Sammelklage gegen Plug Power - 500 Beiträge pro Seite
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2. | Neu! | 0,1500 | -86,67 | 65 | |||
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Ich habe mir gedacht wir sollten uns mal einige Gedanken zu Plug Power machen.
Seit einiger Zeit wundere ich mich schon darüber dass sich soviele Anwaltskanzleien geradezu um eine Sammelklage reißen.
Ich habe mir von WECSHLER HARWOOD
HALEBIAN & FEFFER LLP
Informationen über diese Sammelklage einzuholen.
Zu meiner Verwunderung ist diese angeblich für Plug Power Aktionäre kostenlos ?!
Wie ich mir schon dachte machen diese Kanzleien das ganze Spiel nicht umsonst sondern versuchen mit einer Schwemme an Sammelklagen vor den Amerikanischen Gerichten ihre eigenen Konten mit Geld zu füllen um anschließend die Aktionäre im Regen (sprich im stark gedrückten Kurs) stehen zu lassen.
Mich würden Eure Meinungen zu dem Thema Sammelklagen interesseieren, galubt Ihr ernsthaft Geld über den großen Teich geschickt zu bekommen (angeblich kann man auch als Ausländer ander Sammelkage teilhaben) ?
Wohin wird der kurs wohl wandern wenn z.b. Plug bei einer Sammelklage aller Investoren verurteilt würde den Schaden zu ersetzen ?
Welchen Anteil würde man wohl ersetzt bekommen ?
Ich habe sämtliche Infos in den nachfolgenden Beiträgen untergebracht, so kann sich jeder selbst ein Bild davon machen und bei Bedarf an dem großen Geldeintreiben ?, Verarschen ?, echter Anteilnahme an den Sorgen und Nöten der Aktionäre ?, Down Puschen ?, Wahrheit mitteilen ?,
mitmachen.
Ich habe diesen Thread ins Ballard Board gestellt weil ich glaube dass hier wesentlich mehr Plugis teilhaben.
Greetiongs MrFuellCell
P.S. lest doch mal den artikel von Timesunion, den ich ebenfalls abgelegt habe, vor allem der letzte Satz im vorletzten Absatz gibt zu denken:
The lawsuits aren`t helping the remaining shareholders` fortunes, either; whatever spurred the company`s falling share price is being reinforced now.
"It`s just insane,`` Abbruzzese said. "It`s crazy. The whole thing`s out of control, and the problem is, they`re hurting the shareholders themselves.``
Ich stehe nicht darauf mich selbst zu schlagen !
Seit einiger Zeit wundere ich mich schon darüber dass sich soviele Anwaltskanzleien geradezu um eine Sammelklage reißen.
Ich habe mir von WECSHLER HARWOOD
HALEBIAN & FEFFER LLP
Informationen über diese Sammelklage einzuholen.
Zu meiner Verwunderung ist diese angeblich für Plug Power Aktionäre kostenlos ?!
Wie ich mir schon dachte machen diese Kanzleien das ganze Spiel nicht umsonst sondern versuchen mit einer Schwemme an Sammelklagen vor den Amerikanischen Gerichten ihre eigenen Konten mit Geld zu füllen um anschließend die Aktionäre im Regen (sprich im stark gedrückten Kurs) stehen zu lassen.
Mich würden Eure Meinungen zu dem Thema Sammelklagen interesseieren, galubt Ihr ernsthaft Geld über den großen Teich geschickt zu bekommen (angeblich kann man auch als Ausländer ander Sammelkage teilhaben) ?
Wohin wird der kurs wohl wandern wenn z.b. Plug bei einer Sammelklage aller Investoren verurteilt würde den Schaden zu ersetzen ?
Welchen Anteil würde man wohl ersetzt bekommen ?
Ich habe sämtliche Infos in den nachfolgenden Beiträgen untergebracht, so kann sich jeder selbst ein Bild davon machen und bei Bedarf an dem großen Geldeintreiben ?, Verarschen ?, echter Anteilnahme an den Sorgen und Nöten der Aktionäre ?, Down Puschen ?, Wahrheit mitteilen ?,
mitmachen.
Ich habe diesen Thread ins Ballard Board gestellt weil ich glaube dass hier wesentlich mehr Plugis teilhaben.
Greetiongs MrFuellCell
P.S. lest doch mal den artikel von Timesunion, den ich ebenfalls abgelegt habe, vor allem der letzte Satz im vorletzten Absatz gibt zu denken:
The lawsuits aren`t helping the remaining shareholders` fortunes, either; whatever spurred the company`s falling share price is being reinforced now.
"It`s just insane,`` Abbruzzese said. "It`s crazy. The whole thing`s out of control, and the problem is, they`re hurting the shareholders themselves.``
Ich stehe nicht darauf mich selbst zu schlagen !
Die Beschwerde an sich:
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
================================x
DANA ROSS, On Behalf Of Himself :
And All Others Similarly Situated, : Case No.:
:
Plaintiff, :
:
vs. :
:
PLUG POWER INC., GARY :
MITTLEMAN, MANMOHAN DAHAR, : JURY TRIAL BY DEMAND
and LOUIS R. TOMPSON, :
:
Defendants. :
================================x
CLASS ACTION COMPLAINT
Plaintiff, by its undersigned attorneys, alleges upon personal knowledge as to himself and his
own acts, and upon information and belief as to all other matters, based upon, the investigation made
by and through its attorneys, which included, inter alia, a review of articles in the financial news
media, press releases, and other publicly available information concerning Plug Power Inc. ("PLUG"
or the "Company").
NATURE OF THE ACTION
1. This is a class action on behalf of a class (the "Class") of all persons who purchased
or otherwise acquired the common stock ("common stock") of PLUG between January 7, 2000, and
August 2, 2000 (the "Class Period), seeking to pursue remedies under the Securities Exchange Act
of 1934 ("1934 Act").
2. PLUG is a developmental stage company in the business of designing and developing
fuel cells for commercial and residential use. A material, if not the most important, asset of the
Company was the contractual obligation of General Electric Company ("GE"), one of the nation`s
largest conglomerates and suppliers of equipment to the electric utility industry, to purchase
significant quantities of PLUG`s fuel cells once they were produced.
3. On the strength of this material relationship, PLUG`s common stock had traded for
prices higher than $150 per share with the stock closing at $81.3125 on May 3, 2000. The elevated
price of the Company`s common stock was accompanied and assisted by a steady stream of press
releases disclosing the purported continued corporate progress of PLUG.
4. On the next day, May 4, 2000, in connection with disclosing its results for the fiscal
quarter ended March 31, 2000, the Company also disclosed for the first time that the pre-commercial
fuel cells PLUG was developing did not conform to the contractual specifications originally agreed
upon with GE in February 1999.
5. Investor reaction to this shocking disclosure was swift and brutal with PLUG`s stock
declining to close at $59.4375, or more than 25% in a single day, on reported volume exceeding
2,000,000 shares, or more than one-third of the reported shares in the Company`s public float.
Defendants, however, continued to conceal material information concerning the Company`s
operations and products.
6. Shortly after the May 4th Press Release, certain insiders of PLUG sold shares of PLUG
common stock to the public while in the possession of the true facts about the Company. These sales
generated proceeds of more than $9 million.
7. Then, on August 2, 2000, PLUG finally disclosed that: (i) it would cut its
manufacturing schedule to 125 systems for the year, (ii) operating losses would continue through the
year 2003; and (iii) PLUG`s fuel cells would not become commercially available until 2002 at the
earliest. This made it clear that PLUG does not possess any breakthrough technology that will allow
the Company to rapidly move its fuel cells towards commercial availability.
8. Investor reaction to this new surprise caused PLUG`s stock to decline by more than
$12 per share to close at $39.50 per share, causing further damage to investors who had purchase
PLUG stock.
JURISDICTION AND VENUE
9. This action arises under 10(b) and 20(a) of the Securities and Exchange Act of 1934
(the "Exchange Act"), 15 U.S.C. 78j(b) and 78t(a), and Rule 10b-5 promulgated thereunder by the
Securities and Exchange Commission ("SEC"), 17 C.F.R. 240.10b-5.
10. Jurisdiction is conferred upon this Court by 27 of the Exchange Act, 15 U.S.C 78aa
and 28 U.S.C. 1331 (federal question jurisdiction).
11. Venue is proper in this District because related cases have been previously filed in this
District many of the acts and transactions constituting the violations of law herein complained of
occurred within this District.
12. In connection with the acts alleged herein, Defendants, directly or indirectly, used the
means and instrumentalities of interstate commerce, including the facilities of NASDAQ National
Market, a national securities exchange.
PARTIES
13. Plaintiff purchased shares of the Company`s stock during the Class Period, as set forth
in the accompanying Certification that is incorporated herein by reference, and was damaged thereby.
