23. By reason of their positions as officers and/or directors and fiduciaries of JBI and because of their ability to control the business and corporate affairs of the Company, the Individual Defendants owed to JBI and its shareholders fiduciary obligations of trust, loyalty, good faith and due care, and were and are required to use their utmost ability to control and manage JBI in a fair, just, honest and equitable manner. The Individual Defendants were and are required to act in furtherance of the best interests of JBI and its shareholders so as to benefit all shareholders equally and not in furtherance of their personal interest or benefit. The conduct of the Individual Defendants complained of herein involves a knowing and culpable violation of their obligations as directors and officers of JBI, the absence of good faith on their part, and a reckless disregard for their duties to the Company and its shareholders that the Individual Defendants were aware or should have been aware posed a risk of serious injury to the Company.
24. To discharge their fiduciary duties, the officers and directors of JBI were required to exercise reasonable and prudent supervision over the management, policies, practices and controls of the Company. By virtue of such duties, the officers and directors of JBI were required to, among other things:
a) Manage, conduct, supervise and direct the business affairs of JBI in accordance with all applicable laws, including federal and state laws and regulations, and the policies of the Company;
b) Neither violate, nor permit any officer, director or employee of JBI to violate applicable laws, rules, and regulations;
c) Remain informed as to the status of JBI’s operations, including its internal audit capabilities and the laws which bear on the Company’s business endeavors, and upon receipt of notice or information of imprudent or unsound practices, to make a reasonable inquiry in connection therewith, and to take steps to correct such conditions or practices; and
d) Conduct the affairs of the Company in an efficient, businesslike manner so as to make it possible to provide the highest quality performance of its business, to avoid wasting the Company’s assets, and to maximize the value of the Company’s stock.
25. This is especially true for the Company’s Audit Committee members, which includes defendants Fairbairn, Bagai, and Wesson. As noted in the Company’s last Proxy Statement filed on May 9, 2011 (the “2011 Proxy”) with the SEC:
The function of the Audit Committee, as detailed in the Audit Committee Charter, is to provide assistance to the Board in fulfilling its responsibility to the shareholders, potential shareholders, and investment community relating to corporate accounting, management practices, reporting practices, and the quality and integrity of the financial reports of the Company. In so doing, it is the responsibility of the Audit Committee to maintain free and open means of communication between the directors, the independent auditors and Company management.
26. Unfortunately, that is all the information investors have in connection with the duties of the Board’s Audit Committee because even though the Audit Committee Charter is listed on the Company’s website, it is not actually available, a fact that is not altogether surprising given that as per the 2011 Proxy the Company’s Audit Committee held only 2 meetings during the entire fiscal year ended December 31, 2010.
27. Similarly, the Board itself also held only 2 meetings during the fiscal year ended December 31, 2010. The Board instead chose to act almost exclusively by unanimous written consent in lieu of actual meetings during 2010.
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