According to the SEC, Merge Technologies, Inc. ("Merge" or the Company) develops clinical and medical imaging software applications and development tools.
Several purported shareholder class action lawsuits have been filed against Merge and certain of its executive officers alleging that Defendants violated federal securities laws by issuing a series of materially false statements. Specifically, Defendants misrepresented that the Company's merger with Cedara Software Corporation was highly successful while concealing: (i) that Merge lacked adequate internal controls; (ii) the Company's financial statements for the second and third quarters of 2005 were unreliable; and (iii) that the Company's financial projections were irresponsible considering the knowledge Defendants possessed concerning the Company's actual financial situation.
The Complaint further alleges that on or around March 17, 2006, Merge reported, inter alia: (i) that the accounting improprieties necessitated that management delay the completion of its financial statements for the fiscal year ended December 31, 2005; (ii) that its audit committee, with the assistance of outside Counsel, was investigating anonymous complaints; (iii) that it anticipates a report of material weaknesses in the Company's internal control over financial reporting; (iv) the suspension of its registration statement on Form S-3 relating to issuance of common stock upon exchange of exchangeable shares of "Merge/Cedara ExchangeCo Ltd.;" and (v) that its audit committee concluded that its previously issued financial statements for the second and third quarters 2005 should no longer be relied upon.
On November 22, 2006, the Court entered the Decision and Order signed by U.S. District Judge Rudolph T. Randa granting the motion to consolidate several cases, and granting the motion to approve Southwest Carpenters Pension Trust as lead Plaintiff and to appoint the law firm of Lerach Coughlin Stoia Geller Rudman & Robbins LLP as lead Counsel and the law firm of Hale & Wagner as local or liaison Counsel. On March 21, 2007, the Plaintiffs filed a Consolidated Class Action Complaint. The Defendants responded by filing several motions to dismiss the Consolidated Class Action Complaint on July 16, 2007. On October 26, 2007, the Judge Rudolph T. Randa signed an Order granting the motion to appoint new lead Counsel.
According to an article dated April 3, 2008, a judge has rejected calls by medical software company Merge to dismiss a securities fraud suit but has agreed to toss accounting giant KPMG LLP from the case. Judge Rudolph Randa, of the U.S. District Court for the Eastern District of Wisconsin, also dismissed claims against one of the company's senior executives, but ruled the case could move ahead against Merge's former chief executive and chief financial officer. In his ruling, the judge said the Plaintiffs had presented sufficient evidence that Merge and its top two officers had deceived investors and artificially inflated the Company's stock price. … The claims against KPMG could not survive either, he said.
According to a news report dated May 26, 2008, Defendants have entered into an agreement of settlement. The agreement in principle provides for the settlement, release and dismissal of all claims asserted against Merge and the individual Defendants in the litigation. In exchange, Merge has agreed to a one time cash payment of $3,025,000 to the Plaintiff and Merge's primary and one of its excess D&O insurance carriers have agreed to a one time cash payment of $12,975,000 to the Plaintiff, for a total of $16 million. The settlement is subject to, among other things, the closing of the financing, the drafting and execution of the final settlement documents, and the approval of the settlement by the court.
A press release dated August 20, 2008 stated that the law office of Timothy DeLange, Esq., Bernstein Litowitz Berger & Grossmann LLP announced that regarding the Maiden v. Merge, et al. Securities Litigation, it has been certified as a class action for purposes of a proposed settlement with Merge and Richard A. Linden, Scott T. Veech and David Noshay, valued at $16 million in cash. A hearing was scheduled before the Honorable Rudolph T. Randa in Milwaukee for November 10, 2008 to determine whether the proposed Settlement should be approved by the Court as fair, reasonable, and adequate, whether the Plan of Allocation is fair and equitable and therefore should be approved in connection with this Settlement, and to consider the application of lead Counsel for attorneys' fees and reimbursement of litigation expenses.
On October 20, 2008 the judge dismissed Defendant KPMG with prejudice. Lead Plaintiffs moved for final approval of settlement and awarding Counsels' request for fees and expenses on October 27.
The judge entered a Final Order and Judgment approving the settlement and closing the case on November 10, 2008. In a separate order he granted attorneys' fees of 19.25% and reimbursement of expenses.
