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Cox v. ING Invs. LLC

United States District Court, D. Delaware

June 6, 2014

JEREMIE COX, Derivatively on Behalf of ING GLOBAL REAL ESTATE FUND, Plaintiff,
v.
ING INVESTMENTS LLC, Defendant

Joel Friedlander, Esquire and Jaclyn Levy, Esquire of Friedlander & Gorris, P.A., Wilmington, Delaware, Counsel for Plaintiff. Of Stephen J. Oddo, Esquire, Edward B. Gerard, Esquire, and Justin D. Rieger, Esquire of Robbins Arroyo LLP.

Patricia R. Uhlenbrock, Esquire and Seton G. Mangine of Pinckney, Weidinger, Urban & Joyce LLC, Wilmington, Delaware, Counsel for Defendant. Of James N. Benedict, Esquire and Sean M. Murphy, Esquire, of Milbank, Tweed, Hadley & McCloy LLP.

Page 210

MEMORANDUM OPINION

Sue L. Robinson, District Judge.

I. INTRODUCTION

On August 30, 2013, plaintiff Jeremie Cox (" Cox" ) filed a complaint derivatively on behalf of ING Global Real Estate Fund (" the Fund" ) against defendant ING Investments LLC (" ING" ) alleging that ING breached its fiduciary duty under Section 36(b) of the Investment Company Act of 1940, as amended 15 U.S.C. § 80a-35(b) (" Section 36(b)" ), by charging the Fund excessive management fees. (D.I. 1) Presently before the court is ING's motion to transfer this action to the District of Arizona. (D.I. 12) The court has jurisdiction over this matter pursuant to 15 U.S.C. § § 80a-43 and 80a-35(b)(5), and 28 U.S.C. § 1331. For the reasons that follow, the motion is denied.

II. BACKGROUND

Cox is a shareholder of the Fund. (D.I. 1 at ¶ 9) The Fund is a management investment company within the ING Mutual

Page 211

Funds, a Delaware statutory trust (" the Trust" ). ( Id. at ¶ ¶ 2, 10) Its executive offices are located at 7337 East Doubletree Ranch Road, Suite 100, Scottsdale, Arizona. ( Id. at ¶ 10) The Fund does not have any employees. (D.I. 13 at 5) Shares of the Fund are sold nationwide. ( Id. ) Moreover, 34% of the Fund's shares are held by Delaware entities, with additional shares held by individuals residing in Delaware. (D.I. 15 at 7)

The Trust is organized pursuant to Delaware law. (D.I. 1 at ¶ 7) It maintains a registered agent in Delaware and any amendments to the Trust's Certificate of Trust would be filed in Delaware. (D.I. 13 at 5)

ING acts as investment manager and advisor to the Fund, providing services for which the Fund pays ING fees. (D.I. 1 at ¶ 2; D.I. 13 at 4) ING is an Arizona limited liability company and maintains its principal place of business at 7337 East Doubletree Ranch Road, Suite 100, Scottsdale, Arizona. (D.I. 13 at 4) It does not have any offices in Delaware, and none of its officers live or work in Delaware. ( Id. ) Many of ING's officers and employees who provide services to the Fund live and work in Arizona. ( Id. at 4-5)

The Fund's board of trustees (" the Board" ) oversees the Fund and approves the annual management agreement between the Fund and ING. ( Id. at 2, 6) The management agreement is governed by Delaware law. (D.I. 15 at 7) The Board is made up of eleven independent trustees, who are located throughout the country, including in Georgia, Tennessee, Florida, and North Carolina. (D.I. 13 at 6) ...


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