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AOL Time Warner, Inc. Securities & ERISA Litigation 02-CV-5575

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AOL Time Warner, Inc. Securities & ERISA Litigation 02-CV-5575 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 02 MDL Do cket No . 1500 (SWIG) ) 02 CIV. 5575 (SWK) IN RE AOL TIME WARNER, INC. ) SECURITIES & "ERISA" LITIGATION ) SECOND AMENDED CONSOLIDATED CLASS AC ION COMPLAINT OF LEAD PLAINTIFF MINNESOTA STATE BOARD OF INVESTMENT tLL E U AUG MEREDTflI COHEN GREENFO GEL HENS MILLS & OLSON, P .L.C. & SE`IRN1CI , -P.C. 3554 IDS Center - . Oane Liberty Plaza, 35th Floor - 80 South Eighth Street ~K :. :; •~ New York, N . :,10006 :fir.., ,. :•~ ~(212]240-0020 . ., 3384505 ~.~+ ~^L•Ley}; -s.- (212 240-UD2I. Fax. (6l~)•~ 338-4692 Fax, : Y.l ., -i-SM,) Y• .4 •RY'4 'ii,^11 .y 4,'•Y.Lti .ti .,ri rb-.. ~f"Sts4 .k.Ji, •sr .,.wyc;. v.,~i ~.•r~ :~rs•:L~ - .k-.^a•. • i : . _S. r,.ti<, j :titii- ,v. ; _~ • . :.y • Attorneys for Lead Plain tiff Minnesota Attorneys for Lead Plaintiff-Minnesota : State Board of Investment and Local State Board of Investment and Lead Counsel for the Class Counsel for the Class 48184 TABLE OF CONTENT S 1. INTRODUCTION _ .. ... ... .......... ..1 U . NATURE OF THE ACTION . .. .. .. .. .. .. .. .. .. .. .. .................. ... .... ... .. .. ..11 III . JURISDICTION AND VENUE. .... .... ... ........................ .... ... .. .. ... .... .... .... .... ............. .13 IV . PARTIES . ... ... .... ... ... .. .. .. ... ... ... ... .. ... ... .. ... ... ... .......... ... .. .. .. .. .... .. 14 A. Plaintiffs . ... ... .... .... ... ... .. .. ... ... ... .... ... ... ... .. .. ... ....... ....... .... .... .... ... .. .14 1 . Lead Plaintiff .... ........................ .... .................. .. .. .. .. ... ... .. .... ..........14 2. Additional Plaintiffs.. .... .... .... .... ... .... .... .............. ... ... .. ... .. .. ... ... .... .1 5 B . Defendants. ... ... .. ... ... .. .. .. .. .... ... ... .... ... .. ... ................. .... .... ... ... .. .. .15 1 . AOL Time Warner, Inc. ........ .... ...................... .. .. ... .. ... ........ .......... .......15 2 . America Online, Inc .. .... ........ ... ... .... .... ............. ... ... .. .. ... ... .. .... .........16 3. Time Warner, Inc . ... ... ... .. ... .. ... ... ... .......... .... ... .. .. .. .. ....... .16 4. The Individual Defendants. .. .. .. .. .. .. .. .............. ... ... .... ... .. .. ... .1 7 a. Stephen M. Case. .................... ... ... ... .. ... .... ............ .......... ...17 b. Robert W. Pittman .... .... ... ... ... ........ ... ... .. .. ... ... ... .... .... .........18 c. J. Michael Kelly. ... ... ... ... .. ... .... .......... ... .. .. 18 d. David M. Colburn. .. .. .. .. .. .. ... .... ... .... ... .. .. .. .. .. .. .19 C. Eric Keller . ... ... ... .... .... ... ... ... .. ... .... .......... ... .... .. ... .. 19- f Joseph A. Ripp. .... ................ ............ ... .. .. ... .. ... ........ .......... .. ..19 g- Steven Rinder ................ ...................... ... .. .. .. ... ... .... .... ....... .... ..20 h. Gerald M. Levin .... .. ... ... ... ... .... .......... ... ... .. .. .. .. ........ .20 k. Wayne H. Pace .. ... .. .. .. .. .. ... ... ......... .... .... ... .. .. .. .. ... .20 5 . Additional Individual Defendants ............. .... .... .. .. ... ................. ....... ..23 a. Paul T. Cappucio ... ... ... ... .... ... ........ ...... ... ... .. .. ... .. ... ... .......23 b. Kenneth J. Novack. .. ... .. ... .... ... .......... ... ... .. .. .. .. .. ...23 6. E rnst & Young LLP .. .... ... ............ ........ ... ... ... .. ... ........... ........ ..23 V . CLASS ALLEGATIONS . .24 VI . SUBSTANTIVE ALLEGATIONS . .... .. .... ... .... ... .... .. .. ... ... ....... ... ... .27 A . The Growth of AOL and Its Emphasis on Increasing Advertising Revenue. ... .....27 B . The Constant and Increasing Pressure to Falsify Advertising Revenue . .. ..32 I C. The Creation of AOL Time Warner and the Additional Pressure to Report Growing Adve rtising Revenue . .. .. .. ... .. .... ............ .... ... ... .. .. ... .3 6 D . AOL's Pattern and History of Accounting Improprieties .. .... ... ... .. .. .. .. .37 E. Fraudulent Transactions and Improper Accounting Used to Artificially Inflate AOL and AOL Time Warner Advertising Revenue . ............ ...40 I . Use of Sham Transactions and Improper Accounting Practices Regarding Round -Tripping, Back-to-Back, and Boomerang Deals . .. .. ... ... .. .. .. .... .. ........ ... .. .. .. .. .. .47 2. Barter Transactions . .... .. ... ... ... .... ... ... ... ... .. .. .. .... .... ... ... .... .... ... ...48 a. Exchange of Advertising for Goods and/or Services ........ .............50 b. Warrants or Stock (equity) Received in Barter o r Partial Barter Transactions .... ... .... .... ........ .......... ...... .... ... .... .. ... .52 c. Exchange of Advertising - "In Kind" Advertising . .. ... .. .. .54 (i) Homestore, Inc. .. .. ... .. .... .... ... .. ... ..56 (ii) Sun Microsystems, Inc. .. ... .. .. .. ... .... .... ... .... ... ..60 (iii) Veritas Software Corporation .. .. .. .. .. .. ... .... ... ... ....62 (iv) Bertelsmann AG . ........ ............ ... ... .. .. .. ........................64 (v) Gateway Inc. RoundtripfFree Internet Service ........ ........ ..66 (vi) WorldCom Inc .......... ....... .... ........... .. .... ......... ........ .... ... .67 (vii) Qwest Communications . ... ... ....... ... ........ .... ... .. .. .. .. .69 `iii) Hughes Electronics Corporation ..... ... ......... ... ... .. ... .. .70 (ix) Homestore-The 2000 House and Home Deal . .. .. ... .. .72 (x) Gateway Inc Stock Purchase . .. .... .. .... .... ... .. .. .. .74 (xi) Oxygen Media Inc . Stock Purchase . ... .. ... ... .... .... ... ..75 (xii) PurchasePro .com, Inc. Advertising Swap ... ..................... .. 77 (xiii) Monster.com . ... .... ........ .... ....... .... ... .. .... ....................78 3. "Front Loading" or "Jackpotting" t o Record Advertising Revenue ..... ....... .... ........ ........................ ... .. ... .. ...79 (i) Catalina Marketing Corporation .. ... .... .... .... .. .. ... .. .80 (ii) Telefonica SA .. ... ... ... ... .. .. .. .. .. ... .... ... ........ .... ... .8 1 4. Converting Legal Disputes into Advertising Revenue ... ... ......................82 (i) 24dogs.com Arbitration Award ......... ... .......... .... .... ... ......82 (ii) Ticketrnaster Legal Action ... .. ........ ............ .... ... .. .. .. .84 ii 5. Booking Sales on a Gross Rather Than Net Basis to Inflate Advertising Revenue . .. .. .. ... ... .............. ... .... .... ............ ...85 eBay... ... ... ... ..... ... ... .... ... .... ... ... .. .. ........................ ...........86 6. Counting Repricing of Equity Stock Rights as Advertisin g Revenue.. .. .. .... ... ... ... ....... ........ ........ .................. .. ... .. .. .. .. ... .... ...89 PurchasePro ....... .. ... ... .. ... ... .. ... ... .... ......... ... .... .. ........ .........89 7. Converting Contract Termination Fees into Advertisin g Revenue.. .... ... .. ... .... .. .. ... ... .. .. .. .. ... .......... .........................90 Dr.Koop.com . ...... ... .. .... .. .... ... ... ... .. .. .... ................ ... .... ... .92 8. "Cross-Platform" Deals to Inflate Advertising Revenue . ... .. .. ... .. .. .93 (i) The Golf Channel .. .... .... ... .... ...... .... .. ... ... .. .. .. .. ..94 (ii) Oxygen Media-Carriage Deal . ....... .. .. .. .. ... .. .95 F. The Company's Admissions of Materially Overstated Advertising Revenue and Violations of the Securities Laws . .. .. .. ... ... .... ... ............. .........97 G. The Materially False and Misleading Statements, Omissions of Material Fact and Devices, Schemes or Artifices to Defraud Regarding Artificially Inflated Advertising Revenue ....................... ... .. .. .... .. .. .. .99 a. The Fiscal Quarter Ended December 31, 1998 ......... ... .. .. .. .... ... .. 100 b. The Fiscal Quarter Ended March 31, 1999 .............. ... ... .. .. ... .. ... .... 102 c. The Fiscal Quarter and Year Ended June 30, 1999 ..... .... .... .... .... ........ .... 105 d. The Fiscal Quarter Ended September 30, 1999 ... .......... ... .... ... .............. 109 C. The Fiscal Quarter Ended December 31, 1999 . .. .. ....................... ........ 112 f. The Fiscal Quarter Ended March 31, 2000 . ... .. .. ... ........................ ...... 11 6 g. The Fiscal Quarter and Year Ended June 30, 2000 . .. ... ... .... ... ... .. .. .12 1 h. The Fiscal Quarter Ended September 30, 2000 . ... .. .. ... ... .... ... ... ... .. 126 i. The Fiscal Quarter and Year Ended December 31, 2000 . .. .. .... ... .. 132 j . The Fiscal Quarter Ended March 31, 2001 .............. ... ... .. ... .. ... .... 142 k. The Fiscal Quarter Ended June 30, 2001 ... .. ... .... ...... ........ .... ............ .... 15 1 1 . The Fiscal Quarter Ended September 30, 2001 ... ... ...... .... .... .... .............. 156 M. The Fiscal Quarter and Year Ended December 31, 2001 ... .... ................ 158 n. The Fiscal Quarter Ended March 31, 2002 . ... .. .. ................... .... ...... 16 1 a. The Fiscal Quarter Ended June 30, 2002 .. .. .. .. ... .... ........ ........ ... ....162 H. The Materially False and Misleading Statements, Omissions of Material Fact and Devices, Schemes or Artifices to Defrau d ill Regarding AOL Time Warner's Goodwill ....... ........ .............. .... .. ... .. ... .166 1. Defendants' Course of Conduct is Revealed . ... .. .. .. ... .... .............. .... .............18 1 J . Scienter of the Individual Defendants ..... .... .... .... .... ....... ... .. .. ....... ........ ..... ... ..187 The Individual
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