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Kevin J. Yourman (147159)
Leigh A. Parker (170565)
WEISS & YOURMAN
10940 Wilshire Blvd., 24th Floor
Los Angeles, CA 90024
Telephone: (310) 208-2800
Facsimile: (310) 209-2348
Joseph H. Weiss
James E. Tullman (175008)
WEISS & YOURMAN
551 Fifth Avenue, Suite 1600
New York, NY 10176
Telephone: (212) 682-3025
Facsimile: (212) 682-3010
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
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PETER AHRENS, on Behalf of Himself and All Others Similarly
Situated,
Plaintiff,
vs.
PEREGRINE SYSTEMS, INC., STEPHEN P. GARDNER, MATTHEW C. GLESS
and ANDERSEN LLP,
Defendants.
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CASE NO:
CLASS ACTION
COMPLAINT FOR VIOLATION OF FEDERAL SECURITIES LAWS
JURY TRIAL DEMANDED
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Plaintiff individually and on behalf of all others similarly situated,
by and through his attorneys, alleges the following upon information and
belief, except those allegations concerning himself, which are alleged
upon personal knowledge. Plaintiff's information and belief is based,
inter alia, on the investigation conducted by plaintiff's attorneys,
including a review of the press releases and public filings of defendant
Peregrine Systems, Inc. ("Peregrine" or the "Company") and news articles
pertaining to the Company. Plaintiff believes that substantial evidentiary
support will exist for the allegations set forth after a reasonable opportunity
for discovery.
NATURE OF THE CASE
- This is a class action on behalf of all purchasers of the securities
of Peregrine (including those individuals who acquired their Peregrine
securities in exchange for shares, ADRs, or options in other companies
which were acquired by the Company)(the "Class") between April 4, 2001
and May 3, 2002, inclusive (the "Class Period"), seeking to pursue remedies
under the Securities Exchange Act of 1934 (the "Exchange Act").
- As is more fully alleged throughout the Complaint, this action arises
from damages incurred by the Class as a result of a scheme and common
course of conduct by defendants which operated as a fraud and deceit
on the Class during the Class Period. Defendants' scheme included rendering
false and misleading statements and/or omissions concerning the financial
condition and business prospects of the Company in order to artificially
inflate the value of the Company's securities.
- For example, throughout the Class Period, defendants made numerous
positive representations concerning the financial condition, strength,
growth and profitability of the Company. Peregrine portrayed itself
as a software company that consistently met or exceeded analysts' expectations,
in contrast to high-tech firms that fell short of analyst targets. However,
defendants knew, or were deliberately reckless in disregarding, that
their statements were materially false and misleading, or omitted material
facts required to render the statements not false and misleading.
- As a result of defendants' false statements, misrepresentations, and
omissions, the price of Peregrine securities was artificially inflated
during the Class Period. Based on defendants' misrepresentations concerning
the true state of affairs of the Company, Peregrine reached a Class-Period
high closing price of $32.18 per share on June 6, 2001.
- On April 2, 2002, Peregrine announced that it had terminated its outside
auditor, defendant Andersen LLP ("Andersen"), and appointed KPMG LLP
("KPMG") as its outside auditor, effective immediately.
- After the close of trading on April 30, 2002, the Company announced
that it would delay its planned earnings release and conference call
to announce its financial results for its fourth quarter 2002 and 2002
fiscal year ended March 31, 2002 because its new auditor, KPMG, required
additional time to complete its audit. On that announcement, the price
of Peregrine shares plummeted from $6.85 to close at a 52-week low of
$3.45 on May 1, 2002, a loss of over 49% in one day on heavy trading.
The price of Peregrine stock continued to plummet, closing at $2.57
on May 3, 2002.
- The Company finally disclosed in a May 6, 2002 press release that
its Board of Directors had authorized its audit committee to "conduct
an internal investigation into potential accounting inaccuracies brought
to the attention of the audit committee by KPMG, the company's independent
auditors." The Company further disclosed that certain transactions involving
revenue recognition irregularities, totalling as much as $100 million,
have been called into question and may have been recorded during periods
in fiscal 2001 and 2002. These transactions were recorded initially
as revenue from the company's indirect channels and may have been written
off in later quarters.
