Case 1:22-cv-02634 Document 1 Filed 05/07/22 Page 1 of 14 PageID #: 1
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`Daniel Sadeh, Esq.
`HALPER SADEH LLP
`667 Madison Avenue, 5th Floor
`New York, NY 10065
`Telephone: (212) 763-0060
`Facsimile: (646) 776-2600
`Email: sadeh@halpersadeh.com
`
`Counsel for Plaintiff
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`
`
`Case No:
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`
`COMPLAINT
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`JURY TRIAL DEMANDED
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`
`
`DAVID SCHUPPERT,
`
`Plaintiff,
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`v.
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`LHC GROUP, INC., KEITH G. MYERS,
`MONICA F. AZARE, TERI G.
`FONTENOT, JONATHAN D.
`GOLDBERG, CLIFFORD S. HOLTZ,
`JOHN L. INDEST, RONALD T. NIXON,
`W. EARL REED, III, and WILLIAM
`BRENT TURNER,
`
`
`Defendants.
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`
`
`
`
`
`
`
`
`
`
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`Plaintiff David Schuppert (“Plaintiff”), by Plaintiff’s undersigned attorneys, for Plaintiff’s
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`complaint against Defendants (defined below), 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
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`matters, based upon, inter alia, the investigation conducted by and through Plaintiff’s attorneys.
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`NATURE OF THE ACTION
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`1.
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`This is an action against LHC Group, Inc. (“LHC Group” or the “Company”) and
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`its Board of Directors (the “Board” or the “Individual Defendants”) for their violations of Sections
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`14(a) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C. §§ 78n(a)
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`and 78t(a), and Rule 14a-9 promulgated thereunder by the SEC, 17 C.F.R. § 240.14a-9, in
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`connection with the proposed acquisition (the “Proposed Transaction”) of LHC Group by Optum,
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`a part of UnitedHealth Group.
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`JURISDICTION AND VENUE
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`2.
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`The claims asserted herein arise under and pursuant to Sections 14(a) and 20(a) of
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`the Exchange Act (15 U.S.C. §§ 78n(a) and 78t(a)) and Rule 14a-9 promulgated thereunder by the
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`SEC (17 C.F.R. § 240.14a-9).
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`3.
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`This Court has jurisdiction over the subject matter of this action pursuant to 28
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`U.S.C. § 1331, and Section 27 of the Exchange Act, 15 U.S.C. § 78aa.
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`4.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) and Section 27 of
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`the Exchange Act (15 U.S.C. § 78aa(c)) as a substantial portion of the transactions and wrongs
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`complained of herein had an effect in this District, and the alleged misstatements entered and the
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`subsequent damages occurred in this District.
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`5.
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`In connection with the acts, conduct and other wrongs alleged in this complaint,
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`Defendants, directly or indirectly, used the means and instrumentalities of interstate commerce,
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`including but not limited to, the United States mails, interstate telephone communications and the
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`facilities of the national securities exchange.
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`PARTIES
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`6.
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`Plaintiff is, and has been at all relevant times hereto, an owner of LHC Group
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`common stock.
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`7.
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`Defendant LHC Group is a health care provider that specializes in the post-acute
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`continuum of care primarily for Medicare beneficiaries in the United States. The Company is
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`incorporated in Delaware. The Company’s common stock trades on the NASDAQ under the ticker
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`symbol, “LHCG.”
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`8.
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`Defendant Keith G. Myers (“Myers”) is Chief Executive Officer and Chairman of
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`the Board of the Company.
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`9.
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`10.
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`11.
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`12.
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`13.
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`14.
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`15.
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`16.
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`17.
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`Defendant Monica F. Azare (“Azare”) is a director of the Company.
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`Defendant Teri G. Fontenot (“Fontenot”) is a director of the Company.
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`Defendant Jonathan D. Goldberg (“Goldberg”) is a director of the Company.
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`Defendant Clifford S. Holtz (“Holtz”) is a director of the Company.
