BROWN, M. J. UNDp 15, 14sc-nobt, Edge of Woods Road U S DISTRICT COURT EDNY RO. Box 323 FILED IN CLERK JAN 1 U against

Transcription

1 -Case 2:14-cv JS-GRB Document 1 Filed 01/10/14 Page 1 of 6 PagelD 1 DAVID LOPEZ, ESQ. DL-6779 Attorney for Plaintiff FILED IN CLERK 171 S OFFICE Edge of Woods Road U S DISTRICT COURT EDNY RO. Box 323 Southampton, New York Tel: JAN 1 U 2014 Fax: DavidLopezEsq@aol.com LONG ISLAND OFFICE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK DEBORAH DONOGHUE, C , 1 against Plaintiff, SECUREALERT, INC. -and SAPINDA ASIA LTD. and LARS WINDHORST, COMPLAINT FOR RECOVERY OF SHORT-SWING PROFITS UNDp 15, 14sc-nobt, Nominal Defendant,, 5. U Jury Trial Demanded Defendants. BROWN, M. J. DEBORAH DONOGHUE, by David Lopez, Esq., her attorney, complaining of the defendants, respectfully alleges the following upon information and belief, except as to paragraph 2 which plaintiff alleges on personal knowledge. JURISDICTION: 1. This action arises under the provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended (the "Act"), 15 U.S.C. Section 78p(b),

2 Case 2:14-cv JS-GRB Document 1 Filed 01/10/14 Page 2 of 6 PagelD 2 and jurisdiction is conferred upon this court by Section 27 of the Act, 15 U.S.C. Section 78aa. THE PARTIES AND VENUE: 2. Plaintiff is a security owner of SECUREALERT, INC. ("SECUREALERT"), a Utah Corporation with principal offices at 150 West Civic Center Drive, Suite 400, Sandy, Utah. 3. At all times relevant the common stock of SECUREALERT was registered under Section 12(g) of the Act and was and is traded on the OTCQB Market through market makers located in this district. 4. This action is brought in the right and for the benefit of SECUREALERT which is named as a party defendant solely in order to have all necessary parties before the court. S. At all times relevant SAPINDA ASIA LIMITED ("SAPINDA") was and is an insider of SECUREALERT, to wit: a beneficial owner of more than 10% of a class of equity security and it is thereby a fiduciary of SECUREALERT. 6. SAPINDA is a British Virgin Islands limited company and resides or maintains a principal place of business or is found at Rooms , 8th Floor, Hang Seng Bank Building, Wanchai, Hong Kong. SAPINDA's statutory office is OMC Chambers, Wickhams Cay 1, Road Town, Tortola, British Virgin Islands. 7. LARS WINDHORST ("WINDHORST") is the sole shareholder of SAPINDA and thereby a co-beneficial owner of shares of SECUREALERT owned 2

3 Case 2:14-cv JS-GRB Document 1 Filed 01/10/14 Page 3 of 6 PagelD 3 by SAPINDA. WINDHORST is neither a citizen of the United States nor a permanent resident thereof and resides or maintains principal places of business or may be found at Rooms , 8th Floor, Hang Seng Bank Building, Wanchai, Hong Kong and c/o SAPINDA UK Limited, 23 Saville Row, London W1S 2ET, United Kingdom. 8. As non-citizens and non-residents of the United States, venue against SAPINDA and against WINDHORST is proper in any district of the United States at the election of the plaintiff STATUTORY REQUISITES:. 9. Demand for prosecution was made on SECUREALERT on November 4, 2013 by mail and by facsimile on November 8, SECUREALERT has been unresponsive to that demand. 11. Further delay in the filing of suit would be a futile gesture, the statutory 60-day waiting period having expired. 12. This action is brought within two years of the occurrence of the violations to be described herein or within two years of the time when reports required by 15 U.S.C. 78p(a) setting forth the substance of the transactions here complained of were first filed with the Securities & Exchange Commission. 3

