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The settlement was granted final approval on October 29, 2008 and has been closed.
According to a press release dated March 17, 2008, Harmonic Inc. (NASDAQ:HLIT), a leading provider of broadcast and on-demand video delivery solutions, today announced that it had reached a tentative agreement for the settlement of a securities class action filed against the Company and certain of its officers and directors in 2000. The Company believes that it is in its best interests to avoid the cost, management distraction and risk associated with a trial, currently scheduled for August 2008. The tentative agreement is subject to certain contingencies, including execution of a definitive agreement and court approval. The agreement will provide a full release of Harmonic and the other named defendants in connection with the allegations in the lawsuit without any admission of fault on the part of Harmonic or its officers and directors. The cost of the settlement is $15 million, plus an estimated aggregate of $1.4 million in related legal fees and expenses in connection with proceedings in the securities class action and derivative lawsuits. Of this aggregate cost of settlement, Harmonic will pay $6.4 million and the Company' s insurance carriers, having funded most litigation costs to date, will contribute the remaining $10 million. As a result of this tentative agreement, the Company will record a charge of $6.4 million in its financial statements for the year ended December 31, 2007 to be included in its Annual Report on Form 10-K to be filed with the SEC later today.
According to the Company’s FORM 10-Q For the Quarterly Period Ended March 30, 2007, On December 11, 2006, the Court granted the motion to dismiss with respect to the Section 12(a)(2) claim against the individual Harmonic defendants and granted the motion to strike, but denied the motion to dismiss the Section 15 claim. A case management conference was held on January 25, 2007, at which the Court set a trial date in August 2008, with discovery to close in February 2008. The Court also ordered the parties to attend a settlement conference with a magistrate judge or a private mediation before June 30, 2007. Mediation has been scheduled for the parties on May 24, 2007.
As summarized by the same SEC filing, on November 8, 2005, the Ninth Circuit panel affirmed in part, reversed in part, and remanded for further proceedings the decision of the District Court. The Ninth Circuit affirmed the District Court’s dismissal of the plaintiffs’ fraud claims under Sections 10(b), 14(a), and 20(a) of the Exchange Act with prejudice, finding that the plaintiffs failed to adequately plead their allegations of fraud. The Ninth Circuit reversed the District Court’s dismissal of the plaintiffs’ claims under Sections 11 and 12(a)(2) of the Securities Act, however, finding that those claims did not allege fraud and therefore were subject to only minimal pleading standards. Regarding the secondary liability claim under Section 15 of the Securities Act, the Ninth Circuit reversed the dismissal of that claim against Anthony J. Ley, Harmonic’s Chairman and Chief Executive Officer, and affirmed the dismissal of that claim against Harmonic, while granting leave to amend. The Ninth Circuit remanded the surviving claims to the District Court for further proceedings. On November 22, 2005, both the Harmonic defendants and the plaintiffs petitioned the Ninth Circuit for a rehearing of the appeal. On February 16, 2006 the Ninth Circuit denied both petitions. On May 17, 2006 the plaintiffs filed an amended complaint on the issues remanded for further proceedings by the Ninth Circuit, to which the Harmonic defendants responded with a motion to dismiss certain claims and to strike certain allegations.
Between June 28 and August 25, 2000, several actions alleging violations of the federal securities laws by Harmonic and certain of its officers and directors (some of whom are no longer with Harmonic) were filed in or removed to the United States District Court (the “District Court”) for the Northern District of California. The actions subsequently were consolidated. A consolidated complaint, filed on December 7, 2000, was brought on behalf of a purported class of persons who purchased Harmonic’s publicly traded securities between January 19 and June 26, 2000. The complaint also alleged claims on behalf of a purported subclass of persons who purchased C-Cube Microsystems Inc., or C-Cube, securities between January 19 and May 3, 2000. In addition to Harmonic and certain of its officers and directors, the complaint also named C-Cube and several of its officers and directors as defendants. The complaint alleged that, by making false or misleading statements regarding Harmonic’s prospects and customers and its acquisition of C-Cube, certain defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”). The complaint also alleged that certain defendants violated Section 14(a) of the Exchange Act and Sections 11, 12(a)(2), and 15 of the Securities Act of 1933 (the “Securities Act”) by filing a false or misleading registration statement, prospectus, and joint proxy in connection with the C-Cube acquisition. On July 3, 2001, the District Court dismissed the consolidated complaint with leave to amend. An amended complaint alleging the same claims against the same defendants was filed on August 13, 2001. Defendants moved to dismiss the amended complaint on September 24, 2001. On November 13, 2002, the District Court issued an opinion granting the motions to dismiss the amended complaint without leave to amend. Judgment for defendants was entered on December 2, 2002. On December 12, 2002, plaintiffs filed a motion to amend the judgment and for leave to file an amended complaint pursuant to Rules 59(e) and 15(a) of the Federal Rules of Civil Procedure. On June 6, 2003, the District Court denied plaintiffs’ motion to amend the judgment and for leave to file an amended complaint. Plaintiffs filed a notice of appeal on July 1, 2003. The appeal was heard by a panel of three judges of the United States Court of Appeals for the Ninth Circuit (the “Ninth Circuit”) on February 17, 2005.
The original complaint charges Harmonic and certain of its officers and directors with violations of the Securities Exchange Act of 1934. The complaint alleges that defendants' false and misleading statements concerning the revenues to be derived from Harmonic's largest customer, AT&T, and from its newly acquired C-Cube division (DiviCom), which would result in 2000 EPS of $1.19+, artificially inflated the price of Harmonic stock to a Class Period high of $102. This upsurge in Harmonic's stock caused by defendants' false and misleading statements enabled Harmonic to complete the $1.7 billion acquisition of the C-Cube's DiviCom business. After the acquisition was completed, on 6/26/00, Harmonic revealed that it was in fact suffering a huge drop in revenues and exposed the problems Harmonic had been experiencing during the Class Period in attempting to grow its business. This announcement caused its stock price to drop to as low as $22-11/16 on record volume of 21.9 million shares on 6/27/00 causing hundreds of millions of dollars in damages to members of the Class.