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John Gebhardt, Et Al. V. Conagra Foods, Inc., Et Al. 01-CV-00427

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John Gebhardt, Et Al. V. Conagra Foods, Inc., Et Al. 01-CV-00427 F1L^u (^ U.S. DISTRICT COURT UIS ' iCT OF hESRASKA G2 .);{N I I Fi4 1:33 GARY D. McFA AND CLERK UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA JOHN GEBHARDT, Individually And On CASE NO..O I CV427 Behalf Of All Others Similarly Situated, Plaintiff, AMENDED CLASS ACTION vs. COMPLAINT FOR VIOLATIONS 01: FEDERAL SECURITIES LAWS CONAGRA FOODS INC., BRUCE C. ROHDE, JAMES P. O'DONNELL, KENNETH W. DIFONZO, and JAY D. BOLDING, JURY TRIAL DEMANDED Defendants. Plaintiffs Jemmco Investment Management LLC and Plumbers and Pipefitters National Pension Fund, who were appointed as Lead Plaintiffs by Order dated November 13, 2001, have alleged the following based upon the investigation of plaintiffs' counsel , which included a review of United States Securities and Exchange Commission ("SEC") filings by ConAgra Foods Inc., ("ConAgra" or the "Company"), as well as regulatory filings and reports, securities analysts reports and advisories about the Company, press releases and other public statements issued by the Company, and media reports about the Company. The investigation of plaintiffs' counsel also included interviewing numerous individuals - including former employees of defendant ConAgra and/or subsidiaries thereofwho worked at the Company (and its subsidiaries) during the Class Period (defined herein) - who are knowledgeable about ConAgra's business, operations, accounting and conaL"I { I) business practices, and/or about the industry and markets in which ConAgra operated during the Class Period. NATURE OF THE ACTION 1. This is a federal class action on behalfofpurchasers of the common stock ofConAgra on the open market between August 28, 1998 and May 23, 2001, inclusive (the "Class Period"), seeking to pursue remedies under the Securities Exchange Act of 1934 (the "Exchange Act"). The Class is more specifically defined below. 2. Defendant ConAgra has publicly admitted that, during the Class Period, the Company disseminated numerous false financial statements which overstated corporate profits for fiscal years 1998, 1999 and 2000 by more than a combined $120 million. The false financial statements included: (i) improperly recorded and fictitious sales; (ii) rebate payments which were improperly recognized as revenue; and (iii) grossly understated bad debt reserves. ConAgra's fiscal 1998, 1999 and 2000 false financial statements were ultimately restated in May 2001. 3. After the restatement, defendant Bruce Rohde ("Rohde"), ConAgra's Chairman and Chief Executive, publicly and misleadingly attempted to divert blame for ConAgra' s manipulated financials away from the Company and the Individual Defendants (defined herein) and onto others, due to the fraud investigations being conducted by the SEC and the Company' s current and former shareholders. According to defendant Rohde, the accounting irregularities - which circumvented generally accepted accounting principles ("GAAP") and violated ConAgra' s corporate policy - would no longer be tolerated. 4. In particular, ConAgra and the Individual Defendants named herein have attempted to convey the false impression that the Company's major financial problems merely resulted from the actions of a few rogue employees at ConAgra's United Agri Products ("UAP") subsidiary c al -2- manning the shop several thousands of miles away from ConAgra's executive offices in Omaha, Nebraska. In fact, according to several former employees who held finance, accounting and vice president and other positions at UAP divisions during the Class Period, the accounting improprieties at UAP and other subsidiaries during at least fiscal years 1998, 1999 and 2000 were known to and even directed by ConAgra senior executives in Omaha (including, but not limited to, the individual defendants named herein during the Class Period). 5. Not only did these defendants have actual knowledge ofthe accounting fraud and the falsity of the reported financial statements, but they also had a powerful motive to conceal the truth. In August 2000, ConAgra was able to consummate a $2.9 billion stock and cash acquisition of International Home Foods, Inc. ("IHF") and used 40 million shares of inflated ConAgra stock to reduce the amount of shares needed for the exchange. Only after the IHF merger was effectuated, did ConAgra purport to investigate and eventually disclose previously known accounting improprieties. JURISDICTION AND VENUE 6. The claims asserted herein arise under and pursuant to Sections 10(b) and 20(a) of the Exchange Act [15 U.S.C. §§ 78j(b) and 781(a)] and Rule lOb-5 promulgated thereunder by the Securities and Exchange Commission [17 C.F.R. § 240-10b-5). 