Lloyd Graham, Et Al. V. Olympus Corporation, Et Al. 11-CV-07103
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Case 5:11-cv-07103-JKG Document 50 Filed 01/15/13 Page 1 of 111 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA CHAITANYA KADIYALA and KELLY SHARKEY, on behalf of themselves Case No. 1 1-cv-7 103 individually and all others similarly situated, Plaintiffs, V. OLYMPUS CORPORATION, TSUYOSHI KIKUKAWA, and SHUICHI TAKAYAMA, Defendants. PLAINTIFFS' SECOND AMENDED CLASS ACTION COMPLAINT VIANALE & VIANALE LLP LITE DEPALMA GREENBERG, LLC Kenneth J. Vianale (admitted pro hac vice) Steven Greenfogel 2499 Glades Road, Suite 112 Daniel B. Allanoff Boca Raton, FL 33431 1521 Locust Street, 8th Floor Tel: (561) 392-4750 Philadelphia, PA 19102 Tel: (215) 564-5182 SARRAF GENTILE LLP Ronen Sarraf (admitted pro hac vice) Liaison Counsel for Plaintiffs Joseph Gentile (admitted pro hac vice) 450 Seventh Avenue, Suite 1900 New York, New York 10123 Tel: (212) 868-3610 Co-Lead Counsel for Plaintiffs Case 5:11-cv-07103-JKG Document 50 Filed 01/15/13 Page 2 of 111 TABLE OF CONTENTS I. NATURE OF THE ACTION ......................................................................................... 1 II. BASIS OF THE ALLEGATIONS.................................................................................2 III. JURISDICTION AND VENUE.................................................................................... 5 IV. PARTIES.......................................................................................................................6 A. Plaintiffs .............................................................................................................. 6 B. Defendants...........................................................................................................6 C. Additional Wrongdoers.......................................................................................8 V. OVERVIEW OF DEFENDANTS' FRAUDULENT SCHEME...................................9 VI. CLASS ACTION ALLEGATIONS............................................................................ 15 VII. SUBSTANTIVE ALLEGATIONS.............................................................................17 A. Olympus Engages in Financial Engineering and Incurs Substantial Losses .... 17 B. Olympus Begins the Cover Up and Moves Its Losses Off Its Books...............21 C. Olympus Tries to Settle The Losses And Bring The Tobashi To An End........26 (1) The "Mickey Mouse" Companies - Altis, News Chef and Humalabo ...........................................................26 (2) Defendants Grossly Overpay for Gyms ................................................. 30 VIII. OLYMPUS ISSUES FALSE AND MISLEADING STATEMENTS ........................34 IX. WOODFORD ATTEMPTS TO UNCOVER THE TRUTH........................................49 A. The Facta Articles.............................................................................................49 B. Woodford Writes to the Board.......................................................................... 51 C. Woodford's Sixth Letter.................................................................................... 55 El Case 5:11-cv-07103-JKG Document 50 Filed 01/15/13 Page 3 of 111 D. The Problems Woodford and the PwC Report Identify.................................... 57 (1) The Gyrus Deal ....................................................................................... 57 (2) Altis, Humalabo and News Chef.............................................................63 X. DEFENDANTS DENY ANY WRONGDOING.........................................................64 XI. DEFENDANTS FINALLY REVEAL THE TRUTH................................................. 71 XII. LOSS CAUSATION ALLEGATIONS ......................................................................79 XIII. THE FEDERAL SECURITIES LAWS APPLY........................................................81 A. ADRs in General...............................................................................................83 B. Olympus ADRs.................................................................................................84 C. Plaintiffs Took Title To Their Olympus ADRs in the United States................90 XIV. APPLICABILITY OF THE PRESUMPTION OF RELIANCE: THE FRAUD ON THE MARKET DOCTRINE.........................................................92 XV. NO SAFE HARBOR....................................................................................................93 XVI. ADDITIONAL SCIENTER ALLEGATIONS............................................................94 XVII. CAUSES OF ACTION.............................. 101 XVIII. JURY TRIAL DEMANDED.................... 104 XIX. PRAYER FOR RELIEF ............................ 