Professional Documents
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2018 01 10 DiCrisci Motion To Dismiss or Strike-C1
2018 01 10 DiCrisci Motion To Dismiss or Strike-C1
Plaintiffs,
vs.
Defendants.
_____________________________________/
Florida Revised Limited Liability Company Act and Rule 1.140(f) of the Florida Rules of Civil
Procedure, seeks an order dismissing or striking the allegations of sexual misconduct set forth in
the Verified Complaint filed by Plaintiffs, Steven R. Schafer (“Mr. Schafer”) and Christopher F.
Introduction
explored by those who are the victims of misconduct. However, allegations of personal
CASE NO: 2017-021621-CA-01
leverage. In this litigation, which at its essence, is an ordinary corporate dispute in which two of
the founders/owners of a Florida business are challenging the management of the third
founder/owner, who is the CEO of the company, allegations of sexual misconduct against Robert
DiCrisci were included in the Complaint in an obvious effort to intimidate and leverage Plaintiffs’
claims.
The Complaint, at paragraphs 42 and 126 through 128 sets forth three historical alleged
incidents of sexual misconduct by Mr. DiCrisci which are then incorporated into five derivative
claims against the CEO (Counts I-V).1 These allegations are barred by Florida’s Revised Limited
Liability Company Act (the “Florida LLC Act”), which governs the affairs of Nominal Defendant
Tri-Source Pharma LLC (“Tri-Source”). Mr. DiCrisci moves this Court to dismiss these sexual
misconduct allegations from the Complaint due to Plaintiffs’ failure to comply with the pre-suit
demand requirement of Section 605.0802 of the Florida LLC Act. Additionally, as a result of
Plaintiffs’ failure to comply with the demand requirement of Section 605.0802, these allegations
are immaterial.
include these salacious allegations in this litigation without being subject to defamation liability
for asserting false and unsubstantiated allegations, someone has anonymously spread these
allegations to customers of Tri-Source and to the media, in an effort to destroy Mr. DiCrisci. The
1
The five derivative counts include multiple alleged acts of mismanagement by the CEO. This
motion only challenges the incorporated allegations in those five counts related to alleged sexual
misconduct. See Count I (¶¶154(k) through (n)); Count II (¶¶161(k) through (n)); Count III
(¶¶165(j) and (k)); Count IV (¶170(f)); Count V (¶175(d)).
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addition of these immaterial salacious allegations to this corporate management dispute are
impertinent and scandalous as a matter of law. These allegations should therefore be stricken from
the Complaint pursuant to Rule 1.140(f) of the Florida Rules of Civil Procedure.
Procedural Background
Plaintiffs filed their Complaint asserting various derivative and direct actions on September
14, 2017. On September 20, 2017, Plaintiffs filed their Emergency Motion for (1) Appointment
of Receiver and Temporary Restraining Order; (2) Access to All Books and Records; and (3)
Motion”). A three-day evidentiary hearing was held on the Emergency Motion beginning on
September 26, 2017 (the “Emergency Hearing”). At the conclusion of the Emergency Hearing,
this Court withheld entering an order as to the Emergency Motion and referred the parties to
mediation before Retired Judge Herbert Stettin. The parties attended mediation with Judge Stettin
on October 25, 2017, and have been engaged in ongoing settlement negotiations since that time.
Defendants learned in mid-December that the sexual allegations in the Complaint were
emailed to two customers of Tri-Source under the, so far, untraceable pseudo name, Peter Parker
(of Spiderman lore). Then, someone provided the Complaint to the local newspaper, New Times,
which published an article focusing on these allegations on January 4, 2018. Then, on January 7,
2018, the Wall Street Journal reached out to undersigned counsel that they had learned of these
allegations and were preparing a national article on this issue. Plaintiffs’ counsel has denied that
Plaintiffs had any involvement in the dissemination of these allegations to customers of Tri-Source
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The Complaint contains, inter alia, the following derivative actions: Count I – Breach of
Fiduciary Duty of Care; Count II – Breach of Fiduciary Duty of Loyalty; Count III – Breach of
Duty of Good Faith and Fair Dealing; Count IV – Corporate Waste; and Count V –
• At or around the same that DiCrisci promoted the Assistant to work for him,
¶42);
downtown Miami office separate and apart from the business facilities, DiCrisci
has been engaged in an inappropriate sexual affair with his Assistant. … The
company personnel and is the subject of much discussion. In fact, DiCrisci has
publically and flagrantly boasted to others about his various sexual exploits with
the Assistant, and has sent grossly inappropriate text messages to at least one
female employee containing explicit and salacious details of his sexual acts with
his Assistant, stating, inter alia: “I penetrated her…”; “I had her swallow…”; she
• In return for these Sexual Favors, DiCrisci unilaterally awarded sizeable salary
increases to his “Assistant,” plus bonuses of more than twenty percent (20%) of
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CASE NO: 2017-021621-CA-01
inappropriate, and are based solely on the fact that DiCrisci is engaged in a sexual
relationship with her. The grossly disproportionate salary increases and bonuses
employees who work hard and perform actual, legitimate services for [Tri-
• Furthermore, it appears that at least one other female employee has been
DiCrisci while in the workplace, which were not reported because of fears of
retaliation. Such conduct by DiCrisci, as the CEO, not only creates a hostile and
stressful working environment for female employees of the Entities, but also
violates federal law and subjects [Tri-Source] and its subsidiaries to potential
¶128).
