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Judge approves mega-settlement in Diamond Foods investor class action over walnut accounting scandal

By Elaine WATSON , 27-Sep-2013

Investors alleged that Diamond deliberately understated the costs of walnuts and improperly accounted for payments made to walnut growers to increase apparent profits and maintain higher share prices
Investors alleged that Diamond deliberately understated the costs of walnuts and improperly accounted for payments made to walnut growers to increase apparent profits and maintain higher share prices

A federal judge in California has given the green light to a proposal from Diamond Foods - potentially worth $120m - to settle a class action lawsuit from investors who bought stock in the firm just before its $2.3bn mega-deal to buy Pringles went south in 2011 due to accounting errors, sending share prices plummeting.

In his September 26 order - which is subject to final approval at a hearing on January 9 - U.S. District Court Judge William Alsup approved a proposed settlement from Diamond in which it has agreed to pay $11 million in cash and distribute 4.45 million shares of Diamond common stock to the investor class.

As of September 27 (today), the market value of the 4.45 million shares is $108.9m, making the total deal worth around $120m.

$80m of payments to walnut growers were unaccounted for

Diamond Foods, which is best known for Kettle Chips, Emerald Nuts and Pop Secret popcorn, saw its shares plummet in 2011 after it incorrectly accounted for payments to walnut growers.

The consolidated complaint alleges that Diamond deliberately understated the costs of walnuts and improperly accounted for payments made to walnut growers to increase apparent profits and maintain higher share prices.

After a three-month investigation, an audit committee found that $80m of payments to walnut growers were unaccounted for, prompting the company to remove its CEO Michael Mendes and CFO Steven Neil.

The accounting errors were also cited as a reason for the collapse of Diamond’s $2.35bn bid for Pringles, which was snapped up by Kellogg instead.

Lawsuit alleged Diamond and its top execs were motivated to inflate share prices at a time when Diamond was seeking to use its stock to buy Pringles  

In the agreement, Diamond proposes to settle a number of putative class actions filed on behalf of investors, which have recently been consolidated, with Mississippi Public Employees Retirement System appointed the lead plaintiff.

The defendants are Diamond and former CEO Michael J. Mendes and CFO Steven M. Neil. (Claims v Deloitte & Touche were dismissed last year).

The consolidated complaint alleges that Diamond deliberately understated the costs of walnuts and improperly accounted for payments made to walnut growers to increase apparent profits and maintain higher share prices.

It further alleges that Diamond and its top execs were motivated to inflate share prices at a time when Diamond was seeking to use its stock to buy Pringles from Proctor & Gamble.

Diamond CEO Brian Driscoll: 'Settlement allows us to move forward fully focused on expanding the reach of our leading brands and executing on our strategic and operational initiatives for growth'

When the truth regarding walnut costs emerged, Diamond’s stock price plummeted, resulting in financial losses to its shareholders.

Judge: This is the best the class is likely to get ‘given Diamond’s strained financial state’

Although the investors would have preferred all of the settlement to be in cash, an analysis of Diamond’s financial position determined that the firm - which is highly leveraged - only had $7.2 million in cash and cash equivalents on its balance sheet, said Judge Alsup.

While the settlement class could conceivably extract more money via protracted litigation, this was probably the best they were going to get, he said, “given Diamond’s strained financial state and the uncertainty with lead plaintiff’s ability to collect on any judgment”.

Commenting on the settlement last month, Diamond CEO Brian J. Driscoll said: "We believe this proposed settlement eliminates the burden of further time, expense and risk related to the class action, allowing the Diamond team to move forward fully focused on expanding the reach of our leading brands and executing on our strategic and operational initiatives for growth.”

Emerald Nuts re-launch

Brian Driscoll on Emerald Nuts re-launch: 'A new and impactful brand positioning approach, new packaging, new offerings and a pricing architecture that is not discounting dependent'

Speaking on the firm’s Q3 earnings call in June, Driscoll said he was confident that momentum gained by Kettle Chips in the natural channel “can extend to mainstream retail channels as well when supported by a more robust innovation pipeline and a proved consumer support activity”, while the Pop Secret brand had continued to perform well.

As regards Emerald Nuts, he added: “While we've improved net price realization, eliminated the least profitable SKUs and effectively transitioned production to our Stockton plant, the critical next step of relaunching the brand has not yet occurred but is fast approaching.

“With the development of a new and impactful brand positioning approach, new packaging, new offerings and a pricing architecture that is not discounting dependent, we are gearing up for a relaunch.”

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