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G:\Para-SD\LEEN\Aoltimewarner Amalbk Regents.Cpt 1 MILBERG WEISS BERSHAD HYNES & LERACH LLP 2 WILLIAM S. LERACH (68581) DARREN J. ROBBINS (168593) 3 BYRON S. GEORGIOU (61250) DAVID C. WALTON (167268) 4 MICHELLE M. CICCARELLI (167578) 401 B Street, Suite 1700 5 San Diego, CA 92101 Telephone: 619/231-1058 6 619/231-7423 (fax) - and - MILBERG WEISS BERSHAD 7 PATRICK J. COUGHLIN (111070) HYNES & LERACH LLP RANDI D. BANDMAN (145212) JEFF S. WESTERMAN (94559) 8 100 Pine Street, Suite 2600 355 South Grand Avenue, Suite 4170 San Francisco, CA 94111 Los Angeles, CA 90071 9 Telephone: 415/288-4545 Telephone: 213/617-9007 415/288-4534 (fax) 213/617-9185 (fax) 10 Attorneys for Plaintiffs 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF LOS ANGELES 13 THE REGENTS OF THE UNIVERSITY OF ) Case No. CALIFORNIA and THE AMALGAMATED BANK ) 14 as Trustee for THE LONGVIEW COLLECTIVE ) INVESTMENT FUND, ) COMPLAINT FOR: 15 ) Plaintiffs, ) (1) VIOLATIONS OF §§11 AND 16 ) 12 OF THE SECURITIES ACT vs. ) OF 1933; 17 ) (2) VIOLATIONS OF CAL. CORP. RICHARD D. PARSONS, R.E. "TED" TURNER, ) CODE §§25400-25403, 25500- 18 STEPHEN M. CASE, GERALD M. LEVIN, ) 25502, 25502.5, 25504, 25504.1 ROBERT W. PITTMAN, J. MICHAEL KELLY, ) AND 25504.2; 19 KENNETH J. NOVACK, DANIEL F. AKERSON, ) (3) VIOLATIONS OF CAL. CIVIL JAMES L. BARKSDALE, STEPHEN F. ) CODE §§1572, 1573, 1709, 1710 20 BOLLENBACH, FRANK J. CAUFIELD, MILES R. ) AND CAL. CORP. CODE GILBURNE, CARLA A. HILLS, REUBEN MARK, ) §1507; 21 MICHAEL A. MILES, FRANKLIN D. RAINES, ) (4) BREACH OF FIDUCIARY FRANCIS T. VINCENT, JR., DAVID COLBURN, ) DUTY/AIDING AND 22 ERIC KELLER, RAYMOND J. OGLETHORPE, ) ABETTING BREACH OF JANICE BRANDT, JOSEPH A. RIPP, BARRY M. ) FIDUCIARY DUTY; 23 SCHULER, GEORGE VRADENBURG, III, JAMES ) (5) PROFESSIONAL W. BARGE, KENNETH B. LERER, WILLIAM J. ) NEGLIGENCE; AND 24 RADUCHEL, MAYO S. STUNTZ, JR., AOL TIME ) (6) DAMAGES AND EQUITABLE/ WARNER INC., CITIGROUP INC., SALOMON ) INJUNCTIVE RELIEF 25 SMITH BARNEY INC., MORGAN STANLEY & ) CO., ERNST & YOUNG LLP and DOES 1-100, ) 26 inclusive, ) ) 27 Defendants. ) ) DEMAND FOR JURY TRIAL 28 COMPLAINT FOR VIOLATION OF THE SECURITIES ACT OF 1933 1 This writing/publication is a creative work fully protected by all applicable copyright laws, as well as by misappropriation, 2 trade secret, unfair competition and other applicable laws. The authors of this work have added value to the underlying factual materials herein through one or more of the following: unique and original selection, coordination, expression, arrangement, and 3 classification of the information. 4 No copyright is claimed in the text of statutes, regulations, and any excerpts from analysts' reports or news articles quoted within this work. 5 Copyright © 2003 by William S. Lerach and Milberg Weiss Bershad Hynes & Lerach LLP. William S. Lerach and Milberg 6 Weiss Bershad Hynes & Lerach LLP will vigorously defend all of their rights to this writing/publication. 7 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 and Milberg Weiss Bershad Hynes & Lerach 8 LLP is prohibited. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT FOR VIOLATION OF THE SECURITIES ACT OF 1933 1 INTRODUCTION 2 1. This is an action arising out of the sale of Time Warner Inc. ("Time Warner") to 3 America Online, Inc. ("AOL"), which resulted in the formation of AOL Time Warner Inc. 4 ("AOLTW" or the "Company") in 1/01 (the "Merger"). As a result of this Merger – which Dow 5 Jones has now characterized as a "terrible deal," Time magazine has described as the "worst deal 6 of the century," and Fortune has called "one of the great train wrecks in corporate history" – the 7 former shareholders of Time Warner who exchanged their shares for new AOLTW shares and those 8 investors who purchased the newly issued stock of AOLTW after the Merger – including the 9 plaintiffs in this action – lost billions of dollars as AOLTW's stock collapsed from as high as $58.51 10 per share to as low as $8.60 per share. But the top AOLTW insiders, the two Wall Street banks – 11 who helped them orchestrate the Merger and secure its approval by misleading Time Warner's 12 shareholders and then inflated the trading price of the new stock of AOLTW after the Merger – and 13 AOLTW's accountant, Ernst & Young, who helped falsify AOLTW's financial results before and 14 after the Merger, all did quite well for themselves. The AOLTW insiders pocketed well over one 15 billion dollars in illicit benefits for themselves, the Wall Street banks pocketed the largest 16 investment banking fee in history (over $135 million) and the accounting firm retained the coveted 17 AOLTW account – one of