SUPPLEMENTAL MOTION TO HOLD DEFENDANT’S PRINCIPALS IN CONTEMPT AND FOR SANCTIONS

Vasquez v. Libre by Nexus, Inc., No. 4:17-cv-00755-CW

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ANNICK M. PERSINGER, SBN 272996

TYCKO & ZAVAREEI LLP

1970 Broadway, Suite 1070

Oakland, California 94612

(510) 254-6808

apersinger@tzlegal.com

JESSE NEWMARK, SBN 247488

CENTRO LEGAL DE LA RAZA

3022 International Boulevard, Suite 410

Oakland, California 94601

(510) 437-1863

jnewmark@centrolegal.org

JASON S. RATHOD, pro hac vice

NICHOLAS A. MIGLIACCIO, pro hac vice

MIGLICACCIO & RATHOD LLP 

412 H Street, Northeast, Suite 302

Washington District of Columbia 20002

(202) 470-3520

nmigliaccio@classlawdc.com 

jrathod@classlawdc.com

Counsel for Plaintiffs and the Class

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

JUAN QUINTANILLA VASQUEZ, 

GABRIELA PERDOMO ORTIZ, VICTOR 

HUGO CATALAN MOLINA, and KEVIN 

CALDERON, individually and on behalf of all others 

similarly situated, 

Plaintiffs, 

v. 

LIBRE BY NEXUS, INC. and JOHN DOES 1- 50, 

Defendants.

Case No. 4:17-cv-00755-CW

NOTICE OF MOTION AND 

SUPPLEMENTAL MOTION TO HOLD 

DEFENDANT’S PRINCIPALS IN

CONTEMPT AND FOR SANCTIONS

Judge: Hon. Claudia Wilken 

Hearing Date: January 19, 2023

Time: 2:30 p.m.

Courtroom: TBD 

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TO THE COURT AND ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE THAT on January 19, 2023 at 2:30 p.m. in the Courtroom of the 

Hon. Claudia Wilken of the United States District Court for the Northern District of California, 

located at 1301 Clay Street, Oakland, CA 94612, Plaintiffs Juan Quintanilla Vasquez, Gabriela 

Perdomo Ortiz, Victor Hugo Catalan Molina, and Kevin Calderon, by and through Class Counsel, 

will and hereby do move for an order to hold Defendant’s principals—Micheal Donovan, Evan Ajin, 

and Richard Moore—in civil contempt for failing to cure Defendant’s contempt despite their 

responsibility to do so. Plaintiffs further request sanctions on the terms set forth herein, for 

Defendant and its principals to pay Plaintiffs’ attorneys’ fees and costs for making the instant motion, 

and to take such other action as the Court may find appropriate. Plaintiffs also seek an amended 

judgment that includes Micheal Donovan, Evan Ajin, and Richard Moore (the “LBN Principals”). 

This Motion is based on this Notice of Motion and Motion, the attached Memorandum of 

Points and Authorities, the Declarations of Jason Rathod (“Rathod Decl.”) and Cameron Partovi 

(“Partovi Decl.”) submitted herewith; the docket in this case; and all other documents or argument as 

the Court may consider. 

Date: November 23, 2022 TYCKO & ZAVAREEI LLP

By: /s/ Annick M. Persinger

ANNICK M. PERSINGER, SBN 272996

1970 Broadway, Suite 1070

Oakland, California 94612

(510) 254-6808

apersinger@tzlegal.com

JESSE NEWMARK, SBN 247488

CENTRO LEGAL DE LA RAZA

3022 International Boulevard, Suite 410

Oakland, California 94601

(510) 437-1863

jnewmark@centrolegal.org

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JASON S. RATHOD, pro hac vice

NICHOLAS A. MIGLIACCIO, pro hac vice

MIGLICACCIO & RATHOD LLP 

412 H Street, Northeast, Suite 302

Washington District of Columbia 20002

(202) 470-3520 

nmigliaccio@classlawdc.com 

jrathod@classlawdc.com

Counsel for Plaintiffs and the Class

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TABLE OF CONTENTS

PAGE

I. INTRODUCTION .................................................................................................................................... 1

II. BACKGROUND OF CONTEMPT PROCEEDINGS ..................................................................... 1

A. The Court Predicts That Individual Sanctions May Be Necessary. .............................................. 1

B. The Court Enters a Contempt Order Against LBN. ...................................................................... 2

C. LBN Ignores the Court’s Contempt Order. ..................................................................................... 3

III. LBN’S CONTINUED FLAGRANT VIOLATION DEMONSTRATES THE NEED 

TO HOLD LBN’S PRINCIPALS IN CONTEMPT AND TO INCREASE THE 

SEVERITY OF SANCTIONS................................................................................................................. 5

A. Legal Standard....................................................................................................................................... 5

