<PAGE>
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________
SCHEDULE 14D-9/A
(AMENDMENT NO. 4)
SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO
SECTION 14(D)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
_______________
THE LOEWEN GROUP INC.
(Name of Subject Company)
THE LOEWEN GROUP INC.
(Name of Person(s) Filing Statement)
COMMON SHARES, WITHOUT PAR VALUE
(AND ASSOCIATED SHARE PURCHASE RIGHTS)
6.00% CUMULATIVE REDEEMABLE CONVERTIBLE FIRST
PREFERRED SHARES, SERIES C, WITHOUT PAR VALUE
(Title of Class of Securities)
54042L100
54042L407
(CUSIP Number of Class of Securities)
_______________
Peter S. Hyndman
Vice President, Law and Corporate Secretary
The Loewen Group Inc.
4126 Norland Avenue
Burnaby, British Columbia
Canada V5G 3S8
(604)299-9321
(Name, Address and Telephone Number of Person Authorized to Receive
Notice and Communications on Behalf of the Person(s) Filing Statement)
WITH A COPY TO:
Lyle G. Ganske, Esq.
Jones, Day, Reavis & Pogue
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
(216) 586-3939
================================================================================
<PAGE>
This statement amends and supplements the Solicitation/Recommendation
Statement on Schedule 14D-9, as amended (the "Schedule 14D-9") of The Loewen
Group Inc., a corporation incorporated under the laws of British Columbia,
Canada (the "Company"), initially filed with the Securities and Exchange
Commission (the "Commission") on October 10, 1996, with respect to the proposed
exchange offers (the "Second SCI Proposal") announced on October 2, 1996, and
disclosed in a Registration Statement on Form S-4, as amended (the "Registration
Statement") initially filed with the Commission on October 3, 1996, by New
Service Corporation International, a Delaware corporation ("New SCI"), and SCI
Holdings Canada, Inc., a company incorporated under the laws of British
Columbia, Canada ("Canadian SCI"), each a wholly owned direct or indirect
subsidiary of Service Corporation International, a Texas Corporation ("SCI").
The proposed exchange offers contemplated by the Second SCI Proposal have not
yet commenced.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Schedule 14D-9.
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED.
Item 8 is amended and supplemented hereby by inserting the following
new paragraph after the second paragraph of Item 8(a):
On November 29, 1996, the United States District Court for the
Southern District of Texas (the "Texas Court") granted the motion of the Company
and co-defendants Loewen Group, Inc. and LGII (collectively, the "Defendants")
to dismiss SCI's action against the Defendants. Copies of the Texas Court's
Memorandum Opinion and the Company's related press release are included as
Exhibits 49 and 50 to this Schedule 14D-9, respectively, and are incorporated
herein by reference. In the Memorandum Opinion, the Texas Court found that SCI
filed its declaratory judgment action in anticipation of the Company filing an
antitrust suit against SCI, that SCI sought to preempt the Company's lawsuit in
order to gain an unfair advantage in choosing the forum for an antitrust action,
and that SCI's tortious interference and securities law claims were related to
the Company's antitrust claims and thus should be resolved in the Company's New
York antitrust action, described below.
