IN THE UNITED STATES DISTRICT COURT
Securities and Exchange Commission,
The Securities and Exchange Commission ("Commission") files this Complaint for Injunctive and Other Relief and alleges as follows:
1. This case involves fraudulent accounting practices by Just for Feet, Inc. ("Just for Feet"), a company with publicly traded securities. In the spring of 1999, Just for Feet, Inc., a former national retailer of athletic and outdoor footwear and apparel, overstated its income through various schemes and artifices to defraud involving the use of bogus receivables and revenues from its outside vendors.
2. Defendant Don-Allen Ruttenberg, as the Vice President of Purchasing and New Store Development and as Executive Vice President at Just for Feet, made and aided and abetted the making of false entries in Just for Feet's books and records necessary to fraudulently inflate Just for Feet's earnings and engaged in other misconduct as detailed below.
3. Defendant Don-Allen Ruttenberg has engaged in, and unless restrained and enjoined by this Court, will continue to engage in, acts and practices which constitute and will constitute violations of Section 17(a) of the Securities Act of 1933 ("Securities Act") [15 U.S.C. § 77q(a)] and Sections 10(b) and 13(b)(5)] of the Securities Exchange Act of 1934 ("Exchange Act") [15 U.S.C. §§ 78j(b) and 78m(b)(5)] and Rules 10b-5, 13b2-1 and 13b2-2 promulgated thereunder [17 C.F.R. §§ 240.10b-5, 240.13b2-1, 240.13b2-2], and acts and practices that constituted and will constitute aiding and abetting violations of Sections 13(a), 13(b)(2)(A) and 13(b)(2)(B) of the Exchange Act [15 U.S.C. §§ 78m(a), 78m(b)(2)(A) and 78m(b)(2)(B)] and Rules 12b-20, 13a-1 and 13a-13 promulgated therunder [17 C.F.R. §§ 240.12b-20, 240.13a-1 and 240.13a-13].
4. The Commission brings this action pursuant to Section 20(b) of the Securities Act [15 U.S.C. § 77t(b)] and Section 21(d) of the Exchange Act [15 U.S.C. § 78u(d)].
5. This Court has jurisdiction of this action pursuant to Sections 20(b) and 22(a) of the Securities Act [15 U.S.C. §§ 77t(b) and 77v(a)] and Sections 21(d) and 27 of the Exchange Act [15 U.S.C. §§ 78u(d) and 78aa].
6. Don-Allen Ruttenberg, directly and indirectly, has made use of the mails, the means and instruments of transportation and communication in interstate commerce, and the means and instrumentalities of interstate commerce, in connection with the transactions, acts, practices and courses of business alleged in this Complaint.
7. Venue lies in this Court pursuant to Section 22(a) of the Securities Act [15 U.S.C. § 77v(a)] and Section 27 of the Exchange Act [15 U.S.C. § 78aa] because Just For Feet was based in this district, many of the acts constituting the scheme occurred within this district, and the offer and sale of Just for Feet's securities during the relevant period occurred within this district.
8. Don-Allen Ruttenberg, 36, of Toronto, Canada, is the son of Just for Feet's founder. He joined Just for Feet in 1987. He served as Vice President-New Store Development from February 1997 to February 1999. He became Executive Vice President in February of 1999 and remained in that capacity until Just for Feet's bankruptcy. He is currently the Vice President for Gen-X Sports, Inc., a shoe company headquartered in Toronto.
9. Just for Feet, Inc., a Delaware corporation based during the relevant period in Birmingham, Alabama, was a national retailer of athletic and outdoor footwear and apparel. Just for Feet went public in 1994. On January 25, 1994, the Company's securities were registered with the Commission pursuant to Section 12(g) of the Securities Act [15 U.S.C. § 78l] and traded on the National Association of Securities Dealers Automated Quotation System ("NASDAQ") under the symbol "FEET." Just for Feet is no longer traded on NASDAQ. Despite presenting a favorable financial picture in its fiscal 1998 Form 10-K filed on April 30, 1999, Just for Feet filed for protection in November of 1999 under Chapter 11 of the Bankruptcy Code. This was converted to a Chapter 7 liquidation proceeding in 2000.
10. Just for Feet's fiscal year ran from February 1 through January 31. In January 1999, however, Just for Feet changed the ending date for fiscal 1998 to January 30.
11. Just for Feet incurred large amounts of advertising expenses. Most of its vendors offered financial assistance through unwritten agreements to Just for Feet to help pay for these advertising expenses. This assistance was termed "advertising co-op" or "vendor allowances." If Just for Feet promoted a particular vendor's products in one of its advertisements, that vendor might agree to offer advertising co-op to the Company to share the costs of the advertisement. Just for Feet offset this co-op revenue against advertising expense on its income statement.
