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Wednesday
Sep282016

Lubbers v. Flagstar Bancorp, Inc.: Failure to Prove a Material Omission

In Lubbers v. Flagstar Bancorp, Inc., No. 14-cv-13459, 2016 BL 36824 (E.D. Mich. Feb. 10, 2016), the United States District Court for the Eastern District of Michigan, Southern Division, granted Flagstar Bankcorp. Inc. (“Flagstar”), and two of its officers, Alessandro DiNello and Paul Borja’s (collectively, the “Defendants”) motion to dismiss. The court found that Plaintiff failed to meet his burden in pleading Flagstar’s public disclosures contained an actual, material omission.

According to the allegations, after the collapse of the mortgage industry, Flagstar, a holding company for non-party Flagstar Bank, experienced a backlog in processing loan modification and loss mitigation applications. In September 2011, Fannie Mae allegedly threatened to terminate Flagstar’s servicing rights on loans owned or guaranteed by Fannie Mae. In December of 2013, Flagstar purportedly sold a portion of its mortgage servicing rights (“MSRs”) portfolio to Matrix Financial Services Corporation (“Matrix Financial”). In August of 2014, Flagstar filed a Form 8-K with the Securities and Exchange Commission (“SEC”) disclosing its discussions with the Consumer Financial Protection Bureau (“CFPB”) regarding a potential settlement relating to alleged violations of various federal consumer financial laws. Flagstar’s rating was downgraded, and within two days, the stock price fell by $1.16.

The Plaintiff brought this class action against the Defendants on behalf of all purchasers of Flagstar common stock from October 22, 2013, to August 26, 2014 (the “Class Period”). The Plaintiff alleged Flagstaff omitted material information and made misleading statements in its public disclosures in August of 2014 in violation of Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated thereunder. Further, the Plaintiff asserted the Defendants, as controlling persons of Flagstar, were liable for Flagstar's violations under Section 20(a) of the Securities Act.

For non-disclosure liability under the Exchange Act to attach, a defendant must violate an affirmative duty to disclose, which can arise from a prior false, inaccurate, incomplete, or misleading statement of material fact in light of the undisclosed information. Materiality depends on the significance a reasonable investor would place on the withheld or misrepresented information. Courts look to the context of the statements to determine whether an omission renders prior statements misleading. 

The court found “no reasonable investor could have read Flagstar’s disclosure as negating the possibility of a CFPB investigation or settlement.” The court further held the fact that such investigations were not disclosed during the class period combined with the language of Defendants’ disclosure was not misleading. Specifically, the court found Defendants' public disclosure statements “from time to time” and “we may face a greater number or wider scope of investigations,” to be nothing more than “semantic quibbling” such that the Plaintiff’s claims regarding misleading disclosures could not rest on these statements. In fact, the court concluded the Defendants’ phrases were broad enough to “encompass the possibility” of a CFPB investigation for not complying with consumer protection laws, even if the phrases somehow conveyed to investors that the Fannie Mae investigations were routine.

The court also held Flagstar was under no obligation to disclose Fannie Mae’s threats to terminate its right to loan servicing. In so holding, the court found no material relationship between the threats and either Flagstar’s disclosure regarding ongoing investigations or its generic statement informing investors that consumer protection laws and regulations were ever changing. In addition, the court held a “boilerplate statement” Flagstar made regarding fines and penalties was too generic to be misleading and, furthermore, had no relationship to the disclosure itself. Furthermore, the court held that to require disclosure of Fannie Mae’s alleged threats would impose a general duty, not required under law, of unlimited disclosure whenever any financial data is released.

The court held Defendant’s statements made to sell a portion of its MSRs portfolio to Matrix Financial was not misleading, therefore no more needed to be disclosed. Although the Plaintiff argued investors would read the statements as suggesting the sale absolved Flagstar of liability for the previous violations of the CFPB, the court held it was not misleading because no reasonable investor would conclude such. Therefore, and because the statement was not misleading, the court found no further disclosures were necessary, noting that omissions need only be disclosed when necessary to make a previous statement misleading.

Accordingly, the court granted the Defendants’ motion to dismiss Plaintiff’s amended complaint. 

The primary material for this case can be found on the DU Corporate Governance Website. 

Monday
Sep262016

In re Biglari Holdings, Inc. S'holder Derivative Litig. (Taylor v. Biglari): Court Affirms Dismissal of Shareholder Derivative Suit

In In re Biglari Holding, 813 F.3d 648  (7th Cir. 2016), the United States Court of Appeals for the Seventh Circuit affirmed the lower court’s dismissal of a shareholder derivative suit brought by shareholders Chad Taylor and Edward Donahue (the “Plaintiffs”) against Biglari Holdings, Inc. (“Biglari Holdings”) CEO and board chairman Sardar Biglari (“CEO”) and four other members of the Biglari Holdings board (collectively, the “Defendants”). 

According to the complaint, the board of Biglari Holdings approved three separate transactions in 2013, including the sale of Biglari Capital Corporation (“BCC”) back to the CEO at “a low price” and a stock offering valued at $75 million. In the case of the stock offering, the Plaintiff alleged that the company had not retained a “financial advisor.” In addition, the board approved a licensing agreement to use the CEO’s name and likeness for the purposes of promoting Biglari Holdings to consumers.  A term in the licensing agreement required the company 

to pay [the CEO] 2.5 percent of the company's gross revenues from products and services that bear [the CEO’s] name as royalties for the use of his name and likeness for five years if he's removed as CEO, resigns because of an involuntary termination event, or loses his sole authority over capital allocation, or a majority of the board is replaced, or someone other than [the CEO] or the company's existing shareholders obtains more than 50 percent of the shares and therefore acquires control of the company. 

The Plaintiffs alleged these transactions amounted to entrenchment, and were “intended to cement Biglari’s control” of Biglari Holdings and “enrich him at the expense of other shareholders.” The Plaintiffs contended that the board was not independent and its members were beholden to the CEO.  Specifically, the Plaintiffs alleged the independence of the Biglari Holdings board had been compromised by the personal and business connections of several individual directors to the CEO.  The Plaintiffs further argued such a costly royalty payment attached to the licensing agreement, triggered by replacement of the board or the CEO, amounted to entrenchment of the current board. Finally, the Plaintiffs alleged the board failed to adequately deliberate before the stock offering or consider the entrenching effects of such an offering. 

Traditionally in a shareholder derivative action, shareholders must demand that “the board either correct the improprieties alleged or initiate an action on behalf of the corporation against members of the board.” The Plaintiffs instead asserted “demand futility.” Under Indiana law – following guidance from Delaware in such cases –“demand futility” can be shown by facts that create a reasonable doubt that a majority of directors was disinterested, that the board was independent, or that the board had exercised reasonable business judgment. Additionally under Indiana law, there is a strong presumption a director is not liable for any action taken unless the alleged breach or failure to perform constitutes willful misconduct or recklessness. 

With respect to the entrenchment claim arising from the licensing agreement, the opinion pointed to the lower court’s conclusion that Plaintiffs had not “alleged that any of the directors were in peril of being removed from the board and, if they were not, it is unlikely that their motivation for approving the challenged transactions was entrenchment.”    

With regard to director independence, the court found the facts surrounding the connections between the CEO and other members of the board were insufficient to raise reasonable doubts regarding the independence of the board. The court conceded that the director who had been the CEO’s professor could “raise a question” about independence but that the allegations concerning the other four directors were insufficient.  The court, however, rejected claims of non-independence for a director who served on the board of a company that the CEO tried to take over and director who, because of the fees received, would “kowtow” to the CEO.  The same was true of a director who served on a board of a company that was 12.8% owned by Biglari Holdings and had allegedly developed business relationships with the CEO prior to becoming a director.       

The court also determined that the three transactions challenged by Plaintiffs did not adequately establish a claim for entrenchment.  With respect to the licensing agreement, the court questioned the allegations that the replacement of the board would “trigger costly royalty obligations.”  See Id. (“Thus the net earnings figure does not reveal the true financial health of the company, and so the required royalty need not have the grave impact that the plaintiffs allege.”).  

Concerning the sale of BCC, the court addressed the claim that the amount paid by the CEO was less than the value of the asset.  The court determined that the $1.7 million sales figure was reasonable in light of the benefits to Biglari Holdings, including “a reduction in regulatory burdens related to investments and by avoiding potential conflicts of interest”.  Finally, the court disagreed with the Plaintiffs’ claim regarding the stock offering, noting the offering contained an oversubscription feature, which allowed existing shareholders to purchase the shares not taken.  The court found the CEO had simply exercised his right to buy more shares under the subscription feature, while other shareholders declined to do so, resulting in the change in ownership interests. 

