UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
February 25, 2009
IN RE PARMALAT SECURITIES LITIGATION
The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.
Parmalat Finanziaria, S.p.A., Parmalat S.p.A. and their affiliates (collectively, "Parmalat") collapsed upon the discovery of a massive fraud that reportedly involved the understatement of Parmalat's debt by nearly $10 billion and the overstatement of its net assets by $16.4 billion.*fn1 Plaintiffs, purchasers of Parmalat securities, Dr. Enrico Bondi, the Italian-appointed representative of Parmalat's estate, and a Parmalat affiliate, seek damages against Parmalat's accountants, banks and others. The matter now is before the Court on the motions of Grant Thornton International ("GTI") and Grant Thornton LLP ("GT US") for summary judgment dismissing the complaints. The motion raises issues similar to those resolved in a recent opinion in involving another large accounting firm, familiarity with which is assumed.*fn2
Plaintiffs sue under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934*fn3 (the "Exchange Act") and Rule 10b-5 thereunder.*fn4 Their claims against GTI and GT US rest on the premise that those defendants are vicariously liable for the alleged fraud of GT Italy, one of Parmalat's former auditors, which has not joined in the motion. The Court assumes familiarity with plaintiffs' allegations with respect to the Parmalat scandal and GT Italy's role. Accordingly, it suffices for present purposes to outline briefly Grant Thornton's structure.
GTI is a non-profit corporation organized under Illinois law.*fn5 It describes itself as an "international membership organization" or "umbrella" organization of member firms.*fn6 These member firms, including Grant Thornton S.p.A. ("GT Italy") and GT US, are organized under the laws of their respective jurisdictions.*fn7 It is the member firms that actually carry out the auditing and accounting functions.
Accounting and auditing standards and regulation of the accounting profession often are country specific. In addition to complying with any locally applicable rules, however, Grant Thornton member firms follow professional standards and auditing procedures and use software promulgated by GTI in conducting their audits.*fn8 Member firms are required to submit to regular quality assurance reviews and almost universally practice under the name "Grant Thornton."*fn9 They must promote other GT member firms to their international clients and provide information about international clients to GTI.*fn10 Partners of member firms attend GTI meetings and serve on GTI committees.*fn11
Although disclaimers on GTI's website assert the legal separateness of GTI and its members,*fn12 GTI in 2001 directed its member firms to omit "International" from its name and to use a standardized description of the organization in publications, press releases and on websites. This description referred to GTI as "Grant Thornton" and member firms as "local firms."*fn13 The change was part of a rebranding effort by GTI designed to demonstrate that member firms are part of "one confident and unified organization."*fn14
A. Summary Judgment Standard
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.*fn15 Where, as here, the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the non-movant's claim.*fn16 In that event, the non-moving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.*fn17
B. Respondeat Superior Liability for Section 10(b) Violations by GT Italy Whether GTI and GT
US may be held liable for the securities violations and other actions of GT Italy turns on whether they had principal-agent relationships with GT Italy.
An agency relationship exists under Illinois law*fn18 when the principal has the right to control the manner and method in which the agent performs its work.*fn19 "An agent's authority may be either actual or apparent, and actual authority may be either express or implied."*fn20 The existence of an agency relationship may be established by direct or "circumstantial evidence, including the situation of the parties, their acts, and other relevant circumstances."*fn21 The alleged agent's authority, however, may be established only by the words or conduct of the alleged principal.*fn22
1. Right to Control GT-Italy
"There is no rigid rule for determining whether a person is an agent."*fn23 Courts consider a number of factors, "but the right to control the manner in which the work is performed is considered to be the predominant factor."*fn24 The Court therefore first will consider the issue of control.
