In Re: VISX, Inc. Securities Litigation 00-CV-00649-Consolidated
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1 MILBERG WEISS BERSHAD HYNES & LERACH LLP 2 WILLIAM S. LERACH (68581) 600 West Broadway, Suite 1800 3 San Diego, CA 92101 Telephone: 619/231-1058 AU - ? ^UUQ 4 - and - rte.1 ,... PATRICK J. COUGHLIN (111070) 5 RANDI D. BANDMAN (145212) LESLEY E. WEAVER (191305) 6 100 Pine Street, Suite 2600 San Francisco, CA 94111 7 Telephone : 415/288-4545 8 KAPLAN, KILSHEIMER & FOX LLP ROBERT N. KAPLAN 9 FREDERIC S. FOX LAURENCE D. KING 10 805 Third Avenue, 22nd Floor New York, NY 10022 11 Telephone: 212/687-1980 12 Co-Lead Counsel for Plaintiffs 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 16 ) Master File No. C-00-0649-CRB In re VISX, INC. SECURITIES LITIGATION ) 17 CLASS ACTION 18 This Document Relates To: ) CONSOLIDATED AMENDED COMPLAINT FOR VIOLATION OF THE,, 19 ALL ACTIONS. ) FEDERAL SECURITIES LAWS 20 Plaintiffs Demand a Trial by Jury 21 22 23 24 25 26 27 28 1 TABLE OF CONTENTS 2 Page 3 4 INTRODUCTION AND OVERVIEW . 1 5 SCIENTER AND SCHEME ALLEGATIONS . 10 6 BACKGROUND TO CLASS PERIOD . ... 12 7 VISX's Core Patents Are Not Enforceable . 17 8 The Trokel-Srinivasan Collaboration . 19 9 VISX and Trokel Fail to Identify Srinivasan as a Co-Inventor . 24 10 The ITC Ruling . ... 25 11 Competition from Canada . 27 12 FALSE AND MISLEADING STATEMENTS DURING THE CLASS PERIOD . 30 13 CLASS ACTION ALLEGATIONS . 49 14 FIRST CLAIM FOR RELIEF . 49 15 For Violation of Section 10(b) of the 1934 Act 16 and Rule IOb-S Against All Defendants . 49 17 SECOND CLAIM FOR RELIEF . 52 18 For Violation of Section 20(a) ofthe 1934 Act Against Defendant VISX and the Individual Defendants . 52 19 THIRD CLAIM FOR RELIEF 20 For Violation of Section 20A of the 1934 Act 21 Against the Individual Defendants . 52 22 PRAYER FOR RELIEF . .. 54 23 JURY DEMAND .............................. ......... 54 24 25 26 27 28 CONSOLIDATED AMENDED COMPLAINT FOR VIOLATION OF THE FEDERAL SECURITIES LAWS - C-00-0649-CRB -i- 1 INTRODUCTION AND OVERVIEW 2 1. This is an action on behalfofpersons who purchased or acquired VISX, Inc. ("VISX" 3 or the "Company") stock between 3/1/99-2/22/00 (the "Class Period"). VISX develops proprietary 4 technologies and systems for laser vision correction ("LVC"). Defendants' false and misleading 5 statements about the steady and increasing revenues that the installed base of VISX's excimer laser 6 systems would provide to VISX, the strong procedure and equipment royalties VISX was earning, 7 the limited impact of competition, which would allow VISX to maintain its $250 per procedure 8 licensing fee in the U. S., and would support consistent revenue growth, and VISX's continued market 9 share domination, which would result in 2000 earnings per share ("EPS") of $1.70-1.80, artificially 10 inflated the price ofVISX stock to a Class Period high of $103-7/8 from just $30-1/4 per share at the 11 outset of the Class Period.' This upsurge in VISX's stock enabled VISX insiders to sell 1.4 million 12 shares of their VISX stock for $97 million in proceeds. 13 2. One way that VISX was able to charge its lucrative $250 per procedure fee was to 14 intimidate competitors who sought to enter the U.S. market. This was accomplished through the 15 threat of legal actions in which VISX would claim that these competitors were infringing on its 16 patents. However, the reality was that VISX's patents were unenforceable and defendants knew it. 17 VISX had notice ofthis prior to filing a complaint on 1/22/99 (supplemented on 2/9/99) charging that 18 Nidek Co., Ltd. ("Nidek") was infringing on its core patent technology, but hoped that its ability to 19 conceal the true inventors ofits patent technology would enable VISX to continue to charge its $250 20 per procedure fee. Because VISX's business model was based on its fraudulent patent claims, its 21 statements to the market about the continued viability of its per procedure fee were materially false 22 and misleading. Ifthe true facts ofVISX's claims had been known to the market, shareholders would 23 not have paid inflated prices for VISX shares, ultimately losing millions as the insiders made tens of 24 millions. 