Turner v. MagicJack VocalTec Ltd. et al
OPINION re: 35 MOTION to Dismiss. filed by Daniel Borislow, Peter J. Russo, Andrew Macinnes, Gerald T. Vento, MagicJack VocalTec Ltd. For the reasons set forth above, Defendants' motion to dismiss is granted. IT IS SO ORDERED. (Signed by Judge Robert W. Sweet on 1/29/2014) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DOUGLAS TURNER, Individually and on Behalf
Of All Others Similarly Situated,
13 Civ. 0448
MAGICJACK VOCALTEC, LTD., ANDREW MACINNES,
DANIEL BORISLOW, GERALD T. VENTO, and PETER
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A P PEA RAN C E S:
for the Defendants MAGICJACK VOCALTEC LTD.
ARNOLD & PORTER, LLP
555 Twelfth Street NW
Washington, DC. 20004
John A. Freedman, Esq.
ARNOLD & PORTER, LLP
399 Park Avenue
New York, NY 10022
Stewart D. Aaron, Esq.
Plaintiffss and the Class
POMERANTZ GROSSMAN HUFFORD DAHLSTROM & GROSS LLP
600 Third Avenue, 20th Fl.
New York, NY 10016
Marc I. Gross, Esq.
Jeremy A. Lieberman, Esq.
Murielle J. Steven Walsh, Esq.
1 Tyner, Esq.
THE ROSEN LAW FIRM
275 Madison Avenue, 34th Fl.
New York, NY 10016
Laurence M. Rosen, Esq.
BRONSTEIN GEWIRTZ & GROSSMAN LLP
60 East 42nd Street, S
New York, NY 10165
Peretz Bronstein, Esq.
Sweet, D. J.
Defendants magicJack VocalTec Ltd.
"Company"), Andrew Ma
("MacInnes"), Daniel Borislow
("Borislow"), Gerald Vento (Vento") and Peter Russo ("Russo")
(collectively "Defendants") move to dismiss the Second Amended
Complaint ("SAC") of Plaintiffs Douglas Turner, individually and
on behalf of all others similar
situated ("Turner" or
For the reasons set forth below, Defendants' motion is
rst Complaint on January 18,
2013, and the First Amended Complaint ("FAC") on March 12, 2013.
On April 26, 2013, pursuant to Section 21 D(a) (3) (B)
of the Exchange Act, 15 U.S.C. §7Su-(a) (3) (B), the magicJack
Investor Group and
s members were appointed as Lead Plaintiffs
for the class because they have the largest financial interest
s litigation and otherwise
the requirements of
R. Civ. P. 23, and the Rosen Law Firm P.A. and Pomerantz
Grossman Hufford Dahlstrom & Gross LLP were appointed Co-Lead
On July 22, 2013,
Amended Complaint ("SAC").
Plaintiffs filed their Second
Defendants filed their motion to
dismiss the SAC on September 13, 2013.
Defendants' motion was heard and marked fully
submitted on November 20, 2013.
sells software and hardware for making telephone calls over the
between the period of February 28,
2012 through January 8,
the Company made a series of "false and/or misleading statements
and/or failed to
sclose material facts
of keeping the Company's stock price inflated.
Borislow had pledged
disclose the significance of
revenue recorded from puts
107-115); and (4)
Period, magicJack was engaged in a buyback program to repurchase
Ilion of its stock.
The individual Defendants are of
cers and directors
of magicJack during the Class Period.
Borislow served as magicJack's CEO from the beginning
"over one million
which he was alleged to have sold to "long term
President and three shareholders," at a price whi
On May 9, 2012, Thompson Reuters published an article
detailing how the CEO of Green Mountain Cof
Roasters had been
had sold pledged shares
to meet margin calls.
The article quoted former SEC chairman Arthur Levitt,
holdinas is so
I would encourage
reholders to push
companies to implement such protections where they don't
Nine days later,
8-K filed on May 18,
Defendants revealed in a form
2012 that Borislow disposed of 1.1 million
"moved along quicker" by recent news regarding executive margin
and that Defendants Vento and MacInnes were among the
group of investors purchasing Bo
slow's shares at
though such disclosure was required.
to close at $17.74 per share
of Regulation S-K requires
percent over two trading sessions,
on May 18, 2012.
number of shares
security by named executive officers and directors.
17 C. F. R.
For persons required to
disclosed within ten days of the pledge,
as well as "material"
sales that result from any margin call or foreclosure.
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