According to the Order entered on August 8, 2006, signed by U.S. District Judge T. John Ward, pursuant to the Final Judgment and Order of Dismissal (#335) entered in this case, the Court hereby orders that all pending claims are dismissed with prejudice. All pending motions are denied as moot. The above mentioned case is closed. This order applies equally to all consolidated cases, excepting all claims and motions in Cause No. 5:05-CV-165, Post Confirmation Trust v. Digital Exchange Systems, Inc., et al.
On November 20, 2005, the Court entered the Final Judgment and Order of Dismissal signed by Judge T. John Ward. According to the Order, the settlement is approved and all claims are dismissed with prejudice.
By the Notice of Pendency and Settlement of Class Action dated October 20, 2005, the Court will hold a Settlement Hearing at 10:00 a.m. C.S.T. on November 29, 2005, at the United States District Court for the Eastern District of Texas, 100 East Houston Street, Marshall, Texas 75671, on whether to approve the proposed settlement. The $93.95 million total Settlement is comprised of three separate settlements. First, in June 2005, the Class Representatives and the Fleming Defendants arrived at a proposed settlement of the claims against the Fleming Defendants for $31.45 million. The settlement terms are contained in a Stipulation and Agreement of Settlement (“Fleming Defendants’ Stipulation”) dated October 11, 2005. Second, the Class Representatives and Deloitte & Touche arrived at a proposed settlement of the claims against Deloitte & Touche for $35 million and signed a Memorandum of Understanding on May 20, 2005. The settlement terms are contained in a Stipulation of Settlement (“Deloitte & Touche Stipulation”) dated as of May 20, 2005. Third, on June 24, 2005, the Class Representatives and the Underwriter Defendants arrived at a proposed settlement of the claims against the Underwriter Defendants for $27.5 million and signed a Memorandum of Understanding. The settlement terms are contained in a Stipulation and Agreement of Settlement (“Underwriters’ Stipulation”) dated October 11, 2005. The Fleming Defendants, Deloitte & Touche, and the Underwriter Defendants are each responsible only for the amount of the respective settlement amounts that they agreed to pay in their respective Stipulations.
Several actions were filed against Fleming Companies in the U.S. District Courts for the Eastern District of Texas, the Northern District of Texas, and the Western District of Oklahoma. In 2003, all the cases were transferred to the Eastern District of Texas and assigned the Multidistrict Litigation to the Honorable T. John Ward for coordinated or consolidated pretrial proceedings under 03-MD-1530. On September 12, 2003, the plaintiffs filed a Third Consolidated Amended Class Action Complaint, and in October 2003, the defendants responded by filing several motions to dismiss the complaint. Fleming Companies was no longer named defendant due to it filing bankruptcy. On June 10, 2004, the Court entered the Memorandum and Opinion granting in part and denying in part the motions to dismiss the Third Consolidated Amended Class Action Complaint. On June 28, 2004, the plaintiffs filed a Fourth Consolidated Amended Class Action Complaint, and on December 16, 2004, filed a Fifth Consolidated Amended Class Action Complaint.
In April 2003, a complaint was filed against Fleming Companies, Inc. in the U.S. District Court for the Eastern District of Texas. According to the Order entered on September 29, 2003, the case is transferred to the Multidistrict Litigation Docket No. 1530 and consolidated with those cases for pretrial purposes. The complaint filed in 2003 alleges that in connection with the Offering, Fleming issued 9.2 million shares of common stock at $19.40 per share and $200 million in Notes (collectively, the "Fleming Securities"). The Fleming Securities were sold pursuant to a Registration Statement and Prospectus, as amended (collectively, the "Registration Statement"), which contained false and misleading statements of material fact and omitted to state material facts necessary in order to make the statements made therein not misleading. The Registration Statement materially misstated the Company's financial results of operation by, among other things, including financial statements that misrepresented and/or omitted the true facts, including: That Fleming was taking unauthorized deductions on invoices received from vendors which reduced recognition of expenses associated with the cost of goods sold and understated accounts payable; That Fleming had lengthened the amortization period for long-term assets by increasing the capitalization rate for interest costs and by lowering the allowance for credit losses, in violation of GAAP. The complaint also alleges that the Registration Statement represented that Fleming's retail operations were profitable at a time when the Company was, in fact, losing money on its retail business and was in the process of divesting itself of those operations. As a result of these misrepresentations, the Fleming Securities were inflated in connection with the Offering, and plaintiff and other persons who purchased the Fleming Securities in the Offering paid inflated prices and were damaged thereby. The complaint further alleges that on July 30, 2002, less than two months after defendants sold more than $378 million worth of the Fleming Securities to the public, Fleming issued a release announcing that, contrary to the prior positive statements contained in the Registration Statement, defendants were in fact evaluating strategic alternatives for dealing with the Company's money-losing retail operations.
