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US: Lawsuit Seeks IPO Profits From Five Executives

Washington Post
October 1st, 2002

NEW YORK (September 30) -- New York's attorney general today sought to force five telecommunications executives to give up millions of dollars in profits they earned selling shares in companies going public during the Internet boom.

In a lawsuit filed in New York State Supreme Court, Eliot Spitzer charged that former WorldCom chief executive Bernard J. Ebbers and four other executives received shares in initial public offerings by steering lucrative investment-banking business to brokerage firm Salomon Smith Barney Inc., an arrangement that was not disclosed to investors. Spitzer said the men should be forced to give up the $28 million in profits earned when they sold those shares.

The lawsuit also asked that the executives be directed to return $1.5 billion in profits they made by selling shares in their own companies, saying they knew their stock was inflated.

Others named in the lawsuit include Metromedia Fiber Networks Inc. Chairman Stephen A. Garofalo; former McLeodUSA chairman Clark E. McLeod; and two former Qwest Communications International Inc. executives, Joseph P. Nacchio, who was chief executive, and Philip F. Anschutz, who was chairman. Anschutz remains on the board of directors.

Spitzer said it would be up to a court to decide what do to with any money returned by the executives. But he said he assumed that the money would go to the executives' firms and that corporate directors would decide whether to return it to shareholders.

Spitzer's actions are one of the most aggressive efforts by prosecutors to go after the personal fortunes of executives. Spitzer filed the case under New York's Martin Act, a broad 1921 anti-fraud law that legal experts say gives the state's attorney general virtually unlimited authority to seek disgorgement of funds gained through any "deceptive practice" that violates common-sense principles of wrongdoing.

Reid Weingarten, an attorney for Ebbers, suggested that Spitzer's action was little more than a "publicity stunt." He wondered whether Spitzer would also "sue the thousands of corporate executives who received IPO shares and were in position to do business with the investment banks making the allocations."

Charles Stillman, an attorney for Nacchio, said the claim that his client "steered business to Salomon Smith Barney in return for personal IPO allocations or favorable research reports is totally false."

"There was no special relationship between Qwest and Salomon Smith Barney," Stillman said.

McLeod, Garofalo and Anschutz either could not be reached or did not return calls.

Lee Richard, an attorney for former star Salomon telecommunications analyst Jack B. Grubman, said in a statement that his client "had no responsibility, nor did he influence, IPO allocations to telecommunications executives," Bloomberg News reported.

Spitzer said he did not name Grubman or Salomon in the suit because New York is in talks to settle allegations against them.

Citigroup Inc., Salomon's parent company, declined to comment, citing ongoing discussions with Spitzer's office and federal regulators regarding a possible settlement of multiple probes. "We are moving aggressively to resolve questions about past practices and to institute far-reaching reforms," the firm said in a prepared statement.

Officials in Spitzer's office and outside legal experts said New York's Martin Act, unlike federal law, does not require direct proof, such as e-mails or other documents, of a quid pro quo arrangement between Salomon and the executives. Instead, they said it requires proof that the executives failed to disclose material facts that could affect the value of an investment or made money in a deceitful way.

Donald C. Langevoort, a professor of securities law at Georgetown University Law Center, called the Martin Act "extraordinarily broad" and said that because previous New York attorneys general have not applied the law in this aggressive way, "this is all uncharted territory."

"The spinning of hot IPO shares was not a harmless corporate perk," Spitzer said. "Instead, it was an integral part of a fraudulent scheme to win new investment-banking business."

In filing the lawsuit, prosecutors in Spitzer's office also released internal e-mails that they said demonstrate the extent to which Grubman acted not as an independent assessor of corporate prospects but as an investment banker eager to bring in big fees.

The suit contends that the executives "unjustly enriched" themselves by selling their companies' stock at inflated prices generated in part by Grubman's research reports. Those positive reports were in turn allegedly secured in exchange for banking fees. Prosecutors say the executives committed fraud by not disclosing the IPO allocations and the guarantee of positive research.

In one case cited in the suit, Grubman sent a message to two Salomon bankers responding to complaints from Focal Communications Corp., a Salomon banking client, about aspects of his recent report on the company, which included a "buy" rating:

"If I hear one more [expletive] peep out of [Focal] we will put the proper rating . . . on this stock which every single smart [institutional investor] feels is going to zero. We lost credibility on [McLeodUSA] and [XO Communications] because we support pigs like Focal."

Other e-mails cited in the lawsuit include a Salomon employee complaining that the firm's research was "basically worthless" and retail brokers at the firm criticizing Grubman as "unethical" and a "disgrace."

In addition to interest and fines, the suit requests that Ebbers repay $11.5 million in IPO profits and $23 million in profits made selling WorldCom stock; Anschutz, $4.8 million in IPO profits and $1.4 billion in Qwest; Nacchio, $1 million in IPO and $226 million in Qwest; McLeod, $9.4 million in IPO and $16 million from McLeodUSA; and Garofalo, $1.5 million in IPO profits.





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