Anthony Caiafa, Et Al. V. Sea Containers, Ltd., Et Al. 06-CV-02565
Total Page:16
File Type:pdf, Size:1020Kb
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ANTHONY CAIAFA on behalf of himself and all others similarly situated, Plaintiff, CLASS ACTION COMPLAINT SEA CONTAINERS LTD., JAMES B. SHERWOOD and IAN C. DURANT, Defendants. Plaintiff Anthony Caiafa, individually and on behalf of all other persons similarly situated, by his undersigned attorneys, upon information and belief, based upon, inter alia, the investigation of counsel, which includes, among other things, a review of public announcements made by defendants, Securities and Exchange Commission ("SEC") filings made by defendants, press releases, and media reports, except as to the paragraph applicable to plaintiff which is alleged upon personal knowledge, alleges on information and belief as follows: SUMMARY OF ALLEGATIONS 1. This class action is brought on behalf of all persons who purchased the securities of Sea Containers Ltd. ("Sea Containers" or "the Company") during the period from March 15, 2004 to March 24, 2006 (the "Class Period"). During the Class Period, the defendants represented to the public that Sea Containers' reported financial results presented fairly, in all material respects, the financial position of the Company, and that Sea Containers had a system of internal controls that was adequate to ensure that the Company's reported financial results were accurate. Unbeknownst to plaintiff and the class, the true facts were as follows: a. Sea Containers' reported financial results were inaccurate and cannot be relied upon; b. Sea Containers' internal controls were inadequate to ensure the reliability of its publicly reported financial results; c. Sea Containers had materially overstated the value of (and failed to write down the value of) the value of its investment in the common stock of Orient-Express Hotels Ltd.; and d. The value of the Sea Containers' ferry and container assets was materially impaired. 2. Sea Containers' shares traded at prices as high as approximately $2 1 per share during the Class Period based on defendants' false statements concerning its financial results. When Sea Containers shocked Wall Street by revealing that it would have to take a mammoth writedown of its assets in a sum that it estimated as $500 million, that it would miss the deadline for filing its 2005 annual report, and that its publicly reported financial results for the first three quarters of 2005 should not be relied upon and will have to be restated, the Company's stock plummeted from a close of $12.06 per share on March 23,2006 to as low as $7.34 on March 24, 2006 before closing at $7.45- a drop of 38% in a single day! JURISDICTION AND VENLE 3. This Court has jurishction over the subject matter of this action pursuant to the Securities Exchange Act of 1934 (the "Exchange Act") (15 U.S.C. 5 78aa), and 28 U.S.C. 5 1331. 4. Plaintiff brings this action pursuant to Sections 10(b) and 20(a) of the Exchange Act as amended (15 U.S.C. 5 78j(b) and 78t(a)) and Rule 1Clb-5 promulgated thereunder (17 C.F.R. 5 240.10b-5). Venue is proper in this District because defendants conduct business in this District, the Company's shares were listed on the New York Stock Exchange in this District at all relevant times, and certain of the wrongful acts alleged herein took place or originated in this District. 5. In connection with the acts alleged in this Complaint, defendants, directly or indirectly, used the means and instrumentalities of interstate commerce, including, but not limited to, the mails, interstate telephone communications and the facilities of the national securities markets. 6. In connection with the acts, conduct and other wrongs alleged in this complaint, defendants, directly or indirectly, used the means and instrumentalities of interstate commerce, including but not limited to, the United States mails, interstate telephone communications and the facilities of the national securities exchanges. PARTIES 7. Plaintiff Anthony Caifa ("plaintiff'), as set forth in the certification annexed hereto as Exhibit 1, purchased Sea Containers stock at artificially inflated prices during the Class Period pursuant to and traceable to the Prospectus as hereinafter defined and has been damaged thereby. 