`
`
`
`
`
`THE ROSEN LAW FIRM, P.A.
`Phillip Kim, Esq. (PK 9384)
`Laurence M. Rosen, Esq. (LR 5733)
`275 Madison Avenue, 40th Floor
`New York, NY 10016
`Telephone: (212) 686-1060
`Fax: (212) 202-3827
`Email: pkim@rosenlegal.com
`
`lrosen@rosenlegal.com
`
`Counsel for Plaintiff
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`
`MINGXUE GUO, Individually and on Behalf of
`All Others Similarly Situated,
`
`
`Plaintiff,
`
`
`
`
`v.
`
`
`
`TYSON FOODS, INC., NOEL WHITE, DEAN
`BANKS, AND STEWART GLENDINNING,
`
`
`Defendants.
`
`
`
`Case No.
`
`CLASS ACTION COMPLAINT FOR
`VIOLATIONS OF THE FEDERAL
`SECURITIES LAWS
`
`JURY TRIAL DEMANDED
`
`CLASS ACTION
`
`
`
`
`
`
`
`Plaintiff Mingxue Guo (“Plaintiff”), individually and on behalf of all other persons
`
`similarly situated, by Plaintiff’s undersigned attorneys, alleges the following based upon personal
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`knowledge as to Plaintiff and Plaintiff’s own acts, and upon information and belief as to all other
`
`matters based on the investigation conducted by and through Plaintiff’s attorneys, which included,
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`among other things, a review of U.S. Securities and Exchange Commission (“SEC”) filings by
`
`Tyson Foods, Inc. (“Tyson” or the “Company”), as well as media and analyst reports about the
`
`Company and Company press releases. Plaintiff believes that substantial additional evidentiary
`
`support will exist for the allegations set forth herein.
`
`
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`1
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`Case 1:21-cv-00552-AMD-RLM Document 1 Filed 02/02/21 Page 2 of 17 PageID #: 2
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`
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`
`
`NATURE OF THE ACTION
`
`1.
`
`This is a class action on behalf of persons or entities who purchased or otherwise
`
`acquired publicly traded Tyson securities between March 13, 2020 and December 15, 2020,
`
`inclusive (the “Class Period”). Plaintiff seeks to recover compensable damages caused by
`
`Defendants’ violations of the federal securities laws under the Securities Exchange Act of 1934
`
`(the “Exchange Act”).
`
`JURISDICTION AND VENUE
`
`2.
`
`The claims asserted herein arise under and pursuant to Sections 10(b) and 20(a) of
`
`the Exchange Act (15 U.S.C. §§ 78j(b) and 78t(a)) and Rule 10b-5 promulgated thereunder by
`
`the SEC (17 C.F.R. § 240.10b-5).
`
`3.
`
`This Court has jurisdiction over the subject matter of this action pursuant to 28
`
`U.S.C. § 1331, and Section 27 of the Exchange Act (15 U.S.C. §78aa).
`
`4.
`
`This Court has jurisdiction over each defendant named herein because each
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`defendant has sufficient minimum contacts with this judicial district so as to render the exercise
`
`of jurisdiction by this Court permissible under traditional notions of fair play and substantial
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`justice.
`
`5.
`
`Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) and Section
`
`27 of the Exchange Act (15 U.S.C. § 78aa(c)) as the alleged misstatements entered and the
`
`subsequent damages took place in this district.
`
`6.
`
`In connection with the acts, conduct and other wrongs alleged in this complaint,
`
`Defendants, directly or indirectly, used the means and instrumentalities of interstate commerce,
`
`including but not limited to, the United States mails, interstate telephone communications and the
`
`facilities of a national securities exchange. Defendants disseminated the statements alleged to be
`
`
`
`2
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`
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`Case 1:21-cv-00552-AMD-RLM Document 1 Filed 02/02/21 Page 3 of 17 PageID #: 3
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`
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`false and misleading herein into this district, and Defendants solicited purchasers of Tyson
`
`
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`securities in this district.
`
`PARTIES
`
`7.
`
`Plaintiff, as set forth in the accompanying Certification, purchased the Company’s
`
`securities at artificially inflated prices during the Class Period and was damaged upon the
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`revelation of the alleged corrective disclosure.
`
`8.
