CSX Affirmed And New Financial Fraud And Options Backdating Cases

The Second Circuit summarily affirmed the CSX ruling in a case which raises significant issues regarding whether the present regulatory scheme is outmoded – a point being raised by many in view of the collapse of Lehman Brothers, the take-over of Merrill Lynch and other market events on Monday. In addition, the SEC filed actions involving financial fraud and options backdating.

CSX: The Second Circuit Court of Appeals affirmed the decision of Judge Kaplan not to enter an injunction in CSX v. Children’s Investment Fund, No. 08-2899-cv (2nd Cir. Sept. 15, 2008). That case centered on a bitter proxy contest. CSX claimed defendants, who held an interest in CSX stock through various contractual arrangements, failed to comply with the disclosure requirements of Section 13(d). As discussed more fully here, the court found violations of Section 13(d), but under existing precedent declined to enter an injunction which would preclude voting the shares. Underlying the case is a question of whether Wall Street innovations such as the synthetic securities held by defendants have outstripped present regulation.

Financial fraud: In SEC v. American Italian Pasta Company, Case No. 4:08-cv-00675 (W.D. Mo. filed Sept. 15, 2008), the Commission filed a financial fraud case against the company in tandem with separate actions against three of its officers and two criminal cases filed by the U.S. Attorney’s Office. The Commission brought actions against AIPC’s former chief executive officer Timothy S. Webster, former CFO Warren B. Schmidgall and former executive vice president of corporate development and strategy David E. Watson. The SEC alleged that the defendants engaged in a scheme to defraud beginning in the middle of 2002 after an earnings shortfall. In response to that shortfall, the Commission claims that the defendants held a “Profit Achievement Task Force” and other meetings focused on closing the earnings gap. At these meetings, the executives committed to closing the gap between net income reported and the Wall Street consensus. This, the complaint notes, resulted in a culture of fraudulent accounting.

As a result of the tone set at the top, the SEC claims the defendants engaged in a number of fraudulent accounting practices including:

• The fraudulent capitalization of manufacturing costs;

• The fraudulent capitalization of certain expenses;

• The improper reduction of depreciation expenses;

• The improper capitalization of certain costs;

• Failing to reduce the value of its spare parts inventory as required; and

• Engaging in improper round-tripping of cash transactions.

As a result of these and other practices, the company overstated its pre-tax income by more that $36 million and its EPS by about 23% for fiscal 2002, 42% for fiscal 2003 and 59% in the first quarter of fiscal 2004. In June 2008, the company restated its financial statements.

To resolve the Commission’s case the company and Messrs. Webster and Ruskey consented to the entry of permanent injunctions prohibiting future violations of the antifraud and reporting provisions. In addition, Mr. Webster consented to the entry of an order requiring the payment of disgorgement of about $750,000 plus prejudgment interest, a civil penalty of $250,000 and barring him from serving as an officer or director of a public company. Mr. Ruskey also consented to the entry of an order requiring that he pay a civil penalty of $25,000.

In the related criminal cases, Messrs. Webster and Schmidgall pled guilty to one count of conspiracy to commit wire fraud. U.S. v. Webster, 08-00259-01-Cr-W-DGK (W.D. Mo.); U.S. v. Schmidgall, No. 08-00260-01-Cr-W-DW (W.D. Mo.). The company agreed to resolve the criminal investigation by paying a $7.5 million penalty.

Option backdating: The Commission also filed another settled options backdating case, SEC v. Karatz, Civil Action No. CV 08-06012 (C.D. CA. Filed Sept. 15, 2008). This action, filed against former chairman and CEO of KB Home, Inc., alleged that the defendant engaged in a multi-year scheme to backdate stock options for himself and others at the company. According to the complaint, from 1999 through 2005 Mr. Karatz used hindsight to pick advantageous grant dates for company stock option grants. As a result Mr. Karatz received a total of 2,860,000 shares of KB Home stock and made more than $6 million from the exercise of the options.

To resolve the case, Mr. Karatz consented to the entry of a permanent injunction prohibiting future violations of the antifraud, reporting and proxy provisions of the federal securities laws. In addition, Mr. Karatz agreed to the entry of an order requiring him to pay approximately $6.7 million in disgorgement and interest and a civil penalty of $480,000. That order also bars him from serving as an officer or director of a public company for five years.

Inferences From Core Operations Under Tellabs

When the Supreme Court handed down its decision in Tellabs, Inc. v. Makor Issues and Rights, Ltd., 127 S.Ct. 2499 (2007), many commentators heralded the ruling as another in a line of pro-business decisions by the Court. The reality is more complex however, and depends on an analysis of the pre-Tellabs case law in each circuit. In some circuits such as the Seventh, the standard seems to be about the same. The Second Circuit, on the other hand, seems to be combining its long standing test of scienter with the Tellabs equipoise standard (discussed here).

In the Ninth Circuit, which at one time had the highest pleading standards for scienter, Tellabs has clearly reduced the standard. This was evident in the Court’s decision last week in South Ferry LP v. Killinger, Case No. 06-35511 (Sept. 9, 2008). There, the court considered the refusal of the district court to dismiss a securities fraud suit against several high ranking corporate officers. Specifically, the complaint claimed that several high ranking officers of Washington Mutual had made fraudulent statements regarding certain risks related to its mortgage loan portfolio. In support of their scienter allegations, plaintiffs pointed to key facts in the information systems of the company and argued that they were “core facts” about the business which could be fairly attributed to the individual defendants because of their high positions in the company. The district court declined to dismiss the claims as to these officers.

The Ninth Circuit vacated the order of the district court and remanded for consideration in view of the analysis in its opinion which harmonizes earlier Circuit Court’s rulings with Tellabs. The Court began by noting that, under its prior decisions, detailed facts had to be pled to establish a strong inference of scienter. Generally, under those rulings, a plaintiff would not be able to rely exclusively on inferences from core operations to plead scienter because they would not be supported by the requisite detail.

Tellabs, however, requires that the court assess the complaint as a whole, rather than just the individual scienter allegations as the Court’s prior holdings suggest. Thus, even vague or ambiguous allegations now must be considered as part of a “holistic review” when considering whether the complaint presents a strong inference of scienter.

Under this approach the Court concluded that “[a]llegations that rely on the core-operations inference are among the allegations that may be considered in the complete PSLRA analysis. The allegations, read as a whole, must raise an inference of scienter that is ‘cogent and compelling, thus strong in light of other explanations,'” quoting Tellabs. Thus, allegations regarding core operations can be considered. Absent additional detailed facts however, those inferences typically will not be sufficient. “In such cases, the inference that defendants had knowledge of the relevant facts will not be much stronger, if at all, than the inference that defendants remained unaware. As a general matter, ‘corporate management’s general awareness of the day-to-day working of the company’s business does not establish scienter – at least absent some additional allegation of specific information conveyed to management and related to the fraud’ or other allegations supporting scienter, citing Metzler Inv. GmbH v. Corinthian Colleges, Inc., No. 06-55826, 2008 WL 2853402 at *13 (9th Cir. July 25 2008). In some instances however, the core operations inference may be sufficient.