This Week In Securities Litigation (November 14, 2008)

This week, the calls for regulatory reform continued, this time from the Acting Chairman of the CFTC and, again, from the Chairman of the SEC. The Commission dropped a long-running financial fraud case against a former AOL executive while filing another settled financial fraud case. Insider trading cases continued, with two involving former partners of major accounting firms, two SEC enforcement actions centered on a take over and the UK FSA fined a former high ranking British government official and his friend. Finally, the SEC’s San Francisco office cleared out its inventory of option backdating cases, filing a settled action.

Regulatory reform

The on-going market crisis continues to yield calls for regulatory reform. This week Walter Lukken, Acting Chairman of the Commodity Futures Trading Commission made his contribution in a speech to the FIA Futures and Options Expo in Chicago. Mr. Lukken would replace the CFTC and SEC with three new regulators. One would focus on risk, another on market integrity and a third on investor protection. The current roles of the CFTC and SEC would be folded into these new regulators.

Under this plan, the risk regulator would police the financial system for hazards which could have a broad economic impact. The market integrity regulator would focus on the safety of key financial institutions. The investor protection regulator would protect investors and business conduct of all firms. Mr. Lukken labeled this approach regulation by objective, rather than function.

This proposal contrasts with that of Treasury Secretary Paulson and SEC Chairman Cox. Both of their proposals call for the merger of the CFTC and the SEC, no small feat given the different approaches used by the two agencies. In addition, Mr. Cox has repeatedly called on Congress to give the SEC authority over investment bank holding companies – an entity which does not exist at the moment – and credit default swaps. As discussed here, the SEC staff is currently working with market participants on the creation of a centralized trading mechanism for CDSs. At the same time, the Federal Reserve is reportedly seeking control over that market.

SEC Chairman Cox also reiterated his calls for market reform. In a speech before the 40th Annual Securities Regulation Institute in New York on November 12, the Chairman called for the formation of a select committee to study how best to go about m reform. He also highlighted the SEC’s current efforts in this area and called for a strong enforcement program to ensure the integrity of the markets. Earlier, in another speech, Mr. Cox emphasized the increasing internalization of enforcement as discussed here.

While Mr. Cox was calling for stronger enforcement trends from SEC enforcement, statistics compiled by NERA Economic Consulting suggest that the number of cases brought against issuers is declining. At the same time, as discussed here, the dollar value of corporate settlements which are primarily penalties rather than disgorgement are also declining.

Financial fraud cases

The SEC dismissed financial fraud claims against a former AOL executive in a long-running case, while filing another settled financial fraud case. In SEC v. Johnson, Case No. 1:05-cv-00036 (D.D.C. Filed Jan. 10, 2005), the Commission dismissed with prejudice all claims against John Tuli, AOL’s former Vice-President of Business Development for NetScape. According to the complaint, Mr. Tuli participated in a scheme to falsify the books and records of a Las Vegas-based internet company by repeatedly confirming or causing others to confirm to the outside auditors of that company that services had been completed and accepted by AOL. Those audit confirmations were false, according to the complaint.

For Mr. Tuli, the dismissal of the SEC’s claims brings more than three years of litigation to a close. In 2005, he had been acquitted after a three-month jury trial in the Eastern District of Virginia on ten counts of securities fraud in a criminal trial.

In SEC v. Evans, Case No. 07-cv-10027 (D. Mass Filed Jan. 8, 2007), the Commission settled with two defendants regarding their alleged role in a financial fraud at Aspen Technology, Inc., a Cambridge, Massachusetts software company. The SEC’s complaint alleged that Lawrence Evans, founder and Chairman of the company, and David McQuillin, former CEO, participated in a fraudulent scheme to inflate the revenue of the company along with the former CFO. Specifically, the complaint claims that from 1999 to 2002 the defendants caused the company to improperly and prematurely recognize revenue in violation of GAAP to inflate earnings.

To resolve the case, the two defendants consented to the entry of a permanent injunction prohibiting future violations of the antifraud and books and records provisions. Mr. McQuillin also agreed to an order requiring him to pay an $85,000 penalty and over $28,000 in disgorgement and prejudgment interest. That order also included an officer/director bar. Mr. Evans agreed to pay a $75,000 penalty and over $21,000 in disgorgement and prejudgment interest. Previously, Mr. McQuillin pled guilty in a related criminal case and was sentenced to three years of probation and a $12,000 criminal fine.

The Second Circuit Court of Appeals affirmed the dismissal of a securities class action based on the application of the statute of limitations in a summary order this week. The Court left open the possibility that plaintiffs would amend their complaint since the district court order was not with prejudice. City of Pontiac General Employees’ Retirement System v. Capone, Case No. 07-1117-cv (2nd Cir. Nov. 12, 2008).

The Court’s order affirms a decision by the district court which concluded that the plaintiffs failed to timely file under SOX Section 804 which imposes a two and five year limitation period. The court concluded that plaintiffs had notice of a 1998 financial fraud from a 2002 market report and failed to file suit until years later as discussed here.

The circuit courts have split over the proper test to use when applying the statute of limitations. The Supreme Court is currently considering whether it will hear a case which could resolve that split as discussed here.

Inside trading

In a most unusual insider trading case, accounting giant Deloitte LLP sued its former partner and vice chairman Thomas Flanagan. According to the complaint, the thirty-year veteran of the firm traded on inside information regarding twelve different clients over a three-year period. The complaint, discussed here, does not identify the clients. The SEC reportedly is investigating.

