miles senn, individually and on...

FILED

Tel: 201-44508595 I 52003

Attorneys for Plaintiff Al [Additional counsel appear on signature page] b

UNITED S4TES DISTRICT COURT DISTRIdT OF NEW JERSEY

SQUITIERI & FEARON, LLP Oiirnpio Lee Squitieri (OLS- 1684) One Gateway Center Suite 2500 Newark, New Jersey 07102

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- Case 2:03-cv-04372-DMC-MF Document 1 Filed 09/15/03 of 33 PageID: 1

MILES SENN, Individually And On Behalf of All Others Similarly Situated,

Plaintiffs, kv

WILLIAM V. HICKEY, T. J. DERMOT DIJNPHY, DANIEL VAN RLPER, DAVID KELSEY, JEFFREY S. WARREN and SEALED AIR CORPORATION,

Defendants.

No.

CLASS ACTION COMPLAINT FOR VIOLATIONS OF FEDERAL SECURITIES LAWS

JURY TRIAL DEMANDED

Plaintiff, by his attorneys, for his Class Action Complaint, alleges the following upon

personal knowledge as to himselr and his own acts, and upon information and belief based upon

the investigation of plaintiff's attorneys as to all other matters. The investigation includes the

thorough review and analysis of public statements, publicly filed documents of Sealed Air

Corporation ("Sealed Air" or the "Company"), press releases, news articles and the review and

analysis of accounting rules and related literature. Plaintiff believes that further substantial

evidentiary support will exist for the allegations set forth below after a reasonable opportunity for

discovery.

/

fir

Case 2:03-cv-04372-DMC-MF Document 1 Filed 09/15/03 of 33 PageID: 2

SUMMARY OF ACTION

1. This is a securities class action on behalf of public investors who purchased the

securities of Sealed Air Corporation during the period from March 27, 2000 through July 30,

2002 (the 'Class Period"). Plaintiff complains of a fraudulent scheme and deceptive course of

business that injured purchasers of Sealed Air stock during the Class Period.

2. Sealed Air is a global manufacturer of protective and specialty packaging

materials and systems, including polyurethane packaging systems and foams and air cellular

cushioning materials.

3. Sealed Air is a successor corporation of W.R. Grace &. Co., Inc. ("Grace"), a

company which until 1998 included a packaging business, Cryovac, and a speciality chemicals

business. Among other things. Grace was involved in the manufacture of several asbestos-

containing products, including but not limited to asbestos-contaminated attic insulation. Those

products have been responsible for severe personal injuries and tens of thousands of deaths

nationwide. Consequently, beginning in the 1980s, tens of thousands of lawsuits have been filed

by individuals and survivors of individuals exposed to asbestos-contaminated products

manufactured by Grace. These lawsuits eventually caused Grace to file for bankruptcy protection.

Sealed Air — as a successor corporation to Grace — is liable for the asbestos claims filed against

Grace.

4. Tn 1998, through a merger and series of complex related transactions designed to

shield valuable assets from asbestos liability, Grace spun of its Cryovac packaging business,

which merged with Sealed Air. Grace also spun off its speciality chemicals business into a


separate, publicly owned company. As part of these transactions Grace agreed to indemnify

Sealed Air against liabilities resulting from the involvement of Grace's chemicals business with

asbestos-containing products.

5. Beginning in 2000, plaintiffs in several states filed personal injury and wrongful-

death lawsuits naming Sealed Air and Grace as co-defendants and seeking to overturn the merger

of Grace's Cryovac packaging business with Sealed Air as a fraudulent transfer designed to shield

the assets of Grace's former packaging business from asbestos liability. On April 2, 2001, Grace,

filed for bankruptcy protection under Chapter 11 of the U.S. Bankruptcy Code as a result of the

increasing number of asbestos-related lawsuits filed against it.

6. Throughout the Class Period, defendants consistently failed to acknowledge

Sealed Air's potentially massive contingent liabilities related to Grace's asbestos liability

exposure, and artificially inflated the price of Sealed Air stock by disseminating materially

misleading statements concerning the Company's earnings, business operations and prospects.

Defendants also violated Generally Accepted Accounting Principles by failing to accrue for

Sealed Air's substantial contingent liabilities related to the acquisition of Grace's Cryovae

packaging business.

7. Under Generally Accepted Accounting Principles ("GAAP"), an accrual for the

estimated amount of pending or threatened litigation is required if: (I) it is probable" that an

asset has been impaired or a liability incurred and that one or more future events will occur to

confirm the loss; and (ii) the amount of loss can be reasonably estimated. Indeed, Grace accrued

for asbestos liability as required by GAAP "where an assessment has indicated that a loss is

probable and can be reasonably estimated."

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8, Scaled Air, however, did not follow GAAP and failed to accrue for the substantial

likelihood that Sealed Air would be held liable for asbestos claims against its predecessor

corporation. Grace, even after a federal court ruling made it more probable that asbestos claimants

could hold Sealed Air responsible for those claims. Moreover, considering the thousands of

asbestos lawsuits filed across the country prior to Sealed Air's purchase of Cryovac, defendants

could have reasonably estimated the amount of the loss, or the range of reasonably possible loss,

based on then-available information.

9. Defendants' misrepresentations and omissions concerning Sealed Air's contingent

asbestos liability drove Scaled Air's stock price from a Class Period high of $58.68 to a low of

$22.00 on July 30, 2002, the day that Sealed Air stock fell 41% when the true nature and

magnitude of Sealed Air's contingent asbestos liability was revealed. The next day, Sealed Air

stock fell 34% to close at $14.51.

JURISDICTION AND VENUE

10. The claims asserted arise under § § 10(b) and 20(a) of the Securities

Exchange Act of 1934 (the "Exchange Act" or the "1934 Act") Jurisdiction is conferred by §27 of

the 1934 Act. Venue is proper pursuant to §27 of the 1934 Act as defendant Sealed Air and/or the

individual defendants conduct business in and the wrongful conduct took place in this District.

THE PARTIES

11. Plaintiff Miles Semi purchased Sealed Air publicly traded securities as detailed in

the attached Certification and was damaged thereby.

12. Defendant Sealed Air is a corporation organized under the laws of Delaware, with

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its principal place ot'business located at Park 80 East, Saddle Brook, New Jersey 07663.

13, Defendant William V. Hickey is, and has been since March 2000 President and

Chief Executive Officer, was Chief Operating Officer from 1971 to February 2000, and a director

of Scaled Air since 1999.

14, Defendant T. J. Dermot Dunphy was, until March 2000 and at times relevant

hereto, Chief Executive Officer and a Director of Sealed Air.