12. Although every vendor agreement was somewhat different, Just for Feet's receipt of advertising co-op revenue was not guaranteed. The Company usually had to submit the advertisement to the vendor for approval after Just for Feet had already paid for it. If the vendor approved the advertisement, it would usually issue the co-op payment to Just for Feet in the form of a credit memo offsetting expenses on Just for Feet's merchandise purchases from that vendor (hereinafter "co-op dollars").
13. Most vendors limited the amount of advertising co-op dollars allowed to Just for Feet over a given period of time because co-op dollars were usually based on the amount of merchandise that Just for Feet purchased from that particular vendor. Even if Just for Feet had co-op dollars accrued or available to it, the Company would still have to pay for the advertisement, submit it to the vendor, and receive approval from the vendor before receiving any co-op payments.
14. During fiscal year 1998 and the first quarter of 1999, Just for Feet's Executive Vice President, Don-Allen Ruttenberg, caused the Company's accounting department to book, for various quarters during fiscal year 1998, co-op receivables when he knew or was extremely reckless in not knowing that the vendors in question did not owe these funds to Just for Feet at any time during fiscal year 1998.
15. Defendant Don-Allen Ruttenberg verified to the Just for Feet accounting department that the fictitious co-op receivables amounts were earned, and he gave instructions to Just for Feet's accounting staff on how to book journal entries relating to these receivables. Don-Allen Ruttenberg thereafter caused various persons to provide documents used to confirm, falsely, approximately $19.4 million in co-op receivables recorded for fiscal year 1998 that Just for Feet had not in fact earned during the fiscal year.
16. As a part of the fraudulent scheme, Defendant Don-Allen Ruttenberg persuaded representatives of Adidas America ("Adidas"), Fila USA ("Fila"), and Nike, Inc. (Nike") to sign audit confirmation letters, representing $6.2 million of this $19.4 million amount that he knew to be false.
17. The Director of Sales for Adidas, the North American subsidiary of Adidas-Salomon, signed the letter Don-Allen Ruttenberg sent to him in March 1999, fraudulently confirming that his company owed $2.3 million in co-op receivables to Just for Feet as of January 30, 1999. The letter clearly stated that the confirmation was in connection with the audit of Just for Feet's financial statements. Adidas in fact owed no co-op receivables to Just for Feet as of January 30, 1999. Defendant Don-Allen Ruttenberg pressured the executive into signing the confirmation by claiming that it was merely an internal document and that Adidas was the last of the Company's vendors who had not signed a confirmation letter. Don-Allen Ruttenberg knew and acknowledged to the vendor's representative that Adidas in fact did not owe any co-op receivable funds to Just for Feet.
18. The Adidas representative, at Defendant Don-Allen Ruttenberg's instruction, sent the false confirmation to the accounting firm Deloitte and Touche ("Deloitte"), the auditors auditing Just for Feet's financial statements. After sending the false confirmation, Adidas sent a "Disclaimer" to Don-Allen Ruttenberg stating that the confirmation would become invalid if Just for Feet attempted to use it, without other evidence, to collect any of the credits purportedly owed to it by Adidas. Don-Allen Ruttenberg did not disclose this disclaimer to the Deloitte auditors.
19. The CEO of Fila similarly signed a letter Don-Allen Ruttenberg sent to him, fraudulently confirming that Fila owed $1.38 million in co-op receivables to Just for Feet as of January 30, 1999. This letter explicitly stated that the confirmation was in connection with the audit of Just for Feet's financial statements. In fact, defendant Don-Allen Ruttenberg knew that Fila owed only $171,442 to Just for Feet as of the end of fiscal 1998 (January 30, 1999). Defendant Don-Allen Ruttenberg nevertheless pressured the Fila executive into signing the confirmation and directed him to send it directly to the Deloitte auditors who were auditing Just for Feet's financial statements. The Fila executive complied with defendant Don-Allen Ruttenberg's demands and sent the letter to the auditors.
20. At defendant Don-Allen Ruttenberg's request, Nike's Strategic Account Manager for the Southeast wrote and sent to Don-Allen Ruttenberg two confirmation letters in March 1999. In the first letter, Nike fraudulently confirmed that Just for Feet had $2.15 million in "available" co-op funds from Nike as of January 30, 1999. In fact, Just for Feet had only approximately $600,000 in available co-op allowances from Nike at the end of January 1999 but had not earned any of this amount. Nike therefore owed nothing to Just for Feet as of that date. The Nike executive signed this letter at the request of Don-Allen Ruttenberg, who explained that the Company's auditors, Deloitte, were performing an audit of Just for Feet's financial statements. Thereafter, Don-Allen Ruttenberg provided the letter to Deloitte in connection with the audit.
