[amazinglygraceless]

Sorry about the huge wall of text but some can't view this otherwise.





BlackBerry’s Latest Delay Could Lead to Lawsuits

OTTAWA — A friendly crowd is unlikely to greet Thorsten Heins on Tuesday, when he makes his first appearance as chief executive at the annual meeting here of Research in Motion.

Shares in the BlackBerry maker have fallen by about 95 percent from their peak in mid-2008. And last month, not only did RIM post a $518 million quarterly loss, but it also surprised investors by announcing that a new line of phones critical to its future would again be delayed.

But the annual meeting may not be the only forum for shareholders to vent their displeasure. Several securities law experts and some investors say the delay in the BlackBerry 10, and overly optimistic remarks as recently as last week by Mr. Heins since he took over the top job in January, may also make RIM the target of shareholder lawsuits.

“They’re going to get sued and they should get sued because I think a closer look at the record is likely to unearth knowing and willful misrepresentation,” said Jean-Louis Gassée, the former president of Apple’s products division and the founder of the software maker Be, who is now a venture capitalist and blogger in Palo Alto, Calif. “When the C.E.O. says there’s nothing wrong with the company as it is, it’s not cautious, it doesn’t make sense.”

After disappointing shareholders in June, Mr. Heins gave a radio interview last week, wrote opinion pieces for two Canadian newspapers and took online questions from visitors to The Globe and Mail’s Web site. As part of a public relations offensive, speaking with the Canadian Broadcasting Corporation, he forecast a sunny future for Research in Motion by saying, “There’s nothing wrong with the company as it exists right now” and denying that RIM was, as some investors believe, in a death spiral.

In a statement, RIM rejected any suggestion that the company had misled investors. “RIM is well aware of its disclosure obligations under applicable securities laws and is committed to providing a high level of transparency, as evidenced by RIM’s decision to issue an interim business update on May 29, 2012, to alert shareholders that it expected to report an operating loss,” the company said.

While securities laws vary in Canada, where RIM is based, and the United States, where its stock is also traded, companies are generally required to report promptly any developments that may significantly alter their financial state. The BlackBerry 10 delay is unquestionably such a change, Canadian and American law experts said.

Any shareholder class action would also have to show that Mr. Heins or others within RIM knew that a delay was likely or a strong possibility when he was publicly boasting about the product’s progress and promising on-time delivery.

The legal experts said repeated statements earlier this year by Mr. Heins and other senior RIM executives — that the BlackBerry 10 line of phones would arrive in stores as planned by the end of this year — could support this claim.

For example, on May 1, at a conference for app developers in Orlando, Fla., Mr. Heins unveiled an incomplete prototype BlackBerry 10 phone and, along with other RIM employees, demonstrated features of its operating system.

During the presentation, Mr. Heins repeatedly and enthusiastically told the audience that the new product would be out by the end of this year.

“Every day I get questions about the progress on BlackBerry 10,” he said. “I appreciate all of the interest on our next-generation platform and I promise, I promise to you that the whole company is laser-focused on delivering on time and exceeding your expectation.”

He added at another point, “We’re making good progress, and I’m committed to sharing the progress with everyone right up until the launch later this year.”

Similar sentiments were offered at other developer sessions by other RIM executives over the following weeks.

Exactly what changed between the beginning of May and the end of June is unclear. Nor is it apparent when Mr. Heins decided that the delay would be necessary.

During a conference call to discuss the earnings, Mr. Heins said the volume of software that must be handled to integrate all of BlackBerry 10’s components “has proved to be more time-consuming than anticipated.”

Even without the delay, many financial analysts were concerned that the BlackBerry 10 was already too late to market. The delay means that it will be facing off against new and improved phones and operating systems from Apple, Microsoft and Google.

“There’s a high risk of litigation here,” said James D. Cox, a law professor at Duke. “The outcome of the litigation would be hard to predict.”

Richard McLaren, a law professor at the University of Western Ontario, said that in Canada companies are required to immediately disclose major changes in their operations.

