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Notice of Related Cases in Nevada Federal Courts and Oppositions Thereto

Posted by: on Mon, Mar 30, 2015

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The Nevada Federal Courts in 2011 adopted a new rule relating to the notification to the court of related cases. Under LR 7-2.1, a case is “related” if (a) both actions involve the same
parties and are based on the same or similar claims; (b) both actions involve
the same property, transaction, or event; (c) both actions involve similar
questions of fact and the same question of law such that their assignment to
the same judge would result in judicial efficiency; or (d) if the cases would
“entail substantial duplication of labor” if the cases were heard by different
judges.

Counsel who believes that an action may be related to another action is
now required to file a “Notice of Related Cases” with the court. The notice
must set forth the title and number of each possibly related case, together
with a brief statement of why they are related. No specific deadline is set
forth with respect to any opposition or response to the notice.  Hence counsel should file any oppositions uickly before the assigned judge rules, explaining why he won’t be duplicating
the time and labor invested by a prior judge in the cases purported to be related.

A Sample Opposition to Notice of Related Cases would be as follows:

G. Mark Albright

Nevada Bar No. 1394

Albright, Stoddard, Warnick and Albright

801 S Rancho Dr D4

Las Vegas, NV 89106

(702) 384-7111

Email:
gma@albrightstoddard.com

Attorneys
for Plaintiff

See Signature Page for Additional Counsel

UNITED
STATES DISTRICT COURT

FOR THE
DISTRICT OF NEVADA

W. A. SOKOLOWSKI,           

                                    Plaintiff,

                                    v.

 

STEPHEN A. WYNN; et al

            Civil
No.

2:15-cv-536 (RFB) (NJK)

 

PLAINTIFF’S OPPOSITION TO NOTICE OF RELATED CASES

 

Plaintiff, by his
undersigned counsel, hereby files this opposition to Defendants’ Notice of
Related Cases filed March 26, 2015(“Notice”) (Document #5).

BOTH “RELATED”
CASES HAVE BEEN TERMINATED MORE THAN ONE YEAR AND ONLY TANGENTIALLY “RELATED”
TO THIS CASE

 

For reasons that
are suspect and may simply be intra-District forum-shopping, Defendants seek to
have this case re-assigned as related to two, now-terminated actions that had
been pending before the Hon. James C. Mahan. The two actions, referred to by Defendants
as the LMPERS and Okada Actions, have been terminated, the former by more than
a year and the latter by more than two years.

In LMPERS, a
shareholder derivative suit against the then-members of the Board of Directors
of Wynn Resorts, Ltd. (“Wynn” or the “Company”), there were absolutely no
proceedings on the merits before Judge Mahan dismissed the action due to the
Plaintiffs’ failure to make a pre-suit demand upon Wynn’s Board as required by
Rule 23.1, Fed. R. Civ. P. or provide sufficient justification for their
failure to do so.  The Okada Action was
dismissed more than two years ago, less than six weeks after it was commenced.
Plaintiff therein, a former director of the Company, filed a motion for a
preliminary injunction which was quickly denied by Judge Mahan at a hearing
lasting

1 hour and 10 minutes on February
15, 2013, despite Defendants’ representation that “Judge Mahan heard extensive oral argument” [emphasis
added]. On March 4, 2013, Plaintiff Okada voluntarily dismissed his action.

As discussed
below, although both of these cases have tangential factual relationships to
this litigation, neither is sufficiently “related” to come within the letter
and spirit of Local Rule 7-2.1.

THE CASES ARE NOT
“RELATED” AS CONTEMPLATED

BY THE RULE

 

While it must be
acknowledged that there are some factual allegations and parties in common
among the three cases, they certainly are not related as contemplated by the
Rule. Indeed, the purpose of the Rule is to avoid having a new judge assigned
to a “related” case having to re-learn what the previous judge had already
learned. Here, there is virtually nothing in the Notice filed by Defendants
that demonstrates that Judge Mahan had any significant accumulated knowledge
that would assist him in presiding over the newly-commenced case which is based
on Defendants’ violations of law that took place within the past two weeks;
i.e. the Proxy Statement having been issued and disseminated to Plaintiff and
other Wynn shareholders on March 14, 2015 in connection with the Company’s
annual meeting of shareholders to be held April 24, 2015 (the “Proxy
Statement”).

