1 THE HONORABLE ROBERT S. LASNIK 2 3 4 5 6 7 UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 In re JONES SODA COMPANY SECURITIES LITIGATION No. 07-cv-1366-RSL 10 FIRST AMENDED CONSOLIDATED 11 THIS DOCUMENT RELATED TO: CLASS ACTION COMPLAINT 12 ALL ACTIONS JURY TRIAL DEMANDED 13 14 15 16 17 18 19 20 21 22 23 24 25 26 r, FIRST AMENDED CLASS ACTION COMPLAINT HAGENS BERMAN 50BOL SHAPIRO (lP Case No. 07-cv-1366-RSL 1301 RFTH AVENUE , SUITE 2900 • SEATTLE, WA 98101 001855-11 234984 V1 TELEPHONE (206) 623- 7292 • FACSIMILE (206) 623-0594 1 TABLE OF CONTENTS 2 PAGE 3 I. NATURE OF THE CASE ...................................................................................................1 4 II. JURISDICTION AND VENUE ..........................................................................................5 5 III. PARTIES .............................................................................................................................5 6 IV. CLASS ACTION ALLEGATIONS ....................................................................................7 7 V. SUBSTANTIVE ALLEGATIONS ..................................................................................... 8 8 VI. UNDISCLOSED MATERIAL, ADVERSE FACTS ........................................................ 24 9 VII. SCIENTER ALLEGATIONS ............................................................................................ 28 10 VIII. APPLICABILITY OF PRESUMPTION OF RELIANCE UNDER THE FRAUD-ON- THE-MARKET DOCTRINE ............................................................................................ 29 11 IX. NO SAFE HARBOR ......................................................................................................... 30 12 COUNT ONE: Violation of Section 10(b) of the Exchange Act and Rule I Ob-5, 13 Against All Defendants ...................................................................................................... 30 14 COUNT TWO: Violation of Section 20(a) of The Exchange Act Against Defendant van Stolk........................................................................................................... 33 15 PRAYER FOR RELIEF ................................................................................................................ 34 16 JURY TRIAL DEMANDED ......................................................................................................... 34 17 18 19 20 21 22 23 24 25 26 r, FIRST AMENDED CLASS ACTION COMPLAINT - i HAGEN5 BERMAN 50BOL SHAPIRO (lP Case No. 07-cv-1366-RSL 1301 RFTH AVENUE , SUITE 2900 • SEATTLE, WA 98101 001855-11 234984 V1 TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594 1 1. Lead Plaintiff Robert E. Burrell and plaintiffs Maryjane Burrell, Brian Burrell, 2 Ron Brejtfus, Robert B . Dail, Jr., and Eric Jankowski, on behalf of themselves and a Class 3 defined below, bring this action based on an investigation of material misrepresentations and 4 omissions made by and on behalf of defendant Jones Soda Company ("Jones Soda or the 5 "Company ) in filings with the Securities and Exchange Commission ("SEC ), as well as in 6 teleconferences , press releases , news articles, analysts' reports , and media stories. This 7 Complaint is based upon plaintiffs ' personal knowledge as to their own acts, and upon 8 information and belief as to all other matters, based upon the aforementioned investigation. 9 2. All allegations in this complaint are based upon the investigation of counsel and 10 upon information and belief, except the allegations pertaining to the named plaintiffs, which are 11 based upon personal knowledge. The allegations as to the falsity and materiality of Defendants' 12 misrepresentations and knowing omissions are also based, in part, upon the expert opinion of 13 Tom Pirko, as explained below. 14 1. NATURE OF THE CASE 15 3. This is a class action on behalf of all persons, other than Defendants, who 16 purchased Jones Soda Corporation common stock between January 10, 2007, and May 1, 2008, 17 inclusive (the "Class Period ), to recover damages caused by Defendants' violations of the 18 federal securities law (the "Class ). 19 4. Jones Soda and its former President, Chairman, and CEO Peter M. van Stolk 20 achieved near rock-star status over the last few years. Jones Soda's quirky sodas, including 21 Turkey & Gravy flavor and Bubble Gum flavors (as well as soda made with pure sugar cane as 22 opposed to high-fructose corn syrup), became a darling of Wall Street, and Mr. van Stolk was a 23 frequent guest on Jim Cramer's Mad Money show watched by millions each night on CNBC. 24 5. During the Class Period, Defendants deceived investors by means of material 25 misrepresentations and omissions: 26 r, FIRST AMENDED CLASS ACTION COMPLAINT - 1 HAGEN5 BERMAN 50BOL SHAPIRO (lP Case No. 07-cv-1366-RSL 1301 RFTH AVENUE , SUITE 2900 • SEATTLE, WA 98101 001855-11 234984 V1 TELEPHONE (206) 623- 7292 . FACSIMILE (206) 623-0594 1 a. Defendants knowingly or recklessly deceived investors by falsely 2 representing that it had secured agreements with major retail stores to stock its soda cans, 3 increasing the number of major retail stores that were stocking its products on their shelves from 4 approximately 1,400 stores to more than 15 ,000 major retail stores throughout the country. 