Southern Alaska Carpenters Pension Fund, Et Al. V. Parmalat Finanziaria
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x SOUTHERN ALASKA CARPENTERS : Civ. No. 04-CV-00030(LAK) EFC Case PENSION FUND, FONDAZIONE ITALO : MONZINO and RENATO ESPOSITO, On : ELECTRONICALLY FILED Behalf of Themselves and All Others Similarly : Situated, : FIRST AMENDED CLASS ACTION : COMPLAINT FOR VIOLATIONS OF THE Plaintiffs, : FEDERAL SECURITIES LAWS : vs. : : BONLAT FINANCING CORPORATION, : CALISTO TANZI, FAUSTO TONNA, : COLONIALE SpA, CITIGROUP, INC., : BUCONERO LLC, MORGAN STANLEY & : CO., ZINI & ASSOCIATES, P.C., GIAN : PAOLO ZINI, DEUTSCHE BANK AG, : BANK OF AMERICA CORPORATION, : DELOITTE TOUCHE TOHMATSU, : DELOITTE & TOUCHE SpA, GRANT : THORNTON INTERNATIONAL, GRANT : THORNTON LLP and GRANT THORNTON : SpA, : : Defendants. : x DEMAND FOR JURY TRIAL Copyright © 2004 by William S. Lerach. William S. Lerach will vigorously defend all rights to this writing/publication. No copyright is claimed in the text of statutes, regulations, and any excerpts from analysts’ reports quoted within this work. All rights reserved – including the right to reproduce in whole or in part in any form. Any reproduction in any form by anyone of the material contained herein without the permission of William S. Lerach is prohibited. “Quis Custodiet Custodies?” “But Who Will Guard the Guards Themselves?” INTRODUCTION 1. This is a securities fraud class action on behalf of the purchasers of the debt and equity securities of Parmalat Finanziaria, SpA and its subsidiaries (collectively, “Parmalat” or the “Company”) between January 5, 1999 and December 29, 2003, inclusive (the “Class Period”), seeking to pursue remedies under the Securities Exchange Act of 1934 (the “Exchange Act”). 2. This action arises out of what the Securities and Exchange Commission (“SEC”) has termed one of the “largest and most brazen corporate financial frauds ever perpetrated.” According to the Chairman of the SEC, “Clearly there’s been a massive fraud.” Parmalat’s insiders, together with Parmalat’s legal, accounting and financial advisors and investment and commercial banks (collectively, the “Defendants”) participated in a massive scheme and fraudulent course of business whereby Defendants falsified and overstated Parmalat’s reported revenues, assets, profits and shareholder equity by billions of dollars while concealing billions of dollars of Parmalat’s debt, for well over a decade. Defendants’ fraudulent scheme was worldwide – involving the manipulation of Parmalat’s balance sheet and income statement via the creation of bogus bank accounts, forged and falsified financial records, fictitious or inflated investment assets and sham transactions, which artificially boosted Parmalat’s reported assets and income, while concealing billions of dollars of debt at all of the companies in the Parmalat group and all the related entities Parmalat controlled. 3. This fraud was accomplished, in part, through clandestinely controlled entities, including a Cayman Islands entity called Bonlat that the defendants created, structured, financed and used to do transactions with Parmalat to loot Parmalat for the benefit of Parmalat’s controlling shareholders (the Tanzi family) while inflating its profits and hiding debt, thus violating applicable - 1 - accounting principles and the principles of “fair presentation” of financial results. Some 20 persons have already been arrested, including virtually all of Parmalat’s top insiders, its principal lawyer and accountants and several members of the Tanzi family. Parmalat’s bankers are under intensive investigation by prosecutors and regulatory authorities. One of the prosecutors putting the criminal case together in Milan has stated that there was “a pattern of false statements made by Parmalat over several years which were picked up and amplified by banks as they marketed [Parmalat’s] shares and bonds. A banker knows that something is false, and the banker helps Parmalat with operations or transactions so that the financial community believes Parmalat is a good company. Instead, Parmalat is not a good company.” 4. Defendants’ scheme was designed to and did allow Defendants to participate in and benefit from the looting of Parmalat by which the controlling shareholders of Parmalat – the Tanzi family – diverted approximately $1 billion to themselves and/or to entities controlled by them – while other participants in the scheme also pocketed hundreds of millions of dollars via professional fees, clandestine asset transfers, and fees for structuring contrived and manipulative financial transactions, as well as fees from securities issuance transactions which enabled Parmalat to illegally raise more than $7 billion from investors to keep the scheme afloat for the Defendants’ benefit and enrichment. 