A shareholders derivative suit against the board of Massey Energy — the West Virginia coal company with a controversial safety and environmental record — has the potential to go from bad to worse for plaintiffs lawyers from Barroway Topaz Kessler Meltzer & Check.

On Sept. 30, in a 31-page ruling, Charleston, W. Va., federal district court judge David Faber dismissed the derivative case, concluding that to the extent the plaintiffs’ claims weren’t already addressed in a 2008 state court settlement, they were barred because shareholders hadn’t shown the futility of a demand to Massey’s board.