UNITED STATES DISTRICT COURT
Plaintiff Securities and Exchange Commission alleges as follows:
i) Gene S. Foster, Jamie Olis and Helen C. Sharkey, former employees of Dynegy Inc., engaged in fraudulent and deceptive conduct in connection with a Dynegy transaction code-named Project Alpha. The defendants, who were members of Alpha's "deal team," and certified public accountants, (a) disregarded accounting advice from Arthur Andersen LLP, Dynegy's outside auditor and consultant on Alpha, and (b) concealed critical transaction details from Andersen and Dynegy. As a result, the defendants caused Dynegy to account improperly for Alpha in its financial statements and file false reports with the Commission.
ii) In 2001, Dynegy implemented Alpha ostensibly to enhance cash flow from operations by approximately $300 million and to realize an associated tax benefit of $79 million. The $300 million flowed to Dynegy, and then back to its source, a lending syndicate, through transactions involving special purpose entities (SPE's). These transactions, purchases and sales of natural gas, generated contractually assured trading profits and losses. Over the course of approximately six months, Andersen accounting and tax professionals worked closely with Dynegy and the deal team to structure Alpha in a manner consistent with guidelines that Andersen believed would ensure Alpha's conformity with generally accepted accounting principles ("GAAP"). In particular, Andersen warned Dynegy and the deal team, including Foster, Olis and Sharkey, that certain forms of risk-hedging in the transaction would undermine Dynegy's intended accounting for Alpha and require Dynegy to record the cash flow from Alpha as a financing activity rather than as cash from operations. Dynegy's failure to conform to Andersen's advice would also eliminate the tax benefit.
iii) Notwithstanding these warnings, Foster, Olis and Sharkey caused Dynegy, contrary to Andersen's advice, to link certain "swaps" to each other in secret side agreements, and allowed other risks to be hedged in a manner that was not consistent with Andersen's advice. The defendants knew that as a result of the secret side agreements and other hedging, Andersen would withdraw its support for Dynegy's accounting and tax treatment for Alpha. For that reason, Foster, Olis and Sharkey intentionally concealed the transactions from Andersen and Dynegy, and consequently, from the investing public.
iv) In April 2002, Dynegy discovered that Alpha did not conform to the explicit guidelines Andersen had established. As a result, Andersen withdrew financial accounting and tax opinion letters it had previously issued regarding Alpha, and in November 2002, Dynegy restated its 2001 financial statements to eliminate $290 million, or 36%, of operating cash flow, and to eliminate the previously reported tax savings of $79 million, reducing Dynegy's net income by 12%.
v) The Commission, in the interest of protecting the public from such fraudulent activities, brings this action seeking a permanent injunction against Foster, Olis and Sharkey, enjoining them from further violations of the antifraud provisions of the federal securities laws, disgorgement of ill-gotten gains, plus prejudgment interest thereon and civil monetary penalties as allowed by law.
JURISDICTION AND VENUE
vi) This Court has jurisdiction over this action pursuant to Section 22(a) of the Securities Act of 1933 ("Securities Act") [15 U.S.C. §77u(a)] and Section 27 of the Securities Exchange Act of 1934 ("Exchange Act") [15 U.S.C. §§78u(e) and 78aa].
vii) Defendants have, directly and indirectly, made use of the means or instrumentalities of interstate commerce and/or the mails in connection with the transactions described in this Complaint.
viii) Venue lies in this Court pursuant to Section 22(a) of the Securities Act [15 U.S.C. §77u(a)] and Section 27 of the Exchange Act [15 U.S.C. §§78u(e) and 78aa] because certain of the acts and transactions described herein took place in Houston, Texas.
ix) Gene S. Foster, age 44, of Houston, Texas, was Dynegy's "Vice President of Taxation" during the relevant period. Foster, a Texas-licensed CPA, was responsible for Dynegy's tax-related matters, including planning and compliance issues. Foster participated in the creation and implementation of Alpha and was head of the deal team.