Each of the five derivative claims against Mr. DiCrisci incorporate these sexual misconduct
allegations. Count I alleges that Mr. DiCrisci breached his fiduciary duty of care by, among other
acts:
employee and as a result, providing her with unjustified and excessive pay increases
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CASE NO: 2017-021621-CA-01
employee and as a result thereby subjecting the companies to possible lawsuits for
thereby subjecting the companies to possible lawsuits for sexual harassment and
violations of EEOC laws, breach of privacy, and/or libel and slander (Compl.,
¶154(n)).
Count II alleges that Mr. DiCrisci breached his fiduciary duty of loyalty by, among other acts:
its subsidiaries, thereby subjecting the companies to possible lawsuits for sexual
¶161(k));
employee and as a result thereby subjecting the companies to possible lawsuits for
¶161(l));
employee and as a result, providing her with unjustified and excessive pay increases
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and bonuses, thereby further wasting company assets and prioritizing DiCrisci’s
¶161(m));
harassment and violations of EEOC laws, breach of privacy, and/or libel and
¶161(n)).
Count III alleges that Mr. DiCrisci breached his duty of good faith and fair dealing by, among
other acts:
its subsidiaries, thereby subjecting the companies to possible lawsuits for sexual
employee and as a result, providing her with unjustified and excessive pay increases
Count IV alleges that Mr. DiCrisci recklessly created waste of corporate assets by, among other
acts:
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CASE NO: 2017-021621-CA-01
employee and as a result, providing her with unjustified and excessive pay increases
Count V alleges that Mr. DiCrisci misappropriated corporate assets by, among other acts:
employee and as a result, providing her with unjustified and excessive pay increases
In the Complaint, “Plaintiffs certify that demand under Fla. Stat. §605.0802(1) would be
futile in that the Plaintiffs already own and/or control more than 60% of the membership interests
of [Tri-Source] and they comprise two of the four managers of [Tri-Source’s] Board of Managers,
and management of the company is and remains deadlocked.” Compl., ¶5. Similarly, in Counts I
through V, Plaintiffs allege that the derivative actions are ripe for consideration by the Court
control more than 61% of the membership interests and comprise 50% of the Board of Managers,
so the Board of Managers is at an impasse and any demand under Fla. Stat. §605.0802 would be
However, Plaintiff Yankana did make a pre-suit demand upon Mohamed Osman, the
current manager, President and Chief Operating Officer of Tri-Source (“Mr. Osman”), regarding
Mr. DiCrisci’s alleged sexual relationship with, favoritism of, and unjustified compensation to, his
Executive Assistant. See the Declaration of Mohamed Osman (“Osman Decl.”), which is attached
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CASE NO: 2017-021621-CA-01
hereto as Exhibit A. Specifically, in early 2015, Plaintiff Yankana alleged to Mr. Osman that Mr.
DiCrisci had engaged in an inappropriate relationship with his Executive Assistant. Osman Decl.,
¶5. Thereafter, Mr. Osman conducted an investigation of the allegations. Id. at ¶6. The Company
Nevertheless, Tri-Source implemented measures to mitigate any risk and minimize any
potential issues involving workplace relationships, including directing the Human Resources
Department to (1) revise and tighten Tri-Source’s sexual harassment policy, (2) enact a sexual
harassment training, and (3) enforce an open-door policy. Id. at ¶12. The results of the
investigation and the new HR policy were reported to Mr. Yankana, who did not express any
disagreement or complaints with the procedures used by Mr. Osman to address these allegations.
