According to a law firm press release, a class action was filed in connection with Fifth Third's acquisition of First Charter on June 6, 2008, and on behalf of shareholders of First Charter as of November 26, 2007 and were solicited to vote on this acquisition.
On August 16, 2007, First Charter announced that it signed a definitive agreement to be acquired by Fifth Third for $31.00 per share, which would be paid in the form of 70% Fifth Third common stock and 30% cash. In connection with Fifth Third's acquisition of First Charter, Fifth Third filed with the Securities and Exchange Commission a Registration Statement and Prospectus on Form S-4 on November 7, 2007, amended on November 29, 2007 ("Registration/Proxy Statement"). The complaint alleges that Fifth Third and some of its senior officers and directors violated the federal securities laws by filing a Registration/Proxy Statement that was materially false and misleading. The complaint alleges, among other things, that the Registration/Proxy Statement failed to disclose: (a) the Company's increasing exposure to certain poorly performing real estate markets, including Florida, Ohio, and Michigan; (b) the Company's growing exposure to late payments and defaults on mortgages and other non-performing loans; (c) the extent of the decline in the quality of the Company's Tier 1 capital base; (d) the deteriorating credit trends and increasing expenses in the Company's consumer loan portfolio; (e) the negative trends in the Company's home equity and commercial construction loans; and (f) the deterioration in the credit quality of its loans.
The truth began to emerge on June 18, 2008, when Fifth Third announced that it was in need of capital and was planning a $1 billion convertible preferred stock offering, a sale of "non-core businesses" to raise an additional $1 billion in capital, and a 66% reduction of its quarterly dividend, from $0.44 per share to $0.15 per share. On this news, the price of Fifth Third common stock declined 27% from its previous close of $12.73 per share, to close on June 18, 2008 at $9.26 per share on very heavy volume. The June 18, 2008 announcement of the previously concealed material facts revealed that the market price of Fifth Third stock on the five trading days prior to the June 6, 2008 closing of the merger, upon which the exchange ratio of First Charter
shares was based, did not reflect the true value of Fifth Third shares. The true value of Fifth Third shares during the five day valuation period was materially less than the market value of Fifth Third shares because of the non-disclosure of these material facts. As a result, First Charter shareholders did not receive Fifth Third shares worth $31.00, but instead received Fifth Third shares worth substantially less and should have received additional Fifth Third shares in order to receive the $31 value merger consideration that they agreed to, pursuant to the Prospectus/Proxy statement.
A similar class action was filed earlier in the year on behalf of purchasers of 7.25% Trust Preferred Securities. The two cases may become consolidated at a later time.
On December 15, 2008, the plaintiffs’ motion to consolidate was granted and all future pleadings were ordered to be filed under civil case number 1:08-CV-421.
On December 16, 2008, an order by the court appointed the law firms of Coughlin Stoia and Berger & Montague as Co-Lead Counsel with the Law Offices of Phyllis Brown, L.L.C. serving as local Liaison Counsel. The Court also granted the Pension Trust Funds and Edwin B. Shelton’s request to serve as Co-Lead Plaintiffs and their selection of Co-Lead Counsel.