- In the same May 6, 2002 press release, the Company announced the resignation
of the Company's two top executives, Chairman and Chief Executive Officer
Steven P. Gardner ("Gardner") and Chief Financial Officer Matthew C.
Gless ("Gless"). Following the Company's disclosures, the price of Peregrine
stock continued its free fall, plunging 65% to close at $0.89 on May
6, 2002 on extraordinary volume of 129,957,300 shares as compared to
the Company's 192,308,000 outstanding shares and 30-day average trading
volume of 3,902,000 shares.
- Due to defendants' deceptive conduct, plaintiff and the other Class
members purchased their Peregrine securities at grossly inflated prices
and were damaged thereby. Had plaintiff and the other Class members
been aware of the true condition of the Company and the adverse impact
that defendants' omissions were having on the Company, they would not
have purchased their shares, or at least not at the artificially inflated
prices at which they purchased those shares.
JURISDICTION AND VENUE
- The claims herein arise under §§10(b) and 20(a) (15 U.S.C. §§78j(b)
and 78t(a)) of the Securities and Exchange Act of 1934 (15 U.S.C. §78)
(the "Exchange Act") and Rule 10b-5 promulgated thereunder (17 C.F.R.
§240.10b-5).
- This Court has subject matter jurisdiction of this action pursuant
to 15 U.S.C. §78-u.
- Venue is proper in this District pursuant to 28 U.S.C. §1391(b) because
defendant Peregrine maintains its corporate offices in this district
at 3611 Valley Centre Drive, San Diego, California, 92130, and the violations
of law complained of herein occurred primarily in this District, including
the dissemination of materially false and misleading statements and
the omission of material information complained of herein.
- In connection with the conduct complained of herein, defendants, directly
or indirectly, used the means and instrumentalities of interstate commerce,
including the mails and interstate telephone communications, and the
facilities of a national securities exchange.
PARTIES
- Plaintiff Peter Ahrens purchased 2000 shares of Peregrine stock on
January 10, 2002, during the Class Period, and was damaged thereby.
- Peregrine offers business organizations an integrated suite of packaged
infrastructure management application software. The Company's applications
include help-desk and asset management software, desktop management
systems and e-commerce services. Peregrine's revenues are principally
derived from product licensing and services. As of May 6, 2002, there
were approximately 192,308,000 shares of Peregrine stock outstanding.
- Defendant Gardner was, at all relevant times, Chairman and Chief Executive
Officer of Peregrine. In a press release on May 6, 2002 disclosing that
it was investigating potentially inaccurate financial statements for
the Company's 2001 and 2002 fiscal years, Peregrine also announced Gardner's
resignation. Defendant Gardner was party to an agreement with the Company
providing for the issuance of Peregrine shares contingent upon the achievement
of financial milestones. Gardner also sold approximately 45,582 shares
of Peregrine stock during the Class Period and reaped over $1.2 million
in proceeds. By virtue of his positions as a director and officer, and
his large stock holdings in Peregrine, Gardner was a control person
of the Company pursuant to §20(a) of the Exchange Act. Defendant Gardner,
because of his position of control and authority as an executive officer
and director, was able to, and did, directly and/or indirectly, control
the contents of Peregrine's various financial reports and statements,
reports filed with the Securities and Exchange Commission (the "SEC"),
reports to shareholders and press releases. As an officer, director
and large individual shareholder of Peregrine, defendant Gardner had
a duty to promptly disseminate accurate and truthful information with
respect to Peregrine's business practices, financial condition and financial
results, or to cause and direct that such be disseminated so that the
market price of Peregrine stock would be based on truthful and accurate
information. Gardner participated in the wrongdoing complained of herein
in order to continue and prolong a distorted and misleading appearance
of Peregrine's financial condition, internal controls and business prospects,
so that he could protect his extensive Peregrine holdings, preserve
his executive and directorial positions and substantial compensation,
benefits and prestige he obtained thereby, and to continue to obtain
financing to fund the Company and continue to acquire other companies
for less than market value with artificially inflated Peregrine stock.
Defendant Gardner signed the Company's Form 10-K for fiscal year 2001
ended March 31, 2001.
