Vivendi Universal, S.A. ("Vivendi" or the Company) is a French mass-media holding company.
The original Complaint alleges that Defendants violated the federal securities laws by issuing materially false and misleading statements throughout the Class Period that had the effect of artificially inflating the market price of the Company's securities. Specifically, prior to and during the Class Period, Mr. Messier took Vivendi on an acquisition binge that, according to published reports, resulted in the Company amassing approximately $18 billion in debt as he turned the Company from a water concern into an entertainment powerhouse. Under Mr. Messier's leadership, Vivendi completed a $30 billion buyout of Canada's Seagram and a $10.3 billion purchase of USA Networks Inc., the cable and entertainment company owned by Hollywood mogul Barry Diller. Concomitantly, Mr. Messier orchestrated a scheme to conceal the severity of Vivendi's liquidity problems stemming from the massive debt load incurred as a result of these and other transactions. In fact, only days before his ouster by Vivendi's Board, Mr. Messier caused the Company to issue several press releases that falsely stated that Vivendi did not face an immediate and severe cash shortage that threatened the Company's viability going forward absent an asset fire sale. It was only after Vivendi's Board dislodged Mr. Messier that the Company's new management disclosed the severity of the crisis and that the Company would have to secure immediately both bridge and long-term financing or default on its largest credit obligations. As detailed in the Complaint, Mr. Messier failed to disclose the true contours of Vivendi's cash crisis and his affirmative misrepresentations to the contrary have given rise to an investigation by French authorities concerning whether Mr. Messier disclosed in a timely fashion that the Company was in dire financial straits. Published reports also indicate that Vivendi is engaged in urgent discussions with lenders to secure financing and is both considering and negotiating the sale of assets.
Several actions were also filed in the U.S. District Court for the Central District of California. In November 2002, the actions were transferred to the Southern District of New York.
As previously disclosed by the Company’s Form 20-F for the fiscal year ended December 31, 2003, sixteen separate putative class action suits were filed against Vivendi, Jean-Marie Messier and (in nine cases) Guillaume Hannezo in the United States District Court for the Southern District of New York and in the United States District Court for the Central District of California. In September 2002, the fourteen New York cases were consolidated into In re Vivendi Universal Securities Litigation (Master File No. 02 CV 5571), and co-lead Plaintiffs and co-lead Counsel were appointed by the Court. In November 2002, the two California cases were transferred to New York and consolidated with the New York litigation. On January 7, 2003, the co-lead Plaintiffs filed a consolidated class action Complaint, alleging violations of the Securities Act of 1933 and the Securities Exchange Act of 1934. On November 6, 2003, the Court issued an Opinion and Order granting Defendants’ motions to dismiss with respect to Plaintiffs’ claims under Sections 11 and 12(a)(2) of the Securities Act (on behalf of purchasers who acquired Vivendi ADSs pursuant to a registration statement on Form F-6 not alleged to be misleading by Plaintiffs and Section 14(a) of the Exchange Act, but otherwise denying Defendants’ motions to dismiss. As part of its Opinion and Order, the Court gave Plaintiffs leave to replead their claim against Vivendi under Section 14(a) of the Exchange Act. In November 2003, both Plaintiffs and Defendants filed motions seeking reconsideration of certain aspects of the Court’s Opinion and Order. A decision on those motions remains pending.
On November 24, 2003, Plaintiffs served Vivendi with their First Amended Consolidated Class Action Complaint, containing their repleaded claim under Section 14(a) of the Exchange Act. On April 1, 2004, the Court granted Vivendi’s motion to dismiss Plaintiffs’ Section 14(a) claim and denied Plaintiffs leave to replead. On November 26, 2003, Plaintiffs served Defendants with their First Request for the Production of Documents. On January 29, 2004, the Court issued a decision denying in part, and granting in part, Plaintiffs’ motion to compel production. On January 16, 2004, Plaintiffs served Defendants with their Second Request for the Production of Documents. That request is extremely broad in scope. Following the Court’s April 1, 2004, decision on Vivendi's motion to dismiss Plaintiffs’ Section 14(a) claim, pretrial discovery (including document production) has now commenced in the securities class action litigation.
According to the Company’s Form 20-F for the fiscal year ended December 31, 2005, the proceedings are currently in the discovery stage in which the Plaintiffs have to prove violation that caused a loss to the shareholders. The judge extended this stage until November 30th, 2006. In parallel with these proceedings, the procedure for certification of the potential claimants as a class with standing to act on behalf of all shareholders (“class certification”) is ongoing. The judgment on the class certification is expected in the course of 2006.
In an article dated November 29, 2006, the Court made a decision on November 11, 2006, in the case In re Vivendi Universal S.A. Securities Litigation. In their securities fraud class action, Plaintiffs sought to compel non-party Lazard Group LLC -- a New York-based Delaware company -- to produce documents, located in France, under an October 2005 subpoena duces tecum. Lazard claimed that in deference to France's 'Blocking' statute, Plaintiffs must seek documents in its possession or control in France under Chapter 11 of the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters. The court granted Plaintiffs' motion and denied Lazard protective relief. Applying the factors outlined in First American Corp. v. Price Waterhouse LLP, it found no reason to depart from the Federal Rules of Civil Procedure, noting that a majority of courts have held that France has little interest in enforcing its Blocking statute. Citing Bodner v. Paribas and Compagnie Francaise d'Assurance Pour le Commerce Exterieur v. Phillips Petroleum Co., the court observed that, despite threats by French agencies, the statute does not subject Lazard to a realistic risk of prosecution.
