NEW YORK, July 05, 2024 (GLOBE NEWSWIRE) -- Bragar Eagel & Squire, P.C., a nationally recognized shareholder rights law firm, reminds investors that class actions have been commenced on behalf of stockholders of Charge Enterprises (NASDAQ: CRGEQ), Fastly, Inc. (NYSE: FSLY), NIKE, Inc. (NYSE: NKE), and FutureFuel Corp. (NYSE: FF). Stockholders have until the deadlines below to petition the court to serve as lead plaintiff. Additional information about each case can be found at the link provided.
Charge Enterprises (NASDAQ: CRGEQ)
Class Period: December 15, 2021 - February 28, 2024 (Common Stock Only)
Lead Plaintiff Deadline: July 28, 2024
Charge is an electrical, broadband, and electric vehicle (“EV”) charging infrastructure company. Its business, including through its various subsidiaries, has two primary segments: infrastructure, which has a focus on EV charging stations and wireless network Case 1:24-cv-04056 Document 1 Filed 05/28/24 Page 5 of 32 6 communications; and telecommunications, which provides connections for voice calls and data to global carriers.
The complaint alleges however, the events that give rise to this Class Action are not connected to Charge’s primary business ventures or revenue streams, but rather stem from reckless oversight of Charge’s capital and materially misleading statements and omissions in connection therewith.
Charge Enterprises initially incorporated under the name “E-Education Network, Inc.” in 2003 and changed its name to GoIP Global Inc. (“GoIP Global”) in 2005. In April 2020, GoIP Global acquired Transworld Holdings, Inc. In August 2020, GoIP Global changed its name to Transworld Holdings, Inc. In January 2021, Transworld Holdings, Inc. changed its name to Charge Enterprises, Inc.
Following this series of corporate transactions, Charge was uplisted with the NASDAQ Stock Exchange on April 12, 2022 with the ticker symbol “CRGE.”
Since at least the fourth quarter of 2020, Charge and its predecessor entities have employed KORR Acquisitions, a registered investment advisor controlled by Orr and Cori Joy Orr, to manage certain of its investments and excess liquidity.
On June 19, 2020, GoIP Global disclosed that it “intends to engage KORR Acquisitions Group, Inc. as a consultant to provide certain consulting and advisory services to GOIP for fees to be agreed upon. Kenneth Orr, Director, President and Chief Financial Officer of [GoIP], is Principal Operating Officer of KORR Acquisitions Group, Inc. KORR Acquisitions Group, Inc. is managing member of KORR Value, LP.”
During the fourth quarter of 2020, GoIP Global and KORR Acquisitions entered into what Charge described as an “informal at-will arrangement” under which the Company entrusted KORR Acquisitions to “provide investment advisory services on an as-needed basis” (the “Informal Arrangement”). Specifically, Charge granted KORR Acquisitions “discretionary authority, without prior consultation with the Company, to buy, sell, trade and allocate in and among stocks, bonds and other securities and/or contracts relating to the same,” on an “as-needed basis.” The Company stated that the value of the assets it invested with KORR Acquisitions under the Informal Arrangement “shall not exceed 20% of the Company’s total assets.”
On December 15, 2021, before Charge was uplisted to NASDAQ and while its common stock was still trading over the counter, the Company’s registration statement (filed on December 10, 2021 on Form S-1), became effective. The Registration Statement described the Informal Arrangement as an “at-will” agreement for KORR Acquisitions to invest in “marketable securities” on the Company’s behalf. The Registration Statement reiterated that the investments were limited to “20% of our assets, and of that, less than 5% in illiquid assets,” and stressed that “[w]e continuously monitor and review the value of our investments, including, but not limited to conducting a mark-to-market valuation of our investments on a weekly basis, and, if ever we exceed 20%, we will liquidate marketable securities to stay within our intended maximum investment of 20% of our total assets.”
Before its uplisting on NASDAQ, Orr was the single largest stockholder in Charge, controlling more than eighty percent of the Company. However, in connection with that uplisting, NASDAQ and the SEC raised a number of questions regarding Orr’s involvement with Charge, particularly his having a majority ownership in the Company, his position as the Chairman of the Board of Directors, and the Informal Arrangement with the Company.
Given NASDAQ and the SEC’s concerns, Orr accordingly divested his interest in Charge to less than ten percent beneficial ownership of the Company, and stepped down as the Chairman of the Board of Directors effective September 14, 2021.
