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Filing # 66391154 E-Filed 01/10/2018 06:13:56 PM

IN THE CIRCUIT COURT OF THE 11TH


JUDICIAL CIRCUIT, IN AND FOR
MIAMI-DADE COUNTY, FLORIDA

COMPLEX BUSINESS LITIGATION

CASE NO: 2017-021621-CA-01

STEVEN R. SCHAFER, individually and


derivatively for the benefit of Tri-Source
Pharma, LLC, and CHRISTOPHER F.
YANKANA, individually and derivatively for
the benefit of Tri-Source Pharma, LLC,

Plaintiffs,

vs.

ROBERT A. DICRISCI, an individual, and


TRI-SOURCE PHARMA, LLC, derivative
Defendant,

Defendants.

_____________________________________/

DEFENDANT ROBERT A. DICRISCI’S MOTION TO DISMISS OR


STRIKE ALLEGATIONS OF SEXUAL HARASSMENT AND MISCONDUCT

Defendant Robert A. DiCrisci (“Mr. DiCrisci”), pursuant to Section 605.0802 of the

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.

Yankana (“Mr. Yankana”) (collectively, “Plaintiffs”), and states as follows:

Introduction

We live in times when accusations of an executive’s personal conduct are properly

explored by those who are the victims of misconduct. However, allegations of personal
CASE NO: 2017-021621-CA-01

misconduct can be used improperly to impose an in terrorem effect on an executive to exert

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.

Furthermore, while Plaintiffs were allowed by Florida’s absolute litigation privilege to

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)

Receiver Authority to Reinstate All Employees Summarily Terminated (the “Emergency

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

and the media. Defendants are investigating those denials.

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Statement of Supporting Facts

A. Allegations of Sexual Misconduct.

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 –

Misappropriation. Each of these counts incorporate the following allegations:

• At or around the same that DiCrisci promoted the Assistant to work for him,

DiCrisci and the Assistant became involved in an intimate relationship (Compl.,

¶42);

• Since at least October 2014, when DiCrisci unilaterally decided to relocate to a

downtown Miami office separate and apart from the business facilities, DiCrisci

has been engaged in an inappropriate sexual affair with his Assistant. … The

ongoing relationship between DiCrisci and the Assistant is well known to

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

rubbed…” (Compl., ¶126);

• In return for these Sexual Favors, DiCrisci unilaterally awarded sizeable salary

increases to his “Assistant,” plus bonuses of more than twenty percent (20%) of

her annual salary. These compensation increases are excessive, unjustified,

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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

awarded to DiCrisci’s Assistant have a negative impact on morale of the other

employees who work hard and perform actual, legitimate services for [Tri-

Source] and/or its subsidiaries (Compl., ¶127);

• Furthermore, it appears that at least one other female employee has been

subjected to blatant inappropriate sexual advances and other harassment by

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

lawsuits and damage awards for sexual harassment by an employer (Compl.,

¶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:

• Engaging in the sexual harassment of female employees of [Tri-Source] and/or its

subsidiaries, thereby subjecting the companies to possible lawsuits for sexual

harassment and violations of EEOC laws (Compl., ¶154(k));

• Engaging in an inappropriate sexual relationship with a subordinate female

employee and as a result, providing her with unjustified and excessive pay increases

and bonuses, thereby further wasting company assets (Compl., ¶154(l));

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CASE NO: 2017-021621-CA-01

• Engaging in an inappropriate sexual relationship with a subordinate female

employee and as a result thereby subjecting the companies to possible lawsuits for

sexual harassment and violations of EEOC laws (Compl., ¶154(m));

• Publishing inappropriate, prurient and sexually explicit references to employees

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:

• Engaging in acts of sexual harassment of female employees of [Tri-Source] and/or

its subsidiaries, thereby subjecting the companies to possible lawsuits for sexual

harassment and violations of EEOC laws, and prioritizing DiCrisci’s personal

sexual gratification and personal aggrandizement over [Tri-Source] and

subsidiaries, and subjecting the companies to potential legal exposure (Compl.,

¶161(k));

