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Kevin E.T. Cunningham, Jr.

Associate

D   610.822.0253

Kevin Cunningham is an associate of the Firm, and focuses his practice in securities litigation. Kevin is a graduate of Temple University Beasley School of Law.  Prior to joining the Firm, Kevin served as a law clerk for the Hon. Judge Paula Dow of the New Jersey Superior Court, Burlington County - Chancery Division.  Kevin also served as a law clerk to the Hon. Brian A. Jackson of the United States District Court for the Middle District of Louisiana. Kevin is licensed to practice in Pennsylvania and the District of Columbia. 

Memberships

  • Pennsylvania Bar Association
  • American Bar association

Awards/Rankings

  • Order of the Barristers Award - 2017
  • First Place and Best Oral Advocate - 2016 Philadelphia Region Moot Court Competition
Experience

Ongoing Cases

  • CASE CAPTION Marder v. Campbell Soup Company et al
    COURT United States District Court for the District of New Jersey
    CASE NUMBER 1:2018-cv-14385 (NLH)
    JUDGE Honorable Noel L. Hillman
    PLAINTIFF Oklahoma Firefighters Pension and Retirement System
    DEFENDANTS Campbell Soup Company, , Denise Morrison, and Anthony DiSilvestro
    CLASS PERIOD August 31, 2017 through May 17, 2018

    This securities fraud class action case arises out of Defendants’ materially misleading statements and omissions regarding Campbell’s ability to deliver “profitable growth” in its fresh foods division, Campbell Fresh (“C-Fresh”), which included the Bolthouse Farms brand acquired by Campbell for $1.55 billion in 2012.

    During the Class Period, Defendants consistently provided fiscal 2018 (“FY 2018”) growth projections for C-Fresh, including touting “product innovations” in the Bolthouse beverage business that Defendants claimed would drive profitability in C-Fresh. However, adverse facts known to Defendants, but concealed from investors, showed that growth in C-Fresh was unrealistic and unattainable.

    In reality, because of a nationwide beverage recall and associated production declines, leading into FY 2018 C-Fresh lost critical shelf space when its largest supermarket chain customers, including at least Target, Walmart, Kroger, and Albertsons, excluded Bolthouse products from their “Modular Resets,” which are infrequent periodic shelf space allocations made by retailers to determine which products they will carry on store shelves until the next Modular Reset occurs, and replaced Bolthouse beverages with competitor products including Naked Juice (PepsiCo.), Odwalla Juice (Coca-Cola), Suja Juice and GT Kombucha. The exclusion of Bolthouse products from the Modular Resets foreclosed valuable shelf space at, and associated revenues from, at least Target, Walmart, Kroger, and Albertsons, and made sales growth at these customers impossible in FY 2018.

    Oklahoma Firefighters filed a 124-page amended complaint in January 2021 on behalf of a putative class of investors alleging that Campbell and its former executives, including CEO Denise Morrison and CFO Anthony DiSilvestro, violated Section 10(b) of the Securities Exchange Act by making false and misleading statements and concealing material facts about Campbell’s ability to deliver “profitable growth” in C-Fresh and violated Item 303 of Regulation S-K by failing to disclose known material adverse trends which increased the risk of an impairment charge in the Bolthouse beverage business. As alleged, following the revelation that Campbell was taking a $619 million non-cash impairment charge on C-Fresh, with $514 million attributable to the Beverage and Salad Dressing unit, Campbell’s stock price fell precipitously, causing significant losses and damages to the Company’s investors.

    Defendants’ motion to dismiss is fully briefed and pending before the Honorable Noel L. Hillman.

  •   CASE CAPTION Sjunde AP-Fonden, et al., v. General Electric Company, et al.
      COURT United States District Court for the Southern District of New York
      CASE NUMBER 1:17-cv-08457-JMF
      JUDGE Honorable Jesse M. Furman
      PLAINTIFF  Sjunde AP-Fonden and The Cleveland Bakers and Teamsters Pension Fund
      DEFENDANTS General Electric Company and Jeffrey S. Bornstein
      CLASS PERIOD March 2, 2015 through January 23, 2018, inclusive

    This securities fraud class action case arises out of alleged misrepresentations made by General Electric (“GE”) and its former Chief Financial Officer, Jeffrey S. Bornstein (together, “Defendants”), regarding the use of factoring to conceal cash flow problems that existed within GE Power between March 2, 2015, and January 24, 2018 (the “Class Period”).

    GE Power is the largest business in GE’s Industrials operating segment. The segment constructs and sells power plants, generators, and turbines, and also services such assets through long term service agreements (“LTSAs”). In the years leading up to the Class Period, as global demand for traditional power waned, so too did GE’s sales of gas turbines and its customer’s utilization of existing GE-serviced equipment.  These declines drove down GE Power’s earnings under its LTSAs associated with that equipment.  This was because GE could only collect cash from customers when certain utilization levels were achieved or upon some occurrence within the LTSA, such as significant service work.

