1 GIBSON, DUNN & CRUTCHER LLP ETHAN D. DETTMER, SBN …Oct 27, 2015 · Ethan D. Dettmer, Gibson...

S NOTICE OF REMOVAL OF ACTION

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Gibson, Dunn & Crutcher LLP

GIBSON, DUNN & CRUTCHER LLP ETHAN D. DETTMER, SBN 196046 [email protected] 555 Mission Street, Suite 3000 San Francisco, California 94105-2933 Telephone: 415.393.8200 Facsimile: 415.393.8306

Attorneys for Financial Industry Regulatory Authority, Inc. (FINRA)

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

TROY FLOWERS, an individual,

Plaintiff,

v.

FINANCIAL INDUSTRY REGULATORY AUTHORITY, INC., a private company; DOES 1 through 30, inclusive,

Defendants.

CASE NO.

N O T I C E O F R E M O V A L O F A C T I O N B Y F IN A N C I A L INDUST R Y R E G U L A T O R Y A U T H O RI T Y , IN C .

[Removal from the Superior Court of California, County of San Diego, Case No. 37-2015-00029957-CU-MC-CTL]

T O T H E C L E R K O F T H E A B O V E-E N T I T L E D C O UR T , PL A IN T I F F , A ND

C O UNSE L O F R E C O RD:

PLEASE TAKE NOTICE that pursuant to 28 U.S.C. §1441 and §1446, and in

accordance with 28 U.S.C. §1331, Defendant Financial Industry Regulatory Authority,

file this Notice of Removal to the United States

District Court for the Southern District of California, and in connection therewith, state

as follows:

'15CV2390 JMADMS

CCCaaassseee 333:::111555---cccvvv---000222333999000---DDDMMMSSS---JJJMMMAAA DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111000///222222///111555 PPPaaagggeee 111 ooofff 555


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I . ST A T E M E N T O F T H E ST A T E C O UR T A C T I O N

1. On or about September 3, 2015, Plaintiff Troy Flowers filed a complaint

in equity for expungement of public FINRA records in the Superior

Court of the State of California for the County of San Diego against Financial Industry

. A true and correct copy of the Complaint is

attached hereto as Exhibit A to the Declaration of Ethan D. Dettmer Dettmer

filed concurrently herewith. On September 25, 2015, Mr. Flowers served FINRA with

a copy of the Complaint captioned Troy F lowers v. F inancial Industry Regulatory

Authority, Inc. and which bore Case No. 37-2015-00029957-CU-MC-CTL

2. The gravamen of is to expunge regulatory

information imposed against Mr. Flowers by FINRA pursuant to its regulatory

U.S.C.§ 78a et seq., from his

a database of broker information maintained by FINRA and described in more detail

below. See Complaint at 8 10, 13.

I I . G R O UNDS F O R R E M O V A L F E D E R A L Q U EST I O N

3. FINRA is a self-regulatory organization registered with the SEC as a

national securities association pursuant to the Maloney Act amendments to the

Exchange Act, 15 U.S.C. § 78a, et seq. Pursuant to authority vested by the Exchange

Act, FINRA has the power to discipline its members. 15 U.S.C. § 78o-3(b) and (h).

See also, e.g., F irst Jersey Securities, Inc. v. Bergen, 605 F.2d 690 (3d Cir. 1979), cert

denied 444 U.S. 1074, 100 S. Ct. 1020 (1980); D .L. Cromwell Inv., Inc. v. NASD

Regulation, Inc., 279 F.3d 155, 157 (2d Cir. 2002), cert denied, 537 U.S. 1028 (2002).

The FINRA Code of Procedure, which has been approved by the SEC, governs FINRA

disciplinary proceedings against securities firms and their representatives. See 15

Kurz v. F idelity Management & Research Co., 556 F.3d 639,



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641 (7th Cir. 2009). The Exchange Act also provides that the exclusive judicial

remedy for complaints arising from FINRA disciplinary proceedings lies in the United

States Court of Appeals following appeal to the Securities Exchange Commission. 15

U.S.C. § 78y; see also, e.g., F irst Jersey Securities, 605 F.2d at 694-

of exhaustion of administrative remedies applies with equal force to the disciplinary

4. The Exchange Act requires FINRA to report registration information

about current and former securities representatives, which includes information

relating to disciplinary record. See 15 U.S.C. § 78o-3(i)(1)(A)-(B)

(requiring that

registration i .

other information required by law, or exchange or association rule[

78o-3(i)(5).

record are available to members of the public without subpoena through a toll-free

telephone number and through the FINRA BrokerCheck program which is available

over the internet at www.finra.org. 15 U.S.C. §78o-

association shall . . . establish and maintain a toll-free telephone listing, and a readily

accessible electronic or other process, to receive and promptly respond to inquiries

regarding . . .

5. Unlike the plaintiffs in In re Lickess, 2011 WL 2471022 (N.D. Cal. June

22, 2011) and Doe v. F inancial Industry Regulatory Authority, Inc. 2013 WL 6092790

(C.D. Cal. Nov. 19, 2013), Mr. Flowers seeks to remove regulatory information not

customer complaints. There is no mechanism to expunge disciplinary actions from

CRD. Instead the Federal rules require that information be maintained. See 15 U.S.C.

§78o-3(i)(1). Thus, in the State Court Action, Mr. Flowers seeks a dispensation from

this federal mandate.



