Opinion
No. CS-01-0127-JLQ
April 24, 2001
Gary J. Ceriani, Michael P. Cillo, DAVIS CERIANI, P.C. Denver, Colorado, for plaintiff
John D. Munding, CRUMB MUNDING, P.S., Spokane, Washington, for Plaintiffs
COMPLAINT DEMAND FOR JURY TRIAL
Plaintiffs, by their attorneys, Davis Ceriani, P.C. and Crumb Munding, P.S., for their Complaint against Defendants, and each of them, state as follows:
JURISDICTION AND VENUE
1. This Court has jurisdiction pursuant to the Securities Exchange Act of 1934, 15 U.S.C. § 78aa and 28 U.S.C. § 1331. This Court has jurisdiction to hear and determine Plaintiffs' pendant claims for relief arising under the Washington Securities Act, R.C.S. §§ 21.20.430(1), 21.20.430(3), and for common law fraud and negligent misrepresentation pursuant to 28 U.S.C. § 1331 and 1367 in that such claims arise from a common nucleus of operative facts and are so intertwined as to make the Court's exercise of jurisdiction appropriate.
2. Venue of this action lies in this Court pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to Plaintiffs' claims occurred in this District, and the property that is the subject of this action is located in this District.
SUMMARY OF COMPLAINT
3. On September 15, 1998, the Spokane Downtown Foundation issued $31,465,000 of Spokane Downtown Foundation Parking Revenue Bonds, Series 1998 (the "Bonds"), to finance the purchase, in about August 1999, of the renovated and expanded River Park Square Parking Garage (the "Garage") which is adjacent to the River Park Square shopping mall (the "RPS Mall") in downtown Spokane (collectively, the "Project"). The Plaintiffs collectively purchased $19,810,000 of the Bonds from the underwriter of the Bonds, Prudential Securities Incorporated, in reliance upon a Preliminary Official Statement and an Official Statement (the "Official Statements") which were drafted by Prudential Securities Incorporated and underwriter's counsel, Foster Pepper Shefelman PLLC. A key attachment to the Official Statements (Appendix B) was a "Financial Feasibility Analysis" (the "Walker Report") which was prepared by Walker Parking Consultants/Engineers, Inc.4. The Bonds were not secured by any interest in the Garage or the land underneath it. The sole source of repayment for the $31.5 million in bonds was revenues from the Garage, with an important and unconditional credit enhancement described below to be provided by the City of Spokane pursuant to Ordinance C31823 (the "Ordinance"), passed by the City on January 27, 1997. Two critical factors to prospective bond purchasers were the reasonableness of the assumptions underlying the cash flow projections in the Walker Report and the City's obligations under the Ordinance if revenues were less than projected.
5. When the Bonds were issued in September 1998, the fair market value of the Garage, in fully renovated and expanded condition, was, and was known by the Defendants to be, less than $10 million. In violation of Section 10 of the Securities Exchange Act of 1934 (the "1934 Act") and Securities and Exchange Commission Rule 10b-5 promulgated thereunder, the Washington Securities Act and the common law of Washington, the below-named Defendants, singly and together, directly and indirectly, conspired with each other to, and did, enter into a scheme or artifice to defraud the purchasers of the Bonds, including Plaintiffs, by devising and implementing a scheme to overvalue the Garage so that it could be sold to the Spokane Downtown Foundation for $26 million, thereby generating approximately $11 million in fraudulent profits for the owners and developers of the RPS Mall and the Garage. Further, in violation of the above statutes and law, the City failed to disclose both its belief that there were defenses which could be asserted in opposition to any attempts to enforce the Ordinance and the City's intent to assert such defenses if anyone sought to enforce the Ordinance.
PARTIES
6. Plaintiff Nuveen Quality Income Municipal Fund, Inc. is a municipal bond investment fund which has its principal offices in Chicago, Illinois. Nuveen Quality Income Municipal Fund, Inc. purchased $1,675,000 of the Bonds on about September 18, 1998, and still holds said Bonds.7. Nuveen Premium Income Municipal Fund 4, Inc. is a municipal bond investment fund which has its principal offices in Chicago, Illinois. Nuveen Premium Income Municipal Fund 4, Inc. purchased $1,570,000 of the Bonds on about September 18, 1998, and still holds said Bonds. Nuveen Quality Income Municipal Fund, Inc. and Nuveen Premium Income Municipal Fund 4, Inc. are hereinafter collectively referred to as "Nuveen."
8. Plaintiff Strong Municipal Bond Fund, Inc. ("Strong") is a Wisconsin municipal bond investment fund which has its principal offices in Menomonee Falls, Wisconsin. Strong purchased $3,350,000 of the Bonds on about September 18, 1998, and still holds said Bonds.,
9. Plaintiff Smith Barney Municipal Fund Limited Term is a municipal bond investment fund which has its principal offices in New York City, New York. Smith Barney Municipal Fund Limited Term purchased $3,900,000 of the Bonds on about September 15, 1998, and still holds said Bonds.
10. Plaintiff Smith Barney Municipal High-Income Fund is a municipal bond investment fund which has its principal offices in New York City, New York. Smith Barney Municipal High-Income Fund purchased $3,315,000 of the Bonds on about September 15, 1998, and still holds said Bonds. Smith Barney Municipal Fund Limited Term and Smith Barney Municipal High-Income Fund are hereinafter collectively referred to as "SB Funds."
11. Plaintiff Vanguard High-Yield Tax-Exempt Fund ("Vanguard) is a municipal bond investment fund that is a series of Vanguard Municipal Bond Funds, a Delaware Business Trust, which has its principal offices in Malvern, Pennsylvania. Vanguard purchased $6,000,000 of the Bonds on about September 16, 1998, and still holds said Bonds.
12. Plaintiffs Nuveen, Strong, SB Funds and Vanguard are hereinafter referred to collectively as the "Bondholders."
13. Defendant Prudential Securities Incorporated ("Prudential") is a Delaware corporation and registered broker-dealer which does business in the State of Washington. Prudential acted as underwriter for the Bonds and offered and sold the Bonds to each of the Plaintiffs on about September 18, 1998. As the underwriter and the seller of the Bonds, Prudential had a duty to make full, fair and accurate disclosure of all material facts needed to make an informed investment decision to all prospective purchasers of the Bonds, including Plaintiffs.
14. John C. Moore was, at all times pertinent hereto, an employee of and a Managing Director of Public Finance for Prudential. John C. Moore was charged by Prudential with primary responsibility for conducting Prudential's due diligence investigation into the facts and circumstances surrounding the issuance of the Bonds. As part of Prudential's due diligence inquiry, its representatives, including John C. Moore, obtained actual knowledge that the $26 million purchase price for the Garage was inflated, unfair and unreasonable, that the fair market value of the Garage was less than $10 million, that the Walker Report (Appendix B to the Official Statements) was totally unreliable, and that the Official Statements were materially false and misleading. Prudential, through John Moore and other Prudential representatives, obtained such knowledge as a result of their due diligence activities, their participation in meetings and conferences, and their review of reports on the value of the Garage conducted by MAI appraisers Auble Associates ("Auble" and the "Auble Report") and Daniel M. Barrett ("Barrett" and the "Barrett Report"), a critique of the Walker Report prepared by the accounting firm Coopers Lybrand L.L.P. ("Coopers Lybrand" and the "Coopers Lybrand Report"), and their review and analysis of other documents identified elsewhere in this Complaint.
15. Defendant Walker Parking Consultants/Engineers, Inc. ("Walker") is a Michigan corporation with its principal offices in Indianapolis, Indiana, which specializes in providing consulting services, including the preparation of financial feasibility studies, to public and private sector clients who are evaluating the design, construction, renovation and expansion of parking facilities, such as the Garage. Walker holds itself out to be internationally recognized in, and having special expertise and experience with respect to, the design, construction and financial analysis of parking structures. In early 1995, the hereinbelow identified "Developers" hired Walker to assist the accounting firm Ernst Young in analyzing the cost of renovating and expanding the Garage and generating fact-based assumptions to project the future financial performance of the Garage. Walker and Ernst Young issued reports on the Garage in or about May and June 1995 (collectively, the "Walker/Ernst Young Reports") which, using reasonable and realistic fact-based assumptions, generated cash flow projections which indicated the value of the Garage upon completion of the renovation and expansion would be less than $10 million.
16. Walker was later hired by the City of Spokane in about April 1996 to prepare a financial feasibility study of the existing Garage and the proposed expansion and renovation of the Garage. John Dorsett was, at all times pertinent hereto, a senior project director and department head for Walker. Dorsett was responsible for the 1995 Walker/Ernst Young Reports and, as a result, developed close ties to the Developers. Dorsett was charged by Walker with primary responsibility for preparing and approving the Walker Report and for examining the reasonableness of the fact-based assumptions which underlie the Walker Report. Walker understood its report would be provided to and would be relied upon by potential purchasers of the Bonds and was aware of and consented to the inclusion of its report in the Official Statements. However, Walker lacked the independence required of a financial feasibility consultant and had an undisclosed conflict of interest because it had previously been hired by the Developers to prepare cash flow projections for the Garage during 1995.
17. Walker's "Financial Feasibility Analysis" was issued in about June 1996 and was subsequently revised and updated on April 22, 1998, and June 29, 1998 (collectively, the "Walker Report"). Dorsett and Walker knew the Walker Report used radically different assumptions than were used to generate the Walker/Ernst Young Reports. Walker, as an expert in the area, knew the new assumptions to be unreasonable and unrealistic, but nonetheless used them for the sole purpose of increasing projected cash flows so that it would appear the Garage was really worth in excess of $26 million. Walker was, therefore, a knowing and willing participant in the scheme or artifice to defraud bond purchasers.
18. Defendant Foster Pepper Shefelman PLLC (the "Foster law firm") is a Washington professional limited liability company engaged in the practice of law with its principal offices in Seattle, Washington. The Foster law firm acted as counsel for the underwriter, Prudential, in connection with the underwriting, issuance, offer and sale of the Bonds and is identified as such on the cover pages of the Official Statements. The Official Statements do not, in any way, limit the scope of the Foster law firm's activities as underwriter's counsel. Prudential retained the Foster law firm to, among other things, advise Prudential regarding disclosure issues, to assist Prudential in performing due diligence with respect to the facts and circumstances of the Bonds and the Project, and to draft and edit the Official Statements.
19. As underwriter's counsel, the Foster law firm had a duty to conduct a reasonable investigation into the facts and circumstances surrounding the feasibility of the proposed bond issue and to take reasonable steps to ensure the Official Statements did not misrepresent material facts and did not fail to disclose material facts which needed to be disclosed to make the facts that were disclosed in the Official Statements not misleading. The Foster law firm's duty to conduct reasonable due diligence included the duty to investigate the accuracy of any statements in the Official Statements which appeared to be inaccurate or doubtful, the duty to make reasonable inquiry into the reasonableness of assumptions underlying forward-looking statements, the duty to ensure that any "expertised" portions of the Official Statements had, in fact, been prepared by experts who had conducted such independent investigation as was necessary or appropriate under the circumstances, and the duty to correct all portions of the Official Statements which its investigation revealed, or suggested, were false or misleading. The Foster law firm also had the duty to not issue opinions of any kind with respect to the issuance of the Bonds and the adequacy of disclosure in the Official Statements until it reasonably believed that full and fair disclosure of all material facts had been made in the Official Statements.
