According to a press release on March 31, 2008, Tempur-Pedic International Inc., the leading manufacturer, marketer and distributor of premium mattresses and pillows worldwide, announced the dismissal of a putative class action lawsuit filed against the Company in the U.S. District Court for the Eastern District of Kentucky. The lawsuit generally alleged that the Company and certain named defendants made misleading public statements concerning the Company's financial condition, thereby inducing the plaintiffs to purchase Tempur-Pedic International securities at artificially inflated prices. On March 28, 2008, the Court granted the Company's motion to dismiss all claims against all defendants with prejudice and without leave to re-plead.
On June 14, 2006 defendants filed motions to dismiss the March 2006 consolidated complaint. Prior to ruling on the motion, the judge granted plaintiffs leave to file an amended consolidated complaint, which they did on December 7, 2006. Defendants again moved to dismiss the complaint May 1, 2007.
According to the Company’s FORM 10-Q for the quarterly period ended September 30, 2006, between October 7, 2005 and November 21, 2005, five complaints were filed against Tempur-Pedic International and certain of its directors and officers in the United States District Court for the Eastern District of Kentucky (Lexington Division) purportedly on behalf of a class of shareholders who purchased Tempur-Pedic International’s stock between April 22, 2005 and September 19, 2005. On December 29, 2005, the court consolidated these five actions (the Securities Law Action). Lead plaintiffs filed a consolidated complaint on February 27, 2006. In their consolidated complaint, lead plaintiffs assert claims arising under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. Lead plaintiffs allege that certain of Tempur-Pedic International’s public disclosures regarding its financial performance between April 22, 2005 and September 19, 2005 were false and/or misleading. The principal allegation set forth in the Securities Law Action is that Tempur-Pedic International did not disclose the impact of competition on its prospects. The plaintiffs seek compensatory damages, costs, fees and other relief within the Court’s discretion. On June 14, 2006, the Company filed a motion to dismiss all claims in the Securities Law Action. That motion is currently pending before the Court.
The original Complaint alleges that by the beginning of the Class Period investors became concerned that well-heeled competitors, such as Sealy, Serta and Simmons, were making significant inroads into the visco-elastic market that could challenge Tempur-Pedic's dominance or, at the very least, erode its profits if it was forced to slash prices in order to compete. Defendants allayed these concerns by misrepresenting that its business was not suffering from the effects of competition and would continue to grow strongly. Well into the Class Period, defendants reiterated aggressive sales and earnings guidance for 2005, even after the Company had begun to experience a slowdown. Defendants' Class Period representations were materially false and misleading when made because they failed to disclose that: (a) demand for Tempur-Pedic's products was slowing as competitors were gaining a foothold in the visco-elastic market; (b) defendants' repeated express assurances that the competition was not having a materially negative, or any, impact on the Company, even in response to express concerns raised by analysts, were untrue and provided false comfort to investors while inflating the price of Tempur-Pedic stock so insiders could sell their shares; and (c) in light of increasing competition that was already having a noticeable effect on the Company's business, defendants' guidance, reiterated on July 21, 2005, lacked any reasonable basis.
Defendants were motivated to commit the wrongdoing alleged herein in order to sell their personally held Tempur-Pedic stock at artificially inflated prices. During the Class Period, insiders and entities associated with insiders, sold a total of 5,620,591 shares of Tempur-Pedic common stock at artificially inflated prices, for proceeds of $131,910,207. Of that amount, $124,550,000 was sold by TA Associates, a controlling shareholder that has two nominee directors on Tempur-Pedic's board of directors.
The Complaint further alleges that on or around September 19, 2005, Tempur-Pedic issued lower guidance for 2005, which it attributed to a number of factors, including competition that it had said was not and would not have a negative impact, at least not one large enough to cause it to lower its 2005 guidance, which was reiterated less than a month before this announcement.
In response to this announcement, the price of Tempur-Pedic common stock plummeted, falling 28.5% in one day, to $11.70 per share on July 20, 2005 from $16.38 per share on July 19, 2005, on unusually heavy trading volume.