XML 68 R24.htm IDEA: XBRL DOCUMENT v2.4.0.8
Commitments and Contingencies
6 Months Ended
Jun. 27, 2014
Commitments and Contingencies Disclosure [Abstract]  
Commitments and Contingencies
Commitments and Contingencies
The Company is subject to a variety of federal, state, local and foreign laws and regulations covering the storage, handling, emission and discharge of materials into the environment, including CERCLA, the Clean Water Act, the Clean Air Act (including the 1990 amendments) and the Resource Conservation and Recovery Act.
The Company's subsidiaries in the United States have been identified as potentially responsible parties with respect to several sites designated for cleanup under CERCLA or similar state laws, which impose liability for cleanup of certain waste sites and for related natural resource damages without regard to fault or the legality of waste generation or disposal. Persons liable for such costs and damages generally include the site owner or operator and persons that disposed or arranged for the disposal of hazardous substances found at those sites. Although CERCLA imposes joint and several liability on all potentially responsible parties, in application, the potentially responsible parties typically allocate the investigation and cleanup costs based upon, among other things, the volume of waste contributed by each potentially responsible party.
Settlements can often be achieved through negotiations with the appropriate environmental agency or the other potentially responsible parties. Potentially responsible parties that contributed small amounts of waste (typically less than 1% of the waste) are often given the opportunity to settle as “de minimus” parties, resolving their liability for a particular site. The Company does not own or operate any of the waste sites with respect to which it has been named as a potentially responsible party by the government. Based on the Company's review and other factors, it believes that costs to the Company relating to environmental clean-up at these sites will not have a material adverse effect on its results of operations, cash flows or financial position.
At June 27, 2014 and December 31, 2013, the Company had an accrued liability of approximately $3.2 million and $3.1 million, respectively, for various environmental-related liabilities to the extent costs are known or can be reasonably estimated as its liability. While it is difficult to estimate future environmental-related liabilities accurately, the Company does not currently anticipate any material adverse impact on its results of operations, financial position or cash flows as a result of compliance with federal, state, local or foreign environmental laws or regulations or cleanup costs of the sites discussed above.
In addition, Company subsidiaries have been named as defendants in lawsuits alleging exposure to asbestos in products manufactured by the Company. As of June 27, 2014, the Company is a defendant in approximately 29,037 cases brought in Federal District Courts throughout the United States. In the six months ended June 27, 2014, 55 asbestos cases were brought against the Company. In the calendar year 2013, 133 asbestos cases were brought against the Company. In the last 20 years, General Cable has had no cases proceed to verdict. In many of the cases, General Cable was dismissed as a defendant before trial for lack of product identification. As of June 27, 2014, 22,063 asbestos cases have been dismissed. In the six months ended June 27, 2014, 130 asbestos cases were dismissed. As of December 31, 2013, 21,933 cases were dismissed. With regards to the approximately 29,037 remaining pending cases, General Cable is aggressively defending these cases based upon either lack of product identification as to General Cable manufactured asbestos-containing product and/or lack of exposure to asbestos dust from the use of General Cable product.
For cases outside the Multidistrict Litigation (“MDL”) as of June 27, 2014, Plaintiffs have asserted monetary damages in 370 cases. In 227 of these cases, plaintiffs allege only damages in excess of some dollar amount (about $343 thousand per plaintiff); in these cases there are no claims for specific dollar amounts requested as to any defendant. In the 142 other cases pending in state and federal district courts (outside the MDL), plaintiffs seek approximately $448.0 million in damages from as many as 50 defendants. In one case, plaintiffs have asserted damages related to General Cable in the amount of $10.0 million. In addition, in relation to these 370 cases, there are claims of $331.0 million in punitive damages from all of the defendants. However, many of the plaintiffs in these cases allege non-malignant injuries. As of June 27, 2014 and December 31, 2013, the Company had accrued, on a gross basis, approximately $4.8 million and $5.2 million, respectively, and as of June 27, 2014 and December 31, 2013, had recovered approximately $0.5 million and $0.5 million of insurance recoveries for these lawsuits, respectively. The net amount of $4.3 million and $4.7 million, as of June 27, 2014 and December 31, 2013 represents the Company's best estimate in order to cover resolution of current and future asbestos-related claims.
