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SUPERIOR COURT ' THORSi ON COUNTY. WARon.

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FILED

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BETTY J. GOULD~ CLERK

SUPERIOR COURT OF WASHThIGTON FOR THURSTON COUNTY KENT 1. and LO'IDA DAVlS; JEFFREY and SUSAN TRlN1N"; and SUSAN N1AYER derivatively on behalf of
OL~IA FOOD COOPERATIVE.

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No.

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CO:MPLAINT FOR RELIEF AND DAlvL\GES

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KASZYNSKI; JAC$IE lCRZYZEK; JESSI-et LAlNG; RON1LAVIGNE; ,\ BARR)' ~mE; ER!~cMAPES; JCDHN NASON; JOHN2REGAN; ROB RlC~S; SU~ SHAFER; JUUA_ SOKOLOFF; andJaaLEN REINECK WILHELM~ Defendants.
Plaintiffs Kent L, and Linda Davis, Jeffrey and SUSIDl Trinin, and Susan Mayer, derivatively on behalf of Olympia Food Cooperative (referred to herein as "OFC,) (referred

GRACE COX; ROCHELLE GAUSE; ERlN GENIA; .T.1.%HNSON; JA~

to collectively herein as "Plaintiffs'),

allege as follows!

I. PARTIES
1., Plaintiff OFC is a non-profit cooperative association organized under the

laws of Washington State, with its principal place of business in Olympia, Washington,

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COlV1PLAWT ·FOR RELIEF AND DAMAGES ~ Page 1
McNAUL IJ>.W OFFICES OJ' BeEL NA\Vll.OT & HELGREN PLLC \SilO Unn=ity SneI. SullC-l?fJO

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2. Plaintiffs Kent 1. and Linda Davis are married and reside in Thurston County, Washington, They have been members of OFe at all relevant times. 3. . Plaintiffs Jeffrey and Susan Trinin are married and reside in Thurston They have been members of OFe at all relevant times. Susan Trinin

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4 5 6 7 8· been

County. Washington.

was formerly President of the Board of Directors (referred to herein as the "Board") of
·OFC.

4.

. Plaintiff Susan. Mayer resides in Thurston County, Washington. of OFe at all relevant times.

She has

a member
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s
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Defendant Grace Cox is a resident of Thurston County, Washington and a

staff member of OFC; was a member of the Board ofOFC at or after the point at which the Board enacted policies regarding a boycott of Israeli-made products (referred to herein as the "Israel Boycott") and divestment from Israel (referred to herein as "Divestment"); no longer a member of the Board ofOFe. . 6.
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but is

Defendant Rochelle Gause is a resident of Thurston County. Washington and

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a member of the Board of 7,

ope.

Defendant Erin Geaia is a resident of Thurston County, Washington and a

member of the Board of OFC. 8. Defendant T.J. Johnson is a resident of Thurston County. Washington and a

member of the Board of OFC.
9. Defendant Jayne Kaszynski is a resident of Thurston County, Washington; a

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staffmember of QFC; and a member of the Board of OFC. 10. Defendant Jackie Krzyzek is a resident of Thurston County> W ashington;

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was a member of the Board of

ope at the time

the Board enacted the Israel Boycott and

Divestment policies; but is no longer a member of the Board of

ope.

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CONfPLAn..Jr FOR RELIEF AND DAMAGES - Page 2
LAW OFFICES Or McNAUL EBEL NA WROi & HaOll.EN 600 Un~lY S1rC!;~Suim2700 s..(!!~ W"-$l\;nglOJJ911101.' 1~3 0(6) 4G1.1S16
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11.

Defendant Jessica Laing is a resident of Thurston County, Washington; was

.a member of the Board of OFC at the time the Board enacted the Israel Boycott and
Divestment policies; but is no longer a member of the Board of OFC.
12.