x) Jamie Olis, age 37, of Houston, Texas, was Dynegy's "Senior Director, Tax Planning and International" for most of 2000 and 2001. In January 2002, Olis, a Texas-licensed CPA and attorney, was promoted to "Vice President, Finance." Olis provided technical tax expertise on various Dynegy transactions, and participated in the creation and implementation of Alpha.
xi) Helen C. Sharkey, age 31, of Houston, Texas, was Dynegy's "Manager - Accounting, Deal Structure" during the relevant period. As a member of the Deal Structure Group, Sharkey reported directly to Dynegy's Controller. Sharkey, who was a Texas-licensed CPA during the relevant period, participated in the creation and implementation of Alpha.
OTHER RELEVANT ENTITIES
xii) Dynegy Inc. is an Illinois corporation headquartered in Houston, Texas. Dynegy's shares are registered with the Commission under Section 12(b) of the Exchange Act and trade on the New York Stock Exchange under the symbol "DYN." Dynegy produces and delivers energy, including natural gas, electricity, natural gas liquids and coal, to customers in North America, the United Kingdom and Continental Europe. In addition, during the relevant period, Dynegy engaged in energy trading, which was a key component of its business.
xiii) ABG Gas Supply LLC is a Delaware limited liability company headquartered in New York, New York. It is a special-purpose entity sponsored by Dynegy, and was formed for Dynegy's benefit.
xiv) ABG Holding LLC is a Delaware limited liability company. It is the parent company of ABG Supply.
xv) DMT Supply LP is a Delaware limited partnership and is a wholly owned subsidiary of Dynegy.
xvi) Arthur Andersen LLP was a limited liability partnership headquartered in Chicago, Illinois during the relevant period. Andersen, which had performed Dynegy's audits for several years, provided tax and financial accounting advice and services to Dynegy in connection with Alpha.
xvii) Citigroup Inc. is a Delaware corporation with its principal place of business in New York City. Citigroup arranged and provided, in part, Alpha's funding, and participated in Alpha-facilitating transactions as a contracting party. Citigroup also provided Dynegy consulting services relating to Alpha.
Background - Project Alpha
xviii) Beginning in early 2000, Dynegy considered various strategies to reduce its effective tax rate and the widening gap between its net income and operating cash flow resulting from mark-to-market accounting. Alpha emerged as the strategy for accomplishing Dynegy's objective to narrow the gap and secure an associated tax benefit.
xix) During the fourth quarter of 2000, Dynegy assembled the Alpha deal team to complete the project. The team, spearheaded by Dynegy's tax representatives Foster and Olis and accounting representative Sharkey, included other Dynegy employees from the legal, finance and commercial trading departments.
xx) Dynegy also retained outside advisers to assist with Alpha. Among others, Andersen agreed to provide financial accounting and tax advice. In addition, Dynegy selected Citigroup to arrange and provide, in part, Alpha's financing, to assist in attracting SPE equity owners, and to help structure generally the transaction.
xxi) In its final form, Alpha was essentially a $300 million loan to Dynegy disguised as cash from operations through the purchases and sales of natural gas. In the first year of Alpha's five-year term, a Dynegy-affiliated entity, DMT Supply, purchased gas from a Dynegy-sponsored SPE, ABG Supply, at below-market prices and then sold the gas in the market for a $300 million profit (the "Gas Contract"). Dynegy received the proceeds in the first year of the Gas Contract, and is essentially repaying the loan, with interest, over the remaining term of the contract by causing DMT Supply to purchase gas from ABG Supply at above-market prices. Over the remaining four years of Alpha's term, these above-market purchases will furnish ABG Supply with the profits necessary for it to repay the $300 million it borrowed to facilitate DMT Supply's below-market gas purchases in Alpha's first year.
