The amended class-action suit alleges that through its stock offering materials, Lehman failed to disclose that it used Repo 105 transactions to temporarily reduce its net leverage ratio at the end of each quarter, that the Repo 105 transactions "had the effect of materially understating" the firm's liquidity risk, that Lehman disregarded its own risk limits and that the firm overstated the value of its commercial real estate assets. These assets included the $22-billion acquisition of Archstone-Smith with Tishman Speyer Properties in 2007—an acquisition that put Lehman "clearly in excess of its established risk limits," the suit alleges, quoting the report by bankruptcy examiner Anton Valukas.

In the commercial real estate sphere, Lehman failed to disclose "adequately or meaningfully" its risk concentrations in "highly risky Alt-A loans, illiquid commercial real estate assets and leveraged loan commitments," the lawsuit alleges. "In addition, the offering materials failed to disclose that Lehman had heavy concentrations of illiquid assets, such as residential and commercial real estate with deteriorating values."

Between the end of its fiscal 2006 and the end of its fiscal 2007, "Lehman increased its global CRE assets by more than 90%, from $28.9 billion to $55.2 billion," according to the complaint. Yet by July '07, the company's personnel "had already recognized that the market for placing investments backed by commercial real estate was 'virtually closed' and that the leveraged loan market had shut down."

Nevertheless, the suit alleges, Lehman by that point had already committed to financing several large commercial real estate deals that closed in October and November '07, including the Archstone acquisition. "Indeed, the company's involvement in Archstone and several other real estate bridge equity deals was so enormous that it dwarfed Lehman's entire preexisting real estate book."

As Lehman's financial condition declined, the company relied increasingly on Repo 105 transactions—and E&Y ought to have questioned this practice, the suit alleges. The complaint quotes Valukas' report as stating, "Ernst & Young knew or should have known that the notes to the financial statements were false and misleading because, among other things, those notes describe all repos as 'financings,' which Ernst & Young knew was not the case, and those notes did not disclose the Repo 105 transactions."

E&Y's spokesman disputes the complaint's allegations. "We are confident in our ability to successfully defend ourselves against claims arising from our work with Lehman Brothers," the spokesman tells GlobeSt.com. "Throughout our period as the auditor of Lehman, we firmly believe our work met all applicable professional standards, applying the rules that existed at the time."

Lehman's bankruptcy, the E&Y spokesman adds, "was the result of a series of unprecedented adverse events in the financial markets. As the bankruptcy examiner has acknowledged, Lehman's bankruptcy was caused by a collapse in its liquidity, which in turn was caused by declining asset values and loss of market confidence in Lehman. It was not caused by any accounting issues."

The suit, which names Lehman officers including former CEO Richard Fuld Jr. as defendants, was originally filed in '08 by a group of institutional investors including the Alameda County Employees' Retirement Association, Government of Guam Retirement Fund, Northern Ireland Local Government Officers' Superannuation Committee, City of Edinburgh Council as Administering Authority of the Lothian Pension Fund and Operating Engineers Local 3 Trust Fund. It has since been joined by numerous other investors.

The amended suit seeks damages including interest and requests a jury trial. Calls to the defendants' legal team were not returned by deadline.

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Paul Bubny

Paul Bubny is managing editor of Real Estate Forum and GlobeSt.com. He has been reporting on business since 1988 and on commercial real estate since 2007. He is based at ALM Real Estate Media Group's offices in New York City.