4 Case 2:14-cv JS-GRB Document 1 Filed 01/10/14 Page 4 of 6 PagelD 4 FIRST CLAIM FOR RELIEF: 13. SAPINDA, and indirectly through SAP1NDA, WINDHORST, sold 628,251 shares of the common stock of SECUREALERT on October 29, 2013, at a price of $19.00 per share. 14. WINDHORST directly sold 556, 648 shares of the common stock of SECUREALERT on October 30, 2013, at a price of $7.50 per share. 15. WINDHORST directly purchased 556,648 shares of SECUREALERT common stock on June 13, 2013, at a price of $7.50 per share. 16. The foregoing purchase and sales may be matched against one another using the "lowest-in, highest-out" method to produce profits recoverable from WINDHORST. The amounts of such profits are unknown to Plaintiff but are estimated to approximate $6,401, Such profits are recoverable on behalf SECUREALERT by Plaintiff as a shareholder of SECUREALERT, the latter having failed or refused to recover in its own right and for its own benefit. SECOND CLAIM FOR RELIEF: 18. This Second Claim For Relief is a precaution against possible errors of detail attributable to inaccuracies in the public record or the discovery of additional trades during the course of this action. 4

5 Case 2:14-cv JS-GRB Document 1 Filed 01/10/14 Page 5 of 6 PagelD SAPINDA and/or WINDHORST, acting during periods not barred by the statute of limitations measured from the date of the filing of this complaint, purchased and sold or sold and purchased equity securities or equity security equivalents of SECUREALERT, including but not limited to those described in the FIRST CLAIM FOR RELIEF, within periods of less than six months of each other while insiders and thereby fiduciaries of SECUREALERT. 20. By reason of such purchases and sales or sales and purchases of its equity securities or equity security equivalents within periods of less than six months of one another while insiders and fiduciaries of SECUREALERT, SAPINDA and WINDHORST realized profits, the exact amounts thereof being unknown to Plaintiff, which profits inure to the benefit, and are recoverable by plaintiff on behalf, of SECUREALERT. WHEREFORE, Plaintif demands judgment: a) Requiring SAPINDA and WINDHORST, jointly and severally, to account for and to pay over to SECUREALERT the short-swing profits realized and retained by it, him or them in violation of Section 1 6(b) of the Act, together with appropriate interest and the costs of this suit; b) Awarding to Plaintiff her costs and disbursements including reasonable attorneys, accountants and expert witness fees; and c) Granting to Plaintiff such other and further relief as the court may deem just and proper. 5

6 Case 2:14-cv JS-GRB Document 1 Filed 01/10/14 Page 6 of 6 PagelD 6 Dated: Southampton, New York January 9, 2013 Yours, etc...o. s vid Lopez, Esq.