- Defendant Gless was at all relevant times, Chief Financial Officer
and a director of Peregrine. In a press release on May 6, 2002 disclosing
that it was investigating potentially inaccurate financial statements
for the Company's 2001 and 2002 fiscal years, Peregrine also announced
Gless's resignation. By virtue of his positions as a director and officer,
Gless was a control person of the Company pursuant to §20(a) of the
Exchange Act. Defendant Gless, because of his position of control and
authority as an executive officer and director, was able to, and did,
directly and/or indirectly, control the contents of Peregrine's various
financial reports and statements, reports filed with the SEC, reports
to shareholders and press releases. As an officer, director and large
individual shareholder of Peregrine, defendant Gless had a duty to promptly
disseminate accurate and truthful information with respect to Peregrine's
business practices, financial condition and financial results, or to
cause and direct that such be disseminated so that the market price
of Peregrine stock would be based on truthful and accurate information.
Gless participated in the wrongdoing complained of herein in order to
continue and prolong a distorted and misleading appearance of Peregrine's
financial condition, internal controls and business prospects, so that
he could protect his extensive Peregrine holdings, preserve his executive
and directorial positions and substantial compensation, benefits and
prestige he obtained thereby, and to continue to obtain financing to
fund the Company and continue to acquire other companies for less than
market value with artificially inflated Peregrine stock. Defendant Gless
signed the Company's Form 10-K for fiscal year 2001 ended March 31,
2001, and the Company's Reports on Form 10-Q for the quarters ended
June 30, 2001, September 30, 2001 and December 31, 2001, each of which
are alleged to be false and misleading herein.
- Collectively, defendants Gardner and Gless (the "Individual Defendants")
were in a position to and did in fact control the operations of the
Company, including but not limited to issuing the false and misleading
statements complained of herein. Because of their positions with the
Company, the Individual Defendants had access to the Company's files
and records, its customers and the adverse misrepresented undisclosed
information about its business, operations, products, operational trends,
orders, sales, revenues, financial statements, markets and 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/or Board
of Directors meetings and committees thereof via reports and other information
provided to them in connection therewith. It is appropriate to treat
the Individual Defendants as a group for pleading purposes under the
federal securities laws and the Federal Rules of Civil Procedure 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 listed above. Each of the Individual Defendants,
by virtue of his high-level participation 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, sales, revenues, earnings,
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 were deliberately reckless in disregarding, 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. Defendants' false and misleading statements and omissions
of fact, both on their own and in the aggregate, had the effect of artificially
inflating the price of the securities of Peregrine at all times during
the Class Period. The Individual Defendants, because of the executive
positions and stock holdings, were able to and did control the affairs
of the Company, and the content of the various SEC filings, press releases
and other public statements pertaining to the Company during the Class
Period, and were control persons under §20(a) of the Exchange Act.
- Defendant Andersen LLP ("Andersen") served as Peregrine's outside
auditor from the time of the Company's initial public offering in 1997
until April 2, 2202, when the Company announced that it had terminated
Andersen, effective immediately, and appointed KPMG LLP as its outside
auditor. Andersen issued an unqualified audit opinion on Peregrine's
financial results for fiscal year 2001 contained in the Company's 2001
10-K with a primary report date (which corresponds to the last day of
audit field work) of April 26, 2001, less than a month after the end
of the Company's 2001 fiscal year on March 31, 2002. Andersen falsely
represented in its unqualified opinion on Peregrine's fiscal year 2001
financial statements contained in the Company's 2001 10-K that the financial
statements were presented in accordance with Generally Accepted Accounting
Principles ("GAAP") and that Andersen performed its audit of Peregrine
in accordance with Generally Accepted Auditing Standards ("GAAS"). Andersen
failed to detect or knew, or with deliberate recklessness, and disregarded
that Peregrine's revenues and related receivables, were materially overstated,
which resulted in an overstatement of revenues and earnings for the
year. By virtue of its position as the purported independent auditor
for Peregrine, Andersen had access to the Company's key personnel, accounting,
books and records and transactional documents, such as software licensing
agreements, and to the Company's key customers, at all relevant times.
As a result of the auditing and other services performed by Andersen,
Andersen personnel were frequently present at Peregrine's corporate
headquarters and had continual access to and knowledge of the Company's
confidential internal corporate, financial, operating and business information,
and had the opportunity to observe and review the Company's business
and accounting practices and to test the Company's internal and publicly
reported financial statements, as well as the Company's internal controls.
