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