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Ultimate Electronics, Inc. Securities Litigation 03-CV-0597-Lead

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Ultimate Electronics, Inc. Securities Litigation 03-CV-0597-Lead [ I r " Ir Tn 00 LULU 4 vL I I ir, i• 3)5 CLEf:3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 3 y_ CEP. CLK Civil Action No. 03-N-0597(PAC) In re ULTIMATE ELECTRONICS, INC. SECURITIES LITIGATION LEAD PLAINTIFF'S COMPLAINT FOR VIOLATIONS OF THE SECURITIES ACT OF 1933 INTRODUCTION 1. This is a securities class action on behalf of purchasers of Ultimate Electronics, Inc. ("Ultimate Electronics" or the "Company") common stock pursuant to a May 1, 2002 Secondary Public Offering ("Secondary Offering"). 2. On May 6, 2002, Ultimate Electronics completed the Secondary Offering of 3,162,500 million shares of stock (including the underwriters' over-allotment) pursuant to the Prospectus/Registration Statement ("Prospectus"). The offering was priced at $28.50 per share for total proceeds of approximately $85 million to the Company. 3. Lead Plaintiffbrings this action against Ultimate Electronics and certain ofits officers and directors (collectively "Defendants"), for violations ofthe Securities Act of 1933 (the "Securities Act") in connection with Ultimate Electronics' May 2002 Secondary Offering. 4. Ultimate Electronics describes itself as a leading speciality retailer of consumer electronics and home entertainment products in the Rocky Mountain, Midwest, and Southwest regions of the United States. At the time of the Secondary Offering, Ultimate Electronics operated 46 stores in Arizona, Colorado, Idaho, Iowa, Minnesota, Missouri, Nevada, New Mexico, Oklahoma, South Dakota, and Utah. At that time, stores operated under the trade name Sound Track, Audio King, or Ultimate Electronics. 5. As a consumer electronics retailer, Ultimate Electronics historically offered, sold and installed digital broadcast satellite systems (commonly referred to as satellite TV or "DBS" systems). Ultimate Electronics offered, sold and installed the DBS systems known as DIRECTV. As such, in the Prospectus, Defendants repeated their claim that Ultimate Electronics offered, sold and installed DBS systems. However, although such statements were historically accurate and complete, such unqualified statements made by Defendants in the Prospectus were untrue because they omitted material facts necessary to make the statements not misleading when made. The statements were untrue because at the time of the Secondary Offering, Ultimate Electronics could no longer sell and install DIRECTV in vast rural regions of the country. This was a material limitation which was -1- required to be disclosed because it put millions of previously potential customers off-limits. Such a disclosure was required, given the Company's emphasis on the importance of revenue generated from DBS sales and installations as being vital to the Company's business strategy and growth plans. Defendants also failed to disclose the dire consequences to Ultimate Electronics' revenue potential, net income, gross margins, and earning per share as a result of the Company's inability to access a huge market previously available. When Defendants chose to speak about Ultimate Electronics' ability to offer, sell, and install DIRECTV, they had a duty to speak the full and complete truth - yet, nowhere in the Prospectus did Defendants indicate that there existed a then-current material limitation on their ability to offer, sell and install D]RECTV in regions in which Ultimate Electronics operated, nor of the consequences of that material limitation. 6. In actuality, by the time of the Secondary Offering, it was no longer viable for Ultimate Electronics to sell and install DBS systems in a vast geographic market encompassing millions ofpotential rural customers. This was because prior to the Secondary Offering, DIRECTV changed policies and thereafter refused to pay Ultimate Electronics for the sale and installation of DIRECTV to millions of rural customers. This was a material event because Ultimate Electronics' largest source of revenue was the Television/DBS product category, representing about 38% of the Company's sales. Nevertheless, not only was this loss of the vast U.S. rural market in which to offer, sell and install DBS systems not disclosed in the Prospectus, but the potential negative financial consequences of the material event was not discussed or disclosed in the Prospectus. Failing to inform investors of DIRECTV's refusal to pay Ultimate Electronics for such sales and installations and the financial repercussions of that fact, rendered Defendants' statements regarding Ultimate Electronics' ability to sell and install DIRECTV materially incomplete and, therefore, untrue when made. 7. On August 8, 2002, Ultimate Electronics disclosed the negative financial impact resulting from its