On May 6, 2002, the Company disclosed that it was investigating potentially
inaccurate accounting brought to its attention by KPMG and that the
focus of the probe was the accounting for up to $100 million in revenue
recorded in fiscal 2001 and 2002. By knowingly, or with deliberate recklessness,
disregarding the fraud alleged herein with respect to Peregrine's 2001
year end results, Andersen abdicated its role as independent watchdog
for investors.
PLAINTIFF'S CLASS ACTION ALLEGATIONS
- Plaintiff brings this action as a class action pursuant to Rule 23(a)
and (b)(3) of the Federal Rules of Civil Procedure on behalf
of a Class consisting of all persons and entities who purchased or otherwise
acquired Peregrine securities from April 4, 2001, through May 3, 2002,
inclusive (the "Class Period"), and who were damaged thereby. Excluded
from the Class are defendants, officers and directors of the Company,
members of their immediate families, and their legal representatives,
heirs, successors or assigns and any entity in which defendants have
or had a controlling interest.
- During the Class Period, millions of shares of Peregrine securities
were traded on NASDAQ, an efficient and developed securities market.
Thousands of brokers nationwide have access to trading information about
Peregrine through the system. Within minutes of any transaction taking
place, this system displays the most recent trades and prices.
- The members of the Class are so numerous that joinder of all members
is impracticable. While the exact number of Class members is unknown
to plaintiff at this time and can only be ascertained through appropriate
discovery, plaintiff believes that there are thousands of members of
the Class. During the Class Period, Peregrine had approximately 192,308,000
million shares of common stock outstanding and actively traded on the
NASDAQ, an efficient market, under the ticker symbol "PRGN."
- Plaintiff's claims are typical of the claims of the members of the
Class as all members of the Class are similarly affected by defendants'
wrongful conduct in violation of federal law that is complained of herein.
- Plaintiff will fairly and adequately protect the interests of the
members of the Class and has retained counsel competent and experienced
in Class and securities litigation. Plaintiff has no interests that
are adverse or antagonistic to those of the Class.
- A class action is superior to other available methods for the fair
and efficient adjudication of this controversy. Because the damages
suffered by many individual class members may be relatively small, the
expense and burden of individual litigation make it virtually impossible
for the class members to individually seek redress for the wrongful
conduct alleged herein.
- Common questions of law and fact exist as to all members of the Class
and predominate over any questions affecting solely individual members
of the Class. Among the questions of law and fact common to the Class
are:
(i) whether the federal
securities laws were violated by defendants' acts as alleged herein;
(ii) whether defendants
participated in and pursued the common course of conduct complained
of herein;
(iii) whether documents,
press releases and other statements disseminated to the investing
public and the Company's shareholders during the Class Period misrepresented
the business condition of Peregrine;
(iv) whether defendants
failed to correct prior statements when subsequent events rendered
those prior statements untrue or inaccurate;
(v) whether defendants
acted willfully or with conscious or deliberate recklessness in misrepresenting
and/or omitting to state material facts;
(vi) whether the market
price of Peregrine securities during the Class Period was artificially
inflated due to the misrepresentations and/or non-disclosures complained
of herein; and
(vii) whether the members
of the Class have sustained damages, and, if so, what is the proper
measure thereof.
- Plaintiff will rely, in part, upon the presumption of reliance established
by the fraud-on-the-market doctrine in that:
(i) defendants made public
misrepresentations or omitted material facts during the Class Period,
as alleged herein;
(ii) the misrepresentations
and/or omissions were material;
(iii) Peregrine's securities
were traded on NASDAQ, an efficient market;
(iv) the misrepresentations
and/or omissions alleged tended to induce reasonable investors to
misjudge the value of Peregrine shares; and
(v) plaintiff and members
of the Class acquired their shares between the time defendants made
the misrepresentations and/or omissions and the time the truth was
revealed, without knowledge of the falsity of the misrepresentations.
- Plaintiff envisions no difficulty in the management of this litigation
as a class action.