Plaintiffs point to numerous facts indicating that GTI exercised control over "the manner and method"*fn25 by which its member firms, including GT Italy, performed their work.*fn26 GTI executed an agreement with each of its member firms in which the member firm agreed to conduct itself "in a manner consistent with GTI policies, procedures, guidelines, specifications and directions issued by GTI . . . including . . . the GTI Policies and Procedures Manual and any GTI communications on technical and professional matters."*fn27 GTI's audit manual, in turn, provided nearly 200 pages of detailed auditing procedures and methods, known as the Horizon Audit Approach, "to be followed by all partners and staff."*fn28 GTI required member firms to use its Explorer auditing software.*fn29
Evidence of GTI's control extends beyond the manner in which member firms audited their clients. GTI required member firms to adopt its quality control standards and code of ethics.*fn30
While it did not require member firms to adopt a specific risk management policy, it demanded that member firms either implement a policy that met specifications set out in GTI's quality assurance manual or adopt GTI's risk management policy.*fn31
Plaintiffs point also to evidence that GTI controlled the manner in which member firms branded and marketed themselves to clients. GTI required member firms to "adopt the Grant Thornton style" on their stationery and business cards in order to maintain a "[c]onsistent look and feel" among member firms.*fn32 GTI could require member firms to submit their forms and publications to GTI to ensure compliance with GTI's guidelines.*fn33 Member firms' web sites had to conform to GTI guidelines as well.*fn34 GTI even mandated where in their offices member firms hung signs carrying the Grant Thornton name.*fn35
GTI established detailed guidelines about how member firms should refer to GTI and themselves. After observing that the use of the phrase "Grant Thornton International" caused prospective clients to question the structure and organization of the firm, GTI instructed member firms to refer only to "Grant Thornton," not "Grant Thornton International," in promotional materials and to use a new "Grant Thornton" logo.*fn36 It circulated a memorandum providing examples of permissible language to describe both GTI and member firms. These referred to GTI as an "international organisation" and directed prospective clients to "contact [their] local Grant Thornton office for details."*fn37 GTI instructed member firms not to use a list of terms including "member firm," "correspondent firm," and "network," in part because they "dr[e]w attention to the structure" of the firm.*fn38
Additionally, plaintiffs presented evidence that GTI controlled member firms' actions through its periodic reviews and disciplinary measures. Each member firm was expected to submit to a comprehensive review of its operations, policies, and procedures every three years.*fn39 As part of the review process, a representative from GTI or another member firm examined the member firm's audit work.*fn40
GTI possessed "a range of different possible actions" to discipline a member firm.*fn41
Sanctions included the demotion of a member firm to correspondent status, hiring of new partners for the member firm, termination of existing personnel, and expulsion of the member firm.*fn42 In practice, it in fact imposed at least some of these sanctions on member firms. Following an adverse review, GTI reclassified the El Salvador member firm as a correspondent firm, which included loss of the right to use the Grant Thornton name, and required that it hire new partners.*fn43 After an Indonesian member firm feuded publically with a second Indonesian member firm, GTI sanctioned the offending firm by imposing nine non-negotiable requirements, including the resignation of one of the member firm's directors.*fn44 Additionally, in the wake of the Parmalat collapse, GTI threatened GT Italy with expulsion unless managing partner Lorenzo Penca resigned from that position immediately whereupon GT Italy suspended Penca and a second partner and Parmalat auditor.*fn45
GTI contends that it nevertheless is entitled to summary judgment because there is no evidence that, if credited, would permit a finding that GTI controlled the specific GT Italy audit work that allegedly gave rise to plaintiffs' alleged injuries. But GTI overstates its case.
