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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10 - Q/A
Amendment No. 1
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended October 22, 2000
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to .
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Commission file number 1-13740
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BORDERS GROUP, INC.
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(Exact name of registrant as specified in its charter)
MICHIGAN 38-3196915
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification
No.)
100 Phoenix Drive, Ann Arbor, Michigan 48108
--------------------------------------------
(Address of principal executive offices)
(zip code)
(734) 477-1100
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(Registrant's telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
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Title of Class Shares Outstanding As of
-------------- November 28, 2000
Common Stock -----------------
78,611,784
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NOTE 2 - COMMITMENTS AND CONTINGENCIES
During 1994, the Company entered into agreements in which leases with
respect to four Borders' locations serve as collateral for certain mortgage
pass-through certificates. The mortgage pass-through certificates include a
provision requiring the Company to repurchase the underlying mortgage notes in
certain events, including the failure by the Company to make payments of rent
under the related leases, the failure by Kmart Corporation (the former parent of
the Company) to maintain required investment grade ratings or the termination of
the guarantee by Kmart of the Company's obligations under the related leases
(which would require mutual consent of Kmart and Borders). In the event the
Company is required to repurchase all of the underlying mortgage notes, the
Company would be obligated to pay approximately $36.6. The Company would expect
to fund this obligation through its Credit Facility.
In March 1998, the American Booksellers Association ("ABA") and 26
independent bookstores filed a lawsuit in the United States District Court for
the Northern District of California against the Company and Barnes & Noble, Inc.
alleging violations of the Robinson-Patman Act, the California Unfair Trade
Practice Act and the California Unfair Competition Act. The Complaint seeks
injunctive and declaratory relief; treble damages on behalf of each of the
bookstore plaintiffs, and, with respect to the California bookstore plaintiffs,
any other damages permitted by California law; disgorgement of money, property
and gains wrongfully obtained in connection with the purchase of books for
resale, or offered for resale, in California from March 18, 1994 until the
action is completed and prejudgement interest on any amounts awarded in the
action, as well as attorney fees and costs. The plaintiffs have provided a
report estimating damages against the Company, exclusive of interest, as
follows: (i) between an aggregate of approximately $2.8 and approximately $3.3
(before trebling) with respect to the Robinson-Patman Act claims of the 26
independent bookseller plaintiffs, and (ii) between an aggregate of
approximately $5.5 and approximately $6.4 with respect to the disgorgement
claims under California law for the geographic areas of the California
plaintiffs. The Company's pleadings in the action deny any liability to
plaintiffs, and the Company disputes plaintiffs' claims of damages. On November
16, the court granted the motion of the Company and Barnes & Noble to dismiss
the disgorgement claims brought by the ABA under California law on behalf of
independent booksellers in the state of California who are not named in the
litigation. The trial is scheduled for April 9, 2001. The Company intends to
vigorously defend the action.
In August 1998, The Intimate Bookshop, Inc. ("Intimate") and its owner,
Wallace Kuralt, filed a lawsuit in the United States District Court for the
Southern District of New York against the Company, Barnes & Noble, Inc., and
others alleging violation of the Robinson-Patman Act and other federal laws, New
York statutes governing trade practices and common law. In response to
Defendants' Motion to Dismiss the Complaint, plaintiff Kuralt withdrew his
claims and plaintiff Intimate voluntarily dismissed all but its Robinson-Patman
claims. Intimate recently filed a Second Amended Complaint limited to
allegations of violation of the Robinson-Patman act. The Second Amended
Complaint alleges that Intimate has suffered $11.3 or more in damages and
requests treble damages, injunctive and declaratory relief, interest, costs,
attorneys fees and other unspecified relief. Many of the allegations in the
Second Amended Complaint are similar to those contained in the action instituted
by the ABA and 26 bookseller plaintiffs against the Company and Barnes & Noble,
Inc. in March, 1998. The Company intends to vigorously defend the action.
In April 2000, two former employees, Marissa Everett and Terry Blagsvedt,
individually and on behalf of a purported class, filed an action against Borders
in the Superior Court of California for the County of San Francisco. On August
17, 2000, the Court entered a Tentative Order dismissing the class action,
conversion and punitive damage aspects of the Complaint on the following
grounds: (i) individual issues will predominate and, therefore, class treatment
is not warranted, and (ii) the plaintiffs failed to allege facts sufficient to
state a cause of action for conversion, and punitive damages could only be
awarded on the conversion claims in the Complaint. The Court stated that the
plaintiffs would be entitled to limited discovery on the class action aspects of
the case, and that they could file an amended complaint asserting more
specifically the basis for class action status upon the conclusion of that
discovery. An Amended Complaint has been filed by four named plaintiffs,
individually and on behalf of a purported class consisting of all current and
former employees who worked as assistant managers in Borders stores in the State
of California at any time between April 10, 1996 and the present. The Amended
Complaint alleges that the individual plaintiffs and the purported class members
worked hours for which they were entitled to receive, but did not receive,
overtime compensation under California law, and that they were classified as
"exempt" store management employees but were forced to work more than 50% of
their time in non-exempt tasks. The Amended Complaint alleges violations of the
California Labor Code and the California Business and Professions Code. The
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relief sought includes compensatory and punitive damages, penalties, preliminary
and permanent injunctions requiring Borders to pay overtime compensation as
required under California and Federal law, prejudgment interest, costs and
attorneys fees and such other relief as the court deems proper. The Company
intends to vigorously defend the action, including again contesting the
certification of the action as a class action.