14. Defendant PLUG is incorporated under the laws of the State of Delaware and
maintains its principal executive offices at 968 Albany-Shaker Road, Latham, New York 12110.
PLUG purportedly designs and develops on-site, electricity generation systems utilizing proton
exchange membrane fuel cells.
15. The individual defendants (the "Individual Defendants"), at all times relevant to this
action, served in the capacities listed below and received substantial compensation:
Name Position
Gary Mittleman President and Chief Executive Officer
Manmohan Dahar Vice-President and Chief Engineer
Louis R. Tompson Vice President- Corporate Development
16. Because of the Individual Defendants` positions with the Company, they had access
to the adverse undisclosed information about its business, operations, products, operational trends,
financial statements, markets and present and future business prospects via access to internal
corporate documents (including the Company`s operating plans, budgets and forecasts and reports
of actual operations compared thereto), conversations and connections with other corporate officers
and employees, attendance at management and Board of Directors meetings and committees thereof
and via reports and other information provided to them in connection therewith.
17. It is appropriate to treat the Individual Defendants as a group for pleading purposes
and to presume that the false, misleading and incomplete information conveyed in the Company`s
public filings, press releases and other publications as alleged herein are the collective actions of the
narrowly defined group of defendants identified above. Each of the above officers of PLUG, by virtue
of their high-level positions with the Company, directly participated in the management of the
Company, was directly involved in the day-to-day operations of the Company at the highest levels
and was privy to confidential proprietary information concerning the Company and its business,
operations, products, growth, financial statements, and financial condition, as alleged herein. Said
defendants were involved in drafting, producing, reviewing and/or disseminating the false and
misleading statements and information alleged herein, were aware or recklessly disregarded, that the
false and misleading statements were being issued regarding the Company, and approved or ratified
these statements, in violation of the federal securities laws.
18. As officers and controlling persons of a publicly-held company whose common stock
was, and is, registered with the SEC pursuant to the Exchange Act, traded on the NASDAQ National
Market (the "NASDAQ"), and governed by the provisions of the federal securities laws, the
Individual Defendants each had a duty to disseminate promptly, accurate and truthful information
with respect to the Company`s financial condition and performance, growth, operations, financial
statements, business, products, markets, management, earnings and present and future business
prospects, and to correct any previously-issued statements that had become materially misleading or
untrue, so that the market price of the Company`s publicly-traded securities would be based upon
truthful and accurate information. The Individual Defendants` misrepresentations and omissions
during the Class Period violated these specific requirements and obligations.
19. The Individual Defendants participated in the drafting, preparation, and/or approval
of the various public and shareholder and investor reports and other communications complained of
herein and were aware of, or recklessly disregarded, the misstatements contained therein and
omissions therefrom, and were aware of their materially false and misleading nature. Because of their
Board membership and/or executive and managerial positions with PLUG, each of the Individual
Defendants had access to the adverse undisclosed information about PLUG`s business prospects and
financial condition and performance as particularized herein and knew (or recklessly disregarded) that
these adverse facts rendered the positive representations made by or about PLUG and its business
issued or adopted by the Company materially false and misleading.
20. The Individual Defendants, because of their positions of control and authority as
officers and/or directors of the Company, were able to and did control the content of the various SEC
filings, press releases and other public statements pertaining to the Company during the Class Period.
Each Individual Defendant was provided with copies of the documents alleged herein to be misleading
prior to or shortly after their issuance and/or had the ability and/or opportunity to prevent their
issuance or cause them to be corrected. Accordingly, each of the Individual Defendants is responsible
for the accuracy of the public reports and releases detailed herein and is therefore primarily liable for
the representations contained therein.
21. Each of the defendants is liable as a participant in a fraudulent scheme and course of
business that operated as a fraud or deceit on purchasers of PLUG common stock by disseminating
materially false and misleading statements and/or concealing material adverse facts. The scheme: (i)
deceived the investing public regarding PLUG`s business, operations, products and the intrinsic value
of PLUG common stock; (ii) enabled PLUG insiders to sell more than $9 million of their personally-
held PLUG common stock to the unsuspecting public; and (iii) caused plaintiff and other members
of the Class to purchase PLUG securities at artificially inflated prices.
CLASS ACTION ALLEGATIONS
22. Plaintiff brings this action on behalf of a class (the "Class") pursuant to the Federal
Rules of Civil Procedure 23(a) and 23(b)(3) consisting of all persons who purchased PLUG`s
common stock from January 7, 2000 through and including August 2, 2000 (the "Class Period").
Excluded from the Class are defendants, officers and/or directors of the Company, members of their
immediate families, any entity in which any defendant has a controlling interest or is a parent or
subsidiary of or is controlled by the Company.
23. The members of the class are so numerous that joinder of all members is impracticable.
Although the exact number of class members is unknown at this time and can only be ascertained
from books and records maintained by the Company and/or its agents, plaintiffs believe there are
thousands of members of the Class based upon there being at least 6 million shares of the Company`s
common stock in the public float and the reported trading of an average of several thousand shares
during each day of the Class Period.
24. The members of the class are located throughout the United States. The names and addresses
of the record owners of the shares of common stock purchased during the class period are available
from the Company and/or its transfer agent(s). Notice can be provided to purchasers of the
Company`s common stock by a combination of published notice and first class mail using the form
of notice similar to that customarily used in securities class actions.
25. There are questions of law and fact common to the Class that predominate over questions
affecting any individual member of the Class. Among the questions of law and fact common to the
Class are:
(a) whether the federal securities laws were violated by defendants` acts and omissions
as alleged herein;
(b) whether defendants engaged in any act, practice, or course of business which operated
or would operate as a fraud, deceit upon any person, in connection with the purchase or sale of
PLUG securities;
(c) whether defendants knowingly and/or recklessly disseminated material information in
violation of their duties to plaintiff and the Class; and
(d) whether the members of the Class have sustained damages and, if so, what is the
proper measure of damages.
26. Plaintiff`s claims are typical of the claims of the members of the Class as plaintiff and
members of the Class sustained damages arising out of defendants` wrongful conduct in violations of
federal law as complained of herein.
27. Plaintiff will fairly and adequately protect the interests of the members of the Class and
have retained counsel competent and experienced in class action securities litigation. Plaintiff has no
interest antagonistic to or in conflict with those of the Class.
28. A class action is superior to other available methods for the fair and efficient
adjudication of this controversy since joinder of all members of the Class is impracticable.
Furthermore, because the damages suffered by individual class members may be relatively small, the
expense and burden of individual litigation make it virtually impossible for the class members
individually to redress the wrongs done to them. Plaintiff does not anticipate any difficulty in the
management of this action as a class action.
SUBSTANTIVE ALLEGATIONS
29. PLUG plans to develop and market a fuel cell. The Company`s product is intended to
be an appliance, initially about the size of a refrigerator that will produce electricity through a clean,
efficient process without combustion.
30. PLUG was formed in 1997 as a joint venture between Mechanical Technology and
Edison Development Corporation, a subsidiary of DTE Energy. In February 1999, PLUG partnered
with General Electric ("GE") and formed GE Fuel Cell Systems LLC, which was dedicated to provide
marketing, distribution, service and installation and maintenance of residential fuel cells through GE`s
global network
31. In October 1999, PLUG went public via an initial public offering of 6 million shares
of common stock at $15 per share (the "IPO"). The registration statement (the "Registration
Statement") issued in connection with the IPO described the Company as "a leading designer and
developer of on-site, electricity generation systems utilizing proton exchange membrane (PEM) fuel
cells for residential applications." The Registration Statement highlighted the Company`s relationship
with GE stating in pertinent part as follows:
General Electric Company has selected Plug Power to be its exclusive supplier of fuel
cell systems for residential and commercial applications under 35 Kilowatts. Together
with GE On-Site Power, Inc., a subsidiary of General Electric that operates within
General Electric`s GE Power Systems business, we formed GE Fuel Cell Systems,
LLC, a joint venture dedicated to marketing, selling, installing and servicing Plug
Power fuel cell systems. GE Fuel Cell Systems is the exclusive, global distributor and
servicer of our systems (except in four states assigned to another distributor) and all
systems that it sells will be co-branded with both General Electric and Plug Power
names. We believe that our strength in fuel cell system design and development,
coupled with General Electric`s brand name, worldwide sales and distribution
network, service capabilities and commitment to the commercialization of our fuel cell
system to market and, by doing so, establish the industry standard for this new
product.
The Registration Statement also represented that the Company intended to "leverage" its "strategic
alliance" with GE to "achieve market leadership."