For the above reasons, court found none of the Plaintiffs’ allegations created a substantial doubt the transactions were a product of valid business judgment by an independent board. Accordingly, the court affirmed the lower court’s dismissal of the Plaintiffs’ complaint. 

The primary materials for this case can be found on the DU Corporate Governance website.

Friday
Jul012016

SEC Adopts New Resource Extractive Industries Rule

Just in time, on June 27th the SEC adopted new resource extractive industry rules. The agency faced a June 27 adoption deadline after Oxfam America Inc. sued to speed up the rulemaking and a federal judge in September ordered the SEC to create an expedited rule schedule.  (see here).

The rules require resource extraction issuers to disclose payments made to governments for the commercial development of oil, natural gas or minerals.  The rules are the second attempt by the SEC to fulfill the mandate of Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. That section directs the Commission to issue final rules that require each resource extraction issuer to include, in an annual report, information relating to any payment made by the resource extraction issuer, a subsidiary of the resource extraction issuer, or an entity under the control of the resource extraction issuer to a foreign government or the federal government for the purpose of the commercial development of oil, natural gas, or minerals. 

An earlier rule adopted pursuant to the section was adopted by the Commission on August 22, 2012, but was vacated by the U.S. District Court for the District of Columbia.  (see here and here

The final rules require an issuer to disclose payments made to the U.S. federal government or a foreign government if the issuer engages in the commercial development of oil, natural gas, or minerals and is required to file annual reports with the Commission under the Securities Exchange Act.  The issuer must also disclose payments made by a subsidiary or entity controlled by the issuer. 

Under the final rules, resource extraction issuers must disclose payments that are:  made to further the commercial development of oil, natural gas, or minerals; “not de minimis”—defined as any payment, whether a single payment or a series of related payments, which equals or exceeds $100,000 during the same fiscal year; and within the types of payments specified in the rules.

The final rules include two exemptions to the reporting obligations.  One provides that a resource extraction issuer that has acquired a company not previously subject to the final rules will not be required to report payment information for the acquired company until the filing of a Form SD for the first fiscal year following the acquisition. Another exemption provides a one-year delay in reporting payments related to exploratory activities. The required disclosure will be filed publicly with the Commission annually on Form SD no later than 150 days after the end of its fiscal year. 

Perhaps the most interesting requirement of the new rules is that the required disclosure must be filed publicly with the Commission annually on Form SD no later than 150 days after the end of its fiscal year.    Given that the public filing requirement that caused the court to strike down the first attempt at the resource extractive industries rule we might have expected to see a different approach this time around.  Perhaps there has been some backstage negotiation over this point.  If not, it seems likely that another legal challenge will be brought.

Friday
May202016

SEC v. Battoo: Violations of the Exchange Act and the Advisers Act

In SEC v. Battoo, 1:12-CV-07125, 2016 BL 19839 (N.D. Ill. Jan. 25, 2016), the United States District Court for the Northern District of Illinois, Eastern Division, granted the Securities and Exchange Commission’s (“SEC”) motion for summary judgment against Tracy Sunderlage. The court found the SEC successfully demonstrated Sunderlage’s violation of Section 15 of the Securities Exchange Act (“Exchange Act”) and Section 203 of the Investment Advisers Act (“Advisers Act”).

As the SEC alleged, Sunderlage was barred in 1986 from associating with any broker, dealer, investment adviser, investment company, or municipal securities dealer, after discovering he sold unregistered securities and made material misstatements to clients. In 1989, Sunderlage created a “Multi-Employer Plan,” replaced in 2003 by a “Single-Employer Plan” (collectively, the “Employment Plans”), through which employers made tax-deductible contributions to a welfare benefit trust. PBT, Ltd. (“PBT”), owned and operated by Sunderlage, served as the trustee of the Employment Plans. PBT pooled contributions and invested them in insurance products, including a company Sunderlage founded and directed, Maven Assurance Limited (“Maven”). Participating employees paid premiums, and were required to become Maven shareholders by purchasing variable annuities issued to Maven Life International Limited (“Maven Life”), promoted and administered by Sunderlage. Sunderlage also owned Sunderlage Resource Group, Inc. (“SRG”), which managed SRG International and allegedly promoted the Employer Plans and Maven Life variable annuity at conferences in the United States.

The SEC brought this federal securities law action against Sunderlage, the one remaining defendant, after the other individual and corporate-entity defendants defaulted.

As a threshold requirement to impose liability under the Exchange Act and Advisor’s Act, it must be proven that the case involved a "security." Under 28 U.S.C. § 2462, there is a five-year statute of limitations for any "action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise." Section 15 of the Exchange Act bars unregistered brokers from using interstate commerce to conduct securities transactions, and requires any person who has been barred from associating with a broker to obtain SEC approval to willfully "associate with a broker.” 15 USC §78o.  In addition, the Advisers Act prohibits any person who has been barred from associating with an investment adviser to willfully "associate with an investment adviser" without SEC approval.

The court first addressed whether the Employer Plans and Maven Life annuity were securities under the Exchange Act and the Advisers Act, concluding no reasonable trier of fact could find they were anything but securities. The Exchange Act and the Advisers Act both define a security to include an investment contract. The court held the Employment Plans were investment contracts because, under the well-established Howey test, they were: (1) an investment of money, since employers “invested” money by “giving up some tangible and definable consideration in return for interests with substantially the same characteristics of a security;” (2) in a common enterprise, because PBT pooled employer contributions to purchase securities as well as the Employer Plans tying SRG International’s interests to the investments; and (3) with an expectation of profits flowing solely from the efforts of others, because the Employer Plans were portrayed as “having a dominant investment intent.” The court also held the Maven Life annuity was a security, as Sunderlage admitted such in his answer to the complaint.

Turning to the statute of limitations, the court quickly concluded that, unlike a claim for penalties, the claims seeking injunctive relief and disgorgement were not subject to a five-year statute of limitations. According to the court, Sunderlage forfeited any other statute-of limitations argument because he did not offer an alternative limitations period for equitable relief.

Next, the court determined that Sunderlage acted as or associated with a broker in violation of Section 15 of the Exchange Act’s bar on willful association with brokers, absent SEC approval. The court found it significant that Sunderlage and SRG International not only solicited investors and provided investment advice, but they also processed documents and handled funds to effectuate securities transactions, receiving transaction-based compensation for investments in the Employer Plans and the Maven Life annuity.

Finally, the court held Sunderlage and SRG International routinely provided investment advice by relaying information about the Maven securities and managing clients’ funds in exchange for compensation, thus acting as an investment adviser under the Adviser’s Act in violation of Section 203(f).

Accordingly, the court granted the SEC’s motion for summary judgment.

The primary material for this case can be found on the DU Corporate Governance Website.  

Wednesday
May182016

Varjabedian v. Emulex Corp.: Court Grants Motion to Dismiss in Securities Class Action

In Varjabedian v. Emulex Corp., No. SACV 15-00554-CJC(JCGx), 2016 BL 21999 (C.D. Cal. Jan 13, 2016), the United States District Court for the Central District of California granted a motion to dismiss filed by Emulex Corporation (“Emulex”), Emerald Merger Sub, Inc. (“Merger Sub”), Avago Technologies Wireless Manufacturing, Inc. (“Avago”), and ten members of Emulex’s board and management (the “Individual Defendants”) (collectively, “Defendants”) against Gary Varjabedian’s (“Plaintiff”) complaint.

According to the allegations, Avago acquired Emulex in 2015 after the two companies reached a merger agreement, under which Merger Sub was to initiate a tender offer for Emulex’s outstanding stock. Emulex solicited a fairness opinion from its financial advisor, which found the merger, which produced a 26.4% premium over Emulex’s current stock price, was fair. Accordingly, Emulex issued a Recommendation Statement summarizing the findings and recommending shareholders tender their shares and support the acquisition. The Recommendation Statement, however, did not include a one-page Premium Analysis from the financial advisor’s fairness opinion indicating the Emulex premium was below-average. Plaintiff filed suit alleging Defendants intended to mislead Emulex shareholders into believing the proposed merger was a better deal than it actually was. Among other claims, Plaintiff contended Emulex violated Sections 14(e) and 14(d)(4) of the Exchange Act.

Section 14(e) makes it unlawful to make any untrue statement of a material fact or omit any material fact necessary to make the statements made not misleading. 15 U.S.C. 78n(e). Plaintiff asserted that a claim under the Section did not require allegations of scienter. Assuming scienter was required, the Plaintiff attempted to meet the requirement in three ways: (1) the Defendants made misleading statements regarding Emulex premiums despite having access to contradictory information; (2) the Defendants knew of the Premium Analysis, and that withholding the information would mislead investors; and (3) the Individual Defendants had a motive to commit fraud because they feared for their jobs if Emulex did not sell quickly.

