This letter requests a pre-motion conference for an anticipated motion to dismiss the class action complaint. It summarizes that the defendant Omar Khan intends to argue that (1) plaintiffs failed to provide required notice to the class, (2) the complaint does not allege any actionable misstatements or omissions by Khan, and (3) the complaint fails to adequately plead scienter against Khan. The letter was written by attorneys at DLA Piper on behalf of their client Omar Khan to United States District Court Judge Naomi Reice Buchwald.
This letter requests a pre-motion conference for an anticipated motion to dismiss the class action complaint. It summarizes that the defendant Omar Khan intends to argue that (1) plaintiffs failed to provide required notice to the class, (2) the complaint does not allege any actionable misstatements or omissions by Khan, and (3) the complaint fails to adequately plead scienter against Khan. The letter was written by attorneys at DLA Piper on behalf of their client Omar Khan to United States District Court Judge Naomi Reice Buchwald.
This letter requests a pre-motion conference for an anticipated motion to dismiss the class action complaint. It summarizes that the defendant Omar Khan intends to argue that (1) plaintiffs failed to provide required notice to the class, (2) the complaint does not allege any actionable misstatements or omissions by Khan, and (3) the complaint fails to adequately plead scienter against Khan. The letter was written by attorneys at DLA Piper on behalf of their client Omar Khan to United States District Court Judge Naomi Reice Buchwald.
New York, New York 10020-1104 www.dlapiper.com John Vukelj [email protected] T 212.335.4502 F 212.884.8702
January 20, 2016
VIA ECF Hon. Naomi Reice Buchwald United States District Court for the Southern District of New York 500 Pearl Street New York, New York 10007-1312 Re:
In re Finocchiaro, et al. v. NQ Mobile, Inc., et al.,
Case No. 1:15 Civ. 6385 (NRB)
Dear Judge Buchwald:
We represent Defendant Omar Khan in the above-referenced action. In accordance with Section 2.B of Your Honors Individual Practices, we write to request a pre-motion conference in connection with Mr. Khans anticipated motion to dismiss the Second Amended Class Action Complaint (the Complaint) pursuant to Federal Rules of Civil Procedure 8(a), 9(b), and 12(b)(6) and the Private Securities Litigation Reform Act (PSLRA), 15 U.S.C. 78u-4. Mr. Khan joins in the January 19, 2016, request letter filed by counsel for Defendants NQ Mobile, Inc. (NQ or the Company) and Matthew Mathison, and adopts the arguments set forth therein. As summarized in that letter, Mr. Khans bases for moving to dismiss the Complaint include: (1) Plaintiffs have failed to publish notice advising members of the purported plaintiff class of the pendency of the action, the claims asserted therein, and the purported class period, as required pursuant to 15 U.S.C. 78u-4(a)(3)(A)(i). (2) The Complaint fails to allege any actionable misstatement or omission by Mr. Khan, who formerly served as NQs co-Chief Executive Officer. Tellingly, the Complaint contains just three allegations that even mention Mr. Khan. The first alleges that between July 31, 2014 and November 1, 2014, Messrs. Khan and Mathison were both telling investors the Company was worth much more than $9.80 per share, and the Company would not accept [a] buyout offer that had been made. The Complaint is devoid of any detail on these supposed representations (i.e., who they were made to, when, and how), and it contains no explanation for why they were material or false. The Complaints second reference to Mr. Khan simply identifies him as a former NQ executive. The final reference notes that he resigned from NQ.
Hon. Naomi Reice Buchwald
January 20, 2016 Page 2 These sparse allegations present no actionable misstatements or omissions by Mr. Khan, and they lack the particularity required by Rules 9(b) and 8(a). (3) The Complaint fails to plead scienter by Mr. Khan. Indeed, Plaintiffs present no allegations whatsoever regarding Mr. Khans knowledge or state of mind. This deficiency is fatal to Plaintiffs claims. Accordingly, Mr. Khan respectfully requests a pre-motion conference and permission to proceed with filing a motion to dismiss the Complaint with prejudice. Respectfully, DLA Piper LLP (US)
Caryn G. Schechtman John Vukelj Attorneys for Omar Sharif Khan cc: All counsel of record (via ECF)
Remington Rand Corporation-Delaware v. Business Systems, Incorporated, Global Business Corporation, Frank Capadano & Art Barber, Remington Rand, B v. & Xerox. Appeal of J.A.M. Banning, 830 F.2d 1256, 3rd Cir. (1987)
The Bank of Canton, Ltd. v. Republic National Bank of New York, Defendant-Third Party v. Sharp International Corp., Third Party, 636 F.2d 30, 2d Cir. (1980)
Neville Rangolan and Shirley Rangolan, Plaintiffs-Appellees-Cross-Appellants v. The County of Nassau and Nassau County Sheriff's Department, Defendants-Appellants-Cross-Appellees, 370 F.3d 239, 2d Cir. (2004)