez "accident", in which Exxon Corporation eluded tremendous cleanup costs and damages, or Waste Management Corporation’s commission of felonies and lawbreaking that receives little repercussions from state governments, or Union Carbide’s Inc.'s evasion of the payment of damages to the Indian people, or the United States government’s actions vis-a-vis the tobacco companies, corporations truly do, in David Korten’s language, "rule the world." To make matters worse, public debate and discussion centers on the illegal or unethical acts themselves, and not on the institution and structure of the corporations that perpetrate such acts. Recent examples include the buyout of Maxxam Corporation in Northern California to "save" several remaining groves of redwood trees, and the tremendous amounts of corporate cash that came sailing into the Democratic and Republican Party Conventions. As Ralph Nader put it, in his Green Party presidential campaign, "it’s a wonder the delegates didn’t slip off of their seats."

    Corporations currently out-spend labor organizations on political campaigns by a margin of 7-to-1 and citizen organizations by a margin of 10-to-1. Of the world’s 100 largest economies, 50 are corporations. Over 70 percent of U.S. adults believe business has gained too much power over American life. Currently, corporations exercise free speech rights, live forever, operate after breaking the law, and vest their management with almost complete immunity from liability.

But it wasn’t always that way.

    In fact, the American Revolution was an attempt to overthrow the type of corporate powerbroking that we see everyday in contemporary America. Virginia was an English Corporation, North Carolina was created as an English Corporation, and Maryland was "chartered" in exactly the same manner. The East India Company, the corporation that plundered much of the Western Hemisphere in its search for valuable resources and goods, was an English Corporation. As Grossman succinctly states:

    And this they did, by instituting very strict controls over what types of corporation could operate, how long they could operate, and by prohibiting corporations from owning other corporations, in addition to taking very specific steps to "define" the corporation by using charters and charter revocations to enforce their right to do so. AND, they routinely revoked the charters of corporations which undermined their democratic authority by acting outside of the powers given to them in the corporate charter. This action, taken by the Attorney General of the state, was (and is) called the exercise of "Quo Warranto." This term literally means "by whose right do you exercise these powers?"

    In fact, corporations in colonial days were specially chartered, which meant that an order of the legislature was necessary to charter a corporation. In those days, these specially chartered corporations were created ONLY for "public purposes", which included turnpike construction, bridge building, and other "public" purposes. This limitation resulted in a very low number of incorporations - by the year 1900, only three hundred corporations had been formed.

    And the Attorney General frequently exercised his power to revoke the charters of corporations. In fact, up until 1940 in many states, corporate charter revocation actions were commonplace. Not just small corporations were subject to revocation. The Sugar Trust (corporations combined to control sugar prices) was dissolved in 1890, and Standard Oil Corporation was subject to a charter revocation suit in Washington in 1934. Throughout the 1800’s and early 20th Century, the quo warranto power remained a powerful tool through which to dissolve a corporation that had not obeyed the law or had violated the public trust in other ways.

    Why did the Attorney General stop exercising this power? The simple answer to this question is that the Attorney General was thwarted by the rise of corporate power. This "rise" took form through the courts - corporate attorneys and corporate funded "thinktanks" that began to transform legal theory and thought. The transformation also took place through the legislatures, as corporations began to exercise financial strength through campaign contributions and other "favors" to legislators. Other forms of control were more direct, and included job blackmail, community blackmail, political pressure from threats of job loss, etc.

    This transformation of corporate law affected more than simply the state’s ability to define the corporation or the Attorney General’s willingness and ability to exercise charter revocation powers. The change in the law that occurred monumentally transformed American law by defining a corporation as a "person" in the landmark (or infamous) Supreme Court case of 1886, Santa Clara County v. Southern Pacific Railroad. Thus, the corporate form, by virtue of the immense wealth held by corporation, has been able to exercise more constitutional rights than the average citizen.

    Or, as former Supreme Court Justice Frankfurter declared, the history of constitutional law is "the history of the modern corporation upon the American scene."

    The more complex answer to the question posed above involves the rise of the regulatory "state" as a result of the failure of the Populist movement to gain direct control over these bodies of accumulated wealth. The rise of the regulatory state, through which state and federal agencies were established to "watchdog" corporations - and to penalize and fine them if the law was broken - was the result of the rising superiority of the corporate form over the citizenry. Indeed, as some commentators have noted, the regulatory state is used by corporations to force governments to limit competition and serve as a barrier between the citizens and corporations. The effect of the rise of the regulatory system was to slowly remove enforcement power from the Attorney General and place it into the hands of the state regulatory agencies, a move that was sold as "progressive" by those that sought the implementation of environmental and labor laws. However, turning the keys to the city over to the regulatory agencies failed to achieve this result. In fact, what the regulatory agencies have established is an "energy sink", into which valuable citizen energies and resources disappear and which rarely yields any substantive results.

    It is now a common theme to acknowledge that the regulatory agencies have failed, for a number of reasons. First, the regulators in the agency are prone to "fence-hopping" - moving towards higher pay within a corporation after they leave government employment. This causes less than 100% enforcement within the agency from those that don’t want to "burn any bridges" for future employment possibilities. As we’ve also learned, corporations have the ability to invest large sums of money to promote regulatory "reform" - "takings" bills, and statutory changes, to ensure that regulatory enforcement never really harms the bottom line - profits.

    In addition, state governments have engaged in a "race to the bottom" to encourage corporations to charter in their states. During the twentieth century, several states, including New Jersey and Delaware pushed for this dubious honor, which involved the elimination of most substantive controls over the corporations, the structuring of state courts "friendly" to corporate business, and an elimination of citizen control over corporate activities.

   As one progressive environmental newspaper announced recently, "the war is over and we lost."

    What are we left with today? All fifty states still have corporate charter revocation statutes that allow for revocation of charters when the corporation has "misused" or "abused" the powers granted to the corporation within their charter. Most of these states leave the decision to request revocation of a corporation’s charter to the Attorney General. Others, like Delaware, require the Attorney General to initiate revocation proceedings when requested to do so, and when presented with reasons that the corporation has abused its charter powers. Still others, such as the statutes of the states of South Dakota, North Carolina, Massachusetts, Kentucky, Alabama, Delaware, Mississippi, Tennessee, and Texas, allow private citizens to file charter revocation lawsuits.

    The statutes of all of these states were used extensively during the time period 1880-1940, and the cases litigated and reported under these statutes contain key language that new citizen activists can use to pressure the Attorney General to initiate revocation proceedings against contemporary corporations.

    These statutes are the subject of this book - how citizens can use these statutes, their history, and the cases litigated under them, to build public opposition to a corporation and to provoke debate and discussion concerning the role of contemporary corporations in society. This book is also intended to show how citizens and citizen groups can use the statutes in courtrooms to force the Attorney General to begin revocation proceedings and to force the appropriate courts to sustain the revocations.

