According to the Company’s FORM 10-Q for the quarterly period ended June 30, 2008, after denying the Company’s motion to dismiss on September 12, 2006, the Court ordered the parties to conduct discovery in the case. In March 2007, the parties agreed to stay further discovery in the case with the Court’s approval pending a mediation designed to reach a settlement resolving the lawsuit. The parties conducted a mediation in April 2007, and subsequently entered into a settlement agreement in February 2008. The settlement agreement provides for a cash settlement payment of $3.6 million to be paid by the Company’s insurer and payment of expenses of plaintiff’s lead counsel not to exceed $50,000. In exchange for the cash settlement payment and expense payment, the Company and all defendants would be released from all claims of class members relating to the action. The Court preliminarily approved the settlement agreement of the parties by an order entered on April 1, 2008, and subsequently granted final approval of the settlement agreement after a fairness hearing on June 20, 2008.
On June 26, 2006, the Court entered the Order signed by U.S. District Judge Claude M. Hilton granting the motion to appoint Cement Masons & Plasters Joint Pension Trust as Lead Plaintiff. Further, the law firm of Lerach Coughlin Stoia Geller Rudman & Robbins LLP was appointed as lead counsel and the law firm of Richards McGettigan Reilly & West, P.C. was appointed as liaison counsel. On July 14, 2006, the defendants filed a motion to dismiss the plaintiff’s class action complaint with prejudice.
The original complaint charges TNS and certain of its officers and directors with violations of the Securities Act of 1933. TNS describes itself as “one of the leading providers of business-critical, cost-effective data communications services for transaction-oriented applications and operates through its wholly owned subsidiary Transaction Network Services, Inc. TNS provides rapid, reliable and secure transaction delivery platforms to enable transaction authorization and processing across several vertical markets and trading communities.”
Specifically, the complaint alleges that, in connection with the Secondary Offering, TNS filed a Registration Statement in which defendants negligently failed to disclose several “material changes” to TNS’s continuing operations which were required to be disclosed. Specifically, the Registration Statement failed to disclose that: (i) contrary to earlier statements, an agreement that the Company had with the Pepsi Bottling Group, Inc. (the “Pepsi Contract”) had been delayed beyond August 7, 2005; (ii) at the time of the Secondary Offering, TNS was generating less revenues and earnings than it had anticipated from its contract with the Royal Bank of Scotland (“RBS”); and (iii) at the time of the Secondary Offering, the Company’s International Services Division was experiencing declining revenues because of unfavorable exchange rates.
The complaint further alleges that on or around October 20, 2005, the Company, in a press release and conference call, announced its financial results for the third quarter of 2005 and noted that it had missed its top-line revenue guidance because of delays in the Company’s Pepsi Contract, the impact of unfavorable exchange rates and a reduction in transaction volume from RBS. Following this announcement, shares of TNS common stock fell 25%. Then, on February 22, 2006, the Company reported declining financial results for the fourth quarter of 2005 and attributed the decline to a further delay associated with the Pepsi Contract and the continued impact of unfavorable exchange rates. Shares of TNS common stock declined an additional 19% in response to this announcement.