5. Defendants’ scheme began to unravel in late 2003. During the Class Period, Defendants had represented that Parmalat was achieving business success, had successfully expanded its business in 1999-2002 and was successfully integrating several acquired businesses into its operations, had strong internal controls that would prevent fraudulent misconduct inside the Company and was achieving strong operating profits, was controlling its debt level (in part by repurchasing some $2 billion of its outstanding debt during 2003) and thus had billions of dollars of - 2 - safe liquid assets and a balance sheet supporting billions of dollars of shareholders’ equity. These representations were false. In fact, it has come out that: x Almost 40% of Parmalat’s entire asset base, cash or liquid assets – a $3-$4 billion account purportedly held in Bank of America – did not exist; x The $625 million of Parmalat’s cash purportedly invested in a liquid investment fund in the Cayman Islands (“Epicurum”) could not be retrieved; x Parmalat had not repurchased any of its outstanding bonds, let alone $2 billion of them in 2003; x Parmalat could not pay its debts and was insolvent with only “nil” liquid assets and declared bankruptcy; x Defendants had manipulated Parmalat’s income statements and balance sheet for more than a decade by using off-shore shell companies, special purpose entities (“SPEs”), forged documents and sham transactions; x Parmalat’s actual net debt level was $16-$18 billion – eight times the previously reported levels – and billions of dollars of previously presented assets simply did not exist; x Parmalat had actually been losing €350-€450 million per year for several years; x Calisto Tanzi, Parmalat’s long-time Chairman and CEO, and all other top Parmalat officers had been ousted from the Company; x The Tanzi family had looted Parmalat of some $1 billion; and x Some 20 of Parmalat’s insiders, auditors and lawyers, including certain of the Defendants, had been arrested and taken into custody for the perpetration of this multi-billion dollar fraud. As Defendants’ fraud began to be revealed, in order to try to cover up the prior wrongdoing and scheme, certain Defendants destroyed evidence and/or ordered their subordinates to destroy evidence of their fraudulent scheme in an effort to evade liability for their participation in one of the most shocking corporate scandals ever to afflict the global public financial markets. As the revelations of Defendants’ misconduct unfolded, the price of Parmalat’s equity securities collapsed and became - 3 - worthless when trading was suspended on December 29, 2003, while the price of Parmalat’s debt securities collapsed as well, becoming essentially worthless. 6. Tanzi and Fausto Tonna (Parmalat’s long-time CFO) and other Parmalat insiders have now admitted to criminal investigators: (a) The alterations of the accounts and the shifting of money “involved all the companies of the [Parmalat] group and all the companies connected to the [Parmalat] group”; (b) Parmalat’s financial woes and manipulations had dragged on for many years – at least since 1984. “The need to cover up losses had always been felt.” Parmalat actually lost at least €350-€450 million per year from the mid-90s on; (c) Despite Parmalat’s true deteriorating financial situation and huge losses, Parmalat’s financial reports “always closed with a profit”; (d) The Bonlat subsidiary’s financial statements were “invented from top to bottom”; (e) Parmalat’s need to diminish the debts of Parmalat, making them weigh on companies like Bonlat, were satisfied with methods of little sophistication; (f) Grant Thornton “helped [Parmalat] set up Bonlat to enable ... Tanzi ... to embezzle funds” from Parmalat; (g) Grant Thornton helped “Parmalat ... invent financial details that made the financing devices and other strategies appear legitimate,” including “creating ad hoc contracts that would create overbillings and credits from operations that were completely or partly fictional”; and (h) “Grant Thornton well knew the reality [of the falsification] right from the beginning.” With Grant Thornton’s advice and help, Parmalat created and used “‘a system for - 4 - constructing false papers’ at the close of each business quarter.” They would “verify the critical points ..., and then insert the changes ... by progressive approximations until a final result was reached.” 7. While in custody, Tanzi has also admitted that he was aware of the fraudulent falsification of Parmalat’s financial statements and looting of its assets for his family’s benefit. Tonna has admitted to the massive falsification and embezzlement and stated that Parmalat’s lawyer, Gian Paolo Zini, was a “mastermind” of the scheme, while Parmalat’s accountants, Deloitte & Touche and Grant Thornton,