A. What is a Charter?

    A corporation’s charter is its Articles of Incorporation. The charter is filed with the State as an application to be incorporated by the State. The Articles are usually very simple and boilerplate, and usually only include the name of the incorporator, a registered office within the state, the purposes for which the corporation is being incorporated, and the law under which the corporation is being incorporated.

    In addition, most times, under the "purposes" section of the Articles of Incorporation, the corporation will print "for any lawful purposes". This is to protect the corporation when it decides to move into a new line of work, and allows the entity to undertake any activity that is profitable without being forced to amend its Articles. The inclusion of this all-inclusive language was a result of shareholder suits of the early part of the twentieth century, in which corporations were sued if they acted "ultra vires", or outside of the purposes of their incorporation.

    Under all state laws, the Secretary of State (or other designated agency) MUST file the Articles of Incorporation if all of the information is complete within the Articles of Incorporation. They do not possess any discretion to refuse to accept and file the Articles. They are not empowered to examine the corporation and its history. They are only empowered to administratively "check" to see that the information required has been completed. After the filing, the entity is a legal corporation. The ease with which many states allow incorporation is part of the problem, as corporations create "shell" or subsidiary corporations to limit the liability of the parent corporation.

    Keep in mind that corporations are only "chartered" in one state (often Delaware). To do business in other states, the corporation must obtain a Certificate of Authority to Do Business (or other similar name) in the other state, at which time that corporation becomes known as a "foreign corporation" in the second state. A prerequisite to the issuance of this Certificate is the condition that the corporation holds a charter in a home state.

B. Where Can I Find a Charter?

    A corporation’s charter can usually be located within the Corporations Bureau of the Secretary of State (or other body that oversees the chartering process). To obtain a copy, contact the agency and request a copy of the charter. There will usually be a cost for the instrument, but charters are public property and therefore, the charges will be limited to the cost of reproduction and mailing.

    Before you contact the agency, make sure that you have the correct name of the corporation. Many corporations have wholly owned subsidiaries or "do business as" a different name than the one in which they are chartered. In addition, when you speak to the Corporations Bureau, you need to request the latest Articles of Incorporation filed by the corporation. This will usually be the latest dated Amended Articles of Incorporation. Other versions may also be useful for other purposes, such as viewing the progression of the Articles through the prior decades.

C. What if a Corporation is Not Chartered in My State?

    As noted above, corporations are only chartered in one state - called the "home" state. Within that state, the corporation is known as a "domestic" corporation. To conduct business in another state, the corporation must apply and pay a fee to the new state and obtain a Certificate of Authority to Do Business in that state. In states in which a corporation only holds a Certificate, the corporation is called a "foreign" corporation. If the corporation is chartered in another country, it is called an "alien" corporation in the state in which it does business under a Certificate of Authority.

    The charter revocation laws apply to "foreign" and "alien" corporations as well as to domestic corporations. In these states, you will be seeking to revoke the Certificate to do Business rather than the charter. All states have laws in their state codes that declare that foreign corporations do not possess greater rights than domestic corporations. This statute ensures that foreign and alien corporations will be subject to the charter revocation statutes as well.

    To obtain a Certificate, follow the same steps that you would use to obtain a charter of incorporation. When you ask the Corporations Bureau for the document, request the latest Certificate issued, which will usually be called the "Amended Certificate of Authority to Do Business." There will be a charge for the reproduction and transmission of this document.

D. How Do I Find My Charter Revocation Statute?

    In the Appendix of this Manual is contained a listing of forty-nine state charter revocation statutes. You must become familiar with your state or local law library to locate these statutes, but once you find your state statute code, the citation is relatively easy to follow.

    State Codes can be found at the County law library, state law libraries, University libraries, law school libraries, and sometimes, at your local public library. When requesting the laws, ask for the state’s statutory code.

    Read the charter revocation statute carefully and copy the language of the statute so that you can take a copy home with you. The language of the statute will be extremely important to possess as you begin to communicate with both the public and the Attorney General’s office.

    Note that the listing provided at the end of this Manual is a basic one which only offers a starting point for corporate charter research - it is not intended as an exhaustive survey of your state’s charter revocation laws. For instance, the state of Ohio has extensive statutes dealing with seizure of assets of a revoked corporation, appointment of a receiver, and distribution of assets to shareholders. This string of statutes can be found via the statutory citation in Appendix I, but the specific citations to these statutes are not included in the Appendix I.

E. The Attorney General's Office

    You will also need to discover the name and address of the Attorney General of your state, and whether there are subsidiary departments within the A.G.’s office that handle either civil litigation or environmental crimes enforcement. For instance, in Pennsylvania, the Attorney General’s office has an Environmental Crimes Division and a Public Protection Division. It is also important to discover whether your state’s Attorney General is elected or appointed. Keep in mind that the Attorney General is the chief constitutional law enforcer of the state and that the basis of any later lawsuit will be a challenge to his actions in failing to initiate a corporate charter revocation action to protect the citizens of the state.

    The easiest way to identify which Attorney General bureaus you will be dealing with is to obtain a State Government Directory, which is available at schools and most local libraries, or from your state government itself. This will list, by department, the individuals that you will need to identify once the corporate charter revocation activity proceeds. Also be sure to record their telephone numbers and addresses, and the name of their Secretary.

    The internet will also be able to provide some of this information, concerning mailing addresses for the Attorney General’s office, and information on individual bureaus. You should look for an Attorney General bureau that deals with civil litigation or with Public Protection. Correspondence should be sent directly to the directors of these bureaus. If you should reach an improper bureau within the Attorney General’s Office, they will most likely refer the correspondence to the proper Bureau or Department. Through this process, you will then have a referral from one branch of the Attorney General to another, thus maximizing the potential for a response.

Step One: Know Thine Adversary

    It is essential in the beginning that your organization intimately understands the nature, character, and structure of the corporation that you are confronting. Front end research concerning these structural and informational matters will save you vast amounts of time later. Before you proceed to the next step, it is important that you assemble the following information. Taking time and energy to assemble relevant activities of the corporation is necessary, of course, because you will be trying to show that the corporation has "misused" or "abused" its charter powers by engaging in illegal behavior (i.e. breaking environmental laws and regulations, civil rights laws, anti-trust laws, etc.) or by engaging in activity that exceeds its charter powers or violates the public trust.

    First, before any steps are taken, attempt to secure a copy of the annual report of the corporation. These can be requested directly through the corporation’s main office. This should give you a good idea of the structure of the organization that you will be attacking. In addition, corporate reports filed with the Securities and Exchange Commission (SEC) will yield information concerning the structure, capitalization, and organization of the corporation.