Charge and KORR Acquisitions operated under the Informal Arrangement until June 2022, at which time they entered into a written Special Advisor Agreement whereby KORR Acquisitions agreed to “manage the Company’s investment account” in exchange for a $500,000 up-front payment and a monthly payment of $25,000. The agreement had a term of 1 year.
In early to mid-2023, Charge informed Orr that it would require the return of certain Company funds to satisfy certain Company liabilities that were to come due and payable on in November 2023. Specifically, in April 2023, Denson informed Orr that the Company would require the complete return of its invested funds by November 1, 2023 to address (1) certain accounts payable of its subsidiary, PTGi International Carrier Services, Inc., and (2) the outstanding debt due to its senior lender, Arena Investors, LP (“Arena”).
Charge’s obligations to Arena, which were to become due and payable on November 19, 2023, were structured under two securities purchase agreements (the “Arena Notes”). In total, Charge had an outstanding principal balance of $27.8 million due under the Arena Notes. In addition, Charge had a number of other outstanding debt obligations under other loan agreements that, while not immediately due in November 2023, contained cross-default provisions.
Between May and November of 2023, Charge communicated frequently with Orr about the need for Orr and KORR Acquisitions to return the funds the Company had invested with KORR Acquisitions to enable the Company to satisfy its various debt obligations.
In May 2023, Denson emailed Orr requesting the full withdrawal of Charge investments held by KORR Acquisitions.
Orr and KORR Acquisitions did not return the funds as requested to do so in May. Schweller emailed Orr on July 25, 2023 requesting the immediate return of $10 million from the Company’s investment accounts.
Despite its previous requests for the return of Company funds, as of August 22, 2023, Charge still had $14 million invested with and under the management and control of KORR Acquisitions. On that date, Denson again communicated with Orr about a schedule for Orr and KORR Acquisitions to return the Company’s invested capital. Under the drawdown schedule devised that day, Orr was to return to Charge $3 million by the first week of September 2023, $3 million between September 15-30, 2023, $6 million between October 15-30, 2023, and the remainder between November 1-10, 2023. None of this – including that prior requests had been made and ignored, nor the drawdown schedule – was disclosed to investors.
Orr and KORR Acquisitions failed to abide by this drawdown schedule. Despite agreeing to return a total of $6 million in September, Orr and KORR Acquisitions had only returned $2.25 million by the end of that month. Further, and despite their agreement to return $6 million in October, Orr and KORR Acquisitions only returned $1.75 million of Company funds in October 2023. Thus, by the end of October, and despite agreeing to return $12 million of Company funds by the end of October, Orr and KORR Acquisitions had only returned $4 million.
On November 1, 2023, Denson emailed Orr, reminding him that Charge’s “loan with Arena is due this month . . . we need the Charge money returned ASAP this week.” Orr did not respond to this email in writing.
On November 2, 2023, Denson and Orr spoke on the phone to discuss Orr and KORR Acquisitions’ failure to adhere to the original drawdown schedule. On that call, Orr proposed a revised drawdown schedule, offering to return $1 million by the end of the day, $3 million on November 6, $3 million on November 14, and the remainder by the “end of 2023, or perhaps in 2024.”
On November 3, 2023, Denson reiterated to Orr the need for an expeditious return of the funds, and that Charge was experiencing financial harm as a result of Orr’s failure to return the funds, which could impact the Company’s ability to continue as a going concern. That same day, Denson and Orr discussed a third drawdown schedule: $1 million on November 3, $3 million early in the week of November 6, and $6.75 million by November 13 or 14. Defendants did not cause Charge to inform investors of these developments either.
Despite the various drawdown agreements, Orr only returned $800,000 on November 3, and $200,000 on November 6.
Thus, by early November, 2023, after months of failing to receive the requested Company funds from Orr and KORR Acquisitions, Defendants knew that Charge was facing serious undisclosed liquidity problems. As Denson reminded Orr, these funds were “critical to [Charge’s] liquidity,” despite the Company’s representation several weeks prior that it had more than $51,000,000 in cash and cash equivalents. Defendants therefore knew and understood that, if Orr and KORR Acquisitions failed to return the Company funds as requested, a default on the Arena Notes was nearly certain, and that this would lead to an “imminent cascade of negative consequences,” namely, the invocation of cross-default provisions in the Company’s other debt instruments.