32. Furthermore, the Registration Statement provided details on the relationship between the
Company and GE. As described in the Registration Statement, "all of our [PLUG] revenue for the
foreseeable future will be derived from sales of our products to GE Fuel Cell Systems." In this regard,
the Registration Statement stated:
Under our distribution agreement, we will sell our systems directly to GE Fuel Cell
Systems, which, in turn, will seek to sell them to selected resellers. We are also
obligated to purchase $12.0 million of technical support services from General
Electric during the next three years. This agreement expires in 2009, although GE
Fuel Cell Systems may terminate the agreement earlier if, among other reasons, we
fail to do any of the following: produce competitive fuel cell systems; meet production
and cost requirements; produce systems that comply with regulatory requirements;
or obtain all necessary approvals and certifications for our systems.
33. The Company`s relationship with GE and, more importantly, its ability to satisfy its obligations
under the GE Agreement were thus highly material to PLUG and investors in its stock. Throughout
the Class Period, defendants issued a series of statements concerning PLUG, its products and
operations that were materially false and misleading because they misrepresented and failed to
disclose the following adverse facts:
(a) PLUG was unable to produce fuel cells in conformance with the contractual
specifications set forth in its agreement with GE. As a result, the Company`s relationship with GE was
subject to increased risk and uncertainty and GE would be able to terminate its agreement with PLUG
without having to purchase any PLUG fuel cells;
(b) PLUG`s fuel cell technology was not commercially viable and the Company`s efforts
to refine its technology were not meeting with success. Accordingly, defendants` statements
concerning the Company`s future plans for the sale and marketing of its fuel cells were lacking in a
reasonable basis at all times; and
(c) PLUG would experience greater operating losses than anticipated by the market and
would therefore not be profitable in the near future.
MATERIALLY FALSE AND MISLEADING
STATEMENTS ISSUED DURING THE CLASS PERIOD
34. On January 7, 2000, the Company issued a press release designed to, and did, convey the
impression that PLUG was successfully completing the construction of completed fuel cell systems
and proceeding with its announced goal of developing and marketing fuel cells. Under the headline
"Plug Power completes 1999 with success", the company announced the completion of 52 fuel cells,
the awarding of additional patents and trumpeted its list of strategic partners including General
Electric.
35. On February 14, 2000, the Company issued a pair of press releases which were designed to,
and did, convey the impression that PLUG was successfully proceeding with its announced goal of
developing and marketing fuel cells. The first press release issued in the morning contained a headline
that "Plug Power Fuel Cell Clears Milestone" and announced "that it ha[d] successfully run a proton
exchange membrane (PEM) fuel cell over 10,000 hours. The press release quoted defendant
Mittleman as stating that:
Creating extremely reliable fuel cell systems has been our main focus at Plug Power,
and this operating milestone brings us one step closer to that important goal. Our
customers expect to have a system that keeps running and running, and that`s what we
intend to deliver.
36. After the close of trading on February 14, 2000, PLUG issued another press release
announcing that it had completed its new 50,000 square foot manufacturing facility. The press release
quoted defendant Mittleman as stating that:
We`re not another R&D shop. Our success is based on implementing a commercial
strategy. The opening of our manufacturing facility takes us one step closer to our
goal.
37. Investors reacted favorably to this reported breakthrough by bidding up the price of PLUG`s
common stock from its previous closing price of $112.125 to close that day at $133.50, a gain of
almost 20%, on high reported volume of more than 1,500,000 shares.
38. On March 29, 2000, PLUG filed its Form 10-K for fiscal year 1999 with the SEC that
confirmed its previously announced financial results. The 1999 10-K described the Company`s
product development plans and, among other things, stated that:
In year 2000, we [PLUG] expect to begin small-scale production of our pre-
commercial systems. GE Fuel Cell Systems. . . has committed to purchase 485 of
these systems and is expected to place them with its local market distribution partners.
39. On April 18, 2000, the Company issued a press release announcing that it had signed an
agreement with a German company to develop technology to simplify residential fuel cells. The press
release quoted defendant Mittleman as stating that: "Our development efforts are targeted at reducing
cost, size and weight, so that it will be commercially attractive. This agreement puts us one step
closer to that goal."
THE TRUTH BEGINS TO EMERGE
40. On May 4, 2000, PLUG issued a press release announcing its financial results for the first
quarter of 2000, the period ending March 31, 2000 (the "May 4th Press Release"). The Company
reported that revenues were $2.9 million as compared to $1.7 million for the same period the prior
year. The Company further noted that it had produced 22 fuel cell systems during the first quarter and
that a total of 17 systems were "installed in the field." Defendant Mittleman stated:
We are continuing to ramp up our production activities in order to produce 500 pre-
commercial fuel cell systems by the year-end 2000. . . These 500 pre-commercial test
and evaluation systems are expected to be sold or used for: distribution through GE
Microgen and DTE Energy Company to various customers and distributors; internal
operational testing; and installation at various locations in New York funded through
grants to Plug Power from the State of New York.
The press release also revealed for the first time that the Company was unable to produce fuel cells
to the specifications required by its agreement with GE and that GE was entitled to terminate the
agreement:
The pre-commercial units which Plug Power is now developing do not conform to the
specifications originally agreed upon with GE in February 1999. As a result, GE is no
longer contractually obligated to purchase the 485 units under its take or pay
commitment. We do however expect that GE will be purchasing a large number of
these modified designs during the remainder of the year and the first half of 2001. We
are currently working out the terms of this arrangement and our relationship with GE
remains intact.
41. The May 4th Press Release was only a partial disclosure as defendants continued to obscure
material facts with respect to PLUG`s business and operations. Taking advantage of the inflated price
of PLUG`s common stock, defendant Mittleman proceeded to sell 23,000 shares of the Company`s
common stock for total proceeds exceeding $1,200,000; while Manmohan Dahar, the Company`s
Vice President and Chief Engineer, sold 67,500 shares for net proceeds of more than $3,400,000; and
Louis R. Tomson, the Company`s Vice President for Corporate Development, sold 97,800 shares for
net proceeds of more than $4,800,000. These were the first sales of PLUG stock by any of these
PLUG senior executives since the time the Company`s stock became publicly traded.
42. On June 14, 2000, PLUG issued a press release entitled "Plug Power Organizes for Product
Delivery." Defendant Mittleman was quoted in pertinent part as follows:
"These changes are the result of our evolution from a research and development
organization to a company with products for the marketplace,". . . "The establishment
of a marketing and delivery organization and the close alignment of development and
manufacturing will bring an increased focus on our efforts to deliver our first
commercial residential fuel cells to market."
These statements were materially false and misleading for the reasons stated in 33.
43. Then, On August 2, 2000, PLUG issued a press release disclosing that (i) the
Company would cut its manufacturing schedule to 125 systems for the year, (ii) have operating losses
which would continue through the year 2003; and (iii) PLUG`s fuel cells would not become
commercially available until 2002 at the earliest.
44. This rollback in commercial availability of any PLUG fuel cell demonstrated that the
Company was, in fact, contrary to its earlier representations, just an R&D (research and development)
shop with a potential product the commercial development of which was a distant hope rather than
an imminent reality. Investor reaction to this new surprise caused PLUG`s stock to decline by more
than $12 per share to close at $39.50 per share.
45. On August 23, 2000, the Company issued a press release announcing that defendant
Mittleman had resigned from his positions with PLUG.
COUNT I
AGAINST ALL DEFENDANTS FOR VIOLATIONS
OF SECTION 10b-5 OF THE EXCHANGE ACT
46. Plaintiff repeats and realleges the allegations above as if fully set forth herein.
47. During the Class Period, defendants, singly and in concert, directly or indirectly
engaged in a common plan, scheme, and unlawful course of conduct pursuant to which they
knowingly or recklessly engaged in acts, transactions, practices, and courses of business which
operated as a fraud and deceit upon plaintiff and the other members of the Class. As set forth in detail
above, the defendants made a deceptive and untrue statement of material fact and omitted to state
material facts necessary in order to make the statement made, in light of the circumstances under
which it as made, not misleading to plaintiff and the other members of the Class and defendants
Mittleman, Dahar and Tompson sold PLUG common stock while in possession of material adverse
information concerning the Company`s operations.
48. Defendants possessed the requisite motive and opportunity to perpetrate the massive
financial fraud detailed herein. A primary purpose and effect of defendants` scheme, plan, and
unlawful course of conduct was to enable the Individual Defendants and other corporate insiders to
profit from selling tens of thousands of PLUG shares to members of the investing public at artificially
inflated prices.
49. During the Class Period, defendants, pursuant to said scheme, plan, and unlawful
course of conduct, knowingly or recklessly issued, caused to be issued, participated in the preparation
and issuance of a deceptive and materially false and misleading statements to the investing public as
alleged above.
