According to aQuantive Inc.'s Form 10-K for the fiscal year ended December 31, 2005, in June 2003, a proposed settlement of the litigation was structured between the plaintiffs, the issuer defendants in the coordinated actions, the issuer officers and directors named as defendants, and the issuers’ insurance companies. Avenue A and Razorfish conditionally approved the proposed partial settlement in the Avenue A action and Razorfish action, respectively. The stipulation of settlement for the release of claims against the issuer defendants, including Avenue A and Razorfish, was submitted to the court in June 2004. On February 15, 2005, the court preliminarily approved the settlements in the coordinated actions contingent on specified modifications. On August 31, 2005, the court issued a preliminary order further approving the modifications to the settlement and certifying the settlement classes. A settlement fairness hearing has been set for April 24, 2006. Following the hearing, if the court determines that the settlement is fair to the class members, the settlement will be approved. There can be no assurance that this proposed settlement would be approved and implemented in its current form, or at all.
As disclosed by the same SEC filing, in June 2001, substantially similar actions have been filed concerning the initial public offerings for more than 300 different issuers, and these cases have been coordinated as In re Initial Public Offering Securities Litigation, 21MC92. The consolidated amended complaints in the Avenue A and Razorfish actions seek unspecified damages on behalf of purported classes of purchasers of Avenue A’s and Razorfish’s common stock. In the Avenue A action, the alleged class period is February 28, 2000 to December 6, 2000. In the Razorfish action, the alleged class period is April 26, 1999 to December 6, 2000. Claims against the named directors and officers of Avenue A and against certain of the named directors and officers of Razorfish have been dismissed without prejudice pursuant to a stipulation. On July 15, 2002, Avenue A, Razorfish, and the other issuer defendants filed a motion to dismiss the litigation. Certain of Razorfish’s directors and officers joined in the motion. On February 19, 2003, the court issued an order denying Razorfish’s motion to dismiss but granting the motion to dismiss of Razorfish’s directors and officers; and granting Avenue A’s motion to dismiss the claims against it under Section 10(b) of the Securities Exchange Act of 1934, and Rule 10b-5 thereunder, and denying Avenue A’s motion to dismiss the claims against it under Section 11 of the Securities Act of 1933.
The complaint alleges that, in exchange for the excessive commissions, the underwriting group Credit Suisse First Boston Corporation, BancBoston Robertson
Stephens Inc., BT Alex. Brown Incorporated and Lehman Brothers Inc., allocated Razorfish shares to customers at the IPO price of $16.00 per share. To receive the allocations (i.e., the ability to purchase shares) at $16.00, the
underwriters' brokerage customers had to agree to purchase additional shares in the aftermarket at progressively higher prices. Rather than allowing their customers to keep their profits from the IPO, the complaint alleges, the underwriters required their customers to "kick back" some of their profits in the form of secret commissions. The complaint further alleges that defendants violated the Securities Act of 1933 because the Prospectus distributed to investors and the Registration Statement filed with the SEC in order to gain regulatory approval for the Razorfish offering contained material misstatements regarding the commissions that the underwriters would derive from the IPO transaction and failed to disclose the additional commissions and "laddering" scheme discussed above.
NOTE: Avenue A, Inc. and Razorfish, Inc. are now known as Avenue A/Razorfish, the digital advertising agency of aQuantive Inc. Avenue A/Razorfish provides the full range of services, from strategic planning, Web design, media buying, and campaign analysis to ad serving, search engine marketing, e-mail marketing, and creative services. It targets customers residing in the financial services, pharmaceutical, retail, technology, and travel sectors.