Although the
Complaint cites historical wrongdoing committed by the Defendants in connection
with possible violations of the Foreign Corrupt Practices Act (“FCPA”) and in
connection with the acknowledged “pact with the devil” Wynn’s Board made with
Mr. Okada before determining that he was “unsuitable” as a director, these are
simply historical references.[1]
Unlike in LMPERS, these issues are referred to in the Complaint in this action
solely in the context of setting forth material facts omitted from Wynn’s
current Proxy Statement issued and disseminated by the Defendants in the
Company’s name on March 14, 2015 in the Proxy Statement.[2]

While the
Complaint certainly refers to the FCPA and Okada issues in a historical
context, the Plaintiff’s entire focus is the newly-issued Proxy Statement,
where he claims other current or historical material facts that were also
omitted therefrom. These omitted material facts include disclosure of an
ongoing money-laundering scandal (including violations of the federal Bank
Secrecy Act) and attendant, ongoing FBI, DEA and SEC investigations which
Plaintiff alleges are being not only “covered-up” by Defendants but
specifically omitted from disclosure in the Proxy Statement.

There are
additional issues raised by Plaintiff that were not raised in either the Okada
or LMPERS Actions: an ongoing proxy fight that resulted from the efforts of  members of the Board to replace Elaine P. Wynn
as a director of the Company (about whom the Proxy Statement omits material
facts and misrepresents others), the ratification of the Audit Committee’s
selection of the Company’s long-time auditor, Ernst & Young, LLP and a
shareholder proposal seeking greater transparency with regard to Wynn’s direct
and indirect political contributions. Collectively, these three issues,
together with the money-laundering, Okada and FCPA issues, are raised by
Plaintiff in his Complaint not for their historical existence or to seek
recourse for such wrongdoing but, rather, as concrete examples of the
Defendants’ violations of the disclosure requirements of §14(a) of the
Securities Exchange Act and Rule 14a-9 promulgated thereunder by the SEC by their
omission of material facts from the Proxy Statement.

CONCLUSION

While there can be
no doubt that there are some historical facts alleged in the current Complaint
that overlap with those in the now-terminated LMPERS and Okada cases where
Judge Mahan had no merits involvement in the former and minimal in the latter,
the entire focus of this case is whether the recently-issued Proxy Statement
complies with federal disclosure law and rules and what action should be taken
by the Court if it concludes that it does not.

Accordingly,
Plaintiff respectfully asks that his case not be re-assigned.

 

                                                ALBRIGHT,
STODDARD, WARNICK

AND ALBRIGHT

 

                                                                                                                                   

G. Mark Albright

Nevada Bar No. 1394____

801 S Rancho Dr D4,

Las Vegas, NV 89106

(702) 384-7111

Email:  gma@albrightstoddard.com

 

GREENFIELD
& GOODMAN, LLC

Richard
D. Greenfield

250
Hudson Street, 8th Floor

New
York, NY  10013

(917) 495-4446

whitehatrdg@earthlink.net

 

 

Counsel for
Plaintiff

 

 

 


[1] While
there may well be recourse to the Company for the Board’s misconduct, as
alleged in the LMPERS Action, that is not such a case, where there are no
derivative claims pending that have been brought on Wynn’s behalf.

[2]
Inexplicably, although, as alleged in the Complaint, the Proxy Statement was
issued and disseminated by Defendants in the name of the Company, a passive
actor, they seem to complain that Wynn is not a named defendant.

 

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on personal injury accidents. Call us at 702-384-7111.

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