    Plaintiffs allege that in an attempt to make up for these lost earnings, GE modified existing LTSAs to increase its profit margin and then utilized an accounting technique known as a “cumulative catch-up adjustment” to book immediate profits based on that higher margin.  In most instances, GE recorded those cumulative catch-up earnings on its income statement long before it could actually invoice customers and collect cash under those agreements. This contributed to a growing gap between GE’s recorded non-cash revenues (or “Contract Assets”) and its industrial cash flows from operating activities (“Industrial CFOA”).  

    In order to conceal this increasing disparity, Plaintiffs allege that GE increased its reliance on receivables factoring (i.e., selling future receivables, including on LTSAs, to GE Capital or third parties for immediate cash).  Through factoring, GE pulled forward future cash flows and, in light of the steep concessions it often agreed to in order to factor a receivable, traded away future revenues for immediate cash.  In stark contrast to the true state of affairs within GE Power—and in violation of Item 303 of Regulation S-K—GE’s Class Period financial statements did not disclose material facts regarding GE’s factoring practices, the true extent of the cash flow problems that GE was attempting to conceal through receivables factoring, or the risks associated with GE’s reliance on factoring.  Rather, Defendants affirmatively misled investors about the purpose of the Company’s factoring practices, claiming that such practices were aimed at managing credit risk, not liquidity

    Eventually, however, GE could no longer rely on this unsustainable practice to conceal its weak Industrial cash flows.  As the truth was gradually revealed to investors—in the form of, among other things, disclosures of poor Industrial cash flows, massive reductions in Industrial CFOA guidance, and a dividend cut that was attributable in part to weaker-than-expected Industrial cash flows—GE’s stock price plummeted, causing substantial harm to Plaintiffs and the Class. 

    In January 2021, the Court sustained Plaintiffs’ claims based on allegations that GE failed to disclose material facts relating its practice of and reliance on factoring, in violation of Item 303, and affirmatively misled investors about the purpose of GE’s factoring practices.  Fact discovery in the case is ongoing and is currently scheduled to conclude in February 2022.

  •   CASE CAPTION          In re Ideanomics, Inc. Securities Litigation
      COURT United States District Court for the Southern District of New York
      CASE NUMBER 1:20-cv-04944-GBD
      JUDGE The Honorable George B. Daniels
      PLAINTIFF Rene Aghajanian
      DEFENDANTS Ideanomics, Inc. (Ideanomics or “the Company”), Alfred Poor, Bruno Wu, Connor McCarthy, and Anthony Sklar (“Individual Defendants”
      CLASS PERIOD March 20, 2020 – June 25, 2020

    This securities fraud class action arises out of Defendants’ misrepresentations and omissions concerning the existence and operations of Ideanomics’ flagship electric vehicle (EV) sales hub, dubbed the “Mobile Energy Global (MEG) Center.” During the class period, Defendants issued a deluge of press releases, and made numerous statements on interviews and earnings calls promoting the MEG Center as a one million square foot facility focused on the sale and conversion of EV fleet vehicles.  Defendants also made statements touting the volume of sales attributable to the MEG Center and the associated MEG business unit, claiming that it would account for the majority of Ideanomics’ revenues in 2020.  Concurrent with their promotion of the MEG Center, Defendants entered into numerous equity financing arrangements with a third party to retire existing, underwater, equity debt financing extended by insiders to Ideanomics, including by affiliated companies to Defendant Wu.  These financiers received Ideanomics stock at discounted rates in exchange for loans to the Company.  As Ideonomic’s stock price popped, those shares were traded into the market. 

    On June 26, 2020, in response to a report issued by market analysts the previous day refuting Ideanomics’ claims concerning the existence of the MEG Center and Ideanomic’s presence at the site, Ideanomics admitted that the MEG Center was only a quarter of the size originally claimed, and now claimed that it was supposedly part of a pre-existing used vehicle market, being utilized by Ideanomics through a partnership with the city of Qingdao, China.  Ideanomics claimed to have committed to rename the supposed Qingdao facility as the MEG Center at a later date, thereby further acknowledging that despite what was said in numerous interviews and press releases, there was no 1one million square foot MEG Center at the time Defendants made their inflationary statements to the market.  Plaintiff’s own post-class period investigation on the ground in China has revealed no MEG Center at the site that Defendants claimed a million square foot operation already existed, that the site is occupied by numerous other businesses, and that hastily erected promotional banners inside and outside of the Qingdao facility still claim that the MEG Center is “coming soon.”

