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In re Gilat Satellite Networks

April 19, 2007

IN RE: GILAT SATELLITE NETWORKS, LTD.,


The opinion of the court was delivered by: Sifton, Senior Judge

MEMORANDUM OPINION AND ORDER

On January 17, 2003, eleven class actions alleging violations of federal securities laws by Defendants Gilat Satellite Networks, Ltd. ("Gilat"), Yoel Gat, and Yoav Leibovitch (collectively "Defendants") were consolidated in this Court and Leumi PIA Sector Fund, Leumi PIA World Fund, and Leumi PIA Export Fund were appointed Lead Plaintiffs.*fn1 On May 13, 2003, Lead Plaintiffs filed a Consolidated Class Action Complaint (the "Original Consolidated Complaint"), alleging against all Defendants violations of Section 10(b) of the Securities Exchange Act of 1934 ("Exchange Act"), and Rule 10b-5 promulgated under the Exchange Act, 17 C.F.R. § 240j.10b-5. The complaint also alleges against Gat and Leibovitch a violation of Section 20(a) of the Exchange Act. Presently before the Court are the parties' joint motions for (1) certification of a settlement class; (2) preliminary approval of a proposed Settlement Agreement; (3) preliminary approval of a Plan of Allocation; (4) approval of the proposed manner and form of Notice to the settlement class and of the proposed Proof of Claim form; and (5) scheduling of a date for a Fairness Hearing to consider final approval of the settlement.*fn2 For the reasons set forth below, the motions are granted.

BACKGROUND

The following facts are taken from the parties' submissions in connection with this motion, as well as this Court's previous opinions in this case. For purposes of these motions, they are not disputed.

Gilat's Business

Gilat is a provider of products and services for satellite-based communications products and services, including Very Small Aperture Terminal ("VSAT") satellite dishes. During the relevant time periods, February 10, 2000 through May 31, 2002, Yoel Gat was Gilat's Chief Executive Officer and Yoav Leibovitch was Gilat's Chief Financial Officer.

In January 2000, Gilat formed a joint venture, StarBand, with Microsoft and EchoStar Communications, to provide internet access via satellite dishes. Customers would purchase a VSAT manufactured by Gilat and then pay a monthly fee to receive internet access. The StarBand service was made available to the public in November 2000.

During the relevant time periods, Gilat common stock was traded on the NASDAQ National Market System ("NASDAQ"). From 1997 to 2000, Gilat reported substantial growth in revenues and its stock rose significantly. On February 28, 2000, Gilat stock closed on the NASDAQ at $160.50 a share.

Litigation History and Plaintiff's Complaint

Defendants moved to dismiss the Original Consolidated Complaint on July 15, 2003, and subsequently withdrew that motion to dismiss so that the parties could engage in mediation. After mediation proved unsuccessful, Lead Plaintiffs filed an Amended Consolidated Class Action Complaint (the "Amended Consolidated Complaint") on August 25, 2004 which Defendants moved to dismiss on October 29, 2004. That motion to dismiss was granted in part and denied in part in a Memorandum Opinion and Order dated September 19, 2005.

The portion of the Amended Consolidated Complaint which survived Defendants' motion to dismiss, again alleges that the Defendants violated Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder and that defendants Gat and Leibovitch violated Section 20(a) of the Exchange Act. More specifically, Lead Plaintiffs allege that Defendants artificially inflated Gilat's financial results through deceptive financial statements which overstated Gilat's revenues. Although Defendants purported to follow Generally Accepted Accounting Principles ("GAAP"),*fn3 they allegedly inflated reported revenues in press statements and Securities and Exchange Commission ("SEC") filings through premature revenue recognition, recording revenue from sales in excess of actual purchases, recognizing revenue from sales prior to delivering the product to customers, recognizing revenue from sales to uncreditworthy customers, recording goods placed on consignment as sold, and engaged in related-party transactions. Lead Plaintiffs further allege that the defendants misrepresented the performance of StarBand and the market for its services, claiming significant success while there were allegedly serious problems with the service and in signing up new subscribers. The Amended Consolidated Complaint also alleges that Defendants failed to disclose that Echostar Communications had not marketed Starband as promised and that Starband's lenders had withdrawn a $37 million line of credit and that the Defendants falsely stated that Gilat's total financial exposure to Starband would not exceed $75 million. According to Lead Plaintiffs, as a result of these materially false and misleading statements, made between February 10, 2000 and May 31, 2002 (the "Class Period"),*fn4 they and other class members suffered damages because they purchased or otherwise acquired Gilat securities at prices which were artificially inflated.

After this Court's ruling on the motion to dismiss, the parties engaged in additional mediation before retired California Superior Court Judge Daniel Weinstein on June 26 and June 27, 2006. As a result of that mediation, the parties reached an agreement on the terms of the settlement.

