According to the latest docket posted, on November 2, 1998, the plaintiffs filed an unopposed motion to voluntarily dismiss the action without prejudice pursuant to Rule 41(a)(2). On November 6, 1998, the Court entered the Order granting the motion for voluntary dismissal without prejudice, and the case was closed.
On January 28, 1997, Performance Nutrition, Inc. filed a notice of bankruptcy. On February 13, 1997, the Court entered the Order granting the motion to consolidate two similar class actions filed in federal court. That same day, the Court entered the Order administratively closing the case because of the Performance Nutrition’s bankruptcy. On July 22, 1997, the Court entered the Order denying the motion to reopen the case against the individual defendants, but later entered another Order on April 3, 1998, granting the motion to reopen the case against the individual defendants but to sever Performance Nutrition, Inc. from the action. On April 17, 1998, the plaintiffs filed a Consolidated Amended Class Action Complaint.
The complaint alleges that the company; its former president, chairman and chief
Executive; and its former secretary and treasurer, misrepresented and/or omitted company information. Specifically, the suit relates to information released during the class period concerning the company's business, outlook, suspension and embezzlement conviction of the Company’s former president, and the absence of clinical support that the company's KidsPLEX product could be used in treating Attention Deficit Disorder. The suit also alleges that the company employed improper accounting practices and that its earnings for the nine months ended June 30 and the prior fiscal year ended Sept. 30, 1995, were misstated. Performance Nutrition said it believes the revenues for fiscal year 1995 and for the nine-month period ended June 30 were "substantially overstated." The company said it discovered the overstatements after a preliminary review of accounting records. On Sept. 4, Performance Nutrition Inc. (PNII) removed its chairman, chief executive and president after an article indicated he had been convicted in 1982 of embezzling $16.7 million from an Iowa bank and was a defendant in a suit brought in Oklahoma City by the Securities and Exchange Commission alleging violations of federal securities laws.