20. In the process of drafting the Official Statements, representatives of the Foster law firm reviewed the statements made in the Official Statements regarding the $26 million purchase price for the Garage, the existence of two MAI appraisals using the "investment value" method, the Walker Report, and certain "concerns" expressed about the risks inherent in the assumptions used by Walker to generate the projected cash flows in the Walker Report. As a result, the Foster law firm knew the above statements in the Official Statements were potentially false and misleading unless the Official Statements made full, fair and accurate disclosures of all material facts regarding the content of the MAI appraisals and the Coopers Lybrand Report. Given that, the Foster law firm had a duty to carefully review the MAI appraisals and the Coopers Lybrand Report. The Foster law firm reviewed the Coopers Lybrand Report and the Auble and Barrett Reports (which are the documents characterized as "MAI appraisals" in the Official Statements) and learned, among other things, that the Walker Report was not a financial feasibility study, that the Walker Report was totally unreliable, that the so-called "MAI appraisals" were not really MAI appraisals, that the Garage was really worth nowhere near $26 million and that, as a result, the Official Statements it was drafting were materially false and misleading. The Foster law firm, having obtained such information, could not lawfully go forward with the preparation of the Official Statements and the issuance of any opinions in connection with the closing on the bond issue without first ensuring that full and fair disclosure was made of all material facts.
21. The Foster law firm issued an opinion dated September 24, 1998, in connection with the issuance of the Bonds (the "Foster Opinion"). The Bonds could not and would not have been issued without the Foster Opinion. The Foster law firm made the following statements, among others, in the Foster Opinion:
We also examined information made available to us in the course of our participation in the preparation of the Official Statement as counsel for the Underwriter, including legal matters and certain records, documents and proceedings, and we have attended conferences with, among others, representatives of the Underwriter, the Issuer, Preston Gates Ellis LLP, bond counsel and general counsel to the Issuer, the Trustee, the Spokane Parking Public Development Authority, a Washington public corporation (the "Authority"), Perkins Coie LLP, counsel to the Authority and the City of Spokane, Washington, at which conferences the contents of the Official Statement were discussed; however, our examination of information and participation in such conferences does not necessarily constitute such diligence as may be specified, required or implied in Sections 12(b) and 17 of the Securities Act of 1933, as amended, Section 10(b) of the Securities Exchange Act of 1934, as amended, and similar provisions under state securities or 'blue sky' laws or regulations promulgated pursuant thereto, to the extent such provisions and regulations may be applicable (and no opinion is expressed as to such applicability). Without undertaking to determine independently or assuming any responsibility for the accuracy, completeness or fairness of the statements contained in the Official Statement, we have no reason to believe that the Official Statement as of this date contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading (except that we express no opinion or belief with respect to any financial or statistical data contained in the Official Statement).
Even ignoring that such statement is not, as a matter of law, sufficient to disclaim the duties imposed upon the Foster law firm by virtue of its role as underwriter's counsel and primary draftsman of the Official Statements, the Foster law firm acquired actual knowledge that the Official Statements were materially false and misleading as a result of taking the hereinabove-alleged actions. As a result, the final sentence in the above paragraph of the Foster Opinion is both false and misleading.
22. Defendant Spokane Downtown Foundation (the "Foundation") is a Washington non-profit corporation created in 1996 by the owners and developers of the RPS Mall and the Garage (hereinafter identified as the "Developers") as the entity to: (1) issue the Bonds; (2) purchase the renovated and expanded Garage from the Developers with proceeds from the sale of the Bonds; and (3) lease the ground underlying the Garage from the Developers. The Foundation has, at all times pertinent hereto, been managed by a board of directors appointed by representatives of the Developers and is, therefore, subject to the direct and indirect control of the Developers and their representatives.
23. Defendant Preston Gates Ellis LLP (the "Preston law firm") is a Washington limited liability partnership engaged in the practice of law with its principal offices in Seattle, Washington. The Preston law firm acted as both issuer's counsel on behalf of the Foundation and bond counsel in connection with the underwriting and issuance of the Bonds. The Preston law firm, acting in the capacity of bond counsel, issued a bond opinion on September 24, 1998, to the Foundation and the underwriter, Prudential, with the knowledge, expectation and belief that the bond opinion would reasonably be relied upon by potential purchasers of the Bonds, including Plaintiffs.
24. As issuer's counsel, the Preston law firm had a duty to thoroughly investigate the facts and circumstances surrounding the proposed bond issue and to take reasonable steps to ensure that the Official Statements did not misrepresent material facts and did not fail to disclose material facts which needed to be disclosed in order to make the facts that were disclosed in the Official Statements not misleading. The Preston law firm's due diligence duties were heightened because the Preston law firm knew its client, the issuer of the Bonds, owed a duty to potential bond purchasers to make full, fair and accurate disclosure of all material facts in the Official Statements and also knew the issuer and its directors did not have the desire or the sophistication to conduct their own due diligence. The Preston law firm also knew the Foundation was controlled by the Developers (who were selling the Garage to the Foundation) and, therefore, lacked independence.
25. As bond counsel, the Preston law firm had a duty to thoroughly investigate the facts and circumstances surrounding the proposed bond issue to determine, among other things, that the Foundation would not be paving more than the fair value of the Garage to the Developers. The Preston law firm understood the Developers either owned or controlled the owners of the Garage and planned to sell the renovated and expanded Garage to the Foundation, which the Developers also controlled, for approximately $26 million. As bond counsel and as counsel for the issuer, the Preston law firm had a duty to take reasonable steps to ensure that the lack of independence of its client and conflicts of interest of the Developers did not impair the accuracy or completeness of the disclosures made in the Official Statements.
26. The Preston law firm did, in fact, review the Walker Report, the Auble and Barrett Reports, the Coopers Lybrand Report, and drafts of the Official Statements, and, as a result, knew the Official Statements were materially false and misleading. The Preston law firm, having obtained such information, owed a duty to the Foundation and the Bondholders to not go forward with the issuance of any opinions without first ensuring that full and fair disclosure was made of all material facts and without first ensuring that that Foundation was not paying any more to the Developers than the fair value of the Garage. The Preston law firm, having knowledge that the Official Statements were materially false and misleading, nonetheless issued three opinions in connection with closing on issuance of the Bonds. The Bonds could not and would not have been issued had the Preston law firm refused to issue any of the three opinions.
27. In one September 24, 1998, opinion, the Preston law firm states, among other things:
In this connection we have reviewed and examined certain proceedings and documents with respect to the Bonds, and such records, certificates and other documents we have considered necessary or appropriate for the purposes of this opinion, including the Amended and Restated Articles of Incorporation and Bylaws of the Issuer, the Issuer Resolution, the Financing Documents, the Project Documents, the Preliminary Official Statement dated September 2, 1998, and the Final Official Statement dated September 15, 1998, with respect to the issuance and offering of the Bonds (collectively the "Official Statement") and a closing certificate of the Issuer. Based on such review and such other considerations of law and fact as we believe to be relevant, we are of the opinion that:
. . . .
(10) Based upon our experience as counsel for the Issuer and on our review of and participation in the drafting of the Official Statement, and after diligent inquiry, we have no reason to believe that the information regarding the Issuer in the Official Statement contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
At the time the Preston law firm issued this opinion, the Preston law firm had actual knowledge that the Official Statements were materially false and misleading as a result of taking the hereinabove-alleged actions. As a result, the final sentence in the above paragraph of the Preston Opinion is both false and misleading.
28. Cowles Publishing is a Washington corporation with its principal offices in Spokane, Washington. Elizabeth Cowles was, at all times pertinent hereto, a resident of Spokane, Washington, and an owner of Cowles Publishing.
29. Defendant Citizens Realty Company ("Citizens") is a Washington corporation with its principal place of business in Spokane, Washington, and is a wholly-owned subsidiary of Cowles Publishing. Citizens is controlled by Cowles Publishing and Elizabeth Cowles.
30. Defendant Lincoln Investment Company of Spokane ("Lincoln") is a Washington corporation with its principal place of business in Spokane, Washington. Lincoln is controlled by Elizabeth Cowles.
31. Defendant RPS Mall L.L.C. ("EPS") is a Washington limited liability company comprised of two members, Lincoln and Citizens. As a result, RPS is controlled by Cowles Publishing and Elizabeth Cowles.
32. Defendant RPS II, L.L.C. ("RPS II) is a Washington limited liability company with a principal place of business in Spokane, Washington. RPS II is a wholly-owned subsidiary of RPS and is, therefore, controlled by Cowles Publishing and Elizabeth Cowles.
33. Citizens, Lincoln, RPS, RPS II, Cowles Publishing and Elizabeth Cowles are hereinafter referred to collectively as the "Developers." The Developers directly or indirectly owned the Garage and sold it to the Foundation for the inflated $26 million purchase price in about September 1999 after completion of the renovation and expansion of the Garage by the Developers. The Foundation paid the Developers for the Garage with proceeds from the Bonds.
34. Defendant RWR Management, Inc. is a Washington corporation doing business as R.W. Robideaux and Company ("Robideaux Company") which has its principal offices in Spokane, Washington. Robideaux Company holds itself out as a professional real property management company providing specialized financial and administrative expertise in the financing, development and management of commercial properties. At all times pertinent hereto, Robideaux Company was the project director for the Developers' efforts to renovate and expand both the RPS Mall and the Garage.
35. At all times pertinent hereto, R.W. Robideaux, a resident of Spokane, Washington, was the President of Robideaux Company and was the Robideaux Company employee with overall responsibility for all actions undertaken by Robideaux Company in connection with the commercial project and the activities of the Developers. As of 1998, Robideaux Company had managed the day-to-day business of the Garage on behalf of the Developers for a number of years, and therefore knew, based upon the actual historic financial performance of the Garage, that the fact-based assumptions used by Walker to generate the cash flow projections in the Walker Report were totally unrealistic and unreliable. Robideaux Company also had knowledge of the content of the Walker/Ernst Young Reports, the Auble and Barrett Reports, the Sabey Garage Report, the Coopers Lybrand Report, and the content of the Official Statements because R.W. Robideaux reviewed and commented on those documents on behalf of the Developers.
36. Robideaux Company was, at all times pertinent hereto, an agent for the Developers acting within the course and scope of its agency relationship with the Developers and, as a result, all actions and knowledge of Robideaux Company are imputed to the Developers. Robideaux Company acted in the above capacities in connection with the formation of the Foundation on behalf of the Developers and was instrumental in carrying out the scheme or artifice to defraud by knowingly providing erroneous or unrealistic fact-based assumptions to Walker, and by convincing representatives of the City of Spokane to instruct the appraisers of the Garage to use an appraisal method which would wrongfully inflate the value of the Garage.