B. The LBN Principals Should Be Held in Contempt to Coerce LBN’s Compliance 

with the Settlement Orders. ................................................................................................................ 6

1. The LBN Principals are “Legally Identified with” LBN.......................................................... 6

a. Micheal Donovan .................................................................................................................... 8

b. Evan Ajin ................................................................................................................................. 9

c. Richard Moore ...................................................................................................................... 10

2. The LBN Principals Aided LBN’s Violations. ....................................................................... 10

3. The LBN Principals Had Notice of the Settlement Orders................................................. 11

C. The Obstructive Conduct of LBN and the LBN Principals Warrants Imposition of 

Severe Sanctions. ............................................................................................................................... 13

IV. LBN MUST PAY CLASS COUNSEL’S ATTORNEYS’ FEES IN BRINGING THIS 

MOTION.................................................................................................................................................. 14

V. Amending the Judgment to Clarify LBN’s and the Principal’s obligations is Appropriate ........... 14

VI. CONCLUSION ....................................................................................................................................... 15

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TABLE OF AUTHORITIES

PAGE(S)

CASES

Campbell v. Keystone Aerial Surveys, Inc.

138 F.3d 996 (5th Cir. 1998)...............................................................................................................6, 14

Frankl v. HTH Corp.

832 F. Supp. 2d 1179 (D. Haw. 2011)..................................................................................................... 7 

Go-Video v. Motion Picture Ass’n of Am. (In re Dual-Deck Video Cassette Recorder Antitrust Litig.) 

10 F.3d 693 (9th Cir. 1993)....................................................................................................................... 5 

Hernandez v. County of Monterey

2019 WL 1934882 (N.D. Cal. May 1, 2019)......................................................................................... 14

In re Crystal Palace Gambling Hall, Inc.

817 F.2d 1361 (9th Cir. 1987)................................................................................................................... 5 

Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y

774 F.3d 935 (9th Cir. 2014)..................................................................................................................... 6 

J.L. v. Cuccinelli

2020 WL 2562895 (N.D. Cal. Feb. 20, 2020)......................................................................................... 6 

Kelly v. Wengler

822 F.3d 1085 (9th Cir. 2016)............................................................................................................... 5, 6

Leads Club, Inc. v. Peterson

2008 WL 186504 (S.D. Cal. Jan. 22, 2008) ........................................................................................... 15

Luv N’Care, Ltd. v. Laurain

2019 WL 4279028 (D. Nev. Sept. 10, 2019)........................................................................................... 8 

Martin v. City of Barstow

2015 WL 12743594 (C.D. Cal. Dec. 21, 2015)..................................................................................... 15

NLRB v. Sequoia Dist. Council of Carpenters, AFL-CIO

568 F.2d 628 (9th Cir. 1977)...........................................................................................................6, 7, 12

Optronics Techs., Inc. v. Ningbo Sunny Elec. Co., Ltd.

2020 WL 3617907 (N.D. Cal. July 2, 2020)......................................................................................6, 13

Perry v. O'Donnell

759 F.2d 702 (9th Cir. 1985)................................................................................................................... 14

RLI Ins. Co. v. Nexus Servs., Inc.,

2022 WL 2654227 (W.D. Va. July 8, 2022) ........................................................................................ 7, 9

SEC v. Hickey

322 F.3d 1123 (9th Cir. 2003)................................................................................................................... 5 

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Shillitani v. United States

384 U.S. 364 (1966).................................................................................................................................. 13

United States v. Greyhound Corp.

363 F. Supp. 525 (N.D. Ill. 1973)............................................................................................................. 6

United States v. Laurins

857 F.2d 529 (9th Cir. 1988).............................................................................................................6, 7, 8

United States v. Powers

629 F.2d 619 (9th Cir. 1980)...............................................................................................................6, 13

United States v. Seetapun

750 F.2d 607 (7th Cir. 1984)..................................................................................................................... 7

United States v. Voss

82 F.3d 1521 (10th Cir. 1996)................................................................................................................... 8

Whittaker Corp. v. Execuair Corp.

953 F.2d 510 (9th Cir. 1992)................................................................................................................... 13

Wilson v. United States

221 U.S. 361 (1911).................................................................................................................................... 8

STATUTES

18 U.S.C. § 401 .................................................................................................................................................. 6

18 U.S.C. § 402 .................................................................................................................................................. 6

OTHER AUTHORITIES

Robert E. Jones, et al.

Rutter Group Practice Guide: Fed. Civ. Trials & Evid. (June 2022)............................................6, 13

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I. INTRODUCTION

Plaintiffs Juan Quintanilla Vasquez, Gabriela Perdomo Ortiz, Victor Hugo Catalan Molina, 

and Kevin Calderon, by and through Class Counsel, respectfully seek an order holding the principals 

of Defendant Libre by Nexus (“LBN”)—Micheal Donovan, Richard Moore, and Evan Ajin (the 

“LBN Principals”)—in civil contempt and imposing coercive sanctions. Additionally, Plaintiffs seek 

an amended judgment that includes and obligates the LBN Principals along with LBN. 