15, Defendant Daniel Van Riper was, from July 1995 to January 2002 and at times

relevant hereto, Senior Vice President and Chief Financial Officer of Sealed Air,

16. Defendant David Kelsey is, and has been since January 2002, Vice President and

Chief Financial Officer of Sealed Air.

17, Defendant Jeffrey S. Warren is, and has been since 1996 and at times relevant

hereto, Controller of Sealed Air.

is. Defendants Hickey, Dunphy, Van Riper, Kelsey and Warren are sometimes

referred to herein as the "Individual Defendants." They are liable for the false statements pleaded

herein, as those statements were "group-published" information.

CLASS ACTION ALLEGATIONS

19. Plain tifibrings this action as a class action pursuant to Rule 23 of the Federal

Rules of Civil Procedure on behalf of all persons who purchased Sealed Air publicly traded

securities (the "Class") on the open market during the Class Period. Excluded from the Class are

defendants, directors and officers of Scaled Air and their families and affiliates.

20 The members of the Class are so numerous that joinder of all members is

impracticable. The disposition of their claims in a class action will provide substantial benefits to

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the parties and the Court.

21. There is a well-defined community of interest in the questions of law and fact

involved in this case. Questions of law and fact common to the members of the Class which

predominate over questions which may affect individual Class members include:

(a) Whether the 1934 Act was violated by defendants

(b) Whether defendants omitted and/or misrepresented material facts;

(c) Whether defendants' statements omitted material facts necessary to make the

statements made, in light of the circumstances under which they were made, not misleading; and

(d) Whether defendants knew or recklessly disregarded that their statements were

false and misleading.

SUBSTANTIVE ALLEGATIONS

22. During the Class Period, each of the Individual Defendants occupied positions as

top executives of Sealed Air and were privy to non-public information concerning the Company.

Each of them knew of the adverse facts specified herein. Sealed Air's press releases, corporate

reports to shareholders and filings with the Securities and Exchange Commission ("SEC") were

eachgroup-published documents for which each defendant is equally responsible.

23. Each of the Individual Defendants and Sealed Air are liable in that they inflated the

price of Sealed Air stock by making false and misleading statements and omitting material

adverse information. The defendants' wrongful course of business (I) artificially inflated the price

of Sealed Air stock during the Class Period; (ii) deceived the investing public, including plaintiff

and other Class members, into acquiring Sealed Air securities at artificially inflated prices; and

(iii) permitted Sealed Air to grow and benefit economically from the wrongful course of conduct.

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24. Defendants knew that by concealing the magnitude of Sealed Air's potential

asbestos liability they could foster the perception in the business community that Sealed Air was a

tgrowth company," i.e., the only way they could post the revenue and earnings per share growth

claimed by defendants. Sealed Air's financial results were misrepresented by defendants' public

statements and quarterly reports filed with the SEC which failed to reflect the potential effect of

asbestos-related lawsuits on the Company's earnings.

Backroun4 to the Class Period

25, Defendant Sealed Air is a successor corporation of W.R. Grace & Co. Prior to

1998, Grace included a speciality chemicals business and a packaging business known as

Cryovac.

26, Since 1963 Grace owned a vermiculite mine situated on Zonolite Mountain near

Libby, Montana. The Zonolite mine was the source of vermiculite ore that Grace used in the

production of "Zonolite Attic. Insulation," a product that was installed in the attics of thousands of

home, businesses and other properties throughout the United States. Vermiculite from the Libby

mine, and consequently Zonolite insulations however, was contaminated with tremolite, an

extremely dangerous form of asbestos - a known human carcinogen. As a result of the operations

of the Zonolite mine and the widespread installation of asbestos-contaminated Zonolite insulation,

Grace subsequently became the target of numerous lawsuits, including personal injury and

wrongful-death claims filed by homeowners and others who were exposed to dangerous levels of

asbestos.

27. As required by GAAP, Grace accrued for asbestos liability"where an assessment

has indicated that a loss is probable and can be reasonably estimated." By December 31 1996,

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approximately one year before merging its packaging business with Scaled Air, Grace reported in

its Form 10-K filed with the SEC that Grace had accrued $994.1 million for asbestos claims

pending and expected to be filed through 2001.

28, In March 1998, Grace spun off its two businesses: the chemicals business

(responsible for Zonolite insulation) became Grace Speciality Chemicals. Inc., a separate, publicly

owned corporation; the Cryovac packaging business merged with Sealed Air Corporation (the

"Cryovac Transaction") and also became a publicly owned company, separate from Grace, called

Sealed Air Corporation/DE ('Sealed Air") the defendant named herein.

29. After the March 1998 Ciyovac Transaction, Grace purportedly retained all of its

previous liabilities, whether accruing before or after the Cryovac Transaction and including

liability for the asbestos-related operations of Grace or its subsidiaries. Additionally, as a part of

the Cryovac Transaction. Grace agreed to indemnify Sealed Air against asbestos liability

connected to Grace's operations.

30. By the time the Cryovac Transaction had occurred, Grace already had significant

asbestos-related liability. For example, in 1997, the year before the Cryovac Transaction, Grace

paid approximately $74.1 million for the defense and disposition of asbestos-related property

damage and personal injury litigation. During the fourth quarter of the previous year, 1996, Grace

had recorded a noucash pretax charge of $229.1 million, primarily to reflect the estimated costs of

defending against and disposing of personal injury claims that Grace expected to be fled during

the next five years. By December 31, 1997, Grace was a defendant in approximately 40,600

asbestos-related lawsuits.

31. In a Form. S-4 filed February 13, 1998 with the SEC, in a section titled"Liabilities


of New Grace, Fraudulent Transfer and Related Considerations," Sealed Air acknowledged that

the c.ryovac Transaction may constitute a fraudulent transfer of assets. The Form S-4 stated, in

pertinent part:

[C]laimants might seek to hold New Sealed Air liable for obligations of New Grace. New Grace has agreed to indemnify New Sealed Air for liabilities and costs that New Sealed Air may incur relating to New Grace's liabilities; however, New Grace may not be able to fulfill its indemnity obligations to New Scaled Air.

Claimants may also bring suit seeking recovery from New Sealed Air or its subsidiaries by claiming that the transfers of assets and liabilities in connection with the reorganization of Grace, including the separation of Grace's packaging and specialty chemicals businesses and the cash transfer to and spin-off of New Grace, were "fraudulent transfers", A transfer would be a fraudulent transfer if the transferor received less than reasonably equivalent value and the transferor was insolvent at the time of the transfer, was rendered insolvent by the transfer or was left with trnrcasonabiy small capital to engage in its business. A transfer may also be a fraudulent transfer if it was made to hinder, delay or defraud creditors. If any transfers in connection with the reorganization of Grace are found to be f.audulent transfers, the recipient (including New Sealed Air and its subsidiaries) might be required to return the property to the transferor.