BACKGROUND AND FALSE AND MISLEADING STATEMENTS
- Peregrine was founded in 1981 as a consulting firm. After defendant
Gardner took over in 1997, the Company went public through an initial
public offering. From late 1997 through the Class Period, Peregrine
pursued an aggressive growth-by-acquisition strategy and completed the
acquisition of several businesses and technologies. As stated in an
article published in Investors' Business Daily on April 20, 2001, by
that date Peregrine had acquired 12 companies in transactions valued
at over $2.2 billion, including the acquisition of Harbinger Corporation,
an electronic data interchange provider, for $1.45 billion in 2000.
- In an article published in the San Diego Union-Tribune on
April 1, 2001, securities analyst David Breiner of Prudential Securities
rated Peregrine as a "strong buy" and noted that the Company had met
or exceeded Wall Street analysts' earnings estimates for fifteen straight
quarters. Based on guidance from the Company, analyst Breiner projected
fiscal year 2001 earnings per share of $0.54 and $569 million revenue
and fiscal year 2002 revenue of $830 million and $0.77 earnings per
share.
- In a press released dated April 4, 2001, Peregrine announced that
its preliminary financial results for its fourth quarter 2001 ended
March 31, 2001 were in line with consensus financial analyst expectations
and Company guidance for the sixteenth consecutive period. Peregrine
stated that it expected to report fourth quarter 2001 total revenues
of approximately $170 million, up 122% from the prior year, and earnings
per share of $0.16. Defendant Gardner stated that ". . . we were able
to meet our objectives for the quarter and deliver strong profitable
results, the sixteenth consecutive quarter we have done so. Our success
reflects the unique value proposition we bring to the market . . . ."
An article published on TheStreet.com stated that analysts' expectations
for the fourth quarter 2001 were revenues of $168.8 million and $0.16
earnings per share.
- On the basis of the Company's announcement, Peregrine stock rocketed
up 40.5% the next day.
- In an April 26, 2001 press release, Peregrine announced its fourth
quarter 2001 and fiscal year 2001 results consistent with its April
4, 2001 pre-announcement. Excluding non-cash acquisition charges, the
Company reported fourth quarter 2001 record total revenues of $171 million,
an increase of 124% over the prior year, and earnings per share of $0.16;
for fiscal year 2001 the Company reported total revenues of $564.7 million,
an increase of 123% over the prior year, net income of $77.8 million
and earnings per share of $0.53, an increase of 128% over the prior
year. Including non-cash acquisition and related charges, Peregrine
reported a fourth quarter loss of $590.4 million, or $3.72 per share,
and for the fiscal year 2001 a loss of $852.2 million or $5.80 per share.
Defendant Gardner stated that "[o]ur results this quarter in the face
of challenging economic conditions demonstrate the value of our solutions."
- In the same April 26, 2001 press release, Peregrine announced its
acquisition of Extricity, Inc., in a stock-for-stock transaction valued
at approximately $168 million.
- In a June 11, 2001 press release, Peregrine announced another billion-dollar
acquisition. The Company announced that it would acquire rival Remedy
Corporation ("Remedy") for $275 million cash and 27.9 million shares
of Peregrine stock, for a total transaction value of approximately $1.1
billion based on the closing price of Peregrine shares on June 8, 2001.
Peregrine further stated that the acquisition was expected to be immediately
accretive to cash earnings in the current fiscal year. The Wall Street
Journal reported on the same day that the $1.1 billion acquisition price
represented a nearly 100% premium over Remedy's current trading price.
An article also published on June 11, 2001 on TheStreet.com quoted analyst
Richard Parower of Seligman Communications and Information Fund stating
that for Peregrine, "[s]trategically, it's the right thing for them
to do," despite the high premium on Remedy shares. On June 12, 2001,
the San Diego Union-Tribune reported that defendant Gless stated
that the combined company would generate $1 billion in annual revenue.
- On or about June 29, 2001, the Company published its Report on Form
10-K for its fiscal year 2001 ended March 31, 2001. Consistent with
the Company's April 26, 2001 press release, Peregrine reported total
revenues of approximately $564 million, a net loss of approximately
$852 million and a net loss per share of $6.16.
- In a July 24, 2001 press release, Peregrine announced its financial
results for the first quarter of fiscal year 2002 ended June 30, 2001.