37. Defendant City of Spokane (the "City") is a first-class charter city of the State of Washington. The City knew the assumptions used by Walker were unreasonable and that the Walker Report was totally unreliable based upon the City's knowledge of the historic performance of the Garage and the review, by representatives of the City, of the Walker/Ernst Young Reports, the Walker Report, the Auble and Barrett Reports, the Coopers Lybrand Report, and the Sabey Garage Report, among other documents. The City, having such knowledge and acting at the behest of the Developers, nonetheless instructed the appraisers, Auble and Barrett, to use the cash flow projections and fact-based assumptions in the Walker Report for the sole purpose of establishing an artificially inflated value for the Garage. The City then used the Walker Report and the wrongfully inflated value of the Garage in the Auble and Barrett Reports to "negotiate" the $26 million purchase price for the Garage with representatives of the Developers.
38. The City also approved the Ordinance to enhance the credit strength of the Bonds and achieve an investment grade rating for the Bonds from a bond rating agency. The Ordinance was characterized as being valid and unconditional in opinions issued by the City attorney and the City's special counsel, the Perkins Coie law firm. In the opinion letters, the City Attorney and Perkins Coie represented that "[t]he . . . City Ordinance ha[s] been duly enacted by the City Council and [is] in full force and effect . . . and [is] the valid and legally binding obligation of the City, enforceable against the City in accordance with [its] respective terms. . . ." The opinion letters then cited specific provisions of the Official Statements as being accurate, correct, and a complete disclosure of all material facts concerning the Garage project and the subject City Ordinance:
The statements contained in the Official Statement under the captions "Introduction — Purpose of the Bonds — Public Purpose," "Project Participants — the City," "Financing Structure — City Pledge of Parking Meter Revenues," "Sources of Payment and Security for the Bonds — City Pledge of Parking Meter Revenues" and "Project Participants — The City," insofar as such statement purport to summarize certain provisions of the . . . the City Ordinance or to describe the City are true, accurate and correct summaries or descriptions thereof in all material respects and do not omit to state a material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading.
Purchasers of the Bonds, including Plaintiffs, and the Standard Poors rating agency relied upon the validity and unconditional nature of the Ordinance in purchasing the Bonds. The City, however, concealed its belief that there were defenses which could be asserted in opposition to any attempts to enforce the Ordinance and the City's intent to assert such defenses if anyone sought to enforce the Ordinance. The City, despite such knowledge and beliefs, nonetheless permitted the Bonds to be sold to the purchasers thereof, including Plaintiffs, by means of the Official Statements which the City knew were false and misleading.
39. Defendant Spokane Public Parking Development Authority (the "Authority") is an unregistered Washington corporation doing business as River Park Square Parking, which was created by the City through an Ordinance passed by the city council on November 7, 1988. The Authority is governed by a five-member board of directors appointed by the mayor and approved by the city council and is, therefore, subject to the direct and indirect control of the City. During the period the Bonds were being underwritten and issued, two city council members having knowledge of the fraudulent scheme, Orville Barnes and Roberta Greene, sat on the board of directors of the Authority.
40. At the time the Bonds were issued in September 1998, the Authority engaged in no activities other than those relating to the Garage. The Authority was used by the City as the entity that would lease the Garage from the Foundation and assume responsibility for the day-to-day operations and management of the Garage. The Authority was also used by the City to sublease the land underlying the Garage from the Foundation at an artificially inflated price established by the Developers and agreed to by the City.
41. All of the hereinabove identified agents and employees of the Defendants were, at all times pertinent hereto, acting within the course and scope of their employment by said Defendants, and said Defendants have ratified, adopted and approved all of the actions taken by said agents and employees which are the subject of this Complaint.
42. For all of the hereinabove and hereinbelow alleged reasons, each of the above Defendants had actual knowledge that the renovated and expanded Garage would be worth less than $10 million, knew that the "investment value" method was used to artificially and wrongfully inflate the value of the Garage, and knew that the Official Statements, including the Walker Report, were materially false and misleading. By continuing to participate in the underwriting and issuance of the Bonds, as herein alleged, all of the above Defendants knowingly engaged in a scheme or artifice to defraud and an unlawful conspiracy.
43. Each of the Defendants participated in making factual representations to the Bondholders in the Official Statements and were substantial factors in causing the Bonds to be issued by the Authority and sold to Plaintiffs by Defendant Prudential.
GENERAL ALLEGATIONS APPLICABLE TO ALL CLAIMS FOR RELIEF The Conservative Walker/Ernst Young Reports
44. The RPS Mall is a shopping center built in 1974 in downtown Spokane, Washington, which, at all times pertinent hereto, has been directly or indirectly owned by the Developers. The largest tenant of the RPS Mall is Nordstrom. Prior to the issuance of the Bonds, the Garage, which had 750 spaces, was the dedicated parking facility for the RPS Mall, was directly or indirectly owned by the Developers, and never had annual operating revenues in excess of approximately $1 million.
45. In the early 1990's, the Developers commenced a plan to redevelop the RPS Mall at a cost, according to the Developers, in excess of $100 million. One component of the redevelopment of the RPS Mall was the renovation and expansion of the Garage.
46. In 1993, a parking survey prepared by the City's-Planning Department indicated that downtown Spokane had a relatively high surplus of parking spaces. Sometime thereafter (believed to be in early 1995), the Developers approached the City with the idea that the City would purchase a renovated and expanded Garage from the Developers. The Developers hired the Real Estate Advisory Services Group of the accounting firm Ernst Young and Walker to generate the Walker/Ernst Young Reports for the purpose of projecting the net operating income of the Garage based upon assumptions which included the renovation of the existing 750-space garage, the addition of over 230 parking spaces, and the addition of a multiplex cinema as part of the renovation of the RPS Mali.
47. In May 1995, John Dorsett of Walker issued a "revised proforma statement of net operating income" for the Garage as part of the Walker/Ernst Young Reports which projected the Garage would generate approximately $1,750,000 in total revenues during its first year of operation following the renovation and expansion and would not generate more than approximately $2.28 million in annual revenues even after ten years of operation. In contrast, the June 1996 Walker Report artificially inflated the projected revenues approximately 300% by changing key fact-based assumptions. In the Walker Report given to prospective purchasers of the Bonds in the Official Statements, the comparable revenues were projected to be over $4.3 million in the first full year of operations and almost $10 million after ten years.
48. In about June 1995, the City and the Developers discussed the sale of the existing Garage to the City for a purchase price of approximately $4.8 million. The City was not interested in purchasing the Garage, and representatives of the City and the Developers began to discuss the issuance of tax-exempt bonds as a means to pay the Developers for the to-be renovated and expanded Garage.
49. The Developers caused the Foundation to be formed so it could be used as the vehicle for issuing the Bonds and using the Bond proceeds to purchase a renovated and expanded Garage from the Developers. Prudential was hired on behalf of the Foundation to serve as underwriter for any bonds issued by the Foundation.
50. In June 1995, the City, the Developers and Prudential calculated, based upon the Walker/Ernst Young Reports, that a bond issue of approximately $14 million would provide for the purchase (not the lease but the purchase) of the land underlying the Garage, the renovations to the existing Garage, and the construction of approximately 240 additional parking spaces. The Walker/Ernst Young Reports also projected that revenues that could reasonably be projected from the Garage would be sufficient to service approximately $14,000,000 in debt provided the proposed bonds had a 25-year term. On June 12, 1995, the City passed a Resolution which authorized the development of a proposal to acquire and develop the Garage through a bond issue not to exceed $15 million.
51. In about June or July 1996, the City and the Developers determined that if the City would supplement the anticipated revenue from the Garage by pledging approximately $1.6 million per year from its parking meter revenue fund, a much larger bond issue could be supported. However, the City and the Developers all knew the Garage, as renovated and expanded, together with the ground underneath the Garage, would still be worth less than $10 million even if the City took steps to pledge parking meter revenues.
52. About this time, the City, apparently at the behest of the Developers, agreed to utilize an extremely rare and, under the circumstances, improper "investment value" to wrongfully and artificially inflate the "value" of the Garage in order to support a $26 million purchase price and thereby generate a fraudulent and wrongful profit to the Developers of approximately $11 million. In furtherance of the scheme, the Developers, acting through Robideaux Company, supplied Walker with new assumptions to be utilized by Walker in its financial feasibility study (assumptions which Robideaux Company, Walker, the Developers and the City all knew were unrealistic and unreasonable) in order to mislead prospective purchasers of the Bonds into believing that the "value" of the Garage was supported by its anticipated cash flows and that such cash flows were sufficient to carry the debt being assumed to purchase the Garage at the stated price.
The Fraud Based Assumptions and the Walker Report
53. The four principal assumptions supplied to Walker which drove the projected operating revenue figures contained in the Walker Report were: (1) the addition of a 24-screen multiplex AMC cinema to the EPS Mall and the resulting parking revenues that could be projected based upon the assumption that cinema patrons would pay full price for parking; (2) an average projected parking stay of three hours; (3) a $1.50-per-hour parking rate paid by all mall patrons; and (4) the Garage would capture 85% of the available parking customers. Each of the above assumptions was known by Robideaux Company, Walker, the City, and the Developers to be unreasonable based upon the material existing facts alleged hereinbelow.
54. Walker states in the Walker Report (June 1996) that it had not considered the impact of a parking validation program, implying that it had insufficient data available to it to determine the financial impact a parking validation program would have upon future revenues. Since Walker was issuing a "financial feasibility analysis" and had a duty to evaluate the reasonableness of the assumptions underlying its analysis, the Walker Report and the Official Statements, taken as a whole, created the false impression that Walker did not have enough information to evaluate the impact of a future parking validation program. In fact, such information was readily available and known to Robideaux Company, the City, the Developers and Walker. It was ignored because Robideaux Company, Walker, the Developers and the City all knew that if a parking validation program similar to that currently in place was factored into the proformas, there was insufficient revenue to repay the Bonds.
55. The RPS Mall and the Garage had previously participated in parking validation programs which subsidized parking by providing free or substantially reduced rate parking to mall patrons. Not only did this result in a significant decrease in Garage revenues, existing users of the RPS Mall were conditioned to expect reduced rate parking and area businesses were conditioned to expect they would only reimburse the Garage for a small portion of the standard parking fee.
56. Walker had also, at the request of the Developers, evaluated various parking validation scenarios prior to the issuance of the Bonds. Thus, Walker, the Developers, the City and Robideaux Company knew prior to the issuance of the Bonds that a "future" parking validation program was already being planned and, when implemented, would have a significant negative impact on Garage revenues. However, the Developers, acting through Robideaux Company, intentionally caused Walker to ignore the financial impact of a parking validation program in the Walker Report for the specific purpose of falsely inflating the projected revenues and with the knowledge and intent that a validation program would be implemented after the Bonds were issued. As a result, at the time the Bonds were issued, Robideaux Company, the Developers, Walker and the City all knew there was little or no likelihood that the revenues projected in the Official Statements would be realized.
57. The City, the Developers, Walker and Robideaux Company also knew potential AMC movie patrons would very likely not be willing to pay for parking when they had available to them free parking at other theaters in Spokane, including multiplex cinemas, at more or equally convenient locations.
58. In view of the above, Walker, the City, the Developers and Robideaux Company all knew a subsidized parking validation program would be implemented after the Bonds were issued. This material fact was never disclosed to potential bond purchasers.