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6. This action may be removed to this Court by FINRA pursuant to 28

U.S.C. § 1441 because this is a civil action over which this Court has federal question

jurisdiction pursuant to the provisions of 28 U.S.C. § 1331. Section 27 of the

Exchange Act, 15 U.S.C. § 78aa, vests in federal courts exclusive jurisdiction for

suits in equity and actions at law brought to enforce any liability or duty created by

[the Exchange] Act or the

the Exchange Act is within the exclusive jurisdiction of the federal courts.

7. As set forth above, all of

within the meaning of 28 U.S.C. § 1331, and removal is thus proper under 28 U.S.C. §

1441.

I I I . V E NU E

8. Mr. Flowers filed his Complaint in the Superior Court of the State of

California for the County of San Diego, which is within this judicial district. See 28

U.S.C. § 84(c)(2). This Court is therefore the proper venue for removal under 28

U.S.C. §§ 1441(a), 1446(a).

I V . T I M E L IN ESS

9. FINRA files this Notice within thirty (30) days after its receipt of the

Petition in accordance with 28 U.S.C. §1446(b). FINRA was served with the

Summons and Complaint herein on September 25, 2015.

V . A T T A C H M E N T O F ST A T E C O UR T PL E A DIN GS

10. FINRA has complied with 28 U.S.C. § 1446(a) by attaching all process,

pleadings, and orders received in the State Court Action as Exhibits A through D in the

Dettmer Declaration.

V I . N O T I C E O F R E M O V A L G I V E N T O T H E ST A T E C O UR T

11. As required by 28 U.S.C. § 1446(d), FINRA will promptly give written

notice of this Notice of Removal to Plaintiffs and will file a copy of the notice with the

Clerk of the Superior Court for the County of San Diego.



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V I I . C O N C L USI O N

12. For the foregoing reasons, FINRA respectfully states that this action,

previously pending in the Superior Court of the State of California for the County of

San Diego, is properly removed to this Court, and FINRA respectfully requests that

this Court proceed as if this case had been originally filed in this Court.

DATED: October 22, 2015 GIBSON, DUNN & CRUTCHER LLP

By: /s/ Ethan D . Dettmer Ethan D. Dettmer

Attorney for Defendant FINANCIAL INDUSTRY REGULATORY AUTHORITY, INC.


JS 44 cRe~. ~z~,z~ CIVIL COVER SHEETThe 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 asprovided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, ~s required for the use of the Clerk of Court for thepurpose of initiating the civil docket sheet. (SEEINSTRUCTlONSONNEXTPAGEOFTHISFORM)

I. (a) PLAINTIFFS

Troy Flowers

(b) County of Residence of First Listed Plaintiff San Diego County(CXCL•PT IN U S P/.AINTIFF CASTS)

~C~ AttOCneys (Firry Name, Address, and T elephone Number)

Michael T. McColloch, McColloch Law Firm, 545 Second St. Suite 6,Encinitas, CA 92014, (760) 632-1100

DEFENDANTS

Financial Industry Regulatory Authority, Inc., DOES 1 through 30

County of Residence of First Listed Defendant Washington D.C.(IN U. S PLAINTIFF CASL•S ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OFTHE TRACT OF LAND INVOLVED.

Attorneys pfKnmvn)

Ethan D. Dettmer, Gibson Dunn & Crutcher LLP, 555 Mission Street,Suite 3000, San Francisco, CA 94105, (415) 393-8200

IL BASIS OF JURISDICTION (Place an "x° in One sox only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an 'x" in one sox~or Plainri>j(For Diversity Cases Only) and One Box for Defindan~)

O 1 U.S. Govenunent ~ 3 Federal Question PTF DEF PTF DEFPlaintiff (U. S. Government Not a Party) Citizen of This State O 1 O 1 Incorporated or Principal Place O 4 O 4

of Business In This State

O 2 U.S. Govenunent O 4 Diversity Citizen of P.noNier State O 2 O 2 Incorporated and Principal Place O 5 O 5Defendant (Indicate Citizenship of Parties iii Item III) of Business In Another State

Citizen or Subject of a O 3 O 3 Foreign Nation O 6 O 6Forei n Coun

iV. NATTIRE OF STJiT rnloce an ° x" in nne Rox nnly)( UA7 R~A(~~f IUltl~ 'i7~.~ r. ~l.11' ILAAF ,,.;ICI 071[~~KSI,A7l 11.5

O 110 Insurazice PERSONAL INJURY PERSONAL INJURY O 625 Drug Related Seizure O 422 Appeal 28 USC 158 O 375 False Claims ActO 120 Mazine O 310 Airplane O 3G5 Personal Injury - of Property 2l USC 881 O 423 Withdrawal O 400 State ReapportionmentO 130 Miller Act O 315 Airplane Product Product Liability O 690 Other 28 USC 157 O 410 lv~titrustO 140 Negotiable Instrument Liability D 367 Heatth Care/ O 430 Ba~ilcs and Banking

PR (IP 'lt Tl' R I ~;11'f 5O 150 Recovery of Oveipaymeut O 320 Assault, Libel & Pha~maceurical _ O 450 ConvnereeO 820 Copyrights& Enforcement of Judgment ~ Slander Personal Injury O 460 Deportation

O 151 Medicaz'e Act O 330 Federal Employers' Product Liability O 830 Patent O 470 Racketeer Influenced andD 152 Recovery of Defaulted Liability O 368 Asbestos Personal O 840 Trademark Corrupt Organizations

