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OM Group Inc. Securities Litigation 02-CV-02163-Consolidated

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OM Group Inc. Securities Litigation 02-CV-02163-Consolidated IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION ____________________________________ ) IN RE OM GROUP, INC. ) LEAD DOCKET NO. 1:02 CV 2163 SECURITIES LITIGATION ) ) JUDGE NUGENT ____________________________________) ) MAGISTRATE JUDGE VECCHIARELLI THIS DOCUMENT RELATES TO: ) ) CONSOLIDATED AMENDED ALL ACTIONS ) CLASS ACTION COMPLAINT ____________________________________) Lead Plaintiff, as defined below, on behalf of itself and all others similarly situated, by its attorneys, alleges the following upon knowledge, with respect to its own acts, and upon other facts obtained as a result of its counsel’s investigation, which included, among other things, a review of the relevant filings made by OM Group, Inc. (“OM Group” or the “Company”) with the Securities and Exchange Commission (“SEC”), press releases, news and analysts reports, and interviews with former employees of OM Group. I. NATURE OF THE ACTION 1. Lead Plaintiff, the Policemen and Firemen Retirement System of the City of Detroit (“Detroit P&F”), brings this action as a class action on behalf of itself and all other persons or entities other than Defendants and their affiliates who purchased the common stock of OM Group during the period commencing February 5, 2002 through and including October 30, 2002 (the “Class Period,” as defined more fully below). 2. Defendants perpetrated a substantial fraud by failing to write down the reported value of OM Group’s cobalt inventory to reflect the sustained and substantial decline in the market price of that inventory by no later than December 31, 2001, and continuing through the first two quarters of 2002. Under Generally Accepted Accounting Principles (“GAAP”), inventory must be reported either at the actual cost to purchase it or at the current market value of the item, whichever is lower. This GAAP canon – which has been in effect since 1949 and applies to every company that holds any product for sale – is ironclad; there are no exceptions. 3. Defendants violated this fundamental, long-standing and widely applied GAAP precept by reporting the value of OM Group’s cobalt inventory at its historical cost – $11.80 per pound on average – during the Class Period even though the published market prices of cobalt at December 31, 2001 and at the end of each of the first two quarters of 2002 were $6.63, or 44% lower; $6.40, or 46% lower; and $7.35, or 38% lower, respectively, per pound than the $11.80 reported by the Company. In fact, the market price for cobalt had not been as high as $11.80 per pound since the previous April and, given the collapse or near collapse of several industries, such as electronics and aerospace, that consume much of the global production of value-added cobalt-based products, the outlook for the cobalt market was bleak. 2 Nevertheless, defendants knowingly failed to write-down the carrying value of OM Group’s cobalt inventory, which caused the financial statements and financial information that OM Group publicly disseminated throughout the Class Period to be materially misstated. By violating this fundamental rule each time that defendants issued OM Group’s financial statements, defendants overstated the reported value of OM Group’s inventory and the Company’s operating profit by at least $108 million. 4. Defendants had a strong motive not to write-down OM Group’s cobalt inventory as required by GAAP. James P. Mooney, the Company’s CEO and largest individual shareholder, had secretly pledged 100% of his OM Group holdings to secure a margin account he had opened at Merrill Lynch & Co. in order to leverage the value of those holdings for disposable cash. Any substantial decrease in the price of OM Group stock necessarily would have required Mooney to sell those pledged shares to cover his margin loans. Mooney had the incentive, therefore, to ensure that OM Group continued to report positive financial results in line with those expected from Wall Street analysts. Had he directed the write- down of cobalt inventory at any point during the Class Period, the price of OM Group’s shares would have dropped precipitously, as it ultimately did on October 29, 2002, when the need for the write-down was finally disclosed, and caused Mooney’s financial wealth to be significantly diminished. 