the largest and most lucrative public company accounts in the world, 18 worth over $1 million per week in fees. 19 2. At the height of the Internet/dot-com frenzy during 98-99, AOL passed itself off as 20 an emerging "Blue Chip" company, creating a high stock price – AOL peaked at $94 per share in 21 12/99 – and a market valuation of over $214 billion – larger than that of IBM or General Motors and 22 Ford Motor combined! By 98-99, the key to AOL's continuing high stock price was the belief that 23 it was successfully transitioning its business by leveraging an ever-growing Internet access subscriber 24 base to reap huge amounts of high-profit-margin e-commerce advertising revenues which would lead 25 to profitable growth for years to come. Just as AOL's stock was hitting its all-time high, based on 26 the apparent tremendous growth of AOL's subscriber base and the success and profitability of its e- 27 commerce advertising business, AOL used its inflated shares as currency to purchase Time Warner 28 and its substantial stable of media and entertainment properties, which had real value and proven COMPLAINT FOR VIOLATION OF THE SECURITIES ACT OF 1933 - 1 - 1 earning power. In order to inflate AOL's stock prior to the Merger and to secure Time Warner 2 shareholder approval of the sale of Time Warner to AOL and then to continue to inflate the price of 3 AOLTW stock after the Merger, defendants presented AOL's business as achieving record growth 4 and profitability. They assured Time Warner's shareholders that the terms of the sale of their 5 company were "fair" and made extraordinarily strong assurances that the Merger would succeed and 6 was succeeding, forecasting that the Merger would result in 12%-15% annual revenue growth, 30% 7 annual EBITDA growth and 50% annual "free" cash flow growth for AOLTW both in the year 8 immediately following the Merger and for the next several years. AOLTW was to achieve these 9 results due to the growing subscriber base and e-commerce advertising of AOLTW's "crown jewel" 10 – AOL – as well as Time Warner's thriving cable TV business, all of which was creating a new "blue 11 chip" powerhouse and "large cap growth stock" – a "safe and secure place for people to put their 12 money," which was worth at least $115 per share. 13 3. After the Merger, the successful synergies and economies, as well as revenue, cash 14 flow and EBITDA growth that had been promised, failed to occur. The AOL unit not only failed to 15 act as the driving force behind the growth of the combined companies, it turned out that AOL had 16 been falsifying the growth of its Internet access subscribers (25 million at 9/30/00) and the growth 17 and success of its e-commerce advertising revenues (over $2.3 billion in calendar 00) and backlog 18 (over $3 billion by 9/30/00), by using tricks, contrivances and bogus transactions to boost these 19 subscriber numbers and e-commerce advertising results and backlog. Instead of driving the new 20 AOLTW to the huge revenue, EBITDA and cash flow growth forecasted, AOL's corrupt accounting 21 practices, contracting e-commerce advertising and shrinking subscriber base badly damaged 22 AOLTW, resulting in huge damage to former Time Warner shareholders, as well as investors in the 23 new AOLTW enterprise. 24 4. Shortly after the Merger, as management dissension and conflicts roiled the top ranks 25 of AOLTW, AOLTW reported sharply slowing revenue, EBITDA and cash flow growth, principally 26 due to advertising shortfalls at its AOL unit and a lack of the promised merger synergies and 27 economies. After first scaling back its financial forecasts in the Fall of 01, during 02, AOLTW took 28 $54 billion and $45 billion write-downs due to the over-valuation of its assets, resulting in an 02 loss COMPLAINT FOR VIOLATION OF THE SECURITIES ACT OF 1933 - 2 - 1 of $100 billion – the largest corporate loss in history – as it revealed that AOL's supposedly multi- 2 billion-dollar e-commerce advertising backlog had virtually disappeared, its e-commerce advertising 3 revenues were falling by 50% and its subscriber numbers were actually declining! AOLTW also 4 admitted that AOL had falsified its key e-commerce advertising revenues before and after the 5 Merger by including in revenue one-time payments in connection with the termination of advertising 6 contracts, as well as revenue from "barter," "swap" and "round trip" transactions, and by requiring 7 customers to purchase advertising in return for offsetting investments from AOL, ultimately restating 8 its prior financial reports to eliminate almost $200 million in phony e-commerce advertising 9 revenues.
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