Robert Ludlow, Et Al. V. BP, PLC, Et Al. 10-CV-00818-Class Action
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Case 6:10-cv-00818-RTH-CMH Document 1 Filed 05/21/10 Page 1 of 64 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE-OPELOUSAS DIVISION ROBERT LUDLOW, * CIVIL ACTION NO. individually and on behalf of all others similarly situated VERSUS * JUDGE BP, PLC; BP AMERICA, INC.; ANTHONY HAYWARD; * MAG. JUDGE ANDY INGLIS; CARL-HENRIC SVANBERG; H. LAMAR MCKAY; WILLIAM CASTELL; PAUL ANDERSON; ANTONY BURGMANS; CYNTHIA CARROLL; and ERROLL B. DAVIS, JR. CLASS ACTION COMPLAINT FOR VIOLATIONS OF FEDERAL SECURITIES LAWS JURY TRIAL DEMANDED Case 6:10-cv-00818-RTH-CMH Document 1 Filed 05/21/10 Page 2 of 64 TABLE OF CONTENTS Page I. INTRODUCTION, I If. THE PARTIES. 10 A. Plaintiff 10 B. Defendants, 11 1. Corporate Defendant. 11 2. Individual. Defendants. 12 C. Unnamed Participants. 19 Ill. JURISDICTION AND VENUE. 19 A. Jurisdiction and Venue 19 B. Cause and Effect in the United States 21 IV. CLASS ACTION ALLEGATIONS 22 V. FACTUAL ALLEGATIONS 25 A. BP Responds to Environmental Disasters by Promising Change 25 B. 2005-2008: BP Represents That Past Mistakes Have Been Corrected. 27 L 2005: Texas City Disaster 27 a. Background of the Texas City Disaster. 27 Case 6:10-cv-00818-RTH-CMH Document 1 Filed 05/21/10 Page 3 of 64 b. The US Chemical Safety and Hazard Investigation Board Issues a Report on the Texas City Disaster 28 C. BP Issues Incident Investigation Report 34 d. BP Makes False Statements and Omits Material Facts after the Texas City Disaster Regarding Safety Improvements 35 e. Costs and Consequences to BP of the Texas City Disaster 44 2. 2006: Oil. Leakage in Prudhoe Bay, Alaska 45 3. BP's Annual Filings on Form 20-F Tout Safety Measures Taken in Response to Past Incidents 46 4. BP's Other Safety Lapses. 52 C. BP Abuses Its Relationship With MMS 53 D. The Misrepresentations and Omissions During the Class Period. 57 1. 2008 Form 20-F Annual Report 57 2. March 10, 2009 Initial Exploration Plan 64 3. November 19, 2009: Statements to the Senate Energy and Natural Resources Committee 64 4. 2009 Annual Review. 71 5. Strategy Presentation. 75 6. 2009 Form 20-F Annual Report. 82 7. Code of Conduct 88 ii Case 6:10-cv-00818-RTH-CMH Document 1 Filed 05/21/10 Page 4 of 64 E. Defendants Concealed repeated Warnings Associated With Its Drilling Operations 90 1 The Deepwater Horizon Operations 90 '?. Earlier Incidents Provided Warnings of Identical Risks 98 F. The Explosion and Sinking of the Deepwater Horizon .......... 100 G. BP ADR Prices Plunge III H. Scienter Allegations III VI. FRAUD-ON-THE MARKET DOCTRINE 116 VII. INAPPLICABILITY OF THE STATUTORY SAFE HARBOR 117 VIII. CLAIMS FOR RELIEF 119 COUNT 1. VIOLATION OF SEC'11ON 10(b) OF THE EXCHANGE ACT AND RULE I Ob-5 PROMULGATED THEREUNDER (Against the BP Defendants McKay, Hayward, Svanberg and Inglis) . jig COUNT 11. VIOLATION OF SECTION 20(a) OF THE EXCHANGE ACT (Against the Individual Defendants) 122 PRAYER FOR RELIEF 124 JURY TRIAL DEMAND 125 ii] Case 6:10-cv-00818-RTH-CMH Document 1 Filed 05/21/10 Page 5 of 64 Plaintiff Robert H. Ludlow, individually and on behalf of the Class described below (the Plaintiff and the Class are hereinafter referred to as "Plaintiffs"), brings this action for damages against Defendants BP, plc, BP America, Inc. (hereinafter referred to jointly as "BP"), Anthony Hayward, Andy Inglis, Carl-Henric Svanberg, H. Lamar McKay, William Castell, Paul Anderson, Antony Burgmans, Cynthia Carroll, and Erroll B. Davis, Jr. for violation of the United States federal securities laws. Plaintiffs allege the following based upon the investigation of plaintiff and his counsel, including a review of regulatory investigations, regulatory filings, reports, press releases and media reports. I. INTRODUCTION 1. "No activity is so important that it cannot be done safely ... Simply obeying safety rules is not enough." - BP (2005) "The current procedures are out of date ... Currently there are hundreds if not thousands of Subsea documents that have never been finalized, yet the facilities have been turned over ... to Operations." - August 15, 2008 e-mail by Barry C. Duff, BP Atlantis Subsea Team Project Manager relating to the Atlantis oil rig which, along with the Deepwater Horizon, operates in the Gulf of Mexico 1 Case 6:10-cv-00818-RTH-CMH Document 1 Filed 05/21/10 Page 6 of 64 2. This is a class action on behalf of all. investors who purchased American Depository Receipts ("ADRs") in BP, plc ("BF) between March 4, 2009 and April 20, 2010 (the "Class Period"), who suffered losses following the catastrophic explosion to BP's oil drilling rig in the Gulf of Mexico. Class members, who purchased ADRs based on Defendants' repeated assurances of BP's safe operations, reflected in the ADR price, have seen the value of their shares plummet 20% overnight — representing about $30 billion in market capitalization — as the truth about BP's operations has emerged. 