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Defendant Ron Lavigne is a resident of Thurston County, Washington and a

member of the Board of 13. Defendant

ope.
Harry Levine is a resident of ThurstonCounty,
Washington; was

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an OFC staff member and member of the Board of OFe at the time the Board enacted the
Israel Boycott and Divestment policies; but is no longer a member of the Board of OFC. 14_ Defendant Eric Mapes is a resident of Thurston County) Washington and a

member of the Board of OFC.
15. Defendant John Nason is a resident of Thurston County, Washington and a

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member of the Board of OFC.
16.

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Defendant John Regan is a resident of Thurston County) Washington and a

member of the Board ofOFC. . 17. Defendant Rob Richards is a resident of Thurston County) Washington and a

member of the Board ofOFC.
18.

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Defendant Suzanne Shafer is a resident of Thurston County, Washington;

was a member of the Board of OFC at the time the Board enacted the Israel Boycott and Divestment policies; but is no longer a member of the Board of OFe.
19.

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Defendant Julia Sokoloffis a resident of Thurston County, Washington and a

member of the Board. of

ope.

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20.

Defendant Joellen Reineck Wilhelm is a resident of Thurston County)

Washington; was a member of the Board of OFC at the time the Board enacted the Israel

Boycott and Divestment policies; but is no longer a member of the Board ofOFC.

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LAW OFFICES 01'"

COMPLAINT FOR RELIEF AND DAMAGES - Page 3

McN~1Jl. EEEL N_.,VIRa, & Ha.GREN
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II. JURISDICTION AND VENUE
19. This Court has jurisdiction over this action pursuant to RCW 4.28.1 $5(1)(a)

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and (b) because Defendants do business, reside, and/or have committed tortious acts 'Within

the State of Washington. 20.
Venue in this Court is proper under RCW 4.12.020 'and 4.12.025.

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m.

FACTS (a) the OFe

OFe operates two tetail grocery stores in Olympia, Washington:

Eastside Store at 3111 Pacific Ave., Olympia, Washington 98501; and (_b) the OFC Westside Store at 921 Rogers St, Olympia, Washington 98502. 22. OFC·operates according to certain goveming rules, procedures, and

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principles, which are set forth in publicly available documents. Among these documents

are OFC's "Mission Statement') and "Bylaws,"
23. OFC promotes itself. in part, as a. "non-hierarchical ' collective run by

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consensus process." 24.

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OFe maintains an "open membership" policy. To become a "regular

member) of OFC, an applicant must pay a membership fee and membership "dues," and

maintain a current address on file with

ope. ope offers

other types of membership=-for

businesses and seniors, for example-with 25.

terms that differ from "regular" membership.

OFC members are entitled to vote on certain issues, and in such instances

each member has one vote. It is one of the Board's responsibilities to maximize membership participation in the affairs ofOFC. 26. Some members ofOFC volunteer by working at one or both OFC locations These individuals are known as the "Working Members"

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without monetary compensation.' ofOFC. 27.

ope also

employs certain professional staff members, who are paid for the

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time they spend working at ope. These individuals are known collectively as the "Co-op
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COlv.lPLAJNT FOR RELIEF AND DAMAGES - Page 4

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staff." ope publicly represents that the "Co-op staff is a non-hierarchical collective run by consensus process."
28. Decision-making by "consensus" at ope means that all individuals who are

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empowered to participate-in the making of a particular decision must agree in order for a' particular proposal to be approved. As part of the "consensus'<based decision-making process at OFC, anyone of these individuals may bl?ck consensus and thus reject the proposal at issue,
29,

In or around May 1993, the OPC Board enacted-by consensus-s-a "Boycott

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Policy>' The Boycott Policy has not been changed or amended since its original enactment.
30, The Boycott Policy sets forth the terms by which OFC may "honor

nationally recognized boycotts which are called for reasons that are compatible with [OFC's] goals and mission statement 31.
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The honoring of a "nationally recognized" boycott by OFC involves, among

other things, a prohibition on OPC staff ordering or otherwise purchasing on behalf of productes) that are the subject of the boycott at issue. 32. . According to OFC's Boycott Policy, ~~A request to honor a boycott may

ope

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come from anyone in the organization, The request will be referred to the Merchandising
Coordinator (M. C.) to determine which products and departments are affected. The M. C.

