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Commitments, Contingencies and Other Matters | 6 Months Ended
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Jun. 30, 2024
Commitments and Contingencies Disclosure [Abstract] |
Commitments, Contingencies and Other Matters | 11. COMMITMENTS, CONTINGENCIES AND OTHER MATTERS Appointment of Mark Suchinski as Chief Financial Officer On June 4, 2024, the Board approved the appointment of Mark J. Suchinski as Senior Vice President and Chief Financial Officer, effective July 8, 2024. In connection with his appointment, Mr. Suchinski and the Company entered into an Executive Employment Agreement (the “Employment Agreement”) to provide that Mr. Suchinski will be employed by the Company for a two-year term beginning July 8, 2024. Unless the Employment Agreement is sooner terminated, or not renewed, it will automatically extend upon the end of its initial term for a rolling two-year term. Pursuant to the terms of the Employment Agreement, Mr. Suchinski will serve as Senior Vice President and Chief Financial Officer and report directly to the Chief Executive Officer. Either Mr. Suchinski or the Company may terminate Mr. Suchinski’s employment under the Employment Agreement for any reason upon not less than thirty (30) days written notice. Under the terms of the Employment Agreement, Mr. Suchinski will be paid an annual base salary of $700,000, subject to the review and potential increase in the sole discretion of the Compensation Committee. Mr. Suchinski will also be entitled to receive a target annual performance award of 100% of Mr. Suchinski’s base salary in accordance with the terms of any plan governing the senior management performance awards then in effect. Mr. Suchinski will be entitled to receive an annual equity incentive award of restricted stock with a grant date fair value equal to at least 80% of his base salary that will vest upon the attainment of certain performance goals in accordance with the terms of the Company’s equity compensation plan. Mr. Suchinski will receive an initial grant of 50,000 shares of restricted stock that will vest upon the attainment of certain performance goals. In connection with the beginning of Mr. Suchinski’s employment, Mr. Suchinski shall be entitled to receive $150,000 to offset expenses in connection with his relocation, above and beyond the customary relocation benefits offered to employees, which shall be deducted from Mr. Suchinski’s annual performance award paid in 2025. The Employment Agreement provides that upon the separation of employment by Mr. Suchinski for good reason, by the Company without cause or upon the death or disability of Mr. Suchinski, he will be entitled to receive a separation payment equal to two (2) times the sum of his annual base salary payable over a period of twenty-four (24) months. The Company will also continue to provide Mr. Suchinski and any covered dependents with the Executive Benefits as defined in the Employment Agreement for a period of eighteen (18) months after the date of separation. In the event of Mr. Suchinski’s death within such eighteen (18) month period, the Company will continue to provide the Executive Benefits to Mr. Suchinski’s covered dependents, and, if applicable to Mr. Suchinski’s estate. In addition, the Employment Agreement provides that upon such separation, GEO will transfer all of its interest in any automobile used by Mr. Suchinski pursuant to its Executive Automobile Policy (the “Executive Automobile Policy”) and pay the balance of any outstanding loans or leases on such automobile so that Mr. Suchinski owns the automobile outright. In the event such automobile is leased, GEO will pay the residual cost of the lease. Lastly, all of the outstanding and unvested stock options and restricted stock granted to Mr. Suchinski prior to separation will fully vest immediately upon separation; provided, however that any restricted stock that is subject to performance-based vesting shall only vest when and to the extent the Compensation Committee certifies that the performance goals are actually met. Upon a separation of employment by GEO for cause or by Mr. Suchinski without good reason, Mr. Suchinski will be entitled to only the amount of compensation that is due through the effective date of the separation. If Mr. Suchinski’s separation of employment is due to his retirement in accordance with the Company’s then current Senior Officer retirement plan, all of the outstanding and unvested stock options and restricted stock granted to Mr. Suchinski prior to separation will fully vest immediately upon separation; provided, however that any restricted stock that is subject to performance-based vesting shall only vest when and to the extent the Compensation Committee certifies that the performance goals are actually met, and provided further that Mr. Suchinski remains in full compliance with the restrictive covenants set forth in the Employment Agreement. Litigation, Claims and Assessments Shareholder and Derivative Litigation On July 7, 2020, a putative shareholder class action lawsuit was filed against the Company and its officers George C. Zoley and Brian R. Evans in the U.S. District Court for the Southern District of Florida. The parties resolved this matter following mediation for a payment to a settlement class of $3 million paid by the Company's insurance carrier. On November 17, 2023, the court entered a Final Judgment and Order of Dismissal with Prejudice approving the settlement. After the putative shareholder class action lawsuit was filed, three related putative shareholder derivative actions were also filed. These cases generally allege breaches of fiduciary duties premised on alleged materially false and misleading