In Re: Commerce Bancorp Securities Litigation 04-CV-03252
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Case 1:04-cv-03252-RBK-JBR Document 24-1 Filed 01/24/2005 Page 1 of 58 LITE DEPALMA GREENBERG & RIVAS, LLC Joseph DePalma, Esq. (JD-7697) Susan D. Pontoriero, Esq. (SP-0463) Two Gateway Center, 12th Floor Newark, New Jersey 07102 Telephone: 973-623-3000 Fax: 973-623-0858 SCOTT & SCOTT, LLC David R. Scott, Esq. Neil R. Rothstein, Esq. Erin Comite, Esq. 108 Norwich Avenue Colchester, CT 06415 Telephone: 860-537-3818 Fax: 860-537-4432 Attorneys for Plaintiff [Additional Counsel on Signature Page] UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY No. 04-cv-03252 In re Commerce Bancorp Securities Litigation CLASS ACTION CONSOLIDATED COMPLAINT FOR All Actions VIOLATION OF THE FEDERAL ______________________________________ SECURITIES LAWS DEMAND FOR JURY TRIAL Case 1:04-cv-03252-RBK-JBR Document 24-1 Filed 01/24/2005 Page 2 of 58 INTRODUCTION 1. This is an action on behalf of purchasers of Commerce Bancorp, Inc. (“Commerce Bank” or the “Company”) publicly traded securities during the period June 1, 2002, to June 28, 2004, inclusive (the “Class Period”). Commerce Bank is a bank holding company headquartered in Cherry Hill, New Jersey. It operates 300 retail bank branches in New Jersey, Pennsylvania, Delaware and New York. The Company’s wholly-owned subsidiaries include: Commerce Bank, N.A. (Commerce NJ), Commerce Bank/Pennsylvania, N.A., Commerce Bank/Shore, N.A., Commerce Bank/Delaware, N.A., and Commerce Bank/North. Commerce Bank also offers insurance services through its subsidiary, Commerce Insurance Services, Inc. In addition, its capital markets subsidiary Commerce Capital Markets, Inc., is according to the Company, “the region's largest public finance underwriter” and provides financial advisory services to major clients in the field of education and healthcare. 2. Commerce Bancorp, Inc., describes itself on its website as follows: CORPORATE PROFILE Commerce Bancorp, Inc., has evolved into a regional financial services leader, anchored by the financial strength of its five banking subsidiaries and augmented by Commerce Insurance Services, Inc., and Commerce Capital Markets, Inc. Founded in 1973, CBH's first 30 years have been marked by rapid growth, sound profitability and excellent financial returns to its shareholders. With assets of more than $29 billion, CBH is the largest bank headquartered in Southern New Jersey, serving Metropolitan Philadelphia, New Jersey, Delaware and New York. CBH is a growth retailer selling convenience, and has successfully developed and implemented a unique retail strategy. This retail approach to banking uses a chain concept and features standardized facilities, standardized hours, standardized service and aggressive marketing. The consistent delivery and reinforcement of this retail strategy for 31 years has built a brand that the consumer has accepted as truth. CBH is "America's Most Convenient Bank" offering the best in delivery channels. The consumer is given the choice of visiting one of CBH's more than 300 convenient branch locations which are open seven days a week, using the convenience of Commerce Online - America's leading on-line home banking - 1 - Case 1:04-cv-03252-RBK-JBR Document 24-1 Filed 01/24/2005 Page 3 of 58 product, or using other self-service delivery systems such as Bank-By-Phone, Check Card, ATMs and CBH's Internet website, www.commerceonline.com. CBH's unique retail strategy has produced exceptional financial performance. Fueled by the growth in low-cost core deposits and a cost of funds of just under 1%, over the last five years assets, loans and deposits have grown 36%, 26% and 39%, respectively. Total revenues, net income and earnings per share have increased 30%, 34% and 26%, respectively. CBH is one of the first financial services providers in its market to make a serious commitment to the insurance business. Commerce Insurance Services, Inc., was formed in 1996 through the combination of several leading local independent insurance agencies. Subsequent acquisitions have created the 28th largest insurance agency in America with annual premium volume exceeding $800 million. Commerce Capital Markets, Inc., focuses on asset management and wealth advisory services. CBH plans to continue its growth and reinforce its brand by increasing its branch offices to approximately 700 and its assets to $104 billion by 2009. Included in this plan is the targeted expansion into the Washington- Baltimore market starting in 2005, and the entry into the Boston market in 2007. It also states, in part: Exchange New York Stock Exchange (Stock Quote [CBH]) Transfer Agent: Mellon Investor Services, L.L.C. 85 Challenger Road Overpeck Centre Ridgefield Park, NJ 07660 Phone 888-470-5884 Corporate Counsel: Blank Rome LLP Philadelphia, PA Independent Accountants: Ernst & Young Philadelphia, PA - 2 - Case 1:04-cv-03252-RBK-JBR Document 24-1 Filed 01/24/2005 Page 4 of 58 3. The Commerce Bancorp website further states: About Commerce Bank Commerce is one of the nation's fastest growing financial services retailers. Since its inception in 1973, Commerce continually