-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SV2VSwzgzVOddxoO1/VEumtrFDDeSCmWE4cGYMwy8KshwQfeyWpkrDmRvtBivdyl 0Ri7gxJbuZFDhhxlOvZpxg== 0000892569-96-000403.txt : 19960417 0000892569-96-000403.hdr.sgml : 19960417 ACCESSION NUMBER: 0000892569-96-000403 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19960416 SROS: NYSE GROUP MEMBERS: FIDELITY NATIONAL FINANCIAL INC /DE/ GROUP MEMBERS: WILLIAM P. FOLEY, II SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GIANT GROUP LTD CENTRAL INDEX KEY: 0000041296 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 230622690 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-02967 FILM NUMBER: 96547569 BUSINESS ADDRESS: STREET 1: 150 EL CAMINO DR CITY: BEVERLY HILLS STATE: CA ZIP: 90212 BUSINESS PHONE: 3102735678 FORMER COMPANY: FORMER CONFORMED NAME: GIANT PORTLAND & MASONRY CEMENT CO DATE OF NAME CHANGE: 19850610 FORMER COMPANY: FORMER CONFORMED NAME: GIANT PORTLAND CEMENT CO DATE OF NAME CHANGE: 19770921 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: FIDELITY NATIONAL FINANCIAL INC /DE/ CENTRAL INDEX KEY: 0000809398 STANDARD INDUSTRIAL CLASSIFICATION: TITLE INSURANCE [6361] IRS NUMBER: 860498599 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 17911 VON KARMAN AVE STREET 2: STE CITY: IRVINE STATE: CA ZIP: 92714 BUSINESS PHONE: 7148529770 MAIL ADDRESS: STREET 1: 2100 S.E. MAIN STREET STREET 2: SUITE 400 CITY: IRVINE STATE: CA ZIP: 92714 SC 13D/A 1 AMENDMENT #14 TO SCHEDULE 13D/A-GIANT GROUP, LTD 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------- SCHEDULE 13D/A Under the Securities Exchange Act of 1934 (Amendment No. 14) Giant Group, Ltd. ----------------- (Name of Issuer) Common Stock, par value $.01 per share -------------------------------------- (Title of Class of Securities) 374503 1 10 0 -------------------------------------- (CUSIP Number) Andrew F. Puzder Executive Vice President and General Counsel Fidelity National Financial, Inc. 17911 Von Karman Avenue Irvine, California 92714 Tel. (714) 622-5000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copies to: Lawrence Lederman, Esq. Milbank, Tweed, Hadley & McCloy One Chase Manhattan Plaza New York, New York 10005 Tel. (212) 530-5000 April 12, 1996 -------------- (Date of Event Which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box / /. Check the following box if a fee is being paid with the statement / /. Page 1 of 11 Pages Exhibit Index on Page 7 2 SCHEDULE 13D CUSIP NO.: 374503 1 10 0 (1) NAME OF REPORTING PERSON: Fidelity National Financial, Inc. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: IRS No. 86-0498599 (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] (3) SEC USE ONLY (4) SOURCE OF FUNDS: WC (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] (6) CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: (7) SOLE VOTING POWER: 705,489 (8) SHARED VOTING POWER: 0 (9) SOLE DISPOSITIVE POWER: 705,489 (10) SHARED DISPOSITIVE POWER: 0 (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 705,489 (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [x] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 14.8(1) (14) TYPE OF REPORTING PERSON: CO - -------------- (1) Based upon 4,778,385 shares of Common Stock outstanding as of March 6, 1996. Page 2 of 11 Pages 3 CUSIP NO.: 374503 1 10 0 (1) NAME OF REPORTING PERSON: William P. Foley, II(2) S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: IRS No. ###-##-#### (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] (3) SEC USE ONLY (4) SOURCE OF FUNDS: PF (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] (6) CITIZENSHIP OR PLACE OF ORGANIZATION: United States of America NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: (7) SOLE VOTING POWER: 0(3) (8) SHARED VOTING POWER: 0 (9) SOLE DISPOSITIVE POWER: 0(3) (10) SHARED DISPOSITIVE POWER: 0 (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 0(3) (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [x] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 0 (14) TYPE OF REPORTING PERSON: IN - ---------------- (2) Mr. Foley owns 21.4% of the outstanding common stock of Fidelity and he is the Chairman of the Board and Chief Executive Officer of Fidelity. By virtue of such stock ownership and positions, Mr. Foley may be deemed a "controlling person" of Fidelity. (3) Mr. Foley disclaims beneficial ownership of 705,489 shares of Common Stock held by Fidelity. Mr. Foley owns 21.4% of the outstanding common stock of Fidelity, and he is Chairman of the Board and Chief Executive Officer of Fidelity. By virtue of such stock ownership and positions, Mr. Foley may be deemed a "controlling person" of Fidelity. Page 3 of 11 Pages 4 This Amendment No. 14 amends the statement on Schedule 13D filed with the Securities and Exchange Commission on December 8, 1995, as heretofore amended (the "Schedule 13D"), with respect to the common stock, par value $0.01 per share, of Giant Group, Ltd. (the "Common Stock"), a corporation having its principal executive offices located at 150 El Camino Drive, Suite 303, Beverly Hills, California 90212 (the "Company"). All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Schedule 13D. Other than as set forth herein, there has been no material change in the information set forth in the Schedule 13D. ITEM 4. PURPOSE OF TRANSACTION. Item 4 of the Schedule 13D is hereby amended to add the following: (P) On April 12, 1996, the United States District Court for the Central District of California denied the Company's motion to dismiss all of Fidelity's four pending counterclaims, except with respect to Fidelity's second counterclaim (the "Motion to Dismiss Civil Minutes"). A copy of the Motion to Dismiss Civil Minutes is attached hereto as Exhibit 99.16, and is incorporated herein by reference. Fidelity admitted that its second counterclaim regarding the invalidity of the Exchange Offer was moot in light of the Company having materially changed the terms of the proposed exchange offer after Fidelity had filed its Second Amended Counterclaim. Accordingly, the court dismissed the second counterclaim. In addition, the court ordered each side to show cause as to why the court should not decline to exercise supplemental jurisdiction over all of the state law causes of action and counterclaims and dismiss them without prejudice (the "Order to Show Cause Civil Minutes"). A copy of the Order to Show Cause Civil Minutes is attached hereto as Exhibit 99.17, and is incorporated herein by reference. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Item 7 of the Schedule 13D is hereby amended to add the following: 99.16 The Motion to Dismiss Civil Minutes dated April 12, 1996. 99.17 The Order to Show Cause Civil Minutes dated April 12, 1996. Page 4 of 11 Pages 5 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. April 16, 1996 FIDELITY NATIONAL FINANCIAL, INC. By: /s/ WILLIAM P. FOLEY, II -------------------------------- Name: William P. Foley, II Title: Chairman of the Board and Chief Executive Officer Page 5 of 11 Pages 6 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. April 16, 1996 /s/ WILLIAM P. FOLEY, II ---------------------------- William P. Foley, II Page 6 of 11 Pages 7 EXHIBIT INDEX 99.16 The Motion to Dismiss Civil Minutes dated April 12, 1996 Page 8 99.17 The Order to Show Cause Civil Minutes dated April 12, 1996 Page 11
Page 7 of 11 Pages EX-99.16 2 MOTION TO DISMISS CIVIL MINUTES 1 EXHIBIT 99.16 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL ----------------------- CASE NO. SA CV 95 - 1095 - LHM (EEx) DATE 4/12/96 --------------------------- ------- TITLE Giant Group v. Foley, et al. --------------------------------------------------------------------- ================================================================================ DOCKET ENTRY ================================================================================ PRESENT: HON. Linda H. McLaughlin, JUDGE ------------------- Debra Beard None Present --------------------- -------------------- Deputy Clerk Court Reporter ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS: None Present None Present PROCEEDINGS: MOTION TO DISMISS IN CHAMBERS: The Court had read and considered the Second Amended Counterclaims, counterclaim defendants' motion to dismiss, counterclaim plaintiffs' opposition, and counterclaim defendants' reply. Pursuant to F.R.Civ.P. 78 and Local Rule 7.11, based on the papers submitted by the parties and applicable law, the Court now rules as follows: RULING: For the reasons discussed below, counterclaim defendants' motion to dismiss is DENIED as to counterclaims one, three and four; counterclaim two re: invalidity of the exchange offer is DISMISSED. (1) MOTION TO DISMISS. In considering a motion to dismiss, all factual allegations in the complaint must MINUTES FORM 11 INITIALS OF DEPUTY CLERK ____ CIVIL-GEN D - M Page 8 of 11 Pages 2 CASE NO. SA CV 95 - 1095 - LHM (EEx) DATE 4/12/96 --------------------------- ------- TITLE Giant Group v. Foley, et al. --------------------------------------------------------------------- PROCEEDINGS CONTINUED: be accepted as true and all inferences therefrom must be drawn in the light most favorable to the plaintiff; dismissal is unwarranted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle [the plaintiff] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Miller v. Glen & Helen Aircraft, Inc., 777 F.2d 496, 498 (9th Cir. 1985). (2) COUNTERCLAIM ONE. A shareholder may maintain an individual action against a corporation only if he has sustained a "special injury," which has been defined as "a wrong inflicted upon him alone or a wrong affecting any particular right which he is asserting,-- such as his pre-emptive rights as a stockholder, rights involving the control of the corporation, or a wrong affecting the stockholders and not the corporation." Lipton v. News International, 514 A.2d 