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Zwan Responds on DIGL Stock Deals

Light Reading
News Analysis
Light Reading
8/28/2002

Digital Lightwave Inc. (Nasdaq: DIGL) founder and chairman Bryan Zwan has communicated with Light Reading, through his lawyer, seeking to clarify several points of the story that ran on this site on August 15 (see DIGL Founder: $348M in Insider Sales ). The full text of Zwan’s lawyer’s letter is included at the bottom of this article.

Although Zwan did not contradict the main focus of the story – which said that he raised more $300 million through forward sales agreements through a firm he controlled called ZG Partnership – he did clarify some points and identify an error in the story. When the original story went to press, Zwan had not responded to several requests that he comment on it.

In order to set the record straight, Light Reading has updated the story with the following correction and clarifications:

Correction: The date of an open-market purchase of stock made by Zwan was misstated. He acquired the shares in 2002.

Clarification: All of the forward sales agreements pertaining to ZG Partnership were disclosed in a series of Securities and Exchange Commission (SEC) filings dating back to 1999, to the best of our knowledge. Zwan disclosed that he was transferring 4.5 million shares of DIGL to ZG Partnership's control in several "non-market" dispositions; these transfers were disclosed in SEC Form 144s filed in 2000 and 2001.

Clarification: Zwan, according to SEC filings and himself, still controls all of the Digital Lightwave stock involved in the forward sales purchase agreements. Clarification: To our knowledge, there is no ongoing SEC investigation of Digital Lightwave or Bryan Zwan, nor are there any active shareholder lawsuits against Zwan or Digital Lightwave. Light Reading is not aware of any shareholder litigation arising from Zwan's sales of Digital Lightwave stock.

The letter follows:

    August 21, 2002

    Mr. R. Scott Raynovich
    U.S. Editor
    Light Reading

    Re: Dr. Bryan Zwan

    Dear Mr. Raynovich:

    This firm represents Dr. Bryan Zwan and Digital Lightwave, Inc. ("Digital"). I am writing in regards to your story which appeared on your website at www.lightreading.com on August 15, 2002, regarding Dr. Zwan and Digital. The content of your publication is defamatory and has damaged and will continue to damage both Dr. Zwan and Digital.

    Your story contains numerous inaccuracies about Dr. Zwan and Digital and portrays Dr. Zwan in a false light. Among the most glaring falsities are the following:

    1. Dr. Zwan's personal and related entity transactions in Digital stock have always been disclosed as required by federal securities laws. Your story incorrectly infers that the disclosure of these transactions occurred only recently. A reader of your story would reasonably conclude (evidenced by the message board relating to the story) that Dr. Zwan failed to comply with the federal securities laws; that is simply false. A review of prior 13D filings, including but not limited to filings on December 8, 1999, February 9, 2000, May 11, 2000, December 29, 2000, April 30, 2001, October 31, 2001, and May 13, 2002, clearly reveals that each transaction was properly disclosed. Those filings are public documents, available to you and the general public. You obviously either failed to look at them or ignored the information contained therein.

    2. Your reference to the "magnitude" of the sales is false and misleading in several respects. Dr. Zwan continues to hold 11,518,750 shares of Digital Lightwave, a number well in excess of those referenced in the transactions. A reader of your story would reasonably conclude that Dr. Zwan sold all or virtually all of his shares. That, as you know, is untrue, and could easily have been verified by the same public fillings. Moreover, at the time of the transactions referenced in the story, Digital's stock was trading in the range of $12.81 to 139.12 per share, at which time the market capitalization ranged from $402 million to $4.3 billion dollars. Your failure to include such information appears to be intentional and part of your effort to damage Dr. Zwan's reputation by suggesting he sold virtually all of his stock at the same time Digital stock was declining in value and his sales were a part of the decine.