On December 1, 2006, the parties moved for (1) certification of a settlement class; (2) preliminary approval of a proposed Settlement Agreement; (3) approval of proposed Plan of Allocation; (4) approval of the proposed manner and form of Notice to the settlement class and of the proposed Proof of Claim form; and (5) scheduling of a date for a Fairness Hearing to consider final approval of the settlement. On January 4, 2007, this Court granted that motion in part and denied it in part. See In re Gilat Satellite Networks, Ltd., 2005 WL 2277476 (E.D.N.Y. 2005). Specifically, the motion to certify the settlement class was granted, but the motions to preliminarily approve the Settlement Agreement and the Plan of Allocation were denied without prejudice; the Settlement Agreement and Plan of Allocation failed to sufficiently set forth factual bases for presumptions about the timing of alleged disclosures,*fn5 contained internal inconsistencies regarding dates and recovery amounts, and provided no explanation for the parties' decision to include a $5 minimum claim amount. The motions for approval of the proposed Notice and for scheduling of a date for a Fairness Hearing were also denied as premature.*fn6

The parties then revised the settlement in light of this Court's ruling*fn7 and now move for the same relief they sought earlier.*fn8

Amended Settlement Agreement

I. Members of the Class & Identity of Lead Plaintiffs

According to the Amended Settlement Agreement, the Class consists of "all persons and entities who purchased or otherwise acquired Gilat common stock between February 10, 2000 and May 31, 2002, inclusive."*fn9 Amended Stipulation and Agreement of Settlement, ¶ 1(c) ("Amended Settlement").

Excluded from the Class are Defendants, members of the immediate family of each of Defendants, any person, firm, trust, corporation, officer, director, or other individual or entity in which any Defendant has a controlling interest or which is related to or affiliated with any of the Defendants, and the legal representatives, agents, affiliates, heirs, successors-in-interest or assigns of any such excluded party. "Related to or affiliated with" means all companies, subsidiaries, joint ventures, joint subsidiaries, or other entities controlled by any Defendant, or any entity that is or was under common corporate ownership or control with any Defendant.

Id.

Lead Plaintiffs in this case are three mutual funds, managed by Harel-PIA Group, Israel's longest established mutual fund management company, representing more the $3 billion in assets. Harel-PIA Group is owned by Harel Insurance Investments Ltd., a publically traded Israeli insurance company. The three funds who serve as Lead Plaintiffs manage between $7 million and $17.5 million in assets each.

None of these three funds owned Gilat stock at the beginning of the Class Period and they each purchased and sold shares during several of the time periods described in the Plan of Allocation below.*fn10 Exhibit A annexed to the Declaration of Michael Civer (filed with the December 2006 motion) reflects that Leumi PIA World Fund purchased 87,950 shares of Gilat stock during periods 1, 3 and 4 and sold stock during periods 1, 3 and 4; the fund sold all its stock before the end of the Class Period. Civer Declaration, ¶ 6, Exhibit A. Leumi PIA Export Fund purchased 11,000 shares of Gilat stock during period 1, sold 4,000 shares during period 1 and held the remainder until after the end of period 5. Id. Leumi PIA Sector Fund purchased 6,000 shares during period 1 and sold all of its shares during period 3. Id.*fn11 Lead Plaintiffs will not receive any compensation or recovery under the settlement for acting as Lead Plaintiffs.

II. Released Parties

Under the terms of the Settlement Agreement, the "Released Parties" are: any and all of Defendants and their respective present and former affiliates, predecessors, successors, and assigns, and each of their respective family members, heirs, executors, and administrators, and any corporate entity affiliated with any of the Defendants, including, but not limited to, Gilat, and its presents and former officers, directors, employees, partners, principals, trustees, attorneys, auditors, accountants, investment bankers, consultants, agents, insurers and co-insurers and each of their respective heirs, executors, administrators, predecessors, successors (including, but not limited to, successors in bankruptcy) and assigns.

Amended Settlement, ¶ 1(q).

III. Claims Administrator

Lead Plaintiffs' counsel have proposed Garden City Group, Inc. ("GCG") as their Claims Administrator to provide notice and process claims. GCG has been in the business of administering class action settlements for twenty years and has administered hundreds of class action settlements, including several well-known securities settlements. First Affidavit of Shandarese Garr, ¶ 2-3 ("Garr First Affidavit") (attached to December 2006 motion).*fn12 The firm has experience handling international aspects of class action settlements, and it has in the past provided such services as toll-free numbers and websites which accommodate non-English speakers. Id., ¶ 6. The firm strives to complete all work and provide final reports within six months of the claims-filing deadline and sees no reason why it could not adhere to that timeline in this case. Id., ¶ 8.

Lead Plaintiffs' counsel selected GCG after reviewing the available options. All three firms have had favorable experiences with GCG in prior securities settlements and have found that "GCG provides professional and high quality work, at competitive rates." Declaration of Daniel Sommers, ...


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