50. Defendants each knew and intended to deceive plaintiff and other members of the
Class, or in the alternative, acted with reckless disregard for the truth when they failed to disclose or
cause the disclosure of the true facts to plaintiffs and the other members of the Class.
51. Each defendant participated in and joined the alleged scheme and course of conduct
detailed above and each is liable primarily for the wrongful acts and statements detailed herein.
52. As a result of the dissemination of the false and misleading statements and omissions
set forth above, the market price of PLUG common stock was artificially inflated throughout the
Class Period. In ignorance of the false and misleading nature of the representations described above
and the deceptive and manipulative devices and contrivances employed by said defendants, plaintiff
and the other members of the Class relied to their detriment on the integrity of the market place of
the stock in purchasing PLUG common stock. Had plaintiff and other members of the Class known
of the materially adverse information misrepresented or not disclosed by defendants, they would not
have purchased PLUG common stock at the artificially inflated prices that they did.
53. As a result of the inflation of the price of PLUG common stock during the Class
Period caused by defendants` material misrepresentations and omissions, plaintiff and the other
members of the Class have suffered substantial damages as a result of the wrongs alleged.
54. By reason of the foregoing, defendants, directly or indirectly, violated the Exchange
Act and Rule 10b-5 promulgated thereunder in that they;
a. employed devices, schemes, and artifices to defraud;
b. made untrue statements of material facts and/or omitted to state material facts
necessary in order to make the statements made in light of the circumstances under which they were
made, not misleading; and/or
c. engaged in acts, practices, and a course of business that operated as a fraud and deceit
and a scheme to defraud upon plaintiff and the other members of the Class in connection with their
purchases of PLUG securities during the Class Period.
55. By virtue of the foregoing, Defendants violated Section 10(b) and Rule 10b-5 of the
Exchange Act.
COUNT II
AGAINST INDIVIDUAL DEFENDANTS
PURSUANT TO SECTION 20(a) OF THE 1934 ACT
56. Plaintiff repeats and realleges the foregoing allegations as if set forth in full herein.
57. The Individual Defendants, by virtue of their positions and the specific acts described
above, was, at the time of the wrongs alleged herein, controlling persons of PLUG within the meaning
of Section 20(a) of the Exchange Act.
58. The Individual Defendants had the power and influence and exercised the same to
cause PLUG to engage in the illegal conduct and practices complained of herein.
59. By reason of the conduct alleged in Count I of the Complaint, the Individual
Defendants are liable for the aforesaid wrongful conduct, and are liable to plaintiff and the other
members of the Class.
WHEREFORE, plaintiff, prays for judgment as follows:
A. Appointing plaintiff a lead plaintiff pursuant to Section 2 1D of the Exchange Act, 15
U.S.C. 78u-4, and appointing his counsel as Lead Counsel;
B. Declaring this action to be a proper class action maintainable pursuant to Fed. R. Civ.
P. 23 and declaring Plaintiff to be a proper Class representative and Plaintiffs` counsel to be Class
Counsel;
C. Awarding Plaintiff and other members of the Class damages suffered as a result of the
wrongs complained of herein together with pre-judgement and post-judgment interest;
D. Awarding Plaintiff and other members of the Class their costs and expenses of this
litigation, including reasonable attorneys` fees and experts fees and other costs and disbursements; and
E. Awarding Plaintiff and other members of the Class such other and further relief as may
be just and proper under the circumstances.
Dated: September 20, 2000
WECSHLER HARWOOD
HALEBIAN & FEFFER LLP
By:______________________________
Robert I. Harwood (RH- 3286 )
Scott A. Kamber (SK-5794)
488 Madison Avenue
New York, New York 10022
(212) 935-7400
Lionel Z. Glancy
Mike Goldberg
LAW OFFICES OF LIONEL Z. GLANCY
1801 Avenue of the Stars
Los Angeles, CA 90067
(310) 201-9150
Attorneys for Plaintiff and
Putative Class
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
================================x
DANA ROSS, On Behalf Of Himself :
And All Others Similarly Situated, : Case No.:
:
Plaintiff, :
:
vs. :
:
PLUG POWER INC., GARY :
MITTLEMAN, MANMOHAN DAHAR, : JURY TRIAL BY DEMAND
and LOUIS R. TOMPSON, :
:
Defendants. :
================================x
CLASS ACTION COMPLAINT
Plaintiff, by its undersigned attorneys, alleges upon personal knowledge as to himself and his
own acts, and upon information and belief as to all other matters, based upon, the investigation made
by and through its attorneys, which included, inter alia, a review of articles in the financial news
media, press releases, and other publicly available information concerning Plug Power Inc. ("PLUG"
or the "Company").
NATURE OF THE ACTION
1. This is a class action on behalf of a class (the "Class") of all persons who purchased
or otherwise acquired the common stock ("common stock") of PLUG between January 7, 2000, and
August 2, 2000 (the "Class Period), seeking to pursue remedies under the Securities Exchange Act
of 1934 ("1934 Act").
2. PLUG is a developmental stage company in the business of designing and developing
fuel cells for commercial and residential use. A material, if not the most important, asset of the
Company was the contractual obligation of General Electric Company ("GE"), one of the nation`s
largest conglomerates and suppliers of equipment to the electric utility industry, to purchase
significant quantities of PLUG`s fuel cells once they were produced.
3. On the strength of this material relationship, PLUG`s common stock had traded for
prices higher than $150 per share with the stock closing at $81.3125 on May 3, 2000. The elevated
price of the Company`s common stock was accompanied and assisted by a steady stream of press
releases disclosing the purported continued corporate progress of PLUG.
4. On the next day, May 4, 2000, in connection with disclosing its results for the fiscal
quarter ended March 31, 2000, the Company also disclosed for the first time that the pre-commercial
fuel cells PLUG was developing did not conform to the contractual specifications originally agreed
upon with GE in February 1999.
5. Investor reaction to this shocking disclosure was swift and brutal with PLUG`s stock
declining to close at $59.4375, or more than 25% in a single day, on reported volume exceeding
2,000,000 shares, or more than one-third of the reported shares in the Company`s public float.
Defendants, however, continued to conceal material information concerning the Company`s
operations and products.
6. Shortly after the May 4th Press Release, certain insiders of PLUG sold shares of PLUG
common stock to the public while in the possession of the true facts about the Company. These sales
generated proceeds of more than $9 million.
7. Then, on August 2, 2000, PLUG finally disclosed that: (i) it would cut its
manufacturing schedule to 125 systems for the year, (ii) operating losses would continue through the
year 2003; and (iii) PLUG`s fuel cells would not become commercially available until 2002 at the
earliest. This made it clear that PLUG does not possess any breakthrough technology that will allow
the Company to rapidly move its fuel cells towards commercial availability.
8. Investor reaction to this new surprise caused PLUG`s stock to decline by more than
$12 per share to close at $39.50 per share, causing further damage to investors who had purchase
PLUG stock.
JURISDICTION AND VENUE
9. This action arises under 10(b) and 20(a) of the Securities and Exchange Act of 1934
(the "Exchange Act"), 15 U.S.C. 78j(b) and 78t(a), and Rule 10b-5 promulgated thereunder by the
Securities and Exchange Commission ("SEC"), 17 C.F.R. 240.10b-5.
10. Jurisdiction is conferred upon this Court by 27 of the Exchange Act, 15 U.S.C 78aa
and 28 U.S.C. 1331 (federal question jurisdiction).
11. Venue is proper in this District because related cases have been previously filed in this
District many of the acts and transactions constituting the violations of law herein complained of
occurred within this District.
12. In connection with the acts alleged herein, Defendants, directly or indirectly, used the
means and instrumentalities of interstate commerce, including the facilities of NASDAQ National
Market, a national securities exchange.
PARTIES
13. Plaintiff purchased shares of the Company`s stock during the Class Period, as set forth
in the accompanying Certification that is incorporated herein by reference, and was damaged thereby.
14. Defendant PLUG is incorporated under the laws of the State of Delaware and
maintains its principal executive offices at 968 Albany-Shaker Road, Latham, New York 12110.
PLUG purportedly designs and develops on-site, electricity generation systems utilizing proton
exchange membrane fuel cells.
15. The individual defendants (the "Individual Defendants"), at all times relevant to this
action, served in the capacities listed below and received substantial compensation:
Name Position
Gary Mittleman President and Chief Executive Officer
Manmohan Dahar Vice-President and Chief Engineer
Louis R. Tompson Vice President- Corporate Development
16. Because of the Individual Defendants` positions with the Company, they had access
to the adverse undisclosed information about its business, operations, products, operational trends,
financial statements, markets and present and future business prospects via access to internal
corporate documents (including the Company`s operating plans, budgets and forecasts and reports
of actual operations compared thereto), conversations and connections with other corporate officers
and employees, attendance at management and Board of Directors meetings and committees thereof
and via reports and other information provided to them in connection therewith.
