UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK __________________________________________ ) In re: GlaxoSmithKline plc Securities ) Civil Action No. 05 CIV. 3751 (LAP) Litigation ) ) DEMAND FOR JURY TRIAL __________________________________________) CONSOLIDATED SECOND AMENDED COMPLAINT JURISDICTION AND VENUE 1. The claims asserted herein arise under §§ 10(b) and 20(a) of the Securities Exchange Act of 1934 (“1934 Act”) and Rule 10b-5. Jurisdiction is conferred by § 27 of the 1934 Act, and 28 U.S.C. §1331. Venue is proper here pursuant to § 27 of the 1934 Act. GlaxoSmithKline plc and SmithKline Beecham Corporation doing business as GlaxoSmithKline plc (collectively “GSK”) is headquartered in London, England, but conducts business in this District. GSK’s ADRs trade on the New York Stock Exchange headquartered in this District. THE PARTIES 2. Lead Plaintiff Joseph J. Masters (“Plaintiff”) acquired publicly traded securities of GSK during the Class Period and was damaged thereby. 3. Defendant GlaxoSmithKline plc is a public company. GlaxoSmithKline plc’s ADRs trade in an efficient market on the NYSE under the symbol “GSK.” GlaxoSmithKline plc’s ordinary shares trade in an efficient market on the London Stock Exchange. Defendant SmithKline Beecham Corporation is a Delaware corporation, which is a wholly-owned subsidiary of GlaxoSmithKline plc. GlaxoSmithKline plc was created in December 2000 when Glaxo Wellcome merged with SmithKline Beecham. Both GlaxoSmithKline plc and SmithKline Beecham, as well as all of their predecessors, subsidiaries and successors, are referred to herein collectively as “GSK.” 4. Defendant Jean-Pierre Garnier (“Garnier”) was CEO and Chairman of GSK throughout the Class Period. By reason of his position, Garnier had access to material inside information about GSK and was able to control directly or indirectly the acts of GSK and the contents of the representations disseminated during the Class Period by or in the name of GSK. -2- 5. The defendants are liable, jointly and severally, as direct participants in the scheme and wrongs complained of herein. Defendants had a duty promptly to disseminate accurate and truthful information with respect to GSK’s products, operations, financial condition and future business prospects or to cause and direct that such information be disseminated so that the market prices of GSK’s stock and ADRs would be based on truthful and accurate information. SUMMARY OF THE ACTION 6. From the time it was formed, GSK has relied upon various deceptive practices to artificially inflate its stock price. Concerning its patents for various medications, GSK would file baseless patent applications to prevent competition to its products from generic drug manufactures. GSK would tout to the investing public that the drug patents for its largest selling medications, Paxil and Augmentin, would expire years in the future, when in reality GSK knew, or should have known, that its patent protection for both Paxil and Augmentin had either already expired, or would expire shortly. These two drugs accounted for billions of dollars in sales for GSK during the class period. By falsely touting that the patents for these two drugs would expire years in the future, GSK mislead the investing public into believing that the future sales and profits from these two drugs would remain high. GSK knew that without patent protection, generic manufactures would undercut GSK’s monopoly prices, which would directly lead to plunging sales for GSK. This is exactly what happened. In addition, GSK’s illegal practice of patent manipulation violated U.S. anti-trust laws. So far GSK has paid out over $160 million to settle antitrust class actions for its illegal practice of patent manipulation involving Paxil and $29 million to settle antitrust class actions involving Augmentin. This is not the only liability GSK faces for its practice of patent manipulation of Paxil and Augmentin. GSK is currently being sued for by the City of New York for medicare fraud, and -3- by various insurance companies for anti-trust violations springing from this practice of patent manipulation. GSK’s public false and misleading statements concerning the patent protection for both Paxil and Augmentin have damaged investors, who would not have paid the high prices for GSK that they did if they had know patent protection had or would shortly expire. 