“When you’ve used language like ‘laser focused on coming in on time,’ you’ve really raised expectations,” he said.

Professor Cox said RIM might be able to avoid shareholder litigation for another reason: the company is in bad shape. Many lawyers, he said, may be unwilling to embark upon such a case because there is no guarantee that RIM would be around when it was resolved.

Also, untangling share price drops caused by the delay in the BlackBerry 10 from the company’s other problems would be difficult, he said.

Anita Anand, a law professor at the University of Toronto who specializes in investor issues, said that it might be unnecessary to challenge RIM’s disclosure through the courts.

“If there’s a punishment to be had here, it’s already in the making,” she said. “The market speaks before any adjudication body.”

The new phones, which RIM hopes will again make BlackBerrys desirable, were supposed to be on the market by the beginning of this year at the latest. But the company’s former co-chief executives put off that release because, they said, the company needed to perfect the new, more advanced electronics used in the new models.

That delay is already part of one class action against the company. In securities filings, RIM has said that lawsuit is without merit.

Unlike Samsung, Nokia and other competitors that use smartphone operating systems from Google and Microsoft, RIM began creating its own about two years ago. But Mr. Gassée said the effort was already too late.

To jump-start the process, RIM bought QNX Software Systems, which is based here and which has long provided operating systems used in everything from automobiles to nuclear power stations. But Mr. Gassée said that the actual operating system, which essentially parcels out computing tasks and allocates the computer’s resources, was the smallest part of developing BlackBerry 10.

The heavy lifting, he said, came from creating the complex software that enables apps to use the operating system and the phone’s hardware features. He estimated that Apple had spent about four years developing iOS, the operating system for the iPhone, before bringing it to market.

Mr. Heins’s public relations campaign last week to talk up the company’s fortunes was widely seen as being, at best, overly optimistic, but unlikely to create legal headaches for RIM, experts said.

In its statement, RIM said Mr. Heins was trying to outline the changes he had made over the last six months to turn RIM around.

“His optimism stems from the fact that, unlike many commentators or analysts, he has actually seen the progress being made on BlackBerry 10 and is confident in its ability to play a significant role in the future of mobile computing,” the company said.

Jill E. Fisch, a professor at the University of Pennsylvania Law School, said the remarks were not surprising, comparing them to the talk of a used-car salesman.

“Everybody expects the chief executive to put an optimistic spin on the company,” she said. “To be fair, we all know that RIM is a struggling company.”

[Tre Lawrence]

I get the anger, but "willful misrepresentation?"

Makes me feel a little queasy. Yes, RIM has been a poor with the execution, but I just do not believe RIM wants to be in a bad place. I don't know that I agree with the threatened lawsuits, but I did not lose as much as those shareholders either.

[bungaboy]

Ambulance chasers . . . where would you be without them?

[avt123]

Someone posted an article about this earller and I think the thread was deleted. Good luck AG!

The article was also posted here

RIM may be sued by shareholders for BB 10 delay - The Times of India

[silversun10]

and the source? a former Apple employee, very funny...

[Superfly_FR]

Grassée in its self-promoting over-ego posture ... again.

[OzarkaTexile]

These are shareholder lawsuits and they might have merit. From a customer standpoint, delaying BB10 until it's ready might be a good idea. From a shareholder standpoint, talking up a release date and then pulling the rug on it might be willful deception.

Lawyers like to litigate. I doubt this will change RIM's fortunes for the worse over the next year.

[silversun10]

These are shareholder lawsuits and they might have merit. From a customer standpoint, delaying BB10 until it's ready might be a good idea. From a shareholder standpoint, talking up a release date and then pulling the rug on it might be willful deception.

Lawyers like to litigate. I doubt this will change RIM's fortunes for the worse over the next year.

it is in the share holder's interest for the CEO to put a positive spin on the company, not to do so would be a neglect of duty and for misleading a former Apple employee Heins should get extra bonus points.

a lawsuit? never, ever.........

[cynicalreader]

Someone posted an article about this earller and I think the thread was deleted. Good luck AG!