Id. at ¶11.
Since the completion of the investigation the implementation of the measures, Plaintiffs
did not make any further demand for action upon the Board of Managers of Tri-Source before
filing these derivative claims. Id. at ¶13. As further explained below, on this record, Plaintiffs’
inclusion of the sexual misconduct allegations in the derivative claims against Mr. DiCrisci are,
Mr. DiCrisci denies the allegations of his sexual harassment and misconduct in their
entirety, as set forth in the accompanying Declaration of Robert A. DiCrisci (“DiCrisci Decl.”),
which is attached hereto as Exhibit B. Mr. DiCrisci also testified at the Emergency Hearing and
independent forensic IT expert, to investigate the allegations raised at the hearing that Mr. DiCrisci
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CASE NO: 2017-021621-CA-01
sent text messages to an employee publishing inappropriate and sexually explicit references to his
Assistant. See Declaration of Robert D. Moody (“Moody Decl.”) attached hereto as Exhibit C.
Mr. DiCrisci made all of his electronic devices capable of sending the messages reported by the
employee available to Mr. Moody. Moody Decl., ¶¶6-7. Mr. Moody thoroughly examined Mr.
DiCrisci’s electronic devices and data, and found no evidence to support the allegations that Mr.
DiCrisci sent sexually explicit text messages to the employee. Id. at ¶¶7-9.
In addition to being disparaging and harassing to Mr. DiCrisci, the allegations of Mr.
DiCrisci’s sexual harassment and misconduct are causing damage to Tri-Source’s business. In
December, an anonymous email account sent the Complaint to at least two customers of Tri-
Source, and specifically directed the recipients to the allegations regarding Mr. DiCrisci’s sexual
misconduct. Osman Decl., ¶17. More recently, the Complaint was sent to a local news reporter,
which led to the publication of an article that focused almost exclusively on the sexual harassment
allegations against Mr. DiCrisci in New Times newspaper on January 4, 2018. Id. at ¶18. A copy
of the New Times newspaper article dated January 4, 2018 is attached hereto as Exhibit D. Such
publications seriously damage both Mr. DiCrisci and Tri-Source, which in turn interferes with the
Defendants’ ability to fashion a final settlement of this litigation. See Osman Decl., ¶19.
Argument
Since Plaintiff Yankana made a demand on Tri-Source in 2015 related to these allegations,
since the Company investigated these allegations and implemented HR measures, and since
Plaintiffs never made any further pre-suit complaint or demand regarding these allegations, they
waived their right to assert that demand would be futile for the derivative claims arising out of Mr.
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law, that a majority of the managers of Tri-Source were disinterested and independent, and thus,
could have exercised business judgment on issues related to Mr. DiCrisci’s alleged sexual
misconduct. See Zucker v. Hassell, CV 11625-VCG, 2016 WL 7011351, at *1 (Del. Ch. Nov. 30,
2016), aff'd, 165 A.3d 288 (Del. 2017). Accordingly, all of the allegations of Mr. DiCrisci’s sexual
harassment and misconduct contained in Paragraphs 42, 126, 127, 128, 154(k) through (n), 161(k)
through (n), 165(j) and (k), 170(f), and 175(d) of the Complaint should be dismissed for failure to
satisfy the demand requirement set forth in Section 605.0802 of the Florida LLC Act.
make a demand for action on the managers of a manager-managed company. Dutch v. Gordon,
481 So. 2d 1235, 1235 (Fla. 3d DCA 1985) (“It has been established law in this state that before a
stockholder or shareholder derivative action can be maintained it is necessary for the complainant
to serve a demand on the corporation and its proper officers requesting action on behalf of the
corporation.”). The only exception is where a demand would be futile. Belcher v. Schilling, 309
So. 2d 32, 35 (Fla. 3d DCA 1975) (“demand … need not be made if it would be impractical,
unreasonable or useless.”); see Conlee Const. Co. v. Cay Const. Co., 221 So. 2d 792, 796 (Fla. 4th
DCA 1969) (“Demand on the directors to bring the action, a condition precedent to suit, is
excusable where demand obviously would be unavailing.”). Indeed, the Florida Revised LLC Act
codifies the demand requirement, as well as the demand futility exception, for member derivative
actions:
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By making a demand, however, the member or shareholder has “impliedly conceded that
a majority of the directors are disinterested and independent, and that the board could have brought
its business judgment to bear on the issue.” Zucker v. Hassell, CV 11625-VCG, 2016 WL 7011351,
at *1 (Del. Ch. Nov. 30, 2016), aff'd, 165 A.3d 288 (Del. 2017). As explained in Zucker:
…Rule 23.1 can be met “by either (1) making a demand on the board to undertake
a corrective action or (2) demonstrating that any such demand would have been
futile and, therefore, that the demand is excused.” Our law recognizes that by
making a demand on the board the shareholder “tacitly” concedes that the
demand would not have been futile—that the majority of the board was
capable of considering and evaluating the demand independently and
objectively. Thus, where a plaintiff makes a demand “the analysis and legal
standards applicable are necessarily different from the case where a plaintiff is
alleging demand would be futile.” Where a plaintiff pursues the first path, as
the Plaintiff has here, and makes “a demand on the corporation's board and
the board refuses that demand, then the plaintiff must demonstrate that the
board wrongfully refused the demand.”