59. The Developers, the City and Walker knew that the historic average parking stay in the Garage prior to the issuance of the Bonds was approximately 1.2 hours or less. There was no legitimate reason to believe parkers would increase their length of stay after the RPS Mall was renovated. Nonetheless, the Walker Report projects the average retail shopper at the RPS Mall would, on average, park for three hours, or over two times the historic average length of stay, in the Garage. Accordingly, the City, the Developers, Robideaux Company and Walker all knew, based upon all circumstances then known, including historic parking statistics, that an average stay of three hours was totally unreasonable and that, to the extent the projected revenues were based upon this assumption, the Official Statements were knowingly false and misleading. This material fact was never disclosed to potential bond purchasers.
60. Office workers do not tend to park in the Garage, but consume a substantial portion of the other available parking in and about downtown Spokane during working hours on weekdays. However, in the evenings and on weekends, there is a substantial surplus of free or low-priced parking in downtown Spokane which very strongly indicated to Walker, the City, the Developers and Robideaux Company that the Garage would never capture anywhere close to 85% of the potential parkers. This material fact was never disclosed to potential bond purchasers.
61. Downtown Spokane parking garages could not realistically expect to charge customers an hourly rate for parking in the evenings and on weekends because evening and weekend parkers, including movie goers, could easily find parking which was both convenient and cheaper elsewhere. As a result, the Developers, the City, Walker and Robideaux Company knew that even though the Walker Report stated the assumption that the Garage would charge $1.50 per hour to all Garage customers, the Garage would actually have to charge much lower rates to induce people to park in the Garage in the evening and on weekends. This material fact was never disclosed to potential bond purchasers.
62. The significance of the false and misleading Walker Report (and the false assumptions upon which it is based) is heightened by the manner in which the participants to the fraudulent scheme then used the inflated revenues in the Walker Report to "justify" an inflated "value" to be paid to the Developers to purchase the Garage.
The Garage Valuation Sham
63. The City real estate manager, Dennis Beringer, advised the City to seek market value appraisals of the Garage. However, at the urging of Elizabeth Cowles and R.W. Robideaux, acting on behalf of the Developers, the City instructed its appraisers to use the highly misleading "investment value" method to value the Garage. Beringer objected to use of the investment value and advised the City that its use would substantially and unreasonably inflate the value of the Garage, thereby causing the Foundation to pay much more for the Garage than it was really worth, pay much more to the Developers under the ground lease than was reasonable and fair, and would jeopardize the Foundation's ability to service and pay off the Bonds (all of which are material facts that were never disclosed to prospective purchasers of the Bonds). The City, in furtherance of the conspiracy and scheme or artifice to defraud, ignored Beringer and retained John Evans and David Auble of Auble Associates and Daniel E. Barrett to perform "investment value" appraisals of the Garage and land underlying the Garage. Barrett, Evans and Auble are all MAI certified appraisers.
64. Both appraisers advised the City and the Developers that it would not be appropriate to use "investment value" for an appraisal of this kind, but were nonetheless instructed by the City, at the behest of the Developers, to use it. Auble and Barrett both qualified their Reports by inserting disclaimers and other statements which made it clear the "investment value" approach was not really an appraisal at all and provided a number that had little, if anything, to do with the fair value of the Garage.
65. Auble stated in the cover letter to its July 11, 1996, Report:
The City has hired an independent parking garage consultant who has conducted a 'financial feasibility' analysis and provided a projection of the operating revenue that will be generated by the parking operation. The City has requested an 'investment value' analysis utilizing the income projection from the parking garage consultant, based on the anticipated bond repayment specified by the City. An appraisal based valuation model utilizing discounted cash flow analysis is used to estimate 'investment value' that is consistent with the City investment objectives. We have relied upon the parking consultant's estimate of revenue, which has been modified slightly to reflect local and current conditions. The specified bond repayment rate was utilized as the discount rate in the DCF analysis.
It should be noted that this assignment is not a 'market value' appraisal, but is a consulting assignment. If market value were estimated, the resulting value would be significantly lower than the value estimated herein.
Using the criteria dictated by the City and the Developers and the June 1996 Walker Report, Auble concluded the "investment value" of the Garage was over $26 million.
66. The Barrett Report contains similar limitations and qualifications:
As requested, I have completed an investigation and analysis relative to providing an appraisal of the 'investment value' of the River Park Square Parking Garage under the criteria which you supplied. It is important to note that this is not an appraisal of the 'market value' of this property which would represent the value of the property in the open market to a 'typical' purchaser. This 'investment value' analysis represents the value of the property to you — the City of Spokane-under specific conditions and investment criteria. . . .
This assignment is unusual in several aspects. . . . This appraisal report places significant weight upon a 'financial feasibility analysis' and condition report for the River Park Square Parking Garage' prepared by Walker Parking Consultants and Engineers, dated June 14, 1996. Several questions are raised regarding the validity of the Walker report. I question the weight which Walker places upon the potential income which the cinema patrons will generate.
As a result of this and other concerns, Barrett provided his "investment value" of the Garage under three different scenarios. Based upon the above limitations and conditions, together with other limitations and conditions, Barrett concluded the "investment value" of the Garage was over $26 million in his moderate case scenario.
67. The Auble Report concludes the Walker Report is not a financial feasibility study:
It is important to understand what the Walker Report is not. This report professes to be a financial feasibility study for the expanded River Park Square parking garage. However, this report does not address the issue of competition as it pertains to regional malls in the Spokane area and does not develop any estimates of success of River Park Square capturing its share of the Spokane retail market. Additionally, it does not consider the additional parking facilities in the area or potential for future competition. This report does not recognize that the competition (regional malls and cinemas) all have free parking and does not attempt to reconcile the impact that may have on future demands. Additionally, the assumptions regarding the average length of stay per car does not appear to be reasonable. (Auble Associates p. 71, their emphasis)
68. Auble evaluates the market for first-run movie screens in Spokane and concludes:
Should all these facilities be built, there would be 93 screens, or approximately twice the amount suggested by movie standards. It must be recognized that all cinemas, existing and proposed, offer free parking and have large population bases in good time/distance relationships. It may be difficult for River Park Square to attract moviegoers in the downtown CBD area. (p. 67 Auble)
69. Auble also challenged Walker's key assumption that the length of stay in the Garage would increase to three hours:
This appears to be very aggressive assumptions, in light of the fact that historic stay is approximately 1.2 hours over the last 5 years. (Walker reports current length of stay is 1.9 hours; however, historical data does not support that claim.) (p. 88, Auble).
70. With respect to the land underneath the Garage, Barrett states "the City's investment criteria creates more Value' than the same investment would generate in the open market." Barrett explains, "in other words, the City would end up paying land rent based on an inflated land value, when it is their investment criteria which creates the inflated situation in the first place."
71. The Bonds could be issued at an artificially low interest rate because the Bonds would be federal tax-exempt instruments which were to receive an investment grade rating from a bond rating agency prior to issuance. The "investment value" derived by Auble and Barrett was thus driven by both the proposed and artificially low interest rate for the Bonds and the wrongfully inflated cash flow projections in the Walker Report. The inflated "investment value" was then used to fraudulently inflate the value of the Garage.
72. Despite their knowledge that use of the "investment value" methodology wrongfully and fraudulently inflated the purchase price for the Garage and the land under the Garage, the City and the Developers used the Auble and Barrett Reports as the foundation to "negotiate" a $26 million purchase price for the Garage.
73. On November 25, 1996, after receiving the warnings in the Auble and Barrett Reports, the mayor and city council unanimously adopted Resolution No. 96-144 which provided, among other things:
NOW, THEREFORE, BE IT RESOLVED that the City Manager and City staff are hereby authorized to prepare the ordinances, agreements and documents jointly with the Public Development Authority and the Spokane Downtown Foundation as are necessary to provide for the renovation, expansion and construction of public parking garage facilities adjacent to Spokane Falls Boulevard between Lincoln Street and the Old City Hall Building to serve the System in accordance with the following project concept:
Section 1: Public Development Authority
Section 2: Spokane Downtown Foundation
The City Manager and Deputy City Manager, the City Attorney and Perkins Coie as the City's bond counsel (collectively, the "City Staff) are hereby authorized and directed to prepare the necessary resolutions or ordinances to appoint current members to the Board of Directors (the "Board") of the Authority and to provide all advice and support necessary for the Authority to meet and to exercise any or all or (sic) its powers granted to it by Ordinance No. C-29241, adopted November 7, 1988.
The City Staff are hereby authorized and directed to meet with the Foundation and its counsel and to do all things necessary and appropriate in order for it to recommend action to the Council in conjunction with the acquisition of the Facility by the Foundation, the issuance of the Bonds on behalf of the City by the Foundation and the transfer of the Facility to the City unencumbered at such time as the tax-exempt bonds of the Foundation are paid or otherwise defeased.
The City Staff is hereby authorized and directed to do all things necessary and appropriate to procure a bond rating of Baa from Moody's Investors Service and/or BBB or better from Standard Poor's Ratings Group with respect to the tax-exempt bonds anticipated to be issued by the Foundation.
(Emphasis added).
The Sabey Corporation Warning
74. Sabey Corporation is a commercial real estate company which maintains its principal place of business in Seattle, Washington. Sabey Corporation was a major landowner, business operator and taxpayer in the City and, among other things, owned and operated a retail mall which was located in the City outside downtown Spokane. As a result, Sabey Corporation was competent to express opinions regarding the manner in which the proposed financing of the renovation and expansion of the RPS Mall and the proposed financing of the renovation and expansion of the Garage was being handled by the City and the Developers.
75. On December 10, 1996, Laurent D. Poole, the executive vice president of Sabey Corporation, provided the mayor and city council with two reports, entitled "Analysis of: Economic Impact Study Downtown River Park Square Project" (the "Sabey RPS Mall Report") and "Analysis of: Financial Feasibility Analysis Condition Assessment for the River Park Square Parking Garage" (the "Sabey Garage Report"). The Sabey RPS Mall Report and the Sabey Garage Report were provided to the Developers and Robideaux Company. The Sabey Garage Report was highly critical of the manner in which the City and the Developers were proceeding with the renovation and expansion of the Garage through the proposed issuance of the Bonds. The Sabey Garage Report was prepared based upon, among other things, a detailed review of the Auble and Barrett Reports.
76. The Plaintiffs did not know of the existence or contents of the Sabey Garage Report or the Sabey RPS Mall Report because those facts were concealed from them and were not disclosed in the Official Statements.
77. The following are among the fact-based criticisms of the Walker Report and the overall financing structure contained in the Sabey Garage Report:
(a) The Sabey Garage Report focused upon, quoted and adopted the portions of the Auble Report which conclude the Walker Report was not a legitimate financial feasibility analysis. The Sabey Garage Report challenges Walker's failure to consider the negative impact on parking usage at the Garage when parking rates are raised 50%, from $1.00 to $1.50 per hour as assumed in the Walker Report. The Sabey Garage Report notes the Walker Report fails to address the claims of Spokane's downtown association to have "6,000 parking stalls in the downtown area" and to fund a "trolley shuttle to access inexpensive parking nearby."
