Vitacost Derivative Litigation

The Weiser Firm obtained extraordinary relief in connection with the settlement of a shareholder derivative action brought on behalf of, Inc. (“Vitacost”), which preserved that company’s corporate form and the equity interests of its shareholders. The Vitacost derivative action centered upon Vitacost’s December 7, 2010 announcement that its historical financial statements could not be relied upon due to a failure to adhere to certain critical corporate formalities fourteen years earlier. As a result, trading in Vitacost stock was halted by NASDAQ and Vitacost stockholders held illiquid shares of uncertain legal status. Pursuant to the settlement, the Court entered an Order which: (1) confirmed the number of shares in the Company based on the number of outstanding shares in the Company’s initial public offering in 2009 (in effect, “quieting title” to Vitacost shares), thus reassuring Vitacost stockholders and the market that Vitacost’s outstanding shares and options were valid; and (2) deemed Vitacost’s certificate of incorporation to be valid and effective. In the absence of this settlement, Vitacost could not have become “current” with respect to its historical financial statements, its stock could not have resumed trading, and Vitacost would have almost certainly been forced to file for bankruptcy. This settlement was unprecedented and historic, and, in essence, saved Vitacost and the equity interests of its stockholders.

Kloss v. Kerker, et. al., Case No.: 502010CA018594XXXXMB (Fl. Circuit Ct., 15th Judicial Circuit, Palm Beach Cnty) Vitacost Derivative Litigation