3. Section 10(b) of the Securities Exchange Act states that it is illegal "[flo use or employ, in connection with the purchase or sale of any security ... any manipulative or deceptive device." Rule lOb-5states that: "[flt shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange: (a) To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances 2 Case 6:10-cv-00818-RTH-CMH Document 1 Filed 05/21/10 Page 7 of 64 under which they were made, not misleading, or (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, 4. By touting the growth potential of its Gulf of Mexico operations, beginning in March of 2009, and highlighting the safety of the operations, BP convinced investors, including Plaintiffs, that BP would be able to generate tremendous growth with minimal risk. BP was misleading the investing public. The truth was that BP was cutting comers and reducing its spending on safety measures in an effort to maximize profits in the Gulf of Mexico. Indeed, it was not until April 20, 2010, after the explosion, that material information began to emerge about BP's safety measures. 5. On April 20, 2010, there was a massive explosion on a mobile offshore drilling unit in the Gulf of Mexico operated by BP known as the Deepwater Horizon, caused by inadequate safety protocols. As the lessee and owner of the federal permit to drill., BP was the primary operator of the Deepwater Horizon at the time of the incident and the party responsible to make sure that all safety protocols were followed and disaster plans in place. Immediately after the incident, BP was deemed the "responsible party" under the Oil Pollution Act 3 Case 6:10-cv-00818-RTH-CMH Document 1 Filed 05/21/10 Page 8 of 64 ("OPA"). Adequate backup safety mechanisms, such as a back-up blowout preventer or an acoustically activated remote-control shut-off valve were not installed on the Deepwater Horizon. Such devices would have, at a minimum, greatly reduced the damage caused by the sinking of the Deepwater Horizon.. The resulting fire was described by one of the rescue boat captains as being hot enough to melt the paint off the boats. The fire raged for over a day before causing the Deepwater Horizon to sink into the Gulf of Mexico on April 22, 2010. 6. On May 3, 2010, BP stated that it was "absolutely responsible" for the spill, and for stopping the leak, cleaning up the oil, and any resulting environmental damage. BP Chief Executive Tony Hayward reiterated BP's acceptance of responsibility for the Deepwater Horizon oil. spill. According to experts, the explosion resulted from inadequate safety mechanisms and faulty cementing over the drilling well. 7. The accident was a predictable otucome, at least within BP's offices. For years, Defendant BP has been engaged in systematic and draconian cost- cutting maneuvers in order to improve profits. In making those cuts, BP sacrificed safety, choosing to cut corners instead of ensuring that its oil exploration and production business did not cause injury or harm to their own employees, the public, and the fragile Gulf Coast environment. In 2007, BP represented it was 4 Case 6:10-cv-00818-RTH-CMH Document 1 Filed 05/21/10 Page 9 of 64 implementing major changes to improve its dismal safety record. In 2009, in violation of United States securities laws, BP represented that it had successfully implemented top quality safety mechanisms to prevent catastrophic accidents and was actively monitoring and managing operational risk. Moreover, BP misled investors saying that their efforts at cutting costs were successful without having an impact on BP's safety. Investors in the Class Period, like the class representative, purchased shares and ADRs of BP based on these representations. 8. Indeed, BP repeatedly touted its safety measures and risk management for public markets. For example, BP's Code of Conduct, which is available publically on its website, in a section entitled, "Health, safety, security and the environment" states: At BP our aspirations are - no accidents, no harm to people and no damage to the environment. We are committed to the protection of the natural environment, to the safety of the communities in which we operate, and to the health, safety and security of our people.