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will delegate the boycott request to the manager(s) of the department which contains the

largest number of boycotted products. The department manager will make a written recommendation to the staff who will decide by consensus whether or not to honor a
boycott,"
33.

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Since the enactment of the Boycott POliCYl the OFC Board has decided-by

conseasus=-to honor various "nationally recognized" boycotts. 34.
In or around March 2009, a staff member ofOFC proposed that

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ope boycott

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products produced in Israel and divest from investment in Israel. The proposal was
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discussed among OFC staff members, who were unable to reach universal agreemens=i.e., consensus-e-regarding 35. their position on these two proposals.

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Some time in or before

May 2010.

ope staff

communicated

to the Board of

OFC that the staff'has been unable to reach universal agreement-ci.e.,

consensus=-

regarding its position on the proposal to boycott products produced in Israel and to divest
from investment in Israel.

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36.

In or around May 2010, members of au organization calling itself Boycott,

Divestment and Sanctions C'BDSl~an organizations-made

international alliance of anti-Israel political

a presentation to the Board of OFC regarding the possibility of OFe

boycotting Israeli-made products and divesting from Israel. 37. At

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an OFC Board meeting in or around May - July 201 O~the OFe Board

proposed that a boycott proposal be drafted regarding Israeli-made products and divestment from Israel. The

ope Board

also urged that staff consensus be pursued regarding this draft

boycott and divestment proposal. 38. Universal agreement-i.e .• consensus-among the Co-op staff regarding the enacted the Israel"

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boycott and divestment proposal was not reached before the OFCBoard Boycott and Divestment policies, 39_

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At no time has the Co-op staff ever reached universal agreemeat=d.e., any proposal, in any form, to boycott Israeli-made products and/or to

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consensus-regarding

divest from investment in Israel. 40. In or around July 2010. an. OFC Board meeting was held at which numerous These

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BDS supporters appeared without prior notice to the Board or the OFC membership. supporters urged the Board to adopt the Israel Boycott and Divestment policies.

Several

alternatives to adoption were also discussed among OFC Board members, including but not necessarily limited to rejecting the proposal; putting the Israel Boycott and Divestment policies to a vote of OFC members via a "Member Ballot": and holding "educational

COMPLAINT FOR RELIEF AND DAMAGES - Page 6

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1 2 3 4 forums" for OFC members to further educate them regarding the proposed Israel Boycott and Divestment policies. The OFC Board subsequently rejected all of these alternative proposals and instead enacted the Israel Boycott and Divestment policies, as urged by the BDS supporters: 41. At no time prior to its enactment of the Israel Boycott and Divestment
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policies did the OFe Board determine whether the proposed boycott of Israeli-made products and proposed divestment from investment in Israel were "nationally recognized." 42. In fact, neither tbe proposed boycott of Israeli-made products nor divestment

from investment in Israel constituted a "nationally recognized" boycott at the time-s-nor do they now .. For example, as of this filing, no other food cooperative in the UDited States has adopted either of these policies. 43. In or around late July or August 20 10, another OFe Board meeting was held

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to review the Board's recent decision to adopt the Israel Boycott and Divestment policies, Despite the procedural violations that had been committed and vociferous, widespread opposition to the Israel Boycott and Divestment policies among OFC members and staff, the Board refused to rescind these policies.
44.