Settlement payments are made, and the asbestos accrual is relieved, when the Company receives a fully executed settlement release from the Plaintiff's counsel. As of June 27, 2014 and June 28, 2013, aggregate settlement costs were $9.3 million and $8.7 million, respectively. For the three months ended June 27, 2014 and June 28, 2013, settlement costs totaled $0.3 million and $0.1 million, respectively. For the six months ended June 27, 2014 and June 28, 2013, settlement costs totaled $0.4 million and $0.2 million, respectively. As of June 27, 2014 and June 28, 2013, aggregate litigation costs were $23.8 million and $22.0 million, respectively. For the three months ended June 27, 2014 and June 28, 2013, litigation costs were $0.5 million and $0.3 million, respectively. For the six months ended June 27, 2014 and June 28, 2013, litigation costs were $0.9 million and $0.6 million, respectively.
On July 5, 2011, the European Commission issued a Statement of Objections in relation to its ongoing competition investigation to a number of wire and cable manufacturers in the submarine and underground power cables business, including the Company's Spanish affiliate, Grupo General Cable Sistemas, and its French subsidiary, Silec. The Statement of Objections alleged that the two affiliates engaged in violations of competition law in the underground power cables businesses for limited periods of time. The allegations related to Grupo Sistemas claimed that it had participated in a cartel from January 2003 to May 2007, while the allegations related to Silec were for the ten month period following its December 22, 2005 acquisition by Grupo Sistemas.
Following formal responses by General Cable to the Statement of Objections in October 2011 and a hearing in 2012, the European Commission issued a final decision on April 2, 2014. In the decision, the claims of infringement against Grupo Sistemas were dismissed for lack of evidence of alleged cartel activity. With regard to Silec, the Commission’s decision imposed a fine of 1.9 million Euros related to the period Silec has been owned by General Cable. This fine was based on participation that allegedly commenced well before the Silec acquisition. On June 13, 2014, General Cable filed an appeal with the General Court of the European Union challenging the Commission’s decision as to Silec in Europe based on established precedent. General Cable also continues to pursue its claim for full indemnification for the Silec fine under the terms of the acquisition agreement with SAFRAN SA executed in 2005.
In March 2012, the Company received formal notice of a claim for damages arising from a transformer fire that occurred in December 2010 allegedly resulting in loss of equipment and some consequential damages at a metal processing facility in Iceland. The Company supplied and installed cables and terminations to the transformer, which was manufactured and installed by an independent third party, during 2006 and the first quarter of 2007. The Company's work was inspected and accepted by the customer in March 2007. In August 2012, the customer initiated arbitration proceedings before the ICC Tribunal with a request to arbitrate in Pennsylvania. In September 2012, the Company initiated litigation in Pennsylvania state court seeking a declaration that it is not liable for any damages associated with the alleged loss resulting from the transformer fire and seeking to enjoin the ICC arbitration proceedings. The customer then moved the case from state to federal district court in the Western District of Pennsylvania which determined on motion that the ICC Tribunal not the court should decide whether the claims were arbitrable in the first instance. A decision on arbitrability is pending before the ICC Tribunal. The Company believes it has substantial defenses to potential liability in regard to the transformer fire and claimed loss. At this time, the Company is unable to predict an estimated range of damages or whether it will have any liability, if any, attributable to the transformer fire.
