According to a law firm press release dated November 26, 2007, a class action has been commenced on behalf of purchasers of the American Depositary Shares of Focus Media Holding Limited in the Company’s secondary public offering on or about November 7, 2007.
The complaint charges Focus Media and certain of its officers and directors with violations of the Exchange Act of 1933. Focus Media operates out-of-home advertising network using audiovisual television displays in the People’s Republic of China.
According to the complaint, on or about November 1, 2007, Focus Media filed a Form F-1/A Registration Statement with the Securities and Exchange Commission for the Secondary Offering. On or about November 6, 2007, the Prospectus with respect to the Secondary Offering, which forms part of the Registration Statement, became effective and more than 13.5 million shares of Focus Media’s ADSs at $64.75 per ADS were sold to the public, thereby raising more than $888 million.
The complaint alleges that the Registration Statement and the Prospectus contained inaccurate statements of material fact because they failed to disclose that the Company had made numerous acquisitions in its Internet advertising business division which were depressing its gross margins in that important division. On November 19, 2007, after the close of the market, Focus Media issued a press release announcing its financial results for the third quarter of 2007, the period ending September 30, 2007. Among other things, the Company reported that its gross margins for the third quarter of 2007 had declined due to several recent acquisitions. Following the Company’s earnings release, on November 20, 2007, the price of Focus Media ADSs dropped from $57.15 per ADS to $52.00 per ADS on extremely heavy trading volume.
According to the Company’s FORM 20-F for the fiscal year ended December 31, 2008, on or about November 27, 2007, Eastriver Partners, Inc. filed a purported class action lawsuit in the United States District Court for the Southern District of New York against us and the underwriters of our follow-on offering of November 2007. On or about December 21, 2007, Scott Bauer filed a purported class action lawsuit in the United States District Court for the Southern District of New York against us, certain of our officers and directors, and the underwriters of our follow-on offering of November 2007. Both complaints allege that our registration statement on Form F-1 on November 1, 2007, as amended, and the related prospectus contained inaccurate statements of material fact. On April 24, 2008, the court consolidated the Eastriver Partners, Inc. and Scott Bauer actions into an action captioned In re Focus Media Holding Limited Litigation and named Iron Workers Local No. 25 Pension Fund as lead plaintiff in the consolidated action. On June 23, 2008, Lead Plaintiff filed a consolidated amended complaint. Specifically, the complaints allege that we failed to disclose reduced gross margins in our Internet advertising business division due to acquisitions we made. The complaint filed by Scott Bauer also alleges that we issued a press release concerning our second quarter 2007 financial results that contained inaccurate statements of material fact. On September 5, 2008, we, certain of our officers and directors, and the underwriters filed a motion to dismiss the consolidated amended complaint. On November 5, 2008, the lead plaintiff filed its opposition to the motion to dismiss. A reply brief was filed on December 5, 2008. The motion to dismiss is pending before the court.
On March 23, 2010, an order regarding the Defendants' motion to dismiss Plaintiff's Complaint was granted in its entirety by the Court.
On March 30, 2010, a clerk's judgment echoed the previous order on the defendants' motion to dismiss the complaint was granted in its entirety; accordingly, the case was closed.
On April 29, 2010, a notice of appeal was filed by the lead plaintiffs opposing the district court’s grant of the motion to dismiss.
On August 22, 2011, an appellate mandate withdrew the plaintiffs’ appeal as a result of a stipulation between the plaintiffs and defendants.
On October 6, 2011, a settlement agreement was entered into by the plaintiff and defendants to fully, finally, and forever resolve, discharge, and settle the Released Claims, upon and subject to the terms and conditions hereof and subject to the approval of the Court.
On December 16, 2011, an Order Preliminarily Approving Settlement and Providing for Notice was granted subject to further consideration at the settlement hearing.
On April 25, 2012, the Court issued an Order Approving Plan of Distribution of Settlement Proceeds, an Order Awarding Lead Counsel Attorneys' Fees and Expenses, and a Final Judgment and Order of Dismissal thereby settling this action.
On June 25, 2012, a Mandate from the United States Court of Appeals for the Second Circuit was issued thereby withdrawing this appeal pursuant to Local Rule 42.1.