Student Loans ❑ 340 Marine Injury Product O 480 Consumer Credit(Excludes Veterans) 0345 Marine Product Liability 0490Cable/SatTVL~13~)R ti[1(I~~I.sb.('I:kil'l

O 153 Recovery of Overpayment Liability PERSONAL PROPERTY O 710 Fair Labor Standazds O 861 HIA (1395f~ ~ 850 Securities/Cotmnodities/of Veteran's Benefits O 350 Motor Vehicle O 370 Other Fraud Ac[ O 8G2 Black Lung (923) Exchange

O 160 Stockholders' Suits O 355 Motor Vehicle O 371 Truth in Lending O 720 Labor/Management O 863 DIWC/DIWW (405(8)) O 890 OtOer Statutory ActionsO 190 Otlier Conhact Product Liability O 380 Oflier Personal Relations O 864 SSID Tile XVI O 891 Agriwltural ActsO 195 Contract Product LiaUility O 360 Other Personal Property Damage O 740 Railway LaUor Act O 865 RSI (405(8)) O 893 Environmental MattersD 196 Francl»se Injury D 385 Property Damage O 751 Family and Medical O 895 Freedom of Information

O 362 Personal Injury - Product Liability Leave Act ActMedical Mal ractice O 790 Other Labor Litigation

0791EmployeeRetirementIncome Security Act

O 896 ArbitrationO 899 Administrative Procedure

Act/Review or Appeal ofRL~i pRO,PE~21T1 clVn IiIGT{Iti' !'1tISONERP~;~IT70N5_. I1'I~FIt:11 71SStllti

O 210 La~~d Coudeiru~atiou O 440 Other Civil Rights Habeas Corpus: O 870 Taxes (U.S. PlaintiffO 220 Foreclosure O 441 Voting O 463 Alien Detainee or Defendant) Agency DecisionO 230 Rent Lease & Ejecfi~ent O 442 Employment O 510 Motions to Vacate O 871 IRS—Third Party O 950 Constitutionality ofO 240 Torts to Land O 443 Housing/ Sentence 26 USC 7609 State StatutesO 245 Tort Product Liability Acconmiodations O 530 General

'~ 141~11G1i \ 1'll)~ 'O 290 All Other Real Property O 445 Amer. w/Disabilities- O 535 Death PenaltyEmployment Other: O 462 Naturalization Application

O 446 Amer. w/Disabilities - O 540 Mandamus &Other O 465 Other Inv~ilgra[ionOther O 550 Civil Rights Actions

O 448 Education O 555 Prison ConditionO 560 Civil Detainee -

Conditions ofConfinement

V. ORIGIN (Place an 'X" in One Boz Only)O 1 Original 18(2 Removed from O 3 Remanded from O 4 Reinstated or O 5 Transferred from O 6 Multidistrict

Proceeding State Court Appellate Court Reopened Another District Litigation(specify)

Cite the U.S. Civil Statute under which you are filing (Do not cite ~~rrcdictinna[,ctatutes unless diversity):

VI. CAUSE OF ACTION 15 U.S.C. section 78aa et se .; 28 U.S.C. sections '441 and 1446Brief description of cause:Suit to expunge regulatory information imposed by FINRA pursuant to its regulatory authority under Exchange Act

VII. REQUESTED IN Q CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:

COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: O Yes ~ No

VIII. RELATED CASES)IF ANY (See ins~ructionsJ:

JUDGE DOCKET NUMBER

DATE SIGNATURE OF ATTffj~~NEY OF~ ~ ,?p ~a10/22/2015 ;'=.--~`li?O,~v~- //. //. 'y~/~~il~ ,G~~

RECEIPT # AMOUNT APPLYING IFP 7UDGE MAG..TUDGE

'15CV2390 JMADMS

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DECLARATION OF ETHAN D. DETTMER IN SUPPORT OF NOTICE OF REMOVAL OF ACTION BY FINANCIAL

INDUSTRY REGULATORY AUTHORITY, INC.

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Plaintiff,

v.


Defendants.

CASE NO.

D E C L A R A T I O N O F E T H A N D . D E T T M E R IN SUPPO R T O F N O T I C E O F R E M O V A L O F A C T I O N B Y F IN A N C I A L INDUST R Y R E G U L A T O R Y A U T H O RI T Y , IN C .

[Removal from the Superior Court of California, County of San Diego, Case No. 37-2015-00029957-CU-MC-CTL]

'15CV2390 JMADMS


DECLARATION OF ETHAN D. DETTMER IN SUPPORT OF NOTICE OF REMOVAL OF ACTION BY FINANCIAL INDUSTRY REGULATORY AUTHORITY, INC.

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I, Ethan D. Dettmer, declare as follows:

1. I am an attorney admitted to practice law before all courts of the State of

California and in the United States District Court for the Southern District of

California. I am a partner in the law firm of Gibson, Dunn & Crutcher LLP, and I am

one of the attorneys responsible for the representation of Defendant Financial Industry

Regulatory Authority, Inc. in this matter. Unless otherwise stated, the

following facts are within my personal knowledge and, if called and sworn as a

witness, I could and would testify competently thereto.

2. Attached hereto as Exhibit A is a true and correct copy of the Complaint

in Troy F lowers v. F inancial Industry Regulatory Authority, Inc., Case No. 37-2015-

00029957-CU-MC-CTL filed on September 3, 2015 in the Superior Court of

California, County of San Diego.

3. Attached hereto as Exhibit B is a true and correct copy of the Summons

in Troy F lowers v. F inancial Industry Regulatory Authority, Inc., Case No. 37-2015-

00029957-CU-MC-CTL filed on September 3, 2015 in the Superior Court of

California, County of San Diego.