Andersen's Advice Regarding Project Alpha
xxii) Throughout the creation and planning stage of Alpha, Andersen advised Dynegy that Alpha must exhibit characteristics of a commercial transaction, as opposed to a loan, for Dynegy to report the Alpha cash flow as operations-based, rather than financing-based, and to obtain the tax benefit.
xxiii) Andersen advised Dynegy that DMT Supply and ABG Supply, the parties to the Gas Contract, must bear at least a minimal amount of risk in performing the Gas Contract. To achieve that risk, a portion of the purchase price of the natural gas would have to be fixed, thus exposing the buyer and seller to fluctuations in the market price of natural gas. This commodity price risk was the primary risk associated with the Gas Contract.
xxiv) Andersen advised Dynegy that derivative transactions used to hedge risks, such as commodity price swaps and interest rate swaps, would have to be conducted in the ordinary course of business and could not be linked to the Gas Contract or to each other.
xxv) Andersen advised Dynegy that the equity investors in ABG Supply must be independent of Dynegy and contribute at least 3% (approximately $10 million) of the SPE's total capitalization, and that the 3% equity investment must remain exposed to commodity price risk over Alpha's entire term.
xxvi) Foster, Olis and Sharkey were aware of Andersen's advice, and knew that hedging of the risk to the equity investment in ABG Supply would require consolidation of ABG Supply's operating results with Dynegy's financial statements. Foster, Olis and Sharkey also knew that consolidation would require Dynegy to classify the Alpha-related cash flow as financing and report ABG Supply's borrowing as debt on Dynegy's balance sheet.
The Alpha Closing
xxvii) In March 2001, the Alpha deal team, including Foster, Olis and Sharkey, an Andersen representative, Citigroup representatives and other parties to the transaction met in New York City to complete Alpha.
xxviii) On approximately March 20, 2001, the Andersen representative discovered a document containing provisions linking certain swaps and the Alpha Gas Contract through cross-termination or "tear-up" provisions. The Andersen representative informed Andersen's engagement partner about the "tear-up" provisions, who then instructed the deal team, including Foster, Olis and Sharkey, that the swaps could not have tear-up language and that any such linkage would preclude Alpha's characterization as "commercial" in nature, and would require characterizing the Alpha-related cash flow as deriving not from operations, but from financing activities. The next day, March 21, 2001, the deal team excluded the Andersen representative from the Alpha-related meetings.
xxix) Foster, Olis and Sharkey then agreed to place the "tear-up" provisions in side agreements to the swap confirmations. Because they knew that Andersen would withdraw its support for Dynegy's desired accounting and tax treatment of Alpha if the "tear-up" provisions were included in the side agreements, Foster, Olis and Sharkey concealed the existence of the side agreements from Andersen and Dynegy.
xxx) Because of the side agreements, and for other reasons, Citigroup required Dynegy to certify in a closing agreement that it had shown all of the Alpha transaction documents, including the swap confirmations and amendments, to its accounting and tax advisers prior to closing.
xxxi) By March 22, 2001, Foster, Olis and Sharkey knew that ABG Supply's equity investors intended to hedge all commodity price risk. Foster, Olis and Sharkey took no steps to prevent such hedging, and the equity investors ultimately hedged their commodity price risk by executing commodity price swaps on or about April 10, 2001.
xxxii) Foster, Olis and Sharkey did not disclose to Andersen or Dynegy any information regarding the tear up provisions in the side agreements or the complete hedging of commodity price risk by the ABG Supply equity investors.
xxxiii) On or about April 6, 2001, Andersen issued to Dynegy a Statement on Auditing Standards 50 (the "SAS 50 letter"). The SAS 50 letter was based, and expressly relied on, representations made by Dynegy, including Foster, Olis and Sharkey. The SAS 50 letter stated that any hedging activities relating to commodity price risk could not extend to the minimum 3% equity investment in the SPE ABG Supply. The SAS 50 letter was based on representations that, aside from certain specified derivative transactions, there would be "no residual insurance, residual guarantee, or any other type of investment or instrument . . . that would ensure ABG's equity investors' recovery of their portion of the ABG required minimum equity investment." The SAS 50 opinion also was based on an assumption that the "equity contributed will be ... at risk for the life of ABG [Supply]" and "will not be guaranteed in recovery or return through financial hedges or other mechanisms."