statements and/or omissions related to pending litigation, as alleged in the shareholder class action. First, on July 1, 2021, a putative shareholder derivative complaint was filed by Anning Fang, a purported stockholder, in Palm Beach County, Florida Circuit Court against the Company, as well as current and former Company directors and officers George C. Zoley, Jose Gordo, Brian R. Evans, Ann M. Schlarb, Richard H. Glanton, Anne N. Foreman, Christopher C. Wheeler, Julie M. Wood, Guido van Hauwermeiren, Scott M. Kernan, and Duane Helkowski (collectively, the “State-Court Defendants”). Second, on November 12, 2021, a putative shareholder derivative complaint was filed by Rui Zhang, a purported stockholder, in the U.S. District Court for the Southern District of Florida against the Company, the State-Court Defendants, as well as then current and former Company officers David Venturella and J. David Donahue (collectively, the “Derivative Defendants”). Third, on August 24, 2022, a putative stockholder derivative complaint was filed by Gerardo Maldonado Jr., a purported stockholder, in the U.S. District Court for the Southern District of Florida against the Company and the Derivative Defendants. The state-court Fang complaint alleges breach of fiduciary duty and unjust enrichment claims against the State-Court Defendants relating to purported healthcare and quality of care deficiencies, an allegedly inadequate response to the COVID-19 pandemic, alleged forced labor by detainees, and alleged exposure to pending litigation, which purportedly led to damage to GEO. The Zhang and Maldonado federal-court complaints make similar allegations of breach of fiduciary duty as to the Derivative Defendants, assert claims for unjust enrichment and waste of corporate assets, and also allege that the Derivative Defendants violated Section 10(b) of the Exchange Act, and Rule 10b-5 promulgated thereunder and that Mr. Zoley contributed to alleged violations of Sections 10(b) and 21D of the Exchange Act. The three putative shareholder derivative cases are currently stayed. Following mediation, the Zhang parties reached an agreement to resolve all derivative claims with the Company agreeing to adopt certain corporate governance policies. On April 16, 2024, the Zhang court entered an order preliminarily approving the settlement. Immigration Detainee Litigation Civil immigration detainees at the Aurora ICE Processing Center filed a class action lawsuit on October 22, 2014, against the Company in the U.S. District Court for the District of Colorado. The complaint alleges that the Company was in violation of the Colorado Minimum Wage Act ("CMWA") and the Federal Trafficking Victims Protection Act (“TVPA”). The complaint also claims that the Company was unjustly enriched based on the level of payment the detainees received for work performed in a Voluntary Work Program ("VWP") the Company is required to implement at the facility under the terms of its contract with the federal government. On July 6, 2015, the court found that detainees were not employees under the CMWA and dismissed this claim. On February 27, 2017, the court granted the plaintiffs' motion for class certification on the TVPA and unjust enrichment claims. The plaintiffs' class seeks actual damages, compensatory damages, exemplary damages, punitive damages, restitution, attorneys’ fees and costs, and such other relief as the court may deem proper. On October 18, 2022, the court issued an order granting plaintiffs’ motion for summary judgment on the Company’s affirmative defenses, denying the Company’s motion for summary judgment, motion to dismiss, and motion for decertification of the class, narrowing the class period for plaintiffs’ TVPA claims, and otherwise ruling against the Company’s motions for relief. All trial dates are currently stayed by court order pending appeal of certain of GEO's defenses to the 10th Circuit Court of Appeal. Oral argument before the 10th Circuit was held on September 18, 2023. Since the Colorado suit was initially filed, four similar lawsuits have been filed - two in the State of Washington and two in California. The first of the two State of Washington lawsuits was filed on September 26, 2017, by immigration detainees against the Company in the U.S. District Court for the Western District of Washington. The second lawsuit was filed on September 20, 2017, by the State Attorney General against the Company in the Superior Court of the State of Washington for Pierce County, which the Company removed to the U.S. District Court for the Western District of Washington on October 9, 2017. The plaintiffs claimed that State of Washington minimum wage laws should be enforced with respect to detainees who volunteer to participate in a VWP administered by GEO at the Northwest ICE Processing Center (the "Center") as required by the U.S. Department of Homeland Security under the terms of GEO’s contract. The Center houses persons in the custody of federal immigration authorities while the federal government is determining their immigration status. In October 2021, an unfavorable jury verdict and court judgment resulting in a combined $23.2 million judgment entered against the Company in the retrial of the two cases, which judgment amounts were subsequently increased by a further award against the Company of attorney’s fees, costs, and pre-judgment interest in the amount of $14.4 million. Post-judgment interest is accruing on these judgments in accordance with Washington law. The trial court has waived the necessity to post a supersedeas bond for the combined judgments and has stayed enforcement of the verdict and judgments while GEO’s appeal to the U.S. Court of Appeals for the Ninth Circuit is pending. Oral