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TEACHERS' RETIREMENT SYSTEM OF LOUISIANA v. ACLN LTD.

United States District Court, S.D. New York


May 18, 2004.

TEACHERS' RETIREMENT SYSTEM OF LOUISIANA, ET AL. Plaintiffs,
v.
ACLN LTD., ET AL. Defendants

The opinion of the court was delivered by: MILTON POLLACK, Senior District Judge

Motion for Clarification or Class Decertification

DECISION

The Class was certified on November 13, 2002. Seidman was added as a defendant by amendment of the complaint on December 19, 2002. No motion was thereafter made by plaintiffs to affirmatively include Seidman in the scope of the earlier certification. Seidman moved to dismiss the Amended Complaint against it and that motion was denied in opinion dated July 14, 2003. The Amended Complaint now states that:

Seidman partner Dewey physically signed the Audit Reports on ACLN's financial statements for the fiscal years ended December 31, 1999 and December 31, 2000, on behalf of Seidman and Minas loannou using the "BDO International" name. . . . In signing its "BDO International" name on the Audit Reports, Seidman issued the Audit Reports on behalf of itself, and designated itself as ALCN's [sic] auditors.
Compl. ¶ 246J. Plaintiffs also alleged that BDO Seidman had used the name BDO International on various occasions and that BDO Seidman was licensed to do so. Finally, Plaintiffs alleged that BDO Seidman held itself out to shareholders and the public, on occasion, as BDO International, the A.C.L.N. auditors. In denying BDO Seidman's motion to dismiss, the Court held:
At this stage of the proceedings it is a fair inference from all the facts and circumstances that BDO Seidman, by one of its partners, in fact manually signed the required originals of the audit reports that were filed with the SEC (as indicated above) in a way attributable to BDO Seidman, and utilized a name that was deceptively applicable to the moving defendant and its alleged co-engagement partner in Cyprus. These factual predicates and those on the record in this matter satisfy the requirements of Wright v. Ernst & Young at this stage of the litigation. The motion to dismiss the Complaint as against BDO Seidman is in all respects denied at this time and the issues are referred to discovery.
Seidman now asserts that it cannot be bound by the earlier certification order entered before it was a party to the case. Additionally Seidman claims that a host of legal and factual issues exist that are critical to whether a class should be certified, especially in the light of the record that has since developed.

  On the other hand, Seidman asserts that if the Court nevertheless concludes that Seidman is bound by the Certification Order Seidman here moves to decertify the Class because plaintiffs would have to prove the Section 10(b) element of reliance on an all individual-by-individual basis, and since, they argue that common questions of law or fact do not predominate on that matter, the presumption of reliance on "fraud on the market" would not, [they say] apply and it is unreasonable to presume that each member of the Class relied on the misstatements asserted and thus common questions do not predominate precluding Class certification.

  Seidman claims that it was not identified to the market on the face of the audit opinion as the author of the auditor's statements. Further, the two audit opinions here involved, state they were issued by "BDO International, Nicosia, Cyprus" — not "BDO Seidman, LLP, New York, New York."

  Plaintiffs have also claimed that in 2001, Seidman partner Lee Dewey attended an annual meeting of ACLN's shareholders as well as the "bell-ringing ceremony" on the New York Stock Exchange on the first day that ACLN's shares traded on the Exchange, and, plaintiffs say, this further makes it appropriate that investors reasonably attributed the false audit opinions to BDO Seidman.

  Seidman argues that the plaintiffs' claim that the market attributed the audit opinions to Seidman sufficiently to invoke the doctrine of "fraud on the market" necessary to invoke that doctrine herein to permit reliance requires a showing that each individual plaintiff relied thereon.

  Seidman characterizes its present position as a lack of due process because it had no opportunity to address the class action issues. Seidman cites In re Am. Med. Sys., Inc., 73 F.3d 1069 (6th Cir. 1996), which directed a decertification of the class. In short, under the facts herein Seidman claims that because the content and the firms' imprimatur were not incorporated by the market into the market price, there is no basis for a presumption that the market attributed the two audit opinions to Seidman to ground a "fraud on the market" thesis.

  Seidman does not dispute that the misstatements at issue in the claims are contained in two publicly disseminated auditor's reports. Nor does Seidman dispute that markets reasonably rely on any misstatements contained in publicly disseminated auditor's reports. Seidman's attribution to those reports was raised in the earlier motion by Seidman to dismiss the complaint and failed. Lead plaintiff does not dispute that it will have to prove at trial that Seidman was sufficiently responsible for the misstatements in the auditor's reports.

  In denying Seidman's motion to dismiss, this Court has already held that whether Seidman is sufficiently responsible for those auditor's reports is a matter of fact for the finders of fact. No appeal was taken from that ruling. In certifying the Class, the claim was accepted that the market relied on the two audit reports. Whether class members may attribute the improprieties charged to BDO Seidman because of its alleged participation in those reports is a question of damages as to BDO Seidman to be determined on trial of the issues relating to BDO Seidman.

  Those responsible for false statements made in financial statements, not primarily attributed to the auditor charged with responsibility, do not avoid liability by remaining anonymous. See Global Crossings. Ltd. Sec. Litig., No. 02-Civ-910 (GEL) 2004 WL 763890 (S.D.N.Y. Mar. 23, 2004) at *8 ("`[a]bsolving an auditor who prepares, edits, and drafts a fraudulent financial statement knowing it will be publicly disseminated simply because [it was signed by another, affiliated auditor] would stretch Central Bank's holding too far.'" (quoting Lernout & Houspie Sec. Litig., 230 F. Supp.2d 152, 168 (D. Mass. 2002)). The motions are denied.

  So Ordered.

20040518

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