xxxiv) In conjunction with the SAS 50 letter, Andersen issued to Dynegy a tax opinion, dated April 6, 2001, regarding the tax benefit associated with Alpha. According to the tax opinion, Dynegy's desired accounting treatment of the Alpha cash flow - as flowing from operations, as opposed to financing - constituted the primary non-tax business justification for Alpha.
xxxv) Foster, Olis and Sharkey knew that Andersen, in issuing the SAS 50 letter and the tax opinion letter, relied on representations that were not true. In addition, Foster, Olis and Sharkey knowingly withheld information from Andersen that would have altered the opinions and conclusions in the SAS 50 and tax letters, namely that (a) certain swaps were linked to each other and to the Gas Contract, and (b) the ABG Supply owners' equity-at-risk never reached the requisite minimum 3% threshold - due to hedging activity by the owners.
xxxvi) Foster, Olis and Sharkey knew, or were severely reckless in not knowing, that their acts and omissions would cause Dynegy to improperly account for Alpha in its financial statements and submit false and misleading public reports to the Commission and the investing public.
Dynegy's Reporting of Alpha
xxxvii) In Dynegy's 2001 Form 10-K filed with the Commission, Dynegy reported $290 million in operating cash flow attributable to Alpha, which was approximately 36% of Dynegy reported cash flow from operations for the year. Dynegy also reported a tax savings in 2001, of $79 million, or 12% of its net income, which was attributable to Alpha. Dynegy further reported cash flow and net income attributable to Alpha in its second and third quarter 2001 Forms 10-Q.
xxxviii) Dynegy's treatment of the Alpha proceeds as operating cash flow did not conform to GAAP because (a) contractual linkage among the swaps and Gas Contract caused Alpha to constitute a financing, and (b) the equity investment in ABG Supply by its owners did not meet the requisite minimal exposure to the "substantive risks and rewards or ownership" during the entire term of the Gas Contract between ABG Supply and DMT Supply.
xxxix) As a result, ABG Supply should have been consolidated in Dynegy's financial statements, and the approximately $300 million loan to ABG Supply - covering its initial losses under the Gas Contract - should have been reflected by Dynegy, on a consolidated basis, as cash flow from financing. In addition, the tax benefit should not have been recorded.
xl) Further, there is no reference to Alpha in Dynegy's Forms 10-Q and Form 10-K registering Alpha's financial impact, nor is there any explanation in the filings of the source of the Alpha-derived operating cash flow and net income.
xli) From at least the time the Andersen representative discovered the forbidden "tear-up" provision, Foster, Olis and Sharkey concealed Alpha transaction details from Andersen and Dynegy.
xlii) On April 24, 2001, approximately two weeks after the Alpha closing, Sharkey sent an e-mail message to Olis, attaching a DMT Supply financial statement. In her e-mail, Sharkey instructed, "please do not distribute to AA [Arthur Andersen] as it refers to other hedging activity."
xliii) On May 10 2001, Foster, Olis and Sharkey received an e-mail that attached a DMT Supply operations manual outlining the entire Alpha transaction. Foster admonished Olis and Sharkey to keep the manual in strict confidence: "[I]t is Critical that this document not be distributed. It should be held only by those on this e-mail as we are the only ones that have complete knowledge of this transaction." (emphasis in original).
xliv) Olis also urged Foster and Sharkey to maintain the secrecy of the information in the DMT Supply operations manual:
(emphasis added). The operations manual contained express references to the tear-up provisions and the ABG Holdings hedge.
xlv) On April 3, 2002, the Wall Street Journal published an article reporting that Dynegy used a transaction called "Alpha" to enhance its financial presentation and minimize its tax liabilities.