5 Specifically, Defendants represented that Jones Soda had secured by January 10, 2007 25% ACV 6 (all commodity volume) penetration, and repeated this statement of fact throughout the Class 7 Period. During the Class Period, which ends over a year after this representation was made, 8 Jones Soda still had not achieved 25% ACV. 9 b. Defendants also knowingly or recklessly deceived investors by falsely 10 representing that it was taking the necessary steps to penetrate the $66 billion carbonated soft 11 drink ("CSD ) market by hiring additional personnel, making upgrades to infrastructure, and 12 increasing sales and marketing expenditures. In fact, although Jones Soda throughout the Class 13 Period had $30 million in cash and short-term investments available, it never invested anywhere 14 near the amounts of money necessary to penetrate the $66 billion CSD market. On May 1, 2008, 15 the last day of the Class Period, Jones Soda admitted that it had not sufficiently invested money 16 in order to enter that market, and that it would suffer losses for the next several quarters. 17 6. As a result of Defendants' knowing or reckless false misrepresentations and 18 material omissions, the price of Jones Soda stock skyrocketed during the time period that van 19 Stolk and Jones Soda were falsely assuring investors that Jones Soda had achieved 25% ACV, 20 before plummeting to its close of $2.91 on May 2, 2008, as shown by the following chart: 21 22 23 24 25 26 r, FIRST AMENDED CLASS ACTION COMPLAINT - 2 HAGEN5 BERMAN 50BOL SHAPIRO (lP Case No. 07-cv-1366-RSL 1301 RFTH AVENUE , SUITE 2900 • SEATTLE, WA 98101 001855-11 234984 V1 TELEPHONE (206) 623- 7292 • FACSIMILE (206) 623-0594 1 Jones Soda Closing Stock Price November 1, 2006 to May 2, 2008 2 $35.00 3 4 $30.00 5 $25.00 6 $20.00 7 $15.00 8 9 $10.00 10 $5.00 11 $0.00 co co n n n n n n n n n n n r-- C3 o O O O O O O O O O O O o o 0 0 0 12 00 o o O O O O O O O O O O O N N N N N N N N N N N N N N N N N N N r N (' R U) f0 r- OD O) O r N m R U) 13 14 7. During the Class Period, however, Mr. van Stolk and other members of Jones 15 Soda's Board of Directors fared far better than Class members. Specifically, less than a week 16 after van Stolk's announcement on March 8, 2007, that Jones Soda had already secured 17 agreements to place its products on the shelves of 15,000 retail stores (including Wal-Mart, 18 Kroger, Safeway and Kmart) and that it would be in 25% of retail stores by Memorial Day 2007, 19 substantially all members of the Board of Directors began selling their stock en masse. 20 8. Mr. van Stolk, for example, sold 140,000 shares on March 14, 2007 for $2.53 21 million, which left him with 1.4 million shares. He subsequently exercised his options for 22 250,000 more shares, bringing his total to 1.65 million. 23 9. Board member Scott Bedbury sold all 70,000 of his shares between March 13 and 24 16, 2007 for $1.3 million. 25 10. Board member Michael M. Fleming exercised options on a total of 55,000 shares 26 between March 13 and May 8, 2007, and then sold that many shares on those days for a L FIRST AMENDED CLASS ACTION COMPLAINT - 3 HAGENS BERMAN 5080 • EAT L P Case No. 07-cv-1366-RSL 1301 FFrH AVENUE , SUITE 2900OO SEATTLE, WA 98101 001855-11 234984 V1 TELEPHONE (206) 623- 7292 • FACSIMILE (206) 623-0594 1 $1 million profit. The options were to expire between 2009 and 2011. After the sale, 2 I Mr. Fleming held only 5,000 shares in Jones Soda. 3 11. Board member Alfred W. Rossow, Jr. exercised options on 30,000 shares on 4 May 9, 2007 and sold all the shares the same day for a $600,719 profit. His options were set to 5 expire in 2009 and 2010. After the sale, Mr. Rossow held no direct ownership in Jones Soda. 6 12. Board member John J. Gallagher, Jr. exercised options on 20,000 shares on 7 May 7, 2007 and then sold all those shares for a $276,000 profit on June 5, 2007, the day before 8 van Stolk disclosed at an investor conference that sales challenges were occurring. The options 9 were set to expire in 2010. After the sale, Mr. Gallagher held no direct ownership in Jones Soda. 10 13. Board member Stephen C. Jones exercised options on 15,000 shares on May 24, 11 2007 and sold all the shares the same day for a $233,700 profit. The options would have expired 12 in 2011. After the sale, Mr. Jones held no direct ownership in Jones Soda. 13 14. Lars Nilsen, the Executive Vice President of Sales at Jones Soda, exercised 14 I options to acquire and then sold 3,000 shares on March 15, 2007 for a $37,290 profit. The 15 options were not set to expire until 2011.