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`Defendant John L. Indest (“Indest”) is a director of the Company.
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`Defendant Ronald T. Nixon (“Nixon”) is a director of the Company.
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`Defendant W. Earl Reed, III (“Reed”) is a director of the Company.
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`Defendant William Brent Turner (“Turner”) is a director of the Company.
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`Defendants Myers, Azare, Fontenot, Goldberg, Holtz, Indest, Nixon, Reed, and
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`Turner are collectively referred to herein as the “Individual Defendants.”
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`18.
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`Defendants LHC Group and the Individual Defendants are collectively referred to
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`herein as the “Defendants.”
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`SUBSTANTIVE ALLEGATIONS
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`A. The Proposed Transaction
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`19.
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`On March 29, 2022, LHC Group and Optum announced that they had agreed to
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`combine pursuant to which Optum would acquire LHC Group’s outstanding common stock for
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`$170.00 per share. The press release announcing the Proposed Transaction states, in pertinent part:
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`Optum and LHC Group to Combine, Advancing Abilities to Extend Value-
`Based Care into Patients’ Homes
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`March 29, 2022 07:00 AM Eastern Daylight Time
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`EDEN PRAIRIE, Minn. & LAFAYETTE, La.--(BUSINESS WIRE)--Optum, a
`diversified health services company, and LHC Group (NASDAQ: LHCG), a
`national patient-focused provider of high-quality in-home health care services, have
`agreed to combine to further strengthen their shared ability to advance value-based
`care, especially in the comfort of a patient’s own home. The agreement calls for the
`acquisition of LHC Group’s outstanding common stock for $170 per share.
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`
`*
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`*
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`*
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`The agreement calls for the acquisition of LHC Group’s common stock for $170
`per share in cash and is expected to close in the second half of 2022 subject to LHC
`Group shareholder approvals, regulatory approvals and other customary closing
`conditions. Co-founders Keith and Ginger Myers will personally invest $10 million
`in UnitedHealth Group stock following the close of the combination. The
`acquisition is expected to be neutral to UnitedHealth Group’s outlook for adjusted
`net earnings per share in 2022, modestly accretive in 2023, and advancing strongly
`in subsequent years.
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`About Optum
`
`Optum is a leading information and technology-enabled health services business
`dedicated to helping make the health system work better for everyone. With more
`than 190,000 people worldwide, Optum delivers intelligent, integrated solutions
`that help to modernize the health system and improve overall population health.
`Optum is part of UnitedHealth Group (NYSE: UNH). For more information,
`visit www.Optum.com.
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`About LHC Group
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`LHC Group, Inc. is a national provider of in-home healthcare services and
`innovations, providing quality, value-based healthcare to patients primarily within
`the comfort and privacy of their home or place of residence. LHC Group’s services
`cover a wide range of healthcare needs for patients and families dealing with illness,
`injury, or chronic conditions. The company’s 30,000 employees deliver home
`health, hospice, home- and community-based services, and facility-based care from
`964 locations in 37 states and the District of Columbia – reaching 60 percent of the
`U.S. population aged 65 and older. LHC Group is the preferred in-home healthcare
`partner for 435 leading hospitals around the country. For more information,
`visit www.LHCGroup.com. SVB Leerink and Jefferies LLC served as financial
`advisors to LHC Group.
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`20.
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`On April 29, 2022, Defendants caused to be filed with the SEC a Schedule 14A
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`Preliminary Proxy Statement (the “Proxy Statement”) pursuant to Section 14(a) of the Exchange
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`Act in connection with the Proposed Transaction.
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`B. The Proxy Statement Contains Materially False and Misleading Statements and
`Omissions
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`21.
