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Eugene L. Hammer, Et Al. V. Bigband Networks, Inc., Et Al. 07-5825

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Eugene L. Hammer, Et Al. V. Bigband Networks, Inc., Et Al. 07-5825 G> ,( ; 1 Laurence D. King (SBN 206423) p J lking_(a),kaplanfox.com 2 KAPLAN FOX & KILSHEIMER LLP 350 Sansome Street, Suite 400 c ^ ,i^ 3 San Francisco , CA 94104 rte Telephone : 415-772-4700 ^l^F FJ^f^ 4 Facsimile : 415-772-4707 5 Local Counsel for Plaintiff 6 Karen H. Riebel [email protected] 7 Elizabeth R. Odette [email protected] 8 LOCKRIDGE GRINDAL NAUEN, P.L.L.P 9 100 Washington Avenue, Suite 2200 Minneapolis, MN 55402 10 Telephone.: 612-339-6900 a Facsimile: 612-339-0981 11 11 Additional Attorneys on signature page 12 13 UNITED STATES DISTRICT COURT *4,P ^ 14 NORTHERN DISTRICT OF CALIFORNIA 15 EUGENE L. HAMMER, on behalf of himself 16 and all others similarly situated, )^ a 17 CL SS AC `IO Plaintiff, N 18 CLASS ACTION COMPLAINT FOR vs. VIOLATIONS OF THE FEDERAL 19 SECURITIES LAWS BIGBAND NETWORKS, INC., AMIR 20 BASSAN-ESKENAZI, FREDERICK A. 21 BALL, RAN OZ, LLOYD CARNEY, DEAN GILBERT, KEN GOLDMAN, GAL 22 ISRAELY, BRUCE SACHS, ROBERT JURY TRIAL DEMANDED SACHS, and GEOFFREY YANG, 23 Defendants. 24 25 26 27 28 CLASS ACTION COMPLAINT 1 Plaintiff, Eugene L. Hammer ("Plaintiff'), individually and on behalf of all other persons 2 similarly situated, alleges the following based upon personal knowledge as to Plaintiff and Plaintiffs' 3 own acts, and upon information and belief as to all other matters, based on, inter alia, the 4 investigation conducted by and through Plaintiff's counsel, which included, among other things: a 5 review of the Defendants' public documents, conference calls and announcements made by 6 Defendants; United States Securities and Exchange Commission (the "SEC") filings by BigBand 7 Networks Inc. ("BigBand" or the "Company") and its related entities; wire and press releases 8 published by and regarding BigBand; securities analysts' reports and advisories about the Company; 9 and information readily obtainable on the Internet. 10 NATURE OF THE ACTIONS 11 1. This is a federal class action brought by Plaintiff on behalf of all purchasers of Bi 12 common stock between March 14, 2007, and September 27, 2007, (the "Class Period") against BigBE 13 and certain of its officers and directors ("Defendants"). Purchasers include those who purcha: 14 BigBand common stock pursuant or traceable to the Company's amended registration statement gig 15 effect on March 14, 2007 ("Registration Statement") through a Form S-1 SEC filing, and the prospec 16 dated March 14, 2007, (individually and collectively with the Registration Statement, the "Prospectu 17 issued in connection with the Company's initial public offering on or about March 14, 2007, ( 18 "Offering" or the "IPO"). Plaintiff seeks to pursue remedies under the Securities Act of 1933 ( 19 "Securities Act") and the Securities Exchange Act of 1934 (the "Exchange Act"). 20 2. BigBand develops, markets, and sells broadband multimedia infrastructure for 21 voice and data enabling cable operators and telephone companies to offer voice, video and data servi 22 across coaxial fiber and copper networks . BigBand is incorporated in Delaware and headquartered 23 Redwood City, California. The Company has research and development facilities in Westborou€ 24 Massachusetts, Tel Aviv, Israel and Redwood City, California. 25 3. On March 14, 2007, BigBand and Company insiders completed an IPO, selling 7 26 million shares of BigBand common stock from the Company and 4.8 million shares of 27 28 1 CLASS ACTION COMPLAINT 1I common stock from selling stockholders, for a total of 12.3 million shares at $13 per share for 21 proceeds totaling $159.9 million. 3 4. During the Class Period, however, Defendants made false and misleading 4 regarding the Company's business prospects, financial results and forward guidance. Defendants faile 5 to disclose that the Company had achieved revenue growth and profitability at the end of 2006 only as 6 result of non-recurring orders from Verizon Communications Inc. ("Verizon"). As a result, BigBar 7 would not achieve further revenue growth from Verizon until Verizon worked off the inventor 8 purchased in late 2006 and early 2007. Rather, Defendants stated that BigBand would achiei 9 aggressive revenue and profit projections, misrepresenting and omitting the truth with regard I 10 Verizon's need to deplete its excess inventory. BigBand also failed to disclose that delays wei 11 occurring in the customization of certain customer specific products involving switched digital vide 12 ("SDV") technology. The viability of the Company's cable modem termination system ("CMTS") w, 13 also in doubt. Not only were these problems contributing to its failure to achieve revenue and pros 14 projections, they caused the Company to lack an objectively reasonable basis to make busine 15 projections and forward guidance during the Class Period. 16 5. After the market closed on September 27, 2007, the Company, through a press 17 revealed the truth of its product development problems. BigBand announced that it was revising i 18 revenue outlook for the third quarter ending September 30, 2007. The Company revealed that it no 19 expected to report revenue for the third quarter in the range of $35 million to $39 million, as much 20 $23 million below the Company's previous guidance of $54 million to $58 million. BigBand attribute 21 the dramatic decline in expectations to one customer, not named but assumed to be Verizon, havir 22 excessive inventory of BigBand's products and with no expectation to increase its purchases in tl 23 immediate future. The press release also revealed that BigBand was having difficulty obtainir 24 customer acceptance of other products necessary for revenue recognition. BigBand stated that all the; 25 issues were expected to persist for a number of quarters. 26 6. On this news, shares ofthe Company's stock fell nearly $2.67 per share, or 29.4 27 to close, on September 28, 2007, at $6.40 per share. 2 28 CLASS ACTION COMPLAINT 1 JURISDICATION AND VENUE 2 7. The claims asserted herein arise under, and pursuant to Sections 11 and 15 of 3 Securities Act [15 U.S.C. §§ 77k and 77o] and Sections 10(b) and 20(a) ofthe Exchange Act, [15 U.S. 4 §§ 78j(b) and 78t(a)], and Rule IOb-5 promulgated thereunder [17 C.F.R. § 240.1Ob-5]. 5 8. This Court has jurisdiction over the subject matter ofthis action pursuant to Section 22 6 the Securities Act [15 U.S.C. § 77v], Section 27 ofthe Exchange Act [15 U. S.C. § 78aa] and 28 U.S.C 7 1331. 8 9. Venue is proper in this Judicial District pursuant to Section 27 of the Exchange Act, [1 9 U.S.C. § 78aa] and 28 U.S.C. § 1391(b). BigBand maintains its corporate offices in this District ar 10 many of the acts and transactions alleged herein occurred in substantial part in this Judicial District. 11 10. In connection with the acts, conduct and other wrongs alleged in this compla 12 Defendants, direct or indirectly, used the means and instrumentalities of interstate commerce, includ 13 but not limited to, the United States mails, interstate telephone communications and the facilities of 14 national securities exchange. 15 THE PARTIES 16 11. Plaintiff Eugene L. Hammer, a resident of Savannah, Georgia, purchased BigB 17 publicly traded securities as described in the attached Certification during the Class Period at 18 inflated prices and was damaged thereby. 19 12. Defendant BigBand Networks Inc., founded in 1998, provides broadband 20 infrastructure for video, voice and data. BigBand is a Delaware corporation, with its principal place 21 business at 475 Broadway Street, Redwood City, California 94063. 22 13. Defendant Amir Bassan-Eskenazi ("Bassan-Eskenazi") was, at all relevant times, 23 Company's Chief Executive Officer, President, Co-founder and Chairman of the Board of Directors 24 Defendant Bassan-Eskenazi signed the Company's Registration Statement, assisted in the preparation o 25 the false financial statements, and repeated the contents therein to the market. Defendant Bassan 26 Eskenazi sold 400,000 shares in the BigBand IPO for proceeds of $4.83 million. 27 3 28 CLASS ACTION COMPLAINT 1 14. Defendant Frederick A. Ball ("Ball") was, at all relevant times, the Senior Vice Presi 2 Chief Financial Officer, and Principal Accounting Officer of BigBand. Defendant Ball signed 3 authorized the signing of the Company's false and misleading Registration Statement, assisted in 4 preparation of the false financial statements and repeated the contents therein to the market. 5 15. Defendant Ran Oz ("Oz") was, at all relevant times , BigBand's Chief T 6 Officer, Co-founder and a Director ofthe Company. Defendant Oz signed the Company's 7 Statement via a power of attorney granted to Company Vice President and General Counsel, Rol 8 Horton. Defendant Oz serves as a Director on behalf of Oz Holdings, Inc. Defendant Oz and/or 9 Holdings, Inc. sold 400,000 shares in the IPO for proceeds of $4.83 million. 10 16. Defendant Lloyd Carney ("Carney") was, at all relevant times, a Director of 11 Company. Defendant Carney signed the Company's Registration Statement via a power of attc 12 granted to Company Vice President and General Counsel, Robert Horton. Defendant Carney 13 20,000 shares in the IPO for proceeds of $260,000. 14 17. Defendant Dean Gilbert ("Gilbert") was, at all relevant times, a Director ofthe Company 15 Defendant Gilbert signed the Company's Registration Statement via a power of attorney granted ti 16 Company Vice President and General Counsel, Robert Horton. Defendant Gilbert serves on BigBand' 17 Board as the representative of Sandalwood Investments II, L.P. Defendant Gilbert and/or Sandalwooi 18 Investments sold 20,109 shares in the BigBand IPO for proceeds of $243,117.
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