7. Not only did GSK illegally file baseless patents for its Paxil medication, it also hid from the public and government regulators the fact that Paxil was causing serious and sometimes deadly health problems to consumers. GSK touted Paxil to doctors as a medication that was safe and effective for children, when it knew from its own drug testing program that Paxil was less effective than a placebo, while it also was twice as likely as a placebo to cause suicide. These problems, when disclosed to the public, lead to decreased sale for Paxil. Some countries forbid doctors from prescribing Paxil to children, while here in the U.S. Paxil was required to warn that children who use Paxil are at increased risk of suicide. GSK also hid from consumers and government regulators the fact that Paxil was causing withdrawal problems, even in healthy test subjects. Sales of Paxil plunged as medical professionals and the public became aware that GSK’s statements that Paxil was safe and non-habit forming were false and misleading. Not only have sales been negatively impacted by the disclosure of these problems, but class action products liability suits have been filed which have resulted in billions of dollars in potential liability. GSK shares have suffered as a result. 8. Finally, GSK has also violated the Federal False Claims Act numerous times, which has artificially raised reported profits. The latest violation was shown on September 20, 2005, when it was announced that GSK had paid out $150 million to settle claims that GSK engaged in a scheme to inflate the price of its drugs Zofran and Kytril for the Medicare and Medicaid programs. -4- CLASS ACTION ALLEGATIONS 9. This is a class action on behalf of those who purchased or otherwise acquired GSK common stock and ADRs during the period from December 27, 2000 through August 5, 2004, inclusive (the “Class Period”), excluding defendants, directors and officers of the Company and their families and affiliates (the “Class”). Class members are so numerous that joinder of them is impracticable. At all relevant times, the markets for GSK ADRs and common stock were efficient. 10. Common questions of law and fact predominate and include whether defendants (i) violated the 1934 Act; (ii) omitted and/or misrepresented material facts; (iii) knew or recklessly disregarded that their statements were false; and (iv) artificially inflated GSK’s stock and ADR prices and the extent of and appropriate measure of damages. 11. Plaintiff’s claims are typical of those of the Class. Prosecution of individual actions would create a risk of inconsistent adjudications. Plaintiff will adequately protect the interests of the Class. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. BACKGROUND 12. Concerning its patent protection, SmithKline Beecham disclosed in its Form-20F for the year ending December 31, 1999 that [t]he patent situation on potassium clavulanate (Augmentin and Timentin) is complex. Although patents on the compound expired in some markets in 1995, the relevant U.S. patents will not expire until 2002 and patent extensions in France and Italy also provide protection beyond 2000.” Concerning Paxil, this Form-20F also disclosed that “[t]he patent for the marketed form of Seroxat/Paxil expires during or after 2006.” -5- 13. On January 17, 2000, the Boards of Glaxo Wellcome (NYSE: GLX) and SmithKline Beecham (NYSE: SBH) announced that they have unanimously agreed the terms of a proposed merger of equals to form Glaxo SmithKline. 14. March 1, 2000, SmithKline Beecham announced that it had obtained a new US patent on its broad-spectrum antibiotic, Augmentin. This patent was completely baseless and filed only to illegally prohibit generic drug manufactures from selling generic forms of Augmentin. 15. The terms of the merger were released in the PR Newswire on July 5, 2000. Under the terms of the merger, Glaxo Wellcome Shareholders and SmithKline Beecham shareholders would receive, respectively: for each Glaxo Wellcome share 1 GlaxoSmithKline share and for each SmithKline Beecham share 0.4552 GlaxoSmithKline shares. Holders of Glaxo Wellcome ADRs and holders of SmithKline Beecham ADRs would receive, respectively: for each Glaxo Wellcome ADS 1 GlaxoSmithKline ADS for each SmithKline Beecham ADS 1.138 GlaxoSmithKline ADSs. Based on the number of shares outstanding as at the 31st December 1999, upon the merger becoming effective, 3,640,804,312 GSK shares would be issued to Glaxo Wellcome shareholders and 2,556,309,411 GlaxoSmithKline shares would be issued to SmithKline Beecham shareholders, representing approximately 58.75 percent and 41.25 percent respectively of the issued ordinary share capital of GSK. 16. On July 26, 2000, in an article by the Financial Time, defendant Garnier is quoted as identifying Paxil/Seroxat and Augmentin as “stars of the show” as these two drugs each brought in over a billion dollars in revenue. Defendant Garnier also stated he was confident that newly granted patents on Augmentin, would keep competition at bay until 2013. -6- 17. On December 27, 2000, the start of the Class Period, the merger between Glaxo Wellcome and SmithKline Beecham was completed. Trading in the shares of GSK commenced on the London Stock Exchange and trading also commenced on GSK American Depositary Receipts (ADRs) on the New York Stock Exchange. 18. The FDA approves drugs for human use if they are safe and effective as determined through scientifically conducted clinical studies. Throughout the Class Period, GSK manufactured and sold paroxetine under the name Paxil in the United States and under the name Seroxat in Great Britain (hereinafter, “Paxil”).