I have long thought that there was more than just a kernel of truth to Bloomberg columnist Matt Levine’s oft-quoted quip that “everything everywhere is securities fraud.” Just the same, there are certain circumstances that I have had a hard time seeing as leading to a securities fraud lawsuit. Like, for instance, the migrant crisis at the U.S.-Mexican border. The massive influx of migrants into the U.S. is a serious humanitarian and political emergency. But how on earth could the migrant crisis lead to a securities suit? Well, as it turns out, a securities suit filed last week in the federal court in Manhattan may just answer that question.

Background

In recent months, there has been an unprecedented surge of migrants at the U.S-Mexican border.  The surge has not only represented a significant problem in the states and communities immediately adjacent to the border, but increasingly in Northern cities as well, including New York.   The sheer number of migrants arriving in New York is putting an enormous strain on the city’s services.

In Spring 2023, New York City Mayor Eric Adams announced a new policy calling for the city to relocate migrants outside of the city’s five boroughs. To oversee the program, New York City awarded a company called DocGo a no-bid $432 million contract. DocGo offers mobile health and medical transportation services for various health care providers in the U.S. and the U.K. The city’s contract with DocGo required the company to house migrants and to provide them with services including medical care, food, and transportation.

Within months of the contract award, articles began appearing in the media reporting difficulties DocGo was having with the New York City migrant relocation efforts. News articles specifically raised concerns about the company’s treatment of migrant individuals. In August 2023, the Albany Times Union published an article reporting that the New York Attorney General had opened an investigation into DocGo. Then on September 6, 2023, the New York City Comptroller announced that his office was declining to approve the relocation contract, citing “numerous outstanding concerns” and lack of budget detail to justify the $432 million contract value.

Finally, on September 14, 2023, the Albany Times Union published an article reporting that DocGo’s CEO Anthony Capone had falsified portions of his professional biography. The next day the company announced the CEO’s resignation. Finally, on September 18, 2023, the New York City Comptroller announced an audit of DocGo’s operations and invoices, noting “concerns” about the selection of the vendor. The subsequently filed securities lawsuit complaint alleges that with each of the publications of negative news, the company’s share price declined.

The Lawsuit

On October 27, 2023, a plaintiff shareholder filed a securities class action lawsuit in the Southern District of New York against DocGo and certain of its directors and officers. The complaint purports to be filed on behalf of a class of investors who purchased DocGo securities between November 8, 2022, and September 17, 2023. A copy of the complaint can be found here.

The complaint alleges that during the class period, the defendants made false or misleading statements or failed to disclose that: “(i) DocGo’s executive hiring processes were inadequate to fully review and vet the professional and academic backgrounds of job candidates; (ii) the foregoing increased the likelihood of disruptive executive turnover; (iii) contrary to representations to investors, DocGo had overstated the efficacy of its mobile health and medical transportation services, the very services contemplated by the Relocation Contract; (iv) all of the foregoing, once revealed, was likely to subject DocGo to significant reputational and/or regulatory scrutiny that would negatively impact the Company’s financial position and/or prospects; and (v) as a result, the Company’s financial statements were materially false and misleading at all relevant times.”

The complaint alleges that the defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. The complaint seeks to recover damages on behalf of the plaintiff class.

Discussion

There are those who might argue that it was not the migrant crisis itself that directly led to this lawsuit. The CEO’s resume falsification obviously had nothing to do with the migrant crisis and the company’s allegedly poor execution of the no-bid contract arguably represents its own sequence of events. However, it was the migrant crisis that created the urgency to award a no-bid contract, and it was the scale of the crisis that undoubtedly caused (or at least contributed to) the company’s allegedly poor services delivery. The migrant crisis created the context within which the events alleged in the complaint arose.

I have often thought that many securities class action lawsuit complaints have a “ripped from the headlines” feel. There is no doubt that the atmosphere surrounding circumstances that are prominent in the news headlines provides context that amplify misconduct allegations. And while this lawsuit is not “about” the migrant crisis, the circumstance surrounding the crisis create the context for the lawsuit and magnify the apparent significance of the allegations about the company.

And while it may or may not be true as Matt Levine said that “everything everywhere is securities fraud,” it certainly is the case that a wide variety of circumstances can translate into securities litigation, including even the current migrant crisis.

As for the allegation that DocGo’s CEO falsified his credentials, it is worth noting that allegations of credential falsification have a long and varied history in the annals of securities litigation, as I have noted in the past. The current allegations surrounding Congressman George Santos shows that credential falsification is a perennial issue.