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`The Proxy Statement, which recommends that LHC Group shareholders vote in
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`favor of the Proposed Transaction, omits and/or misrepresents material information concerning:
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`(i) LHC Group’s financial projections; (ii) the financial analyses performed by the Company’s
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`financial advisors, SVB Securities LLC (“SVB”) and Jefferies LLC (“Jefferies”), in connection
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`with their fairness opinions; (iii) potential conflicts of interest involving SVB; (iv) potential
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`conflicts of interest involving Company insiders; and (v) the sales process leading up to the
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`Proposed Transaction.
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`22.
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`The omission of the material information (referenced below) renders the following
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`sections of the Proxy Statement false and misleading, among others: (i) Background of the Merger;
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`(ii) Recommendation of the Board and Reasons for the Merger; (iii) Opinion of LHC’s Financial
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`Advisors; and (iv) Certain Financial Projections.
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`23.
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`Unless and until the material misstatements and omissions (referenced below) are
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`remedied before the anticipated shareholder vote on the Proposed Transaction, LHC Group
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`shareholders will be forced to make a voting decision on the Proposed Transaction without full
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`disclosure of all material information. In the event the Proposed Transaction is consummated,
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`Plaintiff may seek to recover damages resulting from Defendants’ misconduct.
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`1. Material Omissions Concerning LHC Group’s Financial Projections
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`24.
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`The Proxy Statement omits material information concerning LHC Group’s
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`financial projections.
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`25. With respect to LHC Group’s financial projections, the Proxy Statement fails to
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`disclose: (1) all line items underlying the projections; (2) the Company’s net income projections;
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`and (3) a reconciliation of all non-GAAP to GAAP metrics.
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`26.
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`The disclosure of this information is material because it would provide the
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`Company’s shareholders with a basis to project the future financial performance of LHC Group
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`and would allow shareholders to better understand the financial analyses performed by the
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`Company’s financial advisors in support of their fairness opinions. Shareholders cannot hope to
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`replicate management’s inside view of the future prospects of the Company. Without such
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`information, which is uniquely possessed by Defendant(s) and the Company’s financial advisors,
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`the Company’s shareholders are unable to determine how much weight, if any, to place on the
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`Company’s financial advisors’ fairness opinions in determining whether to vote for or against the
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`Proposed Transaction.
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`27. When a company discloses non-GAAP financial metrics in a Proxy Statement that
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`were relied upon by its board of directors in recommending that shareholders exercise their
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`corporate suffrage rights in a particular manner, the company must also disclose, pursuant to SEC
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`Regulation G, all projections and information necessary to make the non-GAAP metrics not
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`misleading, and must provide a reconciliation (by schedule or other clearly understandable
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`method) of the differences between the non-GAAP financial metrics disclosed or released with the
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`most comparable financial metrics calculated and presented in accordance with GAAP. 17 C.F.R.
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`§ 244.100.1
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`28.
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`The above-referenced omitted information, if disclosed, would significantly alter
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`
`1 Mary Jo White, Keynote Address, International Corporate Governance Network Annual
`Conference: Focusing the Lens of Disclosure to Set the Path Forward on Board Diversity, Non-
`GAAP, and Sustainability (June 27, 2016), https://www.sec.gov/news/speech/chair-white-icgn-
`speech.html (footnotes omitted) (last visited May 7, 2022) (“And last month, the staff issued
`guidance addressing a number of troublesome practices which can make non-GAAP disclosures
`misleading: the lack of equal or greater prominence for GAAP measures; exclusion of normal,
`recurring cash operating expenses; individually tailored non-GAAP revenues; lack of
`consistency; cherry-picking; and the use of cash per share data. I strongly urge companies to
`carefully consider this guidance and revisit their approach to non-GAAP disclosures.”).
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`the total mix of information available to the Company’s shareholders.
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`2. Material Omissions Concerning the Financial Advisors’ Analyses
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`29.
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`In connection with the Proposed Transaction, the Proxy Statement omits material
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`information concerning analyses performed by SVB and Jefferies.
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`30.