argument before the Ninth Circuit was held on October 6, 2022. On March 7, 2023, the Ninth Circuit certified certain state law questions to the Washington Supreme Court. Oral argument before the Washington Supreme Court was held on October 17, 2023. On December 21, 2023, the Washington Supreme Court issued an opinion answering the questions certified by the Ninth Circuit. Under the Ninth Circuit’s March 7, 2023 order certifying the above questions to the Washington Supreme Court, the Ninth Circuit has resumed control and jurisdiction over the State of Washington lawsuits. On February 21, 2024, the United States Department of Justice filed its Brief for the United States as Amicus Curiae in Support of GEO, arguing that the State of Washington judgments should be reversed because the Supremacy Clause precludes application of the Washington Minimum Wage Statute to work programs for federal detainees. In its Brief, the Department of Justice asserts that application of the Washington law independently contravenes intergovernmental immunity because it would make federal detainees subject to provisions that do not apply, and never have applied, to persons in state custody, singling out a contractor with the federal government for obligations Washington does not itself bear. The Department of Justice also contends that the immigration statutory structure approved by Congress does not contemplate a role for states or state law in governing the VWP for federal detainees. In California, a class action lawsuit was filed on December 19, 2017, by immigration detainees against the Company in the U.S. District Court, Eastern Division of the Central District of California. The California lawsuit alleges violations of the state’s minimum wage laws, violations of the TVPA and California's equivalent state statute, unjust enrichment, unfair competition and retaliation. The California court has certified a class of individuals who have been civilly detained at the Company's Adelanto Facility from December 19, 2014, until the date of final judgment. On March 31, 2022, the court entered a stay until the Ninth Circuit rules on the State of Washington lawsuits. Current and former detainees of the Mesa Verde ICE Processing Center and the Golden State Annex ICE Processing Center filed a class action lawsuit on July 13, 2022, against the Company in the U.S. District Court for the Eastern District of California, Fresno Division. This lawsuit is similar to the cases in Colorado, State of Washington, and California discussed above. The complaint alleges that federal detainees who volunteer to participate in the VWP at GEO’s Mesa Verde and Golden State Annex ICE facilities are employees of GEO and entitled to the state’s minimum wage. Plaintiffs also make claims for unfair competition, unjust enrichment, human trafficking, forced labor, California's Private Attorneys General Act and retaliation. GEO filed both a motion to stay the action pending the Ninth Circuit's decision in the State of Washington lawsuits and a motion to dismiss the action in its entirety. On July 10, 2023, the court entered a stay until the Ninth Circuit rules on the State of Washington lawsuits. GEO believes it operates the VWP in full compliance with its contract with ICE and all applicable laws, regulations, and standards. GEO strongly disputes the claims made in these lawsuits, and intends to take all necessary steps to vigorously defend itself from these lawsuits. GEO has not recorded any accruals relating to these lawsuits at this time as losses are not considered probable. Challenges to State Legislation that Conflict with Federal Contracts On July 13, 2023, the Company filed a lawsuit in the U.S. District Court for the Western District of Washington against the State of Washington for declaratory and injunctive relief challenging the State of Washington’s newly enacted law – House Bill 1470. House Bill 1470 purports to empower state agencies with new rule making, inspection, investigation, and testing powers over the Northwest ICE Processing Center. House Bill 1470 also creates a statutory regime of civil penalties applicable to private detention facilities for violations of House Bill 1470 detention standards, and purports to create a private right of action for detainees aggrieved by violations of the statute. On March 8, 2024, the U.S. District Court for the Western District of Washington entered an order preliminarily enjoining the enforcement of House Bill 1470 against GEO as the operator of the Northwest ICE Processing Center. On April 29, 2024, the State of Washington filed a Notice of Appeal of the order preliminarily enjoining the enforcement of House Bill 1470. On April 15, 2024, the Company filed a lawsuit in the U.S. District Court for the District of New Jersey against the State of New Jersey for declaratory and injunctive relief challenging the State of New Jersey’s Assembly Bill 5207 – that purports to prohibit the operation of "private detention facilities" in the state, which would prevent the United States from using privately contracted detention facilities to house detainees in the custody of ICE. On April 25, 2024, the U.S. District Court for the District of New Jersey entered an order preliminarily enjoining the State of New Jersey from enforcing Assembly Bill 5207 against a private detention facility-including any owned by Plaintiff GEO until a further Order of the Court. Other Litigation The nature of the Company's business also exposes it to various other legal claims or litigation, including, but not limited to, civil rights claims relating to conditions of confinement and/or mistreatment, sexual misconduct claims brought by individuals in its care, medical malpractice claims, claims related to