According to a press release dated August 27, 2007, the scheme alleged in the Complaint filed centers on false statements regarding the Company's business beginning May 3, 2007 that allowed the Company's Chief Executive Officer to sell more than 68,000 shares on June 8, 2007, at prices above $41 per share, for proceeds of over $2.8 million and more than 82,000 shares on June 11, 2007 at prices of $41 or higher, for proceeds of over $3.3 million.
The Complaint alleges that in May 2007 the Company announced positive earnings guidance for the second quarter 2007 of $0.13 to $0.16 per share which the Company deemed conservative, and earnings for fiscal 2007 of $2.15 to $2.25. The Company also announced a resumption of the Company's share repurchase program up to $150 million over a two-year period beginning May 29, 2007. The market reacted favorably to this share repurchase plan and other positive statements by rising 2.9%.
The Complaint further alleges that even though the Company's CEO knew that consumer demand had fallen materially, that rents and marketing costs were ballooning, and that schools had pushed the beginning of the school year later into the summer, he knowingly or recklessly ignored these factors, and: (a) stated that his "conservative" outlook for the second quarter was for earnings of 13 to 16 cents per share: and (b) further caused the price of Tween Brands stock to be inflated by issuing a press release announcing a $150 million stock buy-back. Even though the Company's CEO knew these statements were materially false and misleading, he sold his shares, and failed to update or correct his misleading pronouncements at any time during the second quarter.
None of the adverse facts were disclosed until August 22, 2007, when the Company revealed that the Company's financial performance during the second quarter had been weak, plagued by a decline in retail traffic, lower store transactions and other factors which appear to have been apparent during the quarter. The Company announced that quarterly earnings would be only $0.07 per share. The Company was also forced to revise downward its prior guidance for fiscal 2007. On this wholly unexpected news the price of Tween Brands stock dropped $11.00 from $38.59 to $27.59.
As summarized by the Company’s Form 10-Q for the quarterly period ended August 1, 2009, since August 24, 2007, three purported class action complaints were filed by purported purchasers of the Company’s common stock against the Company and certain of its current and former officers, asserting claims under the federal securities laws. All of these actions were filed in the United States District Court for the Southern District of Ohio, where, on October 23, 2007, they were consolidated into a single proceeding (the “Tween Brands federal securities litigation”). On December 21, 2007, the Court appointed the Electrical Works Pension Fund, Local 103, I.B.E.W. as lead plaintiff and, on March 20, 2008, the lead plaintiff filed a consolidated complaint naming the Company and certain current and former officers as defendants. The Tween Brands federal securities litigation purports to be brought on behalf of all purchasers of the Company’s common stock between February 21, 2007 and August 21, 2007 (the “class period”). The consolidated complaint alleges, among other things, that the defendants violated Section 10(b) of the Exchange Act, and Rule 10b-5 promulgated thereunder and Section 20(a) of the Exchange Act by making false and misleading statements concerning the Company’s business and prospects during the class period. These actions also allege that the Company’s CEO sold stock while in possession of adverse non-public information. On May 5, 2008, a Motion to Dismiss the consolidated complaint was filed on behalf of all defendants. On June 17, 2008, a Motion for Leave to File a Second Amendment Consolidated Complaint was filed by the lead plaintiff. On September 4, 2008, the Court granted the lead plaintiff’s Motion for Leave to File a Second Amended Consolidated Complaint and on October 3, 2008, the lead plaintiff filed an Amended Consolidated Complaint. On November 17, 2008, a Motion to Dismiss the Amended Consolidated Complaint was filed on behalf of all defendants. On January 30, 2009, lead plaintiff filed an Opposition to Defendants’ Motion to Dismiss. On March 2, 2009, defendants filed a Reply in Support of the Motion to Dismiss. On June 2, 2009, the Court granted Defendants’ Motion to Dismiss with prejudice. On June 16, 2009, the lead plaintiff filed a Motion for Reconsideration, which was denied by the Court on August 4, 2009. The 30 day time period for appeal has expired.