| DDJ Mgt., LLC v Rhone Group L.L.C. |
| 2009 NY Slip Op 01575 [60 AD3d 421] |
| March 5, 2009 |
| Appellate Division, First Department |
| DDJ Management, LLC, et al., Respondents, v RhoneGroup L.L.C. et al., Appellants, et al., Defendants. DDJ Management, LLC, et al., Appellants, vRhone Group L.L.C. et al., Defendants, and PriceWaterhouseCoopers, LLP,Respondent. |
—[*1] Dorsey & Whitney LLP, New York (Marc S. Reiner of counsel), for Scott Duncan,appellant. Nixon Peabody LLP, New York (Christopher M. Mason of counsel), for Quilvest S.A.,Quilvest American Equity Ltd., and Three Cities Holdings Limited, appellants. Holland and Knight LLP, New York (Christelette A. Hoey of counsel), for JohnJendrzejewski appellant. Law Offices of Arnold M. Weiner, Baltimore, Md. (Arnold M. Weiner of the bar ofMaryland, admitted pro hac vice, of counsel), for DDJ Capital Management, LLC, DDJ TotalReturn Loan Fund, L.P., Gmam Investment Funds Trust II, and Airlie Opportunity Master Fund,Ltd., respondents/appellants. [*2]Schulte Roth & Zabel, LLP, New York (Martin L.Perschetz of counsel), for PriceWaterhouseCoopers LLP, respondent.
Order, Supreme Court, New York County (Helen E. Freedman, J.), entered April 28, 2008,which, insofar as appealed from by defendants, denied the motions of defendants-appellants todismiss plaintiffs' fraud cause of action as against them, unanimously reversed, without costs, themotions granted, and the fraud cause of action dismissed. Judgment, same court and Justice,entered May 5, 2008, dismissing the complaint as against defendant PriceWaterhouseCoopers(PwC) pursuant to the above order, which, inter alia, granted PwC's motion to dismiss thecomplaint, unanimously affirmed, without costs. Plaintiffs' appeal from the above orderunanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Plaintiffs are a group of investors that in March 2005 loaned $40 million to the now-defunctAmerican Remanufacturers Holdings, Inc. (ARI). Defendant PwC performed an audit on ARI's2003 financial statements, which was not certified as "unqualified" until 2005, and the remainingdefendants are officers, owners, and shareholders of and entities related to ARI.
It is uncontested that a condition of plaintiffs' loan was that the PwC 2003 audit be"unqualified." However, prior to the issuance of the unqualified audit report, ARI issuedfinancial statements, unaudited and unfootnoted, for 2004, showing that earnings before interest,taxes, depreciation and amortization (EBITDA) had dramatically improved from the 2003financial statements. This EBITDA was also a determinative factor in plaintiffs' decision to loanARI the requested $40 million. However, the improved EBITDA was the result of ARI'sdecision not to take reserves for inventory which remained unsold for one year, and only takereserves for items which remained unsold for two years. Thus, the improved EBITDA was abookkeeping improvement, which did not improve ARI's cash position, and plaintiffs were notinformed that this bookkeeping device had changed since the 2003 financial statements. PwCalso reviewed ARI's unaudited and unfootnoted financial statements for 2004 prior to completingthe unqualified audit of the 2003 financial statements, but did not do a "subsequent events"footnote in the final 2003 unqualified audit, or conduct a "going concern" analysis relating to the2004 financial statements. Shortly after plaintiffs loaned the money to ARI, ARI went bankrupt,and plaintiffs lost the entire $40 million.
Plaintiffs allege that PwC's 2003 audit report was improper because it stated that PwC hadconducted an "independent" audit of the 2003 financial statements, and that the audit wasconducted in accordance with generally accepted accounting standards (GAAS). According toplaintiffs, this was incorrect because PwC had succumbed to pressure from the borrowerdefendants not to resign from the audit, and thus, it was no longer independent, and it did notconduct the audit according to GAAS because it did not include a "going concern" analysis or a"subsequent events" note, which should have allegedly required it to discover the falsity in ARI'sbooks and reported on them, noting that ARI was on the verge of collapse.
