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sales where CIBC was one of the underwriters, those Registration Statements and Prospectuses contained false and misleading statements – which are statements made by CIBC as an underwriter – including false interim and annual financial statements, and false statements concerning the structure of and Enron's relationship to special purpose entities and related parties, as well as the value and condition of Enron's business operations, as detailed herein. CIBC is liable under §11 for its participation in the following offering as a lead underwriter: 5/99 $500 million 7-3/8% Enron notes 724. In addition, throughout the Class Period, CIBC issued analysts' reports on Enron which contained false and misleading statements concerning Enron's business, finances and financial condition and its future prospects, including, but not limited to, those dated 7/15/98, 10/14/98, 1/25/99, 4/14/99, 7/14/99, 10/7/99, 10/13/99, 1/6/00, 1/18/00, 1/21/00, 4/12/00, 10/19/00, 4/19/01, 8/15/01 and 10/17/01, as pleaded herein. These were all statements of CIBC to securities markets which helped artificially inflate the trading prices of Enron's publicly traded securities. Keeping Enron's stock price inflated was important to CIBC as it knew that if the stock price fell below various "trigger" prices, Enron would be required to issue millions of additional Enron shares which would reduce Enron's shareholder's equity by hundreds of millions if not billions of dollars, endangering its investment-grade credit rating, cutting off its access to the capital markets and thus endangering the scheme. 725. In addition to its own direct liability for making false and misleading statements, CIBC also engaged and participated in and furthered the fraudulent scheme by helping to finance or otherwise participate in illicit transactions with Enron which it knew would contribute materially to Enron's ability to continue to falsify its financial condition and thus continue the operation of the Enron Ponzi scheme. CIBC and Enron engaged in fraudulent transactions utilizing an entity which - 482 -
CIBC and Enron controlled, known as Project Braveheart, a partnership which related to Enron's VOD joint venture with Blockbuster and enabled Enron to improperly report over $110 million in phony profits in the 4thQ 00 and the 1stQ 01. 726. When Enron announced its VOD joint venture with Blockbuster in 7/00, and as it and CIBC described that venture in following months, they were extraordinarily positive about it, assuring investors the Blockbuster VOD venture was a first of its kind, that it validated Enron's broadband content delivery technology and was worth more than $1 billion to Enron. They also extolled the high quality of the EIN, i.e., Enron's fiber optic system. 727. However, behind the scenes Enron and CIBC knew that the VOD project was very risky and was plagued by technical and legal problems that made it likely that it would never advance past a pilot project stage – at least not for a long time. Nevertheless, they worked together so Enron could misuse mark-to-market accounting to improperly accelerate and record over $100 million of profit from the Blockbuster joint venture in current periods, i.e., year-end 00 and the 1stQ of 01, when Enron desperately needed to create profits to cover the true adverse condition of its business. Thus, on 12/28/00, CIBC and Enron formed a partnership – EBS Content Systems LLC - known as project Braveheart. Enron and CIBC assigned an arbitrary and unrealistic value of $124 million to the partnership and CIBC agreed to invest (not loan) $115 million in the partnership in return for a large up-front fee and the right to receive 93% of Enron's profits from the VOD joint venture over the next 20 years. This enabled Enron to recognize $110 million in profits from this transaction in the 4thQ of 00 and 1stQ of 01. 728. However, this profit recognition was fraudulent as the VOD joint venture was nothing more than a pilot project, and one that was failing at that. The CIBC/Enron partnership was a phony contrivance, as Enron had secretly guaranteed CIBC's investment in Braveheart so that CIBC was - 483 -
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KEN L. HARRISON, STEVEN J. KEAN, RE
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TABLE OF CONTENTS - i - Page PREAMB
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... hiding losses/SEC violations)..