1. Attempt to find an already completed and verified compliance history for the corporation. This will make your job much easier. Many states require corporations to file a "compliance history" each time that they request an additional permit, or when they apply for some other type of assistance or permission from the state. To find out if a compliance history is available, contact the legal staff in each of the major departments of the state environmental agency. Usually these departments are broken up by medium - i.e. Water, Air, Waste Management. If they have a compliance history, request a copy. You may be requested to pay a minimal copying fee, or to travel to the office itself to review the compliance history information.

   In addition, corporations that have broken federal laws and regulations may have a listing of violations with various federal agencies, including the Environmental Protection Agency (EPA) and the National Labor Relations Board (NLRB). Some of this information is also on-line and can be accessed through use of the internet.

   As a general note, you may want to obtain a copy of "The Activist’s Guide to Resources for Research Corporations", published by the Environmental Resources Information Network (ERIN), P.O. Box 19367, Washington, D.C. 20036 or at ndaly@essential.org. The full manual is currently on the Legal Defense Fund’s web page at http://www.envirolink.org/orgs/celdf.

2. If no compliance history is available, attempt to document the non-compliance of the corporation. Newspaper articles, court cases, etc. are some sources of information about corporate lawbreaking. Other available sources include the EPA’s database of violations, and state agency records of lawbreaking activity. Another source that can complete corporate research for you into the compliance activity of the corporation is the Environmental Background Information Center (EBIC), at 204 East Calder Way, Suite 305, State College, PA 16801, E-mail: ebic@envirolink.org., web page at http://www.envirolink.org/orgs/ebic. They will provide free and low-cost research to your organization concerning the compliance history of the corporation you are working against.
3. Lexis/Nexis, a computerized search library of media and environmental records is usually available through law schools free of charge to law students. You may want to secure a volunteer intern from a nearby law school for this purpose. Otherwise, access to this information is very expensive and time consuming. These database libraries will, however, be able to provide you with all of the necessary information if you locate someone that has access and experience.
4. For those groups with some funding ($500 - $1,000) contact George Draffan of the Public Information Network, at (206) 723-7417, or at pin@igc.apc.org. PIN completes compliance histories for some corporations and would be willing to undertake substantial research for low cost. The PIN webpage is located at http://violet.berkeley.edu/~orourke/PIN.html.

   CAUTION: Do not rely on secondhand compliance histories or efforts, as this type of information concerning compliance histories is many times, wrong. You should verify all secondhand information and do most of your own work so that you are absolutely sure of its accuracy. It would be silly to allow bad data to destroy your chance and opportunity to get a hearing on the revocation of the charter.

   State and federal records of violations, however, are ideal for charter revocation efforts, as they have been thoroughly researched and cataloged. Thus, only travel to secondary sources if absolutely necessary.

5. After you have compiled a compliance history for the corporation, issue a letter from your group to the Attorney General’s office. A sample letter is included in Appendix I of this manual. The letter should begin with a request to the Attorney General to initiate revocation proceedings in a state court, and should then list the language of the revocation statute for that state. Finally, list the non-compliance history of the corporation and end with a conclusion that the Attorney General should initiate revocation proceedings against the corporation.

   NOTE: It is very important that you place at the end of the letter, or somewhere in the text, this sentence: "This communication is being sent to you in an attempt to exhaust all administrative remedies." This sentence will allow you to later sue if necessary.

6. The typical Attorney General, wholly appointed or elected by special interests, will have little inclination to agree with you, regardless of how extensive and complete the compiled record concerning the corporation. THEREFORE, in addition to research and litigation efforts, there must be a public campaign to raise hell and organize, so the pressure builds on all the state’s constitutional officers and the judges are not unmindful of the clamor. This is not time just for letters and phone calls, but a time for strategy, planning, and a sustained effort. If you can’t do this, you should not be undertaking this endeavor.
7. This is as far as your group can take the charter revocation strategy, unless you wish to pursue charter revocation at the legal level. The next section addresses the steps that must be followed to accomplish this activity.

    A corporate charter revocation legal action is aimed at the state Attorney General for one central reason: the Attorney General is the only official (in most states) that is authorized to exercise the quo warranto power and request a state court to revoke a charter. Of course, the bigger picture includes focusing the effort onto the Governor, legislature, and state judges, to exert influence onto those bodies as well as the Attorney General.

    Note that in several states, including Alabama, Massachusetts, Mississippi, Tennessee (and others), the corporate charter revocation statute empowers private citizens to initiate charter revocation proceedings against corporations. Most times, these statutes establish certain procedures that must be followed to initiate the lawsuit, and usually require that the Attorney General review the filed complaint, to determine whether there is probable cause to bring the complaint. If you live in one of these states, you are urged to contact the Legal Defense Fund, so that the Fund can provide you with a sample citizen-driven Complaint for your organization to customize to your home state.

    An organization seeking to revoke a corporation’s charter must therefore usually proceed legally through the Attorney General. You will be suing to force the Attorney General to initiate a charter revocation action against the corporation. The form of the remedy requested will be "mandamus" which means that you are asking the court to order a government official to take some type of action - in this case, initiating charter revocation proceedings against a given corporation. Mandamus actions are typically used when (1) a public official fails to carry out a non-discretionary duty, and (2) no other remedies exist by which to remedy the problem.

    We’ve included a sample complaint in Appendix I of this book. Hopefully, it can serve as a guide to any litigation initiated under the guidelines of this book. The suit must be filed in the proper state court. In Pennsylvania, for example, the proper court would be the Commonwealth Court, which hears cases brought against state government officials and agencies. Below is a partial outline of the steps that must be taken in order to file in a state court:

NOTE: An organization that intends to continue down the litigation avenue should be (1) a substantive, organized group composed of folks that have learned to work together, with (2) time that can be spent talking about the goals of the action and who can train each other to speak to the press and to the public, and who (3) have the resources to adequately publicize the event, the goal, and the larger goals of the litigation and the group’s actions.