Id. at *6-7 (emphasis added). Thus, a member who makes a demand cannot subsequently argue
that demand would be futile. See Spiegel v. Buntrock, 571 A.2d 767, 775 (Del. 1990) (explaining
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that “[b]y making a demand, a stockholder tacitly acknowledges the absence of facts to support a
finding of futility.”).2
Moreover, a member who makes a demand concedes that demand is required “for all legal
theories arising out of the set of facts described in the demand…” Grimes v. Donald, 673 A.2d
1207, 1219 (Del. 1996), overruled on other grounds by Brehm v. Eisner, 746 A.2d 244 (Del.
2000). “Since the making of a pre-suit demand concedes that demand is required, the concession
should apply ‘to all or any part of the transaction, or series of connected transactions, out of which
Accordingly, where a pre-suit demand is made, a plaintiff must plead with particularity
that the managers wrongfully refused the demand to maintain a derivative action. See Grimes, 673
A.2d at 1220 (finding plaintiff waived his right to argue demand futility and dismissing complaint
for failing to include allegations to “raise a reasonable doubt that the [b]oard’s decision to reject
the demand was the product of a valid business judgment.”). As explained by the Third District
Thus, in order for a complaint to state a cause of action entitling the stockholder to
relief, it must allege two distinct wrongs: the act whereby the corporation was
caused to suffer damage, and a wrongful refusal by the corporation to seek
redress for such act. Conceding the necessity for such allegations, the question of
their sufficiency arises. General allegations of wrongful refusal to sue are not
sufficient. The reason for the refusal should be disclosed to overcome the justifiable
inference that refusal was based on grounds of discretion or policy. Poor v. Iowa
Cent. Ry. Co. (C.C.S.D. Iowa 1907), 155 F. 226; Fletcher, Cyclopedia of
Corporations, Vol. 13, § 6008, p. 601; see also, Stockholder's Derivative Suits, 12
Fla.L.Rev. 196, 198 (1959).
2
Florida courts follow Delaware case law interpreting similar provisions of corporate law. See
e.g. Int’l Ins. Co. v. Johns, 874 F.2d 1447, 1459 n.22 (11th Cir. 1989).
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148 So. 2d 36, 38 (Fla. 3d DCA 1962) (emphasis added). A plaintiff who fails to plead his or her
demand was wrongfully refused lacks standing to proceed derivatively. Zucker, 2016 WL
7011351, at *1.
In the Complaint, Plaintiffs plead that demand would be futile because Tri-Source’s Board
of Managers is at an impasse. Compl., ¶¶5, 156, 163, 167, 172, 177, 183. However, Plaintiffs did
in fact make a pre-suit demand on Mr. Osman, manager, President, and Chief Operating Officer
of Tri-Source, regarding Mr. DiCrisci’s alleged sexual harassment and misconduct with his
Assistant. See Osman Decl., ¶5. Therefore, Plaintiffs waived any argument that demand would be
futile as to the allegations of Mr. DiCrisci’s sexual misconduct with his Executive Assistant
contained in Paragraphs 42, 126, 127, 154(l), 154(m), 161(l), 161(m), 165(k), 170(f), and 175(d).