Although in the Form 5-4 Sealed Air further represented its belief that the transaction was not a

fraudulent transfer, the Company also acknowledged that "a court applying the relevant legal

standards may not reach the same conclusions."

32. Beginning in 2000, numerous lawsuits were filed naming Sealed Air as defendant

(or as co-defendant with Grace) and alleging that Sealed Air, as a successor corporation, was

responsible for the asbestos liabilities of Grace and its subsidiaries. Plaintiffs in these lawsuits

included, among others, owners and occupiers of real property in states where Zonolite insulation

has been installed, certain residents and former residents who lived in proximity to Libby,

Montana, and employees and their household members who worked at Grace plants processing

vermiculite. The relief sought included, among other things, identification of the affected

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Properties, medical monitoring, .remediation and punitive damages. By March 2001 when Sealed

Air filed its Form 10-K for 2000, eight putative class actions and thirteen personal injury lawsuits

were pending against Sealed Air and seeking to hold the Company accountable for Grace's

asbestos liabilities. By March 2001 a plaintiffs' class had been certified in one of the asbestos-

related class actions tiled against Sealed Air.

33. Additionally, plaintiffs in various states filed lawsuits naming Sealed Air as a

defendant and alleging that the Cryovac Transaction and other transactions were fraudulent

conveyances. Plaintiffs alleged that the transactions were designed to shield Grace by transferring

its assets to Sealed Air and other companies that had not been involved with the manufacture or

sale of asbestos-containing products, thus shielding those assets from being included in damages

awards to successful asbestos plaintiffs. In practical terms, if plaintiffs prevailed on the fraudulent

transfer claims. Scaled Air would be jointly and severally liable for the substantial asbestos

liabilities of Grace.

Defendants' Misleading Statements During the Class Period

34. The Class Period begins on March 27, 2000, when Sealed Air filed its 1999 Form

10-K ("10-K"). The 10-K was signed by, among others, defendants Hickey and Van Riper, and

included the Company's financial results for fiscal 1999. The Company reported net earnings of

$211,461,000 or $1.69 per common share. The 10-K also discloses the existence of numerous

lawsuits related to the operations of Grace, stating in pertinent part:

Since the beginning of 2000, the Company has been served with a number of lawsuits alleging that, as a result of the Cryovac Transaction, the Company is responsible for alleged asbestos liabilities of New Grace and its subsidiaries, certain of which are also named as co-defendants in these actions. As of March 21, 2001, pending actions include eight purported class action lawsuits

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and thirteen personal injury lawsuits. These cases are all in the pre-trial stage, and none has been resolved through judgment, settlement or otherwise. The purported class action lawsuits include the following:

TENNISON V. W. R. GRACE & COMPANY, ET AL, filed in February 2000 and pending in the U.S. District Court, District of Montana, Missoula Division. The relief sought includes enviromnental remediation and restoration, property damages and punitive damages arising from vermiculite mining and processing operations formerly owned and operated by Grace in Libby, Montana that allegedly resulted in asbestos contamination of the surrounding area. The putative class consists of owners of improved private properties within a 12 mile radius of the courthouse in Libby, Montana.

GRENFELL V. W. R. GRACE & COMPANY, ET AL, filed in February 2000 and pending in the Multi district Litigation (MDL) 875 in the U.S. District Court, Eastern District of Pennsylvania. The relief sought includes medical monitoring and punitive damages arising from alleged asbestos-contaminated vermiculite mining and processing operations formerly owned and operated by Grace in Libby, Montana. The putative class consists of residents and former residents who lived, for at least one year since 1930, within a 12 mile radius of the courthouse in Libby, Montana, and employees who worked for at least one year at the local vermiculite processing plant and members of their households.

BARBANTI V. W. R. GRACE & COMPANY-CONN., ET AL., filed in March 2000 and pending in the Superior Court, State of Washington, County of Spokane. The relief sought includes identification of affected properties, notification of class members, a remediation fund punitive damages and other relief. The complaint is brought on behalf of owners or occupiers of real property located in the State of Washington in which Zonolite Attic Insulation has been installed and alleges that such insulation contains asbestos-contaminated vermiculite. Although the class has been certified, New Grace and the Company have requested discretionary appellate review of the class certification ruling.

PRICE V. W. R. GRACE & COMPANY, ET AL., filed in April 2000, and HUNTER V. W. R. GRACE & COMPANY, ET AL., filed in July 2000, both of which are pending in MDL 1376 in the U.S. District Court, District of Massachusetts. In both cases, the purported class consists of owners or occupiers of real property located in the United States in which Zonolite Attic Insulation has been installed The relief sought includes identification of affected properties, notification to purported class members, funds for research, a rernediation

program, punitive damages and other relief.

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CHAKARTAN V. W. R. GRACE & COMPANY, ET AL., filed in May 2000 and

pending in the MDL 875 in the U.S. District Court, Eastern District of Pennsylvania. The purported class consists of all employees who worked for three months or more at any Grace plant that processed vermiculite and members of their households. The relief sought includes medical monitoring, research funds, and warnings to the purported class.

MCMURCHIE V. W. R. GRACE & COMPANY-CONN., FT AL., filed October 2000 and pending in the District Court, Fourth Judicial District, County of Hennepin, Minnesota. The purported class consists of owners or occupiers of real property located in the State of Minnesota in which vermiculite attic insulation has been installed. The relief sought includes identification of affected properties, warnings to the purported class, research funds, and other relief.

ABNER, FT AL., V. W. R. GRACE & COMPANY, ET AL., filed in September 2000 and pending in the Superior Court of California, County of San Francisco. The purported class consists of all persons who have lawsuits on file in the United States that are pursuing unsatisfied personal injury or wrongful death claims against any of the defendants based on asbestos exposure. Other defendants include New Grace and related companies, Merrill Lynch, Pierce, Fenner & Smith Inc.. Credit Suisse First Boston Corp.. National Medical Care, Inc., and Fresenius Medical Care, Inc., and related companies. The plaintiffs allege that the Cryovac Transaction and an earlier 1996 transaction between Grace and Freseiiius AG constitute fraudulent conveyances, result from civil conspiracies and constitute unfair business practices. Relief sought includes an accounting for all transfers of assets of Grace and proceeds from the distribution of such assets and receipt of fees in connection with such transactions, a declaration that both transactions were fraudulent transfers, establishment of a constructive trust on all assets transferred in such transactions and a determination that the defendants are jointly and severally responsible for damages equal to the full fair market value of all assets transferred in connection with such transactions, among other remedies.