(b) The Sabey Garage Report determined that the success or failure of the proposed AMC cinema to attract customers was critical to the success or failure of the Garage and found it "unusual that Walker bases his theater parking projections not on the existing Spokane market, but on markets in other unnamed cities with multi-plex cinemas, (p. 1-24 Table 7, Walker)." The Sabey Garage Report challenges Walker's assumption that the multiplex cinema would be successful and states that assumption was seriously questioned by both Auble and Barrett.
(c) The Sabey Garage Report supported the concerns expressed in the Auble Report with information supplied to it by Act III theaters, the operator of all of Spokane's first-run movie screens:
[I]n 1995 Spokane had 28 first-run movie screens which took in $6.4 million in revenue. The proposed downtown, AMC 24-plex will nearly double the number of screens in the market. It is highly unlikely that demand for movie theaters will also double. The AMC 24-plex's success is questionable, hence the parking demand it will generate is also questionable.
(d) The Sabey Garage Report further challenged Walker's assumption that the average length of stay for retail RPS Mall customers in the Garage would be three hours:
The average length of stay is estimated to increase to 3 hours for retail and 2.5 hours for cinema, two and a half times longer than the current length of stay. The national average for shopper length of stay is 72 minutes, or 1.2 hours, and trending downward as shoppers have less and less time to spend shopping. (Source: Simon DeBartolo 1995).
The Sabey Garage Report also quotes the portion of the Auble Report which questions Walker's length of stay assumptions.
(e) The Sabey Garage Report compares the first-year projected garage revenues in the Walker Report of $4,372,400 and the projected profits in the Walker Report of $3,183,000 to the actual current revenues and profits of the Garage which were reported to be $724,901 in revenues and $298,526 in profits. The figures are attributed to the Auble Report at pages 72 and 74. The Sabey Garage Report puts the Walker projections into perspective: "Walker is suggesting first year parking revenues will be 500% higher than current parking revenues and profits to soar 1,000% over current profits."
(f) The Sabey Garage Report concludes:
With these unrealistically high best case scenario numbers, one would only expect the anticipated valuation analysis of the parking structure to be just as unrealistically inflated. In fact, this is the case as both Mr. Auble and Mr. Barrett heavily qualify their reports as 'not appraisals' but consulting exercises based on the Walker Report and the City's discount rate and investment criteria. Both appraisers state that the market value of this garage would be significantly lower.
No prudent investor, underwriter, financial institution, or person in a fiduciary position would advance funds on the 'investment value' of a real estate asset. The estimated 'investment value,' in excess of $30 million, is an unsupportable number and vastly overstates the parking, garage's value. The price for the parking garage is not for fee simple ownership; the purchaser never owns the land. The lender is essentially being asked to: 1) underwrite an overstated best case scenario of future profits, and 2) accept all of the project's risk. Should adequate revenue not materialize and the project fail, the lender's only recourse would be to the parking structure improvements and the leasehold interest in this land, the value of which will not be the 'investment value' but a significantly lower market value.
Before the City of Spokane pledges funds, gets 'at risk,' or even participates tangentially with the River Park Square parking garage's financing, it should apply the same rigorous underwriting criteria the market would require and insist on a realistic market-driven, cash flow projection and asset valuation.
The Sabey RPS Mall Report is also highly critical of the manner in which the City and the Developers were planning to finance the RPS Mall renovation. Among other things, the Sabey RPS Mall Report challenges the ethics of the City utilizing its HUD bloc grants to provide financial aid to the Developers at the probable detriment of the entire City.
78. All of the hereinabove alleged statements contained in the Sabey Garage Report were true and accurate statements of material existing fact which were actually known to the City, the Developers and Walker as of December 1996.
79. On January 13, 1998, one month after the City received the Sabey Garage Report, the mayor and city council unanimously adopted Resolution No. 97-2 which provided, in pertinent part:
NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED AND ORDERED, as follows:
Section 1. Findings.
Section 2. Approval of the Facility.
It is hereby found and declared that the public interest, welfare and benefit require the acquisition of the Facility for public use. The Council finds that the proposal of the Foundation to acquire the Facility, to lease the Facility to the Authority and assign the Ground Lease to the Authority is in the best interest of the City and its inhabitants.
The plan for acquiring the Facility is hereby accepted and approved. In particular, the Council acknowledges and approves the plan for the Foundation to finance the acquisition of the Facility by means of revenue bonds issued by the Foundation in accordance with Revenue Ruling 63-20 of the U.S. Department of Treasury (as compiled and supplemented by Revenue Procedure 82-26 of the U.S. Department of Treasury).
Section 3. Approval of the Foundation's Financing Plan.
For the purpose of complying with the requirements of Revenue Ruling 63-20 and Revenue Procedure 82-26 of the U.S. Department of Treasury and in accordance with the plan, the Council hereby acknowledges and approves the Foundation's issuance of tax-exempt lease revenue bonds (the "Bonds") maturing over a period of not to exceed 21 years to finance acquisition of the Facility. In no event shall the Bonds be issued in an amount greater than is necessary to pay a garage purchase price of $26,000,000 plus costs of issuance and a debt service reserve. The City agrees that when the Bonds are retired, the City shall accept delivery of full legal and unencumbered title to the Facility for no additional consideration.
The City Manager, the Deputy City Manager and the City Attorney, the agents and representatives of the City are hereby authorized and directed to do everything necessary to accomplish the acquisition and this resolution.
All actions heretofore taken by City officers, staff, attorneys and agents consistent with the terms and purposes of this resolution are hereby ratified, confirmed and approved.
(Emphasis added).
The Coopers Lybrand Warning
80. The City retained the real estate advisory services group of Coopers Lybrand to perform certain market and financial analyses regarding the proposed renovation and expansion of the Garage. Coopers Lybrand issued a report on January 27, 1997. The Coopers Lybrand Report criticized the reasonableness of the hereinabove-alleged assumptions utilized by Walker and determined that the Garage was not worth $26 million. Coopers Lybrand understood, in connection with preparing the Coopers Lybrand Report, that the analyses and conclusions in the Barrett and Auble Reports were among the things used as a basis for determining the acquisition price of the Garage by the Foundation, the anticipated bond financing structure, and the economic terms of the ground lease.
81. Coopers Lybrand set forth the following in the Summary of Conclusions section of its report:
The Walker projections do not consider the financial implications of a parking validation program. It is clearly difficult at this time to assess what form of parking validation program, if any, will be in place upon completion, of the proposed RPS project. However, if a parking validation program similar to the Easy Pass program in place today is available to customers in the year 2000, the validation program would need to collect significantly greater revenues from (i) retailers, (ii) property owners, or (iii) other available sources to be able to provide the RPS garage with the assumed parking rates and revenues used in the Walker analysis. To the extent that this does not occur, the financial operations of the RPS garage could be materially overstated.
Considering the anticipated competition of theater screens in the market, the cinema operator may likely expect that its patrons will not be required to pay for parking, so as to avoid creating a competitive advantage for competing screens. At the same time, it is unclear whether the cinema operator will contribute significantly to cover lost parking revenues from movie patrons.
82. Coopers Lybrand made the following findings and observations in the Coopers Lybrand Report:
(a) The Walker Report was not intended to be a feasibility study for the entire redevelopment project or even for the parking garage.
(b) Walker identified a historical length of stay for transient parkers of 1.9 hours which they state they received from the current management of the garage.
(c) Other reports and discussions indicated an average length of stay of 1.2 and 1.5 hours and concluded that "if Walker's historical assumptions are overstated, this may lower the projected length of stay and materially affect the forecasted parking revenues from retail customers."
(d) The hourly parking rate for weekdays and Saturdays is assumed to be $1.50. The currently hourly rate for RPS parking is approximately $1.00. Assuming the increase in the average stay for transient retail customers from 1.5 hours to 1.3 hours, the average cost to park will increase from $1.50 ($1.00 x 1.5 hours) to $4.50 ($1.50 x 3 hours).
(e) The average parking cost to cinema patrons, according to the Walker Report, is $3.75 per car on weekdays and Saturdays ($1.50 x 2.5 hours) and $2.50 on Sundays ($1.00 x 2.5 hours). Considering the anticipated competition of theater screens in the market, the cinema operator may likely expect that his patrons will not be required to pay for parking, so as to avoid creating a competitive advantage from competing screens. At the same time, it is unclear whether the cinema operator will contribute significantly to cover lost parking revenues from movie patrons.
(f) The Walker projections of net revenues and net operating income are substantially higher than historic figures. Walker projects year 2000 (the first full year of operations) revenues and net operating income to be $4,886,800 and $3,653,300 respectively. These higher income levels are primarily due to the following:
hourly rate is increased from the $1.00 to $1.50;
transient retail customers' average length of stay increases to three hours;
theater transient customer of over 623,000 in year 2000.
83. Coopers Lybrand also reviewed the Auble and Barrett Reports, and a representative of Coopers Lybrand spoke with John Evans of Auble and Daniel Barrett to better understand the Reports and then-views on the Project. Coopers Lybrand made the following findings and observations regarding the Auble and Barrett Reports in the Coopers Lybrand Report:
(a) The appraisers were requested to determine the "investment value" of the Garage rather than the market value. The market value of the Garage would result in a substantially lower valuation.
(b) The appraisers were provided the cash flow projections from the Walker Report and directed to use those cash flow estimates in their valuation analyses.
(c) The appraisers were also instructed to use the City's projected bond rate as the applicable discount rate to determine the "investment value" of the Garage.
(d) The appraisers questioned certain assumptions regarding revenue and/or expenses and performed sensitivity tests regarding certain assumptions, but still relied upon the operating projections included in the Walker Report in determining their values as requested by the City.
(e) The allocation of land value in the Auble Report was based on 25% of the investment value for the entire property, including both the land and the Garage building, which resulted in a land allocation value of $8,575,000. Coopers Lybrand concluded that "this analysis overstates the contributory value of the land due to the fact that the excess of investment value over market value is created by the City's discount rate applied to the cash flows." Coopers Lybrand stated that this excess value "is not reflective of, nor should it be attributable to, the underlying land."
84. The Coopers Lybrand Report states that, despite being provided with cash flows and discount rate parameters to be used in the determination of investment value of the Garage, both appraisers addressed concerns with respect to the aggressiveness of certain operating assumptions used in the Walker Report.
85. All of the Defendants knew of the Coopers Lybrand Report prior to the issuance of the Bonds and either reviewed it, or recklessly failed to review it, and are therefore chargeable with the knowledge that the key assumptions used by Walker to generate the proforma cash flows were unreliable and unreasonable, the "investment value" method dictated to the appraisers resulted in substantially inflated and unreasonable valuations for both the Garage and the land, and it was highly unlikely the Garage would achieve anywhere close to the projected cash flows, resulting in almost certain default on the Bonds.