For nearly two years, at the direction of the LBN Principals, LBN has flagrantly violated the 

parties’ Settlement Agreement and the Court’s prior orders issued in this action. During this time, the 

LBN Principals—who admit they are in control of LBN and responsible for its conduct—have chosen 

delay and obstruction over compliance to avoid having to make good on the promises LBN made in 

the Settlement Agreement. 

On October 3, 2022, recognizing LBN’s unacceptable behavior, the Court issued an order 

holding LBN in contempt and imposing coercive sanctions. Dkt. 225 (“Contempt Order”). But, 

shielded by their company, the LBN Principals are no closer to compliance today than they were on 

October 3. Without individual responsibility it is clear that the LBN Principals will continue to shirk 

compliance with Court orders. 

Accordingly, Plaintiffs respectfully request that the Court hold the LBN Principals in 

contempt in recognition of their role as the architects of LBN’s misconduct. Plaintiffs further request 

sanctions on the terms set forth herein, for LBN and the LBN Principals to pay Plaintiffs’ attorneys’ 

fees and costs for making the instant motion, and to take such other action as the court may find 

appropriate. Finally, Plaintiffs seek an amended judgment that includes the LBN Principals along with 

LBN and makes clear that the LBN Principals are also obligated by the original February 8, 2021 Class 

Action Judgment in this Action, as well as by the enforcement and contempt orders subsequently 

entered by the Court. See [Proposed] Amended Judgment.

II. BACKGROUND OF CONTEMPT PROCEEDINGS 

A. The Court Predicts That Individual Sanctions May Be Necessary.

During the September 15, 2022, hearing regarding Plaintiffs’ First Contempt Motion, the 

Court voiced its concern that the monetary penalties requested in that motion would be ineffective 

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given LBN’s stubborn refusal to comply with the Court’s prior orders. Rathod Decl., ¶ 9, Ex. 2 

[2021.09.15 Hearing Tr.] at 6:8-18. The Court also suggested the possibility that one or more of the 

LBN Principals could be held in contempt given the severity of LBN’s noncompliance:

[H]ow is this going to help? I’ve been ordering these monetary penalties for some time 

now and nothing seems to be happening. Do you have a plan for what you’ll do if 

monetary penalties are not complied with? I guess I should say that civil contempt . . 

. has coercive remedies that can be ordering someone to do something . . . it can be 

ordering them to pay a coercive fine that they must pay per day for their 

noncompliance up to and including coercive jail time, which can be custody time to 

be served until compliance is had.

Id. (emphasis added); see also id. at 20:11-17 (observing that another court found “individual 

responsibility on the part of Mr. Donovan,” but stating, “I don’t have a request like that before me at 

this point”).

During the hearing, and in the Court’s subsequent Contempt Order opinion, the Court 

recognized that LBN had made no showing of its inability to comply with any of the Court’s prior 

orders. Rathod Decl., ¶ 9, Ex. 2 [2021.09.15 Hearing Tr.] at 6:19-22 (“[T]here is no showing that any 

payment of money is impossible.”); Dkt. 224 at 6 (stating that LBN has provided no “evidence 

showing the state of LBN’s financial condition or the steps that LBN has taken, if any, to comply with 

the Court’s orders and its obligations under the settlement agreement”).

In its Contempt Order, the Court authorized Class Counsel to “file a supplemental motion 

for civil contempt sanctions” if Class Counsel had a good faith belief, after reviewing LBN’s courtordered document production, that LBN had not fully applied the forms of relief described in item 

(2), above. Contempt Order at 3:11-19. Because LBN made only a late and very limited document 

production as to one of the four forms of required relief, Rathod Decl., ¶ 4, and because LBN and 

the LBN Principals have refused do anything further to comply with the Court’s prior orders, Class 

Counsel is compelled to bring this supplemental motion for civil sanctions to hold LBN and its 

principals in contempt.

B. The Court Enters a Contempt Order Against LBN.

The Court’s Contempt Order opinion found LBN in contempt after determining that it had 

persistently violated numerous of the Court’s prior orders, including: (1) the Final Approval Order 

(Dkt. 184); (2) the July 30, 2021 Enforcement Order (Dkt. 203); (3) the November 12, 2021 Order 

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(Dkt. 209); and (4) the January 12, 2022 Order (Dkt. 216) (together, the “Settlement Orders”). (Dkt. 