Through the present day, opposition has been repeatedly expressed by

numerous OFe members and staff members to the Israel Boycott and Divestment policies and the procedures followed by the OFC Board before) during, and after the July 2010 Board meeting at which the policies were adopted, 45. Plaintiffs have repea.tedly asked, in writing, that the OFC Board rescind the

Israel Boycott and Divestment policies and apply the proper procedures to deciding the issue. For example. in letters dated May 31. 2011 and July 6, 2011) Plaintiffs demanded in no uncertain terms that the OFe Board act in accordance 'With its rules and bylaws and rescind the Israel Boycott and Divestment policies. Further, Plaintiffs have requested that
the issues of boycotting and divesting from Israel be raised tbrough a process that comports
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governing rules, procedures. and principles.

.

In their May 31~ 2011 and July 6]

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2011 letters, Plaintiffs made clear process.

t:hat they

are prepared to respect the outcome of such a

Yet the OFC Board bas denied Plaintiffs' requests. In a letter dated June 30~ 201 L

the Board stated that it continues to adhere to its decision to enact the Israel Boycott and Divestment policies, and made has it done so since that time. 46.
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DO

offer to modify its position or take remedial action. Nor

In or around February 201 I.the OFC Board modified the terms of the Israel

Boycott by redefining the political conditions under

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Israeli-made products. This modification did not involve rescinding the Israel Boycott and

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which OFe 'Will cease boycotting
.

Divestment policies,

W~

not put to the stafffor approval, and was not put to the

membership for a vote. Nor did this modification involve the Board addressing in any
respect its failure to abide by ope's govemmg

rules, procedures, and principles when it

originally enacted the Israel Boycott and Divestment policies in July 2010. 47. Despite repeated demands by Ol,='C members) includlng Plaintiffs, neither the

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current OFC Board members nor those former

ope Board

members who

were OD. the Board

when the Israel Boycott and Divestment policies were enacted have at any point taken the steps necessary to rescind the Israel Boycott and Divestment policies and institute a process that comports with OFC's governing rules, procedures, and principles. In short, those OFe

Board members who could have reversed the Board's wrongful actions and omissions have
repeatedly failed to do so.

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48.

The OFC Board publicly represents that its decision to enact the Israel

Boycott and Divestment policies was made based on OFe)s "mission statem.~nt" and in accordance with
49. by the

ope's bylaws.

This representation is false.

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Plaintiffs have exhausted all means within their reach to obtain compliance, with their reasonable demands that the Board rescind the Israel Boycott 1

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ope Board

and Divestment policies and institute a process that comports with

ope's

governing rules)
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1 2 3 procedures, and principles. Moreover, it is clear that making any further requests of the Board with regard to these issues would be futile.

50.

This derivative action is not a collusive one brought to confer jurisdiction

OD.

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a Court of Washington State which it would not otherwise have. Additionally, PlaiIltiffs
fairly and adequately represent the interests of similarly situated members of OFt.

51.

Defendants' actions and omissions-in

failing to follow OFC's governing

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rules, procedures, and principles-have,

among other things, fractured the OFC community;

sown division and mistrust among OFC members, staffmembers, and Board members; alienated numerous OFe members 3JJ.d staff members from OFC and the Board; and caused numerous OFC members to-either resign their memberships or otherwise cease shopping at OFe. IV. CLA.IM:SAND·CAUSES OF ACTION

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Plaintiffs plead the following causes of action derivatively on behalf of OFe:
Count 1: Ultra Vires

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52.
reference.

Plaintiffs reallege the preceding paragraphs and incorporate them by

53.

By failing to follow OFC's governing rules) procedures, and principles in

enacting the Israel Boycott and Divestment policies, those Defendants who were on the
OFe Board at the time acted without authority and beyond the scope of the power allowed

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or granted them as OFC Board members.
54. As a result of the foregoing misconduct, the enactroent of the Israel Boycott

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and Divestment policies is rendered void and unenforceable under
vires.

the doctrine

of ultra

Cou.nt 2: Declaratory Judgment
55.