• Engaging in an inappropriate sexual relationship with a subordinate female

employee and as a result thereby subjecting the companies to possible lawsuits for

sexual harassment and violations of EEOC laws and prioritizing DiCrisci’s

personal sexual gratification and personal aggrandizement over [Tri-Source] and

subsidiaries, and subjecting the companies to potential legal exposure (Compl.,

¶161(l));

• Engaging in an inappropriate sexual relationship with a subordinate female

employee and as a result, providing her with unjustified and excessive pay increases

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CASE NO: 2017-021621-CA-01

and bonuses, thereby further wasting company assets and prioritizing DiCrisci’s

personal sexual gratification and personal aggrandizement over [Tri-Source] and

subsidiaries, and subjecting the companies to potential legal exposure (Compl.,

¶161(m));

• Publishing inappropriate, prurient, salacious, and sexually explicit references to

employees thereby subjecting the companies to possible lawsuits for sexual

harassment and violations of EEOC laws, breach of privacy, and/or libel and

slander, thereby further wasting company assets and prioritizing DiCrisci’s

personal sexual gratification and personal aggrandizement over [Tri-Source] and

subsidiaries, and subjecting the companies to potential legal exposure (Compl.,

¶161(n)).

Count III alleges that Mr. DiCrisci breached his duty of good faith and fair dealing by, among

other acts:

• Engaging in acts of sexual harassment of female employees of [Tri-Source] and/or

its subsidiaries, thereby subjecting the companies to possible lawsuits for sexual

harassment and violations of EEOC laws (Compl., ¶165(j));

• Engaging in an inappropriate sexual relationship with a subordinate female

employee and as a result, providing her with unjustified and excessive pay increases

and bonuses, thereby further wasting company assets (Compl., ¶165(k)).

Count IV alleges that Mr. DiCrisci recklessly created waste of corporate assets by, among other

acts:

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• Engaging in an inappropriate sexual relationship with a subordinate female

employee and as a result, providing her with unjustified and excessive pay increases

and bonuses, thereby further wasting company assets (Compl., ¶170(f)).

Count V alleges that Mr. DiCrisci misappropriated corporate assets by, among other acts:

• Engaging in an inappropriate sexual relationship with a subordinate female

employee and as a result, providing her with unjustified and excessive pay increases

and bonuses, thereby further wasting company assets (Compl., ¶175(d)).

B. Allegations of Demand Futility.

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

“because [Tri-Source] is a manager-managed limited liability company, and Plaintiffs already

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

futile.” Compl., ¶¶156, 163, 167, 172, 177, 183.

C. Plaintiff Yankana’s 2015 Allegation of Sexual Misconduct.

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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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

ultimately found no basis to support the allegations. Id. at ¶11.

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,

therefore, barred under Florida’s LLC Act.

D. Immaterial, Impertinent, and Scandalous Nature of the Denied Allegations.

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

denied the allegations to this Court.

Subsequent to the hearing, Tri-Source retained Robert D. Moody (“Mr. Moody”), an

independent forensic IT expert, to investigate the allegations raised at the hearing that Mr. DiCrisci

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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

I. THE ALLEGATIONS OF MR. DICRISCI’S SEXUAL MISCONDUCT SHOULD


BE DISMISSED FOR FAILURE TO PLEAD DEMAND REFUSAL.

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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DiCrisci’s alleged misconduct. By making a pre-suit demand, Plaintiff conceded, as a matter of

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.

A. Legal Standards for Satisfying the Demand Requirement set forth in


§ 605.0802, Fla. Stat.