The Ordinance
86. On January 27, 1997, after receiving the hereinabove-alleged warnings from Auble, Barrett, Sabey Corporation and Coopers Lybrand, the City enacted the Ordinance. The Plaintiffs purchased the Bonds believing the Ordinance was a legally binding and enforceable obligation of the City. The Ordinance specifies multiple benefits to the City from participation in the acquisition and financing of the Garage, and specifically acknowledges the Foundation "issuing tax-exempt bonds on behalf of the City." The key undertaking in the Ordinance is the City's pledge of and obligation to loan parking meter revenue funds to ensure the Authority had the ability to fulfill its payment obligations under the leases discussed hereinafter. This was a critical credit enhancement to the Bonds, and the City knew its credit enhancement was required in order to obtain an investment grade rating for the bond issue from a bond rating agency.
87. Under the Ordinance, the duty to effectuate the loans was delegated to the Spokane city manager and city attorney. In particular, the Ordinance provides:
The City hereby pledges, as a first charge and lien, that, in the event Parking Revenues are insufficient to make Ground Lease Payments and pay Operating Expenses, the City shall loan money from the Parking Meter Revenue Fund (but only to the extent money or investments are then on deposit or allocable to the Parking Meter Revenue Fund) to the [Authority's] Ground Lease Account and Operating and Maintenance Account in an amount that is no more than is necessary, together with such other money as is on hand and available in the Ground Lease Account and the Operating and Maintenance Account, to permit the [Authority] to make Ground Lease Payments and to pay Operating Expenses.
. . . .
The City Manager, the City Attorney and their designees, plus bond counsel, Perkins Coie, are authorized in their reasonable judgment to take all acts as appropriate or necessary in order to carry out and complete the transactions contemplated by this Ordinance.
88. The Ordinance went on to require, in Section 7A, that the Spokane city council adopt a resolution approving the issuance of the Bonds by the Foundation. The city council had earlier adopted that resolution on January 13, 1997 (Resolution No. 97-2).
89. As hereinabove alleged, the City knew it was highly unlikely the Garage would generate sufficient cash flow to pay the Bonds and that the City would need to loan monies under the Ordinance. The City failed to disclose both its belief that there were defenses which could be asserted in opposition to any attempts to enforce the Ordinance and the City's intent to assert such defenses if anyone sought to enforce the Ordinance.
Another Fraudulent Boost to Projected Revenues
90. After the Coopers Lybrand Report was issued and provided to Prudential, the City, the Developers, the Preston law firm, Robideaux Company and the Foster law firm, Walker was instructed by the Developers, with the consent of the City, to change its parking revenue assumptions because the seating capacity of the AMC theater would be changed from 3,400 seats to 3,682 seats. The resulting increase in projected Garage revenues over the June 1996 portion of the Walker Report was included in a June 1998 supplement to the Walker Report. However, based upon the hereinabove-alleged material facts, there was no reason to believe increasing the seating capacity for an already oversized theater would result in any meaningful increase in revenues. This material fact was not disclosed to potential bond purchasers in the Walker Report or the Official Statements.
91. The Defendants all had a duty to review the entire Auble and Barrett Reports and the entire Coopers Lybrand Report and obtain market value appraisals of the Garage before proceeding further with the issuance of the Bonds. The Defendants, however, proceeded with the issuance of the Bonds using the false and misleading Official Statements.
The False and Misleading Official Statements
92. The Official Statements for the Bonds misrepresent the following material facts and fail to disclose the following material facts which needed to be disclosed in order to make the facts which were disclosed in the Official Statements not misleading: (a) The Official Statements fail to disclose: (i) the true and complete content of the Coopers Lybrand Report; (ii) the existence and content of the Walker/Ernst Young Reports; (iii) the existence and content of the Sabey Garage Report; (iv) the complete content and limitations of the Auble and Barrett Reports; and (v) the City's belief that it had defenses to any attempt to enforce the Ordinance.
(b) The following statement appearing next to the "Sale of the Parking Facility" heading on page 7 of the Official Statements is misleading:
Pursuant to the Parking Facility Purchase and Sale Agreement (the "Purchase Agreement") dated as of August 1, 1998, between the Foundation and the Developer, upon completion of the expansion and renovation of the Parking Facility, the Developer will sell the Parking Facility (but not the land on which it is located) to the Foundation for a purchase price of $26 million.
The above statement is misleading because it implies the purchase price was based upon a reasonable good faith estimate of the market value of the Garage and the $26 million purchase price was arrived at based upon arms-length negotiations while concealing and failing to disclose the hereinabove-alleged facts.
(c) The following statement under the "Sources and Use of Funds" section on page 17 of the Official Statements is also misleading for the reasons set forth above:
Acquisition of Parking Facility $24,927,756.85
(d) The following statement under the "Commercial Project" heading on page 18 of the Official Statements is both false and misleading:
21.7 million Developer equity (including land)
The statement is false because the "Developer" did not have equity in the Garage of anywhere near $21.7 million. The statement is misleading for the reasons set forth above.
(e) The following statement under the "Commercial Project" heading on page 18 of the Official Statements is misleading:
Proceeds from the Bonds used to acquire the Parking Facility in the amount of $26.0 million are expected to take out the construction financing, with the balance being reinvested by the Developer as equity in the Commercial Project.
The statement is misleading for the reasons set forth above with respect to the purchase price of the Garage.
(f) The entire section under the heading "Public Facilities Parking Demand" on pages 19-20 of the Official Statements is misleading because it creates the false impression that the demand created by having at least five public facilities, including the RPS Mall, located within two blocks of the Garage created a demand for parking which exceeded current parking supply by 1,000 spaces without disclosing the hereinabove-alleged material facts.
(g) The entire section appearing under the heading "Feasibility Analysis" on page 20 of the Official Statements is both false and misleading:
(i) The statement that Walker prepared a "financial feasibility analysis (the 'Feasibility Analysis') included herein as Appendix B" is false because, as determined by Coopers Lybrand, Auble, Barrett and Sabey Corporation, the Walker Report was not a legitimate financial feasibility analysis.
(ii) The above section of the Official Statements is misleading because it states "[t]he City engaged Walker to conduct the Feasibility Analysis, which was issued on June 14, 1996," when, in fact, the Developers had engaged Ernst Young and Walker to conduct the initial feasibility analysis based upon the historical performance of the Garage as reflected in the 1995 Walker/Ernst Young Reports which indicated the value of the Garage as renovated and expanded was less than $10 million, and the Garage as renovated and expanded could not be reasonably expected to generate anywhere close to the amount of revenue needed to service and repay over $31 million in bond debt.
(iii) The statement "[a]t the City's request, Robideaux engaged Walker to revise the Feasibility Analysis on April 22, 1998 and again on June 29, 1998" is misleading due to the failure to disclose Robideaux Company's prior engagement of Walker and Ernst Young on behalf of the Developers to prepare the 1995 Walker/Ernst Young Reports.
(iv) This entire section of the Official Statements is also misleading due to the failure to disclose Walker was not independent because it received all of the key assumptions it would make in connection with the Walker Report from Robideaux on behalf of the Developers.
(h) Table 1: "Projected Operating Revenues and Expenses, Debt Service Requirements and Debt Service Coverage" on page 21 of the Official Statements is misleading. The source of the Projected Operating Revenues column for the first ten years after the Bonds were issued is stated to be the Walker Report. The Projected Operating Revenues column of Table 1 is misleading because it fails to disclose that the cash flow projections contained in the Walker Report as reflected in the Projected Operating Revenues column of Table 1 were grossly inflated by Walker at the request of the City and the Developers without any reasonable justification or basis in fact.
(i) The entire section appearing under the heading "Other Risks" on page 25 of the Official Statements is false and misleading:
(i) This section states the City hired the accounting firm Coopers Lybrand to perform an analysis of the Garage and that Coopers Lybrand described four primary areas of concern in the Walker Report. The stated areas of concern are misleading because they are expressed in the form of "risks" rather than by disclosing the existing factual basis for the concerns.
(ii) This section portrays Walker as a recognized expert in the area of parking garage operations and construction and states that Walker's cash flow analysis was developed using methodology established by the Urban Land Institute, thereby creating the false impression the Walker Report was reliable and there was no existing factual basis upon which Coopers Lybrand or anyone else could challenge Walker's assumptions with respect to the stated areas of concern.
(iii) This section states:
First, the Feasibility Analysis projects a rate of $1.50 per hour combined with an anticipated stay per transient retail parking customer of 3.0 hours. This represents an increase from the current rate of approximately $1.00 and a current average length of stay of 1.5 hours. If these increased rates and longer anticipated stays are not achieved, revenues generated by the Parking Facility could fall short of projections.
The above statement is false and misleading because:
(A) It does nothing more than state an apparent risk that if patrons of the Garage do not, on average, stay for three hours, or potential patrons of the Garage decide to park elsewhere rather than pay $1.50 per hour, revenues could fall short of projections without disclosing any of the hereinabove-alleged material facts which indicated the $1.50 per hour across-the-board rate was too high and the length of stay per transient retail parking customer had historically been substantially less than three hours.
(B) It does not disclose the intent to implement a parking validation program after the Bonds were issued and the negative impact any such parking validation program would necessarily have upon the ability of the Garage to actually collect $1.50 per hour from all its customers.
(C) It does not disclose downtown Spokane had excess parking available in the evenings and on weekends which was either free or available for substantially less than $1.50 per hour.
(D) It does not disclose cinema goers would likely refuse to pay any significant amount for parking due to their ability to park for free at other Spokane theaters or park for a very low rate or for free in downtown Spokane on evenings and weekends and not utilize the Garage.
(E) It does not disclose the specific criticisms of the stated hourly rate and anticipated stay set forth in the Auble and Barrett Reports, the Sabey Garage Report and the Coopers Lybrand Report.
(iv) The "Other Risks" section on page 25 of the Official Statements further states:
Second, the Feasibility Analysis does not account for the potential impact on revenues of a parking validation program or other negotiated arrangements with tenants of the Commercial Project. The Authority is authorized to participate in a validation program. The validation program currently in place is revenue neutral; however, if any future program were to cost more than the revenue generated by additional parking, revenues generated by the Parking Facility could fall short of projections. Third, the impact of any parking validation program between the Authority and the cinema operator is unknown.
The above statement is both false and misleading:
(A) The statement that the validation program currently in place is revenue neutral is false because the current validation program and all prior validation programs were subsidized at the expense of the Garage.
(B) The statement is misleading due to the failure to disclose the intent of the City and the Developers to implement a subsidized parking validation program after the Bonds were issued.
(C) The statement that the impact of any validation program between the Authority and the cinema operator is uncertain is both false and misleading because there was good reason to believe many potential cinema patrons would refuse to pay for parking, and the cinema operator, AMC, would refuse to sign a lease that clearly required its patrons to pay any significant amount for parking.
(D) Due to the failure to accurately report the content of the hereinabove-quoted portions of the Coopers Lybrand Report, the Sabey Garage Report and the Auble and Barrett Reports which pertain to parking validation programs.
(v) The "Other Risks" section on page 25 of the Official Statements further states:
Fourth, no independent appraisal of the market value of the land on which the Parking Facility is located has been conducted. To the extent that the market value of the land differs from its negotiated value of $59.84 per square foot, the relative leasehold value of the Parking Facility may be negatively impacted.
The above statement is misleading due to the failure to disclose the ground payments due from the Authority to the Foundation under the sublease, and from the Foundation to the Developers under the ground lease, were inflated, unreasonable, unfair, and were calculated to further wrongfully subsidize the Developers.
