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Sheet Metal Workers' Local Union No. 19 Pension Fund, Et Al. V. Ernst & Young LLP, Et Al. 04-CV-01344-Class Action Compl

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Sheet Metal Workers' Local Union No. 19 Pension Fund, Et Al. V. Ernst & Young LLP, Et Al. 04-CV-01344-Class Action Compl ORIGINAL UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK V SHEET METAL WORKERS ' LOCAL UNION evil Action No. U 1344 NO. 19 PENSION FUND, AFA MANAGEMENT PARTNERS, LP, AGROCOM, INC., SERGIO DI CLASS ACTION GIACOMO, SILVANA DE SANTIS, MARIA GIOVANNA SILVESTRINI, and LE CURE JURY TRIAL DEMANDED CLINICHE MODERNE S.R.L., on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, vs. ERNST & YOUNG LLP, STEPHEN A. GAROFALO, NICHOLAS M. TANZI, GERARD BENEDETTO, JOHN KLUGE, and STUART SUBOTNICK, Defendants. X CLASS ACTION COMPLAINT FOR VIOLATION OF THE FEDERAL SECURITIES LAWS Plaintiffs, individually and on behalf of all other persons similarly situated, allege upon personal knowledge as to themselves and their own acts, and upon information and belief as to all other matters, based upon, inter alia, the investigation made by and through their attorneys, which investigation included, without limitation, review and analysis of various public statements, including documents filed with the Securities and Exchange Commission ("SEC"), news and media reports, press releases, and reports by securities analysts. Except as alleged herein, the underlying information concerning defendants' misconduct and the particulars thereof are not available to plaintiffs and the public and lie within the possession and control of defendants and other insiders. Based upon the facts already uncovered and alleged herein, plaintiffs believe that after a reasonable opportunity for discovery, substantial additional evidentiary support for the allegations set forth herein will be shown to exist. NATURE OF THE ACTION Plaintiffs bring this class action for violations of the Securities Exchange Act of 1934, 15 U.S.C. § 78 et sM. (the "Exchange Act"), against Ernst & Young LLP ("E&Y") and certain senior officers and directors of Metromedia Fiber Network, Inc. ("Metromedia," "MFN," or the "Company") named herein (collectively, the "Individual Defendants"), on behalf of a proposed class of persons (the "Class") who purchased or otherwise acquired Metromedia common stock between March 5, 2001 and April 24, 2002, inclusive (the "Class Period"), and were damaged thereby. As alleged in detail below, during the Class Period, the Individual Defendants knowingly and/or recklessly caused MFN to issue to the investing public materially false and misleading financial statements, press releases, and SEC filings that materially misstated, inter alia, Metromedia's assets, revenues, expenses and net losses in violation of the federal securities laws. Among other things, although the value of MFN's highly touted fiber optic network and goodwill recorded in connection with its acquisitions of.AboveNet Communications, Inc. ("AboveNet") and SiteSmith, Inc., the Company's internet subsidiaries, had declined substantially given, inter alia, the oversupply of fiber in the industry and the precipitous decline in the value of telecom and internet companies, including MFN, that occurred beginning in early 2000, defendants failed to write down the value of these assets to fair market value as required by Generally Accepted Accounting Principles ("GAAP"). As a result, the value of MFN' s assets was materially overstated and its expenses and net losses were materially understated throughout the Class Period. 1781501 -2- In addition, throughout the Class Period, MFN's revenue was artificially inflated by amounts derived from swap transactions with its competitors in the telecommunications industry . Pursuant to these arrangements , which became pervasive in the industry as growth slowed beginning in the late 1990s, telecom companies , including MFN, contracted to lease each other roughly equivalent amounts of "dark" or "unlit" fiber. (So-called "dark" fiber is fiber-optic cable without any of the electronic or optronic equipment necessary to use the fiber for transmission.) Although these transactions generated no actual revenue for either company, revenue was nonetheless recognized by the contracting parties in violation of GAAP, thereby creating or sustaining the illusion of continuing revenue growth when, in fact, there was none. 4. Thus, contrary to defendants repeated representations to the contrary throughout the Class Period, Metromedia' s financial statements , which were included in the Company's SEC filings, did not fairly present in all material respects the Company's financial position in accordance with GAAP. In failing to file financial statements with the SEC which conformed to the requirements of GAAP, defendants disseminated financial statements which were presumptively misleading and