The fourth paragraph of Item 8(b) is hereby amended and supplemented
to read in its entirety as follows:
The Company has also received numerous other requests for information
from states' attorneys general. On September 27, 1996, the Office of the
Attorney General of the State of New York requested data from the Company in
connection with an investigation of the First SCI Proposal and the Second SCI
Proposal. On September 30, 1996, the Office of the Attorney General of the State
of Alaska requested data from the Company in connection with an investigation of
the First SCI Proposal and the Second SCI Proposal. On October 2, 1996, the
Office of the Attorney General of the State of Hawaii requested data from the
Company in connection with an investigation of the Second SCI Proposal. On
October 3, 1996, the Office of the Attorney General for the State of Texas
requested information from the Company in connection with an investigation of
the Second SCI Proposal. On October 4, 1996, the Office of the Attorney General
of the State of California requested information from the Company in connection
with an investigation of the Second SCI Proposal. On October 9, 1996, the
Attorney General of the State of Tennessee requested information from the
Company in connection with an investigation of the Second SCI Proposal. On
October 11, 1996, the Company received a written request for data from the
Commonwealth of Pennsylvania's Office of the Attorney General in connection with
an investigation of the Second SCI Proposal. A copy of the Company's press
release regarding this investigation is included as Exhibit 44 to this Schedule
14D-9 and is incorporated herein by reference. On October 18, 1996, the Attorney
Generals of the States of Washington and Oregon individually requested
information from the Company in connection with their offices' respective
investigations of the Second SCI Proposal. A copy of the Company's press release
regarding the Washington and Oregon investigations is included as Exhibit 46 to
this Schedule 14D-9 and is incorporated herein by reference. On December 2,
1996, the Office of the Attorney General of the State of North Carolina
requested information from the Company in connection with an investigation of
the Second SCI Proposal. On December 2, 1996, the Company received a request for
information from the State of New Mexico in connection with an investigation of
the Second SCI Proposal.
1
<PAGE>
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
Except for Exhibits 49 and 50 which are filed herewith, the following
Exhibits were previously filed with the Schedule 14D-9:
<TABLE>
<CAPTION>
<S> <C>
Exhibit 1 -- Letter from L. William Heiligbrodt to Raymond L. Loewen, dated September 17, 1996.
Exhibit 2 -- Letter from L. William Heiligbrodt to Raymond L. Loewen, dated September 18, 1996.
Exhibit 3 -- Letter to Shareholders from Raymond L. Loewen, dated September 24, 1996.
Exhibit 4 -- Letter to L. William Heiligbrodt from Raymond L. Loewen, dated September 24, 1996.
Exhibit 5 -- [Intentionally omitted].
Exhibit 6 -- Press Release issued by Loewen, dated September 17, 1996.
Exhibit 7 -- [Intentionally omitted].
Exhibit 8 -- Press Release issued by Loewen, dated September 24, 1996.
Exhibit 9 -- Press Release issued by Loewen, dated September 27, 1996.
Exhibit 10 -- Press Release issued by Loewen, dated October 1, 1996.
Exhibit 11 -- Press Release issued by SCI, dated October 2, 1996.
Exhibit 12 -- Press Release issued by Loewen, dated October 2, 1996.
Exhibit 13* -- Press Release issued by Loewen, dated October 10, 1996.
Exhibit 14 -- Complaint in KRIM V. BAGNELL, ET AL. (Superior Court of the State of California).
Exhibit 15 -- First Amended Complaint in SERVICE CORPORATION INTERNATIONAL V. THE
LOEWEN GROUP INC. (United States District Court for the Southern District of Texas).
Exhibit 16 -- Complaint in THE LOEWEN GROUP INC. V. SERVICE CORPORATION
INTERNATIONAL, ET AL. (United States District Court for the Eastern District of New York).
Exhibit 17* -- Opinion letter of Smith Barney Inc. to Loewen Board of Directors, dated October 10, 1996.
Exhibit 18* -- Opinion letter of Nesbitt Burns Inc. to Loewen Board of Directors, dated October 10, 1996.
Exhibit 19 -- Pages 15 - 20 and 32 - 34 of The Loewen Group Inc. Proxy Statement, dated April 9, 1996.
Exhibit 20 -- The Loewen Group Inc. Employee Stock Option Plan (United States).
Exhibit 21 -- The Loewen Group Inc. Employee Stock Option Plan (Canada).
Exhibit 22 -- Form of The Loewen Group Inc. Employee Stock Option Plan Agreement (Directors of
Loewen Group International, Inc.).
Exhibit 23 -- Form of The Loewen Group Inc. Employee Stock Option Plan Agreement (Directors of
subsidiaries).
Exhibit 24 -- Form of The Loewen Group Inc. Employee Stock Option Plan Agreement (employees).
Exhibit 25 -- The Loewen Group Inc. Employee Share Purchase Plan (United States).
Exhibit 26 -- The Loewen Group Inc. Employee Share Purchase Plan (Canada).