In reviewing my prior posts about executive credential falsifications and securities litigation, I unearthed an essay I wrote way back in 2008 about the great tradition of credential falsification in literature and history. Because the essay touches on a host of subjects that are always timely, I reproduce a portion of the essay below:

Identity Misrepresentation: A Short History: The problems of credential inflation and résumé falsification are not limited to the corporate world. There have been numerous recent examples in government, academia and elsewhere. Many readers will recall, among the more notable recent examples, the tale of George O’Leary, who was fired five days after being hired as Notre Dame’s football coach, after it was discovered that he had falsely claimed to have a master’s degree in education and to have played college football for three years. The Wall Street Journal has compiled an extensive list of other recent examples, here.

There is a temptation to classify these deceptive practices as just another byproduct of our iniquitous era of botox and breast implants, where packaging is valued above substance and identity represents not things as they are but as people can be made to believe them to be.

Identity misrepresentation is not, however, unique to our time. These kinds of impostures go back as far as biblical times, where, for example, Jacob’s mother disguised him as his twin brother Esau so that Jacob would receive their father’s blessing, intended for Esau.

Similarly, history is full of royal pretenders and alleged monarchs. During the reign of England’s Henry VII, there were actually two pretenders. The first, Lambert Simnel, a commoner who was crowned by Yorkist supporters as the supposed “King Edward VI,” and Perkin Warbeck, who pretended to the First Duke of York and the younger son of Edward IV. And of course, there was Anna Anderson, who was claimed to be the Grand Duchess Anastasia, youngest daughter of Tsar Nicholas II.

Literature is full of examples as well. These include the numerous instances of gender disguise in many of Shakespeare’s play, such occurs in Twelfth Night and As You Like It. More recent examples of gender disguise occur in Tootsie and Yentl.

One of the more entertaining examples of credential misrepresentation occurs in one of The D&O Diary’s favorite books, The Count of Monte Cristo, by Alexandre Dumas, in which Edmond Dantès dupes others into believing him to be a Count so that he can revenge himself on his enemies and tormentors.

Identity, Ambition and the Need for Affirmation: The most extensive literary examination of the interplay between the portrayal and the reality of identity may be F. Scott Fitzgerald’s The Great Gatsby. At one level, the book is about nothing more than Nick Carraway’s effort to understand who Gatsby really is.

The sycophants and partygoers that surround Gatsby at the book’s outset aren’t quite certain, but they suspect that he may be a bootlegger and may even have killed a man. Gatsby tells Nick an elaborate tale of having been educated at Oxford and then having inherited the family fortune. But that Gatsby’s persona is a façade is so obvious that one of the uninvited partygoers at Gatsby’s house is astonished to learn that the volumes lining the shelves in Gatsby’s library are actually real books.

Gatsby’s self-portrayal is an elaborate invention, a manufactured identity that, as Nick puts it, sprang from Gatsby’s “Platonic conception of himself.” Gatsby’s self-contrivance is all part of his involved effort to prove himself worthy of Daisy Buchanan. The origins of Gatsby’s obsession with Daisy are perhaps best understood in his explanation that Daisy’s voice is so fascinating because it is “full of money.”

Driven by his obsession for Daisy, Gatsby (born James Gatz) attempts to recreate himself within an intricate structure of credential inflation. The Oxford education proves to have been only a five-month stint following the war. His wealth, supposedly inherited, was actually acquired by means that Gatsby himself is unwilling to discuss.

Gatsby’s determined striving helps explain the credential inflation to which contemporary corporate individuals seem particularly prey. Ambition and desire, combined with a desperate need for affirmation or acceptance, drives these individuals to represent themselves as improved versions of themselves, or perhaps even as somebody different altogether.

In any event, it is clear that when inflated credentials are involved, it may be indispensable to make certain that the books are real.

The Ultimate Inflated Credential: Divinity: Among the most outrageous identity misrepresentations in literature is that of Danny Dravot who, in Rudyard Kipling’s The Man Who Would Be King, is all too willing to be taken by the people of Kafiristan as a god, based on their delusion that he is the son of Alexander the Great. It all ends very badly for Danny and his sidekick, Peachey Carnahan, when the Kafiris discover that Danny is “Not god, not devil, but man!”

The story was made into a memorable 1975 movie (now somewhat disturbing for its colonialist presumptions) starring Michael Caine and Sean Connery.