In re Bearingpoint, Inc. Securities Litigation

232 F.R.D. 534, 2006 U.S. Dist. LEXIS 1718, 2006 WL 141667
CourtDistrict Court, E.D. Virginia
DecidedJanuary 17, 2006
DocketNo. Civ.A. 1:05CV454
StatusPublished
Cited by26 cases

This text of 232 F.R.D. 534 (In re Bearingpoint, Inc. Securities Litigation) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Bearingpoint, Inc. Securities Litigation, 232 F.R.D. 534, 2006 U.S. Dist. LEXIS 1718, 2006 WL 141667 (E.D. Va. 2006).

Opinion

MEMORANDUM OPINION

ELLIS, District Judge.

An important issue, appropriately addressed early in this securities fraud action, is whether the alleged class of plaintiffs merits certification pursuant to Rule 23, Fed. R.Civ.P. For the reasons that follow, class certification is warranted.

I.

On April 20, 2005, BearingPoint, a global provider of strategic consulting and systems integration services that was formerly part of KPMG, announced to the investing public that it expected to take a goodwill impairment charge of between $250 million to $400 million, and that its prior financial statements for 2003 and 2004 were not reliable because of errors. More specifically, BearingPoint warned that errors in its Form 10-Q filings for the first three quarters of fiscal year 2004, as well as earlier periods, and in its form 10-K filings for the fiscal year ended June 30, 2003 and for the six month transition period ending December 31, 20031 would require restatement of its earnings for those periods.2 This announcement also disclosed [536]*536that BearingPoint was the target of an informal SEC investigation into its accounting and financial reporting,3 and that nine of BearingPoint’s top twenty executives had left BearingPoint’s employment or were in the process of leaving. As a result of these disclosures, the price for BearingPoint’s publicly traded shares4 dropped 32% from a closing price of $7.77 per share on April 20, 2005 to a closing price of $5.28 per share on April 21, 2005. Significantly, this drop in share price occurred on a trading volume of 67,749,504 shares, over forty-six times the stock’s average daily trading volume for the year preceding the announcement.

The April 20th announcement was not the first time BearingPoint had warned of potential problems with its financial accounting. In the six months prior to this announcement, BearingPoint had acknowledged problems or potential problems with its financial controls on three separate occasions: (i) an amended Form 10-Q filing for the period ending September 30, 2004 filed on November 17, 2004, (ii) a Form 8-K filing of December 16, 2004 concerning the offering of convertible debentures, and (iii) a Form 8-K filing of March 18, 2005 announcing Bearing-Point’s entry into a new credit agreement. Each of these merits a brief description.

The amended 10-Q disclosed that subsequent to its original 10-Q filing for the period ending September 30, 2004, BearingPoint discovered that $92.9 million had been erroneously recorded in the original 10-Q as accounts receivable when that amount should have been recorded as unbilled revenue. This amendment did not affect Bearing-Point’s income statement for that period or its net cash flow for the period. Further, the Form 10Q/A disclosed that:

[T]he Company’s disclosure controls and procedures as of September 30, 2004 were not effective to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Securities Exchange Act of 1934, as amended, is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms.

This statement was made in the context of the overstatement of accounts receivable, and along with the restatement itself was largely ignored by the market for BearingPoint’s shares, which reacted by reducing the stock price only 42 cents, from $9.42 per share to $9.00 per share on trading volume of 3,256,-700 shares.

Similarly, BearingPoint’s Form 8-K of December 16, 2004, which was filed in connection with an issuance of convertible debentures, repeated that management had discovered material weaknesses in its internal control components and noted that failure to address the internal control problems promptly could “materially and adversely impact our business, our financial condition and the market value of our securities and expose us to litigation and scrutiny from private litigants and the Securities and Exchange Commission.” The market’s reaction was again quite modest: BearingPoint’s share price dropped on December 16, 2004 from $8.48 to $7.75 per share on a trading volume of 13,329,500 shares, and again the next day, on December 17,2004 from $7.75 to $7.59 per share on a trading volume of 19,197,300 shares.

