In Re Jones Soda Company Securities Litigation 07-CV-01366
Total Page:16
File Type:pdf, Size:1020Kb
1 THE HONORABLE ROBERT S. LASNIK 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 In re JONES SODA COMPANY Master File No. 07-CV- 1366-RSL 9 SECURITIES LITIGATION 10 CLASS ACTION 11 MOTION FOR APPOINTMENT OF THE This Document Relates To: All Actions JUDAH PLAINTIFFS AS LEAD 12 PLAINTIFFS AND FOR APPOINTMENT OF CO-LEAD COUNSEL; 13 MEMORANDUM OF POINTS AND 14 AUTHORITIES IN SUPPORT THEREOF 15 NOTE ON MOTION CALENDAR: November 23, 2007 16 ORAL ARGUMENT REQUESTED 17 18 19 Assefa K. Judah and Nicholas Monastero (the "Judah Plaintiffs ) hereby move this Court, 20 pursuant to Section 21D(a)(3)(B) of the Securities Exchange Act of 1934 (the "Exchange Act ), 21 as amended by the Private Securities Litigation Reform Act of 1995 ("PSLRA ), 15 U.S.C. § 22 78u-4(a)(3)(B), for an Order (i) appointing the Judah Plaintiffs as Lead Plaintiffs; and (ii) 23 approving the Judah Plaintiffs' selection of Keller Rohrback L.L.P. and Wolf Haldenstein Adler 24 Freeman & Herz LLP as Co-Lead Counsel. This Motion is based on the accompanying 25 Memorandum in support thereof, and the Declaration of Juli E. Farris filed herewith. 26 LAW OFFICES OF MOTION FOR APPOINTMENT OF THE JUDAH PLAINTIFFS AS KELLER ROHRBACK L.L.P. LEAD PLAINTIFFS AND FOR APPOINTMENT OF CO-LEAD 1201 THIRD AVENUE, SUITE 3200 COUNSEL, Page 1 SEATTLE, WASHINGTON 98101-3052 TELEPHONE: ( 206) 623-1900 (CASE NO. 07-CV-1366-RSL) FACSIMILE: ( 206) 623-3384 1 INTRODUCTION 2 The Judah Plaintiffs - Assefa K. Judah and Nicholas Monastero - respectfully submit this 3 memorandum of law in support of their motion, pursuant to Section 21D(a)(3)(B) of the 4 Exchange Act, as amended by the PSLRA, 15 U.S.C. § 78u-4(a)(3)(B), for an Order: (i) 5 appointing the Judah Plaintiffs as Lead Plaintiffs in this action on behalf of the Class of investors 6 that purchased the common stock of Jones Soda Company ("Jones Soda or the "Company ) 7 between November 1, 2006 and August 2, 2007, inclusive (the "Class Period ) and (ii) 8 approving the Judah Plaintiffs' selection of Keller Rohrback L.L.P. and Wolf Haldenstein Adler 9 Freeman & Herz LLP as Co-Lead Counsel. 10 The Judah Plaintiffs' motion should be granted. As is shown below, this motion is timely 11 as it is filed within 60 days of the first published notice of this class action litigation against 12 Defendants. Furthermore, movants believe that they are the "most adequate plaintiff within the 13 meaning of 15 U.S.C. § 78u-4(a)(3)(B) because they - individually with respect to Mr. Judah 14 and together - have the largest financial interest of any Lead Plaintiff movant in the relief sought 15 by the proposed Class, and otherwise meet the requirements of Fed. R. Civ. P. 23(a). Finally, the 16 Judah Plaintiffs' selection of Keller Rohrback L.L.P. and Wolf Haldenstein Adler Freeman & 17 Herz LLP as Co-Lead Counsel should be approved, as each of the firms has substantial 18 experience prosecuting securities class action litigation. 19 SUMMARY OF THE ALLEGATIONS AGAINST THE DEFENDANTS 20 On September 3, 2007, Plaintiff Tillie Saltzman filed a complaint in this District on 21 behalf of all persons who purchased the common stock of Jones Soda between March 9, 2007 22 and August 2, 2007. A total of seven cases have been filed in this Court on behalf of the Class 23 against the Defendants, the majority of which allege a Class Period of November 1, 2006 to 24 August 2, 2007, which the Judah Plaintiffs believe is appropriate based upon review of publicly 25 available information. The individual cases have been consolidated pursuant to the Stipulation 26 and Order Regarding Consolidation and Scheduling entered October 29, 2007. LAW OFFICES OF MOTION FOR APPOINTMENT OF THE JUDAH PLAINTIFFS AS KELLER ROHRBACK L .L.P. LEAD PLAINTIFFS AND FOR APPOINTMENT OF CO-LEAD 1201 THIRD AVENUE, SUITE 3200 SEATTLE, WASHINGTON 98101-3052 COUNSEL Page 2 , TELEPHONE : ( 206) 623-1900 (CASE NO. 07-CV-1366-ML) FACSIMILE: ( 206) 623-3384 1 Plaintiffs allege that during the Class Period, the Company and members of its senior 2 management violated federal securities laws by issuing various materially false and misleading 3 statements that had the effect of artificially inflating the market price of the Company's securities 4 and causing Class members to overpay for the securities. 