Plaintiffs in the personal injury lawsuits seek damages for personal injury or wrongful death related to alleged exposures to asbestos-containing products. While the allegations that are directed to the Company in all of the cases mentioned ahove vary, these actions all appear to allege that the Cryovac Transaction was a fraudulent transfer or gave rise to successor liability.

In addition, the Company has been advised that plaintiffs in a substantial number of Ohio state court asbestos-related personal injury lawsuits have been granted permission to amend their complaints to add the Company as an additional defendant. However, the Company has not been served in any of such actions and lacks further information about these actions

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The Company believes that it is well-positioned to defend the allegations against it in any asbestos-related actions. Neither old Sealed Air nor Cryovac has ever produced or sold any asbestos-containing products To the extent that the Company is named in any asbestos-related actions, the Company intends to defend its interests vigorously. However, an adverse outcome could have a material adverse effect on the Company's results of operations or consolidated financial position. While it is not possible to predict the outcome of any litigation, based on the Iacts known to the Company, the Company does not believe that an adverse outcome is probable. Thus, in accordance with generally accepted accounting principles, the Company has not recorded any liability in its financial statements for these actions.

35. On May 12, 2000, Sealed Air filed a Form l0-Q ("l0-Q") for the first

quarter of fiscal 2000. The 10-Q was signed by defendant Warren and reported net earnings of

$54,983, 000 or $0.49 per common share

36. On July 26, 2000, Sealed Air issued a press release announcing the

Company's financial results for the second quarter of 2000. The press release announced net

earnings of $53,831,000 or $0.44 per common share. The financial results in the July 26 press

release were repeated in the Company's 10-Q for the period ending June 20, 2000, which was

signed by defendant Warren and filed August 11, 2000, with the SEC.

37. On October 26, 2000, Sealed Air issued a press release announcing the

Company's financial results for the third quarter of 2000. The press release announced earnings

of $54,714,000 or $0.57 per common share.

38. Approximately three weeks later, on November 13, 2000, the Company

filed its Form I 0-Q for the period ending September 30, 2000 with the SEC. The 1 0-Q was signed

by defendant Warren and repeated the financial results announced in the October 26 press release.

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39. Approximately one week later, on November 21 2000, an article in

Bloomberg News ("Bloomberg") discussed the asbestos-related and fraudulent transfer lawsuits

filed against Grace and Sealed Air. The article quoted a Sealed Air spokesman downplaying the

Company's contingent asbestos liability and stated:

Scaled Air Says It Doesn't Expect Effect From Asbestos Lawsuits

Saddle Brook, New Jersey, Nov. 21 (Bloomberg) -- Sealed Air Corp., maker of Bubble Wrap and Instapak foam packaging, said it doesn't believe it will be significantly affected by any asbestos litigation brought against W.R. Grace & Co.. which sold a packaging business to Sealed Air in 1998,

Scaled Air has been named in lawsuits brought against specialty chemical maker Grace earlier this year. One suit claims Grace tried to shield itself from nearly $1 billion in legal claims by shedding profitable businesses, including packaging.

Investors have been asking about the effect of court cases in recent weeks on Sealed Air and the company believes that concern over the lawsuits is leading to a decline in Sealed Air's stock, said spokesman Ryan Flanagan.

Saddle Brook, New Jersey-based Sealed Air's shares fell $2.25 to $40 today. The shares have fallen 21 percent since Nov. 15. Sealed Air s which tripled in site by taking over Grace's Cryovac unit, did not acquire any business that made or sold asbestos, Flanagan said.

Columbia, Maryland-based Grace once sold building fireproofing that contained asbestos. As part of the sale of its packaging business, Grace agreed to defend and indemnify Sealed Air against any asbestos litigation, Flanagan said,

40. Defendants knew or recklessly disregarded that the statements in the November 21,

2000, Bloomberg article were materially misleading because Sealed Air was facing substantial

contingent asbestos liability. Moreover, defendants were in violation of GAAIP by failing to

accrue for Sealed Air's contingent asbestos liability; by November 2000 it was probable that

Sealed Air would be held liable for asbestos claims against Grace because more than 20 lawsuits

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Case 2:03-cv-04372-DMC-MF Document 1 Filed 09/15/03 of 33 PageID

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had been filed against Sealed Air alleging, among other things, that the Company had incurred the

asbestos liabilities of Grace and the Cryovac transaction was a fraudulent conveyance for the

purpose of shielding Grace's assets from judgement creditors, Additionally, in light of the

thousands of asbestos lawsuits already filed against Grace and other companies, defendants could

reasonably estimate the probable loss or a range of possible loss based on then-available

information.

41. On January 25, 2001, Sealed Air issued a press release announcing the Company's

financial results for fourth-quarter and frill-year 2000. The press release announced net earnings

of $61,791 ,000 and $225,319,000, respectively, or earnings per common share of $0.97 for the

quarter and $2.47 for the full year. The financial results announced in the January 25, 2001, press

release were repeated in the Company's 10-K for fiscal 2000. The 10-K was signed by Defendants

Hickey, Van Riper and Warren, among others, and filed March 23, 2001 with the SEC.

42, On April 2, 2001, W.R. Grace & Co. issued a press release announcing that Grace

was tiling for reorganization under Chapter 11 of the United States Bankruptcy Code "in response

to a sharply increasing number of asbestos claims." Even after Grace's bankruptcy filing, Sealed

Air continued to violate GAAP by failing to accrue for the Company's contingent asbestos

liability, which was probable in light of Grace's bankruptcy filing, and even though defendants

could reasonably estimate the possible loss based on then-available information.

43. On April 25, 2001, Sealed Air issued a press release announcing the Company's

financial results for the first quarter of fiscal 2001. The press release announced net earnings of

$34,560,000 or $0.30 per common share. The financial results in the April 25 press release were

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repeated in the Company's 10.Q for first-quarter 2001. The 10-Q was signed by defendant

Warren and filed May 31, 2001 with the SEC.

44. On July 25, 2001, Sealed Air issued a press release announcing the Company's

financial results for the second quarter of fiscal 2001. The press release announced net earnings

of $39,264,000 or $0.53 per common share. The financial results in the July 25 press release

were repeated in the Company's 10-Q for second-quarter 2001. The 10-Q was signed by

defendant Warren and filed August 10, 2001 with the SEC.