The article was also posted here

RIM may be sued by shareholders for BB 10 delay - The Times of India

Yeah, saw that too, good luck with this.

[amazinglygraceless]

Someone posted an article about this earller and I think the thread was deleted. Good luck AG!

The article was also posted here

RIM may be sued by shareholders for BB 10 delay - The Times of India

Oh, that may be why it didn't show up in the search. If it has to go so
be it. Just thought it was an interesting article, though I think the suit
itself is rather specious.

[avt123]

Oh, that may be why it didn't show up in the search. If it has to go so
be it. Just thought it was an interesting article, though I think the suit
itself is rather specious.

Agreed, it is definitely an interesting article. The subject at hand is very interesting to think about. More turmoil from within.

[amazinglygraceless]

and the source? a former Apple employee, very funny...

Grasée in its self-promoting over-ego posture ... again.

How is attacking the writer in any way beneficial to a meaningful discussion
of the content of the article?

[mikeo007]

I get the anger, but "willful misrepresentation?"

Makes me feel a little queasy. Yes, RIM has been a poor with the execution, but I just do not believe RIM wants to be in a bad place. I don't know that I agree with the threatened lawsuits, but I did not lose as much as those shareholders either.

This may be RIM's best defense sadly... "when have we ever met a deadline? You guys should expect this by now."

it is in the share holder's interest for the CEO to put a positive spin on the company, not to do so would be a neglect of duty and for misleading a former Apple employee Heins should get extra bonus points.

a lawsuit? never, ever.........

There's a difference between "positive spin" and outright misrepresentation.

If RIM execs did in fact know that the release date(s) that were set would never be met, that would be misrepresentation.

[amazinglygraceless]

I get the anger, but "willful misrepresentation?"

Makes me feel a little queasy. Yes, RIM has been a poor with the execution, but I just do not believe RIM wants to be in a bad place. I don't know that I agree with the threatened lawsuits, but I did not lose as much as those shareholders either.

This really does look punitive to me. Or maybe just a power play on the part
of some shareholders. Either way I think it stinks.

[dagerlach]

Sadly enough, almost anyone can file a lawsuit. Most people who think they have been wronged in some way can find an attorney willing to take their money despite whether or not they have a legitimate case.

Unfortunately, there are far to many bloggers/reports/analyst that think they know the law, but are not attorneys, nor do they do their case law research before they write articles. So, incorrect information continues to bleed into the bloggospher which shows up on Google Finance-RIMM and investors start pushing the sell buttons.

Cry wolf and the sheep will run!

[JasW]

Sadly enough, almost anyone can file a lawsuit. Most people who think they have been wronged in some way can find an attorney willing to take their money despite whether or not they have a legitimate case.

Unfortunately, there are far to many bloggers/reports/analyst that think they know the law, but are not attorneys, nor do they do their case law research before they write articles. So, incorrect information continues to bleed into the bloggospher which shows up on Google Finance-RIMM and investors start pushing the sell buttons.

Cry wolf and the sheep will run!

You're speaking in generalities. This is class-action securities litigation we're talking about, not some slip and fall at the local supermarket. Also, the author of the piece -- who regularly covers RIM for the NY Times -- interviewed a number of law professors, so he's hardly talking out of his backside. Given the short time frame between Thorsten's BB World pronouncements and his announcement of the delay, their could well be fertile ground for proving that at the time of BB World, he knew there would be a delay.

[silversun10]

How is attacking the writer in any way beneficial to a meaningful discussion
of the content of the article?

since when do we ignore the source of a rumour? and by the way all i did was notice the source, where on earth is the attack?

[Superfly_FR]

How is attacking the writer in any way beneficial to a meaningful discussion of the content of the article?

He's not the author but the one who started the rumor ... But sry, wasn't stated in this article, was in several others. (FYI and explanation of Silversun10's comment after mine, Grassée has been kicked out hard by Jobs). He's known for his over-ego.

[kraski]

This really does look punitive to me. Or maybe just a power play on the part
of some shareholders. Either way I think it stinks.

