According to the Company’s FORM 10-K for the fiscal year ended December 31, 2003, on July 16, 2002, the 11th Circuit Court of Appeals affirmed the District Court’s dismissal of the plaintiff’s claims with prejudice. The plaintiffs petitioned the Court of Appeals for a rehearing of the appeal, which was denied by the Court of Appeals. Recently, one of the plaintiffs filed a Petition for Writ of Certiorari to the United States Supreme Court from the 11th Circuit decision, which was denied by the United States Supreme Court.
In a press release dated July 25, 2002, Kos Pharmaceuticals, Inc. (Nasdaq: KOSP) announced that the United States Court of Appeals for the Eleventh Circuit has affirmed the 1999 decision of the United States District Court for the Southern District of Florida dismissing with prejudice all counts of a proposed securities class action complaint that was filed against the Company in August 1998. In rendering its decision, the Appellate Court also affirmed the $520,000 award of attorneys' fees and costs to the Company and the other defendants, subject to a minor adjustment with respect to one aspect of the award.
As previously reported by the Company’s FORM 10-Q for the quarterly period ended March 31, 2002, upon Kos’ motion, the case was transferred to the United States District Court for the Southern District of Florida. The Company filed a motion to dismiss the compliant along with the individual Kos defendants on January 7, 1999. On May 24, 1999, the United States District Court for the Southern District of Florida dismissed the lawsuit with prejudice. The plaintiffs filed an appeal on June 7, 1999, with the United States Circuit Court of Appeals for the 11th Circuit.
The original class action lawsuit was filed on August 5, 1998 in the United States District Court for the Northern District of Illinois, Eastern Division, against the Company, the members of the Company's Board of Directors, certain officers of the Company, and the underwriters of the Company's October 24, 1997 offering of shares of Common Stock. The claims in the lawsuit relate principally to certain statements made by the Company, or certain of its representatives, concerning the efficacy, safety, sales volume and commercial viability of the Company's NIASPAN product.