Tuesday, May 8, 2012

TSB Case Study

The legal definition of fraud states that fraud is a misrepresentation of a matter of fact, by false or misleading allegations, or by concealment of what should have been disclosed that deceives and is intended to deceive another so that the individual will act upon it to his or her injury.  As the legal dictionary states, "fraud is commonly understood as dishonestly calculated for advantage." In recent years, some of the most notorious people convicted for fraud have paid the price for their nefarious behavior. The poster child for fraud would be the infamous Bernard Madoff who was convicted of investment advisor fraud, mail fraud, and wire fraud to name a few. Fraudulent behavior includes false statement of material facts, knowledge on the part of the defendant that the statement was untrue, intent by the defendant to deceive, a reliance by an investor or victim on the statement, and injury to the alleged victim.

TSB's Case Study is directed at our legal eagles that read our blog. Let's say we have a fictitious company in the spine industry, for sake of discussion let's call them Company X.  In four years, company X has burned through roughly $20-25 million in investment capital, revenue is weak, and "X" has exhausted all means by which it can raise additional capital. Company X decides to issue a Press Release on Orthopedics This Week reporting that within the past few months Company X has had record breaking sales, a result of making multiple changes to their instrumentation, and substantiating this claim by stating that they have received plaudits from surgeon customers, not informing a potential investor that 80% of its revenue is generated by investing surgeons. Furthermore, the declaration that Company X has had a record breaking quarter is in print.  All the while revenue has been flat, or as any financial analyst would interpret, in decline.

The Facts

Company X really hasn't had a record breaking quarter or month.  The numbers have been inflated by a  one time sale to a foreign stocking distributor that inflated the metric utilized by the company to measure its progress, since the company has always based its progress on surgical implantations. In Gladwell's World this would be considered an outlier occurrence.  Company X's intent is to use the Press Release to inflate the company's image, with the intent of enticing or attracting former or potential investors into infusing additional capital into the company.  Company X decides to enlist Doctor Famous, a surgeon investor and BOD to call on former and potential investors.  Doctor Famous is well aware of Company X's financial status.

The Legal Question

Is Doctor Famous or the CEO committing fraud if they are knowingly soliciting capital by misleading potential or former investors? Or, is this another situation whereby the old adage applies, caveat emptor?  What happens if the seller is knowingly selling a latent defect?  TSB wants to know what our readers think?  

44 comments:

  1. Why would the stocking order not count? Is there reason to believe the stocking orders won't continue? X won't know when they are implanted by the stocking distributor like they do for other distributors so they have to count the sales somehow, sometime. If the sales, including the stocking order, are not "record breaking", then its a fraudulent statement.

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  2. I imagine some of that "$20-25 million in investment capital" was spent bringin some legal expertise in to the company. Thus the statement would probably written in such a way as its not fraudulent - just immoral. In business ethics and morals seem to be barriers to get in the way profits.
    I wont name the company I work for but I'm quite comfortable that my employer are on the good side of the ethical line (even if its not very far over it)

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  3. Imagine if said company decides to solicit capital from the public spectrum via an IPO...

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  4. Doubt they spent any money on legal, if they are in financial straits.

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  5. Yes. Assuming the facts are true, for the following reasons:

    1) Misrepresentation that affiliated transactions were at arms length.

    2) Misrepresentation of a product's performance level and likelihood of success.

    3) Misrepresentation of the sales numbers (declining or flat apparently).

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  6. No investor would be fooled by such an amateur move.

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  7. Stop the suspense... who are we talking about?

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  8. Every doc I talk to tells me they hear LANX is having capital problems. Anyone else hearing that? Sorry if I'm off subject.

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    1. Almost every company out there is having capital problems. This industry is broken. How does this multi-billion dollar industry, with 85%+ gross margins, manage to blow through cash? There is an easy answer: look at SG&A (selling expense) on any company's income statement. Compare that percentage to virtually any other industry. Yes, this industry is broken. If you are a salesperson in any capacity in this industry (regional manager, distributor, all of the above), you might want to consider checking out the curriculum at your local community college. As the capital inflows to this industry have stopped, the fat cutting is beginning. Hold on to your hat...

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    2. I know Andy Cappuccino is personally calling NuVa XLIF Surgeons to try out his retractor/implants. Nothing like your own personal MD sales rep personally calling other surgeons to pimp his products. Not like this is a new concept, I am sure every company has one of these guys. I know Choll Kim is the rep of the year for Globus! "Come out to SD and learn how to use every implant that I design." Sounds great!

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    3. Where have you been? Dr. C. works for Lanx. Wouldn't he be violating non compete consulting with Nuva docs?

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    4. Lanx definitly in a financial pinch. Last 2 years they have spent over $2M in layoffs due to poor fiscal management / sales performance. Every distributor gets into a lawsuit at one point in time with Lanx and Lanx eventually pays out. Had some "questionable" growth opps in Europe (stocking distributors), with owner Thramann and now Cappuccino leading the charge, and the dwindling Sachs investment. Coincidence???

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  9. This scenario is an expedited strategy to a golden parachute.

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  10. Excellent point TSB! On another note how are Lanx, Nuvasive, Sea Spine and Globus doing!