The court first addressed whether Section 14(e) even required allegations of scienter. Relying on case law, statutory interpretation, and analysis from other jurisdictions, the court concluded a plaintiff bringing a claim under Section 14(e) is required to allege scienter. To determine whether a plaintiff sufficiently pleaded a strong inference of scienter, the court utilizes a “dual inquiry.” The court must determine whether the following are sufficient to create a strong inference of scienter: (1) any of the plaintiff’s allegations, when standing alone; and (2) any insufficient individual allegations, when combined.

The court found the Plaintiff failed to allege a strong inference of scienter. First, the court found the Premium Analysis suggested the Emulex premium was below the industry average, but within a range of reasonable outcomes. Because the Defendants never represented the premium as above industry average, the court reasoned these statements were not contradictory. Second, the court held Defendants were under no obligation to include every piece of information regarding the merger in the Recommendation Analysis, so it was not unreasonable to omit the Premium Analysis. Finally, the court noted the Individual Defendants rejected multiple offers for Emulex, and as shareholders, the Individual Defendants had no motive to sell the company at an unacceptably low price.

Examining the complaint in its entirety, the court found the Plaintiff failed to allege scienter under the second prong of the “dual inquiry”. The court reasoned it was likely the Defendants legitimately believed the premium to be fair to shareholders, and the Premium Analysis did not explicitly indicate otherwise.

The Plaintiff also alleged violation of Section 14(d)(4) and Rule 14d-9. Section 14(d)(4), however, does not expressly create a private right of action. Thus, the Plaintiff argued the court should recognize an implied right of action. The court refused to do so, holding the statute did not create a federal right in favor of the plaintiff, and the legislative intent and underlying purpose of Section 14(d)(4) was not to create a private right of action, but to reserve enforcement for the Securities and Exchange Commission.

Accordingly, the court granted the Defendants’ motion to dismiss the Plaintiff’s complaint.

The primary materials for this case can be found on the DU Corporate Governance website.

Monday
May162016

Bondali v. Yum! Brands, Inc.: Section 10(b) Claims Require More Than an Overall Impression

In Bondali v. Yum! Brands, Inc., No. 15–5064, 2015 WL 4940374 (6th Cir. 2015), the United States Court of Appeals for the Sixth Circuit affirmed the district court’s holding, dismissing Arun Bondali’s (collectively, “Plaintiffs”) class action complaint against Yum! Brands, Inc. (“Yum”) and three Yum senior officers, CEO David C. Novak, Richard T. Carucci, and Jing-Shyh Su (collectively, “Defendants”).  The court determined the district court correctly dismissed the complaint for failure to plead with particularity under Section 10(b) and Section 20(a) of the Securities Exchange of 1934 as well as Rule 10b-5.

According to the allegations, Yum owned Kentucky Fried Chicken (“KFC”) and had a significant presence in China. Between 2010 and 2011, Yum received test results from an independent laboratory showing batches of chicken from a supplier tested positive for drug and antibiotic residues.  Subsequently, Yum disqualified the relevant suppliers but did not disclose the results or the disqualifications nor that one other supplier had tested negatively.  Only after the media began raising issues with respect to drug or antibiotic residues in chickens did Yum “publicly acknowledged any issues”.  In Feb. 2013, Yum stated that, as a result of the “negative same-store sales” and the need to “recover consumer confidence,” the company no longer expected to “achieve” earnings per share growth in 2013.

Plaintiffs brought an action for securities fraud alleging that the Defendants made false or misleading statements and acted with scienter by failing to disclose adverse results and system failures to the public, eventually resulting in a 17% drop in stock prices.  Yum moved to dismiss all claims, and the district court granted the motion, finding Plaintiffs failed to allege both actionable misstatements and scienter.

Under Section 10(b) and Rule 10(b)(5), a plaintiff must prove: (1) material misrepresentation or omission by a defendant; (2) scienter; 3) in connection with the purchase or sale of security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation.

Plaintiffs appealed, alleging that during the Class Period, Yum made ten materially false or misleading statements.  The court divided Yum’s statements into four categories: (1) cautionary statements or risk disclosures (statements on the investment risk that food safety issues posed; (2) statements touting standards and protocols; (3) responses to negative publicity; and (4) statements on softer sales (statements relating to “lowered same-store sales projections”).

First, statements regarding food standards and safety protocols, the court determined Yum’s were not misleading.  The court found that Yum’s statements regarding its “strict” standards and protocols were reasonably grounded in objective fact.  Thus, the court determined it was “not reasonable” to interpret Yum’s statements as a “guarantee” that its suppliers would always abide by these standards.  The court also agreed that statements providing assurance that unsafe products would be “immediately . . . pulled from distribution” because they appeared in a Code of Conduct and were “aspirational.” (“Nevertheless, Yum's statement is not actionable because it was a statement of aspiration made in Yum's corporate Code of Conduct rather than rather an assertion of objective fact made in a public filing or press release. As the district court properly explained, a code of conduct is not a guarantee that a corporation will adhere to everything set forth in its code of conduct. Instead, a code of conduct is a declaration of corporate aspirations.”). 

Second, the court found Plaintiffs failed to show how Yum’s responses to negative publicity were false and misleading.  Yum took the actions mentioned in the statements to manage suppliers by engaging in spot checks and eliminating “inferior” suppliers.  To the extent that Plaintiffs allegations went to the efficiency of the process, the court noted efficiency was an issue of corporate mismanagement, not investor deception.

With respect to allegations relating to food safety, Plaintiff asserted that Yum portrayed the issue as a food safety as a future rather than a materialized risk.  The court first reasoned that cautionary disclosures were inherently prospective and did not “infer anything regarding the current state of a corporation's compliance, safety, or other operations... ”  The court further reasoned that Plaintiffs did not allege facts to show the food safety issues “were so sever” that they would have “resulted in financial loss for Yum.”  As for the other allegations of falsity, the court stated that “the remaining statements can be cast aside with little fanfare.”  The court also declined to examine the “overall impression created by Yum’s statements” concluding that courts “do not forego a statement-by-statement analysis of objective falsity in favor of analyzing the overall impression made by a set of statements.”

Lastly, the court held Plaintiffs failed to sufficiently allege a “strong inference” of scienter.  The court determined that allegations of “motive” were not enough to establish scienter.  Nor did the allegations sufficiently tie the individual defendants to the test results “by alleging that senior officers were regularly notified of test results or that Yingtai and Liuhe supplied such a substantial proportion of KFC China's chickens that senior officers would have had to be aware of any issues with such major suppliers.”    

Accordingly, the court affirmed the lower court’s dismissal of the suit.

The primary materials for this case may be found on the DU Corporate Governance website.

 

Friday
May132016

SEC v. Cook: Nearly $156 Million in Disgorgement and Prejudgment Interest Ordered Following Convictions 

In SEC v. Cook, No. 09-3333, 2016 BL 7948 (D. Minn. Jan. 12, 2016), the United States District Court for the District of Minnesota granted the United States Securities and Exchange Commission’s (“SEC”) Motions for Summary Judgment against Defendants Patrick Kiley and Jason Beckman (the “Defendants”) regarding alleged violations of Section 5(a) and (c) and Section 17(a) of the Securities Act of 1933 (“Securities Act”), Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”) and Rule 10b-5 thereunder, and Section 206(1) and (2) of the Investment Advisers Act of 1940 (“Advisers Act”). The court permanently restrained and enjoined Defendants from further violating the securities laws and ordered disgorgement of Defendants’ ill-gotten gains in addition to prejudgment interest totaling nearly $156 million.

In July 2012, a jury found Defendants guilty of criminal charges including wire fraud, mail fraud, conspiracy to commit mail and wire fraud, and money laundering arising from a fraudulent scheme in which Defendants fraudulently sold investments in a purported foreign currency trading scheme from at least July 2006 through July 2009. The scheme was alleged to have resulted in approximately 1,000 investors losing at least $190 million. 

The SEC brought actions against Defendants, moved for summary judgment, and asserted that the criminal proceedings estopped Defendants from disputing the facts in the civil proceeding. Because the evidence introduced in the criminal trial was the same evidence underlying the SEC’s claims, the court determined Defendants were estopped from disputing the facts, which supported the SEC’s Motions for Summary Judgment. As such, the court considered whether the SEC was entitled to judgment as a matter of law in regard to each alleged violation.

