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 November 7, 2001 and June 27, 2003, thereby artificially inflating the price of DVI's publicly traded securities. The Complaint alleges that these statements were materially false and misleading because they failed to disclose and misrepresented the following adverse facts, among others: (1) that the Company had failed to timely write down the value of certain assets which had become impaired; (2 ) that the Company's accounting and financial reporting policies and procedures for non-systematic (non-recurring) transactions were inadequate; (3) that the Company lacked adequate internal controls and was therefore unable to ascertain the true financial condition of the Company; and (4) that as a result, the values of the Company's assets, net income and earnings per share were materially overstated at all relevant times.
The Class Period ends on June 27, 2003. On that date, DVI shocked the investing public when it announced that the SEC had rejected its March 30, 2003 quarterly report because it had not been reviewed by an independent auditor. The Company also disclosed that it was continuing to consider the need for the accounting change, and, if adopted, its net income for the third quarter of fiscal 2003, its earnings per share for the first nine months of fiscal 2003 and its net income for the fiscal year 2002 would all be drastically reduced. Specifically, the Company's net income for the third quarter of fiscal 2003 would be reduced by $1.4 million, or 44.47% , its earnings per share for the nine months ended March 31, 2003 would be reduced by $0.10, or 44.45% and its net income for fiscal year ended June 30, 2002 would be reduced by $1.395 million or 34.12%. Investor reaction was swift and negative, with DVI stock falling from a close of $5.84 on June 26, 2003 to a close of $4.30 on June 27, 2003, or a single-day decline of more than 26% on very high trading volume.
According to the docket for the first complaint filed, on August 21, 2003, the plaintiff James Bennett filed a notice of voluntary dismissal as to all defendants. On August 26, 2003, the Court entered the Order signed by U.S. District Judge Legrome D. Davis dismissing the matter without prejudice to the plaintiff’s request for voluntary dismissal.
On August 20, 2003, another similar class action complaint was filed against DVI, Inc. and certain individuals. According to the docket for that case, docket 03-CV-04795, on August 28, 2003, a suggestion of bankruptcy was filed by DVI, Inc. under Chapter Number 11 of the Bankruptcy Code in the Bankruptcy Court for the District of Delaware. On September 15, 2003, the Court entered the Order staying the action as to DVI, Inc. On November 26, 2003, the Court entered the Memorandum and Order that the motions of the Cedar Street Group in Grossman et al. vs. Merrill Lynch & Co., et al., case number 03-5336, for consolidation, appointment as lead plaintiff, approval of selection of lead counsel and liaison counsel are granted in all respects. Further, the related cases were consolidated into lead case 03-CV-5336 and captioned In Re DVI Inc. Securities Litigation.
On September 20, 2004, the plaintiffs filed a Third Consolidated Amended Class Action Complaint. On November 1, 2004, the named Defendants filed motions to dismiss the Complaint. On May 31, 2005, the Court granted in part and denied in part Defendants’ Motions to Dismiss. The Court, on February 16, 2006, denied Defendants’ motions for reconsideration and for certification for interlocutory appeal of the Court’s May 31, 2005 decision. Plaintiffs, on September 30, 2005, amended the Complaint to add Section 20(a) claims against Thomas Pritzker, the Pritzker Organization LLC and certain unnamed Pritzker family members as controlling parties. In addition, Plaintiffs, on April 7, 2006, added Section 10(b) and Rule 10b-5(a) and (c) claims against DVI’s former lead legal counsel, Clifford Chance LLP and Clifford Chance (US) LLP. The Court’s denial, in part, of Defendants’ motions to dismiss Plaintiffs’ Complaint only addressed the sufficiency of Plaintiffs’ pleadings and did not determine the merits of Plaintiffs’ claims.
On August 11, 2006, the Court denied the motions to dismiss filed by Defendants Thomas Pritzker and The Pritzker Organization and by Defendants Clifford Chance LLP and Clifford Chance US LLP.