The original complaint alleges violations of Sections 10(b) and 20(a), of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. Specifically, the suit alleges that beginning in early 2002, the defendants issued numerous positive statements regarding Fleming's "price-impact" retail supermarket division. These statements were made despite the fact that the defendants knew, or recklessly disregarded, that the performance of Fleming's "price-impact" retail supermarket division was, in the words of the defendants, "disappointing." These statements falsely portrayed Fleming's business prospects and artificially inflated and maintained the price of Fleming common stock. The defendants capitalized on their false and misleading statements by: 1) lowering the interest rate and extending the maturity on $250 million of Fleming's debt; 2) raising over $155 million through the June 13, 2002 sale of 8 million shares of Fleming common stock at $19.40 per share; 3) raising an additional $200 million through the June 13, 2002 sale of Fleming Notes due 2010; and 4) using the proceeds of the June 13, 2002 securities sales to complete the purchase of Core-Mark International, Inc. and Head Distributing for $330 million in cash -- acquisitions described by the defendants as "key" to Fleming's implementation of its strategic transformation into an efficient, national, multi-tier supply chain for consumer packaged goods. Then, approximately six weeks after defendants sold $355 million worth of Fleming securities, Fleming announced after the close of trading on July 30, 2002 in an abrupt departure to the repeated and positive statements made by the defendants during the Class Period, that its "price-impact" retail supermarket division was not only performing poorly, but performing so poorly that Fleming was considering abandoning this line of business entirely. The price of Fleming common stock dramatically declined on this announcement, falling from $15.21 on July 30, 2002 to $13.75 on July 31, 2002, on huge trading volume of 3.9 million shares, and continued to decline over the next two heavy trading days to a 52-week low of $10.76 on August 2, 2002. Since then, the price of Fleming common stock has never recovered, and currently trades well below the $19.40 price at which Fleming sold 8 million shares to unsuspecting investors on June 13, 2002.
Conversely, Fleming (the Company) believes this lawsuit is baseless and completely without merit. The company affirms that is has acted, and continues to act, in compliance with federal securities laws and intends to vigorously defend the action. In relation to the statements for which the company is being sue. The statements are based on management's current expectations and subject to a number of factors that could cause actual results to differ materially from those stated in this release, including without limitation: changes in general economic conditions; adverse effects of the changing industry and increased competition; sales declines and/or loss of customers; the ability of Kmart to continue as a going concern, to operate pursuant to the terms of its debtor- in-possession financing, or to complete its reorganization according to its plan; unanticipated problems with product procurement; exposure to litigation and other contingent losses; the inability to integrate acquired companies and to achieve operating improvements at those companies; increases in labor costs and disruptions in labor relations with union ]bargaining units representing Fleming's employees; and the negative effects of Fleming's substantial indebtedness and the limitations imposed by restrictive covenants contained in Fleming's debt instruments.
Note: On or about April 1, 2003, Fleming Companies filed for protection under the federal bankruptcy code. Fleming was the largest U.S. distributor of consumer package goods in the wholesale grocery industry, where it operated a network of "multi-tier" distribution centers throughout the United States and western Canada.