In Florida, a condition precedent to maintaining a derivative action is that a member must

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:

A member may maintain a derivative action to enforce a right of a limited liability


company if:

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(1) The member first makes a demand on … the managers of a manager-


managed limited liability company requesting that the managers … cause
the company to take suitable action to enforce the right, and the managers
… do not take the action within a reasonable time, not to exceed 90 days;
or

(2) A demand under subsection (1) would be futile, or irreparable injury


would result to the company by waiting for … the managers to take action
to enforce the right in accordance with subsection (1).

§ 605.0802, Fla. Stat.

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.”

As this Court has explained, “a board's decision to refuse a plaintiff's demand is


afforded the protection of the business judgment rule unless the plaintiff alleges
particularized facts that raise a reasonable doubt as to whether the board's decision
to refuse the demand was the product of valid business judgment.” In assessing
whether the decision to refuse demand was the product of a valid business judgment
“the only issues to be examined are the good faith and reasonableness of its
investigation.”

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

the action [demand] arose.’” Id. at 1219-20 (internal citations omitted).

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

Court of Appeal in James Talcott, Inc. v. McDowell:

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.

B. Plaintiffs Failed to Plead Demand Refusal as Required to Maintain a


Derivative Action.

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.

II. THE ALLEGATIONS OF MR. DICRISCI’S SEXUAL MISCONDUCT SHOULD


BE STRICKEN AS IMMATERIAL, IMPERTINENT, AND SCANDALOUS
PURSUANT TO RULE 1.140(f) OF THE FLORIDA RULES OF CIVIL
PROCEDURE.

In light of Plaintiffs’ failure to satisfy the demand requirement necessary to bring a

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

past month in this case.

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

as immaterial, impertinent, and scandalous pursuant to Rule 1.140(f).

A. Legal Standards for Motion to Strike Immaterial, Impertinent, or


Scandalous Matter Pursuant to Rule 1.140(f) of the Florida Rules of Civil
Procedure.

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

on someone, usually a party to the action.”).

B. The Allegations Regarding Mr. DiCrisci’s Sexual


Misconduct are Immaterial, Impertinent, and Scandalous.

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’

ability to finalize a settlement of this case.

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).

Certification of Efforts to Meet and Confer

WE HEREBY CERTIFY, pursuant to CBL Rule 4.3, as follows:

17
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

these allegations to customers of Tri-Source and the media.

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,

FOX ROTHSCHILD LLP


Attorneys for Defendant Robert A. DiCrisci
One Biscayne Tower, Suite 2750
2 South Biscayne Blvd.
Miami, Florida 33131
Telephone: 305.442.6547

By: s/Joseph A. DeMaria


Joseph A. DeMaria
Board Certified Specialist – Business Litigation
Florida Bar No: 764711
Email: JDeMaria@FoxRothschild.com

Susanne M. Calabrese
Florida Bar No. 89512
Email: SCalabrese@FoxRothschild.com
Sec. Email: MMiller-Hayle@FoxRothschild.com

18
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

10 day of January, 2018, to: GEOFFREY S. AARONSON and TAMARA D. McKEOWN,

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

and to co-counsel, LAURENCE S. LITOW, ESQ. and FRANCESCO A. ZINCONE, ESQ.,

(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

COMPLEX BUSINESS LITIGATION

CASE NO: 2017-021621-CA-01

STEVEN R. SCHAFER, individually and


derivatively for the benefit of Tri-Source
Pharma, LLC, and CHRISTOPHER F.
YANKANA, individually and derivatively for
the benefit of Tri-Source Pharma, LLC,

Plaintiffs,

vs.

ROBERT A. DICRISCI, an individual, and


TRI-SOURCE PHARMA, LLC, derivative
Defendants,

Defendants,
_____________________________________/

DECLARATION OF MOHAMED OSMAN IN SUPPORT OF


DEFENDANT ROBERT A. DICRISCI’S MOTION TO DISMISS
OR STRIKE ALLEGATIONS OF SEXUAL MISCONDUCT

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.

2. I am President, Chief Operating Officer, and a manager of Tri-Source Pharma,

LLC (“Tri-Source”).