17. It is appropriate to treat the Individual Defendants as a group for pleading purposes
and to presume that the false, misleading and incomplete information conveyed in the Company`s
public filings, press releases and other publications as alleged herein are the collective actions of the
narrowly defined group of defendants identified above. Each of the above officers of PLUG, by virtue
of their high-level positions with the Company, directly participated in the management of the
Company, was directly involved in the day-to-day operations of the Company at the highest levels
and was privy to confidential proprietary information concerning the Company and its business,
operations, products, growth, financial statements, and financial condition, as alleged herein. Said
defendants were involved in drafting, producing, reviewing and/or disseminating the false and
misleading statements and information alleged herein, were aware or recklessly disregarded, that the
false and misleading statements were being issued regarding the Company, and approved or ratified
these statements, in violation of the federal securities laws.
18. As officers and controlling persons of a publicly-held company whose common stock
was, and is, registered with the SEC pursuant to the Exchange Act, traded on the NASDAQ National
Market (the "NASDAQ"), and governed by the provisions of the federal securities laws, the
Individual Defendants each had a duty to disseminate promptly, accurate and truthful information
with respect to the Company`s financial condition and performance, growth, operations, financial
statements, business, products, markets, management, earnings and present and future business
prospects, and to correct any previously-issued statements that had become materially misleading or
untrue, so that the market price of the Company`s publicly-traded securities would be based upon
truthful and accurate information. The Individual Defendants` misrepresentations and omissions
during the Class Period violated these specific requirements and obligations.
19. The Individual Defendants participated in the drafting, preparation, and/or approval
of the various public and shareholder and investor reports and other communications complained of
herein and were aware of, or recklessly disregarded, the misstatements contained therein and
omissions therefrom, and were aware of their materially false and misleading nature. Because of their
Board membership and/or executive and managerial positions with PLUG, each of the Individual
Defendants had access to the adverse undisclosed information about PLUG`s business prospects and
financial condition and performance as particularized herein and knew (or recklessly disregarded) that
these adverse facts rendered the positive representations made by or about PLUG and its business
issued or adopted by the Company materially false and misleading.
20. The Individual Defendants, because of their positions of control and authority as
officers and/or directors of the Company, were able to and did control the content of the various SEC
filings, press releases and other public statements pertaining to the Company during the Class Period.
Each Individual Defendant was provided with copies of the documents alleged herein to be misleading
prior to or shortly after their issuance and/or had the ability and/or opportunity to prevent their
issuance or cause them to be corrected. Accordingly, each of the Individual Defendants is responsible
for the accuracy of the public reports and releases detailed herein and is therefore primarily liable for
the representations contained therein.
21. Each of the defendants is liable as a participant in a fraudulent scheme and course of
business that operated as a fraud or deceit on purchasers of PLUG common stock by disseminating
materially false and misleading statements and/or concealing material adverse facts. The scheme: (i)
deceived the investing public regarding PLUG`s business, operations, products and the intrinsic value
of PLUG common stock; (ii) enabled PLUG insiders to sell more than $9 million of their personally-
held PLUG common stock to the unsuspecting public; and (iii) caused plaintiff and other members
of the Class to purchase PLUG securities at artificially inflated prices.
CLASS ACTION ALLEGATIONS
22. Plaintiff brings this action on behalf of a class (the "Class") pursuant to the Federal
Rules of Civil Procedure 23(a) and 23(b)(3) consisting of all persons who purchased PLUG`s
common stock from January 7, 2000 through and including August 2, 2000 (the "Class Period").
Excluded from the Class are defendants, officers and/or directors of the Company, members of their
immediate families, any entity in which any defendant has a controlling interest or is a parent or
subsidiary of or is controlled by the Company.
23. The members of the class are so numerous that joinder of all members is impracticable.
Although the exact number of class members is unknown at this time and can only be ascertained
from books and records maintained by the Company and/or its agents, plaintiffs believe there are
thousands of members of the Class based upon there being at least 6 million shares of the Company`s
common stock in the public float and the reported trading of an average of several thousand shares
during each day of the Class Period.
24. The members of the class are located throughout the United States. The names and addresses
of the record owners of the shares of common stock purchased during the class period are available
from the Company and/or its transfer agent(s). Notice can be provided to purchasers of the
Company`s common stock by a combination of published notice and first class mail using the form
of notice similar to that customarily used in securities class actions.
25. There are questions of law and fact common to the Class that predominate over questions
affecting any individual member of the Class. Among the questions of law and fact common to the
Class are:
(a) whether the federal securities laws were violated by defendants` acts and omissions
as alleged herein;
(b) whether defendants engaged in any act, practice, or course of business which operated
or would operate as a fraud, deceit upon any person, in connection with the purchase or sale of
PLUG securities;
(c) whether defendants knowingly and/or recklessly disseminated material information in
violation of their duties to plaintiff and the Class; and
(d) whether the members of the Class have sustained damages and, if so, what is the
proper measure of damages.
26. Plaintiff`s claims are typical of the claims of the members of the Class as plaintiff and
members of the Class sustained damages arising out of defendants` wrongful conduct in violations of
federal law as complained of herein.
27. Plaintiff will fairly and adequately protect the interests of the members of the Class and
have retained counsel competent and experienced in class action securities litigation. Plaintiff has no
interest antagonistic to or in conflict with those of the Class.
28. A class action is superior to other available methods for the fair and efficient
adjudication of this controversy since joinder of all members of the Class is impracticable.
Furthermore, because the damages suffered by individual class members may be relatively small, the
expense and burden of individual litigation make it virtually impossible for the class members
individually to redress the wrongs done to them. Plaintiff does not anticipate any difficulty in the
management of this action as a class action.
SUBSTANTIVE ALLEGATIONS
29. PLUG plans to develop and market a fuel cell. The Company`s product is intended to
be an appliance, initially about the size of a refrigerator that will produce electricity through a clean,
efficient process without combustion.
30. PLUG was formed in 1997 as a joint venture between Mechanical Technology and
Edison Development Corporation, a subsidiary of DTE Energy. In February 1999, PLUG partnered
with General Electric ("GE") and formed GE Fuel Cell Systems LLC, which was dedicated to provide
marketing, distribution, service and installation and maintenance of residential fuel cells through GE`s
global network
31. In October 1999, PLUG went public via an initial public offering of 6 million shares
of common stock at $15 per share (the "IPO"). The registration statement (the "Registration
Statement") issued in connection with the IPO described the Company as "a leading designer and
developer of on-site, electricity generation systems utilizing proton exchange membrane (PEM) fuel
cells for residential applications." The Registration Statement highlighted the Company`s relationship
with GE stating in pertinent part as follows:
General Electric Company has selected Plug Power to be its exclusive supplier of fuel
cell systems for residential and commercial applications under 35 Kilowatts. Together
with GE On-Site Power, Inc., a subsidiary of General Electric that operates within
General Electric`s GE Power Systems business, we formed GE Fuel Cell Systems,
LLC, a joint venture dedicated to marketing, selling, installing and servicing Plug
Power fuel cell systems. GE Fuel Cell Systems is the exclusive, global distributor and
servicer of our systems (except in four states assigned to another distributor) and all
systems that it sells will be co-branded with both General Electric and Plug Power
names. We believe that our strength in fuel cell system design and development,
coupled with General Electric`s brand name, worldwide sales and distribution
network, service capabilities and commitment to the commercialization of our fuel cell
system to market and, by doing so, establish the industry standard for this new
product.
The Registration Statement also represented that the Company intended to "leverage" its "strategic
alliance" with GE to "achieve market leadership."
32. Furthermore, the Registration Statement provided details on the relationship between the
Company and GE. As described in the Registration Statement, "all of our [PLUG] revenue for the
foreseeable future will be derived from sales of our products to GE Fuel Cell Systems." In this regard,
the Registration Statement stated:
Under our distribution agreement, we will sell our systems directly to GE Fuel Cell
Systems, which, in turn, will seek to sell them to selected resellers. We are also
obligated to purchase $12.0 million of technical support services from General
Electric during the next three years. This agreement expires in 2009, although GE
Fuel Cell Systems may terminate the agreement earlier if, among other reasons, we
fail to do any of the following: produce competitive fuel cell systems; meet production
and cost requirements; produce systems that comply with regulatory requirements;
or obtain all necessary approvals and certifications for our systems.