But, as described below in further detail, Defendants continued to paint a rosy picture of Charge’s financial condition throughout the fall of 2023, despite knowledge that the funds held by KORR Acquisitions were “critical” to the Company’s liquidity. In fact, as late as November 8, 2023, Charge expressed its expectation “to have sufficient resources to meet [its] current operating liquidity and capital requirements for the next 12 months.”
The complaint states that the situation came to a head on November 13, 2023, when Orr advised Biehl that the Company’s funds were invested in KORR Value, a limited partnership whose General Partner is KORR Acquisitions. And, as Orr advised Biehl, the terms of the KORR Value Limited Partnership Agreement, dated May 9, 2020, make Charge a limited partner in KORR Value and grant to KORR Acquisitions, as General Partner, the “sole and absolute” right to limit redemptions of limited partnership interests. In accordance with KORR Value’s Limited Partnership Agreement, Orr informed Charge that KORR Acquisitions would be unable to return the requested funds because they were “cross-collateralized” with other accounts and that those accounts were “under water.”
Charge first informed the market of the dire situation it faced on November 21, 2023 in a Form 8-K filed with the SEC. Despite its announcement that it had more than $51,000,000 in cash several weeks prior, the Company stated that it had received a default notice from Arena, and announced that its prior belief that it had “approximately $9.9 million of Company assets . . . in the form of cash, cash equivalents, marketable securities or similar readily liquid assets” was false; instead, these funds had actually been invested in KORR Value and were thus “not immediately able to be liquidated or readily accessible.” The Company further warned that if it “continues not to have sufficient liquidity to pay the principal and interest on the [Arena] Notes . . . these circumstances could result in a default under other of the Company’s debt instruments and agreements that contain cross-default provisions.” As the Company explained, this situation would likely “have a material adverse effect on the Company’s liquidity, financial condition and results of operations, and may render the Company insolvent and unable to sustain its operations and continue as a going concern.”
On December 6, 2023, in a Form 8-K filed with the SEC, Charge informed the market that it had received several additional default notices from Arena. The December 6, 2023 8-K further stated that the Company was ceasing the operations of certain of its telecommunications subsidiaries in an effort to preserve liquidity.
On January 25, 2024, in a Form 8-K filed with the SEC, Charge informed the market that the Company had received a foreclosure notice from Arena stating that, to satisfy the Company’s outstanding indebtedness, Arena would be holding an auction, pursuant to the Uniform Commercial Code, to liquidate 100 percent of the equity interests in certain Charge subsidiaries at auction.
On February 28, 2024, in a Form 8-K filed with the SEC, after months of restructuring efforts, Charge announced that it had entered into a Restructuring Support Agreement with two affiliates of Arena, which was to be implemented through the commencement of a voluntary Chapter 11 case in the U.S. Bankruptcy Court for the District of Delaware.
On February 29, 2024, NASDAQ suspended trading of Charge common stock.
On March 7, 2024, Charge filed its voluntary petition for bankruptcy under Chapter 11. See In re Charge Enterprises, Inc., Bankr. Case No. 24-10349 (Bankr. D. Del.).
According to the filed complaint, during the Class Period, Defendants issued materially false and misleading statements regarding the nature of Charge’s relationship with KORR Acquisitions, the degree of control that KORR Acquisitions exercised over Charge assets that were “critical” to the Company’s liquidity, and the nature of the investments that KORR Acquisitions held on the Company’s behalf, as well as materially false and misleading statements about the Company’s risk policies, procedures, and compliance oversight functions, exposing the Company and its investors to substantial losses.
For more information on the Charge class action go to: https://bespc.com/cases/CRGEQ
Fastly, Inc. (NYSE: FSLY)
Class Period: February 15, 2024 - May 1, 2024
Lead Plaintiff Deadline: July 23, 2024
Fastly operates an edge cloud platform for processing, serving, and securing customer's applications. The edge cloud is a category of Infrastructure-as-a-Service that purportedly enables developers to build, secure, and deliver digital experiences. Fastly's platform includes a Content Delivery Network ("CDN"), or a geographically distributed network of proxy servers and their data centers. Content owners such as media companies and e-commerce vendors pay CDN operators to deliver their content to their end users. Certain companies have adopted a "Multi-CDN" framework which combines multiple CDNs from various providers into one large global network.
In 2023, a "consolidation trend" emerged in the CDN industry, in which several prominent Multi-CDN companies reduced the number of CDN vendors they had previously managed in an effort to simplify their operations and increase efficiency, opting instead to manage fewer CDN vendors. Facing reduced competition, Fastly was able to materially increase its market share and drive favorable sequential growth.
