Gould v. Winstar Communications, Inc.

692 F.3d 148, 2012 WL 3711741, 2012 U.S. App. LEXIS 18426
CourtCourt of Appeals for the Second Circuit
DecidedJuly 19, 2012
DocketDocket Nos. 10-4028-cv(L), 10-4280-cv(CON)
StatusPublished
Cited by42 cases

This text of 692 F.3d 148 (Gould v. Winstar Communications, Inc.) 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
Gould v. Winstar Communications, Inc., 692 F.3d 148, 2012 WL 3711741, 2012 U.S. App. LEXIS 18426 (2d Cir. 2012).

Opinion

LOHIER, Circuit Judge:

Plaintiffs-Appellants appeal from a September 2010 judgment of the United States District Court for the Southern District of New York (Daniels, J.) granting the summary judgment motion of Defendant-Appellee Grant Thornton LLP (“GT”) and dismissing the Plaintiffs’ claims [151]*151arising from GT’s audit of the financial statements of its client, Winstar Communications, Inc. (“Winstar”). The Plaintiffs claimed that GT committed securities fraud in violation of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (the “Act” or the “Exchange Act”), and 17 C.F.R. § 240.10b-5, and made false and misleading statements in an audit opinion letter in violation of Section 18 of the Act, 15 U.S.C. § 78r. We conclude that genuine issues of material fact exist as to each of these claims. We therefore VACATE the District Court’s grant of summary judgment and REMAND for further proceedings.

BACKGROUND

1. Facts

Reviewing the District Court’s grant of summary judgment in favor of GT, “we construe the evidence in the light most favorable to the [Plaintiffs], drawing all reasonable inferences and resolving all ambiguities in [their] favor.”1 In re Omnicom Grp., Inc. Sec. Litig., 597 F.3d 501, 504 (2d Cir.2010) (quotation marks omitted).

Winstar was a broadband communications company whose core business was to provide wireless Internet connectivity to various businesses. GT served as Wins-tar’s independent auditor from 1994 until Winstar filed for bankruptcy in April 2001, and GT regarded Winstar as “one of [its] largest and most important clients.”2

In 1999, however, the relationship deteriorated. Winstar warned GT that it would likely terminate the relationship if GT’s performance on unrelated international tax planning and other accounting matters proved unsatisfactory. In March 1999 at least one member of Winstar’s board of directors openly urged during a board meeting that the GT partner overseeing the audit of Winstar be removed from the Winstar account. GT eventually re-staffed the Winstar account so that the 1999 audit was managed by a partner, Gary Goldman, and a senior manager, Patricia Cummings, neither of whom had previously reviewed or audited the financial records of a telecommunications company.

As relevant to this appeal, GT’s audit for 1999 included several “large account” transactions that Winstar consummated in an attempt to conceal a decrease in revenue associated with Winstar’s core business. Most of the large account transactions involved Lucent Technologies, Inc. (“Lucent”), Winstar’s strategic partner, and all of them were consummated at the end of Winstar’s fiscal quarters in 1999. Together, the transactions accounted for $114.5 million in revenue, or approximately 26 percent of Winstar’s reported 1999 operating revenues and 32 percent of its “core” revenues that year. At the time, GT considered these transactions to be “red flags,” warranting the accounting firm’s “heightened scrutiny.**3 However, [152]*152GT ultimately approved Winstar’s recognition of revenue in connection with each of these transactions.

We discuss the evidence relating to each category of transaction in turn.

A. Questionable Sales

The first category of questionable transactions involved a series of six end-of-quarter and end-of-year transactions, primarily reported as equipment sales, for which there was little evidence that any goods or services were ordered and delivered. For example, for the third quarter of 1999 Winstar recognized $15 million in revenue for the sale of Lucent equipment to Anixter Brothers, Inc. (“Anixter”), a wire and cable distributor. There were several unusual aspects of this sale. First, Anixter ordinarily purchased equipment directly from Lucent, not Winstar. Second, equipment sales were not part of Winstar’s core business of creating and operating wireless networks. Third, during GT’s audit Cummings noted that the Anixter transaction was “apparently” completed on September 30, 1999, the last day of Winstar’s fiscal quarter, but GT’s work papers included no documents reflecting the sale’s completion beyond a purchase order from Winstar to Lucent and an invoice from Lucent to Winstar. Moreover, neither the' purchase order nor the invoice included an itemized list of the goods sold or indicated the shipping terms, even though the items were to be shipped on September 30, 1999, and delivered on October 4, 1999.4 Absent too was any document evidencing Anixter’s agreement to purchase the items. Lastly, not a single employee of Lucent, Winstar, or Anixter who was asked about the equipment sale could recall it.

Five other transactions that were not part of Winstar’s core business were consummated at the end of one of Winstar’s fiscal quarters and were barely documented. Winstar nevertheless recognized a total of $49.7 million in revenue associated with these five transactions. First, Wins-tar recognized $5 million in revenue in the first quarter of 1999 for a “feasibility study” that Winstar was scheduled to conduct for Lucent, but which had not been delivered by at least 2000. Second, Wins-tar recognized $21.1 million in revenue in the first and second quarters of 1999 in connection with the sale of Lucent equipment to Williams Communications, Inc. (“Williams”). The equipment was shipped by Lucent, not Winstar, on the last business day of the first and second quarters (March 31, 1999 and June 30, 1999, respectively), with no written agreement. Third, Winstar recognized $9.1 million in revenue in the second quarter of 1999 in connection with the sale of Lucent equipment to Vo[153]*153Call Communications Corporation (“VoCall”) on June 30, 1999. Although the sale was referenced in a series of non-numbered purchase orders, it was not referenced in any executed, final agreement or shipping document. Fourth, Winstar recognized $4.5 million in revenue in the third quarter of 1999 in connection with the sale of unspecified “WinStar Equipment” to Cignal Global Communications (“Cignal”), which was contracted for on September 30, 1999, the last day of that quarter. However, GT was unable to produce a document evidencing that the equipment had been shipped to Cignal during that quarter. Fifth, Winstar recognized $10 million in revenue in the fourth quarter of 1999 in connection with the sale of wireless radio equipment (“radios”) to Lucent under an agreement dated December 30, 1999. GT endorsed the recognition of revenue even though its work papers included shipping documents with conflicting dates, no document specified the goods purchased, and Lucent, not Winstar, was in the business of manufacturing and selling radios. The same agreement also involved a $2 million “promotional credit” purchased by Lucent for services that had not yet been rendered by Winstar. Although GT specifically advised Winstar that recognizing and recording the amount of the credit as revenue was improper and in violation of generally accepted accounting principles (“GAAP”),5

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Bluebook (online)
692 F.3d 148, 2012 WL 3711741, 2012 U.S. App. LEXIS 18426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gould-v-winstar-communications-inc-ca2-2012.