5 Specifically, Plaintiffs allege that throughout the Class Period, Defendants issued 6 numerous, positive but false statements to investors and the market at large that misrepresented 7 the Company's growth prospects and ability to penetrate new markets. Defendants further issued 8 extremely positive statements about the Company's new distribution and production agreement 9 with National Beverage Corporation and agreements with numerous major retailers to garner 10 precious shelf space for the Company's products. Defendants stated that each of these 11 agreements was cemented and that the Company was poised to realize the financial benefits 12 thereof. 13 Moreover, Defendant Peter M. von Stolk, the Company's founder, President, Chief 14 Executive Officer and a Director issued numerous statements that led the market to believe that 15 major retailers had stocked the Company's sodas on their shelves for sale, or that the sodas 16 would be stocked on these retailers' shelves for sale by a date certain. These statements, 17 however, were false or were issued with such a degree of severe recklessness to render them 18 actionable. 19 On August 3, 2007, the Company announced that earnings for the quarter ended June 30, 20 2007 were well below Wall Street's expectations. In connection with the release (and despite his 21 earlier promises), Mr. van Stolk said that the Company' s canned products were not on enough 22 store shelves in time for peak summer sales, which began during the Memorial Day weekend. 23 This news caused the Company's stock to plummet nearly 23 percent in after-hours 24 trading to $11.70 a share, causing stockholders to suffer significant damages. 25 In addition, as detailed by Plaintiffs, during an 85-day period this last spring, Mr. van 26 Stolk and five of the six members of the board sold huge amounts of their holdings of Jones Soda LAW OFFICES OF MOTION FOR APPOINTMENT OF THE JUDAH PLAINTIFFS AS KELLER ROHRBACK L.L.P. LEAD PLAINTIFFS AND FOR APPOINTMENT OF CO-LEAD 1201 THIRD AVENUE, SUITE 3200 SEATTLE , WASHINGTON 98101-3052 COUNSEL, Page 3 TELEPHONE : ( 206) 623-1900 (CASE NO. 07-CV-1366-ML) FACSIMILE : ( 206) 623-3384 1 while touting the Company's aggressive expansion plan and new arrangements with major 2 I retailers. The truth of the matter was that the Company's plan was not on pace as disclosed. The 3 Company's beverages were not getting on shelves in time for the summer sales bump. Costs 4 associated with the Company's new "can were significantly impacting earnings and Mr. van 5 Stolk falsely portrayed the Company in an overly positive light despite facts that he knew to the 6 contrary. Indeed, as detailed by Plaintiffs, he stated during a conference call with analysts that 7 he saw major sales data from retailers on a daily basis. Accordingly, he knew at all relevant 8 times that the Company's products were not on the shelves and thus not being sold at a pace that 9 comported with his public statements concerning the Company's penetration into the $66 billion 10 carbonated soft drink market. 11 Plaintiffs allege that these actions violated Section 10(b) of the Exchange Act, 15 U.S.C. 12 § 78j(b), and Rule lOb-5 promulgated thereunder, 17 C.F .R. § 240. 10b-5 . Plaintiffs further 13 allege controlling person liability, pursuant to Exchange Act Section 20(a), 15 U.S.C. § 78t(a). 14 THE JUDAH PLAINTIFFS SHOULD BE APPOINTED LEAD PLAINTIFFS 15 The Procedure for Appointment of Lead Plaintiffs Under the PSLRA 16 The PSLRA sets forth the procedure governing the appointment of lead plaintiff in each 17 private action arising under the Exchange Act that is brought as a plaintiff class action pursuant 18 to the Federal Rules of Civil Procedure. See 15 U.S.C. § 78u-4(a)(1). Under the first step of this 19 procedure, the plaintiff who files a putative class action under the Act must publish a notice 20 advising members of the purported plaintiff class of the: (i) pendency of the action; (ii) claims 21 asserted therein; (iii) purported class period; and (iv) option of any member of the purported 22 class to move to serve as lead plaintiff of the purported class not later than 60 days after the date 23 on which the notice is published. See 15 U.S.C. § 78u-4(a)(3)(A). 24 Under the PSLRA, the Court is then required to appoint as lead plaintiff the "most 25 adequate plaintiff, which the PSLRA defines as "the member or members of the purported 26 LAW OFFICES OF MOTION FOR APPOINTMENT OF THE JUDAH PLAINTIFFS AS KELLER ROHRBACK L.L.P. LEAD PLAINTIFFS AND FOR APPOINTMENT OF CO-LEAD 1201 THIRD AVENUE, SUITE 3200 COUNSEL, Page 4 SEATTLE, WASHINGTON 98101-3052 TELEPHONE : (206) 623-1900 (CASE NO. 07-CV-1366-RSL) FACSIMILE: ( 206) 623-3384 1 plaintiff class that the court determines to be most capable of adequately representing the 2 interests of class members. See 15 U.S.C. § 78u-4(a)(3)(B )(i).