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AFC Enterprises, Inc. Conclusion: According to the Order and Final Judgment entered on September 29, 2005, the settlement is approved. The court awarded fees and reimbursement of expenses. The civil case is terminated.
In a press release dated April 23, 2005, AFC Enterprises will pay shareholders $ 15 million to settle consolidated lawsuits over financial restatements that two years ago sent the company into a tailspin. The owner of the Popeyes Chicken & Biscuits fast-food chain said Friday the cash payment is its first response to multiple suits filed after it announced plans to restate results for 2000, 2001 and part of 2002. The company, which still faces other restatement-related lawsuits, said it is not admitting any guilt through the settlement. The deal awaits federal court approval.
As reported by the Form 10-K/A for the fiscal year ended December 26, 2004, on December 29, 2004, the Court entered an Order granting in part and denying in part the Defendants’ Motions to Dismiss the Complaint. The Court dismissed all insider trading claims; dismissed Section 10(b) and Rule 10b-5 claims against certain current and former officers and directors. Because Plaintiffs declined to re-plead their allegations, the foregoing claims have been dismissed with prejudice. Subsequent to the Court’s December 29, 2004 Order, Defendants AFC and the former CFO filed a Motion to Dismiss the Section 10(b) and Rule 10b-5 claims of the named Plaintiffs for lack of standing (jurisdiction), as both remaining Plaintiffs continue to hold the AFC stock made the subject of their claims and, therefore, given the recovery and continuing rise of the AFC stock price, Plaintiffs can prove no damages under Section 10(b) or Rule 10b-5. Also, pending are certain motions filed by the outside directors for reconsideration of portions of the December 29, 2004 Order. Discovery commenced on February 23, 2005.
On March 25, 2003, plaintiffs filed the first of eight securities class action lawsuits in the United States District Court for the Northern District of Georgia against AFC and several of its current and former directors and officers. By order dated May 21, 2003, the district court consolidated the eight lawsuits into one consolidated action. On January 26, 2004, the plaintiffs filed a Consolidated Amended Class Action Complaint (the “Consolidated Complaint”) on behalf of a putative class of persons who purchased or otherwise acquired AFC stock between March 2, 2001 and March 24, 2003. In the Consolidated Complaint, plaintiffs allege that the registration statement filed in connection with AFC’s March 2001 initial public offering (“IPO”) contained false and misleading statements in violation of Sections 11 and 15 of the Securities Act of 1933 (“1933 Act”). The defendants to the 1933 Act claims include AFC, certain of AFC’s current and former directors and officers, an institutional shareholder of AFC, and the underwriters of AFC’s IPO. Plaintiffs also allege violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (“1934 Act”) and Rule 10b-5 promulgated thereunder. The plaintiffs’ 1934 Act allegations are pled against AFC, certain current and former directors and officers of AFC, and two institutional shareholders. The plaintiffs also allege violations of Section 20A of the 1934 Act against certain current and former directors and officers and two institutional shareholders based upon alleged stock sales. The Consolidated Complaint seeks certification as a class action, compensatory damages, pre-judgment and post-judgment interest, attorney’s fees and costs, an accounting of the proceeds of certain defendants’ alleged stock sales, disgorgement of bonuses and trading profits by AFC’s CEO and former CFO, injunctive relief, including the imposition of a constructive trust on certain defendants’ alleged insider trading proceeds, and other relief.
The original Complaint alleges that defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder, by issuing a series of material misrepresentations to the market between March 2, 2001 and March 24, 2003, thereby artificially inflating the price of AFC securities. According to the complaint, the Company's class period statements were materially false and misleading because the press releases and SEC filings issued during the Class Period failed to reveal that AFC inflated its operating results by:(1) improperly accounting for the sale of corporate-owned stores to franchisees; (2) improperly accounting for the value of certain long-lived assets; (3) understating advertising costs; and (4) improperly accounting for inventory at the Company's Seattle Coffee Company division. As a result of the Company's fraudulent accounting, AFC's financial statements published during the Class Period were not prepared in accordance with Generally Accepted Accounting Principles and, therefore, it was not true that the Company's financial statements were a "fair presentation" of the Company's financial position. Indeed, by announcing its intention to restate its financial statements, AFC has admitted that its prior financial statements were materially false and misleading when issued. On March 24, 2003, after the market closed, AFC shocked the market by announcing that it would be restating its financial statements for fiscal year 2001 and the first three quarters of 2002. The Company also reported that it was examining whether or not its financial statements for fiscal year 2000 should be restated. In response to this negative announcement the price of AFC common stock dropped by over 20% on extremely heavy trading volume. AFC insiders privy to the Company's fraudulent accounting practices did not share investors' losses. In a December 2001 public offering, AFC insiders unloaded 7,000,000 shares of their holdings at $23 per share. Indeed, during the Class Period, defendants and other Company insiders cashed out at prices as high as $34 per share, reaping profits of over $30 million.
INDUSTRY CLASSIFICATION:
SIC Code: 5812
Sector: Services
Industry: Restaurants
| COMPANY/ISSUER NAME: | AFC Enterprises, Inc. |
| COMPANY/ISSUER TICKER: | AFCE |
| COMPANY WEBSITE: | http://www.afc-online.com |
| FIRST IDENTIFIED COMPLAINT IN THE DATABASE | |||||||||||||||||
| James Nugent , et al. v. AFC Enterprises, Inc., et al. | |||||||||||||||||
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| DOCUMENTS FOR THE FIRST IDENTIFIED COMPLAINT | |||
| Class Action Complaint for Violation of Federal Securities Laws - Jury Trial Demanded | |||
| Type: Complaint | Date on the document: 03/25/2003 | ||
| Consolidated Civil Action | |||
| Type: Other | Date on the document: 05/22/2003 | ||
| REFERENCE COMPLAINT | |||||||||||||||||
| In Re: AFC Enterprises, Inc. Securities Litigation | |||||||||||||||||
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| DOCUMENTS FOR THE REFERENCE COMPLAINT | |||
| Consolidated Amended Class Action Complaint | |||
| Type: Complaint | Date on the document: 01/26/2004 | ||
| Agreement of Settlement | |||
| Type: Settlement | Date on the document: 06/16/2005 | ||
| Third Consolidated Amended Class Action Complaint | |||
| Type: Complaint | Date on the document: 06/16/2005 | ||
| Order and Final Judgment | |||
| Type: Order | Date on the document: 09/28/2005 | ||
| U.S. District Court Civil Docket | |||
| Type: Docket | Date on the document: 09/30/2005 | ||
| OTHER DOCUMENTS | |||
| Class Action For Violations Of Federal Securities Laws | |||
| Case Name and/or Number: Cruz | |||
| Type: Complaint | Date on the document: 03/27/2003 | ||
| Class Action Complaint for Violations of Federal Securities Laws | |||
| Case Name and/or Number: Alicia Reed , et al. v. AFC Enterprises, Inc., et al. | |||
| Type: Complaint | Date on the document: 04/30/2003 | ||
| U.S. District Court Civil Docket | |||
| Case Name and/or Number: Cruz, et al. v. AFC Enterprises, Inc., et al. | |||
| Type: Docket | Date on the document: 05/22/2003 | ||
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