For centuries, the principal has been liable for the torts, including the intentional torts, of its agent as long as the agent acted within the scope of its employment -- and regardless of whether the principal directed or caused the agent to engage in the tortious activity. Justice Story's early treatise on agency put the matter aptly years ago:
"It is a general doctrine of law, that, although the principal is not ordinarily liable . . . in a criminal suit, for the acts or misdeeds of his agent . . . yet he is held liable to third persons in a civil suit for frauds, deceits, concealments, misrepresentations, torts, negligences, and other malfeasances or misfeasances and omissions of duty of his agent in the course of his employment, although the principal did not authorize, or justify, or participate in, or, indeed, know of such misconduct . . . ."*fn46
Or, as the Restatement now puts it:
"(1) An employer is subject to vicarious liability for a tort committed by its employee acting within the scope of employment. "(2) An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer's control. An employee's act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer. "(3) For purposes of this section, (a) an employee is an agent whose principal controls or has the right to control the manner and means of the agent's performance of work, and (b) the fact that work is performed gratuitously does not relieve a principal of liability."*fn47
As GTI does not question that GT Italy, assuming arguendo that it was an agent, acted within the scope of its agency, the only material question as to vicarious liability here is whether the evidence is sufficient to permit a rational jury to conclude by a preponderance of the evidence that GTI controlled or had the right to control GT Italy's work on the Parmalat audit.
GT Italy contracted in its member firm agreement to conduct itself "in a manner consistent with GTI policies, procedures, guidelines, specifications and directions issued by GTI . . . and any GTI communications on technical and professional matters."*fn48 GTI required member firms to follow its Horizon audit methodology and use its proprietary Explorer software.*fn49 These tools prescribed the "manner and method" by which member firms conducted audits. They went beyond mere "guidelines" or "professional standards," dictating step-by-step instructions for auditors. For example, one chapter of the GTI Audit Manual set forth the "procedures that must be performed in all audits to enable the audit team to understand and document" the client's accounting system and internal controls.*fn50 Another chapter described when and how various "analytical procedures" should be used during an audit.*fn51 Thus, the evidence here plainly would justify a finding that GTI controlled or, at least, had the right to control the manner in which GT Italy conducted its allegedly fraudulent audits.
The fact that GT Italy and individual auditors may have exercised some independent judgment in conducting audits*fn52 or could tailor some of the instructions contained in the audit manual to fit the legal rules of a particular country*fn53 would not require a contrary conclusion. The fact that a professional employee or agent exercises independent judgment in the course of his or her employment does not preclude holding the principal liable.*fn54 Moreover, GT Italy's tailoring of the audit methodology was limited. GT Italy partner Massimo Barbaria testified that "adapting" GTI audit to the "Italian situation" meant translating it into Italian and using only those procedures applicable to a specific client. He explained that the methodology and the software as provided by GTI were "particularly suitable for . . . big companies or listed companies such as Parmalat."*fn55
GTI argues further that any control it exerted through its audit methodology requirements and software would not have prevented GT Italy's deliberate fraud.*fn56 But that is quite beside the point in view of the fact that principals are liable for the torts of their agents committed within the scope of their agencies.
GTI contends also it did not control GT Italy because two GT Italy partners who worked on the Parmalat audit did not even know there was an entity called GTI and, in any event, there were no GTI personnel on GT Italy's audit team.*fn57 GTI's first argument is less than compelling.*fn58 But even if GTI were correct, it would not change the result. Even clear evidence that two GT Italy partners on the Parmalat account did not know of GTI would be insufficient to refute plaintiffs' evidence that GTI controlled GT Italy. Furthermore, GTI's argument that GTI personnel did not perform the daily "tasks essential to serving GT Italy's clients"*fn59 misses the point. A principal may be held liable vicariously for acts committed by its agents in the course of the principal's business even if the principal did not itself participate in those acts.*fn60
Finally, GTI argues that its request that GT Italy suspend two auditors and GTI's subsequent termination of GT Italy's member firm agreement do not demonstrate control as a matter of law.*fn61 While this may be true,*fn62 plaintiffs are not required at this juncture to demonstrate control as a matter of law. They must demonstrate only that there is a genuine issue of material fact that GTI controlled GT Italy. This they have done.
b. GT US
GT US seeks summary judgment on a somewhat different ground. Its position is that GT US controlled neither GTI nor GT Italy and therefore is entitled to dismissal even if GT Italy was GTI's agent. Plaintiffs contend that GT US controlled GTI, and thus indirectly controlled GT Italy, making GT Italy its subagent.