7. This Court hasjurisdiction 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]. 8. Venue is proper in this District pursuant to Section 27 of the Exchange Act, and 28 U.S.C. § 1391(b). Many of the acts charged herein, including the preparation and dissemination of materially false and misleading information, occurred in substantial part in this District. cometal - 3. Additionally, defendants maintain their chiefexecutive offices and principal place ofbusiness within this District. 9. 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. PARTIES 10. By Order of the Court dated November 13, 2001, Jemmco Investment Management LLC and Plumbers and Pipefitters National Pension Fund were appointed as Lead Plaintiffs. As set forth in the certifications previously filed with the Court in connection with their motion for appointment as Lead Plaintiffs (cenifica tions incorporated by reference herein), each of the Lead Plaintiffs purchased the common stock ofConAgra during the Class Period and have been damaged thereby. 11. Defendant ConAgra is a Delaware corporation with its principal executive offices located at One ConAgra Drive, Omaha, Nebraska 68102. ConAgra is a foodservice supplier to restaurants, institutions, and concessionaires, and also sells food products through retail channels. 12. The individual defendants identified below (the "Individual Defendants"), served at all times material to the claims set forth herein, as senior officers and/or directors of ConAgra in the positions set forth opposite their names: Conagral -4- Name Position Bruce C. Rohde President since August 1996, Chief Executive Officer since September 25, 1997, Chairman of the Board of Directors since September 24, 1998, and Executive Committee Member in 1998, 1999, 2000 (Chairman of the Executive Committee) and 2001. James P. O'Donnell Executive Vice President, Chief Financial Officer and Corporate Secretary. Kenneth W. DiFonzo Senior Vice President. Jay D. Bolding Vice President and Controller. 13. In addition to the allegations of actual knowledge set forth herein, because of the Individual Defendants' positions with the Company, they had access to the adverse undisclosed information about its business, operations, products, operational trends, financial statements, markets and present and future business prospects via access to internal corporate documents (including the Company's operating plans, budgets and forecasts and reports of actual operations compared thereto), conversations and communications with other corporate officers and employees, attendance at management and Board of Directors meetings and committees thereof, including "Monday Morning Meetings," and via reports and other information provided to them in connection therewith. 14_ It is appropriate to treat the Individual Defendants as a group for pleading purposes and to presume that the false, misleading and incomplete information conveyed in the Company's public filings, press releases and other publications as alleged herein are the collective actions of the narrowly defined group of defendants identified above. Each of the above-listed officers of ConAgra, by virtue of their high- level positions with the Company, directly participated in the management of the Company, was directly involved in the day-to-day operations of the Company at the highest levels and was privy to confidential proprietary information concerning the Company cw,aKra I - 5 - and its business, operations, products, growth, financial statements, and financial condition, as alleged herein. The Individual Defendants were involved in drafting, producing, reviewing andior disseminating the false and misleading statements and information alleged herein, were aware or recklessly disregarded, that the false and misleading statements were being issued regarding the Company, and approved or ratified these statements, in violation of the federal securities laws. 15. As officers and controlling persons ofa publicly-held company whose common stock was, and is, registered with the SEC pursuant to the Exchange Act, traded on the New York Stock Exchange (the NYSE"), and governed by the provisions of the federal securities laws, the Individual Defendants each had a duty to disseminate promptly, accurate and truthful information with respect to the Company's financial condition and performance, growth, operations, financial statements, business, products, markets, management, earnings and present and future business prospects, and to correct any previously-issued statements that had become materially misleading or untrue, so that the market price of the
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