5. In addition, at the time the Company reported its financial results for the year ended December 31, 2001, the Company was dangerously close – within .1% – to violating the minimum debt-to- capital ratio permitted under OM Group’s credit facilities. Had Defendants written down OM Group’s overvalued cobalt inventory, as they were required to do under GAAP, at December 31, 2001, the Company would have violated its debt-to-capital ratio covenant, with at least the following several severe consequences: the lenders could have exercised their right to cut off the Company’s credit, which would 3 have required OM Group to immediately obtain alternative funding; the Company’s credit rating would have been cut, making further borrowing, if available at all, more expensive; the Company would not have been able to complete the secondary stock offering it closed in January 2001, all of the funds of which, $223.9 million, were used to reduce the debt so that OM Group was not in imminent danger of violating the debt-to-capital covenant in 2002. Any of these consequences would have negatively impacted the Company and its stock price and, unavoidably, Mooney’s continued ownership of the stock he pledged to secure his margin loan. 6. When, on October 29, 2002, OM Group ultimately disclosed that it would take a $108 million charge in the quarter ended September 30, 2002 for the necessary write-down of its cobalt inventory, investors suffered the consequences: OM Group’s common stock dropped 71% on that very day, from $30.90 to $8.95 per share, on massive trading volume of 23 million shares. Then, on October 31, 2002, the Company disclosed to investors for the first time that Mooney had pledged all of his OM Group shares to secure a margin loan from Merrill Lynch and that, because the market price of the Company’s shares had declined on October 29, 2002 as a result of the disclosure of the $108 million write-down, Merrill Lynch had compelled Mooney to liquidate his entire stock position. II. JURISDICTION AND VENUE 7. This Court has jurisdiction over the subject matter of this action under Section 27 of the Securities Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C. § 78aa. The claims alleged herein arise under Sections 10(b) and 20(a) of the Exchange Act, 15 U.S.C. §§ 78j(b) and 78t(a), and the rules and regulations the SEC promulgated thereunder, including Rule 10b-5, 17 C.F.R. 240.10b-5. 4 8. Venue is proper in this District pursuant to Section 27 of the Exchange Act, and 28 U.S.C. § 1391(c). Many of the acts and transactions giving rise to the violations of law complained of herein, including the preparation and dissemination to the public of materially false and misleading press releases and filings with the SEC, occurred in this District. In addition, at all times relevant hereto, defendant OM Group maintained its principal executive offices in this District, at Tower City, 50 Public Square, Suite 3500, Cleveland, Ohio 44113-2204. 9. In connection with the wrongful acts and conduct alleged herein, defendants, directly and indirectly, used the means and instrumentalities of interstate commerce, including the United States mail and the facilities of a national securities market. III. THE PARTIES A. Plaintiffs 10. Lead Plaintiff, Detroit P&F, is a public pension system, located in Detroit, Michigan, organized for the benefit of current and retired policemen and firemen of the City of Detroit. Detroit P&F has over $3 billion in assets under investment. As set forth in the certification attached hereto as Exhibit A, Detroit P&F purchased shares of OM Group common stock during the Class Period (as defined below in ¶ 17), and suffered damages as a result of the violations of law alleged herein. On March 10, 2003, the Court appointed Detroit P&F Lead Plaintiff, pursuant to Section 21D of the Exchange Act, 15 U.S.C. § 78u-4. 11. The following additional plaintiffs purchased OM Group shares on the open market and suffered damages as a result of defendants’ violations of the federal securities laws: Pinkal Sheth, Henry 5 Rischitelli, Stephen L. Miller, Vitaly Tokar, Salomon Weiss, Terry L. Overbey, Paul Draznin, Brian Fuller, William Crayden, Ken Wessler and Patrick Martin. B. Defendants 12. OM Group, Inc.: Defendant OM Group became a public company in 1993. During the Class Period, its shares traded on the New York Stock Exchange under the symbol “OMG.” The Company describes itself as a leading vertically integrated international producer and marketer of value- added, metal-based specialty chemicals. The Company, through three operating divisions – Base Metals Chemistry, Precious Metals Chemistry and Metal Management – supplies more than 625 different product offerings to more than 30 different industries. Self-described as “the global cobalt leader for more than 50 years,” cobalt is OM Group’s legacy business. The Company purports to control 23% of global cobalt capacity, and claims to be the world’s largest producer and refiner of cobalt (included in its Base Metals Chemistry segment). Cobalt sales account for an estimated 30-35% of OM Group’s consolidated earnings. 13. James P. Mooney (“Mooney”): Since 1991, and at all times relevant hereto, defendant James P. Mooney has been Chairman and Chief Executive Officer of OM Group. He was a founding member of the Company’s Board of Directors.
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