First, to establish violations of the anti-fraud provisions of the Exchange Act, a plaintiff must show the defendant: (1) engaged in a fraudulent scheme; (2) in connection with an offer or sale of a security; (3) through the use of interstate commerce; (4) with scienter. In addition, to establish a violation of the Advisers Act, the plaintiff must prove that the defendant: (1) acted as an investment adviser; (2) perpetrated the fraud on existing or prospective clients; and (3) acted at least negligently in doing so.

The court found the criminal convictions satisfied all of the requirements for collateral estoppel and, thus, entitled the SEC to summary judgment regarding the securities fraud charges. Specifically, because the jury in the criminal matter found Defendants devised a scheme to defraud investors to obtain money through materially false pretenses, did so knowingly and with intent, and based its findings on the same factual basis as the SEC’s claims, the court concluded all of the elements for violations of the anti-fraud provisions were established. 

Second, to succeed on a claim for a violation of the Securities Act registration provision, a plaintiff must show: (1) did not file a registration statement for the offering of securities with the SEC; (2) sold or offered to sell securities, directly or indirectly; (3) through the use of interstate facilities or mails. An “investment contract” constitutes a security if: (1) a person invested money; (2) in a common enterprise; (3) with the expectation of profit; (4) derived solely from the efforts of the promoter or others. Defendants can escape liability, however, by proving a securities offering at issue qualified for a registration exemption.

Again, the court found the evidence in the criminal matter established the elements for an unregistered, non-exempt offering in violation of the Securities Act. The evidence introduced in the criminal trial demonstrated that investors gave Defendants money to invest in a foreign currency trading venture expecting a profit in return. Additionally, the evidence demonstrated that Defendants comingled the investors’ money in pooled accounts, never filed a registration statement, and failed to demonstrate that a registration exemption applied. The court, therefore, granted the SEC’s Motions for Summary Judgment.

Lastly, the court reasoned the SEC was entitled to permanent injunctive relief because it demonstrated Defendants violated the securities laws and there was a reasonable likelihood of future violations. Moreover, the court determined disgorgement and prejudgment interest were appropriate remedies to prevent Defendants’ unjust enrichment. Thus, the court ordered Defendants to disgorge their ill-gotten gains, with prejudgment interest, in the amount of $155,928,523.    

Primary materials for this case may be found on the DU Corporate Governance website.

Wednesday
May112016

Tai Jan Bao v. SolarCity Corporation: Accounting Practices Lead to Securities Fraud Claim

In Tai Jan Bao v. SolarCity Corporation, No. 14-cv-01435-BLF, 2016 BL 2378 (N.D. Cal. Jan. 05, 2016), the United States District Court for the Northern District of California granted SolarCity, Chief Executive Officer Rive, Chief Financial Officer Robert Kelly, and Chairman of the Board of Directors Elon Musk’s (collectively, “Defendants”) motion to dismiss a complaint filed on behalf of purchasers of SolarCity common stock (“Plaintiffs”).

According to the allegations, SolarCity Corporation derived revenue in two ways: renewable twenty-year leases of solar energy products, and sales of solar energy systems. Between December 2012 and March 2014 (“Class Period”), SolarCity’s accounting formulas shifted overhead costs from sales to leases. This enabled SolarCity to amortize costs over a twenty-year period, allowing the corporation to post consistent sales profit during the Class Period. SolarCity filed restated financials in March 2014, showing SolarCity had a negative gross margin for six affected quarters. 

The Plaintiffs claimed Defendants committed securities fraud in violation of Section 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934 (“Act”) by shifting overhead costs from sales to leases. Specifically, Plaintiffs alleged the Defendants deliberately manipulated accounting formulas to portray profitability and secure financing. The Plaintiffs also sought to hold Chairman Musk jointly and severally liable under Section 20(a) of the Exchange Act.

A successful securities claim under Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”) and Rule 10b-5 requires the plaintiff show: (1) a material misrepresentation or omission by defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation. To successfully plead scienter, the plaintiff must show a defendant made false or misleading statements either intentionally or with deliberate recklessness.

In seeking to show a “strong inference” of scienter, Plaintiffs relied on statements by eight confidential witnesses (“CWs”). To satisfy pleading requirements, confidential witnesses must describe events with sufficient particularity to establish reliability and personal knowledge, and indicate scienter. While Plaintiffs provided confidential witnesses in an effort to show Defendants knew or deliberately ignored the accounting error, the court found the CW’s statements were too “conclusory, speculative, and/or vague to hold weight.” Specifically, the court noted “most glaringly, not a single “most glaringly, not a single confidential witness alleges that Defendants knew of accounting error central to this case.” Nor did the evidence give rise to “core-operations inferences.” 

The court then held Musk was not jointly and severally liable. To hold the individuals joint and severally liable, a plaintiff must prove a primary violation of federal securities laws where the “defendant exercised actual power or control over the primary violator” by providing specific facts showing specific control over a company’s “preparation and release of allegedly false and misleading statements.”

Plaintiffs claimed Chairman Musk should be held jointly and severally liable because he maintained the power to direct or cause the direction of management or policies of  SolarCity. Plaintiffs argued Musk exercised actual authority, where he signed financial documents, was related to SolarCity’s officers, owned outstanding shares, and because, as CEO Rive explained, Musk “instruct[ed] [Rive] to swerve into a pothole” to avoid invisible walls. Musk may have been a “visionary” but such status did not “suffice to show Musk’s control over SolarCity.” 

Accordingly, the court dismissed all claims under Section 10(b) and Rule 10b-5 with leave to amend, and dismissed the Section 20(a) claim against Musk without leave.    

The primary materials for this case may be found on the DU Corporate Governance website.

 

Monday
May092016

In re Sanofi Sec. Litig.: Pharmaceutical Company’s Motion to Dismiss Granted In Federal Securities Fraud Claims

In In re Sanofi Sec. Litig., 2016 BL 3051 (S.D.N.Y. Jan. 06, 2016), the United States District Court for the Southern District of New York granted corporate defendant Sanofi and individual defendant Christopher Viehbacher’s (collectively, “Defendants”) motion to dismiss Meitav DS Provident Funds and Pension Ltd., and Joel Mofenson’s (collectively, “Plaintiffs”) putative class action asserting federal securities fraud claims. 

According to the complaint, Sanofi, a global pharmaceutical company, engaged in an illegal marketing scheme (“Scheme”) to artificially boost the sales of its diabetes product line (“Drug”). Plaintiffs alleged the Scheme consisted of funneling millions of dollars in payments disguised as contracts to Accenture and Deloitte, acting as middlemen, in an attempt to induce pharmaceutical retailers and hospitals to favor the Drug. Plaintiffs further alleged that Viehbacher, as CEO and a member of the board of directors, was in a position to have knowledge of the Scheme but failed to stop it. When two whistleblowers revealed the Scheme, an internal investigation ensued and the Scheme was abandoned, which caused the Drug’s sales to slow and the share value to decline significantly. Plaintiffs brought a putative class action on behalf of all persons who purchased shares of Sanofi between February 7, 2013 and October 29, 2014 (the “Class Period”), alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act.

To state a Section 10(b) securities fraud claim, a plaintiff must plead the defendant: (1) made misstatements or omissions of material fact, (2) with scienter, (3) in connection with the purchase or sale of securities, (4) upon which plaintiffs relied, and (5) the reliance was a proximate cause of their injury. Defendants moved to dismiss the complaint pursuant to Rule 9(b) and 12(b)(6) on the grounds that the Plaintiffs failed to adequately allege: (1) any actionable false statements or omissions of material fact, (2) a strong inference of scienter, and (3) loss causation.

A complaint alleging securities fraud based on misstatements must, among other factors, explain why certain defendant misstatements were fraudulent. The court organized the alleged misstatements and omissions into three categories: (1) statements on compliance and corporate integrity; (2) Viehbacher’s Sarbanes-Oxley (“SOX”) certification; and (3) SEC filings, press releases, and conference calls stating the growth of the Drug.

The court found Defendants’ statements on compliance and corporate integrity were not actionable under the securities laws because they were examples of corporate “puffery” and could not mislead a reasonable investor. Similarly, the court determined Defendants’ statements made in SEC filings, press releases, and conference calls were not actionable because they did nothing more than characterize, “albeit it with more fanfare,” the accurate historical data: that the Drug’s sales were growing during the Class Period. Finally, the court held that, since Viehbacher’s SOX certification was a statement of opinion, Plaintiffs were required to plead facts demonstrating Viehbacher did not actually believe what he said. Here, the court found nothing alluding to Viehbacher’s subjective knowledge in the complaint.