has honed a unique and very successful retail model, which fuels the Bank's continuing growth. Commerce has expanded substantially since opening its first store more than 30 years ago in Marlton, New Jersey. Today, the Commerce network comprises more than 300 convenient stores throughout New Jersey, Pennsylvania, New York and Delaware. Commerce is based in Cherry Hill, New Jersey and has assets of more than $29 billion, making it the largest locally headquartered independent bank in the metropolitan Philadelphia area. Commerce trades on the New York Stock Exchange under the symbol CBH. At a time when other banks, both locally and nationwide, are abandoning branch banking and forcing customers to use remote delivery channels, Commerce will open 50+ additional branches during 2004. In addition, Commerce is maintaining an aggressive expansion pace, working toward a total asset goal of $104 billion and a branch network of 700 offices by the year 2009. As “America's Most Convenient Bank,” Commerce looks different, thinks different and provides a truly different banking experience. The Bank's “have it your way” approach emphasizes the importance of providing customers with convenient, quality financial services, whenever, wherever and in whatever way they may want them. Commerce's hallmark products and services include: - Seven-day branch banking - FREE personal checking - Convenient online banking and stock trading at commerceonline.com, America's leading on-line banking service - 1-800-YES-2000, a full-service, 24-hour bank-by-phone system - Commerce Check Card, a combination ATM/Visa debit card About Commerce Insurance Services Commerce Insurance Services was launched in 1996 through the combination of several leading locally based independent insurance agencies. Additional acquisitions have significantly increased the size and scope, to where Commerce Insurance Services is among the top 30 largest insurance brokerages in America. Commerce Insurance Services is licensed in all 50 states and provides a complete range of commercial, employee benefit and personal insurance coverage to more than 130,000 clients, and has an annual premium value of $800 million. - 3 - Case 1:04-cv-03252-RBK-JBR Document 24-1 Filed 01/24/2005 Page 5 of 58 About Commerce Capital Markets Commerce Capital Markets is a full service brokerage firm offering personal financial solutions to meet individual customer's investment goals. 4. During the Class Period, defendants failed to disclose that certain of its executives and of the Individual Defendants were, as a regular course of business, and with the express knowledge and approval of the Company’s chief executive officer and other senior executives, committing honest services fraud, wire fraud, and mail fraud through bribery and knowing participation in bid-rigging in order to win underwriting awards and gain banking business for Commerce Bank from governmental entities, including the City of Philadelphia (the “City”). The bid-rigging took place via provisions of competing bids to Commerce Bank executives, for example, by the Treasurer of the City. Thus, enabling them to slightly undercut competing bids and consistently secure banking and underwriting awards. These practices were criminal, inherently unsustainable and placed the Company and its investors at great risk. At the same time, the Individual Defendants had actual knowledge of grand jury proceedings delving into the actions of Commerce Bank, a former Director of Commerce Bank/Pennsylvania and two Commerce Bank executives. Indeed, Commerce Bank attorneys had access to telephone tapes that were at the center of the indictment. Tapes that established the culpability of the Director and two executives, resulting in their eventual indictment, as described below. Despite the actual knowledge of all senior Commerce Bank executives that a criminal grand jury was investigating two executives and one of Commerce Bank/Pennsylvania’s Directors, the practices in question were never disclosed to investors during the Class Period. 5. The massive risks of these undisclosed practices and the undisclosed grand jury proceedings materialized on or about June 28, 2004, when US Attorney Patrick Meehan announced that the Commerce Bank/Pennsylvania Director and two executives had been - 4 - Case 1:04-cv-03252-RBK-JBR Document 24-1 Filed 01/24/2005 Page 6 of 58 indicted. Ronald A. White, a Director of Commerce Bank/Pennsylvania from June 2002 to October 2003 – who has since passed away – was charged with conspiracy to commit honest services fraud, 22 counts of wire fraud, four counts of mail fraud, two counts of extortion, and five counts of making false statements to the FBI. If convicted on all counts, he would have faced a maximum sentence of 555 years imprisonment and an $8.25 million fine. Glenn K. Holck, president of Commerce Bank/Pennsylvania, was charged with conspiracy to commit honest services fraud, eight counts of wire fraud, and one count of mail fraud. Stephen M. Umbrell, regional vice-president of Commerce Bank/Pennsylvania, was charged with conspiracy to commit honest services fraud, eight counts of wire fraud, and one count of mail fraud.