7 Case 2:14-cv JS-GRB Document 1-1 Filed 01/10/14 Page 1 of 2 PagelD 7 JS 44 (Rev. 1/2013) CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference ofthe United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM) I. (a) PLAINTIFFS DEFENDANTS SAP1NDA ASIA LTD and LARS WINDHORST, Defendants DEBORAH DONOGHUE SECURE ALERT, INC., Nominal Defendant FILFO (b) County of Residence of First Listed Plaintiff Westcheatilrn FRK'F; 711:Aunty (oa TH. IN I/S PLAWTIFF CA.OS DISTRICT COI lstedny JAN 1 U rmii- içi AND 1FFICE roreign t_ounrry of Residence of First Listed Defendant ON US. PLAINTIFF CASES ONLY) IV. NATURE OF SUIT (Place an X in One Box Only) AL511: TEMA S MINDItImMeitil^IMIIIIIIIIIIMMIIIIITAINIIIII^ELLILIILl O 110 Insurance PERSONAL INJURY PERSONAL INJURY Drug Related Seizure '0 422 Appeal 28 USC False Claims Act O 120 Marine CI 310 Airplane C/ 365 Personal Injury of Property 21 USC Withdrawal CI 400 State Reapportionment CI 130 Miller Act CI 315 Airplane Product Product Liability Other T 1.17 r o 410 Antitrust O 140 Negotiable Instrument Liability Health Care/ k.4.,::1':.1' iib Baltil Banking Recovery ofoverpayment CI 320 Assault, Libel & Pharmaceutical 'i ,15±7.1; 450-COmt5teree,. & Enforcement ofludgment Slander Personal Injury 0 his ii Depokation 1- z CI 151 Medicare Act Federal EmployersProduct Liability Patent ''il 470 kackiteeranfluted and Recovery of Defaulted Liability Asbestos Personal Trademark Corrupt OiganizatiOns NOTE. (C) Attorneys (Firm Name, Address, and Telephone Number) Attorneys afknown) David Lopez, Esq., 171 Edge of Woods Road, PO 323 Not Known Southampton, New York IN LAND CONDEMNATION CASES. USE THE LOCATION OF THE TRACT OF LAND INVOLVED 11. BASIS OF JURISDICTION (Place an "X" in One Box Only) fill CITIZ-EN-SETIP OF PRINCIPAL PARTIES (Place an "X" in One Box for Placnoti Diversity Cases Only) and One Bat for Defendant) O I 1.1 S. Government 6 Federal Question PM' DEF FIT DEF Plaintiff (If s Government Nal a Party) Citizen of This State Incorporated or Principal Place of Business Irs This State U S. Government 0 4 Diversity Defendant (indicate Citizenship ofparties m item 111) l':...z... CICAVStale142Incled2n1:17 o o.e_. State i Citizen or Subject of a Foreign Nation CI Student Loans Marine Injury Product Consumer Credit I Cable/Sat TV (Excludes Veterans) El 345 Marine Product Liability rich: O 153 Recovery of Overpayment Liability PERSONAL PROPERTY Fair Labor Standards HIA (1395ff) L.:A' 0 Securities/Commodities/ of Veteran's Benefits CI 350 Motor Vehicle Other Fraud Act Black Lung (923) Exchange O 160 Stockholders' Suits Motor Vehicle Truth in Lending Labor/Management DIWC/DIWW (405(g)) El 899 Other Statutory Actions 891t4t I.:cultural Acts 0 EP 190 Other Contract Product Liability Other Personal Relations SSID Title XVI O 195 Contract Product Liability Other Personal Property Damage Railway Labor Act RSI ( v.04-antental -T-Ak..0\1, 03 Matters O 196 Franchise Injury Property Damage Family and Medical E9 Freedom of Information V Personal Injury Product Liability Leave Act Act Medical Malpractice Other Labor Litigation El 896 Arbitration r. REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS Employee Retirement FEDERAL TAX SUITS Administrative Procedure Land Condemnation Other Civil Rights Habeas Corpus: Income Security Act CI 870 Taxes (U.S. Plaintiff Act/Review or Appeal of Foreclosure Voting Alien Detainee or Defendant) Agency Decision Rent Lease & Ejectment Employment Motions to Vacate IRS Third Party Constitutionality of Torts to Land CI 443 Housing/ Sentence 26 USC 7609 State Statutes Tort Product Liability Accommodations General D 290 All Other Real Property Amer. w/disabilines Death Penalty IMMIGRATION, Employment Other: Naturalization Application Amer. w/disabi lines Mandamus ez Other Other Immigration Other Civil Rights Actions Education Prison Condition Civil Detainee Conditions of Confinement (2)0RIGIN (Place an "X" in One Box Only) Original 0 2 Removed from 0 3 Remanded from 0 4 Reinstated or 0 5 Transferred from o 6 Multiclistrict Proceeding State Court Appellate Court Reopened Another District Litigation (speci)5, Cite the U.S. Civil Statute under which you are filing (Do Mit citejurisdktional statutes unless diversity) 15 USC 78p(b) VI. CAUSE OF ACTION Brief description of cause: Shareholder Suit To Recover Short-Swing Proits VII. REQUESTED IN 0 CHECK IF THIS IS A CLASS ACTION DEMAND S CHECK YES only if de I. ed in complaint: UNDER RULE COMPLAINT: 23, F.R.Cv.13: t\c-e, ok., Nrr 6N1 JURY DEMAND: t TN5R Yes 0 No (See ins(ruoions): JUDGE NI/A DOC FOR OFFICE USE ONLY VIII. RELATED CASE(S) IF ANV DATE SIGNATURE OF ATTORNEY OF RECORD 01/10/2014 David Lopez, Esq. (DL-6779) RECEIPT I/ AMOUNT gap LTC)1 0 APPLYING IFP JU GE MAG.!L. GE 3Epi