I can picture shareholders being ticked off enough to forget that RIM is not is such great shape. At best, the suits could divert RIM's attention from what they ought to be doing and lowering company finances more. At worst, enough of them, for large enough amounts, could start the coffin building.

The good thing about that phrase "willful misrepresentation" is that it's difficult to prove. If anyone does sue on that basis, they're going to need some pretty weighty evidence.

[JasW]

and the source? a former Apple employee, very funny...

Grassée in its self-promoting over-ego posture ... again.

He's not "the source," as if he leaked some secret. He's simply one individual among many the reporter talked to. Did either of you read the article? It seems not. Indeed, the article says that it is relying on "[s]everal securities law experts and some investors." I suppose the law professors who are quoted also have some anti-RIM axe to grind. Wake up and smell the coffee.

[rickbansal]

He's not "the source," as if he leaked some secret. He's simply one individual among many the reporter talked to. Did either of you read the article? It seems not. Indeed, the article says that it is relying on "[s]everal securities law experts and some investors." I suppose the law professors who are quoted also have some anti-RIM axe to grind. Wake up and smell the coffee.

RIM management needs to be held accountable. I believe they lied to everyone. Even at the last Jam session, they were talking about releasing BB10 "later this year".

Both the US and Canadian authorities should pursue this. If for nothing else, at least it would keep these guys from continuing to lie to investors.

[silversun10]

He's not "the source," as if he leaked some secret. He's simply one individual among many the reporter talked to. Did either of you read the article? It seems not. Indeed, the article says that it is relying on "[s]everal securities law experts and some investors." I suppose the law professors who are quoted also have some anti-RIM axe to grind. Wake up and smell the coffee.

ya dream on, there will never, ever be a lawsuit, and you can take that to a too big to fail bank and yes the article lead with the Apple guy, but ignorance is bliss, so enjoy it

[Superfly_FR]

He's not "the source," as if he leaked some secret. He's simply one individual among many the reporter talked to. Did either of you read the article? It seems not. Indeed, the article says that it is relying on "[s]everal securities law experts and some investors." I suppose the law professors who are quoted also have some anti-RIM axe to grind. Wake up and smell the coffee.

it's 6:07 PM here and I read the paperS hours ago ... You may consider others point of view with a tiny confidence. I don't know what puts you in such nerves regarding RIM, but I've seen nothing bearly near to positive/optimistic from you for weeks now. I think we got the (your) message. If only you took 10% of your time ... arff ... wasting mine. no matter. Welcome on my ignore list, you're the very first.

[VerryBestr]

He's not "the source," as if he leaked some secret. He's simply one individual among many the reporter talked to. Did either of you read the article?

I don't think JL Gassee is "simply one individual" contacted by the reporter. Do you read what he writes about RIM in his column? This, for example, from his July 1 post:

Can Heins stick to his guns? We’ll see what he has to say after his brand new (effective July 1st) General Counsel, Steve Zipperstein, takes him aside and whispers in his ear about shareholder lawsuits.
| http://www.mondaynote.com/2012/07/01...-next-for-rim/

I would suspect that the NYT reporter started doing some research after reading Gassee's column, but who knows ...

Gassee regularly writes about RIM, and he has a dim view of the company to say the least ... e.g. the post entitled "RIM: The inmates have taken over the asylum." He is certainly interesting to read, whether you agree or not.
| Rim | Monday Note
| RIM: The inmates have taken over the asylum | Monday Note

[amazinglygraceless]

I can picture shareholders being ticked off enough to forget that RIM is not is such great shape. At best, the suits could divert RIM's attention from what they ought to be doing and lowering company finances more. At worst, enough of them, for large enough amounts, could start the coffin building.

The good thing about that phrase "willful misrepresentation" is that it's difficult to prove. If anyone does sue on that basis, they're going to need some pretty weighty evidence.

Willful misrepresentation does seem like a pretty high hurdle although that has never
stopped people from suing on that basis (or lawyers from taking the case.)

I guess as a non lawyer I am really interested in the merits of these actions and
whether or not they "have legs"