The original Complaint charges Harmony Gold and certain of its officers and directors with violations of the Securities Exchange Act of 1934. Harmony Gold is a gold producer that operates 22 individual mines and projects across the world. More specifically, the Complaint alleges that the Company failed to disclose and misrepresented the following material adverse facts which were known to defendants or recklessly disregarded by them: (1) that the Company's costs had significantly increased throughout 2007; (2) that the Company had underreported these increased costs in its previously issued financial statements; (3) that the Company had experienced a significant decrease in gold production for the third quarter 2007 due to production problems at various sites, which had already materialized at the time its Class Period statements were made; (4) that the Company had failed to disclose the full impact that these production problems would have on the Company's financial and operational results; (5) that, as a result of the Company's understatement of its costs and its lower production for the quarter, the Company had understated its operating costs and overstated its net profit for the third quarter; (6) that, as a result of the foregoing, the Company's financial statements were materially false and misleading at all relevant times; (7) that the Company would be forced to take substantial charges in the fourth quarter 2007 to remedy such failures, causing the Company to report a net loss for the quarter; (8) that the Company lacked adequate internal and financial controls; and (9) that, as a result of the above, the Company's statements about its financial well-being and future business prospects were lacking in any reasonable basis when made.
On August 6, 2007, Harmony Gold reported preliminary financial and operational results for its fourth quarter and fiscal year 2007 (ended June 30, 2007). The Company warned that its financial results for the quarter were "expected to differ significantly from those of the three previous quarters as well as from the analysts' consensus." For the fourth quarter, the Company stated that it expected to report a headline loss of between 130 and 160 SA cents per share, compared with a headline profit of 58 SA cents per share for the third quarter. This quarterly loss was primarily the result of the Company recording significantly higher costs for the quarter, and included a 25 to 28 percent increase in the Company's total cash operating costs as a result of "the newly installed accounting software system that resulted in some of the March quarter's costs being captured in the June 2007 quarter." Thus, the Company had substantially understated its costs in previous quarters and was forced to take substantial charges in the fourth quarter to remedy such underreported costs. Additionally, the Company reported that its cost base had increased by 8 to 12 percent from the previous six months. Finally, the Company announced that its Chief Executive Officer had resigned, "with immediate effect."
On this news, the Company's shares fell $2.45 per share, or over 18 percent, to close on August 6, 2007 at $11.02 per share, on unusually heavy trading volume. The following day, the Company's shares declined an additional $1.57 per share, or over 14 percent, to close on August 7, 2007 at $9.45 per share, again on heavy trading volume. This closing price on August 7, 2007 represented a two-day decline in the Company's shares of $4.02 per share, or 29.8 percent, and a cumulative decline of $7.25 per share, or over 43.4 percent, from the value of the Company's shares at their Class Period high of $16.70 on April 25, 2007.
Note: The class action lawsuit was filed on behalf of all purchasers of American Depository Receipts and call options and sellers of put options of Harmony Gold Mining Company Limited during the Class Period.
According to the Order dated October 17, 2008, James J. Hayes has been appointed lead plaintiff in the action and Schiffrin Barroway Topaz & Kessler, LLP and Brodsky & Smith, LLC have been appointed lead and liaison counsels, respectively. On November 17, 2008, the plaintiff voluntarily dismissed without prejudice the action against the two individual defendants named in the complaint. On January 7, 2009, the lead plaintiff filed an Amended Class Action Complaint. On March 6, 2009, the defendant filed a motion to dismiss the Amended Class Action Complaint. On March 19, 2010, the defendant’s motion to dismiss was denied. On March 24, 2010, the defendants filed a motion for reconsideration. On April 27, 2010, Judge Jones denied that motion.
On May 14, 2010, the magistrate judge granted the motion of the lead plaintiff for withdrawal and substitution of lead counsel. The law firm of Barroway Topaz Kessler Meltzer & Check LLP is permitted to withdraw as Lead Counsel for Lead Plainitff, and Brodsky & Smith is permitted to withdraw as Liaison Counsel for Lead Plaintiff. The law firm of Saxena White P.A. is permitted to assume the position of Lead Counsel, and the Law Offices of Curtis V. Trinko, is permitted to assume the position of Liaison Counsel.
On September 16, 2010, the plaintiff filed a motion to certify the class. The motion was approved on November 16, 2010.
According a news article dated July 19, 2011, Harmony Gold Mining Co. on Monday agreed to shell out $9 million to settle a securities fraud class action in New York arising from the South African company’s overstated earnings in 2007. The proposed settlement resolves claims from investors in American Depositary Receipts that Harmony failed to report problems at South African mines and a faulty accounting program that missed about $34.5 million in operating costs.
The settlement was preliminarily approved on August 2, 2011. The Fairness hearing was set for November 10, 2011. A class representative filed an opposition to the settlement. On November 14, 2011, Judge Barbara S. Jones approved the settlement and dismissed the action with prejudice. Judge Jones approved attorneys' fees in the amount of one third of the total recovery.
On December 13, 2011, one of the class representatives filed a Notice of Appeal as to the approval of the settlement.