33. The Company`s relationship with GE and, more importantly, its ability to satisfy its obligations
under the GE Agreement were thus highly material to PLUG and investors in its stock. Throughout
the Class Period, defendants issued a series of statements concerning PLUG, its products and
operations that were materially false and misleading because they misrepresented and failed to
disclose the following adverse facts:
(a) PLUG was unable to produce fuel cells in conformance with the contractual
specifications set forth in its agreement with GE. As a result, the Company`s relationship with GE was
subject to increased risk and uncertainty and GE would be able to terminate its agreement with PLUG
without having to purchase any PLUG fuel cells;
(b) PLUG`s fuel cell technology was not commercially viable and the Company`s efforts
to refine its technology were not meeting with success. Accordingly, defendants` statements
concerning the Company`s future plans for the sale and marketing of its fuel cells were lacking in a
reasonable basis at all times; and
(c) PLUG would experience greater operating losses than anticipated by the market and
would therefore not be profitable in the near future.
MATERIALLY FALSE AND MISLEADING
STATEMENTS ISSUED DURING THE CLASS PERIOD
34. On January 7, 2000, the Company issued a press release designed to, and did, convey the
impression that PLUG was successfully completing the construction of completed fuel cell systems
and proceeding with its announced goal of developing and marketing fuel cells. Under the headline
"Plug Power completes 1999 with success", the company announced the completion of 52 fuel cells,
the awarding of additional patents and trumpeted its list of strategic partners including General
Electric.
35. On February 14, 2000, the Company issued a pair of press releases which were designed to,
and did, convey the impression that PLUG was successfully proceeding with its announced goal of
developing and marketing fuel cells. The first press release issued in the morning contained a headline
that "Plug Power Fuel Cell Clears Milestone" and announced "that it ha[d] successfully run a proton
exchange membrane (PEM) fuel cell over 10,000 hours. The press release quoted defendant
Mittleman as stating that:
Creating extremely reliable fuel cell systems has been our main focus at Plug Power,
and this operating milestone brings us one step closer to that important goal. Our
customers expect to have a system that keeps running and running, and that`s what we
intend to deliver.
36. After the close of trading on February 14, 2000, PLUG issued another press release
announcing that it had completed its new 50,000 square foot manufacturing facility. The press release
quoted defendant Mittleman as stating that:
We`re not another R&D shop. Our success is based on implementing a commercial
strategy. The opening of our manufacturing facility takes us one step closer to our
goal.
37. Investors reacted favorably to this reported breakthrough by bidding up the price of PLUG`s
common stock from its previous closing price of $112.125 to close that day at $133.50, a gain of
almost 20%, on high reported volume of more than 1,500,000 shares.
38. On March 29, 2000, PLUG filed its Form 10-K for fiscal year 1999 with the SEC that
confirmed its previously announced financial results. The 1999 10-K described the Company`s
product development plans and, among other things, stated that:
In year 2000, we [PLUG] expect to begin small-scale production of our pre-
commercial systems. GE Fuel Cell Systems. . . has committed to purchase 485 of
these systems and is expected to place them with its local market distribution partners.
39. On April 18, 2000, the Company issued a press release announcing that it had signed an
agreement with a German company to develop technology to simplify residential fuel cells. The press
release quoted defendant Mittleman as stating that: "Our development efforts are targeted at reducing
cost, size and weight, so that it will be commercially attractive. This agreement puts us one step
closer to that goal."
THE TRUTH BEGINS TO EMERGE
40. On May 4, 2000, PLUG issued a press release announcing its financial results for the first
quarter of 2000, the period ending March 31, 2000 (the "May 4th Press Release"). The Company
reported that revenues were $2.9 million as compared to $1.7 million for the same period the prior
year. The Company further noted that it had produced 22 fuel cell systems during the first quarter and
that a total of 17 systems were "installed in the field." Defendant Mittleman stated:
We are continuing to ramp up our production activities in order to produce 500 pre-
commercial fuel cell systems by the year-end 2000. . . These 500 pre-commercial test
and evaluation systems are expected to be sold or used for: distribution through GE
Microgen and DTE Energy Company to various customers and distributors; internal
operational testing; and installation at various locations in New York funded through
grants to Plug Power from the State of New York.
The press release also revealed for the first time that the Company was unable to produce fuel cells
to the specifications required by its agreement with GE and that GE was entitled to terminate the
agreement:
The pre-commercial units which Plug Power is now developing do not conform to the
specifications originally agreed upon with GE in February 1999. As a result, GE is no
longer contractually obligated to purchase the 485 units under its take or pay
commitment. We do however expect that GE will be purchasing a large number of
these modified designs during the remainder of the year and the first half of 2001. We
are currently working out the terms of this arrangement and our relationship with GE
remains intact.
41. The May 4th Press Release was only a partial disclosure as defendants continued to obscure
material facts with respect to PLUG`s business and operations. Taking advantage of the inflated price
of PLUG`s common stock, defendant Mittleman proceeded to sell 23,000 shares of the Company`s
common stock for total proceeds exceeding $1,200,000; while Manmohan Dahar, the Company`s
Vice President and Chief Engineer, sold 67,500 shares for net proceeds of more than $3,400,000; and
Louis R. Tomson, the Company`s Vice President for Corporate Development, sold 97,800 shares for
net proceeds of more than $4,800,000. These were the first sales of PLUG stock by any of these
PLUG senior executives since the time the Company`s stock became publicly traded.
42. On June 14, 2000, PLUG issued a press release entitled "Plug Power Organizes for Product
Delivery." Defendant Mittleman was quoted in pertinent part as follows:
"These changes are the result of our evolution from a research and development
organization to a company with products for the marketplace,". . . "The establishment
of a marketing and delivery organization and the close alignment of development and
manufacturing will bring an increased focus on our efforts to deliver our first
commercial residential fuel cells to market."
These statements were materially false and misleading for the reasons stated in 33.
43. Then, On August 2, 2000, PLUG issued a press release disclosing that (i) the
Company would cut its manufacturing schedule to 125 systems for the year, (ii) have operating losses
which would continue through the year 2003; and (iii) PLUG`s fuel cells would not become
commercially available until 2002 at the earliest.
44. This rollback in commercial availability of any PLUG fuel cell demonstrated that the
Company was, in fact, contrary to its earlier representations, just an R&D (research and development)
shop with a potential product the commercial development of which was a distant hope rather than
an imminent reality. Investor reaction to this new surprise caused PLUG`s stock to decline by more
than $12 per share to close at $39.50 per share.
45. On August 23, 2000, the Company issued a press release announcing that defendant
Mittleman had resigned from his positions with PLUG.
COUNT I
AGAINST ALL DEFENDANTS FOR VIOLATIONS
OF SECTION 10b-5 OF THE EXCHANGE ACT
46. Plaintiff repeats and realleges the allegations above as if fully set forth herein.
47. During the Class Period, defendants, singly and in concert, directly or indirectly
engaged in a common plan, scheme, and unlawful course of conduct pursuant to which they
knowingly or recklessly engaged in acts, transactions, practices, and courses of business which
operated as a fraud and deceit upon plaintiff and the other members of the Class. As set forth in detail
above, the defendants made a deceptive and untrue statement of material fact and omitted to state
material facts necessary in order to make the statement made, in light of the circumstances under
which it as made, not misleading to plaintiff and the other members of the Class and defendants
Mittleman, Dahar and Tompson sold PLUG common stock while in possession of material adverse
information concerning the Company`s operations.
48. Defendants possessed the requisite motive and opportunity to perpetrate the massive
financial fraud detailed herein. A primary purpose and effect of defendants` scheme, plan, and
unlawful course of conduct was to enable the Individual Defendants and other corporate insiders to
profit from selling tens of thousands of PLUG shares to members of the investing public at artificially
inflated prices.
49. During the Class Period, defendants, pursuant to said scheme, plan, and unlawful
course of conduct, knowingly or recklessly issued, caused to be issued, participated in the preparation
and issuance of a deceptive and materially false and misleading statements to the investing public as
alleged above.
50. Defendants each knew and intended to deceive plaintiff and other members of the
Class, or in the alternative, acted with reckless disregard for the truth when they failed to disclose or
cause the disclosure of the true facts to plaintiffs and the other members of the Class.
51. Each defendant participated in and joined the alleged scheme and course of conduct
detailed above and each is liable primarily for the wrongful acts and statements detailed herein.
52. As a result of the dissemination of the false and misleading statements and omissions
set forth above, the market price of PLUG common stock was artificially inflated throughout the
Class Period. In ignorance of the false and misleading nature of the representations described above
and the deceptive and manipulative devices and contrivances employed by said defendants, plaintiff
and the other members of the Class relied to their detriment on the integrity of the market place of
the stock in purchasing PLUG common stock. Had plaintiff and other members of the Class known
of the materially adverse information misrepresented or not disclosed by defendants, they would not
have purchased PLUG common stock at the artificially inflated prices that they did.
53. As a result of the inflation of the price of PLUG common stock during the Class
Period caused by defendants` material misrepresentations and omissions, plaintiff and the other
members of the Class have suffered substantial damages as a result of the wrongs alleged.