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2 Certain defendants named herein,
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to do so would incriminate them. Wh
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y Enron to keep high-debt assets li
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in JEDI, making it possible for tra
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continued to accelerate, ultimately
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financial condition and investment
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it controlled, and was doing phony
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Bobcat Raptor-IV Marlin Trust I Mar
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to be utilized to engage in transac
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facilitate and finance LJM2's illic
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unnoticed: 30. This blatant self-de
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LJM1 and LJM2 in transactions struc
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and more of the stock issuance "tri
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dollar contracts which allowed it t
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41. Just eight months after announc
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Dollars Per Share 30 25 20 15 10 5
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Enron's financial condition to make
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Enron's finances, but very likely w
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Merrill Lynch CitiGroup Banks Named
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CitiGroup Barclays Banks Named As D
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The employee adds that anyone who q
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of the SPEs Enron did business with
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destroying millions of pages of doc
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- Statement of Financial Accounting
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eporting earnings from the 3rdQ 00
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disclosures were crafted and approv
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falsify its financial results and t
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72. On 2/26/02, Dow Jones News Serv
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Dollars Per Share 100 90 80 70 60 5
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A. Lead Plaintiff PARTIES 79. Court
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(g) Plaintiff Amalgamated Bank, as
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D. Defendants and Related Parties (
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Enron Corp. Defendant J. Skilling's
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Dollars per Share Enron Corp. Defen
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Enron Corp. Defendant S. Horton's Q
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Ms. Olson [told] employees in Decem
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(dd) Defendants John Mendelsohn ("M
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(ii) The Marlin Water and Atlantic
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public information, pocketing over
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Dollars per Share $100 $80 $60 $40
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As of 3/98 Executive Committee Comp
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Steven J. KeanSenior Vice President
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Kevin P. Hannon Chief Operating Off
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shortly after their issuance and/or
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(b) Defendant Thomas H. Bauer ("Bau
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(l) Defendant Richard R. Petersen (
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(4) Investment Banks 99.1 Each of t
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Notes due 7/15/06 and 6.95% Notes d
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devised, implemented and financed (
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6.19% Senior Secured Notes due 03;
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of and controlled by Bank of Americ
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fraudulent scheme by disguising deb
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fraudulent scheme by repeatedly iss
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BACKGROUND TO THE CLASS PERIOD 109.
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"Enron's water subsidiary initially
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• Enron just had a great, great q
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loans to the SPEs and Barclays had
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without any adequate feasibility st
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Registration Statement was signed b
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• Wholesale Energy Operations and
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... Together, our business units re
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10-K report. The Form 10-K containe
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performance and all of the indicati
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150. On 5/7/99, Lehman Brothers iss
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Communications Is Running Faster an
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costs. For example, Enron picked th
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(k) Under Mark-Jusbasche, Enron Int
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(p) As a result of the foregoing, t
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160. On 7/14/99, The Houston Chroni
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In discussing the most recent decli
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• Enron expects this sector ... t
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178. On 10/12/99, Bloomberg reporte
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three times the $850 million contra
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Enron Corp. had a 12.5% increase in
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months there was speculation of a c
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* * * ECI has two new and related b
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198. On 1/18/00, CS First Boston is
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• This is a huge step forward for
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208. On 1/21/00, Merrill Lynch issu
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The company hopes to capture 10 per
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of mark-to-market accounting by ado
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(ii) EES entered into demand-side-m
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(j) To inflate the purported revenu
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(q) As a result of the foregoing, t
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Andersen: 218. With respect to EES,
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Fastow also appeared at the Enron A
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227. On 4/12/00, CitiGroup issued a
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communications segment. The wholesa
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TRADING GROWING FASTER THAN EXPECTE
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Enron and Blockbuster plan to intro
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• The bandwidth trading component
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Broadband Services In our view, Enr
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• ENE reported 2Q00 EPS of $0.34,
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• ... Enron Broadband Services ..