inaccurate. Further, on March 5 , 2001, defendant E&Y issued an unqualified audit opinion on MFN's consolidated financial statements for the year ended December 31, 2000, falsely representing, among other things, that those financial statements had been prepared in accordance with GAAP, and that its audit had been conducted in accordance with Generally Accepted Auditing Standards ("GAAS"). In fact, as alleged herein, in order to maintain its longstanding and lucrative relationship with MFN, E&Y turned a blind eye to numerous red flags evidencing that the Company's internal controls were virtually non-existent and that its financial statements were materially false and misleading and were not fairly presented in all 1781501 -3- material respects in accordance with GAAP. In particular, E&Y was aware or recklessly disregarded that the value of telecom and internet companies, including MFN, had declined precipitously during 2000 and 2001. Nevertheless, E&Y issued an unqualified audit opinion on MFN's year end 2000 financial statements, which reflected materially inflated values for MFN's network assets and the goodwill related to the AboveNet acquisition. After the Class Period, $2.4 billion in goodwill related to the AboveNet and SiteSmith acquisitions and $2.8 billion of network assets were belatedly written off by the Company. 6. Investors did not begin to learn the truth about MFN's financial condition and results until April 17, 2002 when, contrary to all its prior pronouncements summarized above and detailed herein, MFN issued a press release announcing that prior period financial statements issued during the Class Period would need to be restated . As a result of this announcement, trading in MFN's shares was suspended pending further information from the Company. 7. Then, on April 23, 2002, MFN issued a press release reporting "preliminary restatements of its previously reported results for the first three quarters of 2001 and preliminary results for the fourth quarter and year-ended December 31, 2001." According to the press release, the preliminary restatements for each of the first three quarters of 2001 "involved revenue/sales credit recognition, timing of expense recognition and non-cash lease accounting and purchase accounting issues." Further, the preliminary results reported in the press release for the fourth quarter and year ended December 31, 2001, included a write down of between $3.9 billion and $4.3 billion with respect to the value of the Company's network and goodwill assets. The release emphasized that the foregoing results were preliminary and might be subject to additional charges. On May 20, 2002, MFN filed for bankruptcy. In June 2002, in response to 1781501 -4- the Company"s announcement that it would restate results for the first three quarters of 2001, the SEC initiated an investigation of MFN. 8. On September 8, 2003, MFN emerged from bankruptcy as AboveNet, Inc. Class members' shares of MFN are now worthless. JURISDICTION AND VENUE 9. The claims asserted herein arise under and are brought pursuant to Sections 10(b) and 20(a) of the Exchange Act, 15 U.S.C. §§ 78j(b) and 78t(a), and the rules and regulations promulgated thereunder by the SEC, including Rule lOb-5, 17 C.F.R. § 240. lOb-5 10. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1337 and Section 27 of the Exchange Act, 15 U.S.C . § 78aa. 11. Venue is proper in this District pursuant to Section 27 of the Exchange Act, 15 U.S.C. § 78aa, and 28 U.S.C. § 1391(b). At all relevant times, Metromedia and E&Y maintained their principal places of business in this District and many of the acts and practices complained of herein occurred in substantial part in this District. 12. In connection with the acts alleged in this complaint, defendants, directly or indirectly, used the means and instrumentalities of interstate commerce, including, but not limited to, the mails, interstate telephone communications and the facilities of the national securities markets. THE PARTIES Plaintiffs 13. Sheet Metal Workers' Local Union No. 19 Pension Fund ("Sheet Metal Workers") purchased Metromedia common stock during the Class Period at prices that were artificially inflated by defendants' misrepresentations and omissions and suffered damages 178t501 - 5 - thereby. Attached hereto as Exhibit A is Sheet Metal Workers' certification pursuant to 15 U.S.C. § 78u-4(a)(2) detailing its transactions in MFN common stock during the Class Period. 14. AFA Management Partners, LP ("AFA Management") purchased Metromedia common stock during the Class Period at prices that were artificially inflated by defendants' misrepresentations and omissions and suffered damages thereby. Attached hereto as Exhibit B is AFA Managements' certification pursuant to 15 U.S.C. § 78u-4(a)(2) detailing its transactions in MFN common stock during the Class Period. 15. Agrocom, Inc. ("Agrocom") purchased
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