45, On October 24, 2001, Sealed Air issued a press release announcing the

Company's financial results for the third quarter of fiscal 2001 ending September 30, 2001. The

press release announced net earnings of $44,410,000 or $0.40 per common share. The financial

results in the October 24 press release were repeated in the Company's 10-Q for third-quarter

2001. The l0-Q was signed by defendant Warren and filed November 13, 2001 with the SEC.

46. Approximately six weeks later, on Friday December 7, 2001, Sealed Air investors

were alarmed by a $30 million asbestos-exposure verdict against another company, Hallihurton

Co., an oilfield services company ("Halliburton"). As reported in a Bloomberg article published

that day, the $30 million verdict was the latest of three such losses' for Halliburton, and was

followed by a 42% decline in Halliburton stock in one day. Like Sealed Air, 14alliburtoni's

asbestos liability involved its acquisition of a company purportedly indemnified against asbestos

claims. As a result of this news, Sealed Air's stock dropped 9.83% by the close of trading.

Hallihurton was ordered to pay $100.7 million for similar claims by a Texas court in November 2001, and $21.3 million by a Mississippi court in October.

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47 On the Ibliowing Monday, December 10, 2001, the next trading day after the

Halliburton verdict was announced, Sealed Air stock dropped an additional 9.89% after

Bloom berg reported that the decline in Sealed Air stock was caused in part by concerns that

Scaled Air was facing asbestos-related costs related to the Company's acquisition of Grace's

packaging business. Despite investors' concerns, the media coverage of Halliburtoji's most-recent

asbestos verdict, and the increased probability in light of the HalliburtOn verdict that Sealed Air

would be held liable for asbestos claims against Grace, Sealed Air disseminated a press release

that same day claiming that "here has been no cbane in [Sealed Air's, operations or

prosRects that it believes would explain the activily in its stock over the last several dav"

(emphasis added) The December 10 press release further stated, in part.:

Sealed Air Corporation's position regarding the liabilities of W.R. Grace & Co. and the effect on Scaled Air Corporation in light of the 1998 corporate transaction involving Scaled Air and Grace has not changed since its most recent filing on

Form 10-Q for the quarter ended September 30, 2001,

48. The structure of the transaction at issue in the Halliburton verdict indicated the

substantial probability that Sealed Air could be held responsible for Grace's asbestos liability. The

source of Halliburton's asbestos liability actually was products manufactured by Harbison-Walker

Refractories Co. (Harbison-Walker), which was formerly owned by Dresser Industries, Inc.In

1992 Dresser industries spun-off Harbison-Walker and six years later, in 1998, Halliburton

acquired Dresser Industries, In a 14alliburton Form S-3 Registration Statement filed December 3,

2001 with the SEC, a section titled 'Risk Factors" described how T-Ialliburtorl incurred Harbison-

Walker's asbestos liability despite Harbison-Walker's indemnity agreement with Dresser

Industries. The Form 5-3 stated in pertinent part:

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In the agreement related to the spin-off, Harbison-Walker agreed to assum e.

liability for asbestos claims filed, after the spin-off and It agreed to defend and indemnify Dresser from liability for those claims. In addition to the open claims.. .as of September 30, 2001, we believe there were approximately 182,000 open and unresolved post spin-off refractory claims. We believe approximately 120,000 of these post spin-off claims name Dresser as a defendant Based on our negotiations with 14arbison-Walker and our investigations, we bellicy e Harbison-Walker is no longer financially able to perform its obligations to assume liability for post spin-off refractory claims and defend Dresser from those claims. If so, these claims could have a material adverse effect on our financial condition. Once we have verified that Dresser is a named defendant in any claims, we plan to treat these claims as open claims.

(Emphasis added)

49. Even after the December 7, 2001, Halliburton verdict, Sealed Air continued to

violate by GA.AP by failing to accrue for its contingent asbestos liability resulting from the merger

of Grace's packaging business with Sealed Air.

50. On January 24, 2002, Sealed Air issued a press release announcing the Company's

financial results for fourth-quarter and full-year 2001. The press release announced net earnings

of $38,463,000 for the quarter and $156,697,000 for the year, or $0.30 and $1.30 per common

share, respectively. The financial results in the January 24, 2002 press release were repeated in

the Company's 1 0-K for 2001. The 10-K was signed by defendants Hickey, Kelsey and Warren

and filed March 21, 2002, with the SEC.

51. On April 24, 2002, Sealed Air issued a press release announcing the Company's

financial results for the first quarter of fiscal 2002. The press release announced net earnings of

$60.545.000 or $0.56 per common share. The financial results announced in the April 24 press

release were repeated in the Company's lO-Q for first-quarter 2002. The l0-Q was signed by

defendant Warren and filed May 14, 2002, with the SEC.

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52. in a section of the May 14, 2002 Form 10-Q titled "Commitments and

Contingencies" defendants discussed, among other things, that on April 2, 2001, Grace had filed

for bankruptcy protection under Chapter 11 of the U.S. Bankruptcy Code "in response to a sharply

increasing number of asbestos claims since 1999." Despite the sharp increase in the number of

asbestos lawsuits against Grace, Grace's bankruptcy filing as a result of these lawsuits and the

numerous asbestos lawsuits naming Sealed Air as a defendant, in the Form 10-Q defendants

claimed that Sealed Air was not required under GAAP to accrue for these contingent liabilities,

stating in pertinent part:

On April 2, 2001, New Grace and certain of its subsidiaries filed a petition for reorganization under Chapter 11 of the U.S. Bankruptcy Code in the U.S. Bankruptcy Court in the District of Delaware. New Grace stated that the filing was made in response to a sharply increasing number of asbestos claims since

1999.

In connection with its Chapter 11 filing, New Grace filed an application with the Bankruptcy Court seeking to stay, among others, all actions brought against the Company related to alleged asbestos liabilities of New Grace and its subsidiaries or alleging fraudulent transfer claims. The court issued an order dated May 3, 2001, which was modified on January 22. 2002, under which all such filed or pending actions against the Company were stayed and all such future actions are stayed upon filing and service on the Company. No further proceedings involving the Company can occur in the actions that have been stayed except upon further order of the Bankruptcy Court. The Company believes that New Grace's filing for reorganization may provide a single forum in which all such claims might be

resolved. * *1K

During 2001, the Company paid approximately $8,000 unrelated to the asbestos and fraudulent transfer claims described above, which was primarily a result of theCompany's guarantee, entered into at the time of the Cryovac Transaction, of certain debt payable by W. R. Grace & Co.-Conn., which filed for reorganization

along with New Grace. ** 1K

Under accounting principles generally accepted in the United States o f

America, an accrual for a contingent liability Is appropriate only If it is

probable that a liability has been incurred and if the amount of the liabiI

19


can be reasonably estimated. The Company does not believe that these conditions have been met with respect to the claims against the Compan y related to the alleged asbestos liabilities ', [or] the fraudulent transfer claims all of which are described above. Accordingly, the CompanY has not made any accrual for these matters as of March 31, 2002 (Emphasis added.)

