According to the docket, a plaintiff filed a Notice of Appeal in the Eight Circuit Court of Appeals then withdrew his appeal on May 4, 2005.
In a press release dated January 14, 2005, Xcel Energy Inc. announced that it has reached settlement of three lawsuits, pertaining to: -- The purported class action securities lawsuits that were brought in U.S. District Court for the District of Minnesota on behalf of persons who purchased Xcel Energy's common stock and/or certain series of Senior Notes of its former subsidiary NRG Energy, Inc., between Jan. 31, 2001, and July 25, 2002; -- Actions brought on behalf of participants in Xcel Energy's and its predecessor companies' 401(k) and Employee Stock Ownership Plans, which alleged violations of the federal Employee Retirement Income Security Act of 1974 (ERISA) and which were based on the same general allegations underlying the securities litigation; and -- A shareholder derivative action - purportedly on behalf of Xcel Energy and against the directors and certain present and former officers - which cited essentially the same circumstances as the securities litigation and asserted breach of fiduciary duty.
Under terms of the settlements of the securities and ERISA claims, Xcel Energy's insurance carriers have agreed to pay $70.5 million and Xcel Energy will pay $17.5 million. Settlement of the derivative lawsuit involves Xcel Energy's adoption of certain corporate governance measures and payment of plaintiff's attorneys' fees and expenses, of which $125,000 will be paid by Xcel Energy. The securities settlement is dependent upon successful completion of both other settlements, and all three are subject to various conditions, including final approval by the U.S. District Court following notice and hearing. There are no guarantees that the conditions will be met, including that final court approval will be obtained. The settlements include no admission of liability by Xcel Energy or any individual defendants.
The original Complaint alleges that defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder, by issuing a series of material misrepresentations to the market between January 31, 2001 and July 26, 2002, thereby artificially inflating the price of Xcel Energy securities. Throughout the Class Period, as alleged in the Complaint, defendants issued numerous statements and filed quarterly and annual reports with the Securities & Exchange Commission ("SEC") which described the Company's financial performance and the financial performance of NRG Energy, Inc.
("NRG"), the Company's majority-owned subsidiary. As alleged in the Complaint, these statements were materially false and misleading because they failed to disclose and/or misrepresented the following adverse facts, among others: (a) that the Company had engaged in "round-trip" energy trades that provided no economic benefit for the Company; (b) that Xcel's and NRG's credit agreements with lenders contained cross-default provisions and covenants, the result of which was that in the event of a default by NRG, among other adverse effects, Xcel would lose access to $800 million in credit; (c) that the Company lacked the necessary internal controls to adequately monitor the trading of its power; and (d) that as a result, the value of the Company's revenues and financial results were materially overstated at all relevant times. After the close of the market on July 25, 2002, Xcel issued a press release announcing its financial results for the second quarter, the period ended June 30, 2002, and disclosed that its earnings had declined and that it was revising its earnings expectations for fiscal 2002. In a conference call the very next day, defendants finally disclosed the true extent of Xcel's liquidity and credit difficulties and its management's inability to effectively remedy such difficulties stemming from the operations of NRG. As reported in several business articles dated July 26, 2002, analysts were horrified to learn that the liquidity and credit difficulties extended to Xcel itself under the "cross-collateral default" provisions Xcel and NRG had entered into with lenders. Market reaction to these revelations was swift and brutal. On July 26, 2002, Xcel stock closed at $7.55, a more than 36% one-day decline, on extremely heavy trading volume. Subsequently, on July 28, 2002, defendants disclosed that Xcel was being investigated by the SEC, among other regulators, for engaging in "round-trip" or "wash" transactions, which involve the simultaneous buying and trading of power at the same price and same amount and provide no economic benefit to the Company.