Moreover, Plaintiffs waived their argument that demand would be futile as to the other
allegations of Mr. DiCrisci’s sexual misconduct, as well. The allegations related to the text
messages Mr. DiCrisci allegedly sent to an employee detailing sexual acts with the Assistant and
Mr. DiCrisci’s alleged sexual harassment of another employee clearly arise out of the same set of
facts, or series of connected transactions, out of which Plaintiffs’ demand for action arose. By
making a demand, Plaintiffs conceded that a majority of Tri-Source’s Board of Managers was
capable of objectively and independently evaluating a demand for action related to Mr. DiCrisci’s
alleged sexual misconduct. Accordingly, Plaintiffs also waived any argument that demand would
be futile as to the allegations contained in Paragraphs 126, 128, 154(k), 154(n), 161(k), 161(n),
and 165(j).
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Therefore, to satisfy the demand requirement and maintain a derivative action arising out
of Mr. DiCrisci’s alleged sexual misconduct, Plaintiffs were required to plead that Tri-Source’s
Board of Managers wrongfully refused their demand for action. Plaintiffs failed to plead that their
demand was refused, and thus, failed to satisfy a condition precedent to asserting the derivative
actions arising out of the alleged sexual misconduct in Counts I through V. As a result, this Court
should dismiss the allegations of Mr. DiCrisci’s sexual misconduct from the Complaint for
Plaintiffs’ failure to comply with Section 605.0802 of the Florida LLC Act.
derivative action, the allegations of Mr. DiCrisci’s sexual misconduct are immaterial. Moreover,
the allegations are impertinent and scandalous, and Plaintiffs have raised the allegations for the
improper purpose of exerting leverage on Mr. DiCrisci and Tri-Source in this litigation. Courts
have long recognized that allegations that can have an in terrorem effect in a case must be
subjected to heightened scrutiny. See e.g. Kraft Gen. Foods, Inc. v. Rosenblum, 635 So. 2d 106,
108 (Fla. 4th DCA 1994) (explaining the Florida Legislature’s requirement that a party seek leave
of court before it may assert a punitive damages claim to remove unauthorized use of such claims
for in terrorem effect); Walt Disney World Co. v. Noordhoek, 672 So. 2d 98, 99 (Fla. 3d DCA
1996); see also Barr v. Matria Healthcare, Inc., 324 F. Supp. 2d 1369, 1377 (N.D. Ga.
2004)(discussing need for extra scrutiny of fraud allegations that have an in terrorem effect). That
effect is even more heightened in the current climate in the United States where allegations such
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as these against executives become fodder for the media and social media – as has happened in the
Accordingly, this Court should strike the allegations contained in Paragraphs 42, 126, 127,
128, 154(k) through (n), 161(k) through (n), 165(j) and (k), 170(f), and 175(d) from the Complaint
Pursuant to Rule 1.140(f) of the Florida Rules of Civil Procedure, “the court may strike
redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.” Fla. R.
Civ. P. 1.140(f). As explained by the Second District Court of Appeal in Holt v. Sheehan:
Florida provides very broad immunity from suits for libel and slander relating to
matters stated in court files. See Echevarria, McCalla, Raymer, Barrett & Frappier
v. Cole, 950 So.2d 380, 383–84 (Fla.2007). Thus, when impertinent or scandalous
information is placed in a court file, the party harmed by the information has no
right to seek recourse in a separate action. In lieu of such legal action, when
scandalous matter is filed in a court file by a lawyer or a litigant, the rules of
procedure allow a party to file a motion to strike the matter from the record. See
Fla. R. Civ. P. 1.140(f).
122 So. 3d 970, 974 (Fla. 2d DCA 2013); see also Gilbert v. Eli Lilly Co., Inc., 56 F.R.D. 116, 120
n.7 (D.P.R. 1972) (“A matter is deemed ‘scandalous’ when it improperly casts a derogatory light
Given that Plaintiffs failed to meet the demand requirement necessary to maintain a
derivative action arising out of Mr. DiCrisci’s alleged sexual harassment and misconduct, the
allegations are irrelevant to the instant action. Furthermore, the allegations are impertinent and
scandalous, as they improperly cast a derogatory light on Mr. DiCrisci and his moral character.
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Mr. DiCrisci denies the allegations of his sexual harassment and misconduct in their
entirety. See DiCrisci Decl., ¶¶5-9, 11. There is no evidence that Mr. DiCrisci unilaterally awarded
his Executive Assistant raises and bonuses, and in fact, all raises and bonuses, including to Mr.
