Southern District Of Ohio Declines To Dismiss Putative Class Action Against Energy Company Regarding Alleged Bribery Scheme

• Published date: 16 March 2022
• Law Firm: Shearman & Sterling LLP
• Author: Shearman & Sterling LLP

On March 7, 2022, Judge Algenon L. Marbley of the Southern District of Ohio largely denied a motion to dismiss a putative class action asserting claims under the Securities Exchange Act of 1934 ("Exchange Act") and the Securities Act of 1933 ("Securities Act") against an energy company, certain of its executives and directors, and certain underwriters of its bond offerings. In re FirstEnergy Corp. Sec. Litig., No. 2:20-cv-3785 (S.D. Ohio Mar. 7, 2022). Plaintiffs alleged that the company engaged in an anti-competitive scheme that included bribing state officials in exchange for a government bailout of its nuclear power facilities. The lawsuit relates to the Ohio House Bill 6 scandal, in connection with which Ohio's former Speaker of the House and others have been arrested on racketeering charges, political strategists and lobbyists have pleaded guilty to a racketeering conspiracy; the company fired certain executives for violating company policies and its code of conduct, and the company entered into a deferred prosecution agreement under which it paid a $230 million penalty and acknowledged having "conspired with public officials and other individuals and entities to pay millions of dollars to and for the benefit of public officials in exchange for specific official action" for the company's benefit. The Court held that plaintiffs had sufficiently alleged the various elements of their claims and declined to dismiss any defendant from the case, although the Court dismissed certain claims with respect to certain individual defendants.

With respect to their Exchange Act claims, plaintiffs asserted two separate theories of liability, both of which rested on similar underlying facts. One theory was based on defendants allegedly having made misstatements and omissions; the other was based on the company allegedly having engaged in a "scheme ...to defraud."

First, plaintiffs alleged that the failure to disclose the alleged scheme rendered numerous statements misleading, including risk factors in SEC filings, statements regarding the company's commitment to ethical standards and compliance efforts, statements regarding lobbying activity, and statements regarding the legislation in question. Slip op. at 17-18. Although defendants argued that the challenged statements amounted to non-actionable opinions, the Court observed that the same SEC filings had already been determined in a prior shareholder derivative action to contain material misrepresentations or omissions. Id. at 18-19. Further, the Court explained, if the alleged scheme were (as plaintiffs alleged) fundamental to the company's business model, then those statements "either were not honestly held or were not based on the diligence a reasonable investor would expect them to convey." Id. at 19. The Court also rejected defendants' argument that they had no duty to disclose the alleged scheme in connection with "loosely optimistic statements," explaining that once the company "chooses to volunteer such information," the "disclosure must be full and fair" and "provide complete and...