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NOTICE OF PENDENCY OF CLASS ACTION
ALL PERSONS (AND THEIR BENEFICIARIES) WHO PURCHASED OR OTHERWISE ACQUIRED FOREST LABORATORIES, INC. (“FOREST”) COMMON STOCK BETWEEN AUGUST 15, 2002 AND JULY 2, 2004, INCLUSIVE (THE “CLASS”).
EXCLUDED FROM THE CLASS ARE THE DEFENDANTS; ALL PERSONS WHO DURING OR AFTER THE CLASS PERIOD WERE OFFICERS OR DIRECTORS OF FOREST LABORATORIES, INC.; ANY CORPORATION, TRUST OR OTHER ENTITY IN WHICH ANY DEFENDANT HAS A CONTROLLING INTEREST; AND THE MEMBERS OF THE IMMEDIATE FAMILIES OF THE INDIVIDUAL DEFENDANTS OR THEIR SUCCESSORS, HEIRS, ASSIGNS AND LEGAL REPRESENTATIVES.
1. This Notice is sent to you pursuant to Rule 23 of the Federal Rules of Civil Procedure and by an Order of the
United States District Court for the Southern District of New York (the “Court”). The purpose of this Notice is to inform you of: (a) the pendency of the above-captioned class action (the “Action”); (b) the certification of the Class; and (c) your right to be excluded from the Class. The Court has certified UNITE HERE Staff Retirement Fund (“UNITE HERE”), Teamster Affiliates Pension Plan (“TAPP”), and PACE Industry Union-Management Pension Fund (“PACE”) as class representatives (the “Class Representatives”).
BACKGROUND OF THE CLASS ACTION
2. The Class consists of all persons or entities who purchased the common stock of Forest (CUSIP #345838106)
between August 15, 2002 and July 2, 2004 the (“Class Period”). Plaintiffs allege claims in the Amended Complaint For Violation of the Federal Securities Laws (the “Complaint”) against Forest; Howard Solomon, the Company’s Chief Executive Officer; John E. Eggers, the Company’s former Vice President of Finance and Chief Financial Officer; Kenneth E. Goodman, former President and Chief Operating Officer; Elaine Hochberg, Senior Vice President of Marketing; Lawrence S. Olanoff, current President and former Executive Vice President of Scientific Affairs; and Charles E. Triano, Vice President of Investor Relations (collectively, the “Defendants”). The Complaint alleges that the Defendants are liable to the Class for violations of §§10(b), 20(a) and 20A of the Securities Exchange Act of 1934. Specifically, the Complaint alleges the following: (a) Defendants published a study showing that Celexa, an anti-depressant drug marketed by Forest, was safe and efficacious for the treatment of depression in children and adolescents, but concealed another study that demonstrated that Celexa was no more effective than a placebo and increased the risk that pediatric patients would commit suicide; and (b) Defendants represented that their marketing practices were proper when they were illegally promoting certain of Forest’s drugs for pediatric use when the U.S. Food and Drug Administration had not approved those drugs for pediatric use. Plaintiffs further allege that when these undisclosed facts were first publicly revealed to the market, Forest’s stock price declined, causing investors harm.
3. Defendants have denied all the claims and wrongdoing asserted in the Complaint and any liability arising out of the
conduct alleged therein. Specifically, they assert that (a) the allegedly concealed study did not demonstrate that Celexa was ineffective for or increased the risk of suicide in pediatric patients, and was not important to a reasonable investor’s decision to invest in Forest stock, and (b) the Company’s promotional practices were lawful. Defendants also deny that any disclosures of the allegedly undisclosed facts resulted in a drop in Forest’s stock price, causing investors harm.
4. On May 24, 2007, Lead Plaintiffs UNITE HERE, TAPP, and PACE moved for Class Certification and to be
appointed Class Representatives. On or about October 22, 2007, the Court certified this Action as a class action and appointed UNITE HERE, TAPP and PACE as Class Representatives.
5. The parties are currently in the pre-trial phase of the litigation. Plaintiffs and defendants have filed motions
regarding management of the trial and whether a jury should hear certain types of evidence during trial. In addition, defendants have moved for summary judgment, asking the Court to dismiss all of plaintiffs’ claims prior to trial. If this case proceeds to trial, it is currently set to begin on November 3, 2008.