The motion court properly dismissed the complaint as against PwC. Mere allegations thatPwC was no longer independent, or that the audit was not conducted in accordance with GAAS,alone, are insufficient to state a cause of action against PwC because the allegedmisrepresentations or misconduct must have done more than induced plaintiffs to enter into thetransaction; they must have also been a proximate cause of plaintiffs' loss (see Laub vFaessel, [*3]297 AD2d 28, 30-31 [2002]; see also Friedman v Anderson, 23AD3d 163, 167 [2005]). Here, the alleged errors do not go to the financial condition of ARI,and plaintiffs cite nothing in the 2003 audit report which was inaccurate or incorrect (see Inre Ramp Corp. Sec. Litig., 2006 WL 2037913, *8, 2006 US Dist LEXIS 49579, *23-24 [SDNY 2006]). Moreover, PwC's failure to perform a "going concern" analysis does not allege acause of action, because PwC's audit was only for ARI's 2003 financial statements, and thecodification of GAAS, at U.S. Auditing Standards (AU) § 341.02, provides "[t]he auditorhas a responsibility to evaluate whether there is substantial doubt about the entity's ability tocontinue as a going concern for a reasonable period of time, not to exceed one year beyond thedate of the financial statements being audited." By the time PwC issued its final unqualified 2003audit report, ARI had already continued as a going concern for more than one year (see Pewv Cardarelli, 2005 WL 3817472, *9, 2005 US Dist LEXIS 40018, *27 [ND NY 2005],affd 164 Fed Appx 41 [2d Cir 2006] [since company continued as a going concern forover one year, failure to include a going concern qualification cannot have constituted a materialomission]; Schick v Ernst & Young, 808 F Supp 1097, 1103 [SD NY 1992]), andplaintiffs cite no authority obliging PwC to conduct an audit of ARI's unaudited 2004 financialstatements to determine its viability as a going concern past one year from the 2003 financialstatements. Nor was PwC obliged to include a "subsequent events" note in the 2003 audit report,discovering and revealing the changed accounting in ARI's 2004 financial statements, as it didnot affect any part of the 2003 financial statements (AU § 560.01).
Furthermore, contrary to the determination of the motion court, dismissal of plaintiffs' fraudclaim as against the remaining defendants was warranted. "As a matter of law, a sophisticatedplaintiff cannot establish that it entered into an arm's length transaction in justifiable reliance onalleged misrepresentations if that plaintiff failed to make use of the means of verification thatwere available to it" (UST Private Equity Invs. Fund v Salomon Smith Barney, 288AD2d 87, 88 [2001]). To sustain a claim for fraud, sophisticated investors, as here, must havedischarged their own affirmative duty to exercise ordinary intelligence and conduct anindependent appraisal of the risks they are assuming (see Global Mins. & Metals Corp. v Holme, 35 AD3d 93, 100[2006], lv denied 8 NY3d 804 [2007]; Abrahami v UPC Constr. Co., 224 AD2d231, 234 [1996]). Here, plaintiffs never conducted any due diligence as it related to ARI's 2004financial statements, on which plaintiffs primarily relied in making the loan to ARI. That is,plaintiffs never looked at ARI's books and records, as was expressly their right under the loanagreement, and even if there was no such express right, plaintiffs could have insisted on the rightto review the books and records prior to making the loan. Having failed to make any such effort[*4]to evaluate the risk for themselves, they cannot now properlyallege reasonable reliance on the purported misrepresentations (see Permasteelisa, S.p.A. v LincolnshireMgt., Inc., 16 AD3d 352 [2005]). Concur—Mazzarelli, J.P., Saxe, Friedman,Acosta and DeGrasse, JJ. [See 19 Misc 3d 1124(A), 2008 NY Slip Op 50839(U).]