On May 31, 2000, Keith Markowitz instituted an action in the United States
District Court for the Eastern District of Pennsylvania as a purported class
action against Sony Music Entertainment Inc. ("Sony"), Warner-Elektra-Atlantic
Corporation ("WEA"), EMI Music Distribution ("EMI"), BMG Music ("BMG"),
Universal Music & Video Corp. ("UMVD"), Wal Mart Stores, Inc., ("Wal Mart") and
Borders, Inc., ("Borders", a subsidiary of the Company). The purported Plaintiff
Class is composed of all similarly situated purchasers who since May 31, 1996
(the "Class Period") purchased compact discs of prerecorded music distributed
and/ or manufactured by defendants. Wal Mart and Borders are named as defendants
individually and as representatives of a purported Defendant Class consisting of
all retailers and other distributors of compact discs produced by defendants
Sony, WEA, EMI, BMG, and UMVD during the Class Period, and who conspired with
Sony, WEA, EMI, BMG, and/or UMVD to carry out the unlawful conduct alleged in
the complaint. The complaint alleges that Sony, WEA, EMI, BMG, and UMVD each had
agreements with retailers setting out minimum advertised price policies and the
benefits conferred on retailers for adhering to such policy, and that such
agreements amounted to vertical agreements in restraint of trade fixing a
minimum price for prerecorded music products, including CDs. The complaint
further alleges that the alleged agreements violated of the Sherman Anti-Trust
Act and caused the plaintiffs to pay supra-competitive prices for the CDs they
purchased. Plaintiffs seek a permanent injunction, treble damages, attorneys'
fees, costs and disbursements, pre- and post-judgment interest and such other
relief as the court may deem as appropriate. Borders denies the allegations of
wrongdoing and intends to vigorously defend this litigation.
On October 10, 2000, Edward Michael O'Brien and Saviorg Corporation, as pro
se litigants, instituted an action in the United States District Court for the
Central District of California against Time Warner, Inc. ("Time Warner"), Warner
Music Group ("Warner Music"), Warner-Electra-Atlantic Corporation
("Warner-Electra"), Warner Bros. Records, Inc. ("Warner Bros."), Atlantic
Recording Corp. ("Atlantic"), Elektra Entertainment Group, Inc. ("Elektra
Entertainment"), Rhino Entertainment Company ("Rhino"), Wal-Mart Stores, Inc.
("Wal-Mart"), K-Mart Corporation ("K-Mart"), the Company and Morning Glory Music
("Morning Glory"). The Complaint, which contains allegations similar to those
made in the Markowitz action described in the Company's Form 10-Q Report for the
quarter ended April 23, 2000, alleges that Warner Music, Warner-Electra, Warner
Bros., Atlantic, Elektra Entertainment, Rhino, Wal-Mart, the Company and Morning
Glory conspired with defendant Time Warner to implement and maintain Time
Warner's minimum advertised pricing policies, and that those agreements were in
restraint of trade and illegally fixed, raised, maintained and/or stabilized, at
artificial noncompetitive levels, prices for prerecorded music products,
including compact disks, cassettes and albums. The Complaint asserts that as a
result of these alleged agreements, plaintiffs "and other consumers" were
overcharged by defendants for the prerecorded music products they purchased. The
Complaint further alleges that the purported agreements constituted illegal
monopoly power, illegal tying and price-fixing and violated Sections 1 and 2 of
the Sherman Antitrust Act, Section 3 of the Clayton Act and certain sections of
the California Business and Professions Code. Plaintiffs seek treble damages,
attorneys' fees, costs and disbursements and such further relief as the court
may deem just and proper. The Company denies the allegations of wrongdoing and
intends to vigorously defend this litigation.
The Company has not included any liability in its financial statements in
connection with the lawsuits described above and has expensed as incurred all
costs to date.
In addition to the matters described above, the Company is from time to time
involved in or affected by other litigation incidental to the conduct of its
businesses. The Company does not believe that any such other litigation will
have a material adverse effect on its liquidity, financial position or results
of operations.
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PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company's Form 10-K Annual Report for the fiscal year ended January 23,
2000, and its Form 10-Q quarterly reports describe pending lawsuits against the
Company. An adverse judgment against the Company in any of these matters could
have a material adverse effect on the Company. There have not been any
significant developments in these matters since the filing of the Company's Form
10-Q Report for the quarter ended July 23, 2000, except as follows:
The plaintiffs in the litigation instituted by the American Booksellers
Association (ABA) and 26 independent bookstores in the United States
District Court for the Northern District of California against the Company
and Barnes & Noble, have provided a report estimating damages against the
Company, exclusive of interest, as follows: (i) between an aggregate of
approximately $2.8 and approximately $3.3 million (before trebling) with
respect to the Robinson-Patman Act claims of the 26 independent bookseller
plaintiffs, and (ii) between an aggregate of approximately $5.5 million and
approximately $6.4 million with respect to the disgorgement claims under
California law for the geographic areas of the California plaintiffs. The
Company's pleadings in the action deny any liability to plaintiffs, and the
Company disputes plaintiffs' claims of damages. On November 16, the court
granted the motion of the Company and Barnes & Noble to dismiss the
disgorgement claims brought by the ABA under California law on behalf of
independent booksellers in the state of California who are not named in the
litigation.