According to a press release dated March 25, 2007, a federal judge in New York has ruled that French, British and Dutch citizens who bought Vivendi shares before the French media-to-telecom group neared bankruptcy in 2002 are allowed to join a U.S. class action against the Company that was initiated by Vivendi shareholders. "The United States District Court in New York which is hearing the class action initiated against Vivendi in July 2002, has decided that the persons from the United States, France, England and the Netherlands who purchased or acquired shares or ADS of Vivendi _ previously Vivendi Universal _ between Oct. 30, 2000, and Aug. 14, 2002, could be included in the class," Vivendi said in a statement Sunday. Vivendi will review the appropriate measures to ensure its best defense, the Company said. The Company is entitled to appeal the ruling.
A press release dated August 18, 2008 stated that two former executives of Vivendi have asked a federal court to grant partial summary judgment in the long-standing securities fraud class action alleging that they and their former employer made false and misleading statements that caused Vivendi securities to trade at artificially inflated prices. In separate motions filed Aug. 15 in the U.S. District Court for the Southern District of New York, the individual Defendants sought dismissal from securities fraud claims based on false or misleading statements that they argue they never made.
On March 16, 2009, by Judge Richard J. Holwell denied and also granted the Defendants’ motions for summary judgment and motions for partial summary judgment.
According to an article dated March 31, 2009, a federal judge overseeing securities litigation against Vivendi has rejected Vivendi’s bid for partial reconsideration of a decision to certify a class that included French shareholders, despite Vivendi’s argument that French courts wouldn’t give preclusive effect to a judgment in an opt-out class action. Judge Richard Holwell of the U.S. District Court for the Southern District of New York signed off on a 29-page opinion and order denying Vivendi’s motion for partial reconsideration on Tuesday.
The case then was in trial proceedings. The first day of trial was set for October 5, 2009, before Judge Richard Holwell.
On November 3, 2009, Judge Richard J. Holwell denied the pending Motion for Judgment on the Pleadings and denied the Motion to Dismiss. The Court also denied, for administrative purposes, and without prejudice to renew following completion of the Class trial, several pending motions in this and other related actions.
According to a press release dated January 30, 2010, a jury ruled on Friday in favor of shareholders who said the French media group Vivendi lied to the public about its shaky finances, setting the stage for a possible distribution of billions of dollars in damages to investors. The Company was found liable, but not its executives, according to the verdict in United States District Court in Manhattan. The jury deliberated for 14 days before reaching its verdict. Vivendi said it would appeal. Lawyers for the investors said that the potential payout could total $9.3 billion. Arthur Abbey, one shareholders’ lawyer, said he believed the award was the largest securities class-action jury verdict in history, measured by the number of people affected and the dollars involved. A lawyer for Vivendi said it was impossible at this stage to estimate actual damages because it was not clear how many investors were in the class and who would seek payouts Lawyers on both sides said any potential payment was more than a year away.
According to an article dated April 28, 2010, Vivendi SA can’t block French investors from participating in a U.S. class-action lawsuit, a Paris appeals court ruled. The French investors can remain in the American case, Judge Jean-Claude Magendie said in a ruling today in Paris. Vivendi in January was found liable in a New York case for misleading investors from 2000 to 2002 with statements that hid a liquidity crisis at the Paris-based owner of the largest music and video game companies. The Company had sought to reduce the number of investors who can claim an award from the class-action ruling. About two- thirds of the Plaintiffs in the U.S. case live in France, where such group lawsuits aren’t permitted. Vivendi has set aside 550 million euros ($723 million) to cover a possible payout. There are “serious ties existing” between the French Company, French investors, and the U.S., Magendie said in his 11-page decision. The court rejected a request for damages by the investors.
According to a press release dated February 22, 2011, Vivendi announced that Judge Richard Holwell of the United States District Court for the Southern District of New York has dismissed the claims of all purchasers of Vivendi’s ordinary shares and has limited the case to claims of certain purchasers of Vivendi’s American Depositary Shares. This ruling, which was expected after the decision of the Supreme Court in Morrison v. National Australia Bank Corp., has the effect of eliminating more than 80 percent of the potential damages that could have been awarded following the jury’s verdict against Vivendi in January 2010. Vivendi plans to make a significant reduction in the provisions that it established following the jury’s verdict.
On August 22, 2011, a motion to dismiss and motion for judgment on the pleadings was filed.
On January 27, 2012, in a Memorandum Opinion & Order, the Court granted the Defendants' motion for partial judgment on the pleadings, and the Ordinary Share Claims of the Individual Plaintiffs.
On February 6, 2012, the Court denied the Plaintiffs’ motion for entry of judgment as to the claims of ordinary-share purchasers pursuant to Federal Rule of Civil Procedure 54(b).
On March 20,2012, the individual Defendant’s motion to dismiss the individual Plaintiffs’ newly commenced actions against him as time-barred was denied by the Court.