4. Attached hereto as Exhibit C is a true and correct copy of the Civil Case

Cover Sheet in Troy F lowers v. F inancial Industry Regulatory Authority, Inc., Case

No. 37-2015-00029957-CU-MC-CTL filed on September 3, 2015 in the Superior

Court of California, County of San Diego.

4. 5. Attached hereto as Exhibit D is a true and correct copy of the

Notice of Case Assignment and Case Management Conference in Troy F lowers v.

F inancial Industry Regulatory Authority, Inc., Case No. 37-2015-00029957-CU-MC-

CTL, setting a Civil Case Management Conference on February 26, 2016 in the

Superior Court of California, County of San Diego.

5. In accordance with 28 U.S.C. § 1446(a), Exhibits A through D include


DECLARATION OF ETHAN D. DETTMER IN SUPPORT OF NOTICE OF REMOVAL OF ACTION BY FINANCIAL INDUSTRY REGULATORY AUTHORITY, INC.

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I declare under the penalty of perjury under the laws of the State of California

and the United States of America that the foregoing is true and correct and that I

executed this Declaration on October 22, 2015, at San Francisco, California.

____/s/ Ethan D . Dettmer Ethan D. Dettmer


EExxhhiibbiitt AA



Plaintiff,

vs.

FINANCIAL INDUSTRY REGULATORY AUTHORITY, a private company; DOES 1 through 30, inclusive,

Defendants.

) Case No. 37-2015-00029957-CU-MC-CTL ) ) COMPLAINT FOR EXPUNGEMENT IN ) EQUITY

) ) ) ) ) ) ) ) )

~I L E D

Olork ol tke SapeAor tiemt

Michael T. McColloch (SNB 66766) SEP 0 3 2015 McCOLLOCH LAW FIRM 545 Second St., Suite 6

By: N. ADAMS, Deputy Encinitas, CA 92014 Telephone: (760) 632-1100 Facsimile: (760) 650-0016

;,3 y ~ .:i 1 •i~' . f_: Email: mikeamoonlightlaw.com

Attorneys for Troy Flowers

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN DIEGO

Plaintiff TROY FLOWERS ("Plaintiffl') complains of Defendant FINANCIAL

INDUSTRY REGULATORY AUTHORITY, also known as FINRA, ("Defendant") and

for a cause of action alleges the following:

JURISDICTION AND VENUE

1. Defendant is a Delaware corporation, authorized to do a.nd doing business

in California.

2. Venue is proper in this county in accordance with Section 395(a) of the

California Code of Civil Procedure because Deferidant does business in this county and

the injuries alleged herein occurred in this county.

1 COMPLAINT FOR EXPUNGEMENT IN EQUITY

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1

PARTIES

2

3. Plaintiff is an individual, residing in the City of Sola.na Beach, County of

3

San Diego and State of California.

4

4. Plaintiff is informed and believes and thereon alleges that Defendant is a

5 privately owned corporation registered with the Securities Exchange Commission as a 6 ! self-regulatory organization that provides certain regulatory services in the fmancial 7 services industry.

8

5. The names and capacities of Defendants DOES 1-30, inclusive, are

9 unknown to Plaintiff, who therefore sues said defendants by such fictitious names.

10

Plaintiff will amend this complaint to allege the true names and capacities of said

11

defendants when ascertained. Plaintiff is informed and believes and thereon alleges that

12 each fictitiously named defendant is legally responsible to Plaintiff for the damages

13 alleged herein.

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6. Plaintiff is informed and believes and thereon alleges that at all material

15 times, each defendant was the agent and employee of all other defendants, acting within

16 the course and scope of such agency and employment.

17

GENERAL ALLEGATIONS

18

7. On July 31, 2000, Plaintiff submitted to Defendant a Form U5 Uniform

19

Termination Notice for Securities Industry Registration, which served as his resignation

20

from being a licensed broker.

21

8. Defendant's database reports that on August 1, 2000, the state of Ohio 22 I denied Plaintiff a securities salesman license, but Plaintiff did not apply for an Ohio state

23

license. The state of Ohio was merely acknowledging that Plaintiff submitted his Form

24

U5, and by virtue of this resignation, he would no longer be eligible for licensing as a

25

broker within that state, but Defendant's report misrepresents this as a blemish on

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Plaintiff's record.

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9. Defenda.nt's database also reports that on October 19, 2000, Plaintiff was

28 I I suspended from associating with Defendant's members because of an investigation



Defendant was conducting on a firm in which Plaintiff had previously worked. Defendant

2

imposed a fine of $10,0000 on Plaintiff, which would have removed this reporting, but

3

Plaintiff had no desire to incur such an expense in defending against actions by

4

Defendant that arose after his resignation as a licensed broker, particularly since he also

5

had no desire to ever again be a member of Defendant's organization.

6

10. Defendant's database further reports that on December 6, 2001, Plaintiff

7 was not suspended, but was barred from associating with Defendant's members because

8

Plaintiff did not cooperate in the investigation against the former firm in which Plaintiff

9 worked. However, Plaintiff's initial reluctance to participate in a deposition conducted by

10 the Defendant was on advice from legal counsel to exercise his Fifth Amendment rights.

11 This counsel was given because Plaintiff was already in the process of defending against

12 state criminal charges related to the investigation being conducted on the former firm in

13 which Plaintiff worked.