1. Locate the appropriate court which has the jurisdiction to hear the case. In general terms, if a special court is not designated within the state to hear claims against state agencies and officials, the court will generally be the trial court of the county in which the Attorney General’s principal office is located.
2. Draft a complaint, using the sample complaint contained in this guide as an example. The jurisdictional statute will differ from state to state, but the sample complaint is intended as a guide for you to follow through a listing of the violations and the request to force the Attorney General to initiate corporate charter revocation proceedings.
3. Contact CELDF prior to filing the complaint, so that the Fund can review the Complaint, correct any deficiencies, and advise you as to the procedural technicalities that must be followed during the filing process.
4. File the suit with the appropriate court.
5. The litigation process will begin, and CELDF will assist your organization with finding an attorney that can litigate the suit pro bono, or CELDF will assist your organization with prosecuting the suit pro se (without an attorney).
6. It is essential that your organization, as a plaintiff, devise a strategy through which spokespeople can raise the bigger issues involved in charter revocation, which include a restructuring of the corporation, a "re-thinking" of the corporate form, and an examination of the history of corporations within our society. To carry this out, some activities that may be helpful would be "role playing" to prepare for press contacts, the drafting of editorials concerning the power of corporations, and lots of discussion concerning the superiority of citizens over corporations. A good method by which to introduce these issues to your citizen group is by hosting a "Rethinking Corporations, Rethinking Democracy" seminar with a presenter from the Program on Corporations, Law, and Democracy (POCLAD), which can be reached at P.O. Box 246, South Yarmouth, MA 02664-0246, (508) 398-1145, or at people@poclad.org.
7. Publicize each stage of the litigation, through press conferences and press releases, and demonstrations surrounding the corporation’s establishments and activities.This would include, as mentioned above, the drafting of editorial articles that raise the bigger issues involved in the litigation. Enclosed in Appendix I there is a particularly notable example of how one organization has joined the battle against Weyerhaeuser Corporation.
8. The litigation will involve several general steps. First, an "Answer" will be filed by the Attorney General, followed by a "Motion to Dismiss" made by that office. This Motion will inevitably argue two main points: (1) that the Attorney General has total discretion over when and how to bring a charter revocation action, and (2) that the levying of statutory and regulatory fines and Notices of Violation, are "adequate" remedies for the lawbreaking of the corporation, and thus, a "mandamus" cause of action is inappropriate.
9. In general, and depending upon your state’s caselaw surrounding the charter revocation remedy, you will be responding to the above points by arguing that (1) the consistent history of lawbreaking overrides the Attorney General’s discretion, because the A.G. has been acting in an "arbitrary and capricious" manner by refusing to initiate revocation proceedings, especially because the A.G. has a history of revoking charters that extends up until the mid-1900’s (to find these cases, contact the Fund for directions on researching caselaw at your local law library), and (2) that the levying of fines and penalties obviously are not adequate to control the corporation’s lawbreaking, simply because it has not stopped the corporation from committing further violations of law. In addition, there is a powerful reply argument that should be made concerning the non-fulfillment by the Attorney General of his constitutional duty to protect the public from these corporate harms.
10. These steps will hopefully give your organization its best opportunity to revoke the charter of the corporation and to begin to discuss these larger issues in a public forum.

Won’t Charter Revocation Eliminate Thousands of Jobs?

    What the corporate leaders don’t tell you is that more individuals would be employed by smaller, community oriented businesses than large conglomerate operations. The giant mergers of the past several years are testaments to this statement. The larger the "merger", the more jobs that are lost. In addition, large corporations are basically "monopolies", and American law still treats monopolistic combinations as violative of anti-trust laws.

    It also works well to "turn the tables" on individuals traditionally on the "other side" of the fence. Many Republicans and conservatives, while praising the "free market" actually believe in the opposite - massive welfare and tax subsidies to corporations. Honest conservatives, however, believe that government should provide a level playing field (see Representative Kasich’s attempt to eliminate many corporate subsidies under the national budget provisions). Charter revocation does just that - gives all businesses an equal chance vis-a-vis other corporations to operate as long as they obey the law. The key argument to make to "honest" political conservatives is that charter revocation actually opens up a previously closed market, for more responsible, sustainable corporations to enter the marketplace. If we truly believe in open, competitive markets, then we should be in favor of charter revocation that eliminates monopolies and quasi-monopolies, because the revocation actions have the effect of reinforcing the "free" market, by clearing away unfair market practices.

What if My State Statute Makes it Difficult to Sue the Attorney General?

    The potential of charter revocation is not just in the lawsuit against the Attorney General. The real value of the charter revocation material is to educate and organize the public about corporations. By declaring that the citizen organization is asking the Attorney General to initiate revocation proceedings in a state court, your actions will inevitably open the minds of many individuals who have never before questioned the legitimacy of corporations. By undertaking the research necessary for a charter revocation action, and by learning about the corporate structure, citizen activists are on much better ground to pursue any other organizing and activist tactics. In other words, assembling a charter revocation action gives you information and knowledge that can be put to good use for other exercises, even in the event that a charter revocation suit is unsuccessful.

Why Do Businesses Incorporate in the First Place?

    Businesses incorporate for many reasons, but the primary reason to incorporate is to gain "limited liability." Limited liability means that if the corporation is sued, the wealth of the individuals that run the corporation can’t be touched. What this means is that the corporation can create a Superfund (toxic) dumping site, discard it, and any person injured by the site can only recover the monies that exist within the corporation. The individuals that made the decisions in the first place within the corporation cannot be touched by a lawsuit against the corporation. This results in a bankrupt corporation and a cleanup financed by the taxpayer.

    Businesses incorporate for other reasons - including the corporation’s ability to "write-off" any reasonable and necessary business expenses under I.R.S. regulations. Thus, in many cases in which corporations are sued and large financial penalties are assessed, the corporation is not "injured" at all - and is able to deduct these expenses from revenues for taxation purposes. In addition, corporations have perpetual life and are protected by the Bill of Rights to the U.S. Constitution as a result of an 1886 Supreme Court decision.

Don’t Corporations Get Fined for Their Unlawful Behavior?

    Yes, corporations are fined for their behavior, but as noted in the earlier passages, the fines are never as high as they should be, and the corporation has the ability to "shift" the cost of the penalties onto the consumer, by raising prices of their products. This means that the consumer ends up paying the cost of the penalty or fine. In addition, the cost of most fines, as well as the cost of attorneys and other individuals necessary to defend the charges, are tax deductible, as "necessary business expenses". Thus, the corporation can never be "punished" through these mechanisms, because the public always ends up paying the bill.

How Do We Maximize Our Chances of Success Through a Lawsuit?

    There are several steps that you can take to give your lawsuit the highest chances of success. First, painstaking and time consuming research can yield a very complete and accurate non-compliance history for your corporation. Since all activities from the press releases to the lawsuit rely upon this listing of corporate crimes, it is essential that this history be accurate and up to date.

    Second, be sure to choose plaintiffs that have been "injured" by the activities of the corporation. This would include plaintiffs who reside adjacent to a landfill operated by the company, or who have been affected in some way by the operations of the corporation. This step will ensure that the lawsuit will remain in court and not be dismissed.

    Third, attempt to locate an attorney that can advise you throughout the suit. Local attorneys are very important because they are aware of any local rules that may apply to the case. CELDF can assist the suit in a general way, but only local attorneys are in a position to advise the plaintiffs concerning specific, technical rules that may apply to the litigation.

