Fuqua v. Ernst & Young LLP

33 F. App'x 569
CourtCourt of Appeals for the Second Circuit
DecidedApril 10, 2002
DocketDocket No. 01-7974
StatusPublished
Cited by1 cases

This text of 33 F. App'x 569 (Fuqua v. Ernst & Young LLP) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fuqua v. Ernst & Young LLP, 33 F. App'x 569 (2d Cir. 2002).

Opinion

SUMMARY ORDER

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.

Plaintiffs appeal the District Court’s dismissal, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, of their securities fraud claims as time-barred. For the reasons that follow, we affirm the decision of the District Court.

This action arises out of the 1999 bankruptcy of Graham-Field Health Products, Inc. (“GFI”). The plaintiffs, formerly major shareholders of Fuqua Enterprises, Inc. (“Fuqua Enterprises”), acquired significant stakes in GFI pursuant to the 1997 merger of Fuqua Enterprises into a subsidiary of GFI, and on February 10, 2000 filed this action against GFI auditor Ernst & Young (“E & Y” or the “defendant”) in connection with losses they suffered from their investment in GFI, alleging (i) common law negligent misrepresentation; (ii) violations of Section 11 (“Section 11”) of the Securities Act of 1933, 15 U.S.C. § 77k; (iii) violations of Section 10(b) (“Section 10(b)”) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) and of Securities Exchange commission Rule 10b-5, 17 C.F.R. § 240.10b-5; and (iv) common law fraud.

In their complaint, the plaintiffs allege that in agreeing to the merger, they relied heavily both on (i) GFI financial statements that had been audited by, and in many cases blessed by an opinion of, E & Y, and (ii) statements made directly by E & Y to the plaintiffs and Fuqua Enterprises attesting to the accuracy of various GFI financial statements. Ultimately, an independent investigation conducted during early 1999 by a committee led by Rogers & Wells LLP (“Rogers & Wells”) and Arthur Andersen LLP (“Arthur Andersen”) determined that in fact many of these financial statements “were not prepared in accordance with GAAP, and, instead, were intentionally or recklessly manipulated to induce the [plaintiffs] into supporting and participating in the [merger].” On March 23, 1999, GFI issued a press release announcing that the investigative committee had “discovered accounting irregularities and errors that required a restatement of previously issued financial statements for the years ended December 31,1996 or [sic] December 31, 1997 and the quarterly financial statements issued by [GFI] during 1997.”

On July 9, 2001, the District Court granted the defendant’s motion to dismiss the action, holding that the plaintiffs had brought their federal claims more than a year after they should have discovered E & Y’s alleged fraud. The District Court [571]*571dismissed the state-law claims without prejudice to a refiling in state court. The plaintiffs appeal the District Court’s dismissal of their claims.

We review the District Court’s dismissal of the complaint de novo. Rothman v. Gregor, 220 F.3d 81, 89 (2d Cir.2000). We “accept[] all allegations in the complaint as true and draw[ ] all inferences in favor of the plaintiff.” ICOM Holding, Inc. v. MCI Worldcom, Inc., 238 F.3d 219, 221 (2d Cir.2001).

Claims under Section 11 and Section 10(b) must be brought both within three years of the alleged violation and within one year of the discovery of the facts underlying the alleged violation. See 15 U.S.C. § 77m; Lampf, Pleva, Lipkind, Prupis, & Petigrow v. Gilbertson, 501 U.S. 350, 364, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991). “Discovery” for purposes of the statute of limitations includes constructive notice: “A plaintiff in a federal securities case will be deemed to have discovered fraud for purposes of triggering the statute of limitations when a reasonable investor of ordinary intelligence would have discovered the existence of the fraud.” Dodds v. CIGNA Securities, Inc., 12 F.3d 346, 350 (2d Cir.1993). We have held that “when the circumstances would suggest to an investor of ordinary intelligence the probability that she has been defrauded, a duty of inquiry arises, and knowledge will be imputed to the investor who does not make such an inquiry.” Id. The date of “discovery” under this “inquiry notice” standard is not actually the date that the duty of inquiry arises; it is the date that the plaintiff, having been put on inquiry notice, “ ‘in the exercise of reasonable diligence, should have discovered the facts underlying the alleged fraud.’ ” Rothman, 220 F.3d at 97 (quoting Sterlin v. Biomune Systems, 154 F.3d 1191, 1201 (10th Cir.1998)).

The plaintiffs argue that they were not on inquiry notice against E & Y prior to the January 1999 disclosure by GFI’s new management to the Board of the discovery of accounting irregularities, which disclosure led to the independent investigation that uncovered E & Y’s role in the alleged fraud. However, E & Y contends that the plaintiffs were placed on inquiry notice on March 23, 1998, when Graham-Field reported fourth-quarter 1997 and year-end 1997 results that were staggeringly below GFI’s historical performance and that were radically at odds with the projections of GFI’s then-Chairman and CEO in a January 29, 1998 interview with Dow Jones Newswire.

We agree with the defendant. The radical decline in GFI’s performance disclosed on March 23, 1998, coming on the heels of rosy predictions, constituted a basis for the plaintiffs to inquire into the accuracy of the older financial statements. In the words of the District Court, the losses were “staggering and follow[ed] on the heels of record profits____” Indeed, the March 23, 1998 announcement led to a one-day decline of 59% in the trading value of GFI stock. In view of the discrepancy between the company’s performance as reflected in the March 23, 1998 results and the company’s previous performance, a reasonable investor would have felt a need at least to inquire into whether the older financial statements had in fact accurately portrayed the company’s position. Indeed, upon learning of the disappointing results, plaintiff J.B. Fuqua was quoted in the press as stating that he had been “snookered,” and that it was impossible for all of the losses to be attributable to the fourth quarter integration costs. While J.B. Fuqua explicitly said that “[w]e haven’t used the word fraud or said we were defrauded,” the article also reported that J.B. Fuqua had stated that “who knew what and when they knew it is ‘a matter of opinion and perhaps will be later deter[572]*572mined.’” The plaintiffs thus appear to have recognized the results as “storm warnings” and recognized the need for some sort of inquiry.

The poor March 23, 1998 results cast doubt on the accuracy of the previously released financial statements simply because of the staggering decline in GFI’s performance.

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33 F. App'x 569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fuqua-v-ernst-young-llp-ca2-2002.