The original complaint charges Jones Soda and certain of its officers and directors with violations of the Securities Exchange Act of 1934. Jones Soda is a Seattle based manufacturer and marketer of a variety of beverage products sold through the Company’s national distribution network.
The complaint alleges that as a result of Jones Soda’s release of its fourth quarter 2006 results after the close of trading on March 8, 2007, and defendants’ very bullish statements to analysts and the investment community after releasing those results, including announcing Jones Soda was expanding the sales channels of its Jones Soda product in 12-ounce cans to major retailers such as Wal-Mart, Kroger, Safeway and Kmart, Jones Soda stock traded up from its closing price of under $14 per share on March 8, 2007 to close above $17 per share on March 9, 2007. Specifically, defendants stated that through Jones Soda’s expanded sales network and advertising activities then underway, Jones Soda was on track to obtain 25% of the $66 billion canned soda market during the first half of 2007. Defendants’ continued bullish statements in subsequent weeks drove the stock price above $32 per share by April 16, 2007.
On August 2, 2007, however, the Company reported significantly lower-than-expected canned soda sales and difficulty getting the new canned soda product onto retailers’ shelves. According to the complaint, despite earlier promises to have the new canned product onto retailer shelves in advance of the Memorial Day holiday and to use a huge national advertising blitz to increase brand recognition that weekend to increase sales and market share, defendants would admit they lacked the requisite sales and distribution resources to execute the launch, failed to obtain shelf-space at the national chains and essentially bumbled the launch of Jones Soda 12-ounce cans, forcing them to cancel the advertising campaign. As a result, the Company’s first half 2007 financial performance significantly underperformed the investment community’s expectations. Jones Soda’s stock price plunged 23% to $11.70 per share, down more than 65% from its Class Period high.
According to the Company’s Form 10-Q For the Quarterly Period Ended September 30, 2009, on September 4, 2007, a putative class action complaint was filed against us, our then serving chief executive officer, and our then serving chief financial officer in the U.S. District Court for the Western District of Washington, alleging claims under Section 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder. The case was entitled Saltzman v. Jones Soda Company, et al., Case No. 07-cv-1366-RSL, and purported to be brought on behalf of a class of purchasers of our common stock during the period March 9, 2007 to August 2, 2007. Six substantially similar complaints subsequently were filed in the same court, some of which alleged claims on behalf of a class of purchasers of our common stock during the period November 1, 2006 to August 2, 2007. Some of the subsequently filed complaints added as defendants certain current and former directors and another former officer of the Company. The complaints generally alleged violations of federal securities laws based on, among other things, false and misleading statements and omissions about our financial results and business prospects. The complaints sought unspecified damages, interest, attorneys’ fees, costs, and expenses. On October 26, 2007, these seven lawsuits were consolidated as a single action entitled In re Jones Soda Company Securities Litigation, Case No. 07-cv-1366-RSL. On March 5, 2008, the Court appointed Robert Burrell lead plaintiff in the consolidated securities case. On May 5, 2008, the lead plaintiff filed a First Amended Consolidated Complaint, which purports to allege claims on behalf of a class of purchasers of our common stock during the period of January 10, 2007, to May 1, 2008, against the Company and Peter van Stolk, our former Chief Executive Officer, former Chairman of the Board, and former director. The First Amended Consolidated Complaint generally alleges violations of federal securities laws based on, among other things, false and misleading statements and omissions about our agreements with retailers, allocation of resources, and business prospects. Defendants filed a motion to dismiss the amended complaint on July 7, 2008. After hearing oral argument on February 3, 2009, the Court granted the motion to dismiss in its entirety on February 9, 2009. Plaintiffs filed a motion for leave to file an amended complaint on March 25, 2009. On June 22, 2009, the Court issued an order denying plaintiffs’ motion for leave to amend and dismissed the case with prejudice. On July 7, 2009, the Court entered judgment in favor of the Company and Mr. van Stolk. On August 5, 2009, plaintiffs filed a notice of appeal of the Court’s orders dismissing the complaint and denying plaintiffs’ motion for leave to amend, and the resulting July 7, 2009 judgment. Briefing for the appeal is currently scheduled to be completed in early 2010.
On October 20, 2010, the United States Court Of Appeals for the Ninth Circuit. The full Court was advised of the petition for rehearing en banc, and no judge of the Court requested a vote on it. Thus, the petition for rehearing en banc was Denied.