An Amended Complaint has been filed in the action relating to overtime pay
initially brought by two former employees, Marissa Everett and Terry
Blagsvedt, in the Superior Court of California. The Amended Complaint was
filed by four named plaintiffs, individually and on behalf of a purported
class consisting of all current and former employees who worked as assistant
managers in Borders stores in the State of California at any time between
April 10, 1996 and the present. The Amended Complaint alleges that the
individual plaintiffs and the purported class members worked hours for which
they were entitled to receive, but did not receive, overtime compensation
under California law, and that they were classified as "exempt" store
management employees but were forced to work more than 50% of their time in
non-exempt tasks. The Amended Complaint alleges violations of the California
Labor Code and the California Business and Professions Code. The relief
sought includes compensatory and punitive damages, penalties, preliminary
and permanent injunctions requiring Borders to pay overtime compensation as
required under California and Federal law, prejudgment interest, costs and
attorneys fees and such other relief as the court deems proper. The Company
intends to vigorously defend the action, including again contesting the
certification of the action as a class action.
On October 10, 2000, Edward Michael O'Brien and Saviorg Corporation, as pro
se litigants, instituted an action in the United States District Court for
the Central District of California against Time Warner, Inc. ("Time
Warner"), Warner Music Group ("Warner Music"), Warner-Electra-Atlantic
Corporation ("Warner-Electra"), Warner Bros. Records, Inc. ("Warner Bros."),
Atlantic Recording Corp. ("Atlantic"), Elektra Entertainment Group, Inc.
("Elektra Entertainment"), Rhino Entertainment Company ("Rhino"), Wal-Mart
Stores, Inc. ("Wal-Mart"), K-Mart Corporation ("K-Mart"), the Company and
Morning Glory Music ("Morning Glory"). The Complaint, which contains
allegations similar to those made in the Markowitz action described in the
Company's Form 10-Q Report for the quarter ended April 23, 2000, alleges
that Warner Music, Warner-Electra, Warner Bros., Atlantic, Elektra
Entertainment, Rhino, Wal-Mart, the Company and Morning Glory conspired with
defendant Time Warner to implement and maintain Time Warner's minimum
advertised pricing policies, and that those agreements were in restraint of
trade and illegally fixed, raised, maintained and/or stabilized, at
artificial noncompetitive levels, prices for prerecorded music products,
including compact disks, cassettes and albums. The Complaint asserts that as
a result of these alleged agreements, plaintiffs "and other consumers" were
overcharged by defendants for the prerecorded music products they purchased.
The Complaint further alleges that the purported agreements constituted
illegal monopoly power, illegal tying and price-fixing and violated Sections
1 and 2 of the Sherman Antitrust Act, Section 3 of the Clayton Act and
certain sections of the California Business and Professions Code. Plaintiffs
seek treble
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damages, attorneys' fees, costs and disbursements and such further relief as
the court may deem just and proper. The Company denies the allegations of
wrongdoing and intends to vigorously defend this litigation.
In addition to the matters described above, the Company is from time to time
involved in or affected by other litigation incidental to the conduct of its
businesses. The Company does not believe that any such other litigation will
have a material adverse effect on its liquidity, financial position or results
of operations.
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ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
Exhibits:
(a) Exhibits:
10.40 Temporary Lease Facility Agreement with Keybank National
Association.
10.41 Form of Lease Guaranty Related to Temporary Lease Facility
Agreement.
10.42 Form of Lease Agreement Related to Temporary Lease Facility
Agreement and Form of Related Lease Appendix.
27.0 Financial Data Schedule.
99.1 Cautionary Statement under the Private Securities Litigation
Reform Act of 1995 - "Safe Harbor" for Forward-Looking Statements.
(b) Reports on Form 8-K:
During the 13 week period ended October 22, 2000, one report was filed
on Form 8-K under Item 5 - Other Events. This report stated that the
Company had appointed a new auditing firm.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereto duly authorized.
BORDERS GROUP, INC.
(REGISTRANT)
Date: December 13, 2000 By: /s/ Edward W. Wilhelm
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Edward W. Wilhelm
Senior Vice President and
Chief Financial Officer
(Principal Financial and
Accounting Officer)
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Exhibit Index
<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C>
10.40 Temporary Lease Facility Agreement with Keybank
National Association.
10.41 Form of Lease Guaranty Related to Temporary Lease
Facility Agreement.
10.42 Form of Lease Agreement Related to Temporary Lease
Facility Agreement and Form of Related Lease Appendix.
</TABLE>