(j) The following false and misleading statements regarding use of the investment value method to establish the purchase price of the Garage were made at page 25 in the "Limited Remedies Upon Default" section of the Official Statements:
The purchase price of the Parking Facility of $26 million is the result of negotiations involving the Foundation, the City and the Developer. The purchase price is based primarily on two MAI appraisals commissioned by the City. Those appraisals determine the Investment Value' rather than the 'Market Value' of the Parking Facility. It is not certain that the amount realized upon any sale of the leasehold interest in the Parking Facility would be sufficient to redeem all of the then-outstanding principal amount of the Bonds.
The above statements are false and misleading for the following reasons:
(i) The statements are misleading due to the failure to disclose how investment value wrongfully inflated the purchase price of the Garage as stated in the Auble Report, the Barrett Report, the Coopers Lybrand Report and the Sabey Garage Report.
(ii) The statement that the $26 million purchase price was the result of negotiations between the Foundation, the City and the Developers is misleading because it implies the "negotiations" were arms length and the Foundation was an independent negotiator when, in fact, the "negotiations" were a sham and the foundation's independence was compromised due to the total control of the Foundation by the Developers. The Official Statements are, in general, misleading due to the failure to disclose the Foundation was not independent and was controlled by the Developers.
(iii) The statement that the purchase price is based primarily on two MAI appraisals commissioned by the City is both false and misleading. The statement is false because the Auble and Barrett Reports are not true MAI appraisals. The Auble and Barrett Reports were intended to be and are, in fact, nothing more than intellectual exercises calculated to derive an artificially inflated value for the Garage. The above statement is misleading due to the failure to disclose the statements made in the Auble and Barrett Reports which show the reports were consulting exercises, not true MAI appraisals.
(iv) The statement is misleading because it falsely indicates the $26 million purchase price is fair and reasonable because it is backed up by not one, but two, MAI appraisals.
(v) The above statements are misleading because they fail to disclose the "investment value" set forth in the Auble and Barrett Reports was derived based upon investment criteria dictated by the City and the Developers which would result in a highly-inflated and unrealistic value for the Garage rather than investment value criteria which were fair, reasonable and calculated to arrive at a fair value for the Garage.
(vi) The statement "it is not certain the amount realized upon the sale of the leasehold interest in the Parking Facility would be sufficient to redeem all of the then-outstanding principal amount of the Bonds" is misleading due to the failure to disclose all of the herein alleged material facts set forth in the Auble and Barrett Reports, the Coopers Lybrand Report and the Sabey Garage Report which express serious and legitimate fact-based concerns that the Garage was worth nowhere near $26 million.
(k) The Walker Report, Appendix B to the Official Statements, is both false and misleading for the following reasons:
(i) The statement that the Walker Report is a "feasibility analysis" is false because the Walker Report was not a financial feasibility analysis.
(ii) Identifying the Walker Report as a financial feasibility analysis indicates it was prepared independently and that Walker made full, fair and accurate disclosure of all material facts pertaining to the reasonableness of the assumptions and its projections.
(iii) The Walker Report is misleading due to the failure to disclose Walker had no reasonable factual basis for assuming the Garage could increase the hourly parking rate from $1.00 to $1.50 and generate the revenues projected based upon that assumption.
(iv) The Walker Report is misleading due to the failure to disclose Walker had no reasonable factual basis for assuming the garage could charge the stated rates on evenings and weekends to cinema patrons.
(v) The Walker Report is misleading due to the failure to disclose the terms and conditions of the existing validation program which was not revenue neutral and, if applied to the renovated and expanded Garage after the Bonds were issued, would serve to substantially reduce Garage revenues.
(vi) The Walker Report is misleading because it fails to disclose that all major competition to the Garage in downtown Spokane participated in the current validation program and the Garage would not be able to compete, particularly with respect to cinema customers, if it did not participate in a subsidized validation program.
(vii) The Walker Report is misleading because it fails to disclose Walker had no reasonable basis for believing retail shopping patrons would spend three hours parked in the Garage.
(viii) The Walker Report is misleading because it fails to disclose the 3,400-seat mega-plex AMC cinema would face substantial competition from existing theaters, including relatively new or to-be-constructed multi-screen theaters located in shopping malls much closer and convenient to the residential areas of the City, all of which provided free parking.
(ix) The Walker Report is misleading due to the failure to disclose the existence and the content of the 1995 Walker/Ernst Young Reports. The Walker Report only utilized the assumptions and methodology reflected throughout the Walker Report after it utilized the more reasonable assumptions and methodology in the Walker/Ernst Young Reports which indicated the Garage was worth less than $10 million and that the revenues generated by the Garage could support nowhere near $30 million in debt.
93. Each of the Defendants substantially participated in making factual representations to the Plaintiffs in the Official Statements and, as a result, owed Plaintiffs a duty to make full and fair disclosure of all material facts of which they were aware or reasonably should have been aware of under the circumstances alleged herein.
94. Each of the Defendants acted in concert with the other Defendants to achieve the unlawful purposes alleged herein so that each is liable for the acts and conduct of the other Defendants.
95. Prudential provided each of the Plaintiffs with a copy of the Official Statements, and the Plaintiffs, through their respective employees, read and reasonably relied upon the Official Statements, specifically including, but not limited to, those portions of the Official Statements and appendices attached thereto which address the hereinabove-alleged matters.
96. Each of the Plaintiffs did not know of the truth with regard to the hereinabove-alleged false and misleading statements and would not have purchased the Bonds had they known the truth.
97. Prior to issuance of the Bonds, the rating agency Standard Poors stated it would give the Bonds a BBB-investment grade rating. The rating was based in large part upon approval of the Ordinance by the City and caused potential bond purchasers, including each of the Plaintiffs, to believe the Bonds were investment grade.
98. The Bonds were issued with the understanding that the completely renovated EPS Mall was expected to generate the vast majority of Garage revenues. The RPS Mall renovation was to be conducted in two phases, and tenant space was not expected to be fully occupied until late in the year 2000 at the earliest. The Garage was to be renovated and expanded in the first phase along with a portion of the RPS Mall. The remainder of the RPS Mall was to be renovated in the second phase. As a result, parking revenues were expected to be reduced until construction was completed and all or substantially all tenant space was occupied.
99. After the Bonds were issued in September 1998, the bond proceeds were placed in escrow for the benefit of the Bondholders, and the Bonds were subject to special mandatory redemption which would result in repayment of the Bonds if the Garage could not for any reason be transferred to the Foundation. The City, Prudential, the Developers and the Preston law firm proceeded with the transfer of ownership of the Garage upon completion of renovation and expansion work on the Garage in about September 1999. However, before the transfer could be completed, representatives of AMC theaters objected to their cinema patrons being required to pay for parking and stated in writings which were circulated to the above Defendants that AMC either would not occupy the theater or would enter into more appropriate parking arrangements with the operators of a competing parking garage located approximately one block from the RPS Mall.
100. To mollify AMC theaters, an agreement was quietly reached whereby parking rates for the Garage would be reduced in the evenings and on weekends to, in effect, subsidize AMC theaters at the expense of the Garage. The above Defendants knew this agreement would seriously compromise the ability of the Garage to generate the revenues needed to service and pay off the Bonds. Although all of this was known to the above Defendants, none of it was disclosed to the Bondholders.
101. The Developers, the Foundation (which was still controlled by the Developers), the City, and the Authority (which was still controlled by the City) all wished to keep secret the fact that significant changes were being made to the parking rates which would have a serious negative impact on the future revenues of the Garage. One or more of the Developers agreed to contribute funds to partially compensate for the loss in revenues to the Garage out of fear that, if an agreement could not quickly be reached with AMC, the dispute would receive wide public dissemination, resulting in the inability of the Developers to complete the sale of the Garage. If the sale was not completed, the Bonds would be subject to mandatory redemption and the Developers would be deprived of their huge, albeit fraudulent, profit.
102. The actual process of completing renovations to the EPS Mall took substantially longer than anticipated and, to some extent, the renovations are still being made. During late 1999 and early 2000, the construction delays made it reasonably appear that reduced Garage revenues were caused by the construction delays. The January 21, 2000, edition of The Spokesmen Review, a Spokane newspaper owned by Cowles Publishing, attributed the lower-than-expected revenues to the EPS Mall being "only 65% complete" and stated that "parking numbers are expected to increase after the mall is finished this year."
103. Standard Poors downgraded the Bonds on about February 1, 2000, from BBS— to BB—. The Standard Poors ratings report characterized the projections in the Walker Report as "exceedingly optimistic," but did not attribute the downgrade to fraud. The reduced Garage revenues were attributed to changes in the validation program, a two-month delay in completing renovations to the Garage, and operational problems at the Garage. The Standard Poors report stated that approximately 100,000 square feet of the EPS Mall was still being renovated and was not expected to be complete until at least late 2000 and that approximately 40,000 square feet of renovated tenant space was unoccupied. Thus, as of February, the RPS Mall was about 25% vacant and the continued renovation activity was expected to cut into Garage revenue for the remainder of 2000. The reduced revenues were not attributed to fraud or even negligence by Walker. The true reasons for the reduced revenues were still being concealed from the public.
104. The Plaintiffs reasonably attributed the downgrading to construction delays and operational problems. Prudential promptly contacted the Plaintiffs upon publication of the Standard Poors downgrading and advised the Bondholders that the problem was not serious, that Prudential had the situation under control and would proceed with a refunding or restructuring of the Bonds which would solve any problems caused by lower-than-expected Garage revenues. Prudential knew that it had no basis for believing the Bonds could be restructured or refunded, but did not disclose that to the Plaintiffs. As a result, the Plaintiffs continued to rely upon Prudential for accurate information and continued to be deceived.
105. By early 2000, the City had a new mayor and two new city council members who were opposed to the Ordinance and to the issuance of the Bonds.
106. Standard Poors downgraded the Bonds a second time on about April 20, 2000, from BB— to CCC. The downgrading was announced in late April 2000.
107. The city council passed a Resolution at an April 26, 2000, meeting which indicated the City would not honor the Ordinance. The City's position was attributed by Prudential to control of the City passing to a mayor and city council which were opposed to the Ordinance and to the issuance of the Bonds. The scheme to defraud the bond purchasers was still being concealed.
108. Prudential brought the content of the city council Resolution to the attention of the Bondholders on about May 2, 2000. Shortly after that, the Trustee for the Bonds retained counsel to represent the interests of the Bondholders in connection with their dealings with the City over the Ordinance.
109. The Bondholders reasonably believed the City's refusal to loan parking meter revenue funds pursuant to the Ordinance was the result of the City having a new mayor and two new city council members who were opposed to the Project from the outset and had no reasonable grounds to believe, at that time, that the City's refusal was part of a fraudulent scheme.
110. In about late May or early June 2000, Camus magazine and the local KXLY TV station began printing and airing a series of investigative news reports which, for the first time, uncovered a substantial amount of the fraud addressed in this Complaint. A number of web sites were also established providing information regarding various aspects of the fraudulent scheme.