Next, one way a plaintiff can establish scienter is through “strong circumstantial evidence of conscious misbehavior or recklessness.” Plaintiffs argued such evidence derived from Defendants’ access to the whistleblower reports and internal investigation. The court disagreed and found the Plaintiffs’ complaint relied on “unsubstantiated conclusions” and did not reference or identify specific facts, reports, or documents that could establish circumstantial evidence of scienter. Thus, the court held Plaintiffs failed to plead a strong inference of scienter.

Finally, to prove loss causation, a plaintiff may show: (1) cause-in-fact proof, or (2) the loss suffered was foreseeable and caused by the materialization of the risk concealed by the fraudulent statements. Plaintiffs theorized that after Defendants abandoned the Scheme, the Drug faced less advantageous pricing in the market, which caused the Drug to sell less, adversely affecting the value of shares. The court agreed Plaintiffs theory could establish loss causation, but found no evidence Defendants’ Scheme actually materially inflated the Drug sales. Here, the court concluded loss causation could not be proven without evidence of a casual relationship between the Scheme being abandoned and the share price declining.

Accordingly, the court dismissed Plaintiffs’ putative class action asserting federal securities fraud claims.

Primary materials for this case may be found on the DU Corporate Governance website

Friday
May062016

SEC Requests Injunction Against Participant in the Marijuana Business

On February 29, 2016 the Securities and Exchange Commission (“SEC”) filed a complaint in the U.S. District Court for the Western District of Pennsylvania against Fortitude Group, Inc. and CEO Thomas Parilla (“Defendants”), regarding alleged false and misleading public press releases regarding the company’s efforts and performance as a successful marijuana-related business. The SEC requested an injunction from further misrepresentation and the payment of penalties by the defendants, as well as a penny stock and officer and director bar against Parilla.

According to the allegations in the Complaint, Defendants between February 2014 and May 2014 circulated several press releases on www.otcmarkets.com portraying the company as active in the legalized marijuana business. Via press releases, Fortitude announced the formation of three new subsidiaries, described two separate plans to issue various pre-paid debit cards that could be used for marijuana transactions, and announced the distribution of a marijuana vaporizer. For the first quarter of 2014, Fortitude reported $412,162 in revenue.  The day Fortitude disclosed its plans for three new subsidiaries, the company’s stock price increased 4900% to $0.01 per share and the volume increased three-fold to over 132 million shares. The price of shares continued to increase, peaking at $0.08 per share on April 4, 2014, two days after the press release regarding Fortitude’s plan to distribute vaporizers.

The SEC alleged that Defendants violated Rule 10b-5 and aided and abetted violations of the rule.  The SEC contended that none of the business pursuits reported in the Defendants’ press releases were executed and Fortitude lacked the requisite licensure, funding, or infrastructure to realize them. Also, that the revenues reflected in Fortitude’s first quarter report were false.  Additionally, that Fortitude’s stock price and trading volume between February 2014 and May 2014 were materially impacted by the public dissemination of the aforementioned misrepresentations. 

To prevent continued violation by the defendants, the SEC requested the court issue an injunction from violation of the federal securities laws alleged and an order for the defendants to pay civil money penalties pursuant to Section 21(d)(3) of the Exchange Act, 15 U.S.C. § 78u(d)(3).  The SEC also requested Parilla be barred from future offering of a penny stock as well as from acting as an officer or director of any issuer of registered securities.

The primary materials for this case can be found on the DU Corporate Governance website.

Thursday
May052016

In re Dole Food Co., Inc.: Merger Breaches Duty of Loyalty

In In re Dole Food Co. Stockholder Litig., No. 8703-VCL CONSOLIDATED C.A. No. 9079-VCL, 2015 BL 276794 (Del. Ch. Aug. 27, 2015), shareholders (the “Plaintiffs”) brought action against David H. Murdock, C. Michael Carter, and David A. DeLorenzo (collectively, “Defendants”) for breach of their duty of loyalty and against Deutsche Bank for aiding and abetting. The Court of Chancery found Murdock and Carter jointly and severally liable, without imposing liability on DeLorenzo and Deutsche Bank.

According to the allegations, Murdock, the CEO and controlling stockholder of Dole Food Company, Inc. (“Dole”), owned 40% of Dole’s common stock. In November 2013, Murdock bought all remaining shares of Dole’s common stock for $13.50 per share as a single-step merger (the “Merger”). A committee of disinterested and independent directors of Dole’s board of directors (the “Committee”) formed to negotiate the transaction.

Although a majority of unaffiliated shareholders approved the Merger, Defendants allegedly made false disclosures and withheld material information from the Committee and shareholders during the process. Specifically, Plaintiffs alleged that the Committee received erroneous information about Dole increasing its income through cutting costs and purchasing farms. Shareholders filed suit, alleging the Defendants breached the duty of loyalty through fraudulent self-dealing.

In transactions involving self-dealing by a controlling shareholder, the applicable standard is entire fairness. Entire fairness depends upon fair dealing and fair price. After examining these two aspects separately, the court considered the issue as a whole to determine entire fairness.

First, the court found the Merger did not involve fair dealing. In reaching this conclusion, the court considered the timing, initiation, negotiation, structure, and approval of the transaction. The court found Carter provided inaccurate information to the Committee. For example, the due diligence of DeLorenzo and Deutsche Bank revealed Dole’s “cost-cutting plan” could achieve $50 million cost savings per year. Although Carter knew this, he claimed in a press release that Dole could only achieve a $20 million cost savings, which caused stock prices to fall 13%.

The court also held that while the price may have been within the range of fairness, Plaintiffs were entitled to a “fairer” price. Id. (“This is because by engaging in fraud, Carter deprived the Committee of its ability to obtain a better result on behalf of the stockholders, prevented the Committee from having the knowledge it needed to potentially say “no,” and foreclosed the ability of the stockholders to protect themselves by voting down the deal.”).

Having found violations of fair price and fair dealing, and thus entire fairness, the court next examined each Defendant separately to determine who was liable. The court found Murdock liable for breaches of the duty of loyalty both as a director and a controlling shareholder. The court also determined DFC Holdings, LLC, an entity controlled by Murdock, was an “acquisition vehicle” for the Merger and aided and abetted the violation.

The court further found Carter liable for damages both as an officer and director. Lastly, the court found that, while a “close call,” DeLorenzo was entitled to rely on the Committee's recommendation of the Merger and was not liable. With regard to Plaintiffs’ suit for aiding and abetting against Deutsche Bank, the court found Plaintiffs failed to meet the third element of the claim, “knowing participation in the breach,” because Deutsche Bank did not knowingly assist in the Defendants’ breach of duty.

Accordingly, the court found Murdock, his entity DFC Holdings, LLC and Carter liable for breach of duty of loyalty in the amount of $148,190,590.18.

The primary materials for this case are available on the DU Corporate Governance website.

Wednesday
May042016

Conference on Corporate Compliance: The Rutgers Center for Corporate Law and Governance

I'm happy to pass along the following announcement:

The Rutgers Center for Corporate Law and Governance is presenting a conference on corporate compliance on Friday, May 20, 2016, from 8:30 AM to 3:30 PM, entitled New Directions in Corporate Compliance. The conference will take place at Rutgers Law School, 217 North Fifth Street, Camden, NJ 08102.
 

Corporate and regulatory compliance has exploded as an area of importance to a variety of business organizations in recent years. Corporate compliance programs must be well planned and rigorously implemented throughout a business organization. Notwithstanding the importance of corporate compliance, there is disagreement over the best way to implement and enforce a compliance program. 

This conference will bring together academics, practitioners, and government officials, who approach compliance from different perspectives. The conference will include sessions on litigating the adequacy of a compliance program, structural issues in the compliance department, and organizational culture and developing a culture of compliance. Andrew Donohue, Chief of Staff of the U.S. Securities and Exchange Commission, will present a keynote luncheon address. 

Other speakers include: Catherine Bromilow, Partner, PwC Center for Board Governance; Stephen L. Cohen, Associate Director, Securities and Exchange Commission; James Fanto, Gerald Baylin Professor of Law, Brooklyn Law School; Donald C. Langevoort, Thomas Aquinas Reynold Professor of Law, Georgetown Law; Joseph E. Murphy, Author of 501 Ideas for Your Compliance & Ethics Program; Donna Nagy, C. Ben Dutton Professor of Law, Indiana University Maurer School of Law; Charles V. Senatore, Executive Vice President, Fidelity Investments, Greg Urban, Arthur Hobson Quinn Professor of Anthropology, University of Pennsylvania; and John Walsh, Partner, Sutherland.   

The conference is free and open to the public. A reception will follow. To RSVP, please contact Deborah Leak at dl524@camden.rutgers.edu. CLE credit is available for NJ, NY, and PA. For additional information about CLE credit, contact Deborah Leak.

