final until disposition of timely filed motion for rehearing.
of Certiorari to the Circuit Court for Miami-Dade County
Lower Tribunal Nos. 18-32843 and 18-37190.
Akerman LLP, and Gerald B. Cope, Jr.; King & Spalding
LLP, and Rebeca M. Ojeda (Atlanta, GA), for petitioners.
Hernandez Lee Martinez, LLC, and Eric A. Hernandez and
Jermaine A. Lee; The Weiser Law Firm, P.C., and James M.
Ficaro and Brett D. Stecker (Berwyn, PA); RM Law PC, and
Richard A. Maniskas (Berwyn, PA), for respondents.
SALTER, MILLER, and GORDO, JJ.
Health, Inc. ("OPKO"), petitions this Court for
certiorari review of the trial court's order denying
their motion to stay proceedings in Lipsius v.
Frost, and Alexander v. Frost. The undisputed
facts are set out as follows by the lower court in its Order
on Defendants' Motion to Dismiss, and/or Stay the
On September 7, 2018, the U.S. Securities and Exchange
Commission ("SEC") filed a complaint against OPKO,
the Company's Chief Executive Officer ("CEO")
and Chairman of the Board of Directors (the
"Board"), defendant Frost, and a myriad of others,
alleging that these defendants participated in an elaborate
"pump and dump" insider stock selling scheme,
netting Frost and his co-conspirators millions of dollars
(the "SEC Action"). The SEC Action alleged that
Frost and his associates executed a scheme whereby they used
Frost's reputation as a successful healthcare investor in
order to artificially inflate the stock prices of companies
in which they had invested, and then liquidated their own
positions in those stocks. After the filing of the SEC
Action, OPKO's stock price tumbled by nearly 30% and
trading in OPKO stock was temporarily halted.
On December 27, 2018, the Company announced the settlement of
the SEC Action. In connection with the settlement, the
Company announced that it had "agreed to an injunction
from certain violations of the Securities Exchange Act of
1934 (the "Exchange Act"); a $100, 000 penalty; and
will perform certain undertakings related to the Exchange
Act." Defendant Frost, meanwhile, agreed "to
injunctions from certain violations of the Securities Act of
1933 and the Exchange Act; approximately $5.5 million in
penalty, disgorgement, and prejudgment interest; and a
prohibition, with certain exceptions, from trading in penny
the SEC Action, multiple federal securities class actions and
derivative actions were filed in federal and state courts. On
September 14, 2018, Steinberg v. OPKO Health, Inc.
("Federal Securities Action"), was initiated on
behalf of a class of OPKO investors in the Southern District
of Florida. The Federal Securities Action claimed defendants
made misleading statements of material fact by failing to
disclose the alleged market manipulation at issue in the SEC
Action. On September 27, 2018, Frank Lipsius, on behalf of
OPKO, filed a derivative action in the Circuit Court for the
Eleventh Judicial Circuit of Florida seeking damages caused
by a breach of fiduciary duties. On October 15, 2018,
Tunick v. Frost ("Delaware Derivative
Action"),  was filed in the Delaware Supreme Court.
On November 2, 2018, Louis Alexander filed a derivative
complaint in the Florida circuit court which was virtually
identical to Lipsius.
filed a motion to stay the two Florida derivative suits
pending the resolution of the Federal Securities Action and
the Delaware Derivative Action involving substantially
similar parties and issues. The lower court denied the
motion. These petitions followed.
review is warranted when the petitioning parties demonstrate
the contested order constitutes "(1) a departure from
the essential requirements of the law, (2) resulting in
material injury for the remainder of the case[, ] (3) that
cannot be corrected on postjudgment appeal." Bd. of
Trs. of Internal Improvement Trust Fund v. Am. Educ. Enters.,
LLC, 99 So.3d 450, 454 ...