LensCrafters 2004 Annual Report Download - page 145

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
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advertising the availability of eye examinations at
Pearle Vision Centers. The appellate court also ruled
in Cole’s favour with respect to charging dilation
fees, which ruling partially lifted the preliminary
injunction with respect to these fees that had been
imposed in July 2002. On March 3, 2004, the
California Supreme Court granted Cole’s petition for
review of the portion of the appellate court’s
decision stating that California law prohibited
defendants from providing eye examinations and
other optometric services at Pearle Vision Centers.
The appellate court’s decision directing the trial
court to enjoin defendants from advertising these
activities was stayed pending the Supreme Court’s
resolution of the issue. The Supreme Court has not
yet scheduled oral argument on that appeal.
Although we believe that Cole’s operational
practices and advertising in California comply with
California law, the appellate ruling may, if unmodified
by the Supreme Court, compel Cole and its
subsidiaries to modify or close their activities in
California. Further, Cole and its subsidiaries might be
required to pay civil penalties, damages and/or
restitution, the amount of which might have a
material adverse effect on our operating results,
financial condition and cash flow.
Following Cole’s announcement in November 2002
of the restatement of Cole’s financial statements, the
Securities and Exchange Commission (“SEC”)
began an investigation into Cole’s previous
accounting. The SEC subpoenaed various
documents from Cole and deposed numerous
former officers, directors and employees of Cole. The
course of this investigation or other litigation or
investigations arising out of the restatement of Cole’s
financial statements cannot be predicted. In addition,
under certain circumstances Cole would be obliged
to indemnify the individual current and former
directors and officers who are named as defendants
in litigation or who are or become involved in an
investigation. Cole is honouring its obligations to
advance reasonable attorneys’ fees incurred by
current and former officers and directors who are
involved in the SEC investigation subject to
undertakings provided by such individuals. Cole has
insurance available with respect to a portion of these
indemnification obligations. If the investigation
develops into litigation and Cole is not successful in
defending against that litigation, or is obligated to
indemnify individuals who do not succeed in
defending against such litigation, there may be a
material adverse effect on Cole’s financial condition,
cash flow, and results of operations.
In December 2002 the Company was informed that
the Attorney General of the State of New York had
begun an investigation into the Company’s pricing
and distribution practices relating to sunglasses
under applicable state and federal antitrust laws. The
office of the Attorney General recently advised the
Company that it has closed its investigation without
taking any action whatsoever against the Company.
On April 22, 2003, the Company entered into a
settlement agreement with Oakley, Inc. (“Oakley”),
under which two previously reported patent and
intellectual property lawsuits brought by Oakley in
1998 (originally against Bausch & Lomb Incorporated
and certain of its subsidiaries and assumed by the
Company in connection with its acquisition from
Bausch & Lomb in 1999 of the Ray Ban business)
and in 2001 against the Company and certain of its
subsidiaries, each in the U.S. District Court for the
Central District of California, were settled. As part of
the settlement, neither party admitted to any
wrongdoing in either case, and all claims and
counterclaims were released and discharged.
Further, the preliminary injunction that Oakley had
obtained in the second case against certain
subsidiaries of the Company was dissolved.
On August 29, 2003, the Securities Appellate Tribunal
(SAT) in India upheld the decision to require a
subsidiary of the Company to make a public offering
to acquire up to an additional 20% of the outstanding
shares of RayBan Sun Optics India Ltd. On October
30, 2003, the Company announced that it intended
to comply with the SAT’s decision and that the
Company, through its subsidiary, Ray Ban Indian
Holdings Inc., would launch a public offer to
purchase an additional 20% of the outstanding
shares of RayBan Sun Optics India Ltd. In
accordance with applicable Indian regulation, the
Company placed in escrow with the Manager of the
Offer Rs 226 million (Euro 4.2 million). On November
17, 2003, the Supreme Court of India stayed the
SAT’s order and directed that the matter be further