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`The valuation methods, underlying assumptions, and key inputs used by SVB and
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`Jefferies in rendering their purported fairness opinions must be fairly disclosed to the Company’s
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`shareholders. The description of the financial advisors’ fairness opinions and analyses, however,
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`fail to include key inputs and assumptions underlying those analyses.
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`31. Without the information described below, the Company’s shareholders are unable
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`to fully understand SVB’s and Jefferies’ fairness opinions and analyses, and are thus unable to
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`determine how much weight, if any, to place on them in determining whether to vote for or against
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`the Proposed Transaction. This omitted information, if disclosed, would significantly alter the total
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`mix of information available to the Company’s shareholders.
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`A. SVB’s Analyses
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`32. With respect to SVB’s “Publicly Traded Company Analysis” and “Selected
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`Precedent Transaction Analysis,” the Proxy Statement fails to disclose the individual financial
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`metrics of each company and transaction SVB observed in its analyses, including the value and
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`closing date of each transaction.
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`33.
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`The Proxy Statement fails to disclose the following concerning SVB’s “Discounted
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`Cash Flow Analysis”: (1) the after-tax unlevered free cash flows expected to be generated by the
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`Company over the period beginning on January 1, 2022 and ending on December 31, 2026, and
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`all underlying line items; (2) the terminal values for the Company; (3) the individual inputs and
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`assumptions underlying the perpetuity growth rates and discount rates used in the analysis; and (4)
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`the number of fully diluted shares outstanding used in the analysis.
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`34. With respect to SVB’s analysis of Wall Street analysts’ price targets for LHC Group
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`common stock, the Proxy Statement fails to disclose: (1) the individual price targets observed by
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`SVB in its analysis; and (2) the sources thereof.
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`35. With respect to SVB’s premiums paid analysis, the Proxy Statement fails to
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`disclose the transactions observed and the premiums paid therein.
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`B. Jefferies’ Analyses
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`36. With respect to Jefferies’ “Selected Public Companies Analysis” and “Selected
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`Precedent Transactions Analysis,” the Proxy Statement fails to disclose the individual multiples
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`and financial metrics of each company and transaction Jefferies observed in its analyses, including
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`the value and closing date of each transaction.
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`37.
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`The Proxy Statement fails to disclose the following concerning Jefferies’
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`“Discounted Cash Flow Analysis”: (1) the standalone unlevered, after-tax free cash flows that LHC
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`Group was forecasted to generate during the calendar years ending December 31, 2022 through
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`December 31, 2026, and all underlying line items; (2) the terminal values of the Company; and (3)
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`the individual inputs and assumptions underlying the perpetuity growth rates and discount rates
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`used in the analysis.
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`38. With respect to Jefferies’ premiums paid analysis, the Proxy Statement fails to
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`disclose the transactions observed and the premiums paid therein.
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`3. Material Omissions Concerning Potential Conflicts of Interest Involving SVB
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`The Proxy Statement omits material information concerning potential conflicts of
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`39.
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`interest involving SVB.
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`40.
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`The Proxy Statement provides that, “[i]In the past two years, SVB Securities has
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`provided certain investment banking services to the Company unrelated to the Merger and has
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`received customary compensation in connection with such services[.]” The Proxy Statement,
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`however, fails to disclose the amount of compensation SVB received or expects to receive for
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`providing such services.
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`41.
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`Disclosure of a financial advisor’s compensation and potential conflicts of interest
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`to shareholders is required due to their central role in the evaluation, exploration, selection, and
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`implementation of strategic alternatives and the rendering of any fairness opinions. Disclosure of
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`a financial advisor’s potential conflicts of interest may inform shareholders on how much weight
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`to place on that analysis.
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`42.
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`The omission of the above-referenced information renders the Proxy Statement
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`materially incomplete and misleading. This information, if disclosed, would significantly alter the
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`total mix of information available to the Company’s shareholders.
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`4. Material Omissions Concerning Company Insiders’ Potential Conflicts of
`Interest
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`43.