Tuesday
May032016

SEC v. Gibraltar Global Securities, Inc.: District Court Affirms Magistrate’s Report

In SEC v. Gibraltar Global Securities, Inc., No. 13 Civ. 2575, 2016 BL 7335 (S.D.N.Y. Jan. 11, 2016), the United States District Court for the Southern District of New York adopted its prior October 16, 2015 Report and Recommendation (“Report”), holding Gibraltar Global Securities, Inc., and its president and sole shareholder, Warren A. Davis (collectively, “Defendants”) liable for damages following violations of the Securities Exchange Act of 1934 (“Exchange Act”) as well as Securities Act of 1933 (“1933 Act”). 

The Securities and Exchange Commission (“SEC”) filed a claim against Defendants alleging violations under Section 15(a)(1) of the Exchange Act and Sections 5(a) and (c) of the 1933 Act. On July 2, 2015, the court granted the SEC’s motion for default judgment against Defendants and referred the case to a magistrate for an inquest on damages. When Defendants failed to appear at the damages hearing or to timely object, the Magistrate accepted all facts alleged in the SEC’s complaint as true. Those facts are as follows:

Defendants operated as an offshore, unregistered securities broker-dealer selling millions of shares of unregistered stock in the company Magnum d’Or. Defendants used the Gibraltar website, email, telephone, or mail to complete transactions for customer stock on the open market. Defendants sold unregistered Magnum shares through their U.S. brokers, placed the proceeds in US-based brokerage accounts, and wired any sales proceeds to Defendants’ Royal Bank of Canada account in the Bahamas, where a 2-3% commission was deducted. Defendants sent the remaining amounts back to their U.S. customer, Magnum via mail. Defendants bought and sold over 11 million Magnum d’Or shares between November 2008 and September 2009 to generate $11,384,589 in proceeds.

Under Section 15 of the Exchange Act, it is unlawful for an unregistered dealer to utilize an instrumentality of interstate commerce to effect transactions in, or to induce the purchase of, any security. 15 USC 78o.  Defendants utilized Gibraltar’s website, email, or telephone—instrumentalities of interstate commerce—to receive shares of stock from its customers and deposit the shares into Gibraltar’s U.S.-based brokerage accounts. As such, the court found no clear error in the Report, holding the Magistrate correctly determined Defendants violated the Exchange Act.

Under the 1933 Act, a defendant violates Section 5 (15 USC 77e) if: (1) he or she directly or indirectly sold or offered securities; (2) without registration in effect for the subject securities; and (3) interstate means were used in connection with the offer or sale.  Because Defendants sold unregistered Magnum shares through their U.S. brokers to generate commissions’ proceeds and sent the remainder back to Magnum via mail, the court determined the Report properly found Defendants liable under the 1933 Act.

Based on a magistrate’s finding of a defendant’s liability, the court can adopt a magistrate’s recommendation for damages. Here, the Magistrate recommended disgorgement, disgorgement for prejudgment interest, and second-tier civil monetary penalties. Disgorgement calculations need only be a reasonable approximation of the profits causally connected to the violation, ensuring that the defendant does not profit from his or her gains. The court held the Magistrate’s recommendation to award disgorgement and disgorgement for prejudgment interest was proper and reasonable based on Defendants’ liability. The court, however, determined the Magistrate’s prejudgment interest calculation contained a mathematical error and adjusted the final amount. The court also held each Defendant liable for a second-tier civil monetary penalty for their “abhorrent” conduct.

Accordingly, the court adopted the Magistrate’s report in its entirety notwithstanding the calculation error in prejudgment interest, awarding damages to the SEC.

 The primary materials for this case may be found on the DU Corporate Governance website.

Monday
May022016

Tongue v. Sanofi: Allegations of Misleading Statements Not Actionable Under Revised Omnicare Standard

In Tongue v. Sanofi, No. 15-588, 2016 BL 66168, (2d Cir., Mar. 4, 2016), the Court of Appeals for the Second Circuit affirmed the United States District Court for the Southern District of New York’s grant of Sanofi Pharmaceutical Inc.’s (“Sanofi”), Genzyme Corporation’s (“Gnzyme”), and Sanofi Executives’ (“Executives”, collectively “Defendants”) motion to dismiss the consolidated class action complaint by all persons (“Plaintiffs”) who purchased Contingent Value Rights (“CRVs”) between March 6, 2012 and November 7, 2013.

According to the allegations, Sanofi in February 2011 acquired Lemtrada , a multiple sclerosis treatment, developed by Genzyme, for $74 per share and one CVR per share. Each CVR entitled the holder to cash payouts upon achievements of milestones, such as receiving approval from the FDA by a specific date. In the years leading up to this deadline, Defendants released optimistic statements about Lemtrada’s clinical testing and the FDA approval process. In a call with investors in April 2012, Sanofi’s CEO claimed that, in regards to Lemtrada, “the data are nothing short of stunning.” Defendants, however, omitted the concerns expressed by the FDA about the use of single-blind, rather than double-blind clinical studies, in the testing for Lemtrada. Ultimately, Lemtrada was not approved by the FDA before the deadline and the value of each CVR dropped by more than 62% from $2.00 to $.077 a share.

On April 28, 2014 Plaintiffs filed a complaint alleging Defendants violated Section 10(b) and Section 20(a) of the Security Exchange Act (“Act”), as wells Rule 10b-5 promulgated thereunder, by making materially false and misleading statements that misled investors when Defendants failed to disclose the FDA had expressed concerns about the single-blind, rather than double-blind, testing.

In the period between dismissal by the district court and the decision in the appeal, the Supreme Court decided Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, 135 S. Ct. 1318 (2015). The Court, therefore, applied the analysis in that case. Under the revised standard set forth in Omnicare, an investor must “identify particular (and material facts) in the issuer’s opinion whose omission makes the statement misleading to a reasonable person reading the statement fairly and in context.” While opinions may be actionable if the omitted information makes the statement misleading to a reasonable investor, an issuer failing to disclose facts, which cut against its opinion is not necessarily misleading. A reasonable investor expects the issuer to believe the opinion and that it fairly aligns with the information in the issuer’s possession, but does not expect every fact known to the issuer to support its opinion.

The court determined Sanofi did not make material misleading statements of opinion. While the FDA had concerns with the testing methodology “it also stated that any deficiency could be overcome if the results showed an ‘extremely large effect.’” In effect, the concerns were part of a “dialogue” between the FDA and Sanofi. As the court reasoned, “These sophisticated investors, well accustomed to the ‘customs and practices of the relevant industry,” would fully expect that Defendants and the FDA were engaged in a dialogue, as they were here, about the sufficiency of various aspects of the clinical trials and that inherent in the nature of dialogue are differing views.” Moreover, the dialogue “did not prevent Defendants from expressing optimism, even exceptional optimism, about the likelihood of drug approval.”

Accordingly, the court determined there was an absence of serious conflict between the FDA’s concerns about the testing methodology and the Defendants’ optimism about the approval, affirming the district court’s dismissal.

The primary materials for this case may be found on the DU Corporate Governance website

Friday
Apr292016

SEC v. Blackburn: FRCP 9(b) – The Need to Sufficiently Allege Scienter

In SEC v. Blackburn, 2015 BL 293662 (E.D. La. Sept. 10, 2015), the United States District Court for the Eastern District of Louisiana granted in part and denied in part, Defendant Lee C. Schlesinger’s (“Schlesinger”) Partial Motion to Dismiss in a securities fraud case brought against Treaty Energy Corporation (“Treaty”) and six Treaty employees: Ronald Blackburn, Andrew Reid, Bruce Gwyn, Michael Mulshine, Lee Schlesinger (Treaty’s former Chief Investment Officer), and Samuel Whitley (collectively, “Defendants”). 

According to the allegations, Treaty is a publicly traded oil and gas company. The Securities and Exchange Commission (“SEC”) alleged that six of Treaty’s employees violated Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”) and Rule 10b-5 by operating a widespread scheme to defraud investors and violate federal securities laws between 2009 and 2013. The SEC alleged Schlesinger aided and abetted Treaty’s reporting violations. The SEC further alleged Schlesinger failed to disclose Ronald Blackburn’s (“Blackburn”) control over Treaty, and Schlesinger took part in unregistered public offerings of restricted stock.

Schlesinger, the former Chief Investment Officer, filed a Partial Motion to Dismiss, challenging the SEC’s securities fraud and aiding and abetting claims against him. Schlesinger primarily argued the SEC’s claims did not specify how he committed any legal wrong.