    3. The "facts" your story reports, relating to Dr. Zwan's purchase of Digital shares, are false. The purchases did not occur in 2000; they occurred in 2002. Your failure to be accurate in this respect implies that Dr. Zwan bought Digital stock at the same time he was selling, an act which would be in violation of the securities laws. Again, a reader of your story would wrongly conclude that Dr. Zwan engaged in improper and illegal activity.

    4. Your story incorrectly indicates that "[i]t's not clear what CSFB did with the shares, or whether the stock has yet been transferred to CSFB and CSFB SAILS Corp." On the contrary, a review of SEC filings shows that Dr. Zwan continues to control the shares under the Forward Sales agreements. This statement is simply reckless, and again intentionally ignore publicly available information.

    5. Your statement – "Zwan's activities [which can only mean the transactions referenced in the story] have grabbed the attention of Digital Lightwave's shareholders, who have filed numerous suits" is patently false. There is no shareholder litigation pending against Digital and there has been none filed since 1997, long before the transactions referenced in your article occurred. The statement is a deliberate attempt to disparage not only Dr. Zwan, but Digital as well.

    6. Your story also implies that the decline in stock price of Digital is attributed solely to the period of Dr. Zwan's leadership as CEO. Dr. Zwan resigned as CEO on December 31, 1998, and did not return to that position until January 22, 2002. Digital's stock price between 1998 and February, 2002 ranged from a low of $1.16 to high of $150.00 per share. At the time he resumed the duties of CEO, Digital's stock was trading at approximately $5.00 a share. Moreover, Digital's stock has suffered the same market decline as other telecommunication stocks.

    7. Your reference to the SEC investigation of the actions described in the article, when none in fact exists, is irresponsible and appears designed, in the current SEC corporate governance climate, to injure Dr. Zwan and, indirectly, Digital.

    This is not the first occasion on which your publication has printed such misleading information about Dr. Zwan and Digital. It also appears that your staff is well aware of such problems in its reporting. In fact, on July 24, 2002, following the second quarter conference call, your Senior Editor, Mary Jander contacted Digital Lightwave and admitted that her questioning was "probably crossing the line." Her article of July 25, 2002 contained numerous errors and false statements. Later, changes were apparently made on the website, without being labeled as retraction. Thus, the public had no way of knowing that the original text was wrong and had been changed. This is questionable journalism to say the least, and it certainly demonstrates a reckless and cavalier attitude in your reporting practices. Moreover, it also appears that no effort was made to ensure balanced and accurate reporting. Despite being made aware of certain facts by Digital, you nevertheless proceeded with the current story. As evidenced by the message board responses to the story, readers believe that Dr. Zwan has engaged in improper, and in some instances, illegal corporate conduct. That simply is not true.

    This sort of "reporting" is and will continue to harm Dr. Zwan and Digital Lightwave's reputations. We demand a retraction and correction of the false information in your story within two days, and on or before Friday, August 23, 2002. If you fail to do so, Dr. Zwan and Digital will take such actions as may be necessary to protect their reputations and to recover damages which your story has caused.

    Sincerely,

    W. Reece Bader
    Orrick, Herrington & Nutcliffe L.L.P.


— R. Scott Raynovich, US Editor, Light Reading
http://www.lightreading.com
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Doom
Doom
12/4/2012 | 9:51:51 PM
re: Zwan Responds on DIGL Stock Deals
Always scary receiving such a letter, eh!

So who should we believe now???
The menacing lawyer or the journalist?
The powerful one or the one searching for the true?


sunra
sunra
12/4/2012 | 9:51:49 PM
re: Zwan Responds on DIGL Stock Deals
"In order to set the record straight, Light Reading has updated the story with the following correction and clarifications:"

Translation: in order to avoid getting our butts sued off.....

Somebody at LR really screwed the pooch on this one.

Jim Delaney
Jim Delaney
12/4/2012 | 9:51:49 PM
re: Zwan Responds on DIGL Stock Deals
Stuck between a rock and a hard place, definitely. While Zwan is by no means a saint (the message boards will back this up), Light Reading has to take some heat for this one.