xlvi) On April 17, 2002, the Commission's Office of Chief Accountant met with Dynegy officials, including Olis, to discuss the accounting issues relating to Alpha. Olis and the other Dynegy officials told OCA that Dynegy had only recently learned of the ABG Supply equity investors' hedging of the 3% equity investment at the ABG Holdings level. Olis did not inform OCA that he had been aware of the hedge since Alpha's closing in April 2001.
xlvii) After learning of the equity investors' hedge and the contractual linkage among the swaps and Gas Contract, Andersen withdrew its SAS 50 and tax opinions in April 2002.
xlviii) On September 24, 2002, the Commission entered a settled cease-and-desist order against Dynegy making findings that Dynegy engaged in securities fraud in connection with its disclosures and accounting for Alpha. The Commission ordered Dynegy to cease and desist from violating, committing or causing violations of Sections 17(a) of the Securities Act, and Sections 10(b), 13(a) and 13(b)(2) of the Exchange Act and Rules 10b-5, 12b-20, 13a-1, 13a-13 and 13b2-1, thereunder.
xlix) On September 30, 2002, the U.S. District Court for the Southern District of Texas entered a Final Judgment by consent in which Dynegy was ordered to pay a $3 million civil penalty for its violations of the federal securities laws described above.
l) On November 15, 2002, Dynegy filed a Form 8-K restating its 2001 financial results by reporting approximately $290 million of Alpha-related cash flow as deriving from a financing activity rather than operations; eliminating the $79 million Alpha-related income tax benefit; and consolidating the assets, liabilities and results of operations of the SPE ABG Gas Supply into Dynegy's financial statements, increasing Dynegy's reported indebtedness by approximately $280 million. The increased debt reflects ABG Supply's borrowing to cover the losses it sustained during the first year of Alpha.
li) Foster, Olis and Sharkey are no longer employed by Dynegy. In 2001, Foster received a salary of $170,000 and a bonus of $160,000; Olis received a salary of $162,000, a bonus of $110,000, a grant of options for 25,000 shares, and further profited from the sale of his personally held Dynegy stock in the approximate amount of $200,000; and Sharkey received a salary of $80,000.
lii) Dynegy offered and sold its securities in registered offerings during 2001 and 2002.
Violations of Section 17(a) of the Securities Act
liii) Paragraphs 1 through 52 are realleged and incorporated by reference.
liv) Defendants Foster, Olis and Sharkey, in connection with the offer or sale of securities, have: (a) employed devices, schemes or artifices to defraud; (b) made untrue statements of material facts and 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 (c) engaged in acts, practices and courses of business which operate as a fraud or deceit upon purchasers, prospective purchasers, and other persons.
A. Defendants Foster, Olis and Sharkey knowingly or recklessly engaged in the conduct described in this claim.
B. By reason of the foregoing, Foster, Olis and Sharkey violated, and unless enjoined, will continue to violate Section 17(a) of the Securities Act [15 U.S.C. § 77q].
Violations of Section 10(b)
i) Paragraphs 1 through 56 are realleged and incorporated by reference.
ii) Defendants Foster, Olis and Sharkey, in connection with the purchase or sale of securities, have: (a) employed devices, schemes or artifices to defraud; (b) made untrue statements of material facts and 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 (c) engaged in acts, practices and courses of business which operate as a fraud or deceit upon purchasers, prospective purchasers, and other persons.
C. Defendants Foster, Olis and Sharkey knowingly or recklessly engaged in the conduct described in this claim.
i) By reason of the foregoing, Foster, Olis and Sharkey violated, and unless enjoined, will continue to violate Section 10(b) of the Exchange Act [15 U.S.C. § 78j(b)] and Rule 10b-5 [17 C.F.R. § 240.10b-5].