    Lead Plaintiff filed an amended complaint on February 26, 2021 alleging violations of Section 10(b) of the Securities Exchange Act against all Defendants, and violations of Section 20(a) of the Exchange Act against the Individual Defendants. As alleged, Defendants’ June 26, 2020 admissions following the previous day’s analyst reports caused Ideanomics’ per-share share price to drop from $3.09 per share to $1.46, a 53% decline.

    Briefing on Defendants’ motion to dismiss the amended complaint was completed on July 15, 2021. Oral argument for this matter was held on October 12, 2021, before the Hon. George B. Daniels of the United States District Court for the Southern District of New York.

  • CASE CAPTION            In re re Kraft Heinz Securities Litigation
    COURT United States District Court for the Northern District of Illinois
    CASE NUMBER 1:19-cv-01339
    JUDGE Honorable Robert M. Dow, Jr.
    PLAINTIFF Union Asset Management Holding AG, Sjunde Ap-Fonden, and Booker Enterprises Pty Ltd.
    DEFENDANTS The Kraft Heinz Company (“Kraft” or the “Company”), 3G Capital Partners, 3G Capital, Inc., 3G Global Food Holdings, L.P., 3G Global Food Holdings GP LP, 3G Capital Partners LP, 3G Capital Partners II LP, 3G Capital Partners Ltd., Bernardo Hees, Paulo Basilio, David Knopf, Alexandre Behring, George Zoghbi, and Rafael Oliveira
    CLASS PERIOD November 5, 2015 through August 7, 2019, inclusive

    This securities fraud class action case arises out Defendants’ misstatements regarding the Company’s financial position, including the carrying value of Kraft Heinz’s assets, the sustainability of the Company’s margins, and the success of recent cost-cutting strategies by Kraft Heinz.

    Kraft Heinz is one of the world’s largest food and beverage manufacturer and produces well-known brands including Kraft, Heinz, Oscar Mayer, Jell-O, Maxwell House, and Velveeta. The Company was formed as the result of the 2015 merger between Kraft Foods Group, Inc. and H.J. Heinz Holding Corporation. That merger was orchestrated by the private equity firm 3G Capital (“3G”) and Berkshire Hathaway with the intention of wringing out excess costs from the legacy companies. 3G is particularly well-known for its strategy of buying mature companies with relatively slower growth and then cutting costs using “zero-based budgeting,” in which the budget for every expenditure begins at $0 with increases being justified during every period.

    Plaintiffs allege that Kraft misrepresented the carrying value of its assets, sustainability of its margins, and the success of the Company’s cost-cutting strategy in the wake of the 2015 merger. During the time that Kraft was making these misrepresentations and artificially inflating its stock price, Kraft’s private equity sponsor, 3G Capital, sold $1.2 billion worth of Kraft stock.

    On February 21, 2019, Kraft announced that it was forced to take a goodwill charge of $15.4 billion to write-down the value of the Kraft and Oscar Mayer brands—one of the largest goodwill impairment charges taken by any company since the financial crisis. In connection with the charge, Kraft also announced that it would cut its dividend by 36% and incur a $12.6 billion loss for the fourth quarter of 2018. That loss was driven not only by Kraft’s write-down, but also by plunging margins and lower pricing throughout Kraft’s core business. In response, analysts immediately criticized the Company for concealing and “push[ing] forward” the “bad news” and characterized the Company’s industry-leading margins as a “façade.”

    Heightening investor concerns, Kraft also revealed that it received a subpoena from the U.S. Securities and Exchange Commission in the same quarter it determined to take this write-down and was conducting an internal investigation relating to the Company’s side-agreements with vendors in its procurement division. Because of this subpoena and internal investigation, Kraft was also forced to take a separate $25 million charge relating to its accounting practices. Plaintiffs allege that because of the Company’s misrepresentations, the price of Kraft’s shares traded at artificially-inflated levels during the Class Period.

    Plaintiffs’ complaint was filed on January 6, 2020. Defendants’ filed their motions to dismiss on March 6, 2020. Plaintiffs moved to amend their complaint based on new information regarding Kraft’s internal EBITDA projections, and filed their amended complaint on August 14, 2020. On August 11, 2021, The Honorable Robert M. Dow, Jr. sustained Plaintiffs’ complaint in a 5-page published opinion. The case is now in discovery.

Publications

Kevin Eugene Thomas Cunningham Jr., Fine China? A Look into Chinese Intellectual Property Infringement, Treaty Obligations, and International Responses 99 J. Pat. & Trademark Off. Socy. 279 (2017).

Kevin Eugene Thomas Cunningham Jr., Two's Company: The Rise in Chinese PCT Participation and What it Means for Japan 99 J. Pat. & Trademark Off. Socy. 670 (2017).