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• In terms of content, Enron Broa
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It also had over 10 additional tran
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• Impressive wholesale energy res
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271. As a result of defendants' fal
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let alone continue to engage in sim
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Retail Energy Services: ... Enron E
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Well, we were up, 1998, we were up,
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• Growth Targets Lifted .... * *
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acceleration of growth and creation
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Our talented people ... financial s
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stock, selling 1.1 million shares i
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evenue. Even though Enron could not
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ecognized a multi-million dollar pr
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exchange for orders by Enron in 99
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streaming content because the EIN a
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not have the legal right to electro
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illions of dollars while concealing
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4 years .... We are projecting mini
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and Content Delivery which remain s
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• a 281 percent increase in reven
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[W]e ... said to investors, as long
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growth in '98, 18% growth in '99 an
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conference calls and in follow-up c
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stated: 332. On 7/12/01, Skilling a
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337. On 7/25/01, Bloomberg News rep
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financial condition and liquidity -
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equipment, a significant portion of
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million up-front cash just to sign
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(i) Enron entered into dark-fiber s
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intermediation. Even worse, Enron g
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sense, to "just drink more Enron Ko
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Dear Mr. Lay, * * * Skilling's abru
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. Cliff Baxter complained mightily
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is up 40%, earnings per share up ab
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CEO Jeff Skilling Resigns; A Negati
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356. On 8/28/01, Lay was interviewe
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... But all of the problems I have
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362. On 10/9/01, Merrill Lynch issu
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- $180 million associated with the
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income, to about $400 million and a
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Enron Corporation (BUY) Third Quart
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of things - the LJM transactions we
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Enron Continues As Market-Maker of
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failing to eliminate additional hun
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391. Rubin's and Harrison's effort
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DEFENDANTS' SCHEME AND FRAUDULENT C
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Enron Defendants had permitted Enro
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Derrick 230,660 $ 12,563,928 John D
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Dollars per Share $100 $80 $60 $40
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executives will be generally hesita
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and 99.9%. This level of certainty
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ENRON'S FALSE FINANCIAL STATEMENTS
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$12,000,000,000 $10,000,000,000 $8,
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50.00% 45.00% 40.00% 35.00% 30.00%
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8 Debt to equity is calculated usin
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executed in accordance with managem
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SPEs, under any accounting machinat
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439. However, even after employing
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(a) Enron Guarantee Fee 443. Enron
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(2) LJM Partnerships 448. Enron als
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comparable securities in the market
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CS First Boston, Merrill Lynch, JP
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hedged through traditional transact
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gathering system in the Gulf of Mex
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(b) Raptors (i) Raptor I 477. The f
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only entered to avoid recognition o
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million, giving LJM2 its specified
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y a total of $1 billion in the unau
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Skilling, knew of the decline, by w
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(2) the transferred assets were not
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S-K required the disclosure of the
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Even though a misstatement of an in
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522. In order for Enron to accrue r
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engaged in swapping capacity of thi
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earnings and separately disclosed i
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practice was common in all trading
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What made it all work, Dickson said
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14 Securities that are bought and h
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(4) Quaker Oats 557. Under one of i
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supplied by Enron under the terms o
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(2) Prepaid Swaps with CitiGroup an
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In essence, his report concluded, E
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Project Name Description Contract V
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earnings below expectations. By 97,
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content services business. In fact,
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593. Enron also failed to disclose
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Enron arrived in India in the early
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holdings for $700 million. It is no
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investment and credit decisions ref
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Date of Offering Effective Date of
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created in Enron, the Offering Docu
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621. The true effect of "early sett
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FINANCIAL RISK MANAGEMENT * * * Enr
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Vinson & Elkins also knew because t
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could connect. Enron's BOS was to b
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not even make a broadband connectio
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05/17/01 Enron Euro Credit Linked N