</TABLE>
-2-
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Exhibit 27 -- The Loewen Group Inc. 1994 Management Equity Investment Plan.
Exhibit 28 -- Form of The Loewen Group Inc. 1994 Management Equity Investment Plan Investment
Option Agreement.
Exhibit 29 -- The Loewen Group Inc. Supplement to 1994 Management Equity Investment Plan.
Exhibit 30 -- The Loewen Group Inc. Addendum to 1994 Management Equity Investment Plan.
Exhibit 31 -- Form of The Loewen Group Inc. Management Equity Investment Plan Borrowing
Agreement.
Exhibit 32 -- Form of The Loewen Group Inc. Management Equity Investment Plan Executive
Agreement.
Exhibit 33 -- Form of The Loewen Group Inc. Management Equity Investment Plan 1994 Exchangeable
Floating Rate Debenture due July 15, 2001.
Exhibit 34 -- The Loewen Group Inc. 1994 Outside Director Compensation Plan.
Exhibit 35 -- The Loewen Group Inc. Employee Stock Bonus Plan.
Exhibit 36 -- The Loewen Group Inc. Shareholder Protection Rights Plan Agreement and Amendments.
Exhibit 37 -- Employment Agreement with Timothy R. Hogenkamp.
Exhibit 38 -- [Intentionally omitted].
Exhibit 39 -- Form of Indemnification Agreement with Outside Directors.
Exhibit 40 -- Form of Indemnification Agreement with Officers.
Exhibit 41 -- Form of The Loewen Group Inc. Severance Agreement.
Exhibit 42 -- The Loewen Group Inc. Severance Pay Plan.
Exhibit 43* -- Letter to Shareholders from Raymond L. Loewen, dated October 10, 1996.
Exhibit 44 -- Press Release issued by Loewen, dated October 14, 1996.
Exhibit 45 -- Press Release issued by Loewen, dated October 17, 1996.
Exhibit 46 -- Press Release issued by Loewen, dated October 20, 1996.
Exhibit 47 -- Press Release issued by Loewen, dated November 1, 1996.
Exhibit 48 -- Press Release issued by Loewen, dated November 3, 1996.
Exhibit 49 -- Memorandum Opinion dated November 27, 1996 (United States District Court for the
Southern District of Texas).
Exhibit 50 -- Press Release issued by Loewen, dated December 1, 1996.
- -------------------------
</TABLE>
* Exhibits distributed to Shareholders.
-3-
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Schedule 14D-9 is true, complete
and correct.
THE LOEWEN GROUP INC.
By: /s/ Peter S. Hyndman
-----------------------------------
Name: Peter S. Hyndman
Title: Vice President, Law and
Corporate Secretary
Dated: December 2, 1996
<PAGE>
EXHIBIT 49
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SERVICE CORPORATION, (S)
INTERNATIONAL, (S)
(S)
Plaintiff, (S)
(S) CIVIL ACTION NO. H-96-3269
v. (S)
(S)
THE LOEWEN GROUP INC., (S)
LOEWEN GROUP, INC., AND (S)
LOEWEN GROUP INTERNATIONAL, (S)
INC., (S)
(S)
Defendants. (S)
MEMORANDUM OPINION
------------------
Pending before the Court are Defendants' Motion to Dismiss (Docket
#4), and Plaintiff's Motion for Preliminary Injunction (Docket #10). After
considering the motions, responses, replies, hearing transcripts, and the
applicable law, the Court is of the opinion that Defendants' Motion to Dismiss
should be GRANTED and Plaintiff's Motion for Preliminary Injunction should be
DENIED, as set forth herein.
I. BACKGROUND
This case arises out of Service Corporation International's ("SCI")
attempts to take over The Loewen Group ("Loewen"). After Loewen's board of
directors rejected SCI's proposal of a stock swap merger, Loewen allegedly began
making public comments that suggested the combination would violate the
antitrust laws and invite FTC scrutiny. On October 1, 1996, SCI's board
approved a tender offer for all outstanding Loewen stock and
<PAGE>
on the same day filed this action in the Southern District of Texas seeking,
inter alia, a declaration that Loewen has no standing under the antitrust laws
to institute an action to block or impede SCI's attempted takeover./1/
Thereafter, on October 10, 1996, Loewen filed an antitrust action in the Eastern
District of New York to enjoin SCI's attempted takeover.