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11. Plaintiff ultimately participated in a deposition conducted by Defendant,

15 but Defendant disregarded Plaintiff's previously asserted rights guaranteed under the

16

Fifth Amendment by stating that this later cooperation was not a timely participation, and

17 thus, represents this as an additional blemish on Plaintiff s record.

18 12. Plaintiff now seeks expungement of the above representations from his

19 record under Defendant's Rule 2080(a), which provides that a court of "competent 20 I jurisdiction" may expunge information disclosed in Defendant's database.

21

13. Defendant's rule is purely procedural and does not provide a substantive

22 test for expungement, and as such, California courts have held that Defendant's Rule

23

2080(a) essentially recognizes a right of inembers and associated persons to seek

24 expungement, and may do so by petitioning under the court's inherent and general

25 powers in equity.

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FIRST CLAIM FOR RELIEF AGAINST ALL DEFENDANTS

27 [Pursuant to the Court's inherent equitable powers to wei h t~he equities favoring

28 exnungement against the detriment to the public]



1

14. Plaintiff re-alleges and incorporates by reference, as though fully set forth

2

in this cause of action, each and every allegation contained in Paragraphs 1 through 13,

3

inclusive, of this Complaint.

4

15. California courts have recognized that Defendant's Rule 2080(a) essentially

5 recognizes a right of inembers and associated persons to seek expungement of their

6 record as reported in Defendant's database.

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16. California case law has held that a Plaintiff may call upon the court's

8

inherent powers to weigh the equities favoring expungement against the detriment of the

9 public should expungement be granted.

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17. The representations of Defendant about Plaintiff appearing in Defendant's

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database are false, inaccurate, misleading.

12

18. Plaintiff does not wish to ever again be a member of Defendant's

13 organization, but he does wish to associate with Defendant's members.

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19. The way in which Defendant represents Plaintiff s record makes it such that

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Plaintiff cannot associate with members of Defendant's organization.

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20. Plaintiff s inability to associate with Defendant's members has harmed

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Plaintiff in that he has been not allowed to open private brokerage accounts to conduct

18 personal investing for his own future.

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21. Plaintiff's record, as it is represented on Defendant's database, is harmful to

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Plaintiff s reputation because it is available through simple Internet searches.

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22. Plaintiff s record, as it is represented on Defendant's database, is harmful to

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Plaintiff because it inhibits his ability to seek future employment.

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23. The risk of harm to the public in granting the expungement of Plaintiff s

24 record from Defendant's database is minimal because the relief sought by the Plaintiff is

25 not public in nature. Through this relief, Plaintiff has no desire to restore his broker's

26

license, or to become a member of Defendant's organization; he merely desires to freely

27

invest in his own retirement, have no hindrances in employment searches, and to have his

28 reputation saved from further harm.

COMPLAINT FOR EXPUNGEMENT IN EQUITY


1 WHEREFORE, Plaintiff prays for judgment as follows:

2 l. For an order of expunging Plaintiffls record, as to the representations

3 above, from Defendant's database. 4 2. For such other and further relief as the court deems proper.

5 DATED: August~, 2015 McCOLLOCH LAW FIRM

6 7 By: MICHAEL T. McCOLLOCH 8 Attorneys for Plaintiff

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5 COMPLAINT FOR EXPUNGEMENT M EQUITY


EExxhhiibbiitt BB


SUMMONS (CITACION JUDIC/AL)

NOTICE TO DEFENDANT:

(~VISO~I~L D~MANDADO): tnancial In ustry Regulatory Authority

YOU ARE BEING SUED BY PLAINTIFF: (~LO ESTA DEMANDANDO EL DEMANDANTE): l roy Flowers

You have been sued. The court may decide against you

FOR COURT USE ONLY (SOLO PARA USO DE LA CORTE)

= :~ . ~L E FUrk I

,

ot iilu Suoalor Eomt D

SEP 0 3 2015 By: N. ADAMS, Deputy

your being heard unless you respond within 30 days. Read the information below.

You have 30 CALENDAR DAYS after this summons and legal papers are served on you to fde a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), your county law library, or the courthouse nearest you. If you cannot pay the fi[ing fee, ask the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court.

There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney referral service. If you cannot afford an aftorney, you may be eligible for free Iegal services from a nonprofit legal services program. You can locate these nonprofit groups at the California Legal Services Web site (www.lawhelpcalifornia.org), the California Courts Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case. 1A VlSOt Lo han demandado. Si no responde dentro de 30 dias, la corte puede decidir en su contra sin escuchar su versi6n. Lea la informaci6n a continuaci6n.

Tiene 30 DIAS DE CALENDARIO despues de que le entreguen esta citaci6n y papeles legales para presentar una respuesta por escrito en esta corte y hacer que se entregue una copia al demandante. Una carta o una Ilamada telef6nica no lo protegen. Su respuesta por escrito tiene que estar en formato legal correcto si desea que procesen su caso en la corte. Es posible que haya un formuiario que usted pueda usar para su respuesta. Puede encontrar estos formularios de la corte y mSs infnrnmaci6n en e/ Centro de Ayuda de las Cortes de California (www.sucorte.ca.gov), en la biblioteca de leyes de su condado o en /a corte que le quede m6s cerca. Si no puede pagar la cuota de presentaci6n, pida al secretario de la corte que le dd un formulario de exenci6n de pago de cuotas. Si no presenta su respuesta a tiempo, puede perder el caso por incumplimiento y la corte le podr8 quitar su sueldo, dinero y bienes sin m3s advertencia.