According to traditional agency principles, an agent may appoint subagents to perform the tasks or functions the agent has agreed to perform for the principal.*fn63 As the Restatement describes it, "[t]he relationships between a subagent and the appointing agent and between the subagent and the appointing agent's principal are relationships of agency."*fn64 In view of the fact that a jury would be entitled to conclude that GTI controlled GT Italy, the fundamental question presented by GT US's motion is whether plaintiffs have put forth sufficient evidence to justify a finding that GT US controlled GTI.
The evidence suggests that GTI is disproportionately dependent upon and influenced by a single member firm: GT-US. First, GT US had the power to veto significant decisions related to GTI governance and structure. It held two seats on the at least twelve member GTI board of directors.*fn65
The two GT US directors held veto power over GTI's addition of new member or correspondent firms, amendment of GTI's bylaws, articles of incorporation, member firm agreements and name use agreements.*fn66 Additionally, GT US could veto a decision to change the number of members on the GTI board and to elect or remove GTI's managing director or officers.*fn67
Second, GT US provided GTI with funding, office space and employees. During the relevant period, GTI depended on annual contributions from member firms for funding, and GT US was the largest contributor.*fn68
Third, GTI had no offices or employees of its own.*fn69 GTI operated out of GT US's Chicago offices and GT UK's London offices and relied on personnel largely from GT US and GT UK.*fn70 For example, GTI's chief executive always has been either a partner or former partner of GT US or GT UK. Robert Kleckner, a former GT US partner, served GTI as managing director from 1991 to 2001.*fn71 David McDonnell, a GT UK partner, replaced Kleckner as GTI's chief executive officer in 2001.*fn72 GT US personnel provided all financial and accounting functions for GTI at the expense of GT US, and a GT US partner acted as GTI's secretary treasurer.*fn73 During at least part of the time period relevant here, GTI's director of audit and quality control and the chair of GTI's information technology committee were GT US partners.*fn74 Additionally, GT US's general counsel provided legal advice to GTI.*fn75
Finally, there is evidence that GT US controlled significant GTI decisions through its role in the Executive Partners Group ("EP Group").*fn76 This informal advisory group consisted of the chief executive officers of GTI, GT US, GT UK, and the two Canadian member firms.*fn77 However, according to GTI managing director Robert Kleckner, the GT US and GT UK representatives played a larger role than their Canadian counterparts.*fn78 Kleckner testified that the approval of the EP Group was "important" because it "had control over the resources."*fn79 For this reason he discussed "general strategic issues[,] . . . governance changes" and "initiatives requiring resources with" this group before presenting such initiatives to GTI's board.*fn80 Kleckner believed that "significant change worldwide can only take place through the joint leadership of" GT US and GT UK.*fn81
There is evidence of at least one instance in which the EP Group actually exerted control over GTI's decision making. Before a GTI board meeting, Kleckner floated a proposal he intended to share with the GTI board to the EP Group. When the EP Group rejected the proposal, Kleckner summarily removed it from the GTI board's agenda. Kleckner explained, "why clutter the agenda . . . with something I know is going to be a dead issue."*fn82
GT US counters these indicia of GT US's power to control the actions of GTI essentially by taking many in isolation and contending that each, considered alone, would not compel a finding of control. It argues, for example, that the veto power of the GT US representatives on the GTI board did not carry with it formal authority to require GTI to act affirmatively as GT US directed, that the fact that senior officers of GTI simultaneously served in senior positions at GT US did not make their actions while wearing their GTI hats the actions of GT US, and that the influence of the GT US members of the EP Group was limited by the participation in that group of executive partners of other member firms. But these arguments once again miss central points.
