In December 2006, the appellate court overturned the certification of classes in six test cases that were selected by the underwriter defendants and plaintiffs in the coordinated proceedings. Because class certification was a condition of the settlement, it was unlikely that the settlement would receive final Court approval. On June 28, 2007, the Court entered an order terminating the proposed settlement based upon a stipulation among the parties to the settlement.
According to the Company’s latest FORM 10-Q for the quarterly period ended August 31, 2005, several suits were consolidated into one action that was coordinated for pretrial purposes with hundreds of virtually identical suits under a case captioned “In re Initial Public Offering Securities Litigation”, Civil Action No. 21-MC-92. On February 19, 2003, the court denied in part and granted in part a motion to dismiss filed on behalf of the defendants, including Liberate. The court’s order did not dismiss any claims against Liberate. As a result, discovery may proceed. The individual defendants have been dismissed without prejudice in this litigation. The Company has agreed to enter into a global issuer settlement of plaintiffs’ claims. In June 2004, a stipulation of settlement and release of claims against the issuer defendants, including Liberate, was submitted to the court for approval. The terms of the settlement, if approved, would dismiss and release all claims against the participating defendants (including Liberate). In exchange for this dismissal, D&O insurance carriers would agree to guarantee a recovery by the plaintiffs from the underwriter defendants of at least $1 billion, and the issuer defendants would agree to an assignment or surrender to the plaintiffs of certain claims the issuer defendants may have against the underwriters The settlement is subject to a number of conditions, including court approval. On August 31, 2005, the Court granted preliminary approval of the stipulation of settlement, and set a hearing for April 24, 2006 for further consideration of the stipulation of settlement and whether the settlement should receive final approval of the Court.
The original complaint alleges violations of Sections 11, 12(a)(2) and 15 of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. On or about July 27, 1999, Liberate commenced an initial public offering of 6, 250,000 of its shares of common stock at an offering price of $16 per share (the Liberate IPO). The complaint further alleges that Liberate filed a registration statement with the SEC, including a prospectus which was materially false and misleading because it failed to disclose, among other things, that: (i) Credit Suisse, BancBoston and Merrill Lynch had solicited and received excessive and undisclosed commissions from certain investors in exchange for which Credit Suisse, BancBoston and Merrill Lynch allocated to those investors material portions of the restricted number of Liberate shares issued in connection with the Liberate IPO; and (ii) Credit Suisse, BancBoston and Merrill Lynch had entered into agreements with customers whereby Credit Suisse, BancBoston and Merrill Lynch agreed to allocate Liberate shares to those customers in the Liberate IPO in exchange for which the customers agreed to purchase additional Liberate shares in the aftermarket at pre-determined prices.