WASHINGTON -- Two top accounting firms agreed last week to settle charges brought by buyers of First Humanics Corp. nursing home bonds that they wrote fraudulent feasibility studies for millions of dollars of troubled projects nationwide, according to lawyers representing the bondhlders.
In the settlement, Deloitte & Touche and Price Waterhouse, along with a trustee bank, an interior designer for the projects, and another individual, agreed to pay bondholders a total of $28 million in connection with more than 20 deals, according to David Guin, a lawyer with the Birmingham, Ala.-based law firm of Ritchie & Rediker, which is representing bondholders.
The agreements with the accounting firms essentially close one of the most contentious and high-profile legal battles to date involving the sale of tax-exempt bonds.
So far, over 60 defendants in the two-year-old case - including underwriters, lawyers, auditors, trustees, and feasibility consultants - have agreed to pay a total of $45 million in the settlements.
The deals were developed largely by Kansas City, Mo.-based First Humanics, headed by developer Lee F.Sutliffe, who recently agreed to a judgment requiring him to pay $1 million, and later by International Elderly Care, another nursing home company created by Mr. Sutliffe.
Attorneys for the accounting firms and Mr. Sutliffe were unavailable for comment.
The only remaining defendants in the case are a third accounting firm that conducted feasibility studies for two of the projects and some individual officers of International Elderly Care, also known as Son of Humanics.
But it remains unclear to what extent bondholders will be made whole following the case. A brigade of lawyers and a high-technology trial could siphon as much as 20% to 25% from the settlement for lawyers fees.
It is conceivable that if the financial condition of the nursing homes improves, bondholders could retrieve 60 or more cents on the dollar, Mr. Guin, the bondholders' lawyer, said. Bondholders recently formed a company to run 18 of the 21 First Humanics projects still in operation.
"It's difficult to place a precise figure on the damages suffered by the people who own bonds in the 18 homes still operating," Mr. Guin said. "It's an extraordinary recovery [so far]: 18 of the 21 First Humanics homes are still in operation. It's conceivable that they will start making interest payments or that that bonds will be refunded.
"What we do know is that there is $23 million in lost interest, and this settlement is essentially double that."
Investors charged that Mr. Sutliffe orchestrated a "Ponzi" scheme, generating fees and proceeds from new bond issuers that were used to prop up failing issues elsewhere in his nursing home empire. The firm filed for protection from its creditors on September 1989 after defaulting on $82 million of nonrated industrial development bonds.
Touche prepared the feasibility studies for 12 of 21 First Humanics bond deals and Price Waterhouse did feasibility studies for nine First Humanics deals and three developed by International Elderly Care.
Lawyers for investors said recently that the Touche portion of the case is one of the few municipal bond default actions ever to go to jury trial. An increase in municipal investors lawsuits is likely, as a result, one industry observer predicted.
But others say the future for investor litigation is heavily clouded by the Supreme Court's controversial decision a year ago in Lampf v. Gilbertson. The court limited the time investors have to file fraud cases in federal court - a ruling that temporarily knocked out the central claim in the First Humanics case.
Congress late last year overturned the ruling's application to cases pending at the time of the Lampf ruling, which eventually led to the reinstatement of the anti-fraud claim in the First Humanics case. But Congress delayed consideration of legislation that would overturn the ruling for future cases. And an aide to Sen. Richard Bryan, D-Nev., who pushed legislation to overturn Lampf, said his boss has no plans at present to reintroduce a bill.
"We fixed the most egregious part of Lampf and we would like to fix the prospective part," said Andrew Vermilye, legislative director for Sen. Bryan." But seeing the battle that lies ahead, it might be difficult.