8. Defendant Sea Containers is a Bermuda corporation having its principal place of business at 22 Victoria Street, Hamilton, Bermuda. Sea Containers provides passenger and freight transport and marine container leasing. It operates in four segments: Ferry, Rail, Container, and Leisure. Ferry segment provides passenger and freight ferry services in the northern Baltic Sea between Finland, Sweden, Estonia, Germany, and Russia; in the English Channel between England and France; and in the northern Irish Sea between Scotland and Northern Ireland. It also owns a commuter ferry service operating in New York harbor, and a 50% interest in a ferry service in the Adriatic Sea. Rail segment offers passenger rail transport services through Great North Eastern Railway (GNER) in Great Britain between London and Scotland. As of December 3 1,2004, GNER operated a fleet of 42 train sets totalling 488 cars and locomotives. Container segment's operations are principally conducted through the Company's GE SeaCo SRL joint venture with General Electric Capital Corporation. It offers services to liner ship operators, road and rail operators, forwarders, and exporters. Leisure segment engages in the ownership or part ownership and management of hotels, restaurants, tourist trains, and river cruiseship through Orient-Express Hotels, Ltd. As of October 3 1, 2005, Sea Containers had 26,145,152 Class A common shares and 14,321,195 Class B common shares of common stock outstanding. Sea Containers shares trade on the New York Stock Exchange under the ticker symbol "SCR." 9. Defendant James B. Sherwood ("Shemood) was the Company's President and Chief Executive Officer at times relevant hereto. 10. Defendant Ian C. Durant ("Durant") was the Company's Senior Vice President for Finance and Chief Financial Officer at times relevant hereto. Defendants Sherwood and Durant are sometimes hereinafter jointly referred to as the "Individual Defendants. CLASS ACTION ALLEGATIONS 11. Plaintiff brings this action as a class action pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3) on behalf of a Class, consisting of all persons who purchased or otherwise acquired the securities of Sea Containers during the period from March 15, 2004 to March 24, 2006 (the "Class Period"), and who were damaged thereby. Excluded from the Class are defendants, the officers and directors of the Company, members of their immediate families and their legal representatives, heirs, successors or assigns and any entity in which defendants have or had a controlling interest. 12. The members of the Class are so numerous that joinder of all members is imprac- ticable. Throughout the Class Period, Sea Containers' securities were actively publicly traded. While the exact number of Class members is unknown to Plaintiff at this time and can only be ascertained through appropriate discovery, Plaintiff believes that there are at least hundreds of members in the proposed Class. Record owners and other members of the Class may be identified from records maintained by Sea Containers or its transfer agent and may be notified of the pendency of this action by mail, using the forms of notice similar to those customarily used in securities class actions. 13. Plaintiff's claims are typical of the claims of the members of the Class. All members of the Class are similarly affected by defendants' wrongful conduct in violation of federal law that is complained of herein. 14. Plaintiff will fairly and adequately protect the interests of the members of the Class and has retained counsel competent and experienced in class and securities litigation. 15. Common questions of law and fact exist as to all members of the Class and predominate over any questions solely affecting individual members of the Class. Among the questions of law and fact common to the Class are: a. whether the federal securities laws were violated by defendants' acts as alleged herein; b. whether statements made by defendants to the investing public during the Class Period misrepresented material facts about Sea Containers' financial results; and, c. to what extent the members of the Class have sustained damages and the proper measure of damages. 16. A class action is superior to all other available methods for the fair and efficient adjudication of this controversy since joinder of all members is impracticable. Furthermore, as the damages suffered by individual Class members may be relatively small, the expense and burden of individual litigation make it impossible for members of the Class to individually redress the wrongs done to them. There will be no difficulty in the management of this action as a class action. MISSTATEMENTS AND OMISSIONS OF MATERIAL FACTS A. Sea Containers Reported Its Financial Results During the Class Period, and Defendants Expressly Certified that the Companv's Financial Results Were Accurate and Could Be Relied Upon And That Sea Containers Had Adequate Internal Controls 17. On March 15, 2004, the first day of the Class Period, the Company reported its results for the year ending December 3 1, 2003, but failed accurately to assess the value of its assets. Accordingly, its financial statements were materially false, and were the remainder of such statements over the ensuing 12 months. On May 10,2005, the Company reported its financial results for the quarterly period ended March 3 1, 2005 in a filing with the SEC on Form 10-Q. The Company reported a net loss for the period of $6.8 million (loss of $0.26 per common share diluted) on revenue of $382 million, compared with a net loss of $16.9 million ($0.73 per common share diluted) on revenue of $373 million in the prior year.