The parties filed motions to dismiss in each court; Loewen in this
Court, and SCI in New York. After a hearing, the New York court refused to
dismiss or stay the suit filed in its court, so SCI moved this court to enjoin
Loewen from pursuing the New York action based on the first-to-file doctrine.
Loewen, in turn, vigorously opposes SCI's request for an injunction and urges
the Court to grant its motion to dismiss.
II. DISCUSSION
This controversy requires the Court to apply the first-to-file rule,
which dictates that "[I]n the absence of compelling circumstances, the Court
initially seized of a controversy should be the one to decide whether it will
try the case." Dillard v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 961 F.2d
1148, 1161 n.28 (5th Cir. 1992); Mann Mfg., Inc. v. Hortex, Inc., 439 F.2d 403,
407 (5th Cir. 1971). The first-to-file rule is applicable when there are two
pending actions involving substantially similar issues or are so duplicative
that one court should decide both controversies. California Security Co-op,
Inc. v. Multimedia
- ------------------
/1/SCI's initial Complaint includes the declaratory judgment claim, and a
claim for tortious interference with prospective business relations. On October
3, 1996, SCI Amended its complaint to add a claim under (S) 14(e) of the
Securities Exchange Act.
2
<PAGE>
Cablevision, Inc., 897 F. Supp. 316, 317 (E.D. Tex. 1995) (citing Texas
Instruments Inc. v. Micron Semiconductor, Inc., 815 F. Supp. 994, 997 (E.D. Tex.
1993)); see Mann Mfg., 439 F.2d at 407 (first-to-file rule applies when there is
a substantial likelihood of overlap). When the first-to-file rule applies, the
first-filed court decides which case should proceed. West Gulf Maritime Ass'n
v. ILA DeepSea Local 24, 751 F.2d 721, 729 (5th Cir. 1985); Mann Mfg., 439 F.2d
at 408; Texas Instruments, 815 F.2d at 997.
This case and the New York case involve substantially similar issues
such that the first-to-file rule should apply. The New York case involves the
claim that SCI's takeover of Loewen would violate the antitrust laws. The case
in this Court involves claims that Loewen does not have standing to bring an
antitrust suit to enjoin SCI's takeover, and that Loewen's public suggestions
that the takeover would violate the antitrust laws were illegal. Clearly these
are substantially similar and related lawsuits which should, if possible, be
consolidated. The question, then, is which forum should proceed with the case.
As the first-filed forum, this Court has the responsibility of
determining which action will proceed. Although the rule is that the first-
filed court should adjudicate the matter, this Court can defer to the later-
filed court when "compelling circumstances" are present. West Gulf, 751 F.2d at
729; Mann Mfg., 439 F.2d at 407; California Security Co-op, 897 F. Supp. at 318.
One such compelling circumstance is when the suit was brought in one forum in
anticipation of the opposing party bringing suit in another, less favorable
forum. See California
3
<PAGE>
Security Co-op, 897 F. Supp. at 319 (recognizing exception to first-to-file rule
when first suit brought in anticipation of the second); 909 Corp. v. Village of
Bolingbrook Police Pension Fund, 741 F. Supp. 1290, 1292-93 (S.D. Tex. 1990)
(recognizing policy against anticipatory suits brought to choose the forum);
EEOC v. University of Pennsylvania, 850 F.2d 969, 976 (3d Cir. 1988) (noting
that "courts have rejected the [first-to-file] rule . . . when the first-filing
party instituted suit in one forum in anticipation of the opposing party's
imminent suit in another, less favorable, forum."). See also BASF Corp. v.
Symington, 50 F.3d 555, 558 (8th Cir. 1995) (noting that "a suit for a
declaratory judgment aimed solely at wrestling the choice of forum from the
`natural' plaintiff will normally be dismissed") (quoting Allendale Mut. Ins.