`
`Defendant Tyson is purportedly the largest U.S. producer of processed chicken,
`
`beef, pork, and protein-based products. The Company is incorporated in Delaware and its head
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`office is located at 2200 Don Tyson Parkway, Springdale, AR 72762-6999. Tyson shares trade
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`on the New York Stock Exchange (“NYSE”) market under the ticker symbol “TSN.”
`
`9.
`
`Defendant Noel White (“White”) was the Company’s Chief Executive Officer
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`(“CEO”) prior to the beginning of the Class Period to October 2020.
`
`10.
`
`Defendant Dean Banks (“Banks”) has served as the CEO from October 2020 to
`
`the end of the Class Period.
`
`11.
`
`Defendant Stewart Glendinning (“Wood”) has served as the Company’s Chief
`
`Financial Officer (“CFO”) at all relevant times during the Class Period.
`
`12.
`
`Defendants White, Banks, and Wood are collectively referred to herein as the
`
`“Individual Defendants.”
`
`13.
`
`Each of the Individual Defendants:
`
`(a)
`
`directly participated in the management of the Company;
`
`(b)
`
`was directly involved in the day-to-day operations of the Company at the
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`highest levels;
`
`
`
`3
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`Case 1:21-cv-00552-AMD-RLM Document 1 Filed 02/02/21 Page 4 of 17 PageID #: 4
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`
`
`
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`(c)
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`was privy to confidential proprietary information concerning the Company
`
`and its business and operations;
`
`(d)
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`was directly or indirectly involved in drafting, producing, reviewing and/or
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`disseminating the false and misleading statements and information alleged herein;
`
`(e)
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`was directly or indirectly involved in the oversight or implementation of
`
`the Company’s internal controls;
`
`(f)
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`was aware of or recklessly disregarded the fact that the false and
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`misleading statements were being issued concerning the Company; and/or
`
`(g)
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`approved or ratified these statements in violation of the federal securities
`
`laws.
`
`14.
`
`The Company is liable for the acts of the Individual Defendants and its employees
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`under the doctrine of respondeat superior and common law principles of agency because all of
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`the wrongful acts complained of herein were carried out within the scope of their employment.
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`15.
`
`The scienter of the Individual Defendants and other employees and agents of the
`
`Company is similarly imputed to the Company under respondeat superior and agency principles.
`
`16.
`
`The Company and the Individual Defendants are referred to herein, collectively,
`
`as the “Defendants.”
`
`SUBSTANTIVE ALLEGATIONS
`Background
`
`17.
`
`In December of 2019, a novel coronavirus strain, now called COVID-19, was
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`detected in the city of Wuhan in Hubei province, China. Since then, the virus has spread to
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`numerous countries.
`
`18.
`
`COVID-19 was detected in the U.S. as early as January 20, 2020. Since then, the
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`disease has gone on to claim more than 400,000 American lives.
`
`4
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`
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`
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`Case 1:21-cv-00552-AMD-RLM Document 1 Filed 02/02/21 Page 5 of 17 PageID #: 5
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`
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`
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`19.
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`On February 6, 2020, Tyson submitted a form 10-Q for the quarter ended
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`December 28, 2019 (“3Q 2019 10-Q”). In the 3Q 2019 10-Q, Tyson states, “[W]e are monitoring
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`the potential impact of the novel coronavirus outbreak to our global business.” As such, as early
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`as February 6, 2020, Defendants were aware of the risks that the coronavirus posed to their
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`business.
`
`Materially False and Misleading Statements
`
`20.
`
`On March 13, 2020, the Company published an 8-K current report supplementing
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`risk factors disclosed in its annual report filed for the year ended September 28, 2019. The
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`Company noted the “rapidly evolving coronavirus (COVID-19) outbreak” as an additional risk
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`factor. In relevant part, the Company stated:
`
`“Pandemics or disease outbreaks, such as the novel coronavirus (COVID-19
`virus), may disrupt consumption and trade patterns, supply chains, and
`production processes, which could materially affect our operations and results of
`operations.
`
`Pandemics or disease outbreaks such as the novel coronavirus (COVID-19 virus)
`may depress demand for protein because quarantines may inhibit consumption.
`*
`*
`*
`Our operations, or those of independent contract poultry producers and producers
`who provide the live animals to our production operations, may become limited in
`their ability to procure, deliver, or produce our food products because of
`transport restrictions related to quarantines or travel bans.
`
`Workforce limitations and travel restrictions resulting from pandemics or
`disease outbreaks and related government actions may impact many aspects of
`our business.”
`
`(Emphasis added.)
