‘Opportunistic’ Lawsuit vs. WBD Should Be Dismissed: Memorandum
The consolidated amended complaint filed Feb. 15 alleging Discovery, Warner Bros. Discovery (WBD) and CEO David Zaslav and Chief Financial Officer Gunnar Wiedenfels are guilty of securities fraud (see 2302160002) “presents a classic case of pleading by hindsight,” said WBD’s memorandum of law Friday (docket 1:22-cv-08171) in U.S. District Court for Southern New York in support of its motion to dismiss. The plaintiffs said they brought the complaint to assert "strict liability and negligence claims” for false and misleading statements made in the run-up to Discovery’s April 8, 2022, WarnerMedia buy from AT&T.
But WBD counters that the August decline in WBD’s stock price after its first earnings call as a combined company caused the plaintiff shareholders to “reflexively” file a lawsuit for “reverse engineering alleged violations of the securities laws,” said the memorandum. WBD lowered its pre-closing profit estimates on the call because the pre-closing estimates were made “before WBD management had an opportunity to fully review the combined business,” it said.
The plaintiffs don’t dispute “that every one of the challenged pre-closing statements by Discovery was factually accurate when made, and they offer no confidential witnesses or internal documents reflecting information inconsistent with those statements,” said the memorandum. They instead “seize on any new piece of information” about the updated profit estimates “and summarily allege it was a material omission from Discovery’s pre-closing disclosures,” it said.
The allegedly omitted information consists of “harmonized reporting metrics for the merged entity created after closing,” said the memorandum. The allegations don’t support a “cognizable claim” that Discovery’s pre-closing statements “were contemporaneously false under the Securities Act,” it said.
Far from omitting anything, the challenged statements “were accurate and complete,” said the memorandum. The challenged disclosures “are a handful of anodyne and accurate reports about the historical and then-current operations of the two merging businesses,” it said. Most of the purportedly omitted information “bears only a tangential relationship” to the challenged statements, it said. The securities laws don’t require WBD to disclose “every piece of information” the plaintiffs “now claim they would like to have known post-hoc,” it said.
The plaintiffs don’t allege Discovery was “contemporaneously aware” of all the information they say was omitted, “even that the information contemporaneously existed,” said the memorandum. Much of what the plaintiffs challenge “consists of Discovery’s disclosures about WarnerMedia’s business,” but they don’t allege Discovery “contemporaneously knew the details about WarnerMedia’s business,” it said.
The plaintiffs also haven’t alleged “materiality,” said the memorandum. For the same reason the allegedly omitted facts didn’t render the statements misleading, “they also did not render the statements materially misleading,” it said. The plaintiffs additionally fail “to put any of the alleged omissions in context of WBD’s overall business,” it said. Notably, though the plaintiffs “hone in” on WBD's downgrading its pre-closing profit projections by $2 billion, they don’t allege Discovery “made any misleading statements regarding those projections,” it said. The alleged omissions “instead relate to discrete aspects of WarnerMedia’s current and WBD’s prospective business,” it said. The plaintiffs don’t plausibly allege “any of those alleged omissions would have influenced investors’ decision-making,” it said.
The lawsuit is “an opportunistic attempt to capitalize on a stock price decline following a highly publicized merger between two media giants,” based on the plaintiffs’ “hindsight spin of publicly available information,” said the memorandum. But the plaintiffs “failed to plead the essential elements of their Securities Act claims,” and the court should dismiss the amended complaint with prejudice, it said.