On August 21, 2006, the Court preliminarily approved the partial settlements with Defendants Defendants OnCure Medical Corp., f/k/a OnCure Technologies Corp., Dolphin Medical, Inc. and PresGar Imaging LC. On November 20, 2006, the Court entered the Order approving the partial settlements with Defendants OnCure Medical Corp., f/k/a OnCure Technologies Corp., Dolphin Medical, Inc. and PresGar Imaging LC. Lead Plaintiffs settled their claims against OnCURE, Dolphin and PresGar for cash payments of $1,175,000, $960,000 and $750,000, respectively, for total Partial Settlements with these Defendants of $2,885,000.
In July 2007, the Lead Plaintiffs in the action entered into a Partial Settlement with three of the named Defendants in this Litigation, Nathan Shapiro, William Goldberg and John McHugh, who are former outside directors of DVI, for cash payment of $3,250,000, which is being funded from the Settling Defendants' personal assets. On November 5, 2007, the Court issued the Order of Final Judgment and Dismissal of all claims against the Settling Defendants Nathan Shapiro, William Goldberg and John McHugh.
In December 2007, the Lead Plaintiffs entered into a Partial Settlement to settle their claims against Defendant Merrill Lynch & Co., Inc., which was a former lender to DVI and underwriter in certain "securitization" transactions, for cash payment of Four Million Five Hundred Thousand dollars ($4,500,000)
On February 25, 2008, Defendant Radnet Management, Inc.’s July 17, 2007 motion for summary judgment was denied without prejudice. On April 30, 2008, the settlement with Merrill Lynch was approved. That same day, the lead plaintiffs’ December 4, 2006 motion for class certification was denied with respect to Clifford Chance LLP and Clifford Chance (US) LLP, but granted with respect to all other defendants. On October 9, 2008, a Stipulation of Dismissal was filed by Radnet Management, Inc. On October 14, 2008, Defendant Radnet Management, Inc. was dismissed with prejudice.
According to a press release dated February 19, 2009, the Lead Plaintiffs in the above captioned action have entered into a Settlement with certain Defendants in this Litigation, Thomas J. Pritzker and The Pritzker Organization, LLC (the "Pritzker Defendants"). The Settlement terms include releases of, among other things, the Class' purported claims against Thomas J. Pritzker and The Pritzker Organization, LLC, and other Released Parties (as that phrase is defined in the Stipulation), including unknown members of the Pritzker family, John Does 1 through 10, but not claims asserted against other defendants. … Lead Plaintiffs have settled their claims against the Pritzker Defendants for cash payment by The Pritzker Organization, LLC, of Seven Million dollars($7,000,000). The final amount distributed to Class Members will depend upon the amount of interest earned on these funds and the amount of Court-approved attorneys' fees, costs and expenses, and Notice and Administration Costs.
On April 15, 2009, the Honorable Legrome D. Davis issued the Order and Final Judgment and Dismissal, approving the fourth settlement, plan of allocation, and attorneys’ fees and expenses. According to the Order, the Plaintiffs’ Lead Counsel are awarded $2,333,333 in attorneys’ fees and $2,300,000 in reimbursement of expenses.
On April 30, 2009, the remaining defendants filed several motions for summary judgment. On September 29, 2009, Judge Davis signed the Order closing the action for statistical purposes and placing the matter in the civil suspense file. On September 3, 2010, Judge Davis denied defendant Gerald Cohn's motion for summary judgment, as well as granted in part and denied in part defendant Deloitte & Touche's motion for summary judgment.
On February 21, 2011, the plaintiff filed a motion for preliminary approval of the settlement. The proposed settlement resolves claims with an individual defendant, in the amount of $4 million in cash. The settlement was preliminarily approved on March 4, 2011.
According to a press release dated March 18, 2011, a hearing will be held before the Honorable Legrome D. Davis in the United States District Court for the Eastern District of Pennsylvania on May 19, 2011 at 11:00 a.m. to consider and/or determine: (a) whether the Stipulation is fair, reasonable and adequate and in the best interests of the Class and should be finally approved; (b) whether the Order of Final Judgment and Dismissal, as provided in the Stipulation, should be approved and entered; (c) whether the Plan of Allocation proposed by Lead Counsel or some other allocation methodology is fair, reasonable, adequate and in the best interests of the Class and should be approved; (d) applications for any award of attorneys' fees, costs and expenses; and (e) such of these and such other matters as the Court may deem appropriate.