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City of Roseville Employees' Retirement System, Et Al. V

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City of Roseville Employees' Retirement System, Et Al. V Case 1:09-cv-08633-JGK Document 25 Filed 04/20/2010 Page 1 of 98 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x CITY OF ROSEVILLE EMPLOYEES’ : Civil Action No. 1:09-cv-08633-JGK RETIREMENT SYSTEM, on Behalf of Itself : and All Others Similarly Situated, : : Plaintiff, : CONSOLIDATED AMENDED : COMPLAINT FOR VIOLATIONS OF vs. : FEDERAL SECURITIES LAWS : ENERGYSOLUTIONS, INC., et al., : : Defendants. DEMAND FOR JURY TRIAL : x Case 1:09-cv-08633-JGK Document 25 Filed 04/20/2010 Page 2 of 98 TABLE OF CONTENTS Page NATURE OF THE ACTION 1 JURISDICTION AND VENUE 3 BASIS OF ALLEGATIONS 4 CONFIDENTIAL SOURCES 4 PARTIES 6 CLASS ACTION ALLEGATIONS 10 SUBSTANTIVE ALLEGATIONS 12 The Company and its Business 12 ENV Holdings 13 The Offerings 14 The Decommissioning of Nuclear Power Plants 16 The Company’s Prospects Were Not as Lucrative as Portrayed by Defendants 18 The Company’s License Stewardship Program 19 The Zion Decommissioning Project 23 The Petition to the NRC 25 The NRC Repeatedly Rejected Proposals Similar to the Company’s Petition 27 The NRC Rejects the Petition and Reiterates Its Longstanding Policies 33 EnergySolutions Experienced Problems Due to the Economy 34 THE REGISTRATION STATEMENTS AND PROSPECTUSES CONTAINED INACCURATE STATEMENTS OF MATERIAL FACT AND OMITTED MATERIAL INFORMATION REQUIRED TO BE DISCLOSED THEREIN 34 - i - Case 1:09-cv-08633-JGK Document 25 Filed 04/20/2010 Page 3 of 98 The IPO and July 2008 Registration Statements Omitted Known Trends, Events and Uncertainties that Were Impacting, and Would Impact, the Company’s Financial Results 43 The IPO and July 2008 Registration Statements Omitted to Include Significant Factors that Made the Offering Risky 45 The IPO and July 2008 Registration Statements Omitted to Include a Description of the Petition as a Material Legal Proceeding 46 The Company’s Stock Declines 47 COUNT I Violations of Section 11 of the Securities Act Against All Defendants 50 COUNT II Violations of Section 12(a)(2) of the Securities Act Against All Defendants 52 COUNT III Violation of Section 15 of the Securities Act Against the Individual Defendants and ENV Holdings 55 ADDITIONAL ALLEGATIONS IN SUPPORT OF CLAIMS UNDER THE EXCHANGE ACT 55 EnergySolutions Manipulated the Cost Estimates for the Zion Project 56 MATERIALLY FALSE AND MISLEADING STATEMENTS ISSUED DURING THE CLASS PERIOD 57 ADDITIONAL SCIENTER ALLEGATIONS 79 LOSS CAUSATION/ECONOMIC LOSS 84 APPLICABILITY OF PRESUMPTION OF RELIANCE: FRAUD ON THE MARKET DOCTRINE 85 NO SAFE HARBOR 86 - ii - Case 1:09-cv-08633-JGK Document 25 Filed 04/20/2010 Page 4 of 98 COUNT IV Violation of Section 10(b) of the Exchange Act and Rule 1 0b-5 Promulgated Thereunder Against EnergySolutions, the Individual Defendants and ENV Holdings 86 COUNT V Violation of Section 20(a) of the Exchange Act Against the Individual Defendants and ENV Holdings 90 PRAYER FOR RELIEF 91 JURY DEMAND 91 - iii - Case 1:09-cv-08633-JGK Document 25 Filed 04/20/2010 Page 5 of 98 Lead Plaintiffs New England Carpenters Guaranteed Annuity and Pension Funds, Building Trades United Pension Trust Fund and City of Roseville Employees’ Retirement System (collectively, “Plaintiffs”), by their undersigned attorneys, on behalf of themselves and the class they seek to represent, for their Consolidated Amended Complaint for Violation of the Federal Securities Laws (the “Complaint”), allege the following upon knowledge as to their own acts, and upon the investigation conducted by Lead Plaintiffs’ counsel as detailed below. NATURE OF THE ACTION 1. This is a federal securities class action on behalf of a class consisting of all persons or entities, other than Defendants, who acquired the common stock or depository shares of EnergySolutions in or traceable to the Company’s initial public offering on or about November 14, 2007 (the “IPO”) and the Company’s offering of securities on or about July 24, 2008 (the “July 2008 Offering”) (collectively, the “Offerings”), as well as purchasers of the Company’s common stock or depository shares between November 14, 2007 and October 14, 2008, inclusive (the “Class Period”), under Sections 11, 12(a)(2) and 15 of the Securities Act of 1933 (“Securities Act”) and Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (“Exchange Act”), as amended by the Private Securities Litigation Reform Act of 1995 (“PSLRA”) and Rule 10b-5 promulgated thereunder (17 C.F.R. §240.10b-5). 