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BlackBerry's latest delay could lead to lawsuits

BlackBerry's latest delay could lead to lawsuits

By Ian Austen, The New York Times | Updated: 9 July 2012 16:05 IST

A friendly crowd is unlikely to greet Thorsten Heins on Tuesday, when he makes his first appearance as chief executive at the annual meeting of Research in Motion.

Shares in the BlackBerry maker have fallen by about 95 percent from their peak in mid-2008. And last month, not only did RIM post a $518 million quarterly loss, but it also surprised investors by announcing that a new line of phones critical to its future would again be delayed.

But the annual meeting may not be the only forum for shareholders to vent their displeasure. Several securities law experts and some investors say the delay in the BlackBerry 10, and overly optimistic remarks as recently as last week by Mr. Heins since he took over the top job in January, may also make RIM the target of shareholder lawsuits.

"They're going to get sued and they should get sued because I think a closer look at the record is likely to unearth knowing and willful misrepresentation," said Jean-Louis Gassée, the former president of Apple's products division and the founder of the software maker Be, who is now a venture capitalist and blogger in Palo Alto, Calif. "When the C.E.O. says there's nothing wrong with the company as it is, it's not cautious, it doesn't make sense."

After disappointing shareholders in June, Mr. Heins gave a radio interview last week, wrote opinion pieces for two Canadian newspapers and took online questions from visitors to The Globe and Mail's Web site. As part of a public relations offensive, speaking with the Canadian Broadcasting Corporation, he forecast a sunny future for Research in Motion by saying, "There's nothing wrong with the company as it exists right now" and denying that RIM was, as some investors believe, in a death spiral.

In a statement, RIM rejected any suggestion that the company had misled investors. "RIM is well aware of its disclosure obligations under applicable securities laws and is committed to providing a high level of transparency, as evidenced by RIM's decision to issue an interim business update on May 29, 2012, to alert shareholders that it expected to report an operating loss," the company said.

While securities laws vary in Canada, where RIM is based, and the United States, where its stock is also traded, companies are generally required to report promptly any developments that may significantly alter their financial state. The BlackBerry 10 delay is unquestionably such a change, Canadian and American law experts said.

Any shareholder class action would also have to show that Mr. Heins or others within RIM knew that a delay was likely or a strong possibility when he was publicly boasting about the product's progress and promising on-time delivery.

The legal experts said repeated statements earlier this year by Mr. Heins and other senior RIM executives - that the BlackBerry 10 line of phones would arrive in stores as planned by the end of this year - could support this claim.

For example, on May 1, at a conference for app developers in Orlando, Fla., Mr. Heins unveiled an incomplete prototype BlackBerry 10 phone and, along with other RIM employees, demonstrated features of its operating system.

During the presentation, Mr. Heins repeatedly and enthusiastically told the audience that the new product would be out by the end of this year.

"Every day I get questions about the progress on BlackBerry 10," he said. "I appreciate all of the interest on our next-generation platform and I promise, I promise to you that the whole company is laser-focused on delivering on time and exceeding your expectation."

He added at another point, "We're making good progress, and I'm committed to sharing the progress with everyone right up until the launch later this year."

Similar sentiments were offered at other developer sessions by other RIM executives over the following weeks.

Exactly what changed between the beginning of May and the end of June is unclear. Nor is it apparent when Mr. Heins decided that the delay would be necessary.

During a conference call to discuss the earnings, Mr. Heins said the volume of software that must be handled to integrate all of BlackBerry 10's components "has proved to be more time-consuming than anticipated."

Even without the delay, many financial analysts were concerned that the BlackBerry 10 was already too late to market. The delay means that it will be facing off against new and improved phones and operating systems from Apple, Microsoft and Google.

"There's a high risk of litigation here," said James D. Cox, a law professor at Duke. "The outcome of the litigation would be hard to predict."

Richard McLaren, a law professor at the University of Western Ontario, said that in Canada companies are required to immediately disclose major changes in their operations.

"When you've used language like 'laser focused on coming in on time,' you've really raised

Professor Cox said RIM might be able to avoid shareholder litigation for another reason: the company is in bad shape. Many lawyers, he said, may be unwilling to embark upon such a case because there is no guarantee that RIM would be around when it was resolved.

Also, untangling share price drops caused by the delay in the BlackBerry 10 from the company's other problems would be difficult, he said.

Anita Anand, a law professor at the University of Toronto who specializes in investor issues, said that it might be unnecessary to challenge RIM's disclosure through the courts.

"If there's a punishment to be had here, it's already in the making," she said. "The market speaks before any adjudication body."

The new phones, which RIM hopes will again make BlackBerrys desirable, were supposed to be on the market by the beginning of this year at the latest. But the company's former co-chief executives put off that release because, they said, the company needed to perfect the new, more advanced electronics used in the new models.

That delay is already part of one class action against the company. In securities filings, RIM has said that lawsuit is without merit.

Unlike Samsung, Nokia and other competitors that use smartphone operating systems from Google and Microsoft, RIM began creating its own about two years ago. But Mr. Gassée said the effort was already too late.

To jump-start the process, RIM bought QNX Software Systems, which is based here and which has long provided operating systems used in everything from automobiles to nuclear power stations. But Mr. Gassée said that the actual operating system, which essentially parcels out computing tasks and allocates the computer's resources, was the smallest part of developing BlackBerry 10.

The heavy lifting, he said, came from creating the complex software that enables apps to use the operating system and the phone's hardware features. He estimated that Apple had spent about four years developing iOS, the operating system for the iPhone, before bringing it to market.

Mr. Heins's public relations campaign last week to talk up the company's fortunes was widely seen as being, at best, overly optimistic, but unlikely to create legal headaches for RIM, experts said.

In its statement, RIM said Mr. Heins was trying to outline the changes he had made over the last six months to turn RIM around.

"His optimism stems from the fact that, unlike many commentators or analysts, he has actually seen the progress being made on BlackBerry 10 and is confident in its ability to play a significant role in the future of mobile computing," the company said.

Jill E. Fisch, a professor at the University of Pennsylvania Law School, said the remarks were not surprising, comparing them to the talk of a used-car salesman.

"Everybody expects the chief executive to put an optimistic spin on the company," she said. "To be fair, we all know that RIM is a struggling company."

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