Finally, in its Form 8-K filing of March 18, 2005, in which BearingPoint announced the terms of its amended credit agreement with certain lenders, BearingPoint also revealed information pertaining to its financial controls, namely: (i) that BearingPoint expected to take a material goodwill impairment charge of potentially more than $230 million; (ii) that BearingPoint had informed the SEC that it would not timely file its Form 10-K for the year ended December 31, 2004 or its Form 10-Q for the quarter ended March 31, 2005; (iii) that BearingPoint’s internal financial controls remained ineffective; (iv) that [537]*537BearingPoint expected its independent auditors to issue an adverse opinion on the effectiveness of its internal controls over financial reporting; (v) that BearingPoint had identified that there were items in previous period financial statements for the fiscal year ending December 31, 2004 that would probably require adjustments; and (vi) that Moody’s Investor’s Services, Inc. and Standard and Poor’s Eating Services downgraded Bearing-Point’s credit rating in December 2004 to “below investment grade.” Paradoxically, the market reacted positively to this filing: The day following the filing, BearingPoint’s share price actually rose 13% from $7.55 per share to $8.53 per share on a trading volume of 8,067,900 shares.

Corporate announcements that financial statements must be restated typically and quickly spawn a spate of securities fraud lawsuits. BearingPoint’s April 20th announcement was no exception. Within weeks several such lawsuits were filed in this district against BearingPoint and its officers.5 Thereafter, and pursuant to the Private Securities Litigation Reform Act of 1995 (PSLRA), 15 U.S.C. § 78u-4, and Rule 42, Fed.R.Civ.P., the various lawsuits were consolidated. See In re BearingPoint Sec. Litig., Civil Action No. I:05cv454 (June 27, 2005). After consolidation, pursuant to 15 U.S.C. § 78u-4(a)(3)(B), Matrix was selected as lead plaintiff owing, in part, to Matrix’s sophistication as an investor and its substantial financial interest at stake in the litigation. See In re BearingPoint Sec. Litig., Civil Action No. 1:05cv454 (July 26, 2005). This Order also approved the appointment of Gold Bennett Cera & Sidener LLP (GBCS) as lead plaintiffs counsel. Id. These decisions were confirmed in an Order denying a motion for reconsideration of the appointment. See In re BearingPoint Sec. Litig., Civil Action No. 1:05cv454 (August 15, 2005).

Matrix filed its Consolidated Complaint on October 7, 2005 alleging various violations of the securities laws. Specifically, Matrix alleges that defendants knowingly or recklessly misrepresented BearingPoint’s financial condition by overstating its earnings and assets by hundreds of millions of dollars, although the precise size of the overstatement awaits BearingPoint’s restated financials. See supra note 2. Accordingly, Matrix seeks certification of the following class:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re: NOVANT HEALTH, INC.
M.D. North Carolina, 2024
Hurst v. Enphase Energy, Inc.
N.D. California, 2020
In re NII Holdings, Inc. Securities Litigation
311 F.R.D. 401 (E.D. Virginia, 2015)
Soutter v. Equifax Information Services, LLC
307 F.R.D. 183 (E.D. Virginia, 2015)
Gordon v. Sonar Capital Management LLC
962 F. Supp. 2d 525 (S.D. New York, 2013)
In re Juniper Networks, Inc. Securities Litigation
264 F.R.D. 584 (N.D. California, 2009)
In re Tronox, Inc. Securities Litigation
262 F.R.D. 338 (S.D. New York, 2009)
In re Red Hat, Inc. Securities Litigation
261 F.R.D. 83 (E.D. North Carolina, 2009)
Silversman v. Motorola, Inc.
259 F.R.D. 163 (N.D. Illinois, 2009)
Matrix Capital Management Fund v. BearingPoint, Inc.
576 F.3d 172 (Fourth Circuit, 2009)
In re Mills Corp. Securities Litigation
257 F.R.D. 101 (E.D. Virginia, 2009)
Makor Issues & Rights, Ltd. v. Tellabs, Inc.
256 F.R.D. 586 (N.D. Illinois, 2009)
In re Alstom Sa Securities Litigation
253 F.R.D. 266 (S.D. New York, 2008)
In re DVI Inc. Securities Litigation
249 F.R.D. 196 (E.D. Pennsylvania, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
232 F.R.D. 534, 2006 U.S. Dist. LEXIS 1718, 2006 WL 141667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bearingpoint-inc-securities-litigation-vaed-2006.