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  11. What is the latest on Trans1? Is their technology viable now that they have received some coding?

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  12. TSB,
    Ethically, yes... committing fraud. Unfortunately, I'm going with Buyer Beware. Its all a game. Sales statements are intentionally ambiguous and out-of-context to have a positive spin. As long as numbers are not falsified (enter: Legal Fraud), we'll often be mislead.

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  13. Who audits these small companies and how do they meet their banking covenants? If it's a shell, it's fraud.

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  14. Not to change the subject, but to change the subject. Did anyone see the xray of the lumbar implant on Dances With the Stars Melissa Gilbert? Yes, my wife makes me watch it with her. There I said it. It was during one of the funny skits they sometimes put on and they called it "the longhorn steer". I was definately titanium and alif. I did not recognize it, but good advertising whoever it is.

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  15. Is this a case study on Centinel Spine ;-)

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  16. Has to be Centinel!

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    1. Definitely Centinel!

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  17. TSB could this be VTI, the company run by the second coming of Earl Bakken, LOL

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    1. Earl Bakken? How about Moe, Larry and Shemp

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  18. How does a company release a shareholder letter announcing progress when a company's growth is flat? Desperate times call for desperate measures. Sounds like someone's got has a sigmoidoscope up their ass.

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  19. Surgeons seeking training on an interbody? C'mon people you've got to be shittin' me. Wow there lining up aren't they just for the opportunity to be told how to implant an interbody. Say it ain't so Joe

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  20. Sounds like mako surgical. How many surgeons hold an equity stake? How about the rising SG&A? Is makoplasty hip really more minimally invasive than a mini posterior?

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  21. This just in.... Alphatec is suspending their contracts with PODs in CA. Is Alphatec trying to turn over a new leaf? Is this a conviction on the POD model? How will this affect Alphatec financials? How much of their revenue is generated from PODs?

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    Replies
    1. Was this prompted by Les Cross? If so, kudos to him.

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  22. This case study could indeed describe VTI. Think for a minute, $20 million raised that's $5 mill per year for operating capitol, "record breaking" flat sales which means inventory is a one to one ratio of sales/replacement, no shelf inventory, their overhead burden can't be any more that $1.5 mill per year; WHERE'S THE REMAINING $3.5 MILL per year? Now they're trying to raise MORE cash. As an investor you've got to laugh then cry. Demand an audit!!
    I heard they don't have any PLIF inventory and only have a couple sets of the TLIF device. They're constantly calling distributors to help move sets/inventory to cover cases.
    They hire the ultimate empty suit, Tom Boyd, to run sales. Did anyone vet this guy or was it another knee jerk reaction?
    The line of potential investors is around the block....NOT!!

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    1. Isn't there a letter going around touting VTI's tremendous first quarter for the investors, pure fabrication at best. Training surgeons to implant an interbody, must be one hell of a system.

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    2. Dale Binke can join Tommy as soon as he is done training with Allosource.

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    3. Didn't someone write about a deaf, dumb and blind kid named Tommy?

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    4. Didn't Tom Boyd strap up Harold Carmichael's jock strap when he was a water boy with the Philadelphia Eagles. LOL, this guy is a walking cliche

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    5. Amazing... I've never even heard of VTI. I know that Life Spine has not raised significant money, yet they publish their "growth" in press releases for some reason. Why would they do that? Could it be Titan Spine? I don't see how Lanx could have capital problems with their sales rate. TranS 1 is in a nose dive, so it can't be them.

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  23. Things are looking up when you're flat on your back, LMAO

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  24. Talk about trying to raise more capital. What a shame or should I say sham.

    http://www.marketwire.com/press-release/elsevier-business-intelligence-ebi-host-investor-conference-in3-medical-device-360-boston-1654881.htm.

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  25. When you work at Nuvasive..you become angry;
    when you become angry..you go to the gyn for some racketball;
    when you play racketball..you get injured;
    when you get injured..you get a patch on your eye;
    when you get a patch on your eye..thugs think you're tough;
    when thugs think you're tough..they want to find out how tough,
    and you end up in a roadside ditch.
    Don't end up in a roadside ditch..don't work at Nuvasive!

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  26. Jim Enright is the biggest idiot I've ever seen in spine. Help ban Enright or aka Enron!

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  27. Anything more on ATEC? Selling to DJO?

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  28. We will put out our feelers!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

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  29. Many engineers have left for DJO from Alphatec and the new CEO is from DJO. No spine line either. Now the PODs possible clean up...

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  30. Cappaccino is a hoar and so is his pretty girlfriend, I mean Rep....how many places will he land before the industry flat out boots him for being a spine prostitute. Unbelievable!

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  31. Yes and they should be brought to justice. Fraud is fraud.

    This is the 21st century and it is astounding that back in 1955 they were implanting lucite pegs as artificial disks with great results. There is one reason for why the US does not have a flexible spacer to implant between vertabra. It would work too well.

    When you get a chance. Report on DiscoGel.

    BTW, I have a disk design that beats them all and I am not even an engineer. I can't get anyone to even look at it.

    Corporatism sucks.

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