United States Court of Appeals For the Seventh Circuit ____________________ No. 20-2244 SEAFARERS PENSION PLAN, derivatively on behalf of The Boeing Company, Plaintiff-Appellant,

v. ROBERT A. BRADWAY, et al., Defendants-Appellees,

and THE BOEING COMPANY, Nominal Defendant-Appellee. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:19-CV-08095 — Harry D. Leinenweber, Judge. ____________________

ARGUED NOVEMBER 30, 2020 — DECIDED JANUARY 7, 2022 ____________________

Before EASTERBROOK, WOOD, and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. On October 29, 2018, a Boeing 737 MAX airliner crashed in the sea near Indonesia, killing 2 No. 20-2244 everyone on board. A few months later, on March 10, 2019, a second 737 MAX crashed in Ethiopia, again killing everyone on board. Within days of the second crash, all 737 MAX air- liners around the world were grounded. The United States Federal Aviation Administration kept the planes grounded until November 18, 2020, when it was satisfied that serious problems with the planes’ flight control systems had been cor- rected. In December 2019, plaintiff Seafarers Pension Plan, a shareholder of the Boeing Company, filed this derivative suit on behalf of Boeing under Section 14(a) of the Securities Ex- change Act of 1934, 15 U.S.C. § 78n(a)(1). The suit alleges that Boeing officers and board members made materially false and misleading public statements about the development and op- eration of the 737 MAX in Boeing’s 2017, 2018, and 2019 proxy materials. The district court dismissed the suit without ad- dressing the merits, applying a Boeing bylaw that gives the company the right to insist that any derivative actions be filed in the Delaware Court of Chancery. We reverse. Because the federal Exchange Act gives federal courts exclusive jurisdic- tion over actions under it, applying the bylaw to this case would mean that plaintiff’s derivative Section 14(a) action may not be heard in any forum. That result would be contrary to Delaware corporation law, which respects the non-waiver provision in Section 29(a) of the federal Exchange Act, 15 U.S.C. § 78cc(a). I. Factual and Procedural Background The Boeing Company is an international aerospace com- pany headquartered in Illinois and incorporated under Dela- ware law. Plaintiff Seafarers Pension Plan is a Boeing share- holder. In addition to the loss of 346 lives, the 737 MAX No. 20-2244 3 accidents and the subsequent grounding of all 737 MAX planes and ensuing investigations and litigation will end up costing Boeing billions of dollars. This case is a part of that larger picture, but it presents issues that do not call upon us to address the merits of plaintiff’s claims or their role in the larger aftermath of the 737 MAX crashes. The Seafarers Plan filed this derivative suit under Section 14(a) of the Securities Exchange Act of 1934 alleging that Boe- ing’s current and former officers and directors disseminated materially false and misleading proxy statements from 2017 through 2019. See 15 U.S.C. § 78n(a)(1); 17 C.F.R. § 240.14a-9. The Exchange Act gives federal courts exclusive jurisdiction over suits filed under the Act. 15 U.S.C. § 78aa. The Seafarers Plan therefore filed its complaint in the Northern District of Illinois, where Boeing is headquartered. The defendants moved to dismiss based on the doctrine of forum non conveniens, invoking a Boeing bylaw that pro- vides in relevant part: With respect to any action arising out of any act or omissi