`
`21.
`
`On May 4, 2020, Tyson filed a Form 10-Q for the fiscal quarter ended March 28,
`
`2020 (the “2Q 2020 10-Q”). Attached to the 2Q 2020 10-Q were certifications pursuant to the
`
`Sarbanes-Oxley Act of 2002 (“SOX”) signed by Defendants White and Glendinning attesting to
`
`
`
`5
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`
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`Case 1:21-cv-00552-AMD-RLM Document 1 Filed 02/02/21 Page 6 of 17 PageID #: 6
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`
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`the accuracy of financial reporting, the disclosure of any material changes to the Company’s
`
`
`
`internal control over financial reporting and the disclosure of all fraud.
`
`22.
`
`The 2Q 2020 10-Q stated, in relevant part, the following regarding Tyson’s
`
`response to the coronavirus pandemic:
`
`
`“COVID-19 – We are monitoring and responding to the evolving nature of the
`global novel coronavirus pandemic (“COVID-19” or “pandemic”) and its impact
`to our global business. We formed an internal COVID-19 task force for the
`primary purposes of maintaining the health and safety of our team members,
`ensuring our ability to operate our processing facilities and maintaining the
`liquidity of our business.
`
`*
`*
`*
`Team Members – The health and safety of our team members is our top priority.
`To protect our team members, we implement safety measures recommended by
`the Centers for Disease Control and Prevention ("CDC") and the Occupational
`Safety and Health Administration ("OSHA") in our facilities and coordinate with
`other health officials as appropriate, including, but not limited to, checking the
`temperature of team members as they enter company facilities, restricting visitor
`access, increasing efforts to deep clean and sanitize facilities, requiring the use of
`protective face coverings and making protective face coverings and other
`protective equipment available to team members, and encouraging team
`members who feel sick to stay at home through relaxed attendance policies and
`enhanced benefits. We continue to explore and implement additional ways to
`promote social distancing in our production facilities by creating additional
`breakroom space and allowing extra time between shifts to reduce interaction of
`team members, as well as erecting dividers between workstations or increasing the
`space between workers on the production floor.”
`
`(Emphasis added.)
`
`23.
`
`On August 3, 2020, the Company filed a Form 10-Q for the fiscal quarter ended
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`June 27, 2020 (the “3Q 2020 10-Q”). Attached to the 3Q 2020 10-Q were SOX certifications
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`signed by Defendants White and Glendinning attesting to the accuracy of financial reporting, the
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`disclosure of any material changes to the Company’s internal control over financial reporting and
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`the disclosure of all fraud.
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`
`
`6
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`Case 1:21-cv-00552-AMD-RLM Document 1 Filed 02/02/21 Page 7 of 17 PageID #: 7
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`
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`24.
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`The 3Q 2020 10-Q stated the following, in pertinent part, regarding the Company’s
`
`response to COVID-19:
`
`
`
`
`“COVID-19 We continue to monitor and respond to the evolving nature of the
`global novel coronavirus pandemic (“COVID-19” or “pandemic”) and its impact
`to our global business. We formed an internal COVID-19 task force for the
`primary purposes of maintaining the health and safety of our team members,
`ensuring our ability to operate our processing facilities and maintaining the
`liquidity of our business.
`
`*
`*
`*
`Team Members – The health and safety of our team members is our top priority.
`To protect our team members, we implement safety measures recommended by the
`Centers for Disease Control and Prevention ("CDC") and the Occupational Safety
`and Health Administration ("OSHA") in our facilities and coordinate with other
`health officials as appropriate, including, but not limited to, checking the
`temperature of team members as they enter company facilities, restricting visitor
`access, increasing efforts to deep clean and sanitize facilities, requiring the use of
`protective face coverings and making protective face coverings and other
`protective equipment available to team members, and encouraging team members
`who feel sick to stay at home through relaxed attendance policies and enhanced
`benefits. We implemented additional ways to promote social distancing in our
`production facilities by creating additional breakroom space and allowing extra
`time between shifts to reduce interaction of team members, as well as erecting
`dividers between workstations or increasing the space between workers on the
`production floor.”
`
`(Emphasis added.)
`
`25.
`
`On November 16, 2020, the Company filed a Form 10-K for the fiscal year ended
`
`October 3, 2020 (the “2020 10-K”). Attached to the 2020 10-K were SOX certifications signed
`
`by Defendants Bank and Glendinning attesting to the accuracy of financial reporting, the
`
`disclosure of any material changes to the Company’s internal control over financial reporting and
`
`the disclosure of all fraud.