2. Defendant EnergySolutions, Inc. (“EnergySolutions” or the “Company”) was formed through a combination of several different entities in the nuclear services and disposal business. Prior to its IPO, 100% of the shares of the Company were owned by ENV Holdings LLC (“ENV Holdings”). As discussed below, ENV Holdings was owned and controlled by most of the senior executives and directors of the Company. Through the IPO, ENV Holdings sold 20.1 million shares of the Company’s stock and cashed out more than $463 million. Nine months after the IPO, on July 24, 2008, EnergySolutions conducted the July 2008 Offering. ENV Holdings sold 100% of the Case 1:09-cv-08633-JGK Document 25 Filed 04/20/2010 Page 6 of 98 40.25 million shares in the July 2008 Offering and cashed out another $764 million. The Registration Statements for the IPO and July 2008 Offerings discussed the Company and its strong business prospects, including: (i) its opportunities in the $2.9 to $3.1 billion decommissioning and decontamination market of shut-down nuclear reactors; (ii) its $870 million decommissioning project at two nuclear facilities in Zion, Illinois, that were owned by Exelon Corp. (“Exelon”) (the “Zion Project”); and (iii) its opportunities to dispose of nuclear waste at facilities that are still in operation. 3. Plaintiffs allege that Defendants are liable under the Securities Act because the IPO and July 2008 registration statements contained inaccurate statements of material fact when made because, among other reasons: (i) the opportunities in the shut-down nuclear reactor market were much smaller than represented; (ii) the decommissioning trust fund for the Zion Project was inadequate to cover the expenses for that project; (iii) the funds for the Company’s services were contained in trust funds at shut-down facilities that were inadequate to cover decommissioning costs or would not be available for many years; (iv) a significant portion of the Company’s decommissioning business (and future prospects) was entirely dependent upon the Company convincing the Nuclear Regulatory Commission (the “NRC”) to change a longstanding and entrenched rule against releasing trust funds from facilities that were still in operation (the “Petition”); and (v) it was probable that the NRC would deny the Petition. 4. Furthermore, Plaintiffs allege that the Individual Defendants (defined below), and Defendants EnergySolutions and ENV Holdings, are liable under the Exchange Act because throughout the Class Period, these Defendants issued materially false and misleading statements about, among other things: (i) the revenue and earnings prospects of the Company; (ii) the ability of the Company to access decommissioning trust funds; and (iii) the likelihood of the Company to obtain a favorable ruling from the NRC on the Petition. As alleged herein, Defendants issued these - 2 - Case 1:09-cv-08633-JGK Document 25 Filed 04/20/2010 Page 7 of 98 materially false and misleading statements to make it appear to investors that the Company had strong growth prospects to enable Defendants to dispose of more than $1.2 billion worth of stock in the Company during the Class Period at artificially inflated prices. 5. On October 14, 2008, two months after the July 2008 Offering (by which time Defendants, through ENV Holdings, had disposed of 80% of their shares in the Company’s stock), the Company revealed, among other things, that: (i) the trust fund at Zion had significantly declined in value and the Company was not moving forward with the Zion Project at that time; (ii) the NRC had denied the Company’s Petition; and (iii) the revenues and earnings estimates provided by the Company throughout most of the Class Period would need to be significantly reduced. In response to the Company’s announcement on October 14, 2008, shares of the Company’s stock fell $4.50 per share, or 44%, from a close of $10.14 per share before the announcement, to close at $5.64 per share, on extremely heavy trading volume of 9.4 million shares. JURISDICTION AND VENUE 6. The claims asserted herein arise under and pursuant to Sections 11, 12(a)(2) and 15 of the Securities Act [15 U.S.C. §§77k, 77l(a)(2) and 77o], Sections 10(b) and 20(a) of the Exchange Act [15 U.S.C. §§78j(b) and 78t(a)] and Rule 10b-5 promulgated thereunder [17 C.F.R. §240.10b-5]. 7. This Court has jurisdiction over this action pursuant to Section 22 of the Securities Act [15 U.S.C. §77v], Section 27 of the Exchange Act [15 U.S.C. §78aa], and 28 U.S.C. §§1331 and 1337. 8. Venue is properly laid in this District pursuant to Section 22 of the Securities Act, Section 27 of the Exchange Act and 28 U.S.C. §1391(b) and (c). The acts and conduct complained of herein occurred in substantial part in this District, and the IPO and the July 2008 Offering were marketed in this District. The Company’s shares are traded on the New York Stock Exchange - 3 - Case 1:09-cv-08633-JGK Document 25 Filed 04/20/2010 Page 8 of 98 (“NYSE”), which is based in this District, and the Underwriter Defendants (defined below) maintain executive offices in this District. 9. In connection with the acts and conduct alleged in this Complaint, Defendants, directly or indirectly, used the means and instrumentalities of interstate commerce, including the mails and telephonic communications and the facilities of the NYSE.
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