3. Robert A. DiCrisci is the Chairman of the Board of Managers and Chief

Executive Officer of Tri-Source.

4. In early 2015, Christopher F. Yankana was the Chief Financial Officer of

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

Chief Executive Officer of Nextsource Biotechnology, LLC.

6. In response, I informed Mr. Yankana that I would investigate the matter.

7. I thereafter investigated the allegation made by Mr. Yankana against Mr.

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

became employed at Nextsource.

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

allegations were being used for leverage against Mr. DisCrisci.

10. Nevertheless, I monitored and observed Mr. DiCrisci and his Executive Assistant,

and I did not observe any inappropriate behavior by Mr. DiCrisci.

11. I determined that the allegations against Mr. DiCrisci were unsupported. I

informed Mr. Yankana of the results of my investigation and he had no complaint.

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,

and enforcing an open-door policy.

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

of Managers regarding allegations of sexual impropriety against Mr. DiCrisci. Further, to my

knowledge, no complaints have been made to the HR Department.

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

Assistant, were approved by the Board of Managers.

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

accordance with Tri-Source’s operating agreement.

16. The allegations of Mr. DiCrisci’s sexual misconduct set forth in the Complaint

have caused damage to Tri-Source and its business.

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

recipients to read the allegations of sexual misconduct.

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.

DiCrisci’s Motion to Dismiss or Strike Allegations of Sexual Misconduct.

19. Publications, such as the New Times newspaper article, seriously damage both

Mr. DiCrisci and Tri-Source.

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

Executed on this 10 day of January 2018 in Miami, Florida.

4
EXHIBIT
B
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT, IN AND FOR
MIAMI-DADE COUNTY, FLORIDA

COMPLEX BUSINESS LITIGATION

CASE NO: 2017-021621-CA-01

STEVEN R. SCHAFER, individually and


derivatively for the benefit of Tri-Source
Pharma, LLC, and CHRISTOPHER F.
YANKANA, individually and derivatively for
the benefit of Tri-Source Pharma, LLC,

Plaintiffs,

vs.

ROBERT A. DICRISCI, an individual, and


TRI-SOURCE PHARMA, LLC, derivative
Defendants,

Defendants,
_____________________________________/

DECLARATION OF ROBERT A. DICRISCI IN SUPPORT OF MOTION TO DISMISS


OR STRIKE ALLEGATIONS OF SEXUAL MISCONDUCT

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.

2. I am Chairman of the Board of Managers, Chief Executive Officer, and Member

of Defendant, Tri-Source Pharma, LLC (“Tri-Source” or the “Company”).

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

Animal Health, LLC (“Ivaoes”).


4. This Declaration summarizes the testimony that I previously provided to this

Court on September 28, 2017.

5. The allegations contained in Paragraphs 126-128 of Plaintiff’s Verified Complaint

for Derivative and Direct Relief (the “Complaint”) are false and have been the source of

extremely damaging publicity for Tri-Source and myself.

6. I am not involved in an “ongoing relationship” with my Executive Assistant, nor

was I involved with my Executive Assistant when she started in her current position as alleged in

Paragraph 126 of the Complaint.

7. I have not “publically and flagrantly boasted to others about [my] various sexual

exploits with [my] Assistant,” as alleged in Paragraph 126 of the Complaint.

8. I did not unilaterally award “sizeable”, “excessive”, “unjustified”, or

“inappropriate” salary increases or bonuses to my Executive Assistant based on a 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

to a formula and were approved by the Board of Managers.

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,

and enforce an open-door policy.

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

Executed on this 10 day of January, 2018 in Miami, Florida.

Page 3 of 3
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EXHIBIT
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NextSource CEO Robert DiCrisci


Accused of Sex Harassment,
Spending Money on Strippers and
Suits
JERRY IANNELLI | JANUARY 4, 2018 | 8:07AM

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Robert DiCrisci, CEO of the Miami-based pharmaceutical startup


NextSource Biotechnology, was roundly criticized all over the world last
week after the Wall Street Journal reported that NextSource had bought a
40-year-old brain-cancer drug and raised its maximum price to $768 per
pill.