104 Case 5:11-cv-07103-JKG Document 50 Filed 01/15/13 Page 4 of 111 I. NATURE OF THE ACTION 1. Plaintiffs bring this class action on behalf of themselves and all other purchasers of the American Depositary Receipts ("ADRs") of Olympus Corporation ("Olympus" or the "Company") between November 7, 2006 and November 7, 2011, inclusive, (the "Class Period"), pursuant to Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act"), 15 U.S.C. §78j(b), 78t(a), and Rule lOb-5, 17 C.F.R. § 240.1Ob-5.' 2. Olympus is a Japanese manufacturer and world-wide seller of digital cameras and medical equipment. During the Class Period, Olympus issued false statements about its finances stemming from substantial losses it had suffered on investment securities. In the late 1980's, Olympus began to lose money on its product sales in the United States. It tried to compensate for this sales shortfall by trading in speculative securities, betting on quick profits. Olympus lost hundreds of millions of dollars on its positions. Matters got worse when Olympus tried to recoup these trading losses with further high-risk market bets. Olympus only added to its losses, for a total topping more than a billion dollars. 3. Olympus nevertheless refused to face the day of reckoning by recognizing its trading losses on its public financial statements. Instead, it carried out a fraudulent scheme to push the losses off its books and mask them as "goodwill" on its corporate acquisitions goodwill which could be written down and erased over time. Olympus' scheme was successful until an employee whistle-blower leaked information to a financial publication. At first, Olympus Many of the events described herein occurred in Japan which is in the UTC/GMT+9 time zone and does not employ daylight savings time. It is 13 to 16 hours ahead of the United States during the summer months, and 14 to 17 hours ahead of the United States during the winter months. As a result, certain events in Japan or statements made in Japan, as alleged herein, technically occurred on the preceding day in the United States. For example, on the day Olympus formally disclosed its $1.7 billion fraud alleged herein, it was November 8, 2011 in Japan, but November 7, 2011 in the United States. Unless otherwise noted, the dates used in this Complaint correspond to the place where the activities occurred or the relevant statements were made. Case 5:11-cv-07103-JKG Document 50 Filed 01/15/13 Page 5 of 111 denied press reports that it had fraudulently accounted for several corporate acquisitions. Eventually, however, Olympus was pressured to reveal the full extent of the fraud. In a press release dated November 8, 2011, the Company admitted to a loss recognition deferral scheme going back to the 1990's. Olympus' stock price dropped on the news, causing damage to Plaintiffs and other purchasers of Olympus ADRs. II. BASIS OF THE ALLEGATIONS 4. Plaintiffs allege the facts in this Complaint based on personal knowledge as to themselves and their own acts, and as to all other matters, based upon their attorneys' investigation. That investigation included, among others, a review of the sources listed below and on the List of Exhibits appended hereto: (a) The annual reports, regulatory filings, financial material and press releases published by the Company, including but not limited to, financial statements issued by the Company and their corrected and restated versions, which are attached hereto as Exhibits I through 18 and incorporated herein by reference. (b) Early in the litigation, Co-Lead Counsel asked to speak to Michael Woodford ("Woodford"), former Chief Executive Officer of Olympus and a witness of the events described herein with first-hand information, as discussed below in paragraph 210. Co- Lead Counsel also reviewed six letters that Woodford sent to the Company's top directors, officers and auditors (including the English language Interim Report prepared by PricewaterhouseCoopers Legal LLP), which are attached hereto as Exhibit 19 and incorporated herein by reference, as well reviewed Woodford's book, Exposure (New York: Penguin, 2012), which details the Olympus financial fraud alleged herein. 2 Case 5:11-cv-07103-JKG Document 50 Filed 01/15/13 Page 6 of 111 (c) The 185-page Investigation Report, dated December 6, 2011, (referred to herein as the "IR"), prepared by the Third Party Committee as well as a review of its 38-page summary. (i) A copy of the IR can be found at http://www.olympus - global.comlenlinfo/2011b/ifl ll2O6corpe_2.pdf and is attached hereto as Exhibit 20 and incorporated herein by reference. (ii) A copy of the IR summary can be found at hup://www.olympus-global.comlen/commonlpdf/ifl 11206corpe.pdf and is attached hereto as Exhibit 21 and incorporated herein by reference. (iii) The Company formally established the Third Party Committee on November 1, 2011. See