deaths in custody, product liability claims, intellectual property infringement claims, claims relating to employment matters (including, but not limited to, employment discrimination claims, union grievances and wage and hour claims), property loss claims, environmental claims, automobile liability claims, indemnification claims by its customers and other third-parties, contractual claims and claims for personal injury or other damages resulting from contact with the Company's facilities, programs, electronic monitoring products, personnel or detainees, including damages arising from the escape of an individual in its care or from a disturbance or riot at a facility. Legal proceedings with respect to our facilities are unpredictable and, where material, can cause adverse effects, such as prompting modification or even termination of the underlying facility management contracts. Other Assessment A state non-income tax audit completed in 2016 included tax periods for which the state tax authority had previously processed a substantial tax refund. At the completion of the audit fieldwork, the Company received a notice of audit findings disallowing deductions that were previously claimed by the Company that was approved by the state tax authority and served as the basis for the approved refund claim. In early January 2017, the Company received a formal Notice of Assessment of Taxes and Demand for Payment from the taxing authority disallowing the deductions. The total tax, penalty and interest related to the assessment is approximately $21.6 million. The Company appealed the administrative ruling. In February 2024, the Company received notice that the New Mexico Court of Appeals had ruled against its appeal. The Company appealed this ruling to the New Mexico Supreme Court by timely filing a Petition for Writ of Certiorari on April 19, 2024. On July 8, 2024, the New Mexico Supreme Court denied the Company's Petition for Writ of Certiorari. The Company established an estimated liability (inclusive of both the audit period and the post-audit period) based on its estimate of the most probable loss based on the facts and circumstances known to date and the advice of outside counsel in connection with this matter. Subsequent to June 30, 2024, the Company made a payment of approximately $18.9 million towards the estimated liability related to the assessment for the tax periods audited. Accruals for Legal Proceedings The Company establishes accruals for specific legal proceedings when it is considered probable that a loss has been incurred and the amount of the loss can be reasonably estimated. However, the results of these claims or proceedings cannot be predicted with certainty, and an unfavorable resolution of one or more of these claims or proceedings could have a material adverse effect on the Company's financial condition, results of operations or cash flows, including the modification or loss of one or more facility management contracts, or could result in a material impairment of the Company’s assets. The Company's accruals for loss contingencies are reviewed quarterly and adjusted as additional information becomes available. The Company generally does not accrue for anticipated legal fees and costs but expenses those items as incurred. Commitments The Company currently has contractual commitments for a number of projects using Company financing. The Company’s management estimates that the cost of these existing active capital projects will be approximately $59.7 million of which $34.8 million was spent through the first six months of 2024. The Company estimates the remaining capital requirements related to these capital projects will be $24.9 million which will be spent through the remainder of 2024. Inventories Inventory, which consists primarily of component parts related to electronic monitoring equipment, is stated at the lower of average cost or net realizable value and is approximately $32.5 million and $25.1 million at June 30, 2024 and December 31, 2023, respectively. Inventory is included in Other Non-Current Assets in the accompanying consolidated balance sheets. Uncertain Tax Positions A tax benefit from an uncertain tax position may be recognized when it is more likely than not that the position will be sustained upon examination, including resolution of any related appeals or litigation, based on the technical merits of the position. As of June 30, 2024, the Company has a total of approximately $40.7 million of unrecognized tax benefits for uncertain tax positions. Approximately $38.9 million of this total was generated in the three months ending June 30, 2024, and relates to interest deduction for GEO shares issued to the holders of our 6.5% Exchangeable Senior Notes due 2026. Approximately all of the unrecognized tax benefits, if recognized, would impact our effective tax rate. The Company does not believe it has any existing tax positions for which it is reasonably possible that it will be required to record significant amounts of unrecognized tax benefits within the next twelve months. Idle Facilities As of June 30, 2024, the Company was marketing ten of its idle facilities to potential customers. One of the facilities, Cheyenne Mountain Recovery Center, is under a contract which has yet to be activated. The carrying values of these idle facilities are included in Property and Equipment in the accompanying consolidated balance sheets. The following table summarizes each of the idled facilities and their respective carrying values, excluding equipment and other assets that can be easily transferred for use at other facilities. There was no indication of impairment related to the Company's idle facilities as of June 30, 2024 other than discussed below.