The Company reported record total revenues of $172.0 million, an increase
of 82% over the prior year, net income excluding acquisition and related
costs of $19.5 million, or $0.12 per share. Including acquisition and
other related charges, the Company posted a loss of $67.4 million, or
$0.40 per share. The Company's results were in line with analysts' estimates.
Defendant Gardner stated that "[w]e were pleased to post significant
top-line growth in this challenging economic environment." Following
this announcement, the price of Peregrine stock rose 14.5% the following
day to close at $25.70 on July 25, 2001.
- On July 31, 2001, WR Hambrecht & Company initiated research coverage
on Peregrine with a Buy rating. Based on guidance from the Company,
Hambrecht issued a $38 per share price target and estimated fiscal year
2002 revenue of $795 million and earnings of $0.62 per share.
- On August 14, 2001, Peregrine filed its report on Form 10-Q for the
first quarter 2002 ended June 30, 2001. Consistent with its July 24,
2001 announcement, the Company reported total revenues of $172.0 million
and a net loss of $67.4 million, or a loss of $0.42 per share.
- In a conference call on August 28, 2001, Peregrine announced that
it expected to post $1 billion in revenue in fiscal year 2002 following
its acquisition of Remedy. The Company also stated that it expected
to meet Thomson Financial/First Call forecasts of $0.13 earnings per
share for the second quarter of 2002. The price of Peregrine shares
soared 11% on this news to close at $26.46 on August 29, 2001.
- On September 7, 2001, analyst Dain Rauscher Wessels initiated coverage
on Peregrine. Based on guidance from the Company, the analyst rated
Peregrine as Buy-Aggressive Risk and set a price target of $39 per share.
- Peregrine's touted growth abruptly stalled in mid-2001. On October
3, 2001, Peregrine warned that preliminary financial results for the
second quarter of fiscal year 2002 would be below analysts' expectations.
It was the first time the Company warned of an earnings miss. Peregrine
announced that it expected to report second quarter 2002 revenues of
approximately $175 million and net earnings per share of $0.05 excluding
acquisition costs and restructuring charges. As reported in the San
Diego Union Tribune the next day, analysts had expected revenues
of $177 million and earnings per share of $0.07. On the Company's warning,
the price of Peregrine shares fell 8.9% the next day to close at $13.96.
- On November 13, 2001, Peregrine filed its Report on Form 10-Q for
its second quarter of fiscal year 2002. Consistent with its October
3, 2001 warning, the Company reported total revenues of $175.0 million,
and a net loss of $522.2 million, or a loss of $3.06 per share after
acquisition and related charges.
- On January 2, 2002, Peregrine announced its preliminary financial
results for the third quarter of 2002 ended December 31, 2001. The Company
announced that it expected total revenues of $175 million, and a pro
forma net loss per share of $0.07 to $0.08, excluding approximately
$75 million in costs associated with prior acquisitions and restructuring
charges related to the Company's reorganization. Including those charges,
net loss was expected to be $0.32-$0.33. The Company's announcement
warned that its third quarter 2002 results would be below its previous
guidance and analysts' expectations of $0.10 per share. Following that
announcement, the price of Peregrine shares fell approximately 36% the
next day to close at $9.26.
- On January 24, 2002, Peregrine announced its financial results for
the third quarter 2002. Consistent with its January 2, 2002 pre-announcement,
the Company reported total revenues of $175.2 million, an increase of
12% over the prior year, and a net loss of $16.1 million or $0.08 per
share, excluding approximately $72.2 million in acquisition and other
charges in connection with prior acquisitions. Defendant Gardner blamed
market conditions, not the Company's internal operations, and stated
that Peregrine's results were "largely due to continued global economic
weakness."
- On March 4, 2002, Peregrine filed its Report on Form 10-Q/A for its
third quarter 2002 ended December 31, 2001. Consistent with its prior
announcements, the Company reported total revenues of $175.1 million,
and reported a net loss of $88.3 million, or $0.46 per share.
