If anything, you should be pointing to the lack of a forward-looking-statement disclaimer as the last post had. In this case I would agree that you could make the point that they didn't reach the goals they clearly stated they intended to achieve. But they didn't intentionally tell an untruth and they haven't stolen anything. Deceit well, is omission of some/many facts deceit?
Of course they did. Ken withheld key information from shareholders and lied/mislead on key facts surrounding ActM progress.