DiCrisci’s Executive Assistant, have been approved by the Board of Managers since 2015. See
Osman Decl., ¶¶ 14-15. Additionally, Mr. Moody, a private forensic IT expert who investigated
all of Mr. DiCrisci’s electronic devices and data, concluded there was no evidence that he sent
sexually explicit text messages to the employee. See Moody Decl., ¶¶6-9.
Moreover, it is clear that these allegations were included for the sole and improper purpose
of forcing Defendants to enter a quick settlement to avoid humiliating and disparaging publicity.
Indeed, Defendants are currently the subject of severely damaging publicity as a result of these
allegations, which directly impacts Tri-Source’s business. Furthermore, the negative and
disparaging publicity surrounding both Mr. DiCrisci and Tri-Source is hampering Defendants’
CONCLUSION
Based on the foregoing, Defendant Robert A. DiCrisci respectfully requests that this Court
dismiss the allegations of sexual misconduct from the Complaint based on Plaintiffs’ failure to
satisfy the demand requirement contained in Section 605.0802 of the Florida Revised LLC Act.
Additionally, Mr. DiCrisci respectfully requests that this Court strike the allegations of sexual
misconduct from the Complaint as immaterial, impertinent, and scandalous pursuant to Rule
1.140(f).
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CASE NO: 2017-021621-CA-01
Undersigned counsel for Robert A. DiCrisci, Joseph A. DeMaria, Esq., presented to counsel
for Steven R. Schafer and Christopher F. Yankana, on January 8, 2018, by email, a detailed
explanation of the basis for this motion and requested counsel to consent to the relief sought in the
motion. Mr. DeMaria requested counsel to respond to the request by January 10, 2018 due to the
need to seek this relief due to damage caused by the ongoing publicity caused by the spreading of
On January 10, Plaintiffs’ counsel responded by email that he would not agree to the relief
requested in the Motion. Undersigned counsel attempted several times to have a telephone call
with Mr. Aaronson, who was not available to take the call. Accordingly, due to the need to address
these issues in a formal manner to respond to ongoing press inquiries regarding these allegations,
undersigned counsel has filed this Motion and will continue to try to discuss the matter with
Plaintiffs’ counsel to determine if relief can be granted that would be acceptable to both parties.
Respectfully submitted,
Susanne M. Calabrese
Florida Bar No. 89512
Email: SCalabrese@FoxRothschild.com
Sec. Email: MMiller-Hayle@FoxRothschild.com
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CASE NO: 2017-021621-CA-01
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Motion to Dismiss or Strike Allegations
of Sexual Harassment and Misconduct was served via the Florida Court’s E-Portal System on this
ESQ., Aaronson Schantz Beiley P.A., Attorney for Plaintiffs, (gaaronson@aspalaw.com and
tdmckeown@aspalaw.com), Miami Tower, 100 S.E. 2nd Street, Floor 27, Miami, Florida 33131
(lslitow@burr.com and fzincone@burr.com), 350 E. Las Olas Blvd., Suite 1440, Fort Lauderdale,
Florida 33301.
/s/Joseph A. DeMaria
Joseph A. DeMaria
52703023.v2
19
EXHIBIT
A
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT, IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
Plaintiffs,
vs.
Defendants,
_____________________________________/
1. I, Mohamed Osman, hereby state that I am over 18 years of age. I have personal
knowledge of the facts sworn to in this Declaration, and such facts are true and correct.
LLC (“Tri-Source”).
Amatheon, Inc.
5. At that time, Mr. Yankana brought to my attention an allegation of a sexual
relationship between Mr. DiCrisci and his Executive Assistant. Mr. DiCrisci at that time was the
DiCrisci. I discussed the matter with Mr. DiCrisci, who stated that while he previously had
dated his executive assistant for a brief period of time, that relationship had ended before she
8. Indeed, it was Mr. Yankana who introduced Mr. DiCrisci to her and Mr. Yankana
knew of the previous dating relationship when he recommended her for the Executive Assistant
position.