One of the Company's Brazilian subsidiaries is involved in an administrative proceeding with a state treasury office regarding whether tax incentives granted to the Company by one Brazilian state are applicable to goods sold in another Brazilian state from September 2008 to December 31, 2009. The Company believes it correctly relied on the tax incentives granted and that it has substantial defenses to their disallowance by the Brazilian state claimant. The principal amount claimed to be due during the contested period is approximately $8 million which does not include penalties and interest which could be substantial. In September 2012, the 1st Chamber of the Administrative Court found that the Company was not liable for any incentive tax payments claimed by the state treasury office. This decision was appealed by the Brazilian state and the Administrative Court determined in April 2013 that the subsidiary is liable for a part of the contested amount. The Company's subsidiary is seeking formal judicial review of this latest decision on the merits in the Civil Court and obtained an injunction in April 2013 restraining collection of the tax pending the review process in the Civil Court in further proceedings. The Brazilian state subsequently sought to overturn this injunction and the State Court rejected the application in May 2013. Thereafter, in October 2013, a judge in the State Court set aside the injunction and the Company's subsidiary also took an appeal to the State Court of Appeal, which is awaiting a decision. In the meantime, the decision setting aside the injunction and the Brazilian state's ability to enforce its purported tax claims are stayed pending the appeal process.
The Company's Brazilian subsidiaries have received formal notices of infractions from the Brazilian state authorities related to alleged failures of tax matters associated with the distribution of goods and services from one state to another and alleged failure to file electronic records with the state authorities in regard to inventories, good receipts, and invoices from acquisitions.  The total amount of taxes allegedly due for the infractions including potential interest and penalties is up to $35 million.  The Company has recorded approximately $2.3 million associated with those claims that the Company believes are probable to result in a negative outcome.  At this time, the Company believes it has defenses to all remaining claims or is unable to predict an estimated range of damages and whether or not a liability will exist for these remaining claims.
Two civil complaints were filed in the United States District Court for the Southern District of New York on October 21, 2013 and December 4, 2013 by named plaintiffs, on behalf of purported classes of persons who purchased or otherwise acquired the Company’s publicly traded securities, against the Company, Gregory Kenny, the President and Chief Executive Officer, and Brian Robinson, the Executive Vice President and Chief Financial Officer. On the Company’s motion, the complaints were transferred to the United States District Court for the Eastern District of Kentucky, the actions were consolidated, and a consolidated complaint was filed in that Court on May 20, 2014 by City of Livonia Employees Retirement System, as lead plaintiff on behalf of a purported class of all persons or entities who purchased our securities between November 3, 2010 and October 14, 2013 (“the City of Livonia Compliant”). The City of Livonia Complaint alleges claims under the antifraud and controlling person liability provisions of the Securities Exchange Act of 1934, alleging generally, among other assertions, that the Company employed inadequate internal financial reporting controls that resulted in, among other things, improper revenue recognition, understated cost of sales, overstated operating income, net income and earnings per share, and the failure to detect inventory lost through theft; that the Company issued materially false financial results that had to be restated on two occasions; and that statements of Messrs. Kenny and Robinson that they had tested and found effective the Company’s internal controls over financial reporting and disclosure were false. The City of Livonia Complaint alleges that as a result of the foregoing, the Company’s stock price was artificially inflated and the plaintiffs suffered damages in connection with their purchase of the Company’s stock. The City of Livonia Complaint seeks damages in an unspecified amount; reasonable costs and expenses, including counsel and experts fees; and such equitable injunctive or other relief as the Court deems just and proper. In addition, a derivative complaint was filed on January 7, 2014 in the Campbell County, Kentucky Circuit Court against all but one member of the Company’s Board of Directors, including Mr. Kenny, two former directors and against Mr. Robinson and two former ROW officials, one of whom is a former executive officer. The derivative complaint alleges that the defendants breached their fiduciary duties by knowingly failing to ensure that the Company implemented and maintained adequate internal controls over the Company’s accounting and financial reporting functions and by knowingly disseminating to stockholders materially false and misleading statements concerning the Company’s financial results and internal controls. The derivative complaint seeks damages in an unspecified amount, appropriate equitable relief to remedy the alleged breaches of fiduciary duty, attorney’s fees, experts’ fees and other costs. On March 5, 2014, the derivative case was placed on inactive status until a motion is filed by a party to reinstate the action to the Court’s active docket.  On July 18, 2014, defendants filed a motion to dismiss the City of Livonia Complaint based on plaintiff’s failure to state a claim upon which relief could be granted. The Company believes the City of Livonia Complaint and the derivative complaint, insofar as it relates to the Company’s directors and Mr. Robinson, are without merit and intend to vigorously contest the actions.
