According to the docket, on March 2, 2007 the judge entered an order that despite an apparent tentative agreement to settle, court proceedings will continue for sixty days in the interest of court resources economy. The tentative settlement agreement was said to have been reached during mediation.
On July 25, 2006, the Court entered the Order signed by U.S. District Judge David O. Carter, granting the defendans’ motion to dismiss the Third Amended Complaint for failure to state a claim. The plaintiffs were given leave to file an amended complaint. On August 23, 2006, the plaintiffs filed a Fourth Amended Consolidated Complaint against the defendants. On September 6, 2006, the Court entered the Order appointing Sandy Greene and Adam R. Klein as lead plaintiffs in substitution for Alan Harvey, Jerry Paul and Elizabeth Paul.
According to the Company’s FORM 10-Q for the quarterly period ended March 31, 2006, in January 2006, the Company’s motion to dismiss the second amended consolidated class action complaint was granted and the action was dismissed, with leave to further amend, by the order of the Honorable David O. Carter, United States District Judge for the Central District of California. On March 10, 2006 the plaintiffs filed a third amended complaint. The third amended complaint makes the same allegations regarding violations of the federal securities laws but is limited to an alleged class of investors who purchased or otherwise acquired the Company’s common stock pursuant to or traceable to the public offering of the Company’s stock that closed in March 2004.
The original complaint charges Biolase and certain of its officers and directors with violations of the Securities Exchange Act of 1934 and Securities Act of 1933. The complaint alleges that during the Class Period, defendants caused Biolase's shares to trade at artificially inflated levels through the issuance of false and misleading financial statements. The Company recognized revenue in advance of earning it and failed to record adequate reserves for returns, causing the Company's financial results to be inflated. This inflation was important to the Company as it was able to complete a secondary stock offering of 2.8 million shares in February 2004 at $18.80 per share.
Furthermore, on July 16, 2004, after the markets closed, Biolase reported preliminary results for the second quarter of 2004. On this news, the Company's stock declined to $8.78 on volume of 4.8 million shares. Within two weeks the Company's CFO resigned. According to the complaint, defendants knew that Biolase was not performing nearly as well as represented. The true facts, which defendants knew but concealed from the investing public during the Class Period, were as follows: (a) Waterlase was not gaining market share and demand for the product was not increasing at the rates represented by defendants; (b) Biolase had introduced a lower priced entry level laser which was cannibalizing sales such that Biolase's reported earnings were false and misleading; (c) defendants were concealing this decreasing demand by granting extended payment terms and price breaks; and (d) the Company would not achieve the earnings growth forecasted.
NOTE: Biolase is a medical technology company that designs, manufacturers and markets proprietary dental laser systems that allow dentists, oral surgeons and other specialists to perform a broad range of common dental procedures, including cosmetic applications.