Violations of Section 13(b)(5) of the Exchange Act
ii) Paragraphs 1 through 60 are realleged and incorporated by reference.
iii) Defendants Foster, Olis and Sharkey knowingly circumvented Dynegy's system of internal accounting controls and knowingly falsified books, records, or accounts described in Section 13(b)(2) of the Exchange Act.
iv) By reason of the foregoing, Foster, Olis and Sharkey violated, and unless enjoined, will continue to violate Section 13(b)(5) of the Exchange Act [15 U.S.C. § 78m(b)(5)] and Rule 13b2-1 [17 C.F.R. § 240.13b2-1].
Aiding and Abetting Dynegy's Violations of Section 10(b)
v) Paragraphs 1 through 63 are realleged and incorporated by reference.
vi) Based on the conduct alleged herein, Dynegy violated Section 10(b) of the Exchange Act and Rule 10b-5 thereunder by filing materially misleading annual and quarterly reports with the Commission.
vii) Defendants Foster, Olis and Sharkey, in the manner set forth above, knowingly or recklessly provided substantial assistance to Dynegy in connection with its violations of Section 10(1) and Rule 10b-5 as alleged herein.
67. By reason of the foregoing, Foster, Olis and Sharkey aided and abetted Dynegy's violations of, and unless restrained and enjoined, will aid and abet further violations of Section 10(b) of the Exchange Act [15 U.S.C. §§ 78j(b) and Rule 10b-5 thereunder [17 C.F.R. §§ 240.10b-5].
68. Paragraphs 1 through 67 are realleged and incorporated by reference.
69. Based on the conduct alleged herein, Dynegy violated Section 13(a) of the Exchange Act and Rules 12b-20, 13a-1 and 13a-13 thereunder.
70. Defendants Foster, Olis and Sharkey, in the manner set forth above, knowingly or recklessly provided substantial assistance to Dynegy, as an issuer of a security registered pursuant to Section 12 of the Exchange Act, in its failing to file with the Commission, in accordance with rules and regulations the Commission has prescribed, information and documents required by the Commission to keep reasonably current the information and documents required to be included in or filed with an application or registration statement filed pursuant to Section 12 of the Exchange Act and annual reports and quarterly reports as the Commission has prescribed.
71. By reason of the foregoing, Foster, Olis and Sharkey aided and abetted Dynegy's violations of, and unless restrained and enjoined, will aid and abet further violations of Section 13(a) of the Exchange Act [15 U.S.C. § 78m(a)] and Rules 12b-20, 13a-1 and 13a-13 thereunder [17 C.F.R. §§ 240.12b-20, 240.13a-1 and 240.13a-13].
72. Paragraphs 1 through 71 are realleged and incorporated by reference.
73. Based on the conduct alleged herein, Dynegy violated Section 13(b)(2)(A) of the Exchange Act.
74. Defendants Foster, Olis and Sharkey, in the manner set forth above, knowingly or recklessly provided substantial assistance to Dynegy in connection with its failure to make and keep books, records, and accounts, which, in reasonable detail, accurately and fairly reflected Dynegy's transactions and dispositions of its assets.
75. By reason of the foregoing, Foster, Olis and Sharkey aided and abetted Dynegy's violation of, and unless restrained and enjoined, will aid and abet further violations of Section 13(b)(2)(A) of the Exchange Act [15 U.S.C. § 78m(2)a.(A)].
PRAYER FOR RELIEF
WHEREFORE, the Commission respectfully requests that the Court:
Find that the defendants committed the alleged violations.
Permanently restrain and enjoin defendants from violating, or aiding and abetting, directly or indirectly, the provisions of law and rules alleged in this Complaint.
Order that each defendant disgorge all ill-gotten gains, including pre-judgment and post-judgment interest, resulting from their participation in the alleged conduct, including salaries, bonuses, stock, or other compensation of any kind.
Order each defendant to pay civil penalties, including post-judgment interest, pursuant to Section 21(d)(3) of the Exchange Act [15 U.S.C. § 78u(d)(3)] and Section 20(d) of the Securities Act [15 U.S.C. § 77t(d)] in an amount to be determined by the Court.
Grant such other relief as this Court may deem just or appropriate.