To prevail on a securities fraud claim for Section 10(b) of the Exchange Act and Rule 10b-5 violations, a party’s claims, if true, must establish the actor made: a misstatement or omission of material fact in connection with the purchase or sale of a security, with the intent to deceive, manipulate, or defraud the public. The SEC may only succeed on an aiding and abetting claim if it can prove: (1) the primary party committed a securities violation; (2) the aider and abettor was generally aware of its role in violating the law; and (3) the aider and abettor knowingly rendered substantial assistance in furtherance of the violation.

A party alleging fraud must satisfy a heightened pleading standard and allege the circumstances constituting fraud with particularity. The Fifth Circuit interprets Rule 9(b) strictly. In order to satisfy this strict interpretation, a plaintiff alleging fraud must specifically identify: (1) statements alleged to be fraudulent, (2) the identity of the speaker, and (3) when and where the statements were made, and must explain why the statements were fraudulent.

In addressing the motion to dismiss, the court considered the SEC’s request to take judicial notice of Treaty’s Forms 10-K filed for the years 2011 and 2012. The court stated it may consider the contents of public disclosure documents that are (1) required to be filed, or (2) are actually filed with the SEC. The court agreed to take judicial notice of statements within the documents but not do so with respect to the truth of those statements.

The court held the SEC failed to state a claim against Schlesinger. The SEC did sufficiently allege that Schlesinger was the maker of false statements because he had signed the relevant reports filed on Form 10-K. The court, however, found that the SEC had not sufficiently alleged scienter. The SEC did not provide specific facts sufficient to demonstrate that Schlesinger acted consciously with respect to the statements alleged to be false or had a sufficient motive to commit securities fraud.

The court also held the SEC’s complaint failed to state a claim against Schlesinger for aiding and abetting. According to the court, Schlesinger’s signature on two Forms 10-K did not support an inference Schlesinger acted with conscious intent or that Schlesinger’s alleged actions constituted an extreme departure from the standards of ordinary care.

The primary materials for this post can be found at the DU Corporate Governance website.

Wednesday
Apr202016

No-Action Letter for General Electric Company Allowed Exclusion of Litigation Strategy Proposal

In General Electric Co., 2016 BL 32440 (Feb. 3, 2016), General Electric Co. (“GE”) asked the staff of the Securities and Exchange Commission (“SEC”) to permit omission of a proposal submitted by the Sisters of St. Dominic of Caldwell, NJ, among others (“Shareholders”) requesting an independent evaluation assessing potential sources of liability related to PCB discharges into the Hudson River.  The SEC agreed to issue a no action letter allowing for exclusion of the proposal under Rule 14a-8(i)(7). 

Shareholder submitted a proposal providing that:

RESOLVED, shareholders request that GE at reasonable expense undertake an independent evaluation and prepare an independent report by October 2016, demonstrating the company has assessed all potential sources of liability related to PCB discharges in the Hudson River, including all possible liability from NRD claims for PCB discharges, and offering conclusions on the most responsible and cost-effective way to address them.

GE sought exclusion under subsections (i)(7) and (i)(3). 

Rule 14a-8 provides shareholders with the right to insert a proposal in the company’s proxy statement.  17 CFR 240.14a-8. The shareholders, however, must meet certain procedural and ownership requirements.  In addition, the Rule includes thirteen substantive grounds for exclusion. For a more detailed discussion of the rquirements of the Rule, see The Shareholder Proposal Rule and the SEC.  

Rule 14a-8(i)(7) permits a company to omit a proposal that relates to the company’s “ordinary business” operations, including the company’s litigation strategy and legal compliance. “Ordinary business” refers to those issues that are fundamental to management’s ability to run the company on a day-to-day basis. As such, “ordinary business” issues cannot practically be subject to direct shareholder oversight.

Rule 14a-8(i)(3) permits the exclusion of proposals or supporting statements that are contrary to any of the SEC’s proxy rules or regulations. The subsection applies to proposals that may be inconsistent with Rule 14a-9, which prohibits materially false or misleading statements in proxy soliciting materials. In addition, the subsection permits the exclusion of proposals that are vague and indefinite, rendering the company’s duties and obligations unclear.   

GE argued the proposal should be excluded under 14a-8(i)(7) because it related to GE’s “litigation strategy.” GE asserted that the proposal “implicate[d] the Company’s litigation strategy in, pending lawsuits involving the Company.”  GE also asserted that the proposal could be excluded because it sought “to micro-manage the manner in which a company complies with its legal obligations.” 

In addition, GE argued the proposal could be omitted under 14a-8(i)(3) because the proposal was vague.  GE contended the proposal would result in a bifurcated request with undefined reference as to what conclusions should be reached and who should undertake the independent evaluation.

Shareholders disagreed.  Shareholders contended that matters that were “the subject of litigation” could nonetheless raise “a significant policy issue for the corporation and its shareholders.”  Shareholders argued that excluding all proposals related to litigation would function as a “get out of jail free” card for companies.

The SEC agreed and concluded it would not recommend enforcement action if GE omits the proposal from its proxy materials in reliance on Rules 14a-8(i)(7).  The staff noted “that the company is presently involved in litigation relating to the subject matter of the proposal.”  

The primary materials for this post can be found here.

Thursday
Apr142016

An End to the Conflict Minerals Saga?

In a letter dated March 6th from Attorney General Loretta Lynch to House Speaker Paul Ryan the Attorney General announced that the government will not appeal the ruling in SEC v. NAM (the conflict minerals case) to the US Supreme Court—thus ending (for now) the conflict minerals saga (discussed here and here. ) To be clear, the decision not to appeal does not mean that there is no regulation of conflict minerals.  The rule remains in effect and require that covered issuers file a Form SD and make efforts to determine if their products include any conflict minerals and, if so, to carry out a "due diligence" review of their supply chain.   The only portion of the rule struck down in earlier litigation was the requirement to state that certain products had not been found to be “DRC conflict free.” 

In her letter explaining why review will not be sought the Attorney General noted that:  

  • The panel majority and the dissenting judge disagreed as to the proper standard of scrutiny for First Amendment challenges to compelled-disclosure requirements of the sort at issue here. But because the majority concluded in the alternative that the challenged requirements would be unconstitutional even under the more lenient standard, this would be a poor case in which to seek Supreme Court clarification of the proper standard of scrutiny.  

Further she stated:  

  • The panel majority and the dissenting judge also disagreed on the question whether the disclosure requirements at issue here - which compel some issuers to state publicly that their products have "not been found to be 'DRC conflict free"' - are properly characterized as involving "purely factual and uncontroversial information." The need to resolve that case-specific issue could likewise make it difficult for the Supreme Court to provide useful guidance concerning the application of the First Amendment to more typical disclosure requirements.  

Finally she observed: 

  • The panel majority also expressly recognized that its holding of unconstitutionality may apply only to the Commission's rule rather than to the underlying statute. If, after remand, it is determined that the statute itself does not require use of the specific phrase "not been found to be ' DRC conflict free,'" the Commission could promulgate an amended disclosure rule that attempts both to fulfill the statutory mandate and to comport with the court of appeals' view of the First Amendment. The decision not to seek Supreme Court review will allow the Commission or the district court to determine in the first instance, subject to further review, whether such an amended rule can and will be promulgated.  

This decision may comfort issuers who now know the parameters of their disclosure obligations under the rule.  However it should leave those who care about the regulation of commercial speech troubled.  The state of the law in this area is a mess—no one knows what standard of review will be applied to any particular regulation, nor do we know what constitutes “purely factual and uncontroversial information.”  The stakes are high—see the GMO labeling case in Vermont.  For now confusion will reign.

 

Wednesday
Apr132016

Excavators and Pavers Pension Fund v. Diodes Inc.: Insufficient pleading under the PSLRA

In Excavators and Pavers Pension Trust Fund v. Diodes Inc., No. 14-41141, 2016 BL 9217 (5th Cir. Jan. 13, 2016), the United States Court of Appeals for the Fifth Circuit affirmed the lower court’s decision granting Diodes, Inc.’s (“Diodes”), its CEO Keh-Shew Lu’s (“Lu”), and its CFO Richard White’s (“White”) (collectively, “Defendants”) motion to dismiss the securities fraud class action. The 5th Circuit held Excavators and Pavers Pension Trust Fund’s (“Plaintiff”) claims did not support an inference of scienter under the Private Securities Litigation Reform Act’s (“PSLRA”) heightened pleading requirements.

According to Plaintiff’s allegations, on February 9, 2011, Lu announced Diodes’s revenue would stagnate or drop 5% because its Shanghai production facility experienced labor shortages, which adversely affected manufacturing output. On May 10, 2011, White stated at an industry conference that Diodes had noticed the labor problem, which would affect manufacturing output, around Chinese New Year, and that Diodes intended to hire new workers to replace non-returning workers; however, typical training lasted six to eight weeks. Following White’s announcement, Diodes’s stock price dropped. On June 9, 2011, Diodes again lowered its revenue prediction because labor recovery was slower than expected, and Diodes’s stock price fell again.

