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.
MOTION FOR REHEARING
considering Respondents' Motion for Rehearing, this Court
withdraws its previous opinion filed June 19, 2019, and
substitutes the following opinion in its place:
& PROCEDURAL BACKGROUND
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.
The first action initiated in Florida, Steinberg v. OPKO
Health, Inc. ("Federal Securities Action"),
was filed on September 14, 2018, in the Southern District of
Florida. This class action suit was brought on
behalf of a class of OPKO investors alleging that OPKO, Frost
and other officers made false or misleading statements and
failed to disclose alleged market manipulation at issue in
the SEC Action.
September 27, 2018, the first of the Florida derivative suits
was filed in the Circuit Court for the Eleventh Judicial
Circuit of Florida by Frank Lipsius, on behalf of OPKO,
seeking damages caused by a breach of fiduciary duties by
OPKO's directors. Service was not perfected until
November 9, 2018. Meanwhile, on November 2, 2018, Louis
Alexander filed an almost identical derivative complaint in
the Florida circuit court. The Florida derivative suits
allege the OPKO directors breached their fiduciary duties by
allegedly allowing there to be misstatements and
misrepresentations made in OPKO's SEC filings and failing
to disclose their involvement in the "pump and
multiple derivative suits were filed in Delaware court.
Tunick v. Frost ("Delaware Derivative
Action"), the first Delaware derivative suit,
filed on October 15, 2018, in the Delaware ...