inability to offer, sell and install DIRECTV to millions of potential customers within Ultimate Electronics' markets. On that date, Defendants disclosed that the lack of DBS -2- system sales and installations in these rural markets was the primary cause for their significantly lower gross margins and earnings per share of $0.06 - seven cents short of analysts' expectations of $0.13 per share and ten cents short of $0.16 per share for Ultimate Electronics' second quarter 2002. The market for Ultimate Electronics stock reacted swiftly and negatively to the news falling over $13.16 to $9.00 on huge volume of 4,673,000 shares the following trading day. While Defendants initially blamed the DBS sales and installation drop-off on a "lack of industry promotions," on August 26, 2002, Defendants disclosed the true reason for the shortfall - Ultimate Electronics' inability to offer, sell and install DIRECTV in a vast geographical market encompassing millions of potential rural customers. 8. In addition, the Prospectus also contains untrue statements concerning Ultimate Electronics' purported "Red Carpet" installation service. In particular, Defendants highlighted Ultimate Electronics' ability to efficiently and effectively install DBS systems as one of the Company's attributes. The Prospectus is replete with representations that Ultimate Electronics provided superior customer service and that this service differentiated the Company from its competitors and gave it a competitive advantage. So important was its claim of superior customer service that the Prospectus claimed that its customers' experiences would be so positive that the service would stimulate product sales. 9. Defendants' statements in the Prospectus regarding the Company's purported superior customer service were untrue and failed to disclose material facts required to be stated in the Prospectus. In fact, prior to the May 1, 2002 Secondary Offering, Ultimate Electronics' service level had already precipitously declined. The material decline in customer service was in large part due to a botched company-wide consolidation effort. In or around October 2001, Ultimate Electronics consolidated its home (residential) delivery and installation service. Because of inexperienced installers, a lack of adequate training, and a lack of adequate supervision, customer service and customer satisfaction significantly deteriorated. This was particularly true regarding the installation of DBS systems. As a result of substandard installation services, the number of dissatisfied -3- customers and returns ofDBS systems rose exponentially rendering Defendants' positive statements regarding customer service untrue when made. 10. Public investors who purchased shares traceable to the Secondary Offering based on Defendants' representations, paying $28.50 per share for Ultimate Electronics stock, have suffered damages. JURISDICTION AND VENUE 11. The claims herein arise under §§11, 12(a)(2), and 15 of the Securities Act, 15 U.S.C. § § 77k, 771(a)(2), and 77o. Jurisdiction is proper under §22 of the Securities Act. Venue is proper in this District under §22 of the Securities Act and 28 U.S.C. §1391(b). 12. The violations of law complained of herein occurred in substantial part in this District, including the preparation and dissemination of untrue statements and statements that omitted material facts required to be disclosed in the Prospectus. Ultimate Electronics maintains its corporate headquarters and principal place ofbusiness at 321 West 84th Avenue, Suite A, Thornton, Colorado 80260 . In connection with the conduct complained of herein, Defendants, directly or indirectly, used the means and instrumentalities of interstate commerce, including the mails and interstate telephone communications, and the facilities of a national securities exchange. PARTIES 13. Lead Plaintiff, Alaska Electrical Pension Fund, purchased at least 9,500 shares of Ultimate Electronics common stock, at $28.50 per share, in or traceable to the Company's May 1, 2002 Secondary Offering. Representatives of Alaska Electrical Pension Fund signed a certification executed pursuant to the Federal Securities laws, attached as Exhibit A to the Alaska Electrical Pension Fund's Motion to be Appointed Lead Plaintiff and for Approval of Lead Plaintiffs Choice of Lead Counsel, filed on June 9, 2003. 14. Defendant Ultimate Electronics is a specialty retailer of consumer electronics and home entertainment products. The Company operates 53 stores, including 34 stores in Arizona, Idaho, Iowa, Missouri, Nevada, New Mexico, Oklahoma, South Dakota, Texas and Utah under the -4- trade name Ultimate Electronics, 11 stores in Colorado under the trade name SoundTrack, and 8 stores in Minnesota under the trade name Audio King. Ultimate Electronics' common stock traded at all relevant times in an efficient market on the
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