54. By reason of the foregoing, defendants, directly or indirectly, violated the Exchange
Act and Rule 10b-5 promulgated thereunder in that they;
a. employed devices, schemes, and artifices to defraud;
b. made untrue statements of material facts and/or omitted to state material facts
necessary in order to make the statements made in light of the circumstances under which they were
made, not misleading; and/or
c. engaged in acts, practices, and a course of business that operated as a fraud and deceit
and a scheme to defraud upon plaintiff and the other members of the Class in connection with their
purchases of PLUG securities during the Class Period.
55. By virtue of the foregoing, Defendants violated Section 10(b) and Rule 10b-5 of the
Exchange Act.
COUNT II
AGAINST INDIVIDUAL DEFENDANTS
PURSUANT TO SECTION 20(a) OF THE 1934 ACT
56. Plaintiff repeats and realleges the foregoing allegations as if set forth in full herein.
57. The Individual Defendants, by virtue of their positions and the specific acts described
above, was, at the time of the wrongs alleged herein, controlling persons of PLUG within the meaning
of Section 20(a) of the Exchange Act.
58. The Individual Defendants had the power and influence and exercised the same to
cause PLUG to engage in the illegal conduct and practices complained of herein.
59. By reason of the conduct alleged in Count I of the Complaint, the Individual
Defendants are liable for the aforesaid wrongful conduct, and are liable to plaintiff and the other
members of the Class.
WHEREFORE, plaintiff, prays for judgment as follows:
A. Appointing plaintiff a lead plaintiff pursuant to Section 2 1D of the Exchange Act, 15
U.S.C. 78u-4, and appointing his counsel as Lead Counsel;
B. Declaring this action to be a proper class action maintainable pursuant to Fed. R. Civ.
P. 23 and declaring Plaintiff to be a proper Class representative and Plaintiffs` counsel to be Class
Counsel;
C. Awarding Plaintiff and other members of the Class damages suffered as a result of the
wrongs complained of herein together with pre-judgement and post-judgment interest;
D. Awarding Plaintiff and other members of the Class their costs and expenses of this
litigation, including reasonable attorneys` fees and experts fees and other costs and disbursements; and
E. Awarding Plaintiff and other members of the Class such other and further relief as may
be just and proper under the circumstances.
Dated: September 20, 2000
WECSHLER HARWOOD
HALEBIAN & FEFFER LLP
By:______________________________
Robert I. Harwood (RH- 3286 )
Scott A. Kamber (SK-5794)
488 Madison Avenue
New York, New York 10022
(212) 935-7400
Lionel Z. Glancy
Mike Goldberg
LAW OFFICES OF LIONEL Z. GLANCY
1801 Avenue of the Stars
Los Angeles, CA 90067
(310) 201-9150
Attorneys for Plaintiff and
Putative Class
Der angesprochene Artikel:
http://www.timesunion.com/AspStories/story.asp?
storyKey=43109&BCCode=&newsdate=10/8/00
By KENNETH AARON, Business writer
First published: Sunday, October 8, 2000
Suits rise on falling stock
Colonie-- Fraud claims against Plug Power allege insiders profited at the expense of investors
It was Bill Lerach -- the not-so-affectionately dubbed "King of the Class-Action Lawsuit`` -- whose firm filed the first fraud complaint against Plug Power Inc. three weeks ago.
Not long after, another followed. Then another. Then three more. Then another three.
Now, there are no fewer than 14 shareholder suits against Plug, each alleging that insiders at the Latham fuel-cell developer swindled investors by spreading false information, holding back bad news and dumping shares before anyone noticed.
Named in the case are former Plug president and chief executive officer Gary Mittleman, senior vice president Louis R. Tomson and vice president Manmohan Dhar.
Fourteen sets of near-identical allegations are enough to raise the eyebrows of any investor, and, indeed, Plug shares have plummeted since the first suits started rolling out with bus-depot regularity. But the cases also are symptoms of a regulatory system considered seriously flawed by no less than a former commissioner of the U.S. Securities and Exchange Commission.
Examination of some of the suits that followed the Lerach one indicates more of an urge to pile on than a devotion to due diligence. Consider: Not only do subsequent suits more or less crib the same language from the Lerach suit, but some also misspell the name of not one, but two, of the defendants -- misspellings apparent in the Lerach suit. One Web site touting the case against Plug refers to the company as "Power Plug Inc.``
Which is not to suggest that every securities fraud case is frivolous, or even that the case against Plug is weak. While Lerach`s firm, Milberg Weiss Bershad Hynes & Lerach of New York City, has suits against dozens of other companies now (including Office Max Inc., Federated Department Stores Inc. and Xerox Corp.), law firm spokesman David Rosenstein said the 200-odd companies sued a year represent a sliver of the nation`s 12,000 public companies.
"There are so many companies that are pushing the edge of the envelope,`` he said.
Yet Michael Whiteman, a partner in the Albany law firm Whiteman Osterman & Hanna who has worked both with Milberg Weiss and Plug on separate occasions, acknowledges that, sometimes, the suits amount to little more than fishing expeditions.
"I think there are a lot more of these cases that have no merit than have real merit,`` he said.
Jared E. Abbruzzese remembers Milberg Weiss well. As chief executive officer of CAI Wireless Systems Inc., a Colonie wireless-cable TV provider sold to MCI WorldCom Inc. for $414 million in 1999, he had his own go-round with the firm.
CAI`s stock dropped sharply. Then the lawsuits started coming. "They allege everything under the sun,`` said Abbruzzese, now chairman of a downstate telecommunications and environmental-systems company. "They come in and try to see if there`s any meat to it ... It`s a vehicle for people to seek compensation for losing money. It`s nothing to do with a free-market economy.``
In fact, Abbruzzese said, he now operates under the assumption that he`s going to get sued.
Congress tried to make it harder to file the lawsuits in 1995, when it passed the Private Securities Litigation Reform Act. That is the law that inspired the last paragraph tacked to the end of most publicly traded companies` press releases -- that is, the one that typically starts, "This press release may include statements which are not historical facts and are considered `forward-looking.` ``
Rather than curtailing the flow, though, the suits have picked up. In 1996, according to statistics kept at the Securities Class Action Clearinghouse at Stanford University in California, 114 companies were named in shareholder suits. By 1998, there were 244, the highest number ever. Last year, there were 216.
Part of the spike might be because information is so easy to get now, said Whiteman, the Albany attorney. With gigabytes of computer data about companies and stock trades readily available, enterprising attorneys have the requisite ammunition at their fingertips to start a case.
Former SEC commissioner Joseph Grundfest told Fortune magazine that the system is "nuts,`` for a story on Lerach`s techniques that ran in the Sept. 4 issue. "Fraud is wrong,`` he told the magazine. "It has to be punished. But what we have here is a shell game.``
Grundfest could not be reached for this story.
The system encourages the filing of multiple complaints, which is why 14 are outstanding against Plug (though one of Plug`s attorneys said 14 is a higher-than-usual number).
"There`s no great significance to a bunch of them being filed,`` said Greg Markel, who represents Plug with New York City law firm Brobeck, Phlager & Harrison LLC. "It`s just a feeding frenzy for sharks.``
After the first suit is filed, a 60-day clock starts in which injured investors can request to be lead plaintiff in a case. Because the law firm representing the lead plaintiff becomes lead counsel -- a potentially lucrative opportunity -- several often vie for that right.
Before the Reform Act of 1995, the first filer got to be lead plaintiff. That often meant that a very small fish was at the head of the suit. The change was meant to bring larger parties to the head of the class.
A vast majority of the cases are settled. Only about 1 percent of the cases make it to trial.
CAI`s Abbruzzese said the reason is cost. Fending off a suit requires hefty legal attention at first. But if the cases make it past the first checkpoint, when judges can dismiss them, then they become time-intensive as well.
About 30 percent of cases are dismissed now, compared to about 13 percent before the Reform Act, Plug attorney Markel said. Ones that move forward open the door for discovery, a process that requires companies to open their filing cabinets and welcome a team of enemy lawyers into the offices to look for corroborating evidence.
"You`re out there holding the board`s hand and the shareholders` hands on an ongoing basis,`` Abbruzzese said. "It`s just an extra distraction for a company, which is why a lot of these guys settle.``
The suits also cast a dark cloud over a company. CAI, which filed for bankruptcy protection in 1998 and reorganized its finances soon after, paid $3 million to Milberg Weiss. Shortly afterward, MCI bought it -- not necessarily a coincidence, Abbruzzese said.
John Crowley, an analyst with investment banking firm US Securities and Futures Inc. of New York City, has sold off much of his stake in Plug Power. And while he speaks with the self-assuredness of somebody who bought at $26 and got out at $150, he also sounds miffed at investors who can`t take a loss like a pro. "This is a question that these investors should raise not with their lawyers, but with their advisers,`` he said.