The beauty of the Bayeaux tapestry or the genius of a Bach concerto cannot be appreciated by looking only at individual stitches on the fabric or by listening only to the B flats. Just so here. The question whether GT US controlled GTI cannot or, at least, need not be resolved by looking at each individual piece of evidence.
In the last analysis, the question before the Court is whether the evidence as a whole is sufficient to permit -- not compel -- a rational jury to conclude that GT US controlled GTI. Considering all of the evidence as a whole, the Court holds that it is. That is not to say that the points advanced by GT US lack force. It is to say only that it is beyond the Court's proper function to resolve the conflicting inferences and conclusions that may be drawn from evidence that, in the Court's view, quite plainly cuts in different directions.
2. Consent to Agency Relationship
Defendants argue that GTI and GT US denied GT Italy the ability to act as their agent, relying upon provisions of the member firm and name use agreements.*fn83 Section 12.3 of the member firm agreement, for example, provided that a member firm "may not act for or bind any other member firm or GTI, for any purpose whatsoever."*fn84
The short answer to this contention is that disclaimers contained in the agreements between and among GT US, GTI and GT Italy, whatever their effect on the rights of those parties inter se, are not conclusive of the question as against non-parties. They at best are some evidence favorable to GTI and GT US.*fn85 And they are insufficient to require summary judgment of dismissal in light of the other evidence favorable to the plaintiffs.
Defendants argue also that an agency relationship cannot be created without the consent of both parties and that such consent is lacking here. Defendants' initial premise is correct as far as it goes.*fn86 But the conclusion does not follow. Consent may be inferred from actions, not merely the words, of the putative principal and agent.*fn87 The evidence is sufficient to infer such consent here. By way of example only, GT's and GT US's actions (1) encouraging member firms to practice under the Grant Thornton name, (2) promulgating and enforcing policies and procedures governing most aspects of member firms' operation, and (3) working to achieve a certain level of quality in member firms' work arguably demonstrated their consent to allow GT Italy to act on their behalf. Likewise, GT Italy's submission to defendants' regulation would permit a reasonable jury to infer that GT Italy consented to act as defendants' agent.
C. Alter Ego
As an alternative to their agency argument, plaintiffs contend that GTI was GT US's alter ego which GT US used to conduct its own business.*fn88 As plaintiffs have demonstrated a genuine issue of material fact as to whether GT US controlled GTI, the Court does not reach plaintiffs' alter ego argument.
D. Section 20(a) Liability
Defendants contend they are entitled to summary judgment dismissing plaintiffs' Exchange Act Section 20(a) claim. They argue that control of a primary violator under Section 20(a) must extend to the transaction in question -- GT Italy's audits of Parmalat -- whether or not such control was exercised.*fn89 However, this Court recently ruled that the plain language of Section 20(a) requires only control of a person or entity liable under the chapter, not participation in or direction of the transaction constituting the violation.*fn90 As discussed above, plaintiffs have presented sufficient evidence that GTI and GT US had the ability to control the manner and method of the preparation of member firms' audit reports. The Court thus concludes there is a genuine issue of material fact as to whether GTI and GT US were controlling persons.
E. Vicarious Liability After Stoneridge
Defendants argue also that plaintiffs' claim that GTI and GT US are vicariously liable for the alleged federal securities law violations of their agent, GT Italy, cannot survive the Supreme Court's decision in Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc.*fn91 The Court recently concluded that Stoneridge does not foreclose an Exchange Act claim based on the vicarious liability of a principal for a violation committed by its agent acting within that agent's scope of employment.*fn92
Accordingly, plaintiffs' claims based on theories of vicarious liability survive.
For the foregoing reasons, defendants' motion for summary judgment dismissing the complaints [04 Civ. 0030 docket item 983; 04 MD 1653 docket item 1585; 04 Civ. 9771 docket item 613; 06 Civ. 2991 docket item 183] is denied.