`
`26.
`
`The 2020 10-K stated the following, in relevant part, regarding the Company’s
`
`response to the coronavirus:
`
`
`
`
`
`7
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`Case 1:21-cv-00552-AMD-RLM Document 1 Filed 02/02/21 Page 8 of 17 PageID #: 8
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`
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`
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`“Health and Safety: We maintain a safety culture grounded on the premise of
`eliminating workplace incidents, risks and hazards. We have created and
`implemented processes to help eliminate safety events by reducing their frequency
`and severity. We also review and monitor our performance closely. Our goal is to
`reduce Occupational Safety and Health Administration ("OSHA") recordable
`incidents by 10% year over year. During fiscal 2020, our recordable incident rate
`declined 17% compared to fiscal 2019. In response to the global novel coronavirus
`pandemic (“COVID-19” or “pandemic”), we have implemented and continue to
`implement safety measures in all our facilities. As an expansion of our We Care
`workplace safety program and continued efforts to boost the overall health and
`wellness of our workforce, we are piloting health clinics near our production
`facilities, giving team members and their families easier access to high-quality
`healthcare.
`
`*
`*
`*
`COVID-19 We continue to monitor and respond to the evolving nature of COVID-
`19 and its impact to our global business. We formed an internal COVID-19 task
`force for the primary purposes of maintaining the health and safety of our team
`members, ensuring our ability to operate our processing facilities and
`maintaining the liquidity of our business.
`*
`*
`*
`Team Members – The health and safety of our team members is our top priority.
`To protect our team members, we have implemented and will continue to
`implement safety measures recommended by the Centers for Disease Control and
`Prevention ("CDC") and the Occupational Safety and Health Administration
`("OSHA") in our facilities and coordinate with other health officials as appropriate,
`including, but not limited to, checking the temperature of team members as they
`enter company facilities, restricting visitor access, increasing efforts to deep clean
`and sanitize facilities, requiring the use of protective face coverings and making
`protective face coverings and other protective equipment available to team
`members and encouraging team members who feel sick to stay at home through
`relaxed attendance policies and enhanced benefits. We implemented additional
`ways to promote social distancing in our production facilities by creating
`additional breakroom space and allowing extra time between shifts to reduce
`interaction of team members, as well as erecting dividers between workstations or
`increasing the space between workers on the production floor.
`*
`*
`*
`Governmental authorities at the federal, state and local levels may increase or
`impose new or stricter social distancing directives, stay-at-home restrictions,
`travel bans, quarantines, workforce and workplace restrictions or other measures
`related to COVID-19. Such actions could cause us to continue to incur additional
`costs.”
`
`(Emphasis added.)
`
`
`
`
`8
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`Case 1:21-cv-00552-AMD-RLM Document 1 Filed 02/02/21 Page 9 of 17 PageID #: 9
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`27.
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`The statements referenced in ¶¶ 20-26 above were materially false and/or
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`misleading because they misrepresented and failed to disclose the following adverse facts
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`pertaining to the Company’s business, operational and financial results, which were known to
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`Defendants or recklessly disregarded by them. Specifically, Defendants made false and/or
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`misleading statements and/or failed to disclose that: (1) Tyson knew, or should have known, that
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`the highly contagious coronavirus was spreading throughout the globe; (2) Tyson did not in fact
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`have sufficient safety protocols to protect its employees in its facilities; (3) as a result, Tyson
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`employees contracted and spread the coronavirus within the facilities; (4) as a result of the
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`foregoing, Tyson would face negative impact to its production, including complete shutdowns of
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`certain facilities; (5) due to the failure to protect its employees, Tyson would suffer financial harm
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`related to its lowered production; and (6) as a result, Defendants’ public statements were
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`materially false and/or misleading at all relevant times.
`
`THE TRUTH EMERGES
`
`28.
`
`On December 15, 2020, New York City Comptroller Scott M. Stringer
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`(“Comptroller Stringer”) called on the SEC to open an investigation into Tyson. In his letter to
`
`the SEC, Comptroller Stringer described, in relevant part, Tyson’s various failures to carry out its
`
`stated coronavirus protection policies:
`
`Unfortunately, the steps Tyson eventually took to protect employees were
`grudging and minimal, such as letting workers use bandanas or sleep masks,
`which function poorly as protective devices. Tyson never moved workers six feet
`apart throughout the plant, nor did it slow the assembly line so that workers
`could be socially distanced. The Company did hang plastic sheeting between
`workers as they continued to work elbow to elbow, even though the Centers for
`Disease Control and Prevention (“CDC”) told the industry that plastic sheeting
`does not work unless workers are at least six feet apart.
