On April 1, 2021, Judge Matthew F. Kennelly of the Eastern District of Illinois denied a motion to dismiss a claim under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act"), and Rule 10b-5 thereunder, against a surgical implants manufacturer (the "Company") and certain of its current and former officers.  Lowry v. RTI Surgical Holdings Inc., No. 20-cv-01939 (N.D. Ill. Apr. 1, 2021).  Plaintiffs alleged that defendants made materially false and misleading statements regarding the Company's accounting and revenue recognition practices which caused a stock drop once corrective disclosures were made.  The Court denied defendants' motion to dismiss the amended complaint, holding that plaintiffs sufficiently pled material misstatements and scienter.

According to the Amended Complaint, which relied on confidential witness statements, the Company allegedly engaged in "revenue smoothing" in its most important business segment by shipping its products to customers early to "hit quarterly revenue targets" without customer authorization.  In so doing, plaintiffs alleged that the Company improperly recognized revenue by misleadingly portraying potential future sales as current sales, and that the individual defendants—current and former Company officers—familiar with Company operations, knew of this alleged conduct and signed off on SEC filings during the putative class period.  When clients did not provide authorization, the Company's management allegedly directed that such products be shipped early regardless.  According to the Amended Company, one confidential witness, a senior executive assistant to a Company executive, allegedly sat in on a meeting involving one of the individual defendants where this alleged practice was discussed, and other confidential witnesses allegedly stated that it was "commonplace" for the Company to ship orders early so the Company could meet monthly and quarterly revenue targets.  Plaintiffs further allege that the Company reported these misleading figures in public filings, misleadingly suggesting that annual revenue figures had increased and that internal control over financial reporting was effective, and made similar misstatements on earnings calls.  In early 2020, the Company announced an internal investigation by its Audit Committee into the Company's accounting treatment which was precipitated by an ongoing SEC investigation.  As a result of the investigations, the Company restated five years' worth of its financial statements, making statements in its amended filings acknowledging material weaknesses in its disclosure controls and confirming that unapproved shipments were made to "generate additional revenue" in an earlier quarter.

The Court first addressed the issue of whether the Amended Complaint had adequately alleged material misstatements.  In finding that it had, the Court cited allegations that the Company was subject to investigations by the SEC and the Company's internal audit committee concerning its erroneous revenue recognition practices and ineffective internal controls, which resulted in the restatement.  The Court emphasized that a company's restatement of previously reported financial results "is likely enough by itself to show materiality" because "previously-issued financial statements should be restated only to correct material accounting errors."  The Court further noted that the significant drop in stock price "within one trading day of corrective disclosures tends to 'confirm[] that [its] misstatements were material.'"

The Court turned next to whether plaintiffs' allegations support a strong inference of scienter as required by the PSLRA's heightened pleading standard.  Plaintiffs alleged that the Company's management, which included the individual defendants, "acted, at a minimum, recklessly" when they repeatedly asserted in SEC filings and on earnings calls that the Company's internal controls were effective during the putative class period, "yet admitted in corrective disclosures . . . that these same controls were ineffective.  Plaintiffs further alleged "the magnitude and sheer number of inaccurate financial reports filed by [the Company was] . . . a robust indicator of the defendants' recklessness."  Defendants argued that the allegations do not sufficiently indicate scienter and contended that if defendants "wanted to commit fraud, they would have sold their [Company] stock" at allegedly inflated prices.  Defendants further argued that "factual allegations support a more compelling 'non-culpable inference': 'negligent oversight of overzealous accounting' or some other 'breakdown lower in the corporate hierarchy.'"

The Court rejected defendants' argument, setting forth at the outset that plaintiffs are required to "only plead facts indicating an 'intent to deceive or reckless disregard for the truth.'"  The Court held that plaintiffs' allegations included specific factual allegations plausibly implicating Company management—including the individual defendants—"as key personnel responsible for designing and maintaining" the Company's internal controls, who later acknowledged the internal control deficiencies.  Further, the individual defendants were each in leadership positions that made them "privy to [the Company's] operations at the highest levels and accountable for [its] internal business practices, especially with regard to its most important business segment."  Moreover, the Court emphasized that the Amended Complaint relied on "plausibly reliable statements from confidential witnesses, including three former employees, each of whom appear to have personal knowledge" of the revenue smoothing practices. The Court further found that the SEC's investigation and the internal audit committee investigation into the Company's "revenue recognition practices and internal controls 'provides additional support for finding that scienter has been adequately pleaded.'"  Finally, the Court held that "each defendant attested to the accuracy of information in quarterly and annual SEC filings yet failed to even once detect a risk of erroneous financial reporting during the class period is more than sufficient at the pleading stage to indicate recklessness."  Citing the Supreme Court's standard in Tellabs, Inc. v. Makor Issues & Rights, Ltd., the Court concluded that a reasonable person would deem the inference of scienter "cogent and at least as compelling as any opposing inference one could draw from the facts alleged."  551 U.S. 308, 324 (2007).

Having determined that the Amended Complaint adequately alleged violations of the Exchange Act, and absent any additional arguments advanced by the individual defendants, the Court similarly allowed plaintiffs' control-person liability claims under Section 20(a) to proceed.

Lowry v. RTI Surgical Holdings Inc.

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