9. Further, at the same time that Mr. Yankana made these allegations, he and Mr.
Schaefer had made other allegations of mismanagement against Mr. DiCrisci which led to
settlement discussions and a complete restructuring of the business. I believed that these
10. Nevertheless, I monitored and observed Mr. DiCrisci and his Executive Assistant,
11. I determined that the allegations against Mr. DiCrisci were unsupported. I
12. By early 2016, the management of the business was reorganized under Tri-Source
as the parent company. Tri-Source implemented measures to minimize any potential issues
involving relationships in the workplace, including instructing the Human Resources Department
2
to revise and tighten Tri-Source’s sexual harassment policy, enacting sexual harassment training,
13. Since the investigation was conducted and measures were implemented, neither
Mr. Yankana nor Mr. Schafer have made any further demands for action upon me or the Board
14. At the emergency hearing in this matter, an issue was raised regarding bonuses
paid to Mr. DiCrisci’s Executive Assistant. Since 2015, all annual raises, compensation changes,
and salary adjustments were approved by the Board of Managers as part of the annual budgeting
process. Salary increases are recommended by management and discussed by the Board of
Managers. All increases made to employee salaries, including Mr. DiCrisci’s Executive
15. At the end of each year, annual bonuses are recommended and presented to the
Board of Managers. Since 2015, all bonuses paid, including those paid to Mr. Yankana, Mr.
Schafer, and Mr. DiCrisci’s Executive Assistant, were approved by the Board of Managers in
16. The allegations of Mr. DiCrisci’s sexual misconduct set forth in the Complaint
17. In December, an anonymous email account under the pseudo name “Peter Parker”
sent the Complaint to at least two customers of Tri-Source, and specifically directed the
18. More recently, the Complaint was sent to a local news reporter, which led to the
publication of an article that focused almost exclusively on the sexual misconduct allegations
3
against Mr. DiCrisci in a New Times newspaper article published on January 4, 2018. A copy of
the New Times newspaper article dated January 4, 2018 is attached as Exhibit D to Mr.
19. Publications, such as the New Times newspaper article, seriously damage both
Pursuant to § 92.525 of the Florida Statutes, under penalties of perjury, I declare that I
have read the foregoing document and that the facts stated in it are true.
_________________________________
Mohamed Osman
4
EXHIBIT
B
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT, IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
Plaintiffs,
vs.
Defendants,
_____________________________________/
1. I, Robert A. DiCrisci, hereby state that I am over 18 years of age. I have personal
knowledge of the facts sworn to in this Declaration, and such facts are true and correct.
3. Tri-Source is a limited liability company that was formed on March 11, 2016.
The Company develops, manufactures, and sells oncology pharmaceuticals for veterinary and
human use through its three wholly owned subsidiaries: (i) Amatheon Animal Health LLC
(“Amatheon LLC”); (ii) NextSource Biotechnology, LLC (“NextSource”); and (iii) Ivaoes
for Derivative and Direct Relief (the “Complaint”) are false and have been the source of
was I involved with my Executive Assistant when she started in her current position as alleged in
7. I have not “publically and flagrantly boasted to others about [my] various sexual
relationship with her as alleged in Paragraph 127 of the Complaint. All bonuses and salary
increases at the Company, including those to my Executive Assistant, were calculated pursuant
9. Further, I never “sent grossly inappropriate text messages to at least one female
employee containing explicit and salacious details” of sexual acts with my Executive Assistant
as alleged in Paragraph 126 of the Complaint. As I testified at the hearing, I have no knowledge
of the text messages that were allegedly sent to Yasmine Garcia and discussed at the hearing
10. After the hearing, I authorized the Company to hire a forensic IT specialist,
Robert Moody, to investigate the matter. I fully cooperated with his investigation and provided
access to all my electronic devices, computers, cell phones, and iCloud account. I was informed
that Mr. Moody’s examination revealed no evidence of the alleged text messages.
Page 2 of 3
11. Paragraph 128 of the Complaint falsely alleges that I have subjected another,
unidentified, female employee to “blatant inappropriate sexual advances and other harassment”
in the workplace. I have never engaged in such conduct and I have no knowledge of any such
employee.
12. I fully cooperated with the investigation completed by Mohammed Osman, when
Mr. Yankana made these false claims against me in 2015. It is my understanding that Mr.
Osman found that there was no wrongdoing and I fully supported the additional safeguards that
were implemented as a result of his investigation, including directing the Human Resources
Department to revise Tri-Source’s sexual harassment policy, enact sexual harassment training,
13. After this investigation was completed and these new measures were
implemented, neither Mr. Yankana nor Mr. Schaefer made any further allegations against me
regarding these sexual misconduct issues prior to their filing of the complaint against me.
Pursuant to § 92.525 of the Florida Statutes, under penalties of perjury, I declare that I
have read the foregoing Declaration and that the facts stated in it are true.