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usiness is the management of certai
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Yosemite Securities Trust I Offerin
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Communications Enron is developing
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(a) Annual Report on Form 10-K for
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ENRON HISTORICAL CONSOLIDATED FINAN
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Business of Enron DESCRIPTION OF EN
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Income Statement Data: SELECTED HIS
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• the transportation of natural g
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Balance Sheet Data (at end of perio
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wholesale customers to view Enron's
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Page 442 and 443: Cumulative effect of accounting cha
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Page 448 and 449: privately held entity created by En
Page 450 and 451: caused its stock to plunge and impa
Page 452 and 453: its financial results. Thus, the ba
Page 454 and 455: something each of the banks named a
Page 456 and 457: 7/01 Marlin Water Trust II, Marlin
Page 458 and 459: default puts" on Enron's publicly t
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Page 462 and 463: 667. These phony commodity transact
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Page 466 and 467: DATE SECURITY 11/93 8 million share
Page 468 and 469: 8/01 $3 billion Enron credit facili
Page 470 and 471: a year in interest payments, and sy
Page 472 and 473: participation in the scheme to defr
Page 474 and 475: illicit partnerships or SPEs, and h
Page 476 and 477: 698. In 6/99, CS First Boston acted
Page 478 and 479: 703. In addition to the foregoing,
Page 480 and 481: These transactions included Marlin,
Page 482 and 483: of the firm, invested $22.5 million
Page 484 and 485: the CIBC legal entity, as its knowl
Page 488 and 489: not a true investor and was not at
Page 490 and 491: "It was nothing but a pilot project
Page 492 and 493: Dollars Per Share 30 25 20 15 10 5
Page 494 and 495: Tilney's wife was a Managing Direct
Page 496 and 497: otherwise to outside investors'" an
Page 498 and 499: an effort spearheaded by Schuyler M
Page 500 and 501: Barry S. Friedberg, $500,000 Chairm
Page 502 and 503: Flash Report" for 12/23/99 identifi
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Page 506 and 507: Concurrently, Enron advised Merrill
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Page 512 and 513: 748. By the beginning of the Class
Page 514 and 515: - something that Barclays was in a
Page 516 and 517: length transactions with to generat
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Page 520 and 521: 5/99 $500 million 7-3/8% Enron note
Page 522 and 523: financial information as Enron's le
Page 524 and 525: instance: 5/00 $500 million 8.375%
Page 526 and 527: and condition of Enron's business o
Page 528 and 529: eturn for Deutsche Bank's participa
Page 530 and 531: DATE TRANSACTION 7/98 $252 million
Page 532 and 533: 797. Deutsche Bank also actively en
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797.8 The Washington Post further f
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797.12 Bankers Trust's role in Proj
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797.17 In the words of the Joint Co
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797.25 Project Tomas was structured
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emaining from Bankers Trust to Enro
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INVOLVEMENT OF VINSON & ELKINS 800.
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accommodated Enron's desire for one
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The document ... sharply criticizes
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to "close," i.e., take place, and t
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806. However, Enron could not find
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810. During 12/97, Vinson & Elkins
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day-to-day activities would be mana
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equired to pay Enron on the "hedge"
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these SPEs, Enron would have to tak
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Vinson & Elkins Concealed the Phony
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In March 2001, Enron acquired the l
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ecause it participated in the negot
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839. The related-party disclosures
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846. The "disclosures" above are fa
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The Attempted Coverup 850. In mid-8
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3. There is a veil of secrecy aroun
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854. The result of this letter - la
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standpoint. In this regard, AA cons
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A. General INVOLVEMENT OF ARTHUR AN
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Andersen also consented to the use
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905. Andersen's reports were false
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investors that would hold assets an
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915. Andersen also performed certai
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ing to light documents illustrating
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he was aware of many of the company
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Andersen employees destroyed incrim
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departments, knew about the excessi
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a blind eye to the numerous red fla
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• How Enron could, with its own c
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Tallying all expected profits immed
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c. Determine whether the transactio
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keep the Chewco deal off the books.
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improper accounting was corrected).
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in order for the financial statemen
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959. As detailed herein, Enron's di
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connection with an SEC investigatio
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eached by David Duncan and other ac
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. Fails to correct an entity's fina
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(j) The fourth standard of reportin
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Professional Standards Group has fi
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headquarters are located at 33 West
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STATUTORY SAFE HARBOR 985. The stat
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988. Plaintiffs' claims are typical
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- 628 - Michael M. Lowther* Benjami
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1000. This Claim is brought by the
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Type of Offering Enron Corp. 7.875%
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day of the offering. day of the off
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liable as detailed herein. Defendan
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08/17/00 Enron Credit Linked Notes
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subdivisions thereof and/or State P
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JP Morgan and Lehman Brothers had a
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1016.26 This Claim is brought pursu
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Plaintiffs hereby demand a trial by
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SHAPIRO HABER & URMY LLP THOMAS G.
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