Co. v. Bull Data Systems, Inc., 10 F.3d 425, 431 (7th Cir. 1993)).
After considering the allegations of the parties in the two lawsuits
and the circumstances under which they were brought, this Court finds that SCI's
suit in this Court was filed in anticipation of Loewen filing its antitrust suit
in New York. SCI argues that it had no way to know with certainty that Loewen
would file an antitrust suit, but the facts belie the conclusion that its suit
was not anticipatory. The relief sought by SCI in its declaratory judgment
claim is anticipatory by nature. SCI does not seek a declaration that the
takeover of Loewen would not violate the antitrust laws -- it seeks a
declaration that "the Loewen Defendants lack standing to institute, and
accordingly may not institute, any action seeking to block or impede any SCI
exchange
4
<PAGE>
offer for Loewen stock under any theory of federal antitrust law." First
Amended Complaint at 16. To seek a declaration that an opposing party may not
bring a lawsuit is to anticipate that it will. Indeed, if it did not anticipate
a lawsuit, its declaratory claim would lack the immediacy required for the
controversy to be justiciable. Cf., Rowan Companies, Inc. v. Griffin, 876 F.2d
26, 28 (5th Cir. 1989) ("A controversy, to be justiciable, must be such that it
can presently be litigated and decided and not hypothetical, conjectural,
conditional or based upon the possibility of a factual situation that may never
develop."); National Basketball Ass'n v. SDC Basketball Club, Inc., 815 F.2d
562, 566 (9th Cir. 1987) (holding that a potential antitrust defendant has
standing to bring suit for a declaration of non-liability once there is a "real
and reasonable apprehension" of actions that will create the controversy).
Thus, either SCI's declaratory judgment claim is anticipatory, or it is
nonjusticiable.
In addition, the circumstances of this case indicate that SCI sought
to preempt Loewen's impeding lawsuit in order to have the choice of forum. SCI
filed this lawsuit on the very same day that its board decided to make a tender
offer for Loewen's stock, and before the tender offer was made public or even
made known to Loewen's principals. This give it an unfair advantage in the
"race to the courthouse" because Loewen, for purposes of its antitrust suit, had
nothing yet of which to complain./2/ And the race to the
- -----------------------
/2/ A tender offer is "a public made invitation addressed to all
shareholders of a corporation to tender their shares for sale
(continued...)
5
<PAGE>
courthouse was important to the parties in this action because the Second
Circuit, which is where Loewen brought its antitrust suit, is the only circuit
that currently permits the target of a takeover to bring suit to enjoin the
takeover on antitrust grounds./3/ The Court is sympathetic to SCI's situation:
the Second Circuit's minority position on antitrust standing encourages forum
shopping by target companies seeking to block hostile takeovers. However, this
does not change the facts or the Court's analysis.
SCI seems to argue that even if its suit was anticipatory, this Court
may not discard the first-to-file rule unless the lawsuit was brought in Texas
solely for the purpose of forum shopping. That is, it appears to argue that the
presence of
- ---------------------
/2/( . . . continued)
at a specified price." M. LIPTON & E.H. STEINBERGER, TAKEOVERS & FREEZEOUTS (S)
2.02 (1991). Until such a tender offer is commenced, the parties have no
standing to complain of actions preventing the tender offer, or of the tender
offer itself. See, e.g., Armstrong World Indus. Inc. v. Adams, 961 F.2d 405, 414
(3d Cir. 1992); Moore Corp. Ltd. v. Wallace Computer Svcs., Inc., 898 F. Supp.
1089, 1095 (D. Del. 1995). In this case, until SCI informed Loewen of its
intentions of making a tender offer, or until SCI made a "public made invitation
addressed to all shareholders," they lacked constitutional standing to bring
suit to enjoin the tender offer.