1075, 1078 (Del. 1986) (quoting Elster v. American Airlines, 100 A.2d 219, 222 (Del.Ch. 1953)). Ultimately, the Court must look to "whether the plaintiff has alleged a 'special' injury, in whatever form." Id. Enhanced judicial scrutiny applies "whenever the record reflects that a board of directors took defensive measures in response to a 'perceived threat to corporate policy and effectiveness which touches upon issues of control.'" In re Santa Fe Pacific Corporation Shareholder Litigation, 669 A.2d 59, 71 (Del. 1995) (quoting Unitrin, Inc. v. American General Corp., 651 A.2d 1361, 1372 n.9 (Del. 1995)). Based on the pleadings, Fidelity has alleged a special injury. A consideration of Giant's arguments to the contrary would require the Court to look beyond the pleadings. Fidelity also has alleged that the counterclaim defendants took defensive measures in response to a perceived threat to corporate policy and effectiveness that touched upon issues of control. Accordingly, Fidelity's allegations are sufficient to withstand Giant's motion to dismiss on the grounds of the business judgment rule. In sum, the counterclaim defendants' motion to dismiss is denied as to the first counterclaim. Page 9 of 11 Pages 3 CASE NO. SA CV 95 - 1095 - LHM (EEx) DATE 4/12/96 --------------------------- ------- TITLE Giant Group v. Foley, et al. --------------------------------------------------------------------- PROCEEDINGS CONTINUED: (3) COUNTERCLAIM TWO. Counterclaim plaintiffs admit that their second claim re: invalidity of the exchange offer is moot. Accordingly, counterclaim plaintiffs' second counterclaim is dismissed. (4) CLAIMS THREE AND FOUR. Under California Civil Code section 47, a publication or broadcast made "[i]n any judicial proceeding" is privileged and, therefore, is shielded from defamation liability. Shahvar v. Superior Court, 25 Cal. App. 4th 653, 657, 30 Cal.Rptr.2d 597 (1994). The "judicial proceeding" privilege applies to "any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have [sic] some connection or logical relation to the action." Id. (quoting Silberg v. Anderson, 50 Cal. 3d 205, 212, 786 P.2d 365, 266 Cal.Rptr. 638 (1990)). However, "statements about existing or anticipated litigation by a party or the party's attorney to the news media, when the news media is neither a party to nor a participant in the litigation, are not privileged." Id., at 659. Here, the press release that is the subject of counterclaims 3 and 4 was a statement about existing litigation by a party to the news media where the news media was neither a party nor a participant in the litigation. Therefore, the statements made to the press are not privileged. Accordingly, counterclaim defendants' motion to dismiss is denied with respect to counterclaims three and four. Page 10 of 11 Pages EX-99.17 3 ORDER TO SHOW CAUSE CIVIL MINUTES 1 EXHIBIT 99.17 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL ----------------------- CASE NO. SA CV 95 - 1095 - LHM DATE 4/12/96 --------------------- ------- TITLE Giant Group v. Foley, et al. --------------------------------------------------------------------- ================================================================================ DOCKET ENTRY ================================================================================ PRESENT: HON. Linda H. McLaughlin, JUDGE ------------------- Debra Beard None Present ---------------------- ---------------------- Deputy Clerk Court Reporter ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS: None Present None Present ORDER TO SHOW CAUSE PROCEEDINGS: (1) By separate order, the Court has ruled on counter- defendants motion to dismiss the second amended counterclaim. Therefore, the operative pleadings are settled. (2) The only federal claim in the entire action is Plaintiff's first cause of action which arises under Section 13(d) of the Securities Exchange Act of 1934 [15 U.S.C. 78m(d)]. Plaintiff's four (4) remaining causes of action, and all of Defendants' counterclaims arise under state law. Further, Section 13(d) is basically reporting statute. Although the weight of authority recognizes that a private party has standing to assert a claim pursuant to Section 13(d), the available remedy appears limited to injunctive relief. (3) ORDER TO SHOW CAUSE AND SIMULTANEOUS BRIEFING: Each side is ordered to show cause in writing by 4/19/96 why the Court should not decline to exercise supplemental jurisdiction over the all the supplemental state law causes of action and counterclaims and dismiss them without prejudice. Each side is to file a Reply by 4/25/96. THE DATES ORDERED BY THE COURT COURTESY COPIES OF ALL HAVE BEEN SET ON THE COURT'S DOCUMENTS MUST BE DELIVERED OR CALENDAR AND ARE FIRM DATES SENT BY FACSIMILE TO CHAMBERS OF JUDGE MCLAUGHLIN BY 12:00 NOON ON THE DATE DUE. MINUTES FORM 11 INITIALS OF DEPUTY CLERK ____ CIVIL-GEN D - M Page 11 of 11 Pages -----END PRIVACY-ENHANCED MESSAGE-----