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Plaintiffs reallege the preceding paragraphs and incorporate them by

reference,
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COMPLAINT FOR RELIEF AND DAMAGES - Page 9

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1 2 3 4 56. .Pursuant to RCW 7.24 et seq., an actual and present dispute exists between Plaintiffs and Defendants insofar as Defendants have taken ultra vires action in violation of OFC's governing rules, procedures, and principles; since that time, despite repeated requests, the OFe Board has refused to rescind its ultra vires action, 57. a.

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Plaintiffs therefore request that the Court issue declaratory judgment that:
The Defendant Board members who enacted the Israel Boycott and governing

Divestment policies acted 'Without authority and in violation of ope's rules, procedures, and principles;
b..

The Defendant Board members who failed to take action to rescind the Israel

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Boycott and Divestment policies despite repeated requests violated OFe's governing rules, procedures. and principles;

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c.

The OFC Board's enactment of the Israel Boycott and Divestment Policies

was ultra vires. It is therefore declared unenforceable, null, and void, Count 3: Permanent 58. Injunc;,tive ReliEf

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Plaintiffs reallege the preceding paragraphs and incorporate them by

reference. 59. Defendants have violated their duties and responsibilities
to

OFe by taking

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ultravires action in violation of OFC' s governing rules, procedures, and principles.
60. Absent the issuance of permanent injunctive relief, Plaintiffs will continue to

sustain irreparable injury insofar as the Israel Boycott and Divestment policies are fracturing the OFC community; sowing division and mistrust among

ope members,

staff

members, and Board members; alienating numerous OFe members and staff members from

ope and the
61.

Board; and causing numerous OFC members to either resign their

memberships or otherwise cease shopping at OFe. Plaintiffs lack an adequate remedy at law as the harm caused by Defendants

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is of a kind and degree that are not readily measurable,
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1 2 62. Plaintiffs therefore request that the Court permanently enjoin the OFC Board

from enforcing or otherwise abiding by the Israel Boycott and Divestment policies and order the OFC Board
future.
Count 4: :Rreacb of Fiduciary Duties 63. Plaintiffs
to

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follow OFe's goveming rules, procedures, and principles in the

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reallege the preceding paragraphs and incorporate them by

reference. 64.
.M members and formers members of the OFC Board. Defendants owed

and/or owe OFC fiduciary duties, 65. Through their acts and omissions with regard to the Israel Boycott and

Divestment policies) Defendants have breached their fiduciazy duties to OFC, 66. Defendants' breaches ofthcir fiduciary duties have proximately caused

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damages to OPC in its business or property, in 67.
and

an amount to be proven at trial.
to take suyb. action;
,

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When the ope Board failed to follow oPC's governing rules, procedures,

principles in enacting the Israel Boycott and Divestment policies, those Defendants who
members at the time knew (a) the Board lacked authority

were Board

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and that (b) enacting the Israel Boycott and Divestment policies would violate the governing rules, procedures, and principles of

ope.

Despite this knowledge, they

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intentionally and wrongfully enacted the Israel Boycott and Divestment policies. These Defendants are therefore personally liable to OFC for the damages proximately caused by the breaches of their fiduciary duties.

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68.

As to those Defendants who remained or became Board members after the

Israel Boycott and Divestment policies had been wrongfully enacted, they knew and/or
know

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(a) the Board failed to follow OFe's governing rules, procedures, and principles and

thus lacked authority to take such action at the time; and (b) the Israel Boycott and
Divestment policies continue to violate the governing rules, procedures, and principles of
loA w

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ornces

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COMPLAINT 170R RELIEF AND DAMAGES - Page 11

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13 Such other and further legal and equitable relief as the Court may deem just and proper. DATED this

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'Z-

day of September. 2011.

McNAUL EBEL NAWROT & HELGREN

PLLC

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Avi J. Lipman, WSBA No. 37661 Attorneys for Plaintiffs

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COMPLAINT FOR RELIDF AND DAMAGES - Page 12

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