224 at 9-10, 12-13, 16, 20, 22, 24-25.) In particular, the Court found that LBN had violated the 

Settlement Orders by:

• failing to pay a total of over $1.7 million in agreed-upon payments to the Class and to 

Class Counsel; failing to pay Class Counsel attorneys’ fees in connection with the 2021 

enforcement motion prepared by Class Counsel, plus interest calculated from July 30, 

2021; 

• failing to pay $72,000 in settlement administration costs, plus interest calculated from 

August 14, 2021; and 

• by failing to provide documentation to show that LBN implemented a number of other 

required forms of relief to the Class, including the Debt Relief Fund, the Total Payment 

Cap, the Timely and in Full Payment Discount, and the Consecutive Payment Discount 

(collectively, “Debt and Discount Relief”). 1

(Dkt. 224 at 9-10, 14, 17, 20-24.) As discussed further below, the Court also imposed several additional 

sanctions against LBN to coerce their compliance with the Settlement Orders.

C. LBN Ignores the Court’s Contempt Order.

Unsurprisingly, the contemptuous behavior of LBN and the LBN Principals has continued 

unabated since the Court issued the Contempt Order on October 3, 2022. Since October 3, neither 

LBN nor the LBN Principals have made any real effort to bring LBN further into compliance with 

any of the Settlement Orders. Rathod Decl., ¶¶ 2-6.

Most importantly, although the Court held it due and owing in the Contempt Order, LBN has 

not paid a single cent of the amount it owes to Settlement Class Members under the Settlement 

Agreement. 

1 This Motion adopts the terminology used by the Court to describe these forms of relief in its 

Contempt Order.

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Furthermore, other than an incomplete document production related to the Debt and 

Discount Relief, and a meager alleged payment to the Settlement Administrator, 2 LBN and the LBN 

Principals have also done nothing to comply with any other aspect the Contempt Order since it was 

issued:

(1) The Settlement Administrator has informed Class Counsel that LBN has not yet made 

any payments for amounts owed for (a) the Settlement Agreement (totaling 

$1,590,000); (b) costs of settlement administration (totaling $72,000 plus interest); (c) 

the $34,142.60 in attorneys’ fees incurred by Class Counsel in connection with 

Plaintiffs’ June 10, 2021, Motion to Enforce the Settlement Agreement ($34,142.60), 

plus interest; or (d) the $53,021.60 in attorneys’ fees incurred by Class Counsel in 

connection with Plaintiffs’ original contempt motion (“First Contempt Motion”). 

Rathod Decl., ¶ 6.;

(2) As required by the Contempt Order, on October 11, 2022, Class Counsel emailed to 

the LBN principals (Ajin, Moore, and Donovan) a list of fifty eligible class members 

for the four forms of Debt and Discount Relief. Rathod Decl. ¶ 4, Ex. 1. LBN was 

required to provide documents sufficient to prove its compliance with these items 

within five business days of receiving Class Counsel’s email (by October 18, 2022), 

including sworn declarations by LBN’s principals authenticating these documents. 

Contempt Order at 3. Only after the Court ordered the parties to provide status 

reports on November 4, 2022, LBN finally responded to Class Counsel’s email, 

purporting to provide relevant records for twenty-five of the fifty class members 

selected as to the Debt Relief Fund. Rathod Decl., ¶ 4. Class Counsel have yet to 

carefully review the documents provided, but even assuming they are sufficient for 

those class members, LBN was still almost a month late in providing these partial 

2 LBN claims in its status report that it sent a payment of $2,000 to the Settlement Administrator. 

Dkt. 230. While this payment may be forthcoming, LBN’s claim is notably not supported by any 

evidence that payment was made, or even a declaration from one of LBN’s principals to that effect. 

Furthermore, even if this payment is forthcoming, it falls far short of compliance with the 

Settlement and Contempt Orders. 

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records for the required Debt Relief Fund, and has yet to provide any sampling for the 

other three forms of relief ordered by the Court Rathod Decl., ¶ 5.

(3) LBN has not paid any amount of the cumulative $1,000 per day sanctions that it has 

accrued for LBN’s noncompliance with the above items. Rathod Decl., ¶ 7. The total 

of the daily sanctions accrued as of November 22, 2022, is $174,000. Id.

III. LBN’S CONTINUED FLAGRANT VIOLATION DEMONSTRATES THE 

NEED TO HOLD LBN’S PRINCIPALS IN CONTEMPT AND TO 

INCREASE THE SEVERITY OF SANCTIONS.

It is indisputable that LBN remains in contempt of the Court’s prior orders. LBN’s 

noncompliance is now even more pronounced than at the time of the Court’s Contempt Order 

because it has ignored the additional requirements and sanctions set forth in that order. Rathod Decl., 

¶¶ 2-7. LBN has also provided no new evidence to Class Counsel or the Court showing its inability to 

comply. Rathod Decl., ¶ 8. 

For the reasons discussed below, the Court should hold in civil contempt the LBN Principals, 

as these individuals are admittedly responsible for LBN’s noncompliance, and have actively obstructed 

its compliance. Furthermore, Plaintiffs ask the Court to enter an Amended Judgment that includes the 

LBN Principals. 