_______________________________
Robert A. DiCrisci
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But while DiCrisci's firm was raising drug prices for people with aggressive
brain tumors, a previously unreported lawsuit filed in Miami-Dade County
court claims the CEO was having a sexual relationship with one of his
assistants, awarding her a huge salary in exchange for "sexual favors,"
sending "grossly inappropriate text messages" to at least one other female
member of his staff bragging about his sexual exploits, and subjecting a
separate female employee to "blatant, inappropriate sexual advances and
other harassment." He was also accused of charging more than $15,000 in
strip-club bills on his company credit card.
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Over the last two years, DiCrisci's business partners also claim, DiCrisci
has been acting "erratically" and sometimes just vanishing.
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NextSource, which has offices based in Brickell, has become the object of
national scorn in recent days. Until the Journal report last month. the
company was a little-known pharmaceutical company selling a drug called
lomustine to people afflicted with glioblastomas, the most aggressive form
of brain cancer. Since then, political figures and activists, including
Vermont Sen. Bernie Sanders, have heaped criticism on the company.
But the lawsuit raises added questions about the company's business
practices. It begins by outlining DiCrisci's business partners' allegations
about his use of company money. According to the lawsuit, DiCrisci
charged $13,500 at a New York strip joint, another $2,000 at a Miami nude
bar, a $5,000 visit to a "longevity and anti-aging" clinic, $2,000 in Hugo
Boss clothing, expenses from trips to Barcelona, New York, Boston, and
other cities, and various other bills. After Yankana, one of the plaintiffs,
went out on medical leave, the suit alleges DiCrisci took control of the
company expense accounts and stopped letting Yankana — then the
company's chief financial officer — see the bills.
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In addition, the suit claims that around 2016, the various companies the
group owned stopped making payments to vendors; as of the lawsuit's
filing, the plaintiffs claim NextSource was either delinquent or had recently
been delinquent in payments to "numerous wholesalers" and other
suppliers. As of July 2017, the suit says, NextSource owed AmeriSource
Bergen, one of the world's largest pharmaceutical companies, $230,000. In
the meantime, the suit alleges, DiCrisci flew around the country looking for
potential "investors" to inject money into the company. The legal
documents allege a series of failed investment plans that never
materialized.
In June 2017, the suit says DiCrisci began negotiating with an investment
bank to sell off company stock. Shafer and Yankana said they weren't
pleased with the proposal — and, in the midst of the negotiations, DiCrisci
fired them both on July 11, 2017. The suit says their company cell phones,
health, and life insurance plans were immediately cut off — but both men
maintain they were fired in clear violation of company rules. (DeMaria
maintains the men were legitimately fired.)
When the two men asked to review the company books, they claim
DiCrisci went so far as to hire armed guards to patrol Tri-Source offices.
The executives claim DiCrisci told employees the guards were there for
employee "protection" and to prevent Shafer and Yankana "from entering
the building." DeMaria, DiCrisci's lawyer, confirmed one security guard was
hired during the dispute.
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The two men claim DiCrisci was employing a deceptive business practice
known as "channel stuffing" (getting customers to buy more than they
immediately need) in order to inflate sales figures. The plaintiffs claim
DiCrisci directed Amatheon, Tri-Source's vet-supply company, to buy
extra orders of lomustine from its sister company, NextSource, to make
NextSource look better. (DiCrisci denies this.)
But perhaps the most jarring allegation is that, while DiCrisci was selling
drugs to treat cancer-stricken people and animals, he was allegedly having
sex with his well-paid assistant and openly bragging about their exploits to
other staff members.
The suit says that, in return for her "sexual favors," her salary jumped from
$35,000 to more than $108,000 per year. The plaintiffs allege DiCrisci also
harassed a second female employee.
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DeMaria, DiCrisci's lawyer, called those allegations "totally false" and said
his legal team would be filing paperwork in court to refute the claims.
DeMaria says he hired an outside IT expert to investigate the source of the
alleged text-messages, and that the IT expert found nothing.
"I went out and hired a respected IT expert, gave them access to Mr
DiCrisci’s computers, and they found nothing," DeMaria says. "These are
false allegations, totally made up and false. They're just trying to settle the
case. We plan to offer a formal buyout at fair value."
In the meantime, the Wall Street Journal reports that cancer patients are
now struggling to afford lomustine. The drug is not widely prescribed, but
has reportedly seen a "renewed interest" from doctors after a recent series
of government-funded studies showed lomustine could help patients with
brain tumors live longer. According to the Journal, one family was told a
30-day supply of lomustine would cost $2,815. The family elected to switch
to a different drug.
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