At the same time, a former EY partner had his criminal insider trading case set for trial in April. James Gansman, a former EY partner, is accused of tipping a friend about pending deals involving firm clients, according to the eleven-count indictment. U.S. v. Gansman, Case No. 1:08-cr-00471 (S.D.N.Y. Filed May 27, 2008).

The SEC filed two insider trading cases this week based on the take over of D&K Healthcare Resources, Inc. by McKesson Corporation. One is settled, the other is in litigation. SEC v. Gallahair, Civil Action No. CV 08-5134 (N.D. Cal. Nov. 13, 2008); SEC v. Wilson, Civil Action No. CV08-5133 (N.D. Cal. Nov. 12, 2008). Mr. Gallahair is a former Vice President of Sales at McKesson. Mr. Wilson, who settled with the SEC, is a former senior manager in McKesson’s finance department.

According to the complaints, each defendant misappropriated inside information about the takeover. Mr. Wilson is alleged to have learned about the planned tender offer by overhearing his supervisor’s meetings and phone calls and viewing documents. Subsequently, he purchased over 17,000 shares of D&K in twelve different brokerage accounts belonging to various family members. After the public announcement, Mr. Wilson had unrealized gains of over $117,000. To resolve the case, Mr. Wilson consented to the entry of a permanent injunction and agreed to disgorge his trading profits. The SEC chose not to seek a penalty and waived prejudgment interest claims based on his financial condition.

Mr. Gallahair is also alleged to have learned about the transaction by overhearing a telephone conversation of his supervisor. After hearing the conversation, Mr. Gallahair purchased 20,000 shares of D&K stock which he liquidated after the announcement for a profit of over $120,000. This case is in litigation.

The UK Financial Services Authority fined a former Governor of the Falkland Islands and British ambassador to Peru for insider trading. Richard Ralph, chairman of Monterrico Metals, had a friend trade in the shares of his company while it was engaged in takeover talks in which he participated with Zijin, a Chinese mining company. Mr. Ralph was fined over 117,000 pounds while his friend, who also traded, was fined over 81,000 pounds.

Option backdating

The SEC filed the last of its option backdating cases this week – at least the ones being handled by the San Francisco office. SEC v. Blue Coat Systems, Inc., Case No. CV 08 5127 (N.D. Cal. Nov. 12, 2008). The SEC’s complaint alleges that from 2000 to 2005 the company concealed millions of dollars in compensation expenses associated with option backdating. The complaint names the company and its former CFO, Robert Verheecke, as defendants.

To resolve the case both defendants consented to the entry of injunctions prohibiting future violations of the antifraud, proxy and books and records provisions. In addition, Mr. Verheecke, who is alleged to have personally exercised backdated options for $30,000 in excess profits, agreed to disgorge his profits and prejudgment interest and to pay a penalty of $150,000.

Second Circuit Affirms Dismissal Of Securities Fraud Suit Based On Statute of Limitations

In a summary order issued on Wednesday, the Second Circuit Court of Appeals affirmed the dismissal of a securities class action based on the application of the statute of limitations. The Court left open the possibility that plaintiffs would amend their complaint, since the district court order was not with prejudice. City of Pontiac General Employees’ Retirement System v. Capone, Case No. 07-1117-cv (2nd Cir. Nov. 12, 2008).

The complaint in this action, brought against MBIA and six current and former officers, claimed that the company violated Sections 10(b) and 20(a) of the Exchange Act by falsifying the financial statements of the company to avoid a huge loss. Specifically, the complaint alleges that in 1998, MBIA improperly booked a series of transactions as reinsurance agreements and the associated proceeds as income to avoid recording a huge loss. At the time, the company issued press releases about the transactions.

Subsequently, in December 2002, a research report about the company discussed the incorrect accounting treatment and its impact. The company issued a press release stating that the company which issued the report was not independent and intended to profit from it. The release went on to state that MBIA stood by its accounting.

The district court dismissed the action as time barred. The court began by noting that Section 804 the Sarbanes Oxley Act extended the statute of limitations for non-time barred securities fraud cases to two years from discovery and five years from the violation. Discovery for purposes of the two-year period takes place when the plaintiff obtains actual knowledge of facts giving rise to the action or notice of the facts which, in the exercise of reasonable diligence, would have led to actual knowledge. The circumstances which give rise to the duty of inquiry are referred to as “storm warnings.”

Under this standard, the date the statute commences begins depends on how the plaintiff responds to the duty of inquiry. “If the investor begins to investigate when the duty arises, knowledge of the fraud will not be imputed, and the limitations period will not begin to run, until that investor ‘in the exercise of reasonable diligence, should have discovered’ the fraud. … On the other hand, ‘If the investor makes no inquiry once the duty arises, knowledge will be imputed as of the date the duty arose.” (citations omitted).

Here, the court concluded that the plaintiff was put on notice and had a duty of inquiry when the December 2002 research report was issued, because that report directly addressed the financial accounting issues on which the case is based. Although the company issued a press release denying any impropriety after the report was issued, it “did not even specify the 1998 transactions, let alone address the particular concerns raised by” the research report or “identify any steps to relieve those concerns.” A blanket denial is not sufficient to relieve investors of their obligation. In reaching its conclusion, the court distinguished cases where the company issued denials that were “designed to specifically address the concerns raised in'” the report.

Since the complaint was filed more than two years after the research report, it was properly dismissed as time barred, the Circuit Court concluded. Since the district court did not state that the dismissal was with prejudice, the Court of Appeals remanded the case to the district court.

The decision in this case is based on one of the tests used by the circuit courts in applying the two-year prong of the statute of limitations in securities fraud cases. The Supreme Court has been asked to resolve a split among the circuits on this issue as discussed here.