He bought Plug because he liked the company. Things got out of hand, though, as the shares doubled, then tripled, then went up sixfold from where he got in. "When I can`t explain that kind of euphoria, I know it`s time to step aside,`` Crowley said.
It may be that what Plug is guilty of is going up sharply, and down just as quickly. It fits the pattern of so many companies that these suits are filed against: high-tech, speculative plays, which drop sharply and have insiders selling stock. The lawsuits aren`t helping the remaining shareholders` fortunes, either; whatever spurred the company`s falling share price is being reinforced now.
"It`s just insane,`` Abbruzzese said. "It`s crazy. The whole thing`s out of control, and the problem is, they`re hurting the shareholders themselves.``
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Copyright 2000, Capital Newspapers Division of The Hearst Corporation, Albany, N.Y. The information you receive online from Times Union is protected by the copyright laws of the United States. The copyright laws prohibit any copying, redistributing, retransmitting, or repurposing of any copyright-protected material.
http://www.timesunion.com/AspStories/story.asp?
storyKey=43109&BCCode=&newsdate=10/8/00
By KENNETH AARON, Business writer
First published: Sunday, October 8, 2000
Suits rise on falling stock
Colonie-- Fraud claims against Plug Power allege insiders profited at the expense of investors
It was Bill Lerach -- the not-so-affectionately dubbed "King of the Class-Action Lawsuit`` -- whose firm filed the first fraud complaint against Plug Power Inc. three weeks ago.
Not long after, another followed. Then another. Then three more. Then another three.
Now, there are no fewer than 14 shareholder suits against Plug, each alleging that insiders at the Latham fuel-cell developer swindled investors by spreading false information, holding back bad news and dumping shares before anyone noticed.
Named in the case are former Plug president and chief executive officer Gary Mittleman, senior vice president Louis R. Tomson and vice president Manmohan Dhar.
Fourteen sets of near-identical allegations are enough to raise the eyebrows of any investor, and, indeed, Plug shares have plummeted since the first suits started rolling out with bus-depot regularity. But the cases also are symptoms of a regulatory system considered seriously flawed by no less than a former commissioner of the U.S. Securities and Exchange Commission.
Examination of some of the suits that followed the Lerach one indicates more of an urge to pile on than a devotion to due diligence. Consider: Not only do subsequent suits more or less crib the same language from the Lerach suit, but some also misspell the name of not one, but two, of the defendants -- misspellings apparent in the Lerach suit. One Web site touting the case against Plug refers to the company as "Power Plug Inc.``
Which is not to suggest that every securities fraud case is frivolous, or even that the case against Plug is weak. While Lerach`s firm, Milberg Weiss Bershad Hynes & Lerach of New York City, has suits against dozens of other companies now (including Office Max Inc., Federated Department Stores Inc. and Xerox Corp.), law firm spokesman David Rosenstein said the 200-odd companies sued a year represent a sliver of the nation`s 12,000 public companies.
"There are so many companies that are pushing the edge of the envelope,`` he said.
Yet Michael Whiteman, a partner in the Albany law firm Whiteman Osterman & Hanna who has worked both with Milberg Weiss and Plug on separate occasions, acknowledges that, sometimes, the suits amount to little more than fishing expeditions.
"I think there are a lot more of these cases that have no merit than have real merit,`` he said.
Jared E. Abbruzzese remembers Milberg Weiss well. As chief executive officer of CAI Wireless Systems Inc., a Colonie wireless-cable TV provider sold to MCI WorldCom Inc. for $414 million in 1999, he had his own go-round with the firm.
CAI`s stock dropped sharply. Then the lawsuits started coming. "They allege everything under the sun,`` said Abbruzzese, now chairman of a downstate telecommunications and environmental-systems company. "They come in and try to see if there`s any meat to it ... It`s a vehicle for people to seek compensation for losing money. It`s nothing to do with a free-market economy.``
In fact, Abbruzzese said, he now operates under the assumption that he`s going to get sued.
Congress tried to make it harder to file the lawsuits in 1995, when it passed the Private Securities Litigation Reform Act. That is the law that inspired the last paragraph tacked to the end of most publicly traded companies` press releases -- that is, the one that typically starts, "This press release may include statements which are not historical facts and are considered `forward-looking.` ``
Rather than curtailing the flow, though, the suits have picked up. In 1996, according to statistics kept at the Securities Class Action Clearinghouse at Stanford University in California, 114 companies were named in shareholder suits. By 1998, there were 244, the highest number ever. Last year, there were 216.
Part of the spike might be because information is so easy to get now, said Whiteman, the Albany attorney. With gigabytes of computer data about companies and stock trades readily available, enterprising attorneys have the requisite ammunition at their fingertips to start a case.
Former SEC commissioner Joseph Grundfest told Fortune magazine that the system is "nuts,`` for a story on Lerach`s techniques that ran in the Sept. 4 issue. "Fraud is wrong,`` he told the magazine. "It has to be punished. But what we have here is a shell game.``
Grundfest could not be reached for this story.
The system encourages the filing of multiple complaints, which is why 14 are outstanding against Plug (though one of Plug`s attorneys said 14 is a higher-than-usual number).
"There`s no great significance to a bunch of them being filed,`` said Greg Markel, who represents Plug with New York City law firm Brobeck, Phlager & Harrison LLC. "It`s just a feeding frenzy for sharks.``
After the first suit is filed, a 60-day clock starts in which injured investors can request to be lead plaintiff in a case. Because the law firm representing the lead plaintiff becomes lead counsel -- a potentially lucrative opportunity -- several often vie for that right.
Before the Reform Act of 1995, the first filer got to be lead plaintiff. That often meant that a very small fish was at the head of the suit. The change was meant to bring larger parties to the head of the class.
A vast majority of the cases are settled. Only about 1 percent of the cases make it to trial.
CAI`s Abbruzzese said the reason is cost. Fending off a suit requires hefty legal attention at first. But if the cases make it past the first checkpoint, when judges can dismiss them, then they become time-intensive as well.
About 30 percent of cases are dismissed now, compared to about 13 percent before the Reform Act, Plug attorney Markel said. Ones that move forward open the door for discovery, a process that requires companies to open their filing cabinets and welcome a team of enemy lawyers into the offices to look for corroborating evidence.
"You`re out there holding the board`s hand and the shareholders` hands on an ongoing basis,`` Abbruzzese said. "It`s just an extra distraction for a company, which is why a lot of these guys settle.``
The suits also cast a dark cloud over a company. CAI, which filed for bankruptcy protection in 1998 and reorganized its finances soon after, paid $3 million to Milberg Weiss. Shortly afterward, MCI bought it -- not necessarily a coincidence, Abbruzzese said.
John Crowley, an analyst with investment banking firm US Securities and Futures Inc. of New York City, has sold off much of his stake in Plug Power. And while he speaks with the self-assuredness of somebody who bought at $26 and got out at $150, he also sounds miffed at investors who can`t take a loss like a pro. "This is a question that these investors should raise not with their lawyers, but with their advisers,`` he said.
He bought Plug because he liked the company. Things got out of hand, though, as the shares doubled, then tripled, then went up sixfold from where he got in. "When I can`t explain that kind of euphoria, I know it`s time to step aside,`` Crowley said.
It may be that what Plug is guilty of is going up sharply, and down just as quickly. It fits the pattern of so many companies that these suits are filed against: high-tech, speculative plays, which drop sharply and have insiders selling stock. The lawsuits aren`t helping the remaining shareholders` fortunes, either; whatever spurred the company`s falling share price is being reinforced now.
"It`s just insane,`` Abbruzzese said. "It`s crazy. The whole thing`s out of control, and the problem is, they`re hurting the shareholders themselves.``
Return to Top
Copyright 2000, Capital Newspapers Division of The Hearst Corporation, Albany, N.Y. The information you receive online from Times Union is protected by the copyright laws of the United States. The copyright laws prohibit any copying, redistributing, retransmitting, or repurposing of any copyright-protected material.
Hallo,
apropo Sammelklage,
wie sieht es da bei Met@box aus?
Die Geschichte kennt ja fast jeder. Auch hier
wurden Anleger abgezockt und verloren einen Haufen Geld.
Ihr könnt mir auch eine Mail in das WO-Postfach legen.
Auge1
apropo Sammelklage,
wie sieht es da bei Met@box aus?
Die Geschichte kennt ja fast jeder. Auch hier
wurden Anleger abgezockt und verloren einen Haufen Geld.
Ihr könnt mir auch eine Mail in das WO-Postfach legen.
Auge1
Weiss jemand was aus dieser Sammelklage geworden ist?
Gruss
Gruss
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