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`The Proxy Statement omits material information concerning potential conflicts of
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`interest involving Company insiders.
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`44.
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`The Proxy Statement fails to disclose the details of all employment-related and
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`compensation-related discussions and negotiations concerning the Company’s officers and
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`directors, including the parties to such communications, when they occurred, and the specific
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`content discussed/communicated.
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`45.
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`Any communications
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`regarding post-transaction employment during
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`the
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`negotiation of the underlying transaction must be disclosed to shareholders. This information is
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`necessary for shareholders to understand potential conflicts of interest of management and the
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`Board. Such information may illuminate the motivations that would prevent fiduciaries from acting
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`solely in the best interests of the Company’s shareholders.
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`46.
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`The above-referenced omitted information, if disclosed, would significantly alter
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`the total mix of information available to the Company’s shareholders.
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`5. Material Omissions Concerning the Sales Process Leading up to the Proposed
`Transaction
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`The Proxy Statement omits material information concerning the sales process
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`47.
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`leading up to the Proposed Transaction.
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`48.
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`The Proxy Statement provides that, during the sales process, the Company entered
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`into a non-disclosure agreement with “Party A.”
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`49.
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`The Proxy Statement, however, fails to disclose all the terms of the Company’s
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`non-disclosure agreement with Party A, including whether such agreement contained a standstill
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`provision and “don’t ask, don’t waive” (DADW) provision (including its time of enforcement) that
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`would preclude Party A from making a superior offer for the Company.
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`50. Without this information, the Company’s shareholders may have the mistaken
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`belief that Party A is or was permitted to submit a superior proposal for the Company, when in
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`fact, it may be contractually prohibited from doing so. This information is material because a
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`reasonable LHC Group shareholder would want to know, prior to voting for or against the
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`Proposed Transaction, whether other potentially interested parties are or were foreclosed from
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`submitting a superior proposal.
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`51.
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`The above-referenced omitted information, if disclosed, would significantly alter
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`the total mix of information available to the Company’s shareholders.
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`COUNT I
`For Violations of Section 14(a) and Rule 14a-9 Promulgated Thereunder
`Against All Defendants
`Plaintiff repeats and realleges each and every allegation contained above as if fully
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`52.
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`set forth herein.
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`53.
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`During the relevant period, Defendants, individually and in concert, directly or
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`indirectly, disseminated or approved the false and misleading Proxy Statement specified above,
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`which failed to disclose material facts necessary in order to make the statements made, in light of
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`the circumstances under which they were made, not misleading, in violation of Section 14(a) of
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`the Exchange Act and Rule 14a-9 promulgated thereunder by the SEC.
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`54.
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`Each of the Individual Defendants, by virtue of his/her positions within the
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`Company as officers and/or directors, were aware of the omitted information but failed to disclose
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`such information, in violation of Section 14(a) of the Exchange Act. Defendants, by use of the
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`mails and means and instrumentalities of interstate commerce, solicited and/or permitted the use
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`of their names to file and disseminate the Proxy Statement with respect to the Proposed
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`Transaction. The Defendants were, at minimum, negligent in filing the materially false and
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`misleading Proxy Statement.
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`55.
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`The false and misleading statements and omissions in the Proxy Statement are
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`material in that a reasonable shareholder would consider them important in deciding how to vote
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`on the Proposed Transaction.
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`56.
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`By reason of the foregoing, Defendants have violated Section 14(a) of the Exchange
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`Act and Rule 14a-9 promulgated thereunder.
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`57.
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`Because of the false and misleading statements and omissions in the Proxy
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`Statement, Plaintiff is threatened with irreparable harm.
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`COUNT II
`Violations of Section 20(a) of the Exchange Act
`Against the Individual Defendants
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`Plaintiff repeats and realleges each and every allegation contained in the foregoing
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`58.
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`paragraphs as if fully set forth herein.
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`59.