A. Legal Standard

“Civil contempt . . . consists of a party’s disobedience to a specific and definite court order by 

failure to take all reasonable steps within the party’s power to comply.” Go-Video v. Motion Picture Ass’n 

of Am. (In re Dual-Deck Video Cassette Recorder Antitrust Litig.), 10 F.3d 693, 695 (9th Cir. 1993). “District 

courts have broad equitable power to order appropriate relief in civil contempt proceedings.” SEC v. 

Hickey, 322 F.3d 1123, 1128 (9th Cir. 2003). When a settlement has been incorporated in a court’s 

order and judgment, and the settlement has been breached, the court may hold the breaching party in 

contempt and issue appropriate civil sanctions, including to “coerce[] compliance” or “compensate 

the complainant for actual losses.” Kelly v. Wengler, 822 F.3d 1085, 1095-98 (9th Cir. 2016). 

“The contempt ‘need not be willful,’ and there is no good faith exception to the requirement 

of obedience to a court order.” Id. (quoting In re Crystal Palace Gambling Hall, Inc., 817 F.2d 1361, 1365 

(9th Cir. 1987)). The contemnor may only avoid a finding of civil contempt by showing it “took all 

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reasonable steps to comply with the order” it violated. Kelly, 822 F.3d at 1096 (emphasis in original) 

(citing Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y, 774 F.3d 935, 945 (9th Cir. 2014)). Civil 

contempt must be proven by clear and convincing evidence. See J.L. v. Cuccinelli, 2020 WL 2562895, at 

*2 (N.D. Cal. Feb. 20, 2020). 

Finally, “[a]n order to a corporation binds those who are legally responsible for its affairs.” 

United States v. Laurins, 857 F.2d 529, 535 (9th Cir. 1988). Accordingly, individuals affiliated with a 

contemnor corporate party may themselves “be liable for contempt where the non-part[ies] ha[ve] 

notice of the order and (1) aid[] the party in violating the court order or (2) [are] legally identified with 

[the corporation].” Optronics Techs., Inc. v. Ningbo Sunny Elec. Co., Ltd., 2020 WL 3617907, at *2-3 (N.D. 

Cal. July 2, 2020). 

Federal courts are further empowered under 18 U.S.C. §§ 401 and 402 “to impose fine or 

imprisonment for” contemptuous conduct. United States v. Powers, 629 F.2d 619, 624 (9th Cir. 1980); 

see also Robert E. Jones, et al., Rutter Group Practice Guide: Fed. Civ. Trials & Evid. (June 2022) ¶ 

13:312 (“[A] court may punish civil contempt by both a fine and imprisonment.” (citing Campbell v. 

Keystone Aerial Surveys, Inc., 138 F.3d 996, 1005 (5th Cir. 1998))).

B. The LBN Principals Should Be Held in Contempt to Coerce LBN’s 

Compliance with the Settlement Orders. 

1. The LBN Principals are “Legally Identified with” LBN.

Non-parties to an action, such as the LBN Principals, are “legally identified” with a 

corporation because they are “officially responsible for the conduct of its affairs.” NLRB v. Sequoia 

Dist. Council of Carpenters, AFL-CIO, 568 F.2d 628, 634 (9th Cir. 1977) (quoting United States v. Greyhound 

Corp., 363 F. Supp. 525, 571 (N.D. Ill. 1973)); accord Laurins, 857 F.2d at 535 (“An order to a 

corporation binds those who are legally responsible for the conduct of its affairs.”). The titles held by 

the LBN Principals, along with the statements and actions taken throughout this litigation indicate 

that Micheal Donovan, Evan Ajin, and Richard Moore are legally identified and officially responsible 

for the conduct of LBN’s affairs. 

First, the LBN Principals’ titles within LBN are sufficient to show that they are legally 

identified with LBN. 

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Donovan and Ajin are both officers of LBN: Donovan is the Chief Executive Officer, and 

Ajin is LBN’s “Corporate Secretary and . . . principal.” Rathod Decl., ¶¶ 10-11, Exs. 3-4 [Aug. 24, 

2021 Ajin Decl.; Nov. 19, 2021 Donovan Decl.].) 

LBN’s website also identifies Ajin as LBN’s Vice President of Operations. LBN’s March 2021 

Annual Report filed with the State of Virginia declares that Moore was, at least at that time, LBN’s 

Vice President and Executive Director. Rathod Decl., ¶ 12, Ex. 5 [Mar. 30, 2021 Annual Report]. 

This Court has also identified Donovan, Ajin, and Moore each as the principals of LBN. 