/3/ See Consolidated Gold Fields PLC v. Minorco, S.A., 871 F.2d 252, 257-
60 (2d Cir.), cert. dismissed, 492 U.S. 939, 110 S. Ct. 29, 106 L.Ed.2d 639
(1989). Most other circuits that have addressed the issue, including the Fifth
Circuit, have held that the target of a takeover lacks antitrust standing. See
Anago, Inc. v. Tecnol Medical Prods., Inc., 976 F.2d 248, 250 (5th Cir. 1992),
cert. dismissed, 510 U.S. 985, 114 S. Ct. 491, 126 L.Ed.2d 441 (1993); McDonald
v. Johnson & Johnson, 722 F.2d 1370, 1375 (8th Cir. 1983), cert. denied, 469
U.S. 870, 105 S. Ct. 219, 83 L.Ed.2d 149 (1984); Central Nat'l Bank v. Rainbolt,
720 F.2d 1183, 1186 (10th Cir. 1983); Chrysler Corp. v. Fedders Corp., 643 F.2d
1229, 1235 (6th Cir.), cert. denied, 454 U.S. 893, 102 S. Ct. 388, 70 L.Ed.2d
207 (1981); A.D.M. Corp. v. Sigma Instruments, Inc., 628 F.2d 753, 754 (1st Cir.
1980). See also BNS Inc. v. Koppers Co., Inc., 848 F.2d 945, 954 (9th Cir. 1988)
(Beezer, J., dissenting).
6
<PAGE>
any legitimate reasons for its choice of forum defeats, as a matter of law, a
claim of "compelling circumstances." In support of this argument, SCI cites
Mattel, Inc. v. Louis Marx & Co., 353 F.2d 421, 424 n.4 (2d Cir. 1965), cert.
dismissed, 384 U.S. 948, 86 S. Ct. 1475, 16 L.Ed.2d 546 (1966), Rayco Mfg. Co.
v. Chicopee Mfg. Co., 148 F. Supp. 588, 593-94 (S.D.N.Y. 1957), and Fisher &
Porter Co. v. Moorco Int'l Inc., 869 F. Supp. 323, 325 (E.D. Pa. 1994). All of
these cases, in addition to being from other jurisdictions, are distinguishable.
In Mattel, the court merely listed filing suit solely for forum shopping as one
reason courts have discarded the first-to-file rule. In Rayco, the case cited
by Mattel, the court simply decided to discard the first-to-file rule because
forum shopping was the sole reason for the first-filed suit. And in Fisher &
Porter, the court just listed filing suit solely for forum shopping as one
reason to discard the first-to-file rule. Notably, that court also recognized
filing an anticipatory suit to avoid the effect of another jurisdiction's law as
another reason to discard the first-to-file rule. Fisher & Porter, 869 F. Supp.
at 325. Thus, none of the cases cited by SCI support the proposition that forum
shopping must be the sole reason for the first suit in order to set aside the
first-to-file rule.
If this case were merely a declaratory judgment action, this Court
would be compelled to dismiss it. As discussed supra, SCI's declaratory
judgment claim was clearly brought in anticipation of Loewen's antitrust suit,
and such actions should generally be dismissed by the district court. See Rowan
Companies, 876 F.2d at 29; BASF Corp., 50 F.3d at 558-59; Allendale, 10 F.3d
7
<PAGE>
at 431; 909 Corp., 741 F. Supp. at 1292. The only remaining question, then, is
whether there are compelling circumstances to dismiss the entire action in favor
of the case in New York.
The Court finds compelling circumstances to allow the later-filed New
York action to proceed with the entire controversy. First, the heart of this
action is the declaratory judgment claim, which was improperly brought and must
be dismissed. The remaining claims -- tortious interference with prospective
business relations, and violations of (S) 14(e) of the Securities Exchange Act
- -- are intimately connected to Loewen's antitrust claims. These claims could be
fully and adequately adjudicated as counterclaims to Loewen's antitrust suit in
New York, and in the interest of comity, the orderly administration of justice,
and the avoidance of piecemeal litigation, this Court finds compelling reasons
to dismiss the claims so that they can all proceed in the same judicial
proceeding.