As previously reported, on October 29, 2012, the Company announced that it had identified historical accounting errors in its Brazilian subsidiary primarily relating to inventory. The Company believes that the Brazil inventory accounting issues are, to a significant extent, attributable to a complex theft scheme affecting work in process and finished goods inventory. The Company determined that it may have one or more policies of insurance that would respond to the losses associated with this reported theft scheme subject to a $15 million limit, and the Company is currently pursuing recovery from its insurer for this loss. 
The Company is reviewing certain commission payments involving sales to customers of our subsidiary in Angola. The Angola review has focused upon payment practices with respect to employees of public utility companies, use of agents in connection with such payment practices, and the manner in which the payments were reflected on our books and records, which may have implications under the Foreign Corrupt Practices Act. The Company voluntarily contacted the United States Securities and Exchange Commission (“SEC”) and the Department of Justice to advise them of this review, and the Company continues to cooperate with both agencies with respect to this matter. At this time, the Company is unable to make an estimate of the amount of loss, if any, or range of possible loss that the Company could incur as a result of the foregoing matter.
As previously disclosed, the Company conducted internal investigations, subject to the oversight of the Audit Committee of the Company's Board of Directors and with the assistance of external counsel, relating to matters addressed in the amended Forms 10-K and Forms 10-Q the Company filed in March 2013 and January 2014. The Company voluntarily contacted the SEC to advise it of the Company's initial internal investigations, and the Company has provided information on an ongoing basis as the Company's internal investigations proceeded. The SEC has issued a formal order of investigation. Pursuant to that formal order, the SEC has issued subpoenas to the Company seeking relevant documents and to certain current and former employees seeking their testimony. The Company continues to cooperate with the SEC in connection with its investigation.
Any determination that the Company's operations or activities are not in compliance with existing laws or regulations could result in the imposition of substantial fines, civil and criminal penalties, and equitable remedies, including disgorgement and injunctive relief. Because the government investigations and our review regarding the Angola matter are ongoing, the Company is unable to predict their duration, scope, results, or consequences. At this time, the Company is unable to make an estimate of the amount of loss, if any, or range of possible loss that the Company could incur as a result of the foregoing matters.
The Company is also involved in various routine legal proceedings and administrative actions. Such proceedings and actions should not, individually or in the aggregate, have a material adverse effect on its result of operations, cash flows or financial position.
The Company has entered into various operating lease agreements related principally to certain administrative, manufacturing and distribution facilities and transportation equipment. At June 27, 2014, future minimum rental payments required under non-cancelable lease agreements during the twelve month periods beginning June 27, 2014 through June 28, 2019 and thereafter are $41.4 million, $35.2 million, $31.4 million, $11.8 million and $7.0 million, respectively, and $12.5 million thereafter.
As of June 27, 2014, the Company had $59.3 million in letters of credit, $194.8 million in various performance bonds and $319.2 million in other guarantees. Other guarantees include bank guarantees and advance payment bonds. These letters of credit, performance bonds and guarantees are periodically renewed and are generally related to risk associated with self-insurance claims, defined benefit plan obligations, contract performance, quality and other various bank and financing guarantees. Advance payment bonds are often required by customers when the Company obtains advance payments to secure the production of cable for long term contracts. The advance payment bonds provide the customer protection on their deposit in the event that the Company does not perform under the contract. See “Liquidity and Capital Resources” within Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations for excess availability under the Company’s various credit borrowings.