Plaintiff’s complaint alleged violations of Sections 10(b) and 20(a) of Securities Exchange Act of 1934. Plaintiff claimed: (1) Defendants must have known or were severely reckless in not knowing Diodes’s internal labor policies would exacerbate labor problems; (2) Defendants made early shipment orders to customers in an attempt to conceal the severity and duration of the labor shortage; and (3) Lu’s stock sales at this time supported a strong inference of scienter. Defendants moved to dismiss Plaintiff’s complaint for failure to state a claim. 

A complaint will survive a motion to dismiss under the PSLRA if the allegations specify: (1) each misleading statement; (2) the reasons why the statement is misleading; and (3) the facts, stated with particularity, which give rise to a strong inference of scienter. Under PSLRA’s heightened standard, a complaint’s cogent and compelling allegations are enough for a court to infer scienter—an intent to deceive or defraud. The complaint’s allegations must do more than create just a reasonable or permissible inference.

The court held the Plaintiff’s allegations were not cogent or compelling enough to conclude that a strong inference of scienter existed. Specifically, the court ruled the allegations failed to show sufficient facts indicating Defendants had actual knowledge the labor shortage was principally caused by Diodes’s workplace policies; rather, its management never denied the existence of labor shortages and accurately predicted the impact on Diodes’s financial results. Additionally, the court held that shipping orders ahead of schedule would enhance the labor shortage problem, rather than conceal the problem as Plaintiff argued, because shipping orders early would deplete inventory and cause Diodes’s inability to fill orders to quickly become apparent. Finally, the court held Lu’s significant stock sales alone did not support a strong inference of scienter; rather, nonculpable inferences drawn from Lu’s stock sales were more compelling than Plaintiff’s culpable inferences.

Accordingly, the court of appeals affirmed the decision to grant Defendants’ motion to dismiss because the complaint failed to satisfy the PSLRA’s heightened pleading requirement.

The primary materials for this case may be found on the DU Corporate Governance Website.

Friday
Apr012016

SEC v. LEE: Securities Fraud Under the EB-5 Immigrant Investor Program

In SEC v. Lee, No. CV 14-06865-RGK (Ex), 2015 BL 356931 (C.D. Cal. Oct. 28, 2015), the United States District Court for the Central District of California granted a motion for default judgment filed by the SEC against Justin Moongyu Lee and his five commercial entities (“Entity Defendants”) (collectively, “Defendants”) for securities fraud.

The United States Citizenship and Immigration Service (“USCIS”) administers the EB-5 visa program for immigrant investors seeking permanent residency in the United States. To receive permanent residency, immigrant investors must invest at least $500,000 in a Target Employment Area (“TEA”) and created 10 full-time jobs for United Stated workers. This program allows investors to designate entities as “regional centers” inside a TEA. In 2006, Lee applied to designate one of the Entity Defendants as a regional center. The Entity Defendants raised $11,455,000 in investment contracts from immigrant investors for the construction of an ethanol plant.

The SEC filed a complaint against defendants, claiming the Defendants violated Section 17(a) of the Securities Act, Section 10(b) of the Exchange Act, and Rule 10-5b. The complaint alleged the Entity Defendants never constructed the plant, and used a majority of the money raised by the immigrant investors for other purposes.

Together, Section 17(a) of the Securities Act, Section 10(b) of the Exchange Act, and Rule 10-5b prohibit fraud in the offer or sale, or in connection with the purchase or sale of securities. For the SEC to prevail, it had to show: (1) the Defendants made material misrepresentations and omissions; and (3) those statements and omissions were made with scienter.

The complaint alleged Lee misrepresented to investors that major construction on the plant was ongoing, Lee submitted forms with false information to the USCIS, Lee paid off investors in other schemes with the immigrant investor money, and the Entity Defendants were purposed for other tasks. First, the court held the Defendants made material misrepresentations to its investors. The court reasoned that, contrary to the Defendant’s representations to investors, investors’ money did not go towards the plant, was not helping the investors gain permanent residency, and did not create jobs in relation to the project. Because the court found there was a substantial likelihood that a reasonable investor would consider this information before investing in the plant, it held the Defendant’s misrepresentations were material. 

Next, the court turned to the element of scienter to determine if these misrepresentations were committed knowingly or recklessly. Scienter is satisfied by proving recklessness. The court determined the facts supported a claim that Defendants made the misrepresentations with the requisite scienter: (1) Lee headed and controlled each of the Entity Defendants; (2) Lee signed the regional center applications; (3) Lee represented to both investors and the USCIS that the plant would be constructed, even when construction was no longer feasible; (4) Lee provided offering materials to investors; and (5) Lee approved all information regarding the plant in numerous investor seminars.

The court enjoined the Defendants from violating Section 17(a) of the Securities Act, Section 10(b) of the Exchange Act, and Rule 10-5b, ordered Lee to pay a maximum civil penalty of $150,000, and ordered disgorgement of $8,262,403.73 – the approximate amount of immigrant investor money the Defendants misused, after an adjustment for inflation.

The primary materials for this case may be found on the DU Corporate Governance website.

Tuesday
Mar292016

SEC v. DFRF Enters. LLC: An Alleged $15M Fraud Scheme Promising Opportunities to Invest in Gold Mines

In SEC v. DFRF Enters.. LLC, D. Mass., No. 1:15-cv-12857, complaint unsealed (July 2, 2015), the Securities and Exchange Commission (the “Commission”) demanded a jury trial based on allegations against defendants DFRF Enterprises LLC (a Massachusetts company), DFRF Enterprises, LLC (a Florida company)(collectively, “DFRF”), Daniel Fernandes Rojo Filho, Wanderly M. Dalman, Gaspar C. Jesus, Eduardo N. Da Silva, Heriberto C. Perez Valdes, Jeffrey A. Feldman, and Romildo Da Cunha (the “Defendants”). The Commission alleged violations of (a) Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”) and Rule 10b-5 thereunder, (b) Section 17(a) of the Securities Act of 1933 (“Securities Act”), and (c) Sections 5(a) and 5(c) of the Securities Act, seeking injunctive relief, disgorgement plus prejudgment interest, and penalties. 

According to the allegations in the complaint, Filho during the Summer of 2014 began selling “memberships” in DFRF through meetings with prospective investors, which mostly took place in Massachusetts. Since October 2014, Filho promoted DFRF primarily through videos made available to the public on the Internet. Starting in March 2015, the Defendants claimed DFRF had registered with the Commission, was about to become publically traded, and investors could convert their membership interests into stock options at $15.06 per share. By June 2015, Filho claimed, while public trading had not begun, the value of DFRF stock exceeded $64 per share.  From June 2014 to May 2015, according to the SEC, DFRF raised more than $15 million and has only paid about $1.6 million back to investors, using money from other investors.

According to the complaint, while recruiting investors, Defendants claimed DFRF owned more than fifty gold mines in Brazil and Africa and made a 100% gross return on every kilogram it produced. The SEC also alleged Defendants told investors DFRF had a credit line with a Swiss private bank to triple its available funds, offered a 10% credit to investors who recruit new members, and paid 15% per month back to investors. Lastly, the SEC alleged Defendants claimed investors’ money was fully guaranteed by a worldwide insurance company. As the complaint alleges:

The investors' money has not been used to conduct gold mining, pay for a credit line, purchase insurance, or endow charitable activities. DFRF has received no proceeds from mining operations or any credit line. To date, DFRF has paid approximately $1.6 million back to investors. Because it has no independent source of revenue, it is apparent that, in classic Ponzi scheme fashion, DFRF is using money from some investors to pay other investors.

Based on these allegations, the Commission filed a complaint against DFRF in the federal district court of Massachusetts, requesting the court (1) enter a temporary restraining order; (2) grant a preliminary injunction; (3) grant an order freezing all assets; and (4) grant an order for other equitable relief.  Furthermore, the Commission requested the court enter a permanent injunction restraining the Defendants and their agents from directly or indirectly engaging in the conduct described above, or in conduct of similar effect.

Since the filing of the complaint, the SEC announced that Mr. Filho was “criminally charged with defrauding investors.”  https://www.sec.gov/litigation/litreleases/2015/lr23310.htm  see also https://www.justice.gov/usao-ma/us-v-daniel-fernandes-rojo-filho-dfrf-enterprises-llc-dfrf

The primary materials for this Complaint can be found at the DU Corporate Governance Website