In re Sonus Networks, Inc. Securities Litigation

247 F.R.D. 244, 2007 WL 2826622
CourtDistrict Court, D. Massachusetts
DecidedSeptember 25, 2007
DocketCivil Action No. 04-10294-DPW
StatusPublished
Cited by6 cases

This text of 247 F.R.D. 244 (In re Sonus Networks, Inc. Securities Litigation) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Sonus Networks, Inc. Securities Litigation, 247 F.R.D. 244, 2007 WL 2826622 (D. Mass. 2007).

Opinion

MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, District Judge.

Lead Plaintiff BPI Global Investments, Inc. (“BPI Global”) seeks to bring this consolidated securities fraud action on behalf of a class and a subclass against Sonus Networks, Inc. (“Sonus”), Hassan M. Ahmed, Sonus’s Chief Executive Officer, and Stephen J. Nill, Sonus’s former Chief Financial Officer. BPI Global alleges that Defendants violated sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and sections 11, 12(a)(2), and 15 of the Securities Act of 1933 by intentionally misrepresenting Sonus’s financial statements between March 28, 2002 and March 26, 2004 (“Class Period”). I appointed BPI Global Lead Plaintiff on August 10, 2004. Thereafter, in response to Defendants’ motion, I dismissed part of the complaint on May 10, 2006. In re Sonus Networks, Inc. Sec. Litig., 2006 WL 1308165 (D.Mass.2006). BPI Global has moved to certify the class as well as one subclass. For the reasons stated below, I will grant the motion for class certification of the requested class and subclass.

[245]*245I. Background

The allegations in the case are detailed fully in the Memorandum in which I addressed Defendants’ motion to dismiss. See In re Sonus Networks, Inc. Sec. Litig., 2006 WL 1308165 at *1-*5. To summarize, BPI Global and other plaintiffs similarly situated allege that Sonus, a provider of “packet voice infrastructure solutions,” and Sonus officers Ahmed and Nill misrepresented the revenues of Sonus, engaged in erroneous purchase accounting, and erroneously recorded impairments, accrued expenses, and deferred compensation. Specifically, BPI Global alleges that Defendants recorded revenues in quarters in which they had not been earned, made false and misleading statements of finances in ten SEC filings issued during the alleged Class Period, and knowingly engaged in improper accounting practices in order to create the illusion that the company’s revenues were growing in a stable, linear pattern. BPI Global argues that this publication of materially false statements caused the shares of the company to rise to artificially high levels during the Class Period.

BPI Global also alleges that Defendants made materially false statements with respect to a Prospectus Supplement in September 2003. Sonus had conducted its initial public offering in May 2000 in the NASDAQ capital market, raising $115 million. Sonus then filed a Prospectus Supplement relating to the offering of 200,000,000 shares of its common stock on April 21, 2003, and another on September 23, 2003 relating to an offering of 17,000,000 shares of its common stock. BPI Global asserts it relied specifically on allegedly false statements in the September 2003 Prospectus Supplement and seeks certification for a subclass of plaintiffs that relied on the same misstatements.

BPI Global claims that it sustained losses exceeding $5.3 million from the purchases of Sonus shares during the Class Period. Of this amount, two funds that BPI Global advised allegedly suffered substantial losses as a result of the September 2003 Prospectus Supplement. Specifically, BPI Global Equity Fund is alleged to have suffered a loss of $2,370,550 and BPI American Equity Fund a loss of $1,202,752.

BPI Global did not, however, sustain $5.3 million in losses directly. The $5.3 million in damages for the most part arose out of the purchases of Sonus stock that BPI Global made for clients. BPI Global, however, was also the sole general partner of four limited partnerships which purchased Sonus stock in 2003. As general partner, BPI Global invested money in the limited partnerships and those funds sustained close to $66,000 in damages.

A. BPI Global’s Role as Investment Ad-visor

BPI Global (now Trilogy, see Section I.B. below) was an investment advisor to several funds which purchased Sonus stock during the Class Period. Specifically, BPI Global entered into an agreement with BPI Capital Corporation, a company which is the two-thirds owner of BPI Global, on May 31, 1999 under which BPI Global would purchase certain securities on behalf of BPI Capital Corporation and their multiple mutual funds and hedge funds. According to Charles Sweeney, who was control and chief compliance officer at BPI Global from April 1997 to October 2005, BPI Capital1 was considered the “manager” of the funds that held Sonus securities and it was BPI Capital that had a “direct contractual relationship” with the funds. BPI Global, on the other hand, was advisor to BPI Capital, and there is no evidence that it had any formal legal relationship with most of the funds themselves except through BPI Capital.

Independent from being investment advis- or to BPI Capital, BPI Global was also general partner of several of the mutual funds for which it purchased Sonus stock. For example, BPI Global was general partner for BPI Global Opportunities Fund, LP, BPI Global Opportunities Fund VII, LP, and BPI American Opportunities Fund, LP. According to Charles Sweeney, “[w]here [BPI] was a general partner in the limited partnerships, they were also an investor and invested a sum of money” in the funds. With respect to [246]*246certain other funds, BPI Global was a member of the limited partnership though not general partner.

BPI Global has submitted testimonial evidence that it had complete discretion with regard to the securities purchases it made on behalf of BPI Capital. That evidence includes the following:

• “We were independent investment advis-ors, so we were allowed to exercise our discretion, our full discretion on the purchase and sale of securities.” Bichel-meyer Dep. at 63.2
• BPI Global was subject to certain broad restrictions when purchasing stock. For example, the agreement prohibited the purchasing of real estate portfolios and short-selling stock without BPI Capital’s approval. See Bichelmeyer Dep. at 61. With regard to the broad restrictions on purchasing, John Bichelmeyer stated that the restrictions were broad and thus “didn’t impact my strategy much.” Id. at 66.
• Charles Sweeney would “interpret [the agreement between BPI Capital and BPI Global] as giving BPI Capital the ability to step in, as the case might be. But to the best of my knowledge, during the entire history of this account, they have not come and said you should invest in this stock or you shouldn’t invest in a particular name.” Sweeney Dep. at 54.
• “BPI Global as an investment advisor makes the decision what to buy, when to buy it, how much to pay for it, who to buy it through, how to vote the proxies and any other matters that pertain to the security.” Sweeney Dep. at 51.
• “As a practical matter, BPI [Global] ran autonomously.” Sweeney Dep. at 55.
• “Cl Mutual Funds, Inc. is the ultimate controlling entity of among other related mutual funds, BPI Global Equity Fund and BPI American Equity Fund, which is sometimes also referred to as BPI American Value Fund. Cl Mutual Funds Inc. acts as the manager and trustee for these funds.” Killeen Aff. at ¶ 2 (Killeen is Senior Vice-President and General Counsel of Cl Mutual Funds, Inc., formerly BPI Capital.).

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Cite This Page — Counsel Stack

Bluebook (online)
247 F.R.D. 244, 2007 WL 2826622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-sonus-networks-inc-securities-litigation-mad-2007.