53+ On July 24, 2002, Sealed Air issued a press release announcing the Company's financial results for the second quarter of fiscal 2002. The press release announced net earnings of $66,005,000 or $0+61 per common share. The financial results announced in the July 24 press release were repeated in the Company's 10-Q for second-quarter 2002.

54. Defendants knew or recklessly disregarded that defendants' public statements,

press releases and SEC filings as described in ¶J34-45 and ¶J47-53 were materially misleading

because defendants violated GAAP by failing to accrue for the Company's massive, contingent

asbestos liability related to Sealed Air's merger with W.R. Grace & Co.'s packaging business.

THE TRUTH IS REVEALED

55. The Class Period ends on July 30, 2002, when the true nature of Scaled Air's

contingent asbestos liability was finally revealed as a result of a federal court ruling that

potentially made it easier for asbestos plaintiffs to prove that the Cryovac Transaction was a

fraudulent transfer designed to shield Grace's assets from asbestos claims. The federal court

hearing Grace's bankruptcy proceedings ruled that Grace should have anticipated the financial

consequences of asbestos lawsuits when it merged its Cryovac unit with Sealed Air in 1998. An

article published the same day in Bloomberg explained that the ruling "might make it easier for

people alleging asbestos injuries to prove [W.R Grace & Co.] fraudulently sold [Ciyovac] to

Sealed Air Corp. in 1998" The bankruptcy court's ruling was highly significant because - were

the Cryovac Transaction found to be a fraudulent transfer - asbestos plaintiffs might also be able

20


to hold Sealed Air responsible for satisfying a 'flood" of asbestos-related lawsuits. The

Bloomberg article stated in pertinent part:

W.R. Grace, Sealed Air Lose Ruling in Asbestos Case

Newark, New Jersey, July 30 (131oomberg) - W.R. Grace & Co. lost a court ruling that might make it easier for people alleging asbestos injuries to prove the chemical maker fraudulently sold a food-packaging company to Sealed Air Corp.

in 1998.

Shares of Scaled Air, the maker of Bubble Wrap, were down $15.77, a decline

of almost 42 percent closing at $22 in trading on the New York Stock Exchange.

Grace transferred its Cryovac division to Sealed Air in 1998 for $1.2 billion and stock, in a move to shield assets from plaintiffs seeking payment for asbestos-related injuries, according to a lawsuit against Sealed Air and Grace. Sealed Air has said it may have to hand over Ciyovac to asbestos plaintiffs if they

win the case.

Attorneys for the plaintiffs say Grace sold Cryovac for less than its actual value, leaving the company unable to pay the potential damages it faced from future asbestos lawsuits. Grace has said the sale price was fair and that it didn't foresee the subsequent flood of asbestos claims that prompted its bankruptcy filing in April 2001. A federal judge said Grace should have anticipated those claims when it sold Cryovac.

"W.R. Grace had a serious and open-ended asbestos liability problem for years before" the 1998 transaction., U.S. District Judge Alfred Wolin in Newark ruled yesterday. The plaintiffs "should not be the party burdened with W.R. Grace's failure to accurately calculate its actual,. . asbestos liability."

'Arm's-Length Transaction'

Sealed Air, based in Saddle Brook, New Jersey, said in a statement it was disappointed with the ruling and will appeal.

The deal "was an arm's-length transaction negotiated in good faith between two independent companies after considering all relevant issues, including Grace's solvency under applicable law," the statement said.

The lawsuit claims Sealed Air should also pay damages because it assumed Grace's liability when it bought the Cryovac unit,

21


A spokesman for Grace, based in Columbia. Maryland, did not immediately return a call seeking comment. Grace shares rose 43 cents to close at $2.94, in trading on the New York Stock Exchange.

Wolin has set a Sept. 30 trial date. The judge said that for the plaintiffs to win their fraud suit they must prove the transfer left Grace with more liabilities than assets and that the company got less for Cryovac than it was worth.

56. News of the bankruptcy court's ruling and Sealed Air's potential liability

for the asbestos lawsuits against Grace hit the market like a shockwave. By the close of trading

on July 30, 2002, the same day as the ruling, Sealed Air's stock had plummeted more than 41%.

The next day, July 31, 2002, the price of Sealed Air's stock dropped again, falling 34% from the

previous day's close.

57. Subsequently, on November 29, 2002, Sealed Air issued a press release

announcing the terms of a settlement of the fraudulent-transfer and asbestos claims related to

Scaled Air's acquisition of Grace's Cryovac packaging business The press release disclosed

that Sealed Air had reached an a2reenlent In principle with Grace's creditors and asbestos-

injury claimants to pay $512 million in cash and nine million shares of Seated Air stock.

The press release stated in pertinent part:

Sealed Air Corporation (NYSE:SEE) announced today that it has reached an agreement in principle with all of the appropriate parties to resolve all of the current and future asbestos-related claims and the pending fraudulent transfer claims made against it and its affiliates in connection with the 1998 transaction in which Sealed Air acquired the Ctyovac packaging business from W.R. Grace. The pending settlement calls for the Company to contribute 9 million shares of Sealed Air common stock. The shares closed at $24.48 on Wednesday, November 27, 2002. The pending settlement also calls for the payment of $512.5 million in cash plus interest, at a 5.5% annual rate, starting on December 21, 2002 and ending on the effective date of the W. R. Grace plan for reorganization. The cash

22


payment must be made in full at that time. Sealed Air will not seek indemnity from Grace for payments made under this agreement.

The agreement also provides for full protection of Sealed Air from any and all claims against the Company by Fresenius Medical Care AG related to the W. R. Grace transactions.

This agreement is subject to Sealed Air and its affiliates, subsidiaries, officers, directors et al., receiving the frill benefit of 11 U.S.C. Sec. 524(g) and Sec. 105 of the U.S. Bankruptcy Code. This provides that all asbestos-related claims against Sealed Air would be channeled to a trust to be established as part. of W.R. Grace's plan of reorganization that will make payments to asbestos claimants on behalf of Grace. The agreement is also subject to the approval of Sealed Air Corporation 1s

Board of Directors and the Asbestos Personal Injury and Asbestos Property Damage Creditors Committees in the W.R. Grace bankruptcy proceeding. Approval will be sought by the respective parties no later than December 6, 2002.