|  |  |  |  |  |  |  |  |  | Secure Services |  |  | Reentry Services |  |  | Total |
|  |  |  | Secure Services |  |  | Reentry Services |  |  | Net Carrying Value |  |  | Net Carrying Value |  |  | Net Carrying Value |
Facility |  | Year Idled |  | Design Capacity (beds) |  |  | Design Capacity (beds) |  |  | June 30, 2024 |  |  | June 30, 2024 |  |  | June 30, 2024 |
D. Ray James Correctional Facility |  | 2021 |  |  | 1,900 |  |  |  | — |  |  | $ | 49,020 |  |  | $ | — |  |  | $ | 49,020 |
Northlake Correctional Facility |  | 2022 |  |  | 1,800 |  |  |  | — |  |  |  | 72,679 |  |  |  | — |  |  |  | 72,679 |
Rivers Correctional Facility |  | 2021 |  |  | 1,450 |  |  |  | — |  |  |  | 35,396 |  |  |  | — |  |  |  | 35,396 |
Big Spring Correctional Facility |  | 2021 |  |  | 1,732 |  |  |  | — |  |  |  | 28,807 |  |  |  | — |  |  |  | 28,807 |
Flightline Correctional Facility |  | 2021 |  |  | 1,800 |  |  |  | — |  |  |  | 32,825 |  |  |  | — |  |  |  | 32,825 |
McFarland Female Community Reentry Facility |  | 2020 |  |  | — |  |  |  | 300 |  |  |  | — |  |  |  | 10,095 |  |  |  | 10,095 |
Hector Garza Center |  | 2020 |  |  | — |  |  |  | 139 |  |  |  | — |  |  |  | 4,312 |  |  |  | 4,312 |
Cheyenne Mountain Recovery Center |  | 2020 |  |  | 750 |  |  |  | — |  |  |  | 17,182 |  |  |  | — |  |  |  | 17,182 |
Delaney Hall |  | 2023 |  |  | 1,054 |  |  |  | — |  |  |  | 27,131 |  |  |  | — |  |  |  | 27,131 |
Coleman Hall [1] |  | 2017 |  |  | — |  |  |  | 350 |  |  |  | — |  |  |  | 6,080 |  |  |  | 6,080 |
Total |  |  |  |  | 10,486 |  |  |  | 789 |  |  | $ | 263,040 |  |  | $ | 20,487 |  |  | $ | 283,527 |
[1] The Company entered into a purchase and sale agreement in July 2024 for this facility and another adjoining facility that was active as of June 30, 2024 which is expected to close towards the end of 2024 or beginning of 2025. As the sale price was less than the net carrying values at June 30, 2024, the Company recorded a total impairment loss for both facilities of approximately $2.3 million during the second quarter of 2024 which is included in (loss) gain on asset divestitures/impairment in the accompanying consolidated statements of operations. This facility has been classified as assets held for sale at June 30, 2024 within the accompanying consolidated balance sheets. Lease Revenue The Company leases nine of its owned facilities to unrelated parties. Six of which have a month to month term through June 2024. The carrying value of these leased facilities as of June 30, 2024 is $ 46.1 million, net of accumulated depreciation of $25.1 million. For the additional three leased facilities, one facility has a term that expires in February 2025. The carrying value of this leased facility as of June 30, 2024 was $2.3 million, net of accumulated depreciation of $0.8 million. One facility has a term of sixty-six months with one-year renewal options which base term expires in October 2028. The carrying value of this leased facility as of June 30, 2024 was $74.1 million, net of accumulated depreciation of $34.8 million. The remaining facility has a term of twenty years with renewals and expires in October 2041. The carrying value of this leased facility as of June 30, 2024 was $21.2 million, net of accumulated depreciation of $17.7 million. Rental income, included in Revenues, for leased facilities for the six months ended June 30, 2024 and 2023, was approximately $7.7 million and $7.1 million, respectively. As of June 30, 2024, future minimum rentals to be received on these leases are as follows:
|  | Annual Rental |
Year |  | (in thousands) |
Remainder of 2024 |  | $ | 7,786 |
2025 |  |  | 13,293 |
2026 |  |  | 13,361 |
2027 |  |  | 13,375 |
2028 |  |  | 11,911 |
Thereafter |  |  | 58,162 |
Total |  | $ | 117,888 |

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