    Fourth, make a determined attempt to locate the cases that have previously been decided, in your state, under the corporate charter revocation statute. Copy these cases, which will be referred to underneath the statute itself, and use them throughout the litigation to prove the points made in the Complaint. This caselaw may prove to be very persuasive to the judge.

    Fifth, make your organization a part of a massive political and organizing movement for democracy by redefining the corporation and by raising the bigger issues for public debate and discussion.

I. Pre-Research and Pre-Litigation (6 months to a year)

    Raising funds for expenses and costs for the potential plaintiff organizations, holding discussions and debates concerning the corporate form and the destructive nature of the corporate structure, choosing a clear goal and a framework to reach those goals, exploring various strategies to reach those goals and to raise the public debate concerning corporations. Also, publishing articles in local newspapers, submitting letters to the editor, organizing and exciting the members of your group, hosting a guest speaker on corporations and charter revocation.

1. Days 1-60

   Assembling of the compliance history for the targeted corporation, either through the state or through independent informational sources; locating the corporate charter revocation statue and any relevant cases that have been decided under the statute.

2. Days 60-80

   Assembling and sending a letter to the Attorney General that demands that he/she initiate charter revocation proceedings in state court. This letter should include a copy of the charter revocation statute, along with a listing of the violations that the company has committed; wide distribution of this material to citizens and activists in the state.

3. Day 81

   Press conference and press release announcing the sending of the request to the Attorney General; demonstrations outside of the Attorney General’s office; demonstrations outside of corporate headquarters; attention grabbing headlines, e.g. "5, 193 strikes and still not 'out' - Waste Management in Pennsylvania".

4. Days 82-102

   Phone and letter writing campaign to the Attorney General’s Office, demanding that the Attorney General initiate charter revocation proceedings in state court. Placing immense public and organizational pressure upon the various legislators, judges, and state constitutional officers that will become involved in the coming years.

5. Day 103-133

   Assembling the necessary information for the lawsuit; contacting the Legal Defense Fund; drafting the complaint against the state Attorney General; locating pro bono counsel or selecting pro se litigants; wide distribution of complaint and associated materials to educate state activists and citizens.

6. Day 134

Richard Grossman and Frank T. Adams, Taking Care of Business: Citizenship and the Charter of Incorporation (1993).

Thomas Linzey, Awakening a Sleeping Giant: Creating a Quasi-Private Cause of Action for Revoking Corporate Charters in Response to Environmental Violations, 13 Pace Environmental Law Review 219 (1995).

Jane Anne Morris, Legacy of the Founding Parents, Rachel’s Environment & Health Weekly #488 (published by the Environmental Research Foundation, erf@rachel.clark.net).

Jane Anne Morris, Corporations for the Seventh Generation, Rachel’s Environment & Health Weekly #489.

Jane Anne Morris, American Needs a Law Prohibiting All Corporate Donations, Rachel’s Environment & Health Weekly #502.

Morton Horwitz, The Transformation of American Law, 1780-1860 (1977).

Richard Kazis and Richard Grossman, Fear At Work: Job Blackmail, Labor & the Environment (1992).

David Korten, When Corporations Rule the World (1995).

Corporate Crime Reporter (periodical), available from P.O. Box 18384, Washington, D.C. 20036, (202) 737-1680.

September 15, 1995

Attorney General Christine Gregoire
1125 Washington
P.O. Box 40100
Olympia, WA 98504-0100

Dear Attorney General Gregoire,

    We are writing to you to urge the Attorney General’s office to begin corporate charter revocation proceedings against Weyerhaeuser Corporation, which is chartered in Washington State. Under Wash. Rev. Code §23B.14.300, the attorney general is authorized to petition the superior court to dissolve a corporation if "[t]he corporation has continued to exceed or abuse the authority conferred upon it by law." See §23B.14.300(1)(b).

    Weyerhaeuser Corporation is a potentially responsible party (PRP) at thirteen Superfund sites and has been cited as being in violation of the Shoreline Act by a Washington State Assistant Attorney General, who called the Toutle River salvage logging "the largest and most blatant violation of the State Shoreline Act." In addition, between 1985 and 1991, the Washington Department of Ecology recorded 137 pollution notices, orders, and/or penalties against the Corporation.

    In Aberdeen, Washington, 241 residents sought damages in individual suits, when they suffered health effects they alleged were caused by pulp mill waste ponds. Weyerhaeuser Corporation was indicted in 1940 with Boise Cascade and Potlatch for anti-trust violations and was convicted and fined for price fixing with the same two corporations in 1978. In 1992, Weyerhaeuser Corporation was investigated for price gouging in Florida, in connection with the effects of Hurricane Andrew. In Longview, the Corporation was assessed the largest penalty ever for dangerous waste violations, which included unlabeled tanks and drums, and pentachlorophenol "spilling onto the ground" with "a potential for the material to get into the Columbia River."

    In addition, in 1991, Weyerhaeuser was fined $926,000 in New Bern, North Carolina for emitting ash into the air from its plant. On November 25, 1991, several timber companies sued Weyerhaeuser, alleging violations of federal antitrust laws for marketing and financing agreements. On July 28, 1987, the Washington Department of Ecology fined Weyerhaeuser $2,000 for clean air act violations in Cosmopolis and $1,000 for a chemical spill in Longview. Between 1981-1986, the Longview Plant violated its permits 450 times, by bypassing treatment, emitting excessive solids, chlorine violations, spills, and discharge of excessive oxygen consuming chemicals. On October 9, 1986, Weyerhaeuser was fined $10,000 for two violations of the pollution ban. On September 9, 1986, Weyerhaeuser pleaded "no contest" to violations of the State Forest Practices Act. On November 10, 1981, the Washington Department of Ecology fined Weyerhaeuser $7,000 for discharge of sulfur compounds into the air at the pulp mill at Longview.

    More recently, Weyerhaeuser has been fined for their violations of state and federal law. On August 16, 1995, the EPA proposed a $225,000 penalty for violation of the Superfund law and the Community Right to Know Act (EPCRTKA, 42 U.S.C. §11001 et seq.) against Weyerhaeuser for a chlorine release. In 1990, Weyerhaeuser settled for $1 million to extinguish any liability for the environmental degradation at the Stringfellow Acid Pits dumping site in Glen Avon, CA. Weyerhaeuser was also sued for anti-trust violations in 1981 by the Federal Trade Commission (See FTC v. Weyerhaeuser, 648 F.2d 739 (1981)). In 1994, Weyerhaeuser was fined $375,000 for illegal air emissions produced by its plants at Mountain Pine and Dierks, Arkansas. In addition, as of May 28, 1995, Weyerhaeuser lacks a permit to emit Volatile Organic Compounds (VOCs) from its Norpac pulp and paper mill in Longview.