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.

The 191-page September lawsuit, filed by two executives who worked


alongside DiCrisci managing NextSource's parent company, Tri-Source
Pharma, lays out a laundry list of other acts of mismanagement DiCrisci
allegedly committed. Among them: engaging in a botched fax-advertising
campaign that led to a class-action lawsuit and a $1 million settlement
payout, hiding company books from other executives (and using armed
guards to allegedly keep people away from company financial records),
inflating sales numbers, abusing company credit cards, and "potential
investor fraud."

The plaintiffs, DiCrisci's business partners Steven R. Schafer and


Christopher Yankana, are suing DiCrisci for breach of fiduciary duty,
mismanagement, corporate waste, and fraud. The three men founded Tri-
Source Pharma (TSP), a parent company that controls a veterinary
medicine distributor in Doral called Amatheon, a vet-drug manufacturer
called Ivaoes, and NextSource, which makes drugs for human beings. The
lawsuit initially asked a judge to expel DiCrisci from the company.

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Over the last two years, DiCrisci's business partners also claim, DiCrisci
has been acting "erratically" and sometimes just vanishing.

"For example, he often fails to timely appear for appointments and


sometimes fails to appear at all," the suit alleges. "Often, when he has not
appeared for appointments, no one is aware of his whereabouts."

Reached via phone, DiCrisci's


lawyer, Joseph DeMaria,
characterized the lawsuit as part of
a longstanding, complicated
dispute between business owners.
He said the executives are suing
DiCrisci to gain revenge after a
series of business transactions went
sour. He stressed that the claims in
the lawsuit have no merit and said
many accusations, including the
Robert DiCrisci Twitter claim that DiCrisci bragged about
his sexual exploits, are wholly false.
In fact, DeMaria says, he hired his own private forensics investigator to
probe the sexual-harassment claims in the lawsuit. The lawyer contends
the investigator turned up nothing.

"These are spurious, false allegations," DeMaria says, "these allegations


about a secretary, and that he sent inappropriate text messages."

DeMaria also denied that DiCrisci committed any sort of corporate


mismanagement or any other sexual impropriety, became an absentee
CEO, or wasted any money at NextSource. He instead said the business
partners filed an inflammatory lawsuit after they were fired in order to gain
leverage on DiCrisci while angling for a buyout.

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"To put it nicely, this is a 'negotiating tactic' during a 'corporate divorce,'"


DeMaria said. He added that DiCrisci has "every intention" of buying out
his former partners.

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.

NextSource's decision to raise lomustine prices has again ignited a national


conversation about the regulation of privatized medical and
pharmaceutical companies in America.

[ Please read web version for embedded content ]

In response to public acrimony, NextSouce has published a statement on


its website explaining why it chose to hike lomustine prices after buying
the drug five years ago. The firm says the price raises are related to regular
production, regulatory and manufacturing costs, and that, even with the
price-raises, lomustine remains the cheapest option for patients with
glioblastomas. DeMaria also disputes some of the Journal's mathematics.

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.

"None of DiCrisi's trips have resulted in a benefit to TSP or its subsidiaries,"


the suit claims.

[ Please read web version for embedded content ]

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.)

The allegations continue: In 2014, the company started sending out


unsolicited ads via fax to various vet clinics. But the suit says that the
unsolicited fax campaign violated portions of the Telephone Consumer
Protection Act, and, after the company sent out thousands of unsolicited
fax ads, a Wisconsin animal clinic filed a class-action lawsuit against
Amatheon. The case settled in May 2017 — and Amatheon paid out a $1
million settlement. The suit says the company's insurance covered less
than half the cost.

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 ongoing relationship between DiCrisci and the assistant is well-


known to company personnel and is the subject of much discussion," the
suit reads. "In fact, DiCrisci has publicly 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 rubbed...'"

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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