8 EDNY Revision 12/2011 da-se 2:14-cv-Ov N' J. -1-tr-.= I tut, j" ' 2 of 2 PagelD 8 Local Arbitration Rule provides that with certain exceptions, actions seeking money damages only in an amount not in excess of $150,000, exclusive ofinterest and costs, are eligible for compulsory arbitration. The amount of damages is presumed to be below the threshold amount unless a ce 'fication to the 1:5 contrary is filed. i, AV l..d \-0VIEZ, counsel for rt-otkinii-ic, do hereby certify that the above captioned civil action is ineligible for compulsory arbitration for the following reason(s): COmonetary damages sought are in excess of S 150,000, exclusive of interest and costs, 0 the complaint seeks injunctive relief, 0 the matter is otherwise ineligible for the following reason DISCLOSURE STATEMENT FEDERAL RULES CIVIL PROCEDURE 7.1 Identify any parent corporation and any publicly held corporation that owns 10% or more or its stocks: RELATED CASE STATEMENT (Section VIII on the Front of this Form) Please list all cases that are arguably related pursuant to Division of Business Rule in Section VIII on the front of this form. Rule (a) provides that "A civil case is "related" to another civil case for purposes of this guideline when, because of the similarity of facts and legal issues or because the cases arise from the same transactions or events, a substantial saving ofjudicial resources is likely to result from assigning both cases to the same judge and magistrate judge." Rule (b) provides that A civil case shall not be deemed "related" to smother civil case merely because the civil case: (A) involves identical legal issues, or (B) involves the same parties." Rule (c) further provides that "Presumptively, and subject to the power of a judge to determine otherwise pursuant to paragraph (d), civil cases shall not be deemed to be "related" unless both cases are still pending before the court." NY-E DIVISION OF BUSINESS RULE 50.I(d)(2) 1.) Is the civil actipn being filed in the Eastern District removed from a New York State Court located in Nassau or Suffolk County: NC) 2.) If you answered "no" above: a) Did the evenu,or omissions giving rise to the claim or claims, or a substantial part thereof, occur in Nassau or Suffolk County? \\U3 b) Did the events gomissions giving rise to the claim or claims, or a substantial part thereof, occur in the Eastern District? ts, c) If your answer to question 2 (b) is "Nu, does the defendant (or a majority of the defendants, if there is more than one) reside in Nassau or SuSnlk County, or, in an intewleader action, does the claimant (or a majority of die claimants, if there is more than one) reside in Nassau or Suffolk County? NO (Note: A corporation shall be considered a resident of the County in which it has the most significant contacts). BAR ADMISSION I am currently admii in the Eastern District of New York and currently a member in good standing ofthe bar ofthis court. ki) Yes No Are you currently the subject of any disciplinary action (s) in thi any other state or federal court? Yes (If yes, please explain) No C.5VDe.x\yr N-AS1.45 (k) l\wd-72-, x-s"\-)^-1, \Imcilv I certify the nee I cy of ail in ormati, provided above. \.'SL,Nts.0>c,,, ka can...e.:p \ik t..1. Signature: Al...,...0 NS