`
`As COVID-19 was infecting its employees, Tyson reportedly misled its workforce
`in its largest pork plant by telling them that “everything is fine.” Eventually over
`1000 workers in that plant tested positive, leading to worker deaths,
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`
`
`9
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`hospitalizations, and plant closure.
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`Tyson’s sick leave policy was similarly limited. As COVID-19 swept through its
`plants, in a nod to the CDC guidance that sick workers must stay home, Tyson
`paused its policy of penalizing workers who called in sick for a few months.
`However, it appears that Tyson then proceeded to undermine that policy. In April,
`employees were incentivized to continue working via a $500 “thank you” bonus
`promised to workers who showed up for every scheduled shift over a three month
`period. Then in June, Tyson reinstated its policy penalizing workers who take
`sick leave to avoid contact with any exposed workers.
`
`Other steps were similarly limited. Tyson only reluctantly built some outdoor
`break rooms in a few plants to prevent workers from crowding into break rooms.
`Workers had to continue crowding into bathrooms, and many never got time to
`even visit a bathroom once a day.
`
`Tyson’s tardy and limited reaction took a serious human toll. A report by the non-
`profit Food Environment Reporting Network has tracked COVID-19 outbreak in
`the meatpacking industry (as well as the food processing and farm sectors) and
`reports that as of December 3, 2020 Tyson has the highest number of COVID-19
`cases of any company in the meatpacking industry, more than three times as
`many cases as the next company (11,087 vs. 3,026 cases at JBS, the nation’s
`largest meatpacking company). Tyson reported twice as many deaths as any other
`meatpacking company. Recent research data demonstrate that Tyson and other
`companies in the meatpacking industry are uniquely vulnerable to COVID-19
`outbreaks. A November 2020 article published under the aegis of the National
`Academy of Sciences estimated that livestock plants were associated with 236,000
`to 310,000 COVID-19 cases (6 to 8% of total) and 4,300 to 5,200 deaths (3 to 4%
`of total) as of July 21, 2020.
`
`(Emphasis added.)
`
`37.
`
`On this news, the price of Tyson shares fell $1.78 per share, or 2.5%, to close at
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`$68.25 per share on December 15, 2020, on unusually heavy trading volume, damaging investors.
`
`38.
`
`As a result of Defendants’ wrongful acts and omissions, and the precipitous
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`decline in the market value of the Company’s securities, Plaintiff and other Class members have
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`suffered significant losses and damages.
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`
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`10
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`Case 1:21-cv-00552-AMD-RLM Document 1 Filed 02/02/21 Page 11 of 17 PageID #: 11
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`PLAINTIFF’S CLASS ACTION ALLEGATIONS
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`39.
`
`Plaintiff brings this action as a class action pursuant to Federal Rule of Civil
`
`Procedure 23(a) and (b)(3) on behalf of a class consisting of all persons other than defendants
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`who purchased publicly traded Tyson securities during the Class Period, and who were damaged
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`thereby (the “Class”). Excluded from the Class are Defendants, the officers and directors of Tyson
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`and its subsidiaries, members of the Individual Defendants’ immediate families and their legal
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`representatives, heirs, successors or assigns and any entity in which Defendants have or had a
`
`controlling interest.
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`40.
`
`The members of the Class are so numerous that joinder of all members is
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`impracticable. Throughout the Class Period, Tyson securities were actively traded on the NYSE.
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`While the exact number of Class members is unknown to Plaintiff at this time and can be
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`ascertained only through appropriate discovery, Plaintiff believes that there are hundreds, if not
`
`thousands of members in the proposed Class.
`
`41.
`
`Plaintiff’s claims are typical of the claims of the members of the Class as all
`
`members of the Class are similarly affected by defendants’ wrongful conduct in violation of
`
`federal law that is complained of herein.
`
`42.
`
`Plaintiff will fairly and adequately protect the interests of the members of the Class
`
`and has retained counsel competent and experienced in class and securities litigation. Plaintiff has
`
`no interests antagonistic to or in conflict with those of the Class.