    In addition to these illegal activities, the Corporation has been engaged in many unconscionable activities as well. These include the conversion of forest into tree farms and urban uses, its clearcutting of four million acres (600,000 of which has not been replanted), the destruction of wetland areas in Saddle Swamp at Beaver Lake on East Sammamish Plateau, occupational safety and health violations, publicly subsidized dredging on the Chehalis river, and a stated intent to drive small independent companies out of business. Many of these activities, even if performed under the approval of an administrative agency, may still be in violation of customary international law, which prohibits widescale environmental degradation.

    Overall, Weyerhaeuser Corporation’s activities have been performed in blatant and fragrant violation of the laws of the State of Washington. This consistent and persistent history of environmental violations has clearly made Weyerhaeuser a candidate for corporate charter revocation under 23B.14.300, because the Corporation has abused the authority granted to it under its State charter. As a former director of the Washington State Department of Ecology, you have observed firsthand the widespread destruction wrought by these immense corporations. To make matters worse, many times these corporations channel some of their wealth to support anti-environmental electoral candidates. You are one of the few Attorney Generals that has extensive experience in the environmental field. Hopefully, having seen the harmful activities of Weyerhaeuser, you will be willing to voluntarily initiate corporate charter revocation proceedings against Weyerhaeuser Corporation. It is important, in the end analysis, to realize that the corporations exist upon a grant of authority from the state and that they must follow the regulations and dictates established by that sovereign body.

    We urge you to begin proceedings to revoke the charter of Weyerhaeuser Corporation in light of its unlawful and unconscionable activities and we are sending you this communication to exhaust our administrative remedies concerning this matter.
 
Sincerely,

Blue Mountains Biodiversity Project
Community Environmental Legal Defense Fund (CELDF)

    This litigation challenges the inaction of the Pennsylvania Attorney General’s Office under the Pennsylvania charter revocation statute, located at 15 Pa.C.S.A. §503 (West 1994). The Attorney General of Pennsylvania has failed to initiate charter revocation proceedings against Waste Management, Incorporated and Chemical Waste Management, Incorporated and their assorted wholly owned subsidiary corporations. These corporations and their subsidiaries conduct business in the Commonwealth of Pennsylvania and have consistently violated statutory and regulatory law of the Commonwealth of Pennsylvania.

    These two corporations and their subsidiaries hold Certificates of Authority to Do Business within the Commonwealth. Under the charter revocation statute, non-compliance with the law of the Commonwealth subjects them to cancellation of their right to do business within this Commonwealth. Plaintiffs, who have been injured by these corporations’ business practices, request that this Court (1) declare that the

    Attorney General’s inaction has been arbitrary and capricious, and (2) issue a writ of mandamus requiring the Attorney General’s office to begin revocation proceedings against these corporations.

