For all of its potential, TASER (Nasdaq: TASR ) is a troubling stock some days. Poor disclosure tops my list of concerns, like when the stun-gun maker let the AP break a story about being late with a regulatory filing.
I'll understand if you think I'm being too harsh. The truth is, I am hard on TASER because it's a Motley Fool Rule Breakers pick -- I'm writing on behalf of investors, the real owners of the company. Owners deserve more than the facts -- they deserve the truth. TASER, unfortunately, hasn't exactly been forthcoming.
A curious Fool connects the dots
Let's begin with some background. TASER President Tom Smith graciously stopped by Fool headquarters on June 28 to show off the new TASER Cam device. He also agreed to a sit-down video interview with Fool co-founder David Gardner. Many topics were discussed, including the numerous lawsuits facing the company and its string of recent victories. Smith was clear in describing TASER's desire to defend itself:
We are going to stand for what we believe in. [It's] maybe a little more expensive than settling, but we believe in doing the right thing, and we don't want to set a precedent that we are just going to write a check and make people go away when we know what we are doing is saving lives and we have the science behind us.
Frankly, Smith's comments struck me as curious, for it conflicted with information I had received by email from a research assistant for PETA, otherwise known as the People for the Ethical Treatment of Animals, on July 7. Attached were several court documents that described a complaint involving Ohio police officer Tina Stevens, who claims to have hurt her arm and shoulder during a TASER training exercise.
The head fake
That may not sound like much. And it may not be. I just find it curious that the order of dismissal says the case ended because of a settlement between the two parties. After all, Smith's comments to David portray TASER as intractable on the subject of settlements.
Nevertheless, the mere act of settling isn't terrible. Management has a fiduciary responsibility to protect the company. Settling to avoid extraordinary legal costs is, therefore, in the interests of shareholders.
I'm less inclined to believe that using the PR machine to try and color settlements as victories is as beneficial, even if the aim is to discourage more legal filings. That's what seems to have occurred in the Stevens case. Witness this press release, dated July 6:
TASER International ... announced that the U.S. District Court for the Southern District of Ohio, Eastern Division at Columbus, entered an order dismissing the product liability lawsuit filed by Tina Stevens against TASER International, Inc.
Technically, that's absolutely correct. But it's also the worst kind of head-fake; the suit wasn't dismissed on the merits, but instead because of a settlement -- presumably financial in nature. Calls to attorneys for TASER and Ms. Stevens yielded little in the way of comments, though Lynnette Ballato, TASER's lead counsel in the case, said, "The entry says what the entry says." In other words, a settlement is a settlement.
Ms. Stevens is not alone
And there's been more than one. TASER General Counsel Doug Klint confirmed as much during last week's earnings call: "We [TASER] have reached an agreement to dismiss in a small number of cases for nuisance value." He went on to admit that TASER's costs to settle equaled less than 2.2% of the $8 million the company has spent in legal fees over the past six quarters, or roughly $176,000.
Klint wouldn't disclose the identities of the plaintiffs with whom TASER has settled, though Stevens is clearly one. Furthermore, Klint said in an interview on July 19 that TASER first began settling claims between Q4 of 2005 and Q1 of this year. Court documents and interviews conducted by The Motley Fool reveal at least two more settlements in the timeline Klint suggests, followed by equally misleading press releases.
On Jan. 4, an order for dismissal in the training injury case brought by Ronald and Susanne Lipa was issued by the Circuit Court for Macomb County, Mich. In reality, it was a settlement.
An assistant in the office of attorney Thomas McHugh, who represented the Lipas, confirmed the deal in a phone interview, and court filings corroborate her comments. Nevertheless, TASER's Jan. 9 press statement leaves the possibility of an agreement ambiguous at best:
TASER International ... announced that the Circuit Court for the County of Macomb in the State of Michigan entered an order dismissing with prejudice the training injury lawsuit filed by Ronald and Susanne Lipa against TASER International, Inc. The Court order for dismissal was based on a stipulation for dismissal with prejudice and without costs filed by the parties.
Details of the case weren't available in court filings or press reports. Nevertheless, it's worth noting that the mealy-mouthed wording of the release small-f fooled Bloomberg News, which, at the time, characterized the case as "one of two dismissals won by TASER..." The other was a wrongful death case involving a suspect stunned by police. Klint says TASER doesn't settle cases brought by criminal suspects.
On Jan. 18, an order for dismissal in the training injury case brought by police officer Nick Kerchoff, who says he suffered skin burns and permanent nerve damage in a TASER demonstration, was issued by the U.S. District Court in Eastern Michigan and signed by Judge Gerald E. Rosen. But again, it was a settlement.
Michael Stefani, counsel of record for TASER in both this and the Lipa case, confirmed the agreement in an interview. If only the Jan. 25 press statement regarding the case were as clear:
TASER International... announced that the United States District Court for the Eastern District of the State of Michigan, Southern Division, entered an order dismissing with prejudice the training injury lawsuit filed by Nick Kerchoff against TASER International, Inc. The Court order for dismissal was agreed to by the parties and was with prejudice and without costs.
For the record, Stefani says that "without costs" doesn't refer to the settlement, but instead to court filing fees. I'll let you decide what readers without a law degree would conclude.
Tired of being stunned
I don't begrudge TASER's right to defend itself ,or its right to settle when it seems economically correct to do so. My beef is that TASER apparently concealed settlements when it didn't need to. In doing so, I believe that the company helped to foster the false perception that it sports an unblemished courtroom record, which in turn cheats investors who expect a full accounting of TASER's legal trials and tribulations.
And they should, because that's exactly what TASER CEO Rick Smith is doing. He told investors during the quarterly call that he had assigned Klint the job of creating an internal task force to develop legal-defense best practices.
When confronted with my findings, TASER responded that it had complied with all laws and argued that it had gone farther than is required in terms of disclosure. Klint added, "We don't think [the releases] are misleading, and we don't think investors are being disserved or misled." Moreover, Klint says that Rick Smith specifically asked for guidance from outside counsel before making the call as to whether it was appropriate to disclose the Stevens settlement in TASER's July 6 press statement. When counsel said no, the release was approved as is, Klint says.
Fair enough. Perhaps TASER is doing exactly what is required. Why, then, do I feel as though I've been spun like a top, to the point that I wonder what management isn't telling me? Probably because I have been. And that's no way for you, me, or any Fool to invest. We deserve better.
TASER is a Motley Fool Rule Breakers selection. Ask us for anall-access passto the service to get a closer look at the four multibagger stocks the team has uncovered and to view David Gardner's video interview with Tom Smith.Go ahead. You've got nothing to lose. Your pass is free and it's good for 30 days.
Fool contributorTim Beyersis tired of trying to read between the lines when it comes to TASER PR. He doesn't believe that you, or anyone, should have to. Tim didn't own shares of any of the companies mentioned in this story at the time of publication. You can find out which stocks he owns by checking Tim's Foolprofile. The Motley Fool has an ironcladdisclosure policy.