On February 14, 2024, Fastly issued a press release providing full year ("FY") 2024 revenue guidance in a range of $580 million to $590 million. In that same press release, Fastly's Chief Executive Officer Defendant Todd Nightingale ("Nightingale") was quoted as stating, "[t]his quarter demonstrated the progress we've made in operational and financial rigor resulting in strong gross margins and non-GAAP net income," and "[o]ur go-to-market, packaging and channel efforts through 2023 delivered an inflection in our customer acquisition as we closed out the year. This positions us well for 2024, driving our mission to make every user experience fast, safe, and engaging."
According to the filed complaint, throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) contrary to its representations to investors, Fastly was in fact experiencing a significant deceleration in growth among its largest customers and was losing the increased market share it had gained as a result of the 2023 CDN consolidation trend; (ii) the foregoing issues were likely to have a material negative impact on the Company's revenue growth; (iii) accordingly, the Company was unlikely to meet its own previously issued revenue guidance for FY 2024; (iv) as a result, the Company's financial position and/or prospects were overstated; and (v) as a result, the Company's public statements were materially false and misleading at all relevant times.
On May 1, 2024, Fastly announced its first quarter ("Q1") 2024 financial results. Despite the Defendants' positive statements just three months earlier about Fastly's performance and near-term business prospects, the Company reported revenue of only $133.52 million, missing consensus estimates by $0.35 million. The Company also lowered its FY 2024 revenue guidance to a range of $555 million to $565 million, significantly below its previously issued FY 2024 revenue guidance of $580 million to $590 million, and likewise below consensus estimates of $584.62 million for the same period.
That same day, Fastly held a conference call with investors and analysts to discuss the Company's Q1 2024 results (the "Q1 2024 Earnings Call"). In explaining the Company's disappointing revised FY 2024 outlook, Defendant Nightingale stated that "[t]he biggest factor is a reduction of revenue from a small number of our largest customers. The first-quarter revenue from our top 10 customers dropped from 40% to 38%[,]" and that the Company saw "significant volatility" in the Multi-CDN strategy run by many of Fastly's top 10 accounts. Further, Fastly's Chief Financial Officer Defendant Ronald Kisling stated that the Company is "facing a challenging environment of revenue declines in our largest customers, overshadowing the impact of new customer acquisition and product pipeline[,]" and that the Company would not benefit in 2024 from the favorable impact of the early 2023 CDN consolidation that drove favorable sequential growth in the prior year same period.
Then, on May 2, 2024, Bank of America downgraded Fastly stock from a "Buy" rating to an "Underperform" rating and cut its price target on the stock from $18 per share to a mere $8 per share, noting that "[d]ecelerating growth in Fastly's largest customers, share loss in delivery, and limited visibility in 2H cause us to question a rebound in 2024," and that "[w]hile we continue to like Fastly's positioning in the edge compute market, we see it as a 2025 opportunity instead of a near-term growth driver."
Following these developments, Fastly's stock price fell $4.14 per share, or 32.02%, to close at $8.79 per share on May 2, 2024.
For more information on the Fastly class action go to: https://bespc.com/cases/FSLY
NIKE, Inc. (NYSE: NKE)
Class Period: March 19, 2021 - March 21, 2024
Lead Plaintiff Deadline: August 19, 2024
The Class Period begins on March 19, 2021, in connection with NIKE’s announcement of its financial results for the third quarter of fiscal year 2021, and related investor earnings call. In connection with these results, Defendant John J. Donahoe II (the Company’s President and Chief Executive Officer) touted that “NIKE continues to deeply connect with consumers all over the world driven by our strong competitive advantages” and that “[o]ur strategy is working, as we accelerate innovation and create the seamless, premium marketplace of the future.” Defendant Matthew Friend (the Company’s Executive Vice President and Chief Financial Officer) similarly assured investors that “NIKE’s brand momentum is as strong as ever and we are driving focused growth against our largest opportunities.” On the related investor earnings call, Defendant Donahoe emphasized NIKE’s “tremendous success in digital” and that “NIKE’s digital transformation remains a unique advantage.”