`
`43.
`
`Common questions of law and fact exist as to all members of the Class and
`
`predominate over any questions solely affecting individual members of the Class. Among the
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`questions of law and fact common to the Class are:
`
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`11
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`Case 1:21-cv-00552-AMD-RLM Document 1 Filed 02/02/21 Page 12 of 17 PageID #: 12
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`
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`a)
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`whether the Exchange Act was violated by Defendants’ acts as alleged
`
`
`
`herein;
`
`b)
`
`whether statements made by Defendants to the investing public during the
`
`Class Period misrepresented material facts about the financial condition and business of the
`
`Company;
`
`c)
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`whether Defendants’ public statements to the investing public during the
`
`Class Period omitted material facts necessary to make the statements made, in light of the
`
`circumstances under which they were made, not misleading;
`
`d)
`
`whether the Defendants caused the Company to issue false and misleading
`
`filings during the Class Period;
`
`e)
`
`f)
`
`whether Defendants acted knowingly or recklessly in issuing false filings;
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`whether the prices of Tyson securities during the Class Period were
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`artificially inflated because of the Defendants’ conduct complained of herein; and
`
`g)
`
`whether the members of the Class have sustained damages and, if so, what
`
`is the proper measure of damages.
`
`44.
`
`A class action is superior to all other available methods for the fair and efficient
`
`adjudication of this controversy since joinder of all members is impracticable. Furthermore, as
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`the damages suffered by individual Class members may be relatively small, the expense and
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`burden of individual litigation make it impossible for members of the Class to individually redress
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`the wrongs done to them. There will be no difficulty in the management of this action as a class
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`action.
`
`45.
`
`Plaintiff will rely, in part, upon the presumption of reliance established by the
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`fraud-on-the-market doctrine in that:
`
`
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`12
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`Case 1:21-cv-00552-AMD-RLM Document 1 Filed 02/02/21 Page 13 of 17 PageID #: 13
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`
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`
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`a)
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`Tyson shares met the requirements for listing, and were listed and actively
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`traded on the NYSE, an efficient market;
`
`b)
`
`c)
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`As a public issuer, the Company filed periodic public reports;
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`Tyson regularly communicated with public investors via established
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`market communication mechanisms, including through the regular dissemination of press releases
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`via major newswire services and through other wide-ranging public disclosures, such as
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`communications with the financial press and other similar reporting services;
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`d)
`
`Tyson’s securities were liquid and traded with moderate to heavy volume
`
`during the Class Period; and
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`e)
`
`The Company was followed by a number of securities analysts employed
`
`by major brokerage firms who wrote reports that were widely distributed and publicly available.
`
`46.
`
`Based on the foregoing, the market for Tyson securities promptly digested current
`
`information regarding the Company from all publicly available sources and reflected such
`
`information in the prices of the securities, and Plaintiff and the members of the Class are entitled
`
`to a presumption of reliance upon the integrity of the market.
`
`47.
`
`Alternatively, Plaintiff and the members of the Class are entitled to the
`
`presumption of reliance established by the Supreme Court in Affiliated Ute Citizens of the State
`
`of Utah v. United States, 406 U.S. 128 (1972), as Defendants omitted material information in their
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`Class Period statements in violation of a duty to disclose such information as detailed above.
`
`COUNT I
`For Violations of Section 10(b) And Rule 10b-5 Promulgated Thereunder
`Against All Defendants
`
`48.
`
`Plaintiff repeats and realleges each and every allegation contained above as if fully
`
`set forth herein.
`
`
`
`13
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`Case 1:21-cv-00552-AMD-RLM Document 1 Filed 02/02/21 Page 14 of 17 PageID #: 14
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`49.
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`This Count is asserted against Defendants is based upon Section 10(b) of the
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`Exchange Act, 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated thereunder by the SEC.
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`50.
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` During the Class Period, Defendants, individually and in concert, directly or
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`indirectly, disseminated or approved the false statements specified above, which they knew or
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`deliberately disregarded were misleading in that they contained misrepresentations and failed to
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`disclose material facts necessary in order to make the statements made, in light of the
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`circumstances under which they were made, not misleading.
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`51.