6. This Notice is given to you in belief that you may be a member of the Class whose rights may be affected by this
Action. It should not be understood as an expression of any opinion by the Court concerning the merits of the Action. There is no assurance that a judgment in favor of the Class will be granted. This Notice is intended merely to advise you of the pendency of the Action and of your rights with respect to the Action, including the right to exclude yourself from the Class.
TO BE EXCLUDED FROM THE CLASS
7. If you wish to be excluded from the Class, you must provide a written request for exclusion (“Request for
Exclusion”), including: (a) your name; (b) your address; (c) telephone number; (d) fax number; (e) email address; (f) a list of all purchases and sales of Forest common stock during the Class Period; and (g) a statement that you wish to be excluded from the Class. To be valid and effective, the Request for Exclusion must be signed and postmarked no later than August 7, 2008, and sent by first-class mail to the Notice Administrator at:
In re Forest Laboratories, Inc. Securities Litigation
8. Do not submit a request for exclusion if you wish to participate in this action as a Class Member. If you do not
exclude yourself from the Class, except as set forth below, you will be bound by any judgment in this action, and you may be entitled to share in any recovery in this action, if there is a recovery.
9. If you do not want to participate in this action as a Class Member, you should submit a request for exclusion. If
you fall within the Class definition and do not timely complete and return a Request for Exclusion, you will be considered a Class Member, and you will be bound by the judgment in this Action. If a settlement of the Class claims in this action is reached, the Court may refuse to approve such settlement unless it affords a new opportunity to request exclusion to individual Class Members who had an earlier opportunity to request exclusion but did not do so. However, the Court may also determine it is not necessary to allow a second opportunity to opt-out of the Class, in which case Class Members who do not opt-out now may be bound by the settlement and resulting judgment.
IF YOU REMAIN A CLASS MEMBER
10. If you wish to remain a Class Member, you are not required to do anything at this time. You will be bound by the
judgment in this Action, whether it is favorable or unfavorable. If there is a recovery, you may be entitled to share in the proceeds, less plaintiffs’ attorney fees and expenses which the Court allows to be reimbursed out of any such recovery. If Defendants prevail, you may not pursue a lawsuit on your own with regard to any of the issues decided in this Action. If you would like to obtain more information on what rights you may have regarding these issues, you may contact one of the attorneys listed below or an attorney of your choosing.
11. In the event of a recovery, you will be required to prove that you are a Class Member entitled to recover damages
by documenting your transactions in Forest stock during the Class Period.
12. If you do not exclude yourself from the Class, you will be represented by the Class Representatives and by the
655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax)
13. If you remain a Class Member, you will not be personally responsible for plaintiffs’ attorney fees and expenses,
except to the extent that the Court awards such fees and expenses, and in that event, they would be paid out of the recovery in this Action, if any.
14. You also may enter an appearance through your own attorney if you so desire. If you do so, you will be
responsible for that attorney’s fees and expenses.
NOTICE TO BROKERS AND OTHER NOMINEES
15. The Court directs all banks, brokerage firms, and other nominees whose beneficial owners purchased shares of
Forest common stock on or about August 15, 2002 through July 2, 2004, within ten days of the receipt of this Notice, to provide the names and addresses of each such beneficial owner to the Notice Administrator at:
In re Forest Laboratories, Inc. Securities Litigation
In the alternative, nominees may contact the Notice Administrator at the address above or toll-free at 877-497-5375 to
request additional copies of this Notice, send them to all such beneficial owners by first-class mail, and provide the Notice Administrator with written confirmation of having done so.
16. Nominees will be reimbursed for actual reasonable out-of-pocket expenses (but not service fees or other fees) in
connection with the identification of Class Members and/or any postage incurred in mailing the Notice to them, after submission to the Notice Administrator of a written request adequately itemizing such out-of-pocket costs.
AVAILABILITY OF FILED PAPERS
17. This Notice does not fully describe all of the claims and contentions of the parties. The pleadings and other
papers filed in this Action are available for inspection at the office of the Clerk of the Court, United States District Court for the Southern District of New York, Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street New York, NY 10007-1312, during business hours.
18. Please do not call the Court or the Office of the Clerk of the Court for information or advice. If you have any
questions about this Notice, you may consult any of Plaintiffs’ Lead Counsel, whose contact information is listed above in paragraph 12.
In re Forest Laboratories, Inc. Securities Litigation
c/o Gilardi & Co. LLC P.O. Box 5100 Larkspur, CA 94977-5100
Important Legal Document
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