21. Nike's second letter confirmed that Just for Feet had accrued, as of January 30, 1999, $509,000 in "Margin enhancement Co-Op," a type of co-op payment given by a vendor to a retailer to support the latter's profit margins when goods are sold at lower than expected prices. Don-Allen Ruttenberg knew that this statement was invalid because Nike did not offer margin enhancements.
22. During March and April 1999, Don-Allen Ruttenberg pressured other vendor contacts, specifically Asics-Tiger Corp. ("Asics"), New Balance, Inc., Reebok International, Inc. ("Reebok"), and Timberland Company ("Timberland"), to sign and send to Deloitte confirmation requests that would have fraudulently verified $13.2 million in co-op receivables purportedly owed to Just for Feet as of January 30, 1999. Those venders refused to sign these fraudulent confirmations. However Don-Allen Ruttenberg nonetheless caused the false receivables, and related revenue, to remain on the books.
23. Don-Allen Ruttenberg and others knowingly provided false information to Just for Feet's accounting department that caused Just for Feet to book for fiscal year 1998 approximately $971,135, $4.3 million, and $6.8 million in unearned co-op receivables from Asics, New Balance and Reebok, respectively, when in fact these companies owed Just for Feet nothing. Additionally, the Company booked approximately $1.3 million in unearned co-op from Timberland when in fact Timberland owed the Company only $105,000, a difference of approximately $1.2 million. Defendant Don-Allen Ruttenberg directed and participated in this scheme and knew or was reckless in not knowing that these receivables had not been earned.
24. Defendant Don-Allen Ruttenberg's acts as described above had a material effect on Just for Feet's financial results as reported and repeated in its fiscal 1998 Form 10-K, Forms 10-Q for the first and second quarters of 1999, the May 1999 Form S-8 and the June 1999 Form S-4. For the fiscal year 1998, the fraudulent practices described above resulted in over $19 million in fictitious pretax earnings being reported, out of total earnings of approximately $43 million and resulted in Just for Feet's financial statements being presented as prepared in conformity with Generally Accepted Accounting Principles ("GAAP"), when, in fact, they were not in conformity with GAAP.
25. Defendant Don-Allen Ruttenberg and others also caused vendors to bill Just for Feet for the purchase of sales booths which the vendors had previously located in Just for Feet stores at no expense to Just for Feet. Just for Feet then recorded the booths as assets. Just for Feet initially paid the charges, but in return obtained a credit on merchandize purchases. This accounting enabled the Company to decrease its expenses and thereby increase net income before taxes. Just for Feet engaged in "round-trip" transactions by receiving back the funds it used to "buy" these booths and then recognizing these funds as reductions in expenses, thereby increasing income.
26. For the fiscal year 1998, ended January 30, 1999, Just for Feet changed the accounting system for booth assets and income to eliminate the involvement of the vendors entirely. During the first month of fiscal year 1998, Just for Feet projected the dollar amount of booths it wanted to receive during the year, divided the amount by twelve months, and started booking $174,362 per month of booth income through projected reductions of advertising expense. The corresponding entry was a debit or reduction in the accounts payable account (resulting in an increase in net assets). 27. For October 1998, the last month of the third quarter, in addition to the usual $174,362 per month, Just for Feet booked in November another $5.2 million of booth income for a total of approximately $5.4 million for October. There was no supporting documentation attached to the fraudulent journal entry. Just for Feet then fraudulently booked an additional $2.25 million of booth income over the remaining three months of the fiscal year.
28. Although no cash or co-op credits actually changed hands between Just for Feet and the vendors during fiscal year 1998, the Company nonetheless fraudulently increased its net income by $9 million during that fiscal year through the above-described method of accounting for vendor booths.
29. Under the new method of accounting, the vendors did not bill Just for Feet for the booths during the fiscal year ended January 30, 1999. Because it received no corresponding co-op credits during the year, the Company had no evidence supporting its fraudulent booking of $9 million of booth income through reductions of advertising expense.
30. In order to substantiate the $9 million booth income amount, Deloitte prepared confirmations to the vendors after year-end to verify the dollar amount of booths received during the year. Defendant Don-Allen Ruttenberg signed all of the confirmation letters and mailed them to various sales directors and corporate officers of the vendors. The language in the confirmations stated "the balance owed by Just for Feet, Inc. as of January 30, 1999 for store booths and fixtures shipped to them during the year ended January 30, 1999 is $[amount varied by vendor]."
