Category Archives: Curiouser and Curiouser

Double Check

In a strange story, a court in the S.D.N.Y. has dismissed the lead plaintiff from a securities class action brought against Smith Barney Fund Management and Citigroup Global Markets because, after six years of litigation, it was revealed that the entity had not actually purchased the securities at issue. The lawsuit, originally filed in 2005, alleges various misrepresentations by an investment advisor for certain Smith Barney mutual funds, which later were acquired by Citigroup. According to counsel for the plaintiffs, the relevant brokerage documentation erroneously showed that the Operating Local 639 Annuity Trust Fund had invested in one of the relevant mutual funds (when, in reality, its investment was in a similarly named fund).

The court, in an apparently scathing decision, cited “epic failures” by the attorneys on both sides of the case in not investigating the issue earlier. For its part, “[h]ad Smith Barney simply checked its records, it would have avoided six years of sparring with a phantom opponent.” Bloomberg and the WSJ Law Blog have articles on the decision.

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No Reason To Make A Federal Case Out Of It

How do you know when a judge does not think much of your case? When the quips start flying around in her decision.

In City of Brockton Retirement System v. The Shaw Group Inc., 2008 WL 833943 (S.D.N.Y. March 18, 2008), District Judge Colleen McMahon addressed a securities class action brought after The Shaw Group was forced to restate its 2Q 2006 financials. In particular, the restatement resulted from two accounting errors: (a) an arithmetic error related to the computation of percent complete on one contract; and (b) a failure to account properly for a minority interest in a variable interest entity. The court dismissed the case based on the plaintiffs’ failure to adequately plead a strong inference of scienter (i.e., fraudulent intent) and made its overall feelings about the claims quite clear. Here are some of the more quotable lines:

(1) “Calling the failure to catch [the simple arithmetic error] a ‘failure of accounting controls’ makes it sound sinister, but it does not change the fundamental nature of the ‘failure’ – somebody forgot to check his/her work. This is not sinister at all. Mistakes like this happen a lot in the third grade, and sometimes they happen in public companies, too. There is no reason to make a federal case out of it.”

(2) “It may not be prudent as a business matter to have an accounting department that has a hard time keeping up with new information technology, but it is not a violation of the federal securities laws to do so.”

(3) “So none of the matters cited by plaintiffs admits of an inference of fraud. Plaintiffs argue, however, that zero plus zero plus zero plus zero plus zero adds up to something. In this, its arithmetic is as faulty as Shaw Group’s was.”

Thanks to an alert reader for sending in the decision.

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A Little Of This, A Little Of That

Three unusual recent decisions addressing the PSLRA’s discovery stay, appeals from the denial of a motion to dismiss, and prolixity in complaints:

(1) While the primary securities class action against Time Warner was settled last year, a consolidated action consisting of suits by institutional investors that opted out of the main case continues on. Moreover, the plaintiffs in the consolidated action have access to the approximately 14 million documents that Time Warner produced in the primary securities class action and related state court litigation. In re AOL Time Warner, Inc. Sec. Litig., 2006 WL 1997704 (S.D.N.Y. July 13, 2006), the court addressed a “unique” request by the defendants to lift the PSLRA’s discovery stay to allow them to obtain discovery from the plaintiffs. Time Warner argued, and the court agreed, that the discovery stay should be lifted because “prohibiting Time Warner’s discovery of Plaintiffs while Plaintiffs are able to formulate their litigation and settlement strategy on the basis of the massive discovery Time Warner has already produced constitutes undue prejudice.”

(2) The denial of a motion to dismiss is not a final judgment in a securities class action and is normally not subject to appeal. Although a district court might certify an interlocutory appeal based on the existence of a novel and dispositive legal issue, whether the district court correctly found that the plaintiff met the heightened pleading standards of the PSLRA is not usually thought to meet that criteria. In Thompson v. Shaw Group, Inc., 2006 WL 2038025 (E.D. La. July 18, 2006), however, the district court certified its denial of the defendants’ motion to dismiss for appeal, finding that “reasonable minds might disagree on the issue of whether the Plaintiffs have satisfied their pleading burden under the heightened standards for securities claims.” The court noted that an immediate appeal was justified because “a ruling favorable to Defendants on this issue would render years of discovery, enormous expenses incurred by the parties, and a trial on the merits unnecessary.”

(3) The modern securities class action complaint can be a massive tome, primarily because of the need to meet the PSLRA’s heightened pleading standards. That said, not every court appreciates getting so much reading material. In In re Leapfrog Enterprises, Inc. Sec. Litig. 2006 WL 2192116 (N.D. Cal. Aug. 1, 2006), the court addressed a 147-page consolidated complaint that it believed was unnecessarily long. After clarifying the issues in the case at oral argument, the court granted leave to amend with the express condition that the amended complaint “not exceed fifty (50) pages in length.”

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Making Headlines

The notices put out by securities plaintiffs firms to announce the filing of a complaint tend to be fairly staid. At least one firm may be trying to liven them up (see here and here).

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Not Quite Right

The editors of the Jackson Clarion-Ledger are not pleased with the WorldCom settlements. Of course, they also appear to believe that Citigroup and JPMorgan Chase will be receiving, rather than providing, most of the settlement funds.

Quote of note: “But the settlement is top heavy: $2.58 billion to Citigroup and $2 billion to JPMorgan Chase & Co. with the rest divided among about 830,000 people and institutions. That’s small solace to the small investor, including those in Mississippi who trusted Ebbers.”

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Rome Was Sued In A Day

Securities class actions brought in U.S. courts by foreign investors? Lots of them. Securities class actions brought in U.S. courts against foreign companies? Commonplace. But how about a securities class action brought in a U.S. court against a foreign state? Now we’re talking.

In Aguayo v. Republic of Italy, 05 CV 7717 (S.D.N.Y.), filed last week, the plaintiff has brought a suit against Italy and the underwriters of its debt securities issued in this country. The complaint alleges that the relevant registration statements “understated Italy’s debt, so that Italy could report that it complied with the European Union requirement that debt be limited to 3% of gross domestic product.”

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When A Promotion Is Not Enough

Everything a CEO does can effect his company’s public disclosures. Regular readers will recall the case of the company that was forced to restate its CEO’s resume. A similar type of case was decided earlier this year.

In In re Ariba, Inc. Sec. Litig., 2005 WL 608278 (N.D. Cal. March 16, 2005), the company failed to disclose that its outgoing CEO had personally, out of his own funds, paid another officer $10 million (plus $1.2 million in travel benefits and expenses) to assume the CEO position. Ariba was eventually forced to restate its financial statements to record the payments as capital contributions. In the resulting securities class action, the plaintiffs alleged that the payments were made to “create the false impression that Ariba was doing better than it was” and that “confidence in Ariba’s management would have eroded completely” had it been disclosed that the new CEO had only agreed to accept the position after receiving the payments.

The court found that the plaintiffs had failed to adequately plead that the defendants acted with a fraudulent intent (i.e., scienter). The complaint relied heavily on statements from a confidential witness identified as an “executive assistant,” the existence of GAAP violations, and the individual defendants’ positions at the company. The court held that these allegations did not “constitute the strong circumstantial evidence of deliberately reckless or conscious misconduct with respect to each omission required for Plaintiff to overcome Moving Defendants’ motion to dismiss.”

Holding: Dismissed with prejudice.

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