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A Time Warner shareholder on Thursday filed a putative class action lawsuit against the company and its top executives, alleging that disclosed financials potentially mislead stockholders voting on the $108 billion AT&T merger. With a Feb. 15 vote looming, Richard Collura is looking to get a New York federal judge to stop consummation of the merger until defendants disclose material information.
The primary objection raised in the lawsuit is that Time Warner, which owns such entities as Warner Bros. and CNN, has only disclosed non-GAAP financial measures in management forecasts. Instead, Collura, on behalf of himself and others similarly situated, demands the company use generally accepted accounting principles so that shareholders get a better idea about the true state of the company’s finances.
“The omission of such projections renders the non-GAAP projections included in the Proxy materially incomplete and misleading,” states the complaint.
The lawsuit notes that the Securities & Exchange Commission has increased scrutiny of the use of non-GAAP financial metrics, quoting outgoing chairwoman Mary Jo White as expressing concern how non-GAAP disclosures might mislead about recurring cash operating expenses and other line items. In a speech last June, she recommended that audit committees at companies “carefully oversee their company’s use of non-GAAP measures and disclosures.”
The lawsuit contends that failure to provide such information constitutes a violation of Sections 14(a) and 20(a) of the Exchange Act.
“The Individual Defendants were aware of their duty to disclose this information,” continues the complaint. “The material information described above that was omitted from the Proxy takes on actual significance in the minds of Time Warner’s stockholders in reaching their decision whether to vote in favor of the Proposed Transaction. Absent disclosure of this material information prior to the vote on the Proposed Transaction, Plaintiff and the other members of the Class will be unable to make an informed decision about whether to vote in favor of the Proposed Transaction and are thus threatened with irreparable harm for which damages are not an adequate remedy.”
The plaintiff wants to halt the merger until this information is provided, but if AT&T is allowed to buy Time Warner before a judge renders a final decision, it’s demanded that class members be awarded rescissory damages. The complaint is filed attorneys at Levi & Korsinsky.
Time Warner hasn’t yet responded to an opportunity for comment.
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