The case was transferred to the U.S. District Court for the Middle District of Florida. On April 19, 2007, the plaintiffs filed an Amended Complaint. On June 25, 2007, the plaintiffs filed a Notice of Voluntary Dismissal. The next day, Judge Richard A. Lazzara issued the Order dismissing the case without prejudice pursuant to the Notice of Voluntary Dismissal.
On April 4, 2007, Judge Saundra Brown Armstrong for the U.S. District Court for the Northern District of California, signed the Order regarding certain pending motions. According to the Order, the Defendants’ Motion to Dismiss [Docket No. 36] is granted, and Defendants’ Motion to Transfer Venue [Docket No. 39] is granted. This matter is hereby ordered transferred to the United States District Court for the Middle District of Florida. The Clerk of the Court shall transfer the file forthwith. Defendants’ Motion to Stay [Docket No. 28], Plaintiffs’ Motion for Class Certification [Docket No. 47] and Defendants’ Motion for Extension of Time to File Response/Reply [Docket No. 51] are denied as moot. On April 25, 2007, the plaintiffs filed a Notice of Appeal in the Ninth Circuit Court of Appeals from April 4, 2007 Order. The appellants later voluntarily dismissed their appeal by the Order filed on August 3, 2007.
On September 1, 2006, a class action lawsuit was filed in the U.S. District Court for the Northern District of California, containing the same allegations of the now dismissed class action lawsuit previously filed in the Northern District of Georgia. According to a press release dated September 7, 2006, on September 1, 2006, filed a class action lawsuit in the United States District Court for the Northern District of California on behalf of all persons who, from October 1, 1998 through October 1, 2001, inclusive ("Class Period"), purchased or otherwise acquired an individual tax-deferred variable annuity contract or who received a certificate to a group tax-deferred variable annuity contract, or who made an additional investment through such a contract, issued by any of the defendants herein, which was used to fund a contributory retirement plan or arrangement qualified for favorable tax treatment pursuant to sections 401, 403, 408, 408A or 457 of the Internal Revenue Code (the "Class"). The defendants are AEGON USA, Inc. and six of its subsidiaries/affiliates, Western Reserve Life Assurance Co. of Ohio; PFL Life Insurance Company; AUSA Life Insurance Company, Inc.; Bankers United Life Assurance Company; AFSG Securities Corporation and AEGON Financial Services Group, Inc. The complaint alleges that the defendants violated the Securities Act of 1933 by making material misstatements and omissions, in their selling documents including prospectuses, which caused plaintiffs and other members of the Class to purchase the variable annuity contracts. The tax-deferred variable annuities sold by defendants are virtually never suitable investments for tax-deferred retirement accounts because earnings on any such annuity placed in such a retirement plan are already tax-deferred, and purchase of a deferred annuity increases costs without any material, additional economic benefit.
As summarized by the docket for the first action filed in the U.S. District Court for the Northern District of Georgia, on September 1, 2006, the Court entered the Order dismissing as moot the motion for class certification and dismissing the plaintiff’s claims without prejudice pursuant to FRCP 41(a)(2). According to the Order, because the personal claims of the named plaintiff, Johnson, became moot before the court ruled on the motion for class certification and the individual or proposed class claims are not capable of repetition but evading review, the court concludes that the case no longer satisfies the Article III case or controversy requirement. The court dismisses this action as moot, and the clerk is directed to close the file. Further, according to the Order, although the court dismissed this action, the court notes that this decision in no way impedes Gerin and Hughes from filing their own class action against the defendants in the proper venue. The civil case is terminated.
Previously, on August 13, 2002, the Court granted the motion to appoint lead plaintiff and approve selection of counsel. On December 10, 2002, a Consolidated Complaint was filed and later stricken by the Order entered on August 19, 2003. On September 8, 2003, an Amended Consolidated Complaint was filed and the defendants responded by filing motions to dismiss the Amended Consolidated Complaint. On September 24, 2004, the Court entered the Order granting in part and denying in part the motions to dismiss. Two individual defendants and defendants WRL Series Fund, Transamerica Life and World Money Group were dismissed from the case. In 2005, defendant Aegeon USA, Inc. later filed a motion for partial summary judgment which was later denied as moot. In May 2006, the plaintiff filed a motion for class certification.
The complaint first filed in the U.S. District Court for the Northern District of Georgia alleges that WMA, the AEGON defendants (which include the subsidiaries and affiliates of AEGON USA which develop, underwrite, market and/or sell the variable annuities), and other financial institutions, all of which either develop, underwrite, market and/or sell these variable annuities, violated the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, and also breached their fiduciary duties to plaintiff and the other members of the class or their employers, by making materially false and misleading statements and omissions that caused plaintiff and other members of the class to purchase the variable annuity contracts. These tax-deferred variable annuities sold by defendants are never suitable investments for tax-deferred retirement accounts because earnings on any investment placed in such an annuity already are tax-deferred, and purchase of a deferred annuity in an already tax-deferred retirement account represents a completely useless approach which simply increases carrying costs.