On October 24, 2005, the Court entered the Final Order and Final Judgment signed by U.S. District Judge Samuel H. Mays Jr.. The settlement was approved.
According to the Notice of Pendency ad Settlement of Class Action, the proposed Stipulation and Agreement of Settlement of Class Action creates a Settlement Fund in the amount of $13,250,000.00. A hearing will take place on October 21, 2005, for the purpose of determining whether: (a) the proposed settlement and Settlement Agreement should be approved as fair, reasonable and adequate; (b) the proposed Plan of Allocation is fair, reasonable, and adequate and should be approved; (c) the Court should approve applications of Plaintiffs. Counsel for an award of attorneys. fees, costs and expenses; and (d) the Court should enter the Final Judgment dismissing the Action with prejudice as against Defendants and releasing the Released Parties. T
As summarized by the same Notice, on November 29, 2002, the Court entered an Order consolidating the actions. Thus, the litigation, in its entirety, exists as consolidated Case No. 02-CV-2697 (.the Action.). Furthermore, on this same date, the Court confirmed the appointment of J.T. Milligan, James Keith Milligan, and J. Curtis Williams, Jr. as Lead Plaintiffs for the Action. By the same Order, the Court approved the selection of Plaintiffs. Lead Counsel: Wolf Haldenstein Adler Freeman & Herz LLP. Lead Plaintiffs filed their Consolidated Amended Class Action Complaint (the .Complaint.) on February 17, 2003. The Complaint generally alleges that Defendants violated Section 10(b) and, in the case of the Individual Defendants, Section 20(a) of the Securities Exchange Act of 1934, by issuing materially false and misleading statements during the Settlement Class Period concerning Concord’s financial condition and operating results, including concerning Concord’s transactions with H & F Services, Inc., an entity that served as a sales organization for certain of Concord’s products. Defendants filed a Motion to Dismiss on May 2, 2003, and then Plaintiffs filed their Response to the Motion to Dismiss on May 30, 2003. Defendants then filed a Reply to Plaintiffs. Response on June 25, 2003. On January 7, 2004, this Court entered an order denying the Motion to Dismiss filed by Defendants, and, thereafter, Defendants filed an Answer and Separate or Affirmative Defenses on February 27, 2004. Discovery occurred thereafter. Beginning in January 2005, Lead Plaintiffs and Defendants submitted to mediation with an independent mediator. Following mediation, the parties entered into the Settlement Agreement to settle the Action, subject to the approval of the Court.
The original action charges that Concord and certain of its officers and directors 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 during the Class Period, thereby artificially inflating the price of Concord common stock. Specifically, the Complaint alleges that Defendants repeatedly misrepresented the strength of Concord's operating performance and growth in order to inflate the price of Concord stock to complete acquisitions using Concord's stock as currency and to sell off their own Concord stock, pocketing over $160 million in illegal insider-trading proceeds. Throughout the Class Period, Defendants maintained that: (1) the Company's margins were 'immune' to average ticket size declines due to its fixed fee; (2) the Company's revenue growth was accelerating; (3) rumors about top management departures were unfounded; (4) the Company was successfully integrating acquired companies into Concord such that the Company would achieve synergies and improved operating margins going forward; (5) new contracts with major companies would contribute significantly to 2002 revenues and problems with its new WalMart contract had been resolved in December 2001; and (6) the Company was on track to report EPS of $0.75 and $0.93 in 2002 and 2003, respectively. The truth, however was that the Company's business was not growing as represented, but was suffering from increased costs and declining margins. Then, on September 5, 2002, Concord shocked the market with news that its CEO was stepping down and that its 2002 and 2003 earnings would be much lower than represented. On this news, Concord's stock dropped to $12.60 per share.