By the Final Judgment entered on April 13, 2007, and signed by U.S. District Judge Anne C. Conway, the Settlement as set forth in the Stipulation is approved as fair, reasonable and adequate. According to the Judgment, the Complaint is hereby dismissed with prejudice and without an assessment of costs against any party, except as provided in the Stipulation. The Plan of Allocation is approved as fair and reasonable. Counsel for Lead Plaintiffs and the other members of the Class are hereby awarded 20% of the Gross Settlement Fund as and for their attorneys’ fees, which sum the Court finds to be fair and reasonable, and $6,345.00 in reimbursement of expenses.
As summarized by the lead counsel’s website, on February 21, 2006, a motion for the appointment of Lead Plaintiff and Lead Counsel was filed with the Court. This motion was referred to Magistrate Judge David Baker and on June 2, 2006, Magistrate Judge Baker issued his Report and Recommendations and Order recommending the appointment of Lead Plaintiffs and Berman DeValerio as Lead Counsel. On June 20, 2006, Judge Anne Conway adopted Magistrate Judge Baker’s Report & Recommendation. On August 8, 2006 Lead Plaintiffs filed a Notice stating the parties have reached an agreement in principle to settle the action. On October 13, 2006, the Stipulation and Agreement of Settlement (the “Stipulation”) between the parties was filed with the Court. Pursuant to the Stipulation, which is subject to Court approval, a Settlement Fund in the amount $375,000 will be established for the benefit of the class. The Court preliminarily approved the settlement on January 12, 2007 and and set the final approval hearing for April 13, 2007.
The lawsuit claims that Bio-One and a number of individual defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. § 78j(b) and 78t, and SEC Rule 10b-5, 17 C.F.R. §240.10b-5 promulgated thereunder.
Specifically, the complaint alleges that Bio-One filed false and misleading financial reports with the U.S. Securities and Exchange Commission (the “SEC”) during the Class Period. Plaintiffs claim these reports failed to disclose that Bio-One did not have the capital, expertise, or personnel to succeed with its business plan of acquiring multiple nutritional supplement companies and had defaulted on a promissory note in connection with its acquisition of Interactive Nutritional International (“INI”). Plaintiffs further claim that Bio-One’s former CEO, used the Company’s bank accounts as if they were his own and that the Company failed to disclose the fact that the former CEO’s son was acting as its de facto treasurer.
The complaint focuses on Bio-One’s March 31, 2004 acquisition of INI, for which the Company pledged to pay $30 million (Canadian), half in cash and half through a promissory note. Though the Company pledged to begin making monthly installments on the $15 million (Canadian) note July 1, 2004, it never made a single payment, the complaint said. Bio-One did not disclose its failure to make payments on the promissory note, the complaint alleges, even though the Company signed two forbearance agreements and was notified on December 13, 2004 that the note holder planned to seize INI’s assets as a result.
The complaint further alleges that the Company belatedly disclosed to the SEC that it had defaulted on the INI promissory note. Following the February announcement, shares of Bio-One began to significantly decline in price. A week later, the Company announced it had fired its CEO. The Company, which had traded on the OTC Bulletin Board under the symbol BICO, has since been delisted.