Hay otros requisitos legales. Es recomendable que llame a un abogado inmediatamente. Si no conoce a un abogado, puede Ilamar a un servicio de remisi6n a abogados. Si no puede pagar a un abogado, es posible que cumpla con los requisitos para obtener servicios legales gratuitos de un programa de servicios legales sin fines de lucro. Puede encontrar estos grupos sin ffnes de lucro en el sitio web de California Legal Se~vices, (www.lawhelpcalifornia.org), en el Centro de Ayuda de las Cortes de Califomia, (www.sucorte.ca.gov) o poniendose en contacto con la corte o el colegio de abogados locales. AVISO: Por ley, la corte tiene derecho a reclamar las cuotas y los costos exentos por imponer un gravamen sobre cualquier recuperacf6n de $10,000 6 mas de valor recibida mediante un acuerdo o una concesi6n de arbitraje en un caso de derecho civil. Tiene que pagar el gravamen de la corte antes de que la corte pueda desechar el caso.

The name and address of the court is:

(fiftrety~ireccd'6n de la corte es): Hall of Justice es roa way

San Diego, CA 92101

CASE NUMBER (Numero del Caso):

37-2015-00029957-CU-MC-CTL

The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attomey, is: (EI nombre, la direccidn y el numero de telefono del abo ado del demandante, o del demandante que no tiene abogado, es): Michael T. McColloch, 545 Second St., Suite ~3, Encinitas, CA 92014, (760) 632-1100

~ DATE: Clerk, by Deputy (Fecha) SEP 0 4 2015 (Secretario) N. Adams (Adjunto) (For prnof of service of this summons, use Proof of Service of Summons (fonn POS-010).) (Para pnieba de entrega de esta citati6n use el formulario Proof of Service of Summons, (POS-010)).

NOTICE TO THE PERSON SERVED: You are served [sE'L] ~ 1. 0 as an individual defendant.

2. as the person sued under the fictitious name of (specify):

g_ ✓l on behalf of (specify): Financial Industry Regulatory Authority

Form Adopted for Mandatory Use Judicial Council of Califomia SUM-100 [Rev. July 1, 2009]

under: 571 CCP 416.10 (corporation) 0 CCP 416.60 (minor) 0 CCP 416.20 (defunct corporation) CCP 416.70 (conservatee) ~ CCP 416.40 (association or partnership) CCP 416.90 (authorized person)

0 other (specify): 4• = by personal delivery on (date):

Page 1 of 1

SUMMONS Code of Civil Procedure §§ 41220, 485 www.courtinfo.ce.gov


EExxhhiibbiitt CC


CM-010 ATTOt2NEY OR PARTY WITHOUT ATTORNEY (Name, State aar number, and address): FOR COURT USE ONLY

Michael T. MCColtoch (SBN 66766) 545 Second St., Suite» 1 L E

D Encinitas, CA`92 4':. ' ctsrk or tne aupmor cooft ( 60) 632-1100 (760) 650-0016 TELEPHONE NO.: FAX NO.: ATTORNEY FOR (Name): C Cp O~ ~O~C

JCf J SUPERIOR COURT OF C I~j IA, UNTY F ~~"~est~roac~way STREETADDRESS:

By: N. ADAMS, Deputy MAILING ADDRESS:

San Dieg O, CA 92101 CnYANDZIPCODE: Hall of Justice BRANCH NAME:

~ CASE NAME: Troy Flowers v. Financial Industry Regulatory Authority

CIVIL CASE COVER SHEET Complex Case Designation CASE NUMBER:

✓0 Unlimited 0 Limited 0 Counter C] Joinder 37-2015-00029957-C - ~ : JUDGE: (Amount (Amount

demanded demanded is Filed with first appearance by defendant exceeds $25,000) $25,000 or less) (Cal. Rules of Court, rule 3.402) DEPT:

~rernS 7-0 DetUw musr De corrlPerea (See rrlsrrLlcLlonS ori rJcaC7e cl. Check one box below for the-case type that best describes this case: Auto Tort -- ~

Contract 0 Breach of contract/warranty (06) Auto (22)

Q Uninsured motorist (46) 0 Rule 3.740 collections (09) Other PI/PD/WD (Personal Injury/Property Other collections (09) DamagelWrongful Death) Tort 0

Insurance coverage (18) Asbestos (04)

0 Product liability Other contract (37)

(24) 0

Real Property Medical malpractice (45) 0 Eminent domain/inverse

~ Other PI/PD/WD (23) ~

condemnation (14) Non-PI/PD/NID (Other) Tort Wrongful eviction (33)

0 Business tort/unfair business practice (07) ~ Other real property (26) Unlawful Detainer 0 Commercial (31) 0 Residential (32) ~ Drugs (38) Judicial Review Miscellaneous Civil Petition ~ Asset forfeiture (05) 0 Partnership and corporate governance (21) ~ Petition re: arbitration award (11) 0 Other petition (not specified above) (43) 0 Writ of mandate (02) n Other iudicial review (39)

2. This case I— 1 is L~/ I is not comDlex under rule 3.400 of the California Rules of Court. If the case is comDlex, mark the factors requiring exceptional judicial management: a. 0 Large number of separately represented parties d. 0 Large number of witnesses b. Extensive motion practice raising difficult or novel e. 0 Coordination with related actions pending in one or more courts

issues that will be time-consuming to resolve in other counties, states, or countries, or in a federal court c. Substantial amount of documentary evidence f. 0 Substantial postjudgment judicial supervision