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`The Individual Defendants acted as control persons of the Company within the
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`meaning of Section 20(a) of the Exchange Act as alleged herein. By virtue of their senior positions
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`as officers and/or directors of the Company and participation in and/or awareness of the
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`Company’s operations and/or intimate knowledge of the false statements contained in the Proxy
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`Statement filed with the SEC, they had the power to and did influence and control, directly or
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`indirectly, the decision-making of the Company, including the content and dissemination of the
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`false and misleading Proxy Statement.
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`60.
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`Each of the Individual Defendants was provided with or had unlimited access to
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`copies of the Proxy Statement and other statements alleged by Plaintiff to be misleading prior to
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`and/or shortly after these statements were issued and had the ability to prevent the issuance of the
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`statements or cause the statements to be corrected. As officers and/or directors of a publicly owned
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`company, the Individual Defendants had a duty to disseminate accurate and truthful information
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`with respect to the Proxy Statement, and to correct promptly any public statements issued by the
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`Company which were or had become materially false or misleading.
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`61.
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`In particular, each of the Individual Defendants had direct and supervisory
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`involvement in the operations of the Company, and, therefore, is presumed to have had the power
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`to control or influence the particular transactions giving rise to the securities violations as alleged
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`herein, and exercised the same. The Individual Defendants were provided with or had unlimited
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`access to copies of the Proxy Statement and had the ability to prevent the issuance of the statements
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`or to cause the statements to be corrected. The Proxy Statement at issue contains the
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`recommendation of the Individual Defendants to approve the Proposed Transaction. Thus, the
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`Individual Defendants were directly involved in the making of the Proxy Statement.
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`62.
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`In addition, as the Proxy Statement sets forth at length, and as described herein, the
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`Individual Defendants were involved in negotiating, reviewing, and approving the Proposed
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`Transaction. The Proxy Statement purports to describe the various issues and information that they
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`reviewed and considered—descriptions which had input from the Individual Defendants.
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`63.
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`By virtue of the foregoing, the Individual Defendants have violated Section 20(a)
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`of the Exchange Act.
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`64.
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`As set forth above, the Individual Defendants had the ability to exercise control
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`over and did control a person or persons who have each violated Section 14(a) and Rule 14a-9
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`promulgated thereunder, by their acts and omissions as alleged herein. By virtue of their positions
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`as controlling persons, the Individual Defendants are liable pursuant to Section 20(a) of the
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`Exchange Act. As a direct and proximate result of Defendants’ conduct, the Company’s
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`shareholders will be irreparably harmed.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff prays for judgment and relief as follows:
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`A.
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`Preliminarily and permanently enjoining Defendants and all persons acting in
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`concert with them from proceeding with, consummating, or closing the Proposed Transaction and
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`any vote on the Proposed Transaction, unless and until Defendants disclose and disseminate the
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`material information identified above to Company shareholders;
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`B.
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`In the event Defendants consummate the Proposed Transaction, rescinding it and
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`setting it aside or awarding rescissory damages;
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`C.
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`Declaring that Defendants violated Sections 14(a) and 20(a) of the Exchange Act,
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`and Rule 14a-9 promulgated thereunder;
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`D.
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`Awarding Plaintiff reasonable costs and expenses incurred in this action, including
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`counsel fees and expert fees; and
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`E.
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`Granting such other and further relief as the Court may deem just and proper.
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`JURY TRIAL DEMANDED
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`Plaintiff hereby demands a trial by jury.
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`Dated: May 7, 2022
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` Respectfully submitted,
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`
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`HALPER SADEH LLP
`
`By: /s/ Daniel Sadeh
`Daniel Sadeh, Esq.
`Zachary Halper, Esq. (to be admitted pro hac
`vice)
`667 Madison Avenue, 5th Floor
`New York, NY 10065
`Telephone: (212) 763-0060
`Facsimile: (646) 776-2600
`Email: sadeh@halpersadeh.com
` zhalper@halpersadeh.com
`
`Counsel for Plaintiff
`
`14
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