The original complaint charges Defendants with violations of the Securities Exchange Act of 1934. Specifically, the Complaint alleges that Defendants issued, or caused to be issued, false and misleading statements during the Class Period to artificially inflate the value of FindWhat.com stock. Beginning on January 5, 2004, with the completion of the first in a series of mergers and acquisitions by the Company in 2004, the Company began to accrue intangible assets in excess of their actual value. In violation of Generally Accepted Accounting Principals ("GAAP"), the Company disagreed with its outside auditor, Ernst & Young LLP, with respect to the need to recognize an impairment of its goodwill in connection with the Company's 2004 consolidated financial statements. As a result of the dispute, on May 2, 2005, Ernst & Young LLP resigned. Ernst & Young LLP also informed the Company of six material weaknesses in the Company's system of internal control over financial reporting, and these matters relate to (i) purchase accounting, (ii) goodwill impairment, (iii) revenue recognition for private label agreements and other revenue agreements, excluding those related to FindWhat.com Network revenue, (iv) personnel resources and technical accounting expertise, (v) quarterly and year-end financial statement close and review process, and (vi) segregation of duties. On May 4, 2005, the Company surprised the market with the announcement of the resignation of its CFO. As a result of these disclosures, during the class period, Defendants and other Company insiders knew, or recklessly disregarded the Company's inadequate internal control problems to facilitate the false impression of financial success to investors. While Defendants had misled the investing public and inflated the value of FindWhat.com's stock during the class period, insiders sold 680,959 shares for personal proceeds of $11,320.179. Immediately following both of these disclosures, the Company's stock plummeted, losing $2.04 per share, or 26% of its value on May 3 and an additional $2.33 per share, or an astonishing 38% on May 5, 2005.
According to the Company’s Form 10-Q for the quarterly period ended September 30, 2008, beginning on May 6, 2005, five putative securities fraud class action lawsuits were filed against us and certain of our former officers and directors in the United States District Court for the Middle District of Florida. The complaints allege that we and the individual defendants violated Section 10(b) of the Securities Exchange Act of 1934 (the “Act”) and that the individual defendants also violated Section 20(a) of the Act as “control persons” of MIVA. Plaintiffs purport to bring these claims on behalf of a class of our investors who purchased our stock between September 3, 2003 and May 4, 2005. Plaintiffs allege generally that, during the putative class period, we made certain misleading statements and omitted material information. Plaintiffs seek unspecified damages and other relief. On July 27, 2005, the Court consolidated all of the outstanding lawsuits under the case style In re MIVA, Inc. Securities Litigation, selected lead plaintiff and lead counsel for the consolidated cases, and granted Plaintiffs leave to file a consolidated amended complaint, which was filed on August 16, 2005. We and the other defendants moved to dismiss the complaint on September 8, 2005. On December 28, 2005, the Court granted Defendants’ motion to dismiss. The Court granted Plaintiffs leave to submit a further amended complaint, which was filed on January 17, 2006. On February 9, 2006, Defendants filed a renewed motion to dismiss. On March 15, 2007, the Court granted in large part Defendants’ motion to dismiss. On March 29, 2007, Defendants filed a motion for amendment to the March 15, 2007, order to include certification for interlocutory appeal or, in the alternative, for reconsideration of the motion to dismiss. On July 17, 2007, the Court (1) denied the motion for amendment to the March 15, 2007, order to include certification for interlocutory appeal and (2) granted the motion for reconsideration as to the issue of whether Plaintiffs pled a strong inference of scienter in light of intervening precedent. The Court requested additional briefing on the scienter issue, and on February 15, 2008, entered an Order dismissing one of the individual defendants from the lawsuit and limiting the claims that could be brought against another individual defendant. In addition, Plaintiffs previously had moved the Court to certify a putative class of investors, and Defendants had filed briefs in opposition thereto. On March 12, 2008, the Court entered an Order certifying a class of those investors who purchased the Company’s common stock from February 23, 2005, to May 4, 2005. The Court also dismissed two of the proposed class representatives for lack of standing. Plaintiffs have served discovery requests on Defendants, and the discovery phase of the lawsuit is presently underway.
On March 2, 2009, the defendants filed a motion for summary judgment. On August 25, 2009, Magistrate Judge Douglas N. Frazier signed the Report and Recommendation that the Motion for Summary Judgment be granted. On November 16, 2009, Judge John E. Steele adopted the Report and Recommendation. According to the Opinion and Order, Defendants’ Dispositive Motion for Summary Judgment is granted. As loss and causation cannot be shown, the case is dismissed with prejudice. The Clerk shall enter judgment in favor of the remaining defendants, terminate all pending deadlines and motions as moot, and close the file.
On December 15, 2009, the plaintiffs filed a notice of appeal. The appeal is currently pending in the Eleventh Circuit Court of Appeals.