3. Remedies sought (check all that apply): a.= monetary b. © nonmonetary; declaratory or injunctive relief C. 0 punitive 4. Number of causes of action (specify): / 5. This case [] is ~]✓ is not a ciass action suit. 6. If there are any known related cases, file and serve a notice of related case. (You may use form CM-015.) Date: 08/27/15 , Michael T. McColloch

(TYPE OR PRINT NAME) (SIGNATURE OF PARTY OR ATTORNEY FOR PARTY)

• Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small daims cases or cases flled under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result in sanctions. ~~

• File this cover shee~ in at:dltion to any cover sheet required by local court rule. • If this case is complex u~nder rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all

other parties to the action or proceeding. • Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes onl~r.

ape 1 of Fonn Adopted for Mandatory Use CIVIL CASE COVER SHEET Cal. Rules of Court, rules 2.30, 3.220, 3.400-3.403, 3.74Q

Judicial Council of Carrfomia Cal. Standards of Judicial Adminislration, std. 3.10 CM-010 [Rev. July 1, 20071 www.courfinfo.ca.gov

~ Civil rights (08) ~ Defamation (13) ~ Fraud (16) ~ Intellectual property (19) 0 Professional negligence (25) ~ Other non-PI/PDMID tort (35) Em loyment [~ Wrongful termination (36) [7 Other empioyment (15)

Provisionally Complex Civil Litigation (Cal. Rules of Court, rules 3.400-3.403)

~ Antitrust/Trade regulation (03) ~ Construction defect (10) 0 Mass tort (40) ~ Securities litigation (28) ~ Environmental/Toxic tort (30) 0 Insurance coverage claims arising from the

above listed provisionally complex case types (41) ,

Enforcement of Judgment = Enforcement of judgment (20)

Miscellaneous Civil Complaint ~ RICO (27) 0✓ Other complaint (not specified above) (42)


EExxhhiibbiitt DD


123-Troy Flowers+PLNTroy FlowersPLNTroy Flowers-Financial Industry Regulatory Authority+DFNFinancial Industry Regulatory AuthorityDFN

(619) 450-7062

CASE ASSIGNMENT

SUPERIOR COURT OF CALIFORNIA, COUNTY OFSTREET ADDRESS:

MAILING ADDRESS:

CITY AND ZIP CODE:

PLAINTIFF(S) / PETITIONER(S):

DEFENDANT(S) / RESPONDENT(S):

CASE NUMBER:

Judge: Department:

COMPLAINT/PETITION FILED:

TELEPHONE NUMBER:

BRANCH NAME:

330 W Broadway

Troy Flowers

Financial Industry Regulatory Authority

NOTICE OF CASE ASSIGNMENT and CASE MANAGEMENT CONFERENCE

(619) 450-7062

Ronald L. Styn C-62

09/03/2015

SAN DIEGOSan Diego 92101-3827CA330 W Broadway

San Diego, CA 92101-3827

Central

FLOWERS VS. FINANCIAL INDUSTRY REGULATORY AUTHORITY

37-2015-00029957-CU-MC-CTL

JUDGEDEPTTIMEDATETYPE OF HEARING SCHEDULEDCivil Case Management Conference 02/26/2016 10:00 am C-62 Ronald L. Styn

NOTICE OF CASE ASSIGNMENTSDSC CIV-721 (Rev. 08-12)

A case management statement must be completed by counsel for all parties or self-represented litigants and timely filed with the courtat least 15 days prior to the initial case management conference. (San Diego Local Rules, Division II, CRC Rule 3.725).

All counsel of record or parties in pro per shall appear at the Case Management Conference, be familiar with the case, and be fullyprepared to participate effectively in the hearing, including discussions of ADR* options.

IT IS THE DUTY OF EACH PLAINTIFF (AND CROSS-COMPLAINANT) TO SERVE A COPY OF THIS NOTICE WITH THECOMPLAINT (AND CROSS-COMPLAINT), THE ALTERNATIVE DISPUTE RESOLUTION (ADR) INFORMATION FORM (SDSCFORM #CIV-730), A STIPULATION TO USE ALTERNATIVE DISPUTE RESOLUTION (ADR) (SDSC FORM #CIV-359), AND OTHERDOCUMENTS AS SET OUT IN SDSC LOCAL RULE 2.1.5.

ALL COUNSEL WILL BE EXPECTED TO BE FAMILIAR WITH SUPERIOR COURT RULES WHICH HAVE BEEN PUBLISHED ASDIVISION II, AND WILL BE STRICTLY ENFORCED.

TIME STANDARDS: The following timeframes apply to general civil cases and must be adhered to unless you have requested andbeen granted an extension of time. General civil cases consist of all civil cases except: small claims proceedings,civil petitions, unlawful detainer proceedings, probate, guardianship, conservatorship, juvenile, parking citationappeals, and family law proceedings.

COMPLAINTS: Complaints and all other documents listed in SDSC Local Rule 2.1.5 must be served on all named defendants.

DEFENDANT’S APPEARANCE: Defendant must generally appear within 30 days of service of the complaint. (Plaintiff maystipulate to no more than 15 day extension which must be in writing and filed with the Court.) (SDSC Local Rule 2.1.6)

JURY FEES: In order to preserve the right to a jury trial, one party for each side demanding a jury trial shall pay an advance jury fee inthe amount of one hundred fifty dollars ($150) on or before the date scheduled for the initial case management conference inthe action.