111. The Bondholders learned of the fraud through references to the web sites, the Camus magazine reports and the KXLY news reports.
112. Prudential lulled the Bondholders into a false sense of security by understating the magnitude of the problem, by continuing to fail to disclose the fraudulent scheme that resulted in the issuance of the Bonds, and by making positive statements regarding the likelihood that it would be successful in refunding or restructuring the Bonds. The fact that Prudential was pursuing a restructuring or refunding indicated the problems with the Bonds could be overcome and were not the result of a fraudulent scheme.
113. The Bondholders had no reasonable basis for believing they had been defrauded until their representatives reviewed the content of one or more of the Camus magazine and KXLY news reports. The true reasons behind the lower-than-projected revenues generated by the Garage had been concealed from them through the hereinabove-alleged actions of certain Defendants, and the Bondholders reasonably believed decreased revenues were attributable to construction delays or other reasonably unanticipated problems.
114. At present, the revenues generated by the Garage fall far short of projections as a direct and proximate result of the grossly inflated value of the Garage. The Foundation is totally incapable of paying any significant amount of debt service on the Bonds.
115. The City filed a Complaint in an action styled City of Spokane v. Walker Parking Consultants/Engineers, Inc., et al., Superior Court of the State of Washington for the County of Spokane, Case No. 00-204173-4, in July 2000. The Complaint attributes the inability of the Garage to generate the projected revenues to the hereinabove-alleged fraudulent scheme.
116. Each of the Defendants acted in concert with the other Defendants to achieve the unlawful purposes alleged herein so that each is liable for the acts and conduct of the other Defendants.
117. As a direct and proximate result of the wrongful conduct alleged herein, Plaintiffs have suffered damages in an amount which is presently unknown, but which is estimated to consist of a substantial portion of the stated principal amount of the Bonds purchased by each Plaintiff, plus interest.
FIRST CLAIM FOR RELIEF (Section 10(b) of the 1934 Act [ 15 U.S.C. § 78j] Violation of S.E.C. Rule 10b-5 Promulgated Thereunder) (Asserted Against All Defendants) (Violation of Section 20(a) of the 1934 Act [ 15 U.S.C. § 78t(a)]) (Asserted Against the Developers and the City) 118. Plaintiffs repeat the allegations of all preceding paragraphs of this Complaint and incorporate the same by reference.119. All of the Defendants, in connection with the purchases by each of the Plaintiffs of the Bonds, directly and indirectly, singly and in concert, recklessly, knowingly or with an intention to defraud, engaged in, offered for sale and sold to each of the Plaintiffs securities by means of one or more misrepresentations of failures to disclose material facts, which material facts were necessary in order to make the statements made in connection with those offerings and sales not misleading in light of the circumstances under which those statements were made and, in addition, employed a device, scheme or artifice to defraud each of the Plaintiffs and engaged in acts, practices and a course of business which operated as a fraud or deceit upon each of the Plaintiffs, all in violation of Section 10(b) of the Securities Exchange Act of 1934 [ 15 U.S.C. § 78j] and subsections 2(a), (b), and (c) of SEC Rule 10b-5 promulgated thereunder.
120. Defendants Lincoln, Citizens, EPS and RPS II are each, individually, persons who directly or indirectly controlled the Foundation within the meaning of Section 20(a) of the Securities Exchange Act of 1934 [ 15 U.S.C. § 78t(a)] due to their ability to appoint the board of directors of the Foundation.
121. The City is a person persons who directly or indirectly controlled the Authority within the meaning of Section 20(a) of the Securities Exchange Act of 1934 [ 15 U.S.C. § 78t(a)] due to its ability to appoint the board of directors of the Authority. The City appointed two city council persons with knowledge of the fraudulently inflated purchase price of the Garage to control the Foundation in furtherance of the City's fraudulent scheme.
122. Each of the Plaintiffs, acting individually through their employees, read and reasonably relied upon the Official Statements and appendices thereto which were prepared by the Defendants in connection with the offering of the Bonds.
123. The purpose, effect and result of the Defendants' violations of Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 promulgated thereunder were to induce the Plaintiffs, and each of them individually, to purchase the Bonds, something none of the Plaintiffs would otherwise have done.
124. All of the Defendants conspired to fraudulently conceal their fraud from the Plaintiffs by virtue of all of the hereinabove-alleged conduct attributable to the Defendants and events which occurred in connection with and subsequent to each Plaintiffs purchase of the Bonds. As a result of such fraudulent concealment, Plaintiffs, in the exercise of reasonable diligence, did not discover their claims against the Defendants until some time within one year prior to filing this Complaint. This claim was brought on behalf of each of the Plaintiffs within one year after the discovery of the facts giving rise to this cause of action and within three years of the date each of the Plaintiffs purchased the Bonds.
125. As a direct and proximate result of the hereinabove-alleged violations of Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 promulgated thereunder, Plaintiffs have suffered damages.
126. As a direct and proximate result of the hereinabove-alleged violations of Section 20(a) of the Securities Exchange Act of 1934, each of the Plaintiffs has suffered damages.
SECOND CLAIM FOR RELIEF (The Securities Act of Washington, WASH. REV. CODE 21.20.430(1); 21.20.430(3); 21.20.430(7)) (All Defendants Except the City)
127. Plaintiffs repeat the allegations of all preceding paragraphs of this Complaint and incorporate the same by reference.
128. Defendant Prudential sold the Bonds to each of the Plaintiffs in violation of WASH. REV. CODE 21.20.010. Defendant the Foundation, through the Official Statements issued on its behalf, offered the Bonds to each of the Plaintiffs in violation of WASH. REV. CODE 21.20.010. Defendants the Foster law firm, the Preston law firm, Walker, Lincoln, Citizens, EPS, RPSII, and the Authority were substantial contributing factors in the offer and sale of the Bonds to Plaintiffs and are, therefore, deemed to have offered and sold the Bonds to Plaintiffs.
129. All of the Defendants, in connection with the purchases by each of the Plaintiffs of the Bonds, directly and indirectly, singly and in concert, negligently, recklessly, knowingly or with an intention to defraud, engaged in, offered for sale and sold to each of the Plaintiffs securities by means of one or more misrepresentations of or failures to disclose material facts, which material facts were necessary in order to make the statements made in connection with those offerings and sales not misleading in light of the circumstances under which those statements were made and, in addition, employed a device, scheme or artifice to defraud each of the Plaintiffs and engaged in acts, practices and a course of business which operated as a fraud or deceit upon each of the Plaintiffs, all in violation of WASH. REV. CODE § 21.20.010(1), (2) and (3).
130. Defendants Lincoln, Citizens, RPS and RPS II are persons who directly or indirectly controlled the Foundation within the meaning of the Washington Securities Act. The Foundation is liable as a principal for violation of WASH. REV. CODE § 21.20.430(1).
131. Defendant Prudential is a broker-dealer within the meaning of WASH. REV. CODE § 21.20.430(3). Defendants Walker, the Foster law firm, the Preston law firm, Citizens, Lincoln, RPS, RPSII, Robideaux Company, and the Authority are persons who are exempt under the provisions of WASH. REV. CODE § 21.20.040 who materially aided in the hereinabove-alleged transaction.
132. Any Defendant that falls within the scope of WASH. REV. CODE § 21.20.430(7) acted with scienter within the meaning of WASH. REV. CODE § 21.20.430(7). Defendant Prudential is an underwriter within the meaning of WASH. REV, CODE § 21.20.430(7). Defendants the Preston law firm and the Foster law firm are bond counsel within the meaning of WASH. REV. CODE § 21.20.430(7).
133. Each of the Defendants, by engaging in the hereinabove-alleged conduct, materially aided the Foundation in connection with the underwriting, issuance, offer and sale of the Bonds to Plaintiffs when, having knowledge that the Official Statements, including the Walker Report, were false and misleading as hereinabove alleged, nonetheless failed to take action to ensure that full and fair disclosure of all material facts was made to prospective bond purchasers, including Plaintiffs, in the Official Statements including the Walker Report. The Bonds could not have been issued without each of the Defendants providing material aid to the Foundation as herein alleged.
134. This claim shall be asserted against the City through amendment to this Complaint upon the expiration of sixty days from service upon the City of the "Notice of Claim Against City of Spokane, Washington, for Tortious Conduct" which was served on the City on February 28, 2001, pursuant to R.C.W. Chapter 4.96 and 35.31 and S.M.C. § 4.02.030.
THIRD CLAIM FOR RELIEF (Common Law Fraud/Aiding and Abetting Common Law Fraud) (All Defendants Except the City)
135. Plaintiffs repeat the allegations of all preceding paragraphs of this Complaint and incorporate the same by reference.
136. All of the Defendants made material misrepresentations and omissions of past and present fact as more fully set forth hereinabove. Said Defendants knew the misrepresentations were false and misleading.
137. Any of the Defendants not liable as a principal for common law fraud is liable to each of the Plaintiffs for aiding and abetting common law fraud.
138. The misrepresentations and omissions, as hereinabove alleged, were made with the intent to induce each of the Plaintiffs to purchase the Bonds.
139. Each of the Plaintiffs justifiably relied upon the representations contained in the Official Statements and, as a direct and proximate result, has suffered substantial damages.
140. As a direct and proximate result of Defendants' fraud or aiding and abetting fraud, each of the Plaintiffs has suffered damages.
141. This claim shall be asserted against the City through amendment to this Complaint upon the expiration of sixty days from service upon the City of the "Notice of Claim Against City of Spokane, Washington, for Tortious Conduct" which was served on the City on February 28, 2001, pursuant to R.C.W. Chapter 4.96 and 35.31 and S.M.C. § 4.02.030.
FOURTH CLAIM FOR RELIEF (Common Law Negligent Misrepresentation) (All Defendants Except the City)
142. Plaintiffs repeat the allegations of all preceding paragraphs of this Complaint and incorporate the same by reference.
143. All Defendants had a duty to disclose or cause to be disclosed to potential purchasers of the Bonds, including the Plaintiffs, the material facts set forth hereinabove. All Defendants had a duty to ensure that the representations made in the Official Statements for the Bonds were accurate.
144. Defendants breached their duty to each of the Plaintiffs by negligently making the misrepresentations of and failures to disclose material facts as set forth hereinabove.
145. As a direct and proximate result of the Defendants' negligent misrepresentations and omissions, each of the Plaintiffs has suffered damages.
146. This claim shall be asserted against the City through amendment to this Complaint upon the expiration of sixty days from service upon the City of the "Notice of Claim Against City of Spokane, Washington, for Tortious Conduct" which was served on the City on February 28, 2001, pursuant to R.C.W. Chapter 4.96 and 35.31 and S.M.C. § 4.02.030.
WHEREFORE, Plaintiffs request that the Court enter judgment in favor of the Plaintiffs, and each of them, and against the Defendants, and each of them, jointly and severally, on each of Plaintiffs' Claims for Relief and award Plaintiffs rescission or monetary damages as provided for violations of Section 10(b) of the 1934 Act, the Washington Securities Act and the common law, together with pre-judgment interest, costs, expenses under applicable law, attorney fees pursuant to the pertinent provisions of the Washington Securities Act, and any other relief which the Court deems proper.