I think we all know that that Light Reading flames everyone - it's their form of investigative journalism, and we all seem to like it (the site probably has pretty healthy traffic). Nevertheless, facts are facts, and if you want to take the time to develop a truly educated opinion about DGL and Zwan, go check out the records for yourself. Otherwise, chalk this one up as shifty journalism regarding a shifty character.

As for the rest of us, I think we've got plenty of bigger fires to put out in our own back yards.
opticalfodder
opticalfodder
12/4/2012 | 9:51:49 PM
re: Zwan Responds on DIGL Stock Deals
Well, according to the lawyer, you can verify all of his claims with publicly available information. If true, you must ask yourself why LightReading choose to ignore publicly available information.

Further, you must begin to wonder how what constitutes a SEARCH for the truth in the eyes of that reporter or LightReading.

And to advance that line of thought: Is this a problem with LightReading, or just with one individual at LightReading? (if its a problem at all) LightReading may only be guilty of not exercising their journalistic integrity muscle.

Lets hope its an isolated incident, not characteristic of LIghtReading or any individual member of the staff.
steve
steve
12/4/2012 | 9:51:48 PM
re: Zwan Responds on DIGL Stock Deals
LR should stick to reporting on technological matters, where they seem to have some expertise - they are way out of their league reporting on financial matters - or at least are unwilling or unable to do the homework necessary for anything beyond yellow journalism. But perhaps they don't care about that.
Jim Delaney
Jim Delaney
12/4/2012 | 9:51:48 PM
re: Zwan Responds on DIGL Stock Deals
I second this wholeheartedly... let's hope it's an isolated incident.
Belzebutt
Belzebutt
12/4/2012 | 9:51:43 PM
re: Zwan Responds on DIGL Stock Deals
We demand a retraction and correction of the false information in your story within two days, and on or before Friday, August 23, 2002.

That's 5 days late! I bet there was some other nasty letters sent in the meantime that we aren't even aware of.

LR got more than it bargained for...
betterfilet
betterfilet
12/4/2012 | 9:51:41 PM
re: Zwan Responds on DIGL Stock Deals
Some of you may have noticed that periodically LightReading runs into a company and/or executive who has the time and resources to openly challenge their journalistic integrity and threaten even more.

Many of the company's and executives who have been misportrayed or worse by LightReading simply withdraw from interaction with LightReading. This provides Mr. Saunders with more grist and spin opportunities...check his most recent column.

LightReading would have us believe they are the 'no spin zone' of the optical or net infrastructure business.
Optical_Mantra
Optical_Mantra
12/4/2012 | 9:51:41 PM
re: Zwan Responds on DIGL Stock Deals
I keep expecting to see a press release like this:

Dr. Zwan, addressing world leaders from his secret military base, informed the U.N. that unless his demands for world domination were met, he would deploy the Doomsday Device.

"Bwahahahaha!" cackled Dr. Zwan "Soon I will control the world! Fools! Bow down before your new master, or die!"
kampar
kampar
12/4/2012 | 9:51:41 PM
re: Zwan Responds on DIGL Stock Deals
As someone who straddles both the technology and finance areas in this business I agree wholeheartedly with the comment as expressed below.

Mess up with a technical specification, or a feature description and I suspect this is often just a simple retraction or correction - no bones broken.

Mess up with the financial integrity of a publicy traded company and you are exposed to all kinds of legal trouble, and not just from the company itself, either.

This isn't so say that financial improprieties shouldn't be investigated, but in my experience this is just as much a skill learned and honed through proper training and experience as an ability to say, compare two different optical switching technologies.

My take - LR, if you're going to do a financial expose, make absolutely sure you have someone who knows their way through the morass of information and the laws regarding the subject. Then get it checked by a lawyer before you publish!!

Damn - did I really just put in an advert for the legal profession? I'm getting old.

________________

LR should stick to reporting on technological matters, where they seem to have some expertise - they are way out of their league reporting on financial matters -
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