The agreement is also subject to execution of a definitive settlement agreement.

William V. Hickey, President and Chief Executive Officer, stated that: "This agreement in principle provides Sealed Air with finality and certainty as we put the Grace-related issues behind us. We believe that reaching this timely and manageable settlement is in the best interests of our shareholders and our business. Sealed Air will continue doing what we do best: providing superior, innovative packaging products and solutions that add value to our customers around the world."

* *

58. Although the Company, throughout the Class Period, consistently failed to

acknowledge the significance of Sealed Air's contingent asbestos liability, the market clearly

demonstrated how material the asbestos liability was to investors. On the day the proposed

settlement was announced, Sealed Air's stock price shot upward, to close an astounding 56.5%

higher than the previous day - the day before the announcement of the pending settlement.

Defendants False Financial Reporting During The Class Perio d

59. In order to inflate the price of Sealed Air's stock, defendants violated

Generally Accepted Accounting Principles ("GAAP") by failing to accrue for the Company's

23

Case 2:03-cv-04372-DMC-MF

Document 1

Filed 09/15/03 of 33 PageID: 24

contingent liability to asbestos claimants which artificially inflated the Company's earnings.

Furthermore, defendants failed to disclose the full scope and nature of Sealed Air's contingent

asbestos liabiiity.

% Financial Accounting Standards Board ("FASB") Statement 5 ("FAS-5")

establishes standards of financial accounting and reporting for loss contingencies. FAS-5 requires

accrual and disclosure for an estimated loss from a loss contingency if two conditions are met: (1)

information available prior to issuance of the financial statements indicates that it is probable that

an asset had been impaired or a liability had been incurred at the date of the financial statements,

and (ii) the amount of loss can be reasonably estimated. If a loss contingency is"probable," and

only a range of possible loss can be estimated, then the minimum amount of the range is accrued.

Defendants failed to include an accrual in the Company's financial statements for even the

minimum amount of possible loss from Sealed Air's probable asbestos liability, although the

range of possible loss could be reasonably estimated based on information available prior to

issuance of the financial statements.

61. The financial statements and statements about them were misleading as such

financial information was not prepared in conformity with GAAP, nor was the financial

information a fair representation of the Company's operations or the Company's contingent

asbestos-related liability.

62. GAAP are those principles recognized by the accounting profession as the

conventions, rules and procedures necessary to define accepted accounting practice at a particular

time. SEC Regulation S-X (17 C.F.R. §210.4-0i(a)(1)) states that financial statements filed with

the SEC which are not prepared in compliance with GAAP are presumed to be misleading and

24


inaccurate, despite footnote or other disclosure. Regulation S-X requires that interim financial

statements must also comply with GAAP with the exception that interim financial statements

need not include disclosure which would be duplicative of disclosures accompanying annual

financial statements. 17 CF,R. §210.10-01(a),

63. Sealed Air's 1999 Form 10-K, filed March 27, 2000 with the SEC; the Form 10-Q,

filed May 12, 2000; the July 26, 2000 press release; the Form 10-Q filed August ii, 2000; the

October 26. 2000 press release; the Form 10-Q filed November 13, 2000; the January 25, 2001

press release; the 2000 Fom.i 10-K, filed March 23, 2001; the April 25. 2001 press release; the

Form 10-Q, filed May 31, 2001; the July 25, 2001 press release; the Form 10-Q filed August 10,

2001; the October 24, 2001 press release; the Form 10-Q filed November 13, 2001; the December

10, 2001 press release; the January 24, 2002 press release; the 2001 Form 10-K filed March 27,

2002; the April 24, 2002 press release; the Form I 0-Q filed May 14, 2002; and the July 24, 2002

press release presented the Company's financial results and statements in a mariner which violated

GAAP, including the following fundamental accounting principles:

(a) The principle that interim financial reporting should be based upon the same

accounting principles and practices used to prepare annual financial statements was violated (APB

No. 28, 1110);

(b) The principle that financial reporting should provide information that is useful

to present and potential investors and creditors and other users in making rational investment,

credit and similar decisions was violated (FASB Statement of Concepts No. 1, ¶34);

25


(c) The principle that financial reporting should provide information about the

economic resources of an enterprise, the claims to those resources and effects of transactions,

events and circumstances that change resources and claims to those resources was violated (FASB

Statement of Concepts No. 1, ¶40);

(d) The principle that financial reporting should provide information about how

management of an enterprise has discharged its stewardship responsibility to owners

(stockholders) for the use of enterprise resources entrusted to it was violated. To the extent that

management offers securities of the enterprise to the public, it voluntarily accepts wider

responsibilities for accountability to prospective investors and to the public in general (FASB

Statement of Concepts No. 1, 1150);

(e) The principle that financial reporting should provide information about an

enterprise's financial perlormance during a period was violated. Investors and creditors often use

information about the past to help in assessing the prospects of an enterprise. Thus, although

investment and credit decisions reflect investors' expectations about future enterprise

performance those expectations are commonly based at least partly on evaluations of past

enterprise performance (FASB Statement of Concepts No. II ¶42);

(1) The principle that financial reporting should be reliable in that it represents

what it purports to represent was violated. That information should be reliable as well as relevant

is a notion that is central to accounting (FASB Statement of Concepts No. 2, ¶158-59);

(g) The principle of completeness, which means that nothing is left out of the

information that may be necessary to insure that it validly represents underlying events and

conditions was violated (FASB Statement of Concepts No 2,1179); and

26


(h) The principle that conservatism be used as a prudent reaction to uncertainty to

try to ensure that uncertainties and risks inherent in business situations are adequately considered

was violated. The best way to avoid injury to investors is to try to ensure that what is reported

represents what it purports to represent (FA.SB Statement of Concepts No. 2, ¶1195. 97)

64. Further, the undisclosed adverse information concealed by defendants during the

Class Period is the type of information which, because of SEC regulations, regulations of the

national stock exchanges and customary business practice, is expected by investors and securities

analysts to be disclosed and is known by corporate officials and their legal and financial advisors

to he the type of information which is expected to be and must be disclosed.

SCIENTE.R ALLEGATIONS

5. As alleged herein, defendants acted with scienter in that defendants knew that the

public documents and statements issued or disseminated in the name of the Company were

materially false and misleading; knew that such statements or documents would be issued or

disseminated to the investing public.; and knowingly and substantially participated or acquiesced

in the issuance or dissemination of such statements or documents as primary violations of the

federal securities laws. As set forth elsewhere herein in detail, defendants by virtue of their

receipt of information reflecting the true facts regarding Sealed Air, their control over, and/or

receipt and/or modification of allegedly materially misleading misstatements and/or their

associations with the Company which made them privy to confidential proprietary information

concerning Sealed Air, participated in the fraudulent scheme alleged herein.