- The Company's statements listed above concerning its financial results
and guidance announced in press releases and SEC filings during the
Class Period, and the financial targets and expectations disseminated
by analysts based on the Company's guidance, were false and misleading
for the following reasons: a) the Company disclosed on May 6, 2002 that
it is conducting an internal investigation of accounting inaccuracies
brought to the attention of Peregrine's Audit Committee by KPMG and
that "certain transactions involving revenue recognition irregularities,
totaling as much as $100 million, have been called into question and
may have been recorded during periods in fiscal 2001 and 2002;" accordingly,
defendants knew, or with deliberate recklessness disregarded, and failed
to disclose that Peregrine's revenues reported during the Class Period
were materially overstated by improper recognition of revenue in violation
of GAAP and GAAS; b) defendants knew, or with deliberate recklessness
disregarded, and failed to disclose that the Company's touted revenue
growth was fueled by its aggressive acquisition strategy in addition
to its improper revenue recognition; c) defendants knew, or with deliberate
recklessness disregarded, and failed to disclose that the Peregrine's
faltering financial performance in the second and third quarters of
2002 was due to the material undisclosed facts alleged herein and not
global economic forces; and d) defendants knew, or with deliberate recklessness
disregarded, and failed to disclose that the Company lacked adequate
internal controls to ensure the fair and accurate reporting of its financial
results. Moreover, defendant Andersen knew, or was deliberately reckless
in disregarding, that its unqualified audit opinion and statement in
the Company's 2001 10-K that Peregrine's financial statements were reported
in compliance with GAAP and audited in compliance with GAAS were also
false and misleading. Defendants are liable for these misstatements.
THE TRUTH EMERGES
- On April 2, 2002, Peregrine announced that it was terminating its
prior outside auditor, defendant Andersen, and appointed KPMG as its
outside auditor effective immediately.
- On April 8, 2002, Peregrine announced that it would release its fourth
quarter 2002 and fiscal year 2002 financial results on May 2, 2002.
- After the close of trading on April 30, 2002, the Company announced
that it would delay its planned earnings release and conference call
to announce its results for its fourth quarter 2002 and 2002 fiscal
year ended March 31, 2002 because its new auditor, KPMG, needed more
time to complete the audit after KPMG was appointed as the Company's
outside auditor on or about April 2, 2002 following its termination
of its previous auditor, defendant Andersen.
- On May 1, 2002, a report disseminated on the ON-24 Network included
the statement of Montauk Capital Partners analyst Bert Hochfeld that
the delay in Peregrine's earnings announcement may concern revenues
recognized on transactions with Peregrine's Managed Service Providers
("MSPs"), who resell the Company's software to end users. Analyst Hochfeld
estimated that up to $100 million in revenue may have been recognized
in transactions with MSPs. Peregrine stated that it would not respond
to Hochfeld's comments. The price of Peregrine shares plummeted from
$6.85 to close at a 52-week low of $3.45 on May 1, 2002, a loss of over
49%, or almost half their value, in one day on heavy trading. The price
of Peregrine stock continued to plummet and closed at $2.57 on May 3,
2002.
- On May 6, 2002, the Company finally disclosed that it was investigating
"potentially inaccurate accounting" and that the focus of the probe
is the accounting for up to $100 million of revenue recorded in fiscal
years 2001 and 2002. Also on May 6, 2002, the Company announced the
resignation of the Company's two top executives, defendants Gardner
and Gless. Following the Company's disclosures, the price of Peregrine
stock plunged 65% to close at $0.89 on May 6, 2002. Following the Company's
disclosures, the price of Peregrine stock plunged 65% to close at $0.89
on May 6, 2002, a fraction of its Class-Period high price of $32.18.
As a result, thousands of Peregrine investors have suffered millions
of dollars in damages.
COUNT I
(Violations of Section 10(b) of the Exchange Act
and Rule 10-5 Promulgated Thereunder)
- Plaintiff repeats and realleges the allegations above as though fully
set forth herein.
- During the Class Period, defendants, and each of them, carried out
a plan, scheme and course of conduct which was intended to and, throughout
the Class Period, did: (i) deceive the investing public, including plaintiff
and the other Class members, as alleged herein; (ii) artificially inflate
and maintain the market price of Peregrine securities; and (iii) cause
plaintiff and other members of the Class to purchase Peregrine securities
at inflated prices. In furtherance of this unlawful scheme, plan and
course of conduct, defendants, and each of them, took the actions set
forth herein.