31. Although the letters actually represented the confirmations of "payables" allegedly owed by the vendor to Just for Feet, they were used to verify the value of the booths on Just for Feet's books and records. Most vendors cooperated and returned the confirmation letters to Deloitte because there were no immediate costs to them in doing so and this pleased an important customer.
32. Don-Allen Ruttenberg applied pressure to vendors who would not provide the confirmation letters it needed. The Rockport Company, LLC, refused to supply Deloitte with a fraudulent audit letter confirming that Just for Feet "owed" $606,000 for booths as of January 30, 1999. Just for Feet then retaliated by withholding $600,000 on a March 1999 payment for merchandise by claiming that Rockport owed Just for Feet this amount for "booth" co-op.
33. After Rockport issued an invoice for the $600,000 that Just for Feet refused to pay, Rockport declined to ship more merchandise to the Company. An internal Rockport e-mail dated May 4, 1999, states that Just for Feet's withholding of the $600,000 payment "smells like a book cooking to offset the fixturing [sic] amortization's that we said they couldn't take."
34. After further discussions with defendant Don-Allen Ruttenberg, Rockport eventually submitted a $600,000 invoice for "retail fixtures for 1998" to Just for Feet, which the Company paid. The effect of this transaction was that Rockport ended up receiving the money that Just for Feet legitimately owed to it while Just for Feet received a bill substantiating, falsely, that it had purchased the booths. In effect, Just for Feet and Don-Allen Ruttenberg held the $600,000 that Just for Feet owed Rockport "hostage" until the Company received the bill that it needed to support its fraudulent booth project.
35. The booth accounting scheme misrepresented Just for Feet's earnings by approximately $9 million, with at least $600,000 directly attributable to Don-Allen Ruttenberg's actions. Don-Allen Ruttenberg's acts had a material effect on Just for Feet's financial results as reported and repeated in its fiscal 1998 Form 10-K, Forms 10-Q for the first and second quarters of 1999, the May 1999 Form S-8 and the June 1999 Form S-4, and resulted in Just for Feet's financial statements being presented falsely as prepared in conformity with GAAP.
36. By the acts described above, Don-Allen Ruttenberg was responsible for incorrectly recorded transactions on Just for Feet's books and records. By recording fictitious entries and supplying or causing to be supplied false documentation, he contributed directly to and caused the failure of Just for Feet's internal controls.
37. Paragraphs 1 through 36 are hereby realleged and are incorporated herein by reference.
38. Don-Allen Ruttenberg, in connection with the offer or sale of securities described herein, by the use of the means and instrumentalities of interstate commerce and by use of the mails, directly and indirectly:
(a) employed devices, schemes, and artifices to defraud;
(b) obtained money or property by means of untrue statements of material facts and omissions of 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 transactions, practices, and courses of business which operated and would operate as a fraud or deceit upon the purchasers of securities, all as more particularly described in the paragraphs above.
39. Don-Allen Ruttenberg knowingly, intentionally, or with severe recklessness engaged in the aforementioned devices, schemes and artifices to defraud. In engaging in such conduct, Don-Allen Ruttenberg acted with scienter, that is, with an intent to deceive, manipulate and defraud or with a severe reckless disregard for the truth.
40. By reason of the foregoing, Don-Allen Ruttenberg, directly and indirectly, has violated and, unless enjoined, will continue to violate Section 17(a) of the Securities Act [15 U.S.C. § 77q(a)].
41. Paragraphs 1 through 36 are hereby realleged and are incorporated herein by reference.
42. Don-Allen Ruttenberg, in connection with the purchase and sale of securities described herein, by the use of the means and instrumentalities of interstate commerce and by use of the mails, directly and indirectly:
a) employed devices, schemes, and 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 would and did operate as a fraud and deceit upon the purchasers of such securities, all as more particularly described in the paragraphs above.
43. Don-Allen Ruttenberg knowingly, intentionally, or with severe recklessness engaged in the aforementioned conduct. In engaging in such conduct, Don-Allen Ruttenberg acted with scienter, that is, with an intent to deceive, manipulate and defraud or with a severe reckless disregard for the truth.
44. By reason of the foregoing, Don-Allen Ruttenberg, directly and indirectly, has 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 thereunder [17 C.F.R. § 240.10b-5].