27


Applicability Of Presumption Of Reliance: Fraud-On-The-Market Doctrine

66. At all relevant times, the market for Sealed Air securities was an efficient market

for the following reasons, among others:

(a) Scaled Air stock met the requirements for listing, and was listed and actively

traded on a highly efficient and automated market;

(b) As a regulated issuer, Sealed Air filed periodic public reports with the SEC;

(c) Scaled Air regularly communicated with public, investors via established market

communication mechanisms, including through regular disseminations of press releases on the

national circuits of major newswire services and through other wide-ranging public disclosures,

such as communications with the financial press and other similar reporting services; and

(d) Scaled Air was followed by securities analysts employed by major brokerage

firms who wrote reports which were distributed to the sales force and certain customers of their

respective brokerage firms. Each of these reports was publicly available and entered the public

marketplace.

67. As a result of the foregoing, the market for Sealed Air securities promptly digested

current information concerning Sealed Air from all publicly available sources and reflected such

information in Sealed Air's stock, price. Under these circumstances, all purchasers of Sealed Air

securities during the Class Period suffered similar injury through their purchase of Sealed Air

securities at arti Iicially inflated prices and a presumption of reliance applies.

28


NO SAFE HARBOR

68. The statutory safe harbor provided for forward-looking statements under certain

circumstances does not apply to any of the allegedly false statements pleaded in this complaint.

Many of the specific statements pleaded herein were not identified as "forward-looking

statements" when made. To the extent there were any forward-looking statements, there were no

meaningful cautionary statements identi'ing important factors that could cause actual results to

differ materially from those in the purportedly forward-looking statements, Alternatively, to the

extent that the statutory safe harbor does apply to any forward-looking statements pleaded herein,

defendants are liable for those false forward-looking statements because at the time each of those

forward-looking statements was made, the particular speaker knew that the particular forward-

looking statement was false, and/or the forward-looking statement was authorized and/or

approved by an executive officer of Sealed Air who knew that those statements were false when

made.

COUNT!

Violations of Section 10(b) of the Exchange Act And Rule iOb-5 Promulgated Thereunder Against All Defendaut

57. Plaintiff repeats and realleges each and every allegation contained above as if

fully set forth herein.

58. During the Class Period, defendants disseminated or approved the false

statements specified above, which they knew or recklessly disregarded were materially false and

misleading in that they contained material misrepresentations and failed to disclose material facts

29


necessary in order to make the statements made, in light of the circumstances under which they

were made, not misleading.

59. Defendants violated §10(b) of the 1934 Act and Rule 1Ob-5 in that they:

(a) Employed devices, schemes and artifices to defraud;

(b) Made untrue statements of material facts or omitted to state material facts

necessary in order to make statements made, in light of the circumstances under which they were

made, not misleading; or

(c) Engaged in acts, practices and a course of business that operated as a fraud or

deceit upon plaintiff and others similarly situated in connection with their purchases of Sealed Air

publicly traded securities during the Class Period.

60. Plaintiff and the Class have suffered damages in that, in reliance on the integrity of

the market, they paid artificially inflated prices for Sealed Air publicly traded securities. Plaintiff

and the Class would not have purchased Sealed Air publicly traded securities at the prices they

paid, or at all, if they had been aware that the market prices had been artificially and falsely

inflated by defendants' misleading statements.

61. As a direct and proximate result of these defendants' wrongful conduct, plaintiff

and the other members of the Class suffered damages in connection with their purchases of Sealed

Air publicly traded securities during the Class Period.

UJI


COUNTfl

Violations of Section 20(a) of The Exchange Act Against All Defendants

62, Plaintiff repeats and realleges each and every allegation contained above as if fully

set forth herein.

63. The executive officers of Sealed Air prepared, or were responsible for preparing,

the Company's press releases and SEC filings. The Individual Defendants controlled other

employees of Sealed Air. Scaled Air controlled the Individual Defendants and each of its officers,

executives and all of its employees. By reason of such conduct, defendants are liable pursuant to

§20(a) of the 1934 Act.

JURY DEMAND

Plaintiff hereby demands a trial by jury.

PRAYER FOR RELI EF

WHEREFORE, Plaintiff demands judgment:

Determining that the instant action is a proper class action maintainable

under Rule 23 of the Federal Rules of Civil Procedure;

2 Awarding compensatory damages and/or rescission as appropriate against

Defendants, in favor o1PaintitT and all members of the Class for damages sustained as a result of

Defendants wrongdoing;

3 Awarding Plaintiff and members of the Class the costs and disbursements

of this suit, including reasonable attorneys', accountants' and experts' fees; and

31


-

S.

4 Awarding Such other and further relief as the Court may deem just and

proper.

Dated: September 12, 2003 SQUIT]ERI & FEARON, LLP

By: _ O1impiqe Squitieri

One Gateway Center Suite 2500 Newark, New Jersey 07102 Telephone: (201) 445-8595

Lionel Z. Glancy Michael Goldberg GLANCY & BINKOW LLP 1801 Avenue of the Stars, Suite 311 Los Angeles, California 90067 Telephone: (310) 201-9150

Attorneys for Plaintiff

32

O Case 2:03-cv-04372-DMC-MF Document 1 Filed 09/15/03 of 33 PageID: 33

GLANCY & BINKOW LLP SWORN CERTIFICATION OF PLAINTIFF MILES SENN

SEALED AIR CORPORATION SECURITIES LITIGATION

I. Miles Senn, certify that:

I have reviewed the Complaint and authorized its filing.

2. I did not purchase SEALED AIR CORP., the security that is the subject of this action, at the direction of plaintiffs counsel or in order to participate in any private action

arising under this title.

3 I am wiIing to serve as a representative party on behalf of a class and will testify at deposition and trial, if necessary.

4. My transactions in SEALED AIR CORP. during the Class Period set forth in

the Complaint are as follows:

I bought 135 shares on 12108/2000 at $ 33.75 per share

5. I have not served as a representative party on behalf of a class under this title

during the last three years.

I will not accept any payment for serving as a representative party. except to receive my pro rata share of any recovery or as ordered or approved by the court including

the award to a representative plaintiff of reasonable costs and expenses (including lost wages) directly relating to the representation of the class.

I declare under penalty of perjury that the foregoing are true and correct statements.

Dated: ~

d iav C90 O?. ? I 'J.. :7 : J EU 11 '6 (H1

miles senn, individually and on...

Documents