The complaint alleges that Investors began to learn the truth about NIKE’s inability to generate sustainable revenue growth on June 27, 2022, when the Company announced its fourth quarter and full year 2022 financial results after market close. NIKE announced that quarterly revenues declined 1% year-over-year and quarterly wholesale revenues declined 7% year-over-year. However, Defendant Donahoe reassured investors that NIKE’s “strategy is working” by creating value through its “competitive advantages, including [its] pipeline of innovative product[s] and expanding digital leadership.” He further asserted that NIKE’s investments in digital and other areas prompted Defendants to be “very confident in our long-term strategy and our growth outlook.” On this news, the price of NIKE Class B common stock declined $7.72 per share, or nearly 7%, from a close of $110.50 per share on June 27, 2022, to close at $102.78 per share on June 28, 2022.
Three months later, on September 29, 2022, investors learned more when NIKE reported its first quarter fiscal year 2023 financial earnings after market close. In spite of modest revenue growth, NIKE reported that its net income declined 22% year-over-year and that diluted earnings per share similarly declined 20% year-over-year. NIKE also reported a significant reduction in gross margin (down 220 basis points year-over-year) driven by the disposal of excess inventory—which was 44% higher than in the first quarter of 2022. On this news, the price of NIKE Class B common stock declined $12.21 per share, or nearly 13%, from a close of $95.33 per share on September 29, 2022, to close at $83.12 per share on September 30, 2022.
Notwithstanding the Company’s struggles with NIKE Direct and its direct-to-consumer strategy, Defendants continued to tout the purported strength of NIKE’s business model over the next year, telling investors that NIKE’s “competitive advantages continue to fuel our momentum” and that NIKE is primed to “leverage our competitive advantages to not only gain share but also grow the market.”
On December 21, 2023, however, investors learned more about the competitive pressures facing NIKE when the Company issued its second quarter fiscal year 2024 financial results and held its related investor earnings call after market close. Defendant Friend admitted that NIKE’s “total retail sales across the marketplace fell short of our expectations,” and that NIKE’s digital platforms lost consumer traffic to competitors because of “higher promotional activity across the marketplace.” Given these challenges, Defendant Friend revealed that NIKE was “adjusting [its] channel growth plans for the remainder of the year” and “identifying opportunities across the company to deliver up to $2 billion in cumulative cost savings over the next 3 years.” On this news, the price of NIKE Class B common stock declined $14.49 per share, or nearly 12%, from a close of $122.53 per share on December 21, 2023, to close at $108.04 per share on December 22, 2023.
Finally, on March 21, 2024, NIKE announced its third quarter fiscal year 2024 financial results after market close, revealing a 3% year-over-year decline in revenue in its Europe, Middle East, and Africa segment, a 3% year-over-year decline in NIKE Digital revenue, and scant quarterly revenue growth of approximately 0.4% year-over-year in NIKE Direct. On the related investor earnings call held that same day, Defendant Donahoe admitted that “NIKE is not performing [to its] potential” even though moments earlier he claimed that “Q3 performed in line with our expectations.” Moreover, Defendant Donahoe revealed the Company’s decision to reduce reliance on its direct-to-consumer strategy and “lean in with our wholesale partners to elevate our brand and grow the total marketplace.” According to Defendant Donahoe, NIKE made a “reinvestment with our wholesale partners, so we bring a more holistic offense that grows the market and gets in the path of our consumer.” Furthermore, Defendant Friend revealed that NIKE was “prudently planning for revenue in the first half of the fiscal year [2025] to be down low single digits” as Defendants “shift our product portfolio toward newness and innovation.” On this news, the price of NIKE Class B common stock declined $6.96 per share, or nearly 7%, from a close of $100.82 per share on March 21, 2024, to close at $93.86 per share on March 22, 2024.
For more information on the NIKE class action go to: https://bespc.com/cases/NKE
FutureFuel Corp. (NYSE: FF)
Class Period: August 10, 2023 - May 10, 2024
Lead Plaintiff Deadline: August 23, 2024
According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose, among other things, that: (1) FutureFuel did not have adequate internal controls; (2) FutureFuel’s financial statements were misstated; and (3) as a result, defendants’ statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all times.
For more information on the FutureFuel class action go to: https://bespc.com/cases/FF
About Bragar Eagel & Squire, P.C.:
Bragar Eagel & Squire, P.C. is a nationally recognized law firm with offices in New York, California, and South Carolina. The firm represents individual and institutional investors in commercial, securities, derivative, and other complex litigation in state and federal courts across the country. For more information about the firm, please visit www.bespc.com. Attorney advertising. Prior results do not guarantee similar outcomes.
Contact Information:
Bragar Eagel & Squire, P.C.
Brandon Walker, Esq.
Marion Passmore, Esq.
(212) 355-4648
investigations@bespc.com
www.bespc.com