*ALTERNATIVE DISPUTE RESOLUTION (ADR): THE COURT ENCOURAGES YOU TO CONSIDER UTILIZING VARIOUSALTERNATIVES TO TRIAL, INCLUDING MEDIATION AND ARBITRATION, PRIOR TO THE CASE MANAGEMENT CONFERENCE.PARTIES MAY FILE THE ATTACHED STIPULATION TO USE ALTERNATIVE DISPUTE RESOLUTION (SDSC FORM #CIV-359).

Page: 1

CASE ASSIGNMENT

SUPERIOR COURT OF CALIFORNIA, COUNTY OFSTREET ADDRESS:

MAILING ADDRESS:

CITY AND ZIP CODE:

PLAINTIFF(S) / PETITIONER(S):

DEFENDANT(S) / RESPONDENT(S):

CASE NUMBER:

Judge: Department:

COMPLAINT/PETITION FILED:

TELEPHONE NUMBER:

BRANCH NAME:

SAN DIEGOSan Diego 92101-3827CA330 W Broadway

San Diego, CA 92101-3827

Central

FLOWERS VS. FINANCIAL INDUSTRY REGULATORY AUTHORITY

09/08/201537-2015-00029957-CU-MC-CTL


http://www.sdcourt.ca.gov/CivilImagingGeneralOrder

Please refer to the General Order - Imaging located on theSan Diego Superior Court website at:

Superior Court of California County of San Diego

NOTICE OF ELIGIBILITY TO eFILEAND ASSIGNMENT TO IMAGING DEPARTMENT

This case is eligible for eFiling. Should you prefer to electronically file documents, refer toGeneral Order 051414 at www.sdcourt.ca.gov for rules and procedures or contact the Court'seFiling vendor at www.onelegal.com for information.

This case has been assigned to an Imaging Department and original documents attached topleadings filed with the court will be imaged and destroyed. Original documents should not befiled with pleadings. If necessary, they should be lodged with the court under California Rules ofCourt, rule 3.1302(b).

On August 1, 2011 the San Diego Superior Court began the Electronic Filing and Imaging PilotProgram (“Program”). As of August 1, 2011 in all new cases assigned to an Imaging Department allfilings will be imaged electronically and the electronic version of the document will be the officialcourt file. The official court file will be electronic and accessible at one of the kiosks located in theCivil Business Office and on the Internet through the court’s website.

You should be aware that the electronic copy of the filed document(s) will be the official courtrecord pursuant to Government Code section 68150. The paper filing will be imaged and held for30 days. After that time it will be destroyed and recycled. Thus, you should not attach anyoriginal documents to pleadings filed with the San Diego Superior Court. Original documentsfiled with the court will be imaged and destroyed except those documents specified inCalifornia Rules of Court, rule 3.1806. Any original documents necessary for a motion hearing ortrial shall be lodged in advance of the hearing pursuant to California Rules of Court, rule 3.1302(b).

It is the duty of each plaintiff, cross-complainant or petitioner to serve a copy of this notice withthe complaint, cross-complaint or petition on all parties in the action.

On all pleadings filed after the initial case originating filing, all parties must, to the extent it isfeasible to do so, place the words “IMAGED FILE” in all caps immediately under the title of thepleading on all subsequent pleadings filed in the action.

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Page: 2


DECLARATION OF SERVICE

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Plaintiff,

v.


Defendants.

CASE NO.


'15CV2390 JMADMS



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I, Robin McBain, declare as follows: I am employed in the County of San Francisco, State of California; I am over the

age of eighteen years and am not a party to this action; my business address is 555 Mission Street, San Francisco, California, 94105, in said County and State. On October 22, 2015, I served the within:

1. NOTICE OF REMOVAL OF ACTION BY DEFENDANT FINANCIAL

INDUSTRY REGULATORY AUTHORITY, INC.

2. DECLARATION OF ETHAN DETTMER IN SUPPORT THEREOF;

3. DEFENDANT FINANCIAL INDUSTRY REGULATORY AUTHORITY, INC.�’S CERTIFICATION OF INTERESTED ENTITIES;

4. CIVIL COVER SHEET.

to all named counsel of record as follows:

Attorneys for Plaintiff Troy Flowers

Michael McColloch McColloch Law Firm 545 Second St., Suite 6 Encinitas, CA 92104 Telephone: (760) 632-1100 Facsimile: (760) 650-0016 E-Mail: [email protected]

BY OVERNIGHT MAIL: I placed a true copy in a sealed envelope addressed as indicated above, on the above-mentioned date. I am familiar with Gibson, Dunn & Crutcher's practice in its above-described San Francisco office for the collection and processing of correspondence for distributing by Federal Express, UPS, and/or U.S. Postal Service Overnight Mail; pursuant to that practice, envelopes placed for collection at designated locations during designated hours are deposited at the respective office that same day in the ordinary course of business.



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I certify under penalty of perjury that the foregoing is true and correct, that the foregoing document(s) were printed on recycled paper, and that this Declaration of Service was executed by me on October 22, 2015, at San Francisco, California.

By: /s/ Robin McBain Robin McBain


1 GIBSON, DUNN & CRUTCHER LLP ETHAN D. DETTMER, SBN …Oct 27, 2015 · Ethan D. Dettmer, Gibson...

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Transcript of 1 GIBSON, DUNN & CRUTCHER LLP ETHAN D. DETTMER, SBN …Oct 27, 2015 · Ethan D. Dettmer, Gibson...