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`Defendants violated §10(b) of the 1934 Act and Rule 10b-5 in that they:
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`•
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`•
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`employed devices, schemes and artifices to defraud;
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`made untrue statements of material facts or omitted to state material facts
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`necessary in order to make the statements made, in light of the
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`circumstances under which they were made, not misleading; or
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`•
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`engaged in acts, practices and a course of business that operated as a fraud
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`or deceit upon plaintiff and others similarly situated in connection with
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`their purchases of Tyson securities during the Class Period.
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`52.
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`Defendants acted with scienter in that they knew that the public documents and
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`statements issued or disseminated in the name of the Company were materially false and
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`misleading; knew that such statements or documents would be issued or disseminated to the
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`investing public; and knowingly and substantially participated, or acquiesced in the issuance or
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`dissemination of such statements or documents as primary violations of the securities laws. These
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`Defendants by virtue of their receipt of information reflecting the true facts of the Company, their
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`control over, and/or receipt and/or modification of Tyson’s allegedly materially misleading
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`statements, and/or their associations with the Company which made them privy to confidential
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`14
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`Case 1:21-cv-00552-AMD-RLM Document 1 Filed 02/02/21 Page 15 of 17 PageID #: 15
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`proprietary information concerning the Company, participated in the fraudulent scheme alleged
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`herein.
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`53.
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` Individual Defendants, who are or were the senior officers and/or directors of the
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`Company, had actual knowledge of the material omissions and/or the falsity of the material
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`statements set forth above, and intended to deceive Plaintiff and the other members of the Class,
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`or, in the alternative, acted with reckless disregard for the truth when they failed to ascertain and
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`disclose the true facts in the statements made by them or other Tyson personnel to members of
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`the investing public, including Plaintiff and the Class.
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`54.
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`As a result of the foregoing, the market price of Tyson securities was artificially
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`inflated during the Class Period. In ignorance of the falsity of Defendants’ statements, Plaintiff
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`and the other members of the Class relied on the statements described above and/or the integrity
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`of the market price of Tyson securities during the Class Period in purchasing Tyson securities at
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`prices that were artificially inflated as a result of Defendants’ false and misleading statements.
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`55.
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`Had Plaintiff and the other members of the Class been aware that the market price
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`of Tyson’s securities had been artificially and falsely inflated by Defendants’ misleading
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`statements and by the material adverse information which Defendants did not disclose, they would
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`not have purchased Tyson’s securities at the artificially inflated prices that they did, or at all.
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`56.
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` As a result of the wrongful conduct alleged herein, Plaintiff and other members
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`of the Class have suffered damages in an amount to be established at trial.
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`57.
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`By reason of the foregoing, Defendants have violated Section 10(b) of the 1934
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`Act and Rule 10b-5 promulgated thereunder and are liable to the plaintiff and the other members
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`of the Class for substantial damages which they suffered in connection with their purchase of
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`Tyson’s securities during the Class Period.
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`15
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`Case 1:21-cv-00552-AMD-RLM Document 1 Filed 02/02/21 Page 16 of 17 PageID #: 16
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`COUNT II
`Violations of Section 20(a) of the Exchange Act
`Against the Individual Defendants
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`58.
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`Plaintiff repeats and realleges each and every allegation contained in the foregoing
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`paragraphs as if fully set forth herein.
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`59.
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`During the Class Period, the Individual Defendants participated in the operation
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`and management of the Company, and conducted and participated, directly and indirectly, in the
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`conduct of Tyson’s business affairs. Because of their senior positions, they knew the adverse non-
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`public information about the Company’s false financial statements.
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`60.
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`As officers of a publicly owned company, the Individual Defendants had a duty to
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`disseminate accurate and truthful information with respect to Tyson’s financial condition and
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`results of operations, and to correct promptly any public statements issued by the Company which
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`had become materially false or misleading.
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`61.
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` Because of their positions of control and authority as senior officers, the
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`Individual Defendants were able to, and did, control the contents of the various reports, press
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`releases and public filings which Tyson disseminated in the marketplace during the Class Period
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`concerning the Company’s results of operations. Throughout the Class Period, the Individual
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`Defendants exercised their power and authority to cause the Company to engage in the wrongful
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`acts complained of herein. The Individual Defendants, therefore, were “controlling persons” of
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`the Company within the meaning of Section 20(a) of the Exchange Act. In this capacity, they
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`participated in the unlawful conduct alleged which artificially inflated the market price of Tyson
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`securities.
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`62.
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`By reason of the above conduct, the Individual Defendants are liable pursuant to
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`Section 20(a) of the Exchange Act for the violations committed by the Company.
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