1. Plaintiff Community Environmental Legal Defense Fund (CELDF) is a Pennsylvania non-profit corporation and is a federally recognized 501(c)(3) non-profit corporation. Plaintiff CELDF’s mailing address is 2859 Scotland Road, Chambersburg, PA 17201.
2. Plaintiff Rose Mager is a member of Antrim Residents Against Garbage Expansion (A.R.A.G.E.) and has been concretely injured by the activities of Waste Management, Incorporated. Plaintiff Mager’s mailing address is 12523 Randy Drive, Greencastle, PA 17225.
3. Plaintiff Antrim Residents Against Garbage Expansion (A.R.A.G.E.) is an unincorporated association formed in opposition to a proposed landfill expansion in Antrim Township, Franklin County, Pennsylvania. Plaintiff A.R.A.G.E.’s mailing address is 12523 Randy Drive, Greencastle, PA 17225.
4. Plaintiff Judy Rizzo is a member of A.R.A.G.E. and inhabits a dwelling immediately adjacent to Mountainview Reclamation, a landfill operated by Waste Management, Incorporated.
5. Plaintiff Diane Kring inhabits a dwelling immediately adjacent to a landfill owned and operated by Waste Management, Incorporated. Plaintiff Kring’s mailing address is R.D. 3 Box 314A, Mt. Pleasant, PA 15666.
6. Thomas Corbett is the Attorney General of the Commonwealth of Pennsylvania.
7. Renardo Hicks is the Deputy Attorney General and is head of the Public Protection Division of the Attorney General’s Office in Pennsylvania.
8. Mark Bellavia is a Deputy Attorney General and heads the Environmental Crimes Division of the Office of Attorney General in Pennsylvania. II. Jurisdiction
9. This is an action for injunctive and declaratory relief brought against officers of the Commonwealth of Pennsylvania. Original jurisdiction therefore lies in this Court pursuant to 42 Pa. C.S. §761.   III. Statement of the Facts
10. WMX, Technologies is the parent company of Waste Management, Incorporated and Chemical Waste Management, Incorporated.
11. Waste Management, Incorporated is a wholly owned subsidiary of WMX, Technologies.
12. Waste Management, Incorporated is a corporation incorporated in the state of Delaware with a Certificate of Authority to Do Business in the Commonwealth of Pennsylvania.
13. Chemical Waste Management, Incorporated is a corporation incorporated in the state of Delaware with a Certificate of Authority to Do Business in the Commonwealth of Pennsylvania. This Certificate states that Chemical Waste Management is authorized to "integrate hazardous waste management services" in the Commonwealth of Pennsylvania.
14. Waste Management, Incorporated and Chemical Waste Management, Incorporated and their subsidiaries have violated Pennsylvania law. A partial list of specific Pennsylvania subsidiaries and their violations are listed below.
15. SCA Services of PA, Inc. was alleged to be in violation of several regulations ten separate times in the period between 1983-1991. On August 10, 1992, the company was accused of maintaining inadequate daily cover at the Pottstown Landfill. On February 2, 1994, the company was issued a Notice of Violation by DER for eight different violations.
16. Delaware County Transfer Station #3 was notified by D.E.R of two potential violations while operating between 1981 and 1984.
17. The G.R.O.W.S Landfill was notified twelve times between 1982 and 1989 that a violation had occurred or was occurring. On January 13, 1994, the operators of the Landfill were found to be in violation of their Solid Waste Permit for failing to adequately maintain the Landfill. On January 27, 1994, the operators were once again found to be in violation, on the same grounds as the Notice of Violation filed a week earlier.
18. The River Road Landfill, was notified three times of violations between 1984 and 1985.
19. Lake View Landfill was notified of five violations between 1986 and 1988. On April 28, 1993, the landfill was notified that they had allowed excess leachate accumulation and had failed to indicate emergency leachate treatment and disposal measures in their daily operating reports.
20. Waste Management of Pennsylvania - Allentown was cited twice between 1990-1991. On May 7, 1993, the company was notified that they had failed to submit water sampling results for the first quarter of 1993.
21. The Philadelphia Transfer Facility was cited once in 1991. On January 19, 1994, DER issued a notice of violation for the facility’s failure to confine solid waste to loading and unloading areas, and several other violations. On April 1, 1994, the facility was notified that they were in violation of Act 101 for disposing of Delaware County waste in violation of the Waste Management Plan for that county.
22. Community Refuse Disposal was issued a notice of violation for violating provisions of the Solid Waste Management Act.
23. Waste Automation was assessed a penalty for its violation, on January 23, 1992, of the Solid Waste Management Act.
24. Waste Management of Central Pennsylvania was issued notices of alleged violations for failing to carry required documentation within their hauling trucks.
25. Waste Management of Hazleton was the recipient of a Civil Penalty Assessment for failing to manage municipal waste during transportation.
26. Waste Management of Scranton received a Civil Penalty Assessment on September 24, 1992 for transporting municipal waste in an improperly enclosed vehicle.
27. Waste Management of PA-Erie was cited for failing to transport municipal waste in a properly enclosed vehicle.
28. Waste Management of Pittsburgh was assessed a Civil Penalty Assessment on November 18, 1992 for failing to manage municipal waste during transportation to prevent leakage.
29. Tullytown Resource Recovery Facility was cited on November 17, 1993 for failure to manage soil erosion in accordance with Pennsylvania regulations. The same facility was cited on March 10, 1994 for allowing a point source discharge and for allowing run-off without preventing sedimentation.
30. The Forge, Inc. was notified of violations six different times between 1986 and 1989. The company was also cited on January 24, 1992 for transporting solid waste in a vehicle which failed to exhibit proper identification of the waste that it was carrying.
31. Modern Trash Removal of York, Inc was notified of violations five separate times between 1981 and 1991. On February 19, 1993, the company was alleged to be in violation of the Air Pollution Control Act. On April 12, 1993, the company was alleged to be in violation of Act 101 and the Berks County Municipal Waste Management Ordinance 1-92. On June 7, 1993, the company was once again notified of a violation of the Air Pollution Control Act. On July 9, 1993, the company was again notified of a violation of the Air Pollution Control Act.
32. Ziegler’s Refuse Collectors, Inc., also a subsidiary of these two corporations, was cited twice in 1984 by D.E.R.
33. Y&S Maintenance, Inc. was notified of two violations between 1987 and 1988. On January 11, 1994, the company received a notice of violation for violating an earlier discharge approval letter issued by DER.
34. Community Refuse, Limited was notified of violations twice between 1987 and 1991.
35. Pottsville Sanitation Service, Inc. was notified of a violation in 1986.
36. The Pottsville Sanitation Resource Recovery Station was notified of violations five separate times between 1987 and 1990.
37. City Disposal Service, Inc. was notified of violations three times between 1989 and 1990.
38. Bristol Recycling, Inc. was notified of violations twice between 1989 and 1991.
39. Northeast Disposal, Inc. was notified of a violation twice in 1989. The company was also assessed a civil penalty on January 24, 1992 for committing violations of the Solid Waste Management Act. On September 2, 1992 the company was assessed a civil penalty for violations of Act 101.
40. Nu-Way Trash Removal Corp. was notified of violations five times from 1989 to 1991. On June 25, 1991, the company was cited for alleged drainage violations. On September 24, 1992, the company was issued an alleged violation for failing to maintain an operation report in the cab of company vehicles. On November 10, 1992, DEP issued an alleged violation against the company for its failure to transport municipal waste in an enclosed vehicle.
41. The Warner Company, a subsidiary of Waste Management, Inc., was notified of violations sixteen (16) separate times between 1981 and 1984. On June 25, 1992, the company was cited for an alleged violation of fugitive emissions of particulate matter. On September 23, 1992, the company was cited for its alleged violation to install and maintain permit area markers. On January 5, 1993, DEP issued an alleged violation against the company for unapproved disposal of yard cleanup wastes. On June 25, 1993, the company was cited for the alleged violation of failing to prevent fugitive emissions from roadways. On April 25, 1994, the company was cited for improperly maintaining slopes and gullies and for not properly maintaining storm water detention facilities. On April 28, 1994, the DER issued a citation of an alleged violation for allowing fugitive emissions from crushing, screening, and stockpiling activities.
42. Northwest Sanitary Landfill, Inc. was notified of a violation in 1992 by D.E.R.
43. John T. Dyer Quarry Company was issued a notice of violation by DER on September 15, 1989 for alleged soil contamination. On August 1, 1991, DER notified the company that they had failed to maintain adequate sediment control measures.
44. S&D Coal Operation was cited on July 9, 1982 for a water discharge violation.
45. Warner Slag & Gravel West Side Operation was cited on October 22, 1982 for failing to allow cooling of slag prior to crushing. The operation was cited on October 4, 1983 for filling in a wetland area. On July 9, 1984, the operation was cited for emitting particulates from its baghouse. The company paid $30,000 to the Clean Air Fund.
46. Alderfer & Frank was cited and paid a civil penalty on January 24, 1992 for allegedly violating Act 101. The company was also cited on September 25, 1992 for another alleged violation of Act 101.
47. Waste Management of West Virginia, Inc was cited three separate times in 1992 for being in violation of Act 101 and the Solid Waste Management Act.
48. Waste Systems of Maryland and Interstate Waste Removal also were issued alleged violations of Act 101 in 1992.
49. Chemical Waste Management recently plead guilty in the United States District Court for the Middle District of Pennsylvania to six counts on October 9, 1992 of charges that the corporation committed a felony by not reporting a "release of a reportable quantity of a hazardous substance."
50. Waste Management, Incorporated and its subsidiaries have committed various violations of Pennsylvania regulatory and statutory law over the past ten years, which have been documented by the corporation and filed with the Commonwealth of Pennsylvania’s Department of Environmental Protection.
51. Chemical Waste Management has committed various violations of state law and state regulations over the past five years, which have been documented by the corporation and filed with the Commonwealth of Pennsylvania’s Department of Environmental Protection.
52. On May 15, 1996, the Plaintiffs delivered a packet to the defendants’ offices. The packet included (a) the compliance history for Waste Management, Incorporated and its subsidiaries in Pennsylvania, (b) A law review article outlining the charter revocation statutes, (c) a letter urging the Attorney General’s office to begin charter revocation proceedings against Waste Management, Incorporated, its subsidiaries, and Chemical Waste Management, Incorporated and its subsidiaries.
53. Plaintiffs have exhausted all administrative remedies.
54. Violations of Commonwealth of Pennsylvania statutes and regulations constitute misuse and abuse of charter powers as required under 15 Pa.C.S.A. §503, and therefore constitute grounds for revocation of the Certificate of Authority to Do Business in the Commonwealth of Pennsylvania.
55. As of the date of the filing of this complaint, no action has been taken by the Defendants to revoke the charter of Waste Management, Incorporated and its subsidiaries, or Chemical Waste Management, Incorporated and its subsidiaries.
56. All other remedies for the violations of statutory and regulatory law have proven to be inadequate. IV. Counts/Allegations
57. Lines 1-40 are re-alleged here.

