Opinion
2:18-cv-02284-GMN-NJK
11-18-2022
DAVID FRANCIS, derivatively on behalf of CV SCIENCES, Inc. formerly known as, CANNAVEST CORP., Plaintiff, v. MICHAEL MONA JR., MICHAEL MONA III, JOSEPH D. DOWLING, BART P. MACKAY, LARRY RASKIN, JAMES MCNULTY, GARY SLIGAR, STEPHEN M. SCHMITZ and EDWARD A. WILSON, Defendants, and CV SCIENCES, INC., formerly known as, CANNAVEST CORP., Nominal Defendant.
LEVERTY & ASSOCIATES LAW CHTD. Patrick R. Leverty (Nev. Bar 8840) Reno Gould House THE BROWN LAW FIRM, P.C. Timothy Brown (Pro Hac Vice) Attorneys for Plaintiff DAVID FRANCIS PROCOPIO, CORY, HARGREAVES & SAVITCH, LLP Jeffery A. Garofalo (NV Bar No. 7345) S.Todd Neal (Pro Hac Vice) Eric A. Plourde (Pro Hac Vice) Attorneys for Defendants CV SCIENCES, INC., MICHAEL MONA JR., MICHAEL MONA III, JOSEPH D. DOWLING, JAMES MCNULTY, GARY SLIGAR, STEPHEN M. SCHMITZ, EDWARD A WILSON, BART P MACKAY, and LARRY RASKIN
LEVERTY & ASSOCIATES LAW CHTD.
Patrick R. Leverty (Nev. Bar 8840)
Reno Gould House
THE BROWN LAW FIRM, P.C.
Timothy Brown (Pro Hac Vice)
Attorneys for Plaintiff DAVID FRANCIS
PROCOPIO, CORY,
HARGREAVES & SAVITCH, LLP
Jeffery A. Garofalo (NV Bar No. 7345)
S.Todd Neal (Pro Hac Vice)
Eric A. Plourde (Pro Hac Vice)
Attorneys for Defendants CV SCIENCES, INC., MICHAEL MONA JR., MICHAEL MONA III, JOSEPH D. DOWLING, JAMES MCNULTY, GARY SLIGAR, STEPHEN M. SCHMITZ, EDWARD A WILSON, BART P MACKAY, and LARRY RASKIN
STIPULATION OF DISMISSAL WITH PREJUDICE
GLORIA M. NAVARRO, DISTRICT JUDGE, UNITED STATES DISTRICT COURT.
Plaintiff David Francis (“Plaintiff”) and Defendants CV Sciences, Inc. formerly known as CannaVEST Corp. (“CV Sciences” or the “Company”), Michael Mona, Jr., Michael Mona, III, Joseph D. Dowling, Bart P. Mackay, Larry Raskin, James McNulty, Gary Sligar, Stephen M. Schmitz, and Edward A. Wilson (collectively, “Defendants”) hereby jointly submit this Stipulation of Dismissal with Prejudice as follows:
WHEREAS, on or about August 24, 2018, a class action lawsuit was filed in the United States District Court for the District of Nevada against the Company, Dowling, Mona, Jr., and Mona, III, concerning alleged wrongdoing related to the Company's pursuit of a patent application with the United States Patent and Trademark Office (“USPTO”) for its product CVSI-007, styled as In re CV Sciences, Inc. Securities Litigation, No. 2:18-cv-01602-JAD-BNW (the “Securities Class Action”);
WHEREAS, on October 10, 2018, plaintiff Girard Depoti initiated a shareholder derivative action Depoti v. Dowling et al., Case No. A-18-782513-C in Clark County District Court in the State of Nevada (the “Depoti” Action”) concerning the same or substantially similar facts to those in the Securities Class Action;
WHEREAS, five additional shareholder derivative actions were filed after the Depoti Action concerning the same or similar facts in state and federal courts in Nevada and California, specifically: (1) Radcliffe v. Dowling, et al., Case No. A-19-794377-B (Nev. Dist. Ct.-Clark Cty.) (the “Radcliffe Action”); (2) Tarangelo v. Mona, Jr., et al., Case No. A-19-789153-B (Nev. Dist. Ct.-Clark Cty.) (the “Tarangelo Action”); (3) Francis v. Mona, Jr., et al., Case No. 2:18-cv-02284-GMN-NJK (D. Nev.) (the “Francis Action”); (4) Berry v. Dowling, et al., Case No. 3:20-CV-01072-AJB-DEB (S.D. Cal.); (the “Berry Action”); and (5) Menna v. Dowling, et al., Case No. 37-2021-00019613-CU-SL-CTL (San Diego Sup. Ct.) (the “Menna Action”) (collectively with the Depoti Action the “Derivative Actions”);
WHEREAS, the parties reached a settlement of the Securities Class Action in late 2021, and such settlement was submitted to the District of Nevada and finally approved by Judge Jennifer A. Dorsey on July 22, 2022;
WHEREAS, the parties in the Derivative Actions recently reached a global agreement for the settlement of all six of the Derivative Actions, and on July 28, 2022, executed a Stipulation and Agreement of Settlement (the “Settlement Agreement”);
WHEREAS, the Settlement Agreement constitutes the agreement of all parties in the six Derivative Actions to finally settle each of the six Derivative Actions, subject to any and all necessary court approval, and was executed in good faith by all parties following extensive negotiations;
WHEREAS, the parties in the six Derivative Actions, by executing the Settlement Agreement, consented to submission of the Settlement Agreement to the Depoti court;
WHEREAS, the Depoti court was the appropriate court to consider the Settlement Agreement because the Depoti Action was the first-filed of the six Derivative Actions, the Derivative Actions concern the same or substantially similar facts, and all parties in the six Derivative Actions stipulated to submission of the Settlement Agreement to the Depoti court;
WHEREAS, the Settlement Agreement states that “[w]ithin five (5) business days of the entry of the Final Order & Judgment by the [Depoti] Court, Plaintiffs will submit notices of voluntary dismissal in each of the other Derivative Actions;”
WHEREAS, the parties contemplated that if the court in the Depoti Action finally approved the Settlement, Plaintiff in this action (and plaintiffs in each of the other Derivative Actions) would then seek court approval and permission to voluntarily dismiss this action (and each of the other Derivative Actions) as contemplated by the terms of the Settlement Agreement;
WHEREAS, on November 15, 2022, the Depoti court, after ordering notice be provided to the Company's shareholders and notice being provided in accordance therewith, and having received no objections from any shareholder, entered its Order and Final Judgment approving the settlement of the Depoti Action, a true copy of which is attached hereto as Exhibit A, dismissing with prejudice all claims arising out of the same facts and circumstances alleged in this action;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by Plaintiff and Defendants, through their undersigned counsel of record and subject to the approval of the Court, as follows:
1. In light of the Settlement and Order and Final Judgement in the Depoti Action, and pursuant to the terms of the Settlement Agreement, Plaintiff hereby dismisses this action, with prejudice, with each side to bear its own costs.
IT IS SO STIPULATED.
Dated this 17th day of November, 2022.
ORDER
PURSUANT TO THE PARTIES' STIPULATION, IT IS HEREBY ORDERED THAT:
1. Pursuant to the terms of the Settlement Agreement, Plaintiff hereby dismisses this action, with prejudice, with each side to bear its own costs.
IT IS SO ORDERED. The Clerk of Court shall close the case.