25 3. VISXs house ofcards began to crumble on 12/10/99 when VISX received an adverse 26 ruling from the International Trade Commission ("ITC") that one of its core patents was 27 All share and per share amounts are adjusted to reflect VISX's two-for-one stock splits paid 28 in 1/99 and 5/99. CONSOLIDATED AMENDED COMPLAINT FOR VIOLATION OF THE FEDERAL SECURITIES LAWS - C-00-0649-CRB - 1 - 1 unenforceable and that competitor Nidek had not infringed on VISX's patents, 'causing its stock,to 2 retreat to the $58-$60 range. This cast public doubt on VISX's competitive position and its ability 3 to maintain its prices. However, defendants continued to tell the market that VISX could maintain 4 its $250 per procedure fee. Then, on 1/19/00, VISX revealed a drop in 4thQ 99 revenues versus 5 3rdQ 99 and exposed the problems VISX was having growing its business. On these disclosures, 6 VISX's stock fell by 29% in one day to $32-1/4. However, it was not until 2/22/00 that defendants 7 admitted what they had known for some time, that VISX would have to reduce its per procedure fee 8 to $100 to remain competitive, severely impacting future revenues and profits. This announcement 9 caused its stock price to drop to as low as $16 on huge volume on 2/23/00. 10 11 VISX Inc. January 4, 1999 - February 23, 2000 12 Daily Share Prices 110 13 100 14 90 15 80 16 70 17 60 18 00 50 19 40 20 30 21 20 22 10 23 U11U41 03/U3199 04/29/99 06/25/99 08/23/99 10119/99 12115/99 02/11/00 02/02/99 03/31/99 05/27/99 07/26/99 09/21/99 11 /16/99 01/13/00 24 25 26 27 28 CONSOLIDATED AMENDED COMPLAINT FOR VIOLATION OF THE FEDERAL SECURITIES LAws - C-00-0649-CRB 2- 1 1 4. The chart below shows the price of VISX stock while defendants were issuing the 2 false and misleading statements and that, when compared to an index of similar stocks, VISX's stock 3 was inflated and declined due to Company-specific events and information and not market or 4 industry forces: 5 V'SX 6 vs. S&P Midcap Medical Products and Supplies (1) 7 March 1999 - February 2000 400 400 8 350 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 350 9 300 - - - - - - - - - - - - - - 300 10 11 0 250 250 12 200 ----------------------- 200 13 150 ---------------------------- 150 SSP Grp. 14 100 100 15 50 50 16 0 0 M A M J J A S 0 N D J F 17 2000 18 19 JURISDICTION AND VENUE 20 5. The claims asserted herein arise under §§ 10(b), 20(a), and 20A of the Securities 21 Exchange Act of 1934 ("1934 Act"), 15 U.S.C. §§78j(b), 78t(a), and 78t- 1, and Rule lOb-5. 22 Jurisdiction is conferred by §27 of the 1934 Act, 15 U.S.C. §78aa. Venue is proper here pursuant 23 to §27 of the 1934 Act. Acts and transactions giving rise to the violations of law complained of 24 occurred here. 25 THE PARTIES 26 6. Lead plaintiff Esther Sefaradi purchased 18,000 shares of VISX common stock 27 during the Class Period and was damaged thereby. 28 CONSOLIDATED AMENDED COMPLAINT FOR VIOLATION OF THE FEDERAL sEcuRrrms LAws - C-00-0649-CRB -3- 1 7. Lead plaintiff John Stewart Morton purchased 90,000 shares ofVISX common stock 2 during the Class Period and was damaged thereby. 3 8. Lead plaintiff Richard Demmitt purchased 18,300 shares of VISX common stock 4 during the Class Period and was damaged thereby. 5 9. Lead plaintiff Herbert Johnson purchased 22,100 shares of VISX common stock 6 during the Class Period and was damaged thereby. 7 10. Defendant VISX maintains its headquarters at Santa Clara, CA. During the Class 8 Period, VISX's common stock traded in an efficient market on the NASDAQ National Market 9 System. 10 11. (a) Defendant Mark B. Logan ("Logan") was, during the Class Period, CEO and 11 Chairman of the Board of the Company. Logan sold 730,000 shares of his VISX stock during the 12 Class Period for prices as high as $102 per share, reaping proceeds of $51.8 million from his insider 13 trading activity. These sales were unusual in timing and amount, greatly exceeding the amount 14 Logan sold prior to the Class Period. 15 VISX INC. 16 Mark Logan - Insider Sales Monthly Dollar Volume 17 January 1, 1998 to January 19, 2000 $120 18 $12 19 $10 $100 20 21 $8 $80 0 22 E $8 $60 ; 23 0 C 24 $4 $40 25 $2 $20 26 27 So $0 J F M A M J J A S O N D J F M A M J J A S O N D 28 1998 1999 CONSOLIDATED AMENDED COMPLAINT FOR VIOLATION OF THE FEDERAL sECuRmEs LAws - C-00-0649-CRB -4- 1 (b) Defendant Elizabeth H. Davila ("Davila") was, during the Class Period, 2 President and COO ofthe Company. Davila sold 160,336 shares ofher VISX stock during the Class 3 Period for prices as high as $94.63 per share, reaping proceeds of $12.1 million from her insider 4 trading activity.