III. CONCLUSION
In light of the foregoing, the Court finds compelling reasons to
disregard the first-to-file rule. It is therefore ORDERED that Defendants'
Motion to Dismiss (Docket #4) is GRANTED, and Plaintiff's Motion for Preliminary
Injunction (Docket #10) is DENIED. Plaintiff's declaratory judgment claim is
dismissed, and Plaintiff's tortious interference and (S) 14(e) claims are
dismissed subject to the New York court permitting them to be asserted as
counterclaims in that action.
The clerk shall enter this Order and provide a true copy to all
parties.
8
<PAGE>
Signed this 27th day of November, 1996.
---- --------
/s/ John D. Rainey
----------------------------
JOHN D. RAINEY
UNITED STATES DISTRICT JUDGE
9
<PAGE>
EXHIBIT 50
Contacts: David A. Laundy
The Loewen Group Inc.
(604) 293-7857
Thomas C. Franco
Broadgate Consultants, Inc.
(212) 229-2222
FOR IMMEDIATE RELEASE
=====================
LOEWEN GROUP PREVAILS IN TEXAS FEDERAL COURT
Loewen's Antitrust Lawsuit Against SCI To Proceed In New York Federal Court
All Other SCI Claims Also Dismissed
- --------------------------------------------------------------------------------
VANCOUVER, December 1, 1996 -- The Loewen Group Inc. (NYSE, TSE, ME: LWN)
announced today that the United States District Court for the Southern District
of Texas has granted its motion to dismiss the lawsuit that Service Corporation
International (SCI) filed the day before commencing its proposed hostile
exchange offer for Loewen. The Texas federal court dismissed SCI's claim for a
declaratory judgment, by which SCI sought to stop Loewen from bringing antitrust
claims against SCI in any other jurisdiction. Following the Loewen board of
directors' rejection of SCI's proposed hostile exchange offer, Loewen filed an
antitrust action against SCI in the United States District Court for the Eastern
District of New York.
In his ruling in favor of Loewen, United States District Judge John D.
Rainey found that SCI's Texas action was filed in anticipation of Loewen filing
its antitrust suit in New York federal court. Judge Rainey also found that SCI
sought to preempt Loewen's impending lawsuit in order to gain unfair advantage
in choosing the forum for an antitrust action. In support of his opinion, Judge
Rainey noted that SCI filed its lawsuit on the very same day that its board
decided to make a proposed hostile exchange offer for Loewen's stock, and before
that proposed offer was made public or even made known to Loewen's principals.
Judge Rainey concluded that these compelling
<PAGE>
circumstances warranted dismissal of the Texas action in favor of allowing
Loewen's New York antitrust action to proceed. Judge Rainey also dismissed SCI's
securities law and tortious interference claims, ruling that they were
"intimately connected to Loewen's antitrust claims" and could be heard in the
New York action.
The ruling of the Texas federal court clears the way for Loewen to proceed
with its antitrust lawsuit in New York federal court challenging the proposed
business combination of SCI and Loewen under Section 7 of the Clayton Act and
alleging a conspiracy to monopolize between SCI and Equity Corporation
International in violation of Section 1 of the Sherman Act. In October, Judge
Frederic Block of the New York federal court denied a motion by SCI to dismiss
Loewen's antitrust action in favor of the Texas case. The New York action has
been stayed since that time pending resolution of the proceedings in the Texas
federal court.
Loewen stated that it now intends to vigorously pursue its antitrust
lawsuit in New York federal court which alleges SCI's proposed acquisition of
Loewen would, if successful, substantially lessen competition in the markets for
locally-offered funeral and cemetery services, "pre-need" funeral services, and
the funeral home and cemetery acquisition markets.
The anti-competitive effects of SCI's hostile takeover proposal are also
being reviewed by the FTC and have prompted regulatory scrutiny in numerous
states, including New York, Florida, Hawaii, Texas, California, Pennsylvania,
Tennessee, Washington, Oregon, Alaska, and North Carolina. In addition, the
Canadian Competition Bureau is investigating the effects of the proposal under
the Canadian Competition Act, and in that respect has made a request for
information from the Company.
###