    It is alleged that

58. Waste Management Incorporated and Chemical Waste Management Incorporated, and their subsidiaries have a consistent history of violations of regulatory and statutory law in the Commonwealth of Pennsylvania;
59. These violations of law by the corporations constitute "misuse" and "abuse" of the rights granted to them to do business in the Commonwealth of Pennsylvania, as defined under 15 Pa.C.S.A. §503 (West 1994);
60. Under Pennsylvania law, foreign corporations are not granted greater rights than domestic corporations;
61. That the Defendants in the instant litigation have acted "arbitrarily and capriciously" in not initiating a charter revocation action against Waste Management, Incorporated, Chemical Waste Management, Incorporated and their subsidiary corporations;
62. That the Defendants have abused their discretion in not initiating a corporate charter revocation action under 15 Pa.C.S.A. §503 against Waste Management Incorporated, Chemical Waste Management, Incorporated and their subsidiary corporations operating within the Commonwealth of Pennsylvania.

1. That this Court grant a writ of mandamus that orders the Defendants to initiate charter revocation actions against Waste Management Incorporated, Chemical Waste Management, Incorporated and their subsidiary corporations.
2. That this Court issue a declaratory judgment that the Defendants have abused their discretion and acted "arbitrarily and capriciously" in not initiating a corporate charter revocation action against Waste Management, Incorporated, Chemical Waste Management, Incorporated and their subsidiaries.
3. Any other action that this Court determines to be appropriate.

_________________________

Thomas Alan Linzey, Esq.
Supreme Court I.D. #76069
Community Environmental Legal Defense Fund (CELDF)
2859 Scotland Road
Shippensburg, Pennsylvania 17257
(717) 709-0457
(717) 709-0263 (fax)
 
Dated this _______day of December, 1995.

The New York Times
Saturday, May 2, 1998
Page A8

    A New York state judge appointed receivers today for two tax-exempt, tobacco-funded groups that the state Attorney General is trying to put out of business as industry propaganda fronts.

    Justice Stephen Crane of State Supreme Court appointed a former judge, Walter Schackman, to run the Council for Tobacco Research, and a lawyer, Milton Gould, to run the Tobacco Institute.

    Judge Crane also ordered each group to file a $500,000 bond and provide a statement of assets and liabilities, names of creditors and claimants and all other information relevant to dissolution proceedings.

    Attorney General Dennis Vacco of New York said on Thursday that he was moving to revoke the groups’ tax-free status as not-for-profit research and information organizations because they violated their charters. Mr. Vacco accused the groups of posing as nonprofit groups while, at taxpayer expense, they "fed the public a pack of lies in an underhanded effort to promote smoking and addict our kids."

Wall Street Journal
May 4, 1998

    New York - a New York state judge ordered two groups financed by the tobacco industry placed in receivership pending a hearing on whether the organizations should be closed altogether.

    Justice Stephen G. Crane’s move came in response to a petition by New York Attorney General Dennis Vacco to close Tobacco Institute, Inc. and Council for Tobacco Research USA Inc. Mr. Vacco alleges that the groups, which are registered as nonprofit organizations in New York, have abused their tax-exempt status by serving as "propaganda arms" of tobacco companies and disseminating misinformation about smoking’s health effects. 

    Court-appointed temporary receivers will "preserve the property" of both groups until a June 8 hearing on whether they should be dissolved, according to the judge’s order. A spokesman for the attorney general said receivers were needed to ensure that documents wouldn’t be removed. Judge Crane appointed retired state court Judge Walter Schackman and Attorney Milton Gould as receivers.

    A Tobacco Institute spokesman said the group looks forward to demonstrating at a hearing that the action is improper. A spokesman for the Council for Tobacco Research couldn’t immediately be reached.

    A Birmingham judge said Wednesday that he has found a way for Alabama to cash in on the crusade against tobacco companies without lining the pockets of private lawyers.

    Jefferson County Circuit Judge William Wynn claims five tobacco companies that operate in Alabama should have their corporate charters revoked for contributing to the use of tobacco by Alabama children and teenagers, plus other alleged wrongdoing.

    In court papers he filed Wednesday as an individual citizen, Wynn says the state should act on his behalf in pursuing big tobacco companies - something the state’s attorney general has so far refused to do. He compared his action to making a citizen’s arrest.

    "This is the only way I can think to get the state going down that road like other states have done." Wynn said late Wednesday. "We’ve got folks in poverty and lower education levels and we get nothing and don’t even try. It’s more than I can stand."

    Alabama Attorney General Bill Pryor is opposed to suing the tobacco companies and instead tried, unsuccessfully, to convince the Alabama Legislature to hit them with a $3.0 billion assessment over 20 years. Other states have sued big tobacco companies for medical expenses on citizens who had smoking-related illnesses, and previous negotiations between the companies and the states brought discussion of multi-billion dollar settlements.

    Wynn acknowledges he is using an obscure section of Alabama law that allows a citizen to challenge the charter of a corporation found to have violated state law. "This action belongs to the state. Any money would go to the state and there are no attorney’s fees," Wynn said. "I can’t believe somebody didn’t find it."

    Wynn asks the court to take note of evidence presented in other states and before the U.S. Senate about nicotine addiction, the risks of smoking, the costs of medical care for smoking-related illnesses, and the role of big tobacco companies in addressing those concerns.

    If found to be in violation of the laws Wynn cites, the corporations would be shut down in Alabama and forced to reincorporate, or they could "deal with the state of Alabama and make some reparation for medical expenses and all other expenses that have been incurred by persons unknowingly becoming targeted and thereby addicted to nicotine, especially and almost exclusively in this case, minors."

    The case does not cite a dollar amount. No other lawyer would take his case, so Wynn said he is pursuing it alone.

    "The grease has been hot for a year now, and it’s time to put the chicken in." Wynn said.

    Representatives of the tobacco companies in Alabama could not be reached late Wednesday. The court action names Philip Morris, Inc., Brown & Williamson, Inc., The Liggett Group, Inc., R.J. Reynolds Tobacco Inc., and Lorillard Corp. as defendants.