Specifically, in advance of the September 15, 2022 Contempt Motion hearing (“Contempt Motion 

Hearing”), the Court—based on recent findings of another federal court on a robust record—

identified Donovan, Ajin, and Moore each as the principals of LBN. See Dkt. No. 218 at 9 (citing RLI 

Ins. Co. v. Nexus Servs., Inc., No. 5:18-CV-00066, 2022 WL 2654227, at *1 (W.D. Va. July 8, 2022)). 

LBN has done nothing to dispute this finding and, in fact, LBN’s counsel itself identified each of 

Donovan, Ajin, and Moore as LBN’s “individual principals” during the September 15, 2022 Contempt 

Motion hearing (“Contempt Motion Hearing”), acknowledging the responsibility of these individuals 

over LBN’s operations. Rathod Decl., ¶ 9, Ex. 2 [Sept. 15, 2022 Contempt Motion Hearing Tr.] at 

3:18-19. 

That the LBN Principals occupy such key roles within LBN is sufficient to show that they are 

legally identified with the corporation for purposes of holding them in contempt. Laurins, 857 F.2d at 

535 (“De facto as well as de jure officers are responsible for enabling a corporation to comply with 

orders directed to it.” (citing United States v. Seetapun, 750 F.2d 607 (7th Cir. 1984)); N.L.R.B. v. Sequoia 

Dist. Council of Carpenters, AFL-CIO, 568 F.2d 628, 633 (9th Cir. 1977) (“It can hardly be argued that 

the principal officers of a labor union are not legally identified with it, and thus liable in contempt for 

disobeying an order directed to the union.”); Frankl v. HTH Corp., 832 F. Supp. 2d 1179, 1213 (D. 

Haw. 2011) (“Respondents can hardly argue that Minicola, as HTH’s Regional Vice President and the 

Hotel’s acting general manager and human resources manager, is not legally identified with 

Respondents such that he cannot be held in contempt . . . .”).

Second, the LBN Principals’ statements and actions taken throughout this litigation 

demonstrate both their general control over LBN’s operations and their specific responsibility for 

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ensuring LBN’s compliance with the Settlement Agreement and the Court’s orders. Luv N’Care, Ltd. 

v. Laurain, 2019 WL 4279028, at *5 (D. Nev. Sept. 10, 2019) (member of company legally identified 

with corporation where he “acted on behalf of [the company] in connection with the subpoena” that 

the company was accused of obstructing and spoke with attorneys regarding his possession of 

“potentially responsive documents”); see generally United States v. Voss, 82 F.3d 1521, 1526 (10th Cir. 

1996) (individuals with knowledge of a court’s order “who ‘fail to take appropriate action within their 

power for the performance of the corporate duty’” may be found guilty of contempt alongside the 

corporation) (quoting Wilson v. United States, 221 U.S. 361, 376 (1911)).

a. Micheal Donovan 

Donovan has signed declarations filed with the Court in this action in which he speaks on 

LBN’s behalf, through his “personal knowledge,” regarding LBN’s efforts to comply with the 

Settlement and Contempt Orders. E.g., Rathod Decl., ¶ 11, Ex. 4 [Nov. 19, 2021 Donovan Decl.]. 

That Donovan attested to LBN’s behavior in such detail based on his personal knowledge shows the 

significant degree of control Donovan has over these compliance efforts. For instance, Donovan 

testified (unpersuasively and ultimately incorrectly) regarding the date by which “Libre’s accounting 

system” would be implemented; the purpose behind LBN’s “good-faith dialog with Class Counsel” 

regarding the Settlement Agreement; and LBN’s “full[] inten[tion] to pay the Attorneys’ Fees” and 

“the Administration Fees.” Rathod Decl., ¶ 11, Ex. 4 [Nov. 19, 2021 Donovan Decl.]] ¶¶ 1, 4-5, 15, 

17. Furthermore, Donovan describes himself in his November 19, 2021 Declaration as LBN’s 

“controlling principal.” Rathod Decl., ¶ 11, Ex. 4 [Nov. 19, 2021 Donovan Decl.] ¶ 1 (emphasis 

added). 

Donovan also executed the Settlement Agreement on LBN’s behalf, further demonstrating 

his control over LBN. Dkt. 143-1 at 38. See, e.g., Laurins, 857 F.2d at 535 (evidence that non-party 

signed checks on behalf of the company contributed to finding that he was legally identified with the 

company). 

