Dismissals: Granted and Denied

Add Bed Bath & Beyond to the growing list of companies whose options backdating related shareholders’ derivative lawsuits have been dismissed because of the plaintiffs’ failure to adequately plead demand futility. According to a May 22, 2007 article in the New York Law Journal (here), a New York Supreme Court Justice dismissed the Bed Bath & Beyond lawsuit because the plaintiffs failed to show that demanding action from the company’s board would be futile.

The New York court focused on the fact that, because the majority of the company’s board had not received backdated option grants, the plaintiffs needed to allege with particularity why these directors also had an interest in the backdating transactions. "The mere presence of directors on committees is not particular as to their individual participation or alleged collusion with interested directors in the backdating of stock options," the Judge said.

The Bed Bath & Beyond case joins the CNET (here) and Computer Sciences Corp. (here) lawsuits as instances where the courts have found that plaintiffs’ demand futility allegations were insufficient. However, in two notable Delaware cases (here), the court denied dismissal motions and held that the demand futility requirements had been met. (A good overview of the demand futility requirement in derivative actions generally can be found here.)

Another interesting aspect of the Bed Bath & Beyond decision relates to the Court’s remarks about the company’s remedial measures. The company has adopted reforms to its options grant policy and revised the dates of certain grants. It also adjusted its balance sheet to reduce its shareholders’ equity by $66 million and took a $7.2 million charge to quarterly income. According to the article, the Court said that "the voluntary actions could have rendered the derivative suit moot." The possibility that remedial measures might moot backdating related derivative lawsuits could potentially have a significant impact on the many pending cases, since many of the companies involved in the lawsuits have also taken similar remedial measures. It will be interesting to see whether other courts conclude that remedial measures would moot pending derivative lawsuits.

Dismissal Denied in FCPA Follow-On Lawsuit: I have frequently noted (most recently here) the growing risk of civil actions following on Foreign Corrupt Practices Act investigations or enforcement proceedings. Another example of an FCPA follow-on action is the securities class action litigation involving Nature’s Sunshine Products. A May 21, 2007 order in the case (here) denied the defendants' motion to dismiss, in a case that arises out of allegedly improper foreign payments.

In opposing the motion, the plaintiffs relied heavily on a letter the company’s former auditor, KPMG, had sent to the SEC. In the letter, KPMG asserted that the company’s CEO was aware of "fraud in international operations of the company," yet represented otherwise to the auditors in audit representation letters; that the CEO had approved a payment that violated the FCPA; that the CEO had sought to cover up the fraud; and that the fraud had a material impact on the company’s prior financial statements. The plaintiffs also relied on the Company’s March 20, 2006 8-K (here)in which the Company stated that it had contacted the U.S. Department of Justice about potential violations of law. The plaintiffs also alleged that the CEO gave false reassurances to investors that the company’s financial statements were accurate when he was aware of the fraud, and was aware that KPMG had raised issues concerning the fraud. According to the plaintiffs, following the reassuring statements, the CEO and others sold large portions of their holding in the Company’s stock.

In ruling on the motion to dismiss, the court concluded that the plaintiffs had sufficiently identified false and misleading statements and had adequately pled materiality and scienter. The court did, however, shorten the class period.

The Nation’s Sunshine Products case not only represents another instance of the FCPA follow-on action, but it also presents another example of the reason why these kinds of cases could become more prevalent. That is, the investigation was the result of the company’s own self-reporting. This phenomenon of self-reporting is resulting in more FCPA investigations and enforcement actions. And increasingly, civil actions follow.

A May 21, 2007 Salt Lake Tribune article describing the Nature’s Sunshine Products decision can be found here.

Speaking of Follow-On Lawsuits: It sure didn't take long after the resignations of Jonathan Weil and Lynn Turner from proxy advisory firm Glass Lewis for the lawsuits to come in. It has barely been 24 hours since the news broke (refer here) that the two prominent executives had quit the firm after questions were raised over whether its parent, Xinhua Finance Media, had withheld unfavorable information about its chief financial officer from investors. In his resignation letter, Weil said he was "uncomfortable and deeply disturbed by the conduct, background and activities of our new parent company Xinhua Finance Ltd., its senior management, and its directors." Weil said further that"to protect my reputation, I no longer can be associated with Glass Lewis or Xinhua Finance." (Xinhua acquired the 80% of Glass Lewis it did not already own earlier this year.) A May 22, 2007 Wall Street Journal article discussing the resignations, as well as Glass Lewis' relationship to Xinhua, can be found here (subscription required).

The resignations seem to relate to the recent resignation of Xinhua's Chief Financial Officer, over the company's failure to report in its March2007 IPO documentation that the CFO was under a cease and desist order from NASD for violating securities laws at another organization for which the individual was also CFO.

A press release distributed late in the day on May 22, 2007 (here) states that the plainiffs firm of Bernstein Liebhard and Lifshitz had commenced a securities class action lawsuit against Xinhua in Manhattan federal court. The claim reportedly alleges that Xinhua failed to disclose in its March 2007 prosectus and subsequently the true circumstances involving the CFO, including the existence of the cease and desist order.

This all strikes me as very unseemly for a proxy advisory firm, a point the Journal also makes in the article linked above. Special thanks to a loyal reader for the class action press release link.

The venerable Lies, Damn Lies blog had an interesting post late last year (here) about the alacrity with which securities class action complaints sometimes follow on bad news.

Did Culture Enable Backdating?: Bloomberg.com has a long, interesting May 22, 2007 article entitled "Billionaires from Jakarta, Shanghai Undermined by Options" (here) examining the options backdating scandal at Marvell Technology Group. The article explores the company’s history from its earliest days, and examines how Sehat Sutardja built up the company after coming to the U.S., working with his brother, Pantas, and his wife Weili Dai. The article also goes in depth into the company’s backdating woes.

While the article focuses primarily on Marvell itself, it also explores the Silicon Valley culture out of which the options backdating scandal grew. The article contains the following comment, which I found quite arresting:

``Silicon Valley has a bad case of exceptionalism that we're so special and important to American society that some of the rules do not apply or ought to be loosely interpreted,'' says Kirk Hanson, executive director of the Markkula Center for Applied Ethics at Santa Clara University. ``That's a slippery slope that leads to various forms of misbehavior, and backdating is the best current example.''

Hanson is later quoted in the same article as saying ``Backdating is a product of the bubble,'' Hanson says. ``There was so much money awash in the streets of Silicon Valley that less thoughtful executives were trying to sweep as much into their pockets as possible.''

While these statements are noteworthy and attention grabbing, it is also fair to note that options backdating may perhaps have been more common in Silicon Valley, it was by no means confined to Silicon Valley.

The article is long but it merits a complete reading. Special thanks to a loyal reader for the link the Bloomberg article.

Speakers' Corner: I will be speaking at the Reinsurance Association of America (RAA) Current Issues Forum at the Four Seasons Hotel in Philadelphia, Pa. on Thursday May 24, 2007, on the topic "D & O: Where it Stands Today?" The program brochure can be found here. If you are attending the conference, I hope you will greet me and introduce yourself.