- Defendants: (a) employed devices, schemes, and artifices to defraud;
(b) made untrue statements of material fact and/or omitted to state
material facts necessary to make the statements not misleading; and
(c) engaged in acts, practices, and a course of business which operated
as a fraud and deceit upon the purchasers of the Company's securities
in an effort to maintain artificially high market prices for Peregrine
securities in violation of §10(b) of the Exchange Act and Rule 10b-5.
- The statements made by defendants during the Class Period were materially
false and misleading because at the time they were made, the Company
and persons acting as corporate officers knew, or with conscious or
deliberate recklessness ignored, but failed to disclose, the matters
set forth herein.
- In ignorance of the artificially high market prices of Peregrine's
publicly traded securities, and relying directly on defendants or indirectly
on the false and misleading statements made by defendants, upon the
integrity of the market in which the securities trade, on the integrity
of the regulatory process and the truth of representations made to appropriate
agencies throughout the Class Period and/or on the absence of material
adverse information that was known to defendants but not disclosed in
public statements by defendants during the Class Period, plaintiff and
the other members of the Class acquired Peregrine securities during
the Class Period at artificially high prices and were damaged thereby.
- Had plaintiff and the other members of the Class and the marketplace
known of the true financial condition, business prospects and character
of leadership of Peregrine which were not disclosed by defendants, plaintiff
and other members of the Class would not have purchased or otherwise
acquired their Peregrine securities during the Class Period, or would
have not done so at the artificially inflated prices which they paid.
Hence, plaintiff and the Class were damaged by defendants' violations
of §10(b) and Rule 10b-5.
COUNT II
(Violation of Section 20(a) of the Exchange Act
Against the Individual Defendants)
- Plaintiff incorporates by reference the above paragraphs above as
if set forth fully herein. This Count is asserted against the Individual
Defendants.
- The Individual Defendants acted as controlling persons of Peregrine
within the meaning of §20 of the Exchange Act as alleged herein. By
reasons of their executive, managerial positions with Peregrine, these
defendants had the power and authority to cause the Company to engage
in the wrongful conduct complained of herein.
- By reasons of the aforementioned wrongful conduct, the Individual
Defendants are liable pursuant to §20(a) of the Exchange Act. As a direct
and proximate result of their wrongful conduct, plaintiff and the other
members of the Class suffered damages in connection with purchasing
the Company's securities during the Class Period.
WHEREFORE, plaintiff prays for relief and judgment,
as follows:
1. Determining that this
action is a proper Class action, certifying plaintiff as Class Representative
under Rule 23 of the Federal Rules of Civil Procedure and his
counsel as Class counsel;
2. Awarding compensatory
damages in favor of plaintiff and the other Class members against all
defendants, jointly and severally, for all damages sustained as a result
of defendants' wrongdoing, in an amount to be proven at trial, including
interest thereon;
3. Awarding plaintiff and
the Class their reasonable costs and expenses incurred in this action,
including counsel fees and expert fees; and
4. Such other and further
relief as the Court may deem just and proper.
DATED: May 7, 2002
Kevin J. Yourman (147159)
Leigh A. Parker (170565)
WEISS & YOURMAN
By: ________________________
Leigh
A. Parker
10940 Wilshire Blvd., 24th Floor
Los Angeles, CA 90024
Telephone: (310) 208-2800
Facsimile: (310) 209-2348
Joseph H. Weiss
James E. Tullman (175008)
WEISS & YOURMAN
551 Fifth Avenue, Suite 1600
New York, NY 10176
Telephone: (212) 682-3025
Facsimile: (212) 682-3010
Attorneys for Plaintiff
JURY DEMAND
Plaintiff hereby demands a trial by jury.
DATED: May 7, 2002
Kevin J. Yourman (147159)
Leigh A. Parker (170565)
WEISS & YOURMAN
By: ________________________
Leigh
A. Parker
10940 Wilshire Blvd., 24th Floor
Los Angeles, CA 90024
Telephone: (310) 208-2800
Facsimile: (310) 209-2348
Joseph H. Weiss
James E. Tullman (175008)
WEISS & YOURMAN
551 Fifth Avenue, Suite 1600
New York, NY 10176
Telephone: (212) 682-3025
Facsimile: (212) 682-3010
Attorneys for Plaintiff
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