45. Paragraphs 1 through 36 are hereby realleged and are incorporated herein by reference.
46. Don-Allen Ruttenberg aided and abetted Just for Feet's 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. §§ 240.12-20, 240.13a-1 and 240.13a-13], which occurred when Just for Feet filed annual and periodic reports that contained financial statements that were not prepared in conformity with GAAP and contained material misstatements. Through the conduct described in the above paragraphs, Don-Allen Ruttenberg knowingly or with severe recklessness substantially assisted Just for Feet's violations of this section and rules.
47. By reason of the foregoing, Don-Allen Ruttenberg aided and abetted violations of, and, unless enjoined, will continue to aid and abet 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. §§ 240.12-20, 240.13a-1 and 240.13a-13].
48. Paragraphs 1 through 36 are hereby realleged and are incorporated herein by reference.
49. Don-Allen Ruttenberg, from December 1997 through May 1999, aided and abetted Just For Feet's violations of Section 13(b)(2)(A) of the Exchange Act, which occurred when Just for Feet failed to make and keep books, records, and accounts, which, in reasonable detail, accurately and fairly reflected the transactions and dispositions of Just for Feet's assets.
50. Rule 13b2-1 prohibits any person from directly or indirectly falsifying or causing the falsification of any such books, records or accounts.
51. Through the conduct described in the above paragraphs, Don-Allen Ruttenberg violated Rule 13b2-1 and aided and abetted violations of 13(b)(2)(A) of the Exchange Act.
52. Paragraphs 1 through 36 are hereby realleged and are incorporated herein by reference.
53. Section 13(b)(5) of the Exchange Act prohibits any person from knowingly circumventing and knowingly failing to implement a system of internal accounting controls and knowingly falsifying any book, record, or account required by Section 13(b)(2)(A) of the Exchange Act.
54. Section 13(b)(2)(B) requires issuers to devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances that, among other things, transactions are executed in accordance with management's authorization and that transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP and to maintain accountability for assets.
55. Through the conduct described above, Don-Allen Ruttenberg violated Section 13(b)(5) and aided and abetted violations of 13(b)(2)(B) of the Exchange Act.
56. Paragraphs 1 through 36 are hereby realleged and are incorporated herein by reference.
57. Rule 13b2-2 prohibits officers and directors from, directly or indirectly, making and causing to be made materially false and misleading statements or omitting to state, or causing another to omit to state, any material fact in order to make statements made not misleading to an accountant in connection with any audit or examination of the financial statements required to be filed with the Commission or the preparation or filing of any document or report to be filed with the Commission. Through the conduct described above, Don-Allen Ruttenberg violated Rule 13b2-2 promulgated under the Exchange Act.
WHEREFORE, Plaintiff Commission, respectfully prays that the Court:
Make findings of fact and conclusions of law in accordance with Rule 52 of the Federal Rules of Civil Procedure.
Issue a permanent injunction enjoining Don-Allen Ruttenberg and his agents, servants, employees, attorneys, and all persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise, and each of them:
Issue an Order awarding disgorgement of ill-gotten gains and prejudgment interest thereon.
Issue an Order requiring Don-Allen Ruttenberg, pursuant to Section 20(d)(1) of the Securities Act [15 U.S.C. § 77t(d)(1)] and Section 21(d)(3) of the Exchange Act [15 U.S.C. § 78u(d)(3)] to pay civil monetary penalties.
Issue an Order pursuant to Section 21(d)(2) of the Exchange Act [15 U.S.C.§ 78u(d)(2)] permanently prohibiting Don-Allen Ruttenberg from acting as an officer or director of any issuer that has a class of securities registered with the Commission pursuant to Section 12 of the Exchange Act [15 U.S.C. § 78l] or that is required to file reports with the Commission pursuant to Section 15(d) of the Exchange Act [15 U.S.C.§ 78o(d)].
Issue an Order that retains jurisdiction over this action in order to implement and carry out the terms of all orders and decrees that may have been entered or to entertain any suitable application or motion by the Commission for additional relief within the jurisdiction of this Court.
Grant such other and further relief as may be necessary and appropriate.
|Dated: February 25, 2004||RESPECTFULLY SUBMITTED,|
William P. Hicks
DISTRICT TRIAL COUNSEL
Georgia Bar No. 351649
Tel: 404 842-7675
Michael J. O'Leary
SENIOR TRIAL ATTORNEY
Georgia Bar No. 551025
Tel: (404) 842-7600
Debbie T. Hampton
Georgia Bar No. 707681
Tel: 404 842-7635
COUNSEL FOR PLAINTIFF
U. S. SECURITIES AND EXCHANGE COMMISSION
3475 Lenox Road, N.E., Suite 1000
Atlanta, Georgia 30326-1234
(404) 842-7679 fax
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