Furthermore, in a federal action in Virginia stemming from LBN’s persistent refusal to 

cooperate in litigation and pay amounts owing, the court found that Donovan was responsible for 

ensuring LBN’s compliance with discovery subpoenas. RLI Ins. Co. v. Nexus Servs., Inc., 2022 WL 

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2654227, at *1 (Order re RLI Insurance Co.’s Motions for Contempt). Donovan is no less responsible 

for managing LBN’s litigation conduct in this action. 

b. Evan Ajin

Ajin, like Donovan, signed declarations in this action—drawing from his personal 

knowledge—describing LBN’s “compliance” with the Settlement Orders. Rathod Decl., ¶ 13, Ex. 6 

[Dkt. 213]. Ajin’s submission of these declarations signifies that he plays a large role in ensuring LBN’s 

compliance. Ajin even stated in his November 30, 2021, declaration that he is “personally involved in 

supervising the efforts” to process the “Fee Waivers and Debt Relief Credits” required by the 

Settlement Orders, and described “[t]hese efforts” as “extremely time consuming.” Rathod Decl., ¶ 

13, Ex. 6 [Nov. 30, 2021 Ajin Decl.] ¶¶ 23-24. 

Further, from late 2021 onward, Ajin began representing LBN directly in email 

correspondence with Class Counsel regarding LBN’s repeated failures to satisfy their obligations to 

the Class and the Court. E.g., Rathod Decl., ¶ 4, Ex. 1; ¶ 14, Ex. 7. In this correspondence, Ajin 

repeatedly demonstrates his control over LBN’s compliance:

• On September 29, 2021, Ajin stated that LBN modified the addendum to its Standard 

Operating Procedures “to knock another item off [Class Counsel’s] compliance list,” 

and proposed producing a “random sample” of debt relief payments to prove LBN’s 

compliance with its Debt Relief Fund obligations, Rathod Decl., ¶ 14, Ex. 7, at 8-9;

• On March 2, 2022, Ajin stated that LBN was “work[ing] through . . . complex issues” 

relating to its compliance, and asked for Class Counsel to “give [LBN] additional 

time,” Rathod Decl., ¶ 4, Ex. 1, at 6-7;

• On March 17, 2022, Ajin sent Class Counsel an email in response to Class Counsel’s 

February 18, 2022 email which included a number of proposals to negotiate LBN’s 

obligations. Rathod Decl., ¶ 4, Ex. 1, at 3-4.

• On November 14, 2022, Ajin finally responded to Class Counsel’s email providing 

class member sample lists to LBN, by describing the work purportedly being 

undertaken by LBN, and providing a notarized affidavit from Ajin. Rathod Decl., ¶ 4.

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Further, on August 25, 2022, Ajin sent a letter to the Court in response to Plaintiffs’ First 

Contempt Motion, stating that he “personally . . . volunteered” to “work[] out . . . issues” regarding 

LBN’s compliance, acknowledging his control over LBN’s conduct. Dkt. 219 at 1. 

c. Richard Moore 

Moore, like Ajin, exercised control over LBN’s obligations by trying to negotiate the terms of 

its compliance with Class Counsel. In Ajin’s September 29, 2021 email to Class Counsel, Ajin states, 

“Richard Moore would like to come out to California and meet with you, Mr. Rathod, one-on-one, to 

resolve this and related financial issues pertaining to the Settlement.” Rathod Decl., ¶ 14, Ex. 7, at 7-

8. On October 1, 2022, Moore reaffirmed in an email to Class Counsel that he wanted a meeting to 

“mediate[] in good faith,” to “work out differences.” Rathod Decl., ¶ 14, Ex. 7, at 5-6. 

Later, on October 27, 2021, Moore explained to Class Counsel that he was “working with 

technicians and consultants” to develop “new software” to assist LBN’s compliance efforts, evincing 

his oversight and control over this process. Rathod Decl., ¶ 14, Ex. 7, at 3. 

In sum, the LBN Principals’ official roles within LBN, combined with their various admissions 

throughout this litigation regarding their role in securing LBN’s compliance with the Settlement 

Orders, show that they are legally identified with LBN for purposes of holding them in contempt. 

2. The LBN Principals Aided LBN’s Violations. 

Much of the evidence described above is evidence not only of the LBN Principals’ 

responsibility over LBN, but of their active role in causing LBN to violate the Settlement Orders, 

which also suffices to establish their liability for LBN’s contempt. See Optronic Techs., Inc., 2020 WL 

3617907, at *2-3 (non-parties are liable for contempt when they “aid[] the party in violating the court 

order”).

Instead of working to bring LBN into compliance with the Settlement Agreement and Orders, 

the LBN Principals have engaged in a pattern of endless delay for nearly two years that appears at 

this point to be an intentional effort to delay LBN’s performance of its obligations for as long as 

possible. 

For instance, on September 29, 2021, Ajin responded to Class Counsel’s email regarding 

LBN’s noncompliance by proposing that Moore negotiate the terms of LBN’s compliance with Class 

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Counsel, even though there was absolutely nothing negotiable about the need for LBN to comply 

with orders issued by the Court. Rathod Decl., ¶ 14, Ex. 7, at 7-8. Later in the same email thread, 

Moore continues the LBN Principals’ delay tactics by promising Class Counsel that LBN was 

developing “new software” that would enable LBN to generate documentation more easily regarding 

the forms of relief for which LBN was required to provide proof of compliance. Id. at 2-3. More than 

one year later, LBN has yet to provide adequate supporting documentation for these forms of relief. 

Donovan and Ajin’s statements submitted in this action were similarly designed to reassure 

the Court and Class Counsel while continuing to cause LBN to avoid its obligations. For instance, 

Donovan promises in his January 26, 2022 Declaration that LBN “intends to” fully pay “the 

Administration Costs and Attorney’s fees by March 1, 2022.” Rathod Decl., ¶ 16, Ex. 8 [Jan. 26, 2022 

Donovan Decl.] ¶ 13. Ajin made a number of equally hollow promises in his August 25, 2022 letter 

to the Court, including that LBN would repay the remaining costs of settlement administration 

“before 90 days.” Dkt. 219 at 4. As of November 22, 2022, 89 days after August 25, 2022, LBN is 

nowhere close to fulfilling this promise. LBN alleges that it paid $2,000 to the Settlement 

Administrator on November 14, 2022, in an unsworn status report filed by LBN’s counsel. Dkt. 230. 

LBN has produced no evidence that this payment was actually made. And even if this meager payment 

was made, it would be yet another instance where LBN makes a paltry effort toward its vast obligations 

at the eleventh hour to avoid stoking further sanctions from the Court or demands from Class 

Counsel.

3. The LBN Principals Had Notice of the Settlement Orders.

It is evident from the record of this action, and from Class Counsel’s correspondence with 

LBN, that each of the LBN Principals were aware of and deeply familiar with the Settlement Orders. 

First, each of the three LBN Principals attended the Contempt Motion Hearing. Dkt. 223 

(Civil Minutes from Contempt Motion Hearing, stating that Donovan, Ajin, and Moore were in 

attendance). Their attendance by itself means that the LBN Principals were familiar with the subject 

matter of the hearing—the terms of the Court’s prior orders, and LBN’s violations of each of these 

orders. Furthermore, the LBN Principals would have necessarily become aware of LBN’s prior 

violations of the Settlement Orders, and LBN’s further obligations and sanctions memorialized in the 

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Contempt Order, as these were discussed at length during the hearing. E.g., Rathod Decl., ¶ 9, Ex. 2 

[Sept. 15, 2022, Contempt Motion Hearing Tr.] at 11:21-12:1 (settlement administrator fee); 12:2-6 

(attorneys’ fees for Plaintiffs’ prior Motion to Enforce the Settlement Agreement); 12:17-20 ($1,000 

daily coercive sanctions); 12:21-13:2 ($1.59 million class fund and daily coercive sanctions); 13:3-13 

(Consecutive Payment Discount and proposal for LBN to provide proof of compliance based on 

samples); 15:1-18:11 (discussing Total Payment Cap and proposal for LBN to provide proof of 

compliance based on samples); 19:25-20:6 (discussing request for attorneys’ fees in connection with 

the First Contempt Motion and daily coercive sanctions).

Second, the LBN Principals were involved in email correspondence with Class Counsel in 

which Class Counsel repeatedly and specifically reminded the LBN Principals of LBN’s unmet 

obligations. See Rathod Decl., ¶ 14, Ex. 7, at 2-10 (email thread in which Moore, Donovan, and Ajin 

are copied, discussing LBN’s failure to comply with specific terms of the Settlement Agreement and 

the Settlement Orders); Rathod Decl., ¶ 4, Ex. 1, at 1 (summarizing several of LBN’s obligations set 

forth in the Contempt Order, and attaching the Contempt Order).

Third, the LBN Principals undoubtedly have notice of the Settlement Orders by nature of 

their intimate involvement with this litigation, and by affirmatively causing LBN’s noncompliance, as 

discussed above. See Sequoia Dist. Council of Carpenters, 568 F.2d at 634 (non-parties’ “long-standing 

relation to the underlying controversy” sufficient evidence that the non-parties received notice of the 

order for purposes of establishing contempt). 

The LBN Principals could not have declared that they were working to bring LBN into 

compliance with the Settlement Orders, or that they wished to negotiate the terms of LBN’s 

compliance, without first having notice of these orders. Further, Ajin and Donovan each submitted 

declarations to testify to LBN’s efforts to comply with the Settlement Orders and acknowledged that 

they were required to do so by the July 2021 Enforcement Order (Dkt. 203) and the November 12, 

2021 Order (Dkt. 209), respectively. Rathod Decl., ¶ 13, Ex. 6 [Nov. 30, 2021 Ajin Decl.] ¶ 1; id., ¶ 

15, Ex. 8 [Jan. 26, 2022 Donovan Decl.] ¶ 2. In their declarations, Ajin and Donovan discussed the 

terms of the Settlement Orders in detail. See generally Rathod Decl., ¶ 13, Ex. 6 [Nov. 30