CDTS No. 1 and ATU Local 1321 Pension Plan, Et Al. V. UBS AG, Et
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Case 1:12-cv-04924-KBF Document 21 Filed 10/01/12 Page 1 of 63 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x C.D.T.S. NO.1 AND A.T.U. LOCAL 1321 Civil Action No. 1: 12-cv-04924-KBF-HBP PENSION PLAN, Individually and on Behalf of All Others Similarly Situated, CLASS ACTION Plaintiff, : CONSOLIDATED COMPLAINT FOR VIOLATIONS OF THE FEDERAL vs. SECURITIES LAWS UBS AG, OSWALD J. GRUBEL and JOHN CRYAN, Defendants. 7713031 Case 1:12-cv-04924-KBF Document 21 Filed 10/01/12 Page 2 of 63 1. Lead Plaintiffs, Westchester Teamsters Pension Fund and Teamsters Local 456 Annuity Fund (collectively "Plaintiffs"), on behalf of themselves and all other persons similarly situated, allege the following based upon personal knowledge as to themselves and their own acts, and information and belief as to all other matters, based upon, inter a/ia, the investigation conducted by and through their attorneys. NATURE OF THE ACTION 2. This is a federal securities class action brought against UBS AG ("UBS" or the "Company") and certain of its officers for violations of the Securities Exchange Act of 1934 (the "1934 Act"). This action is brought on behalf of all purchasers of UBS securities on any domestic exchange and/or in any domestic transaction, during the period November 17, 2009 through September 15, 2011 (the "Class Period"), who were damaged as a result of defendants' violations of the federal securities laws. This action seeks to pursue remedies for violations of the anti-fraud provisions of the federal securities laws. 3. Defendants are UBS, Oswald J. Grtibel ("Grübel"), John Cryan ("Cryan"), Philip J. Lofts ("Lofts") and Carsten Kengeter ("Kengeter"). Each of the individual defendants was a senior executive of UBS during the Class Period, as more fully described in ¶J12-16. 4. This action concerns defendants' misleading statements and material omissions regarding UBS's purportedly robust risk management systems and internal controls. Throughout the Class Period, defendants assured investors that UB S's risk management systems and disclosure controls and procedures were implemented and operating effectively. Defendants further assured investors that they were personally involved in and focused on monitoring risk at UBS, and specifically within the Company's Investment Bank division. As defendant and former UBS CEO Oswald J. Grubel explained when questioned about UBS's risk management: "if ever anything goes -1- 77 1303_I Case 1:12-cv-04924-KBF Document 21 Filed 10/01/12 Page 3 of 63 wrong, at least you will not hear any of us say, we didn't know. ; we do know. We do know what we are doing. We do know what kind of risks we have." Unfortunately for investors, the picture defendants portrayed - one of a conservative financial institution supported by rigorous and effective internal controls and risk management systems - was not accurate. Rather, defendants promoted a culture of risky behavior in the interest of driving up investment banking revenues up and increasing UBS's profits, while knowingly or recklessly disregarding that the Company's internal controls and risk management systems were wholly inadequate and had been designed and implemented to allow risky and. unhedged proprietary trading to be hidden or otherwise go unchecked. 5. The problems with UBS's deficient internal controls and risk management systems became readily apparent to investors on September 15, 2011, when the Company disclosed that a "rogue" trader in the Investment Bank division had engaged in unhedged proprietary trades with fictitious counterparties that exposed the Company to losses that ultimately exceeded $2.3 billion. As a result of the disclosure of UBS's risk management failures and poor internal controls, the Company's stock price dropped more than 10% and UBS's market capitalization plummeted over $4.7 billion on September 15, 2011 alone. 6. In the weeks following the September 15, 2011 disclosure, defendant Grübel accepted responsibility for the improper trading and resigned while UBS publicly acknowledged that the risk controls defendants had touted during the Class Period "were not operating effectively." Grübel's replacement as CEO, Sergio Ermotti, publicly acknowledged that the disclosed improper trading "is evidence of a failure to exercise appropriate controls," and UBS conceded that defendants' prior statements regarding risk and disclosure controls could not be relied upon. The Company and former officers and employees have subsequently identified specific controls that, while defendants -2- 771303_i Case 1:12-cv-04924-KBF Document 21 Filed 10/01/12 Page 4 of 63 pushed for increased profits from the Investment Bank, were not implemented or enforced, and allowed unhedged proprietary trading to occur. As a result, British and Swiss regulators undertook an investigation of UBS and it has been announced that they intend to bring enforcement proceedings against the Company for the gaps in oversight that permitted the improper trading that took place during the Class Period. JURISDICTION AND VENUE 7. The claims asserted herein arise under §§ 10(b) and 20(a) of the 1934 Act, 15 U.S.C. §78j(b) and 78t-1, and the rules and regulations promulgated thereunder by the SEC, including SEC Rule lOb-5, 17 C.F.R. §240.1Ob-5. 8. Jurisdiction is conferred by §27 of the 1934 Act and 28 U.S.C. §133 1. 9. Venue is proper in this District pursuant to §27 of the 1934 Act and 28 U.S.C. § 1391. UBS conducts business in this District and its stock trades on the New York Stock Exchange ("NYSE") in this District. THE PARTIES Lead Plaintiffs 10. By Court Order dated August 30, 2012, Westchester Teamsters Pension Fund ("Westchester") and Teamsters Local 456 Annuity Fund ("Local 456") were appointed Lead Plaintiffs in this action. Westchester and Local 456 are multiemployer benefits plans managed and administered in Elmsford, New York. As set forth in Westchester's and Local 456's Certifications, filed in connection with their motion for appointment as lead plaintiff, Plaintiffs purchased UBS securities during the Class Period and, as a result of defendants' conduct detailed herein, suffered damages in connection with those purchases. -3- 7713031 Case 1:12-cv-04924-KBF Document 21 Filed 10/01/12 Page 5 of 63 Defendants 11. Defendant UBS is a global financial services company headquartered in Zurich, Switzerland. The Company provides an array of fixed income, equities, foreign exchange and investment banking services to customers in the United States and around the world. In addition, UBS provides wealth management services ranging from asset management to tax planning to clients around the globe. UBS has branch offices and subsidiaries throughout the United States, including its United States corporate headquarters at 1285 Avenue of the Americas, New York, NY 10019. At all relevant times, UBS's common stock was listed and traded under the symbol "UBS" on the NYSE and on the SIX Swiss Exchange, both of which are efficient markets. 12. Defendant Grübel was CEO ofUBS from February 26, 2009 until his resignation on September 24, 2011, immediately following the end of the Class Period. Grübel was a member of the Company's Group Executive Board ("GEB") throughout the Class Period. (a) As part of his duties as CEO, Grübel was responsible for monitoring and maintaining UBS's internal controls and risk management systems and had risk authority over transactions, positions and exposures, allocating portfolio limits within the Company's business divisions; (b) As CEO and in furtherance of his responsibilities over UBS's risk management and internal controls, Grubel asserted that he held weekly meetings with senior bankers to discuss risk management and monitor the Company's financial risks. During the Class Period, Grübel also met "at least once in a month" with "the whole management" and "the executive board" and reviewed "all the risks we have in the bank." Further, Grübel reviewed the risks and risk management controls at UBS's Investment Bank "nearly twice a week," and held "weekly risk calls with the leaders in [the] investment bank [and] the Chief Risk Officer and where we go through our -4- 771303_I Case 1:12-cv-04924-KBF Document 21 Filed 10/01/12 Page 6 of 63 risk position in the old bank," explaining that "if ever anything goes wrong, at least you will not hear any of us say, we didn't know... ; we do know. We do know what we are doing. We do know what kind of risks we have." Grübel assured investors during the Class Period, "I am kept informed"; (c) During the Class Period, Grübel participated in the issuance of misleading statements and material omissions and failed to disclose that UBS ' s risk management systems and disclosure controls were inadequate and ineffective. In addition to issuing public statements throughout the Class Period, GrUbel repeatedly had the opportunity to, but did not, correct any of the misstatements and omissions alleged herein; and (d) In conjunction with UBS's public financial statements filed with the SEC during the Class Period, GrUbel issued a certification pursuant to §302 of the Sarbanes-Oxley Act, attesting that he reviewed the contents of the filing to confirm the "report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading." To assure that the certification was not simply a hollow gesture, Grtibel was required to and did further confirm that he, along with UBS's CFO, defendant Cryan, was responsible for establishing and maintaining UBS's disclosure controls and procedures, had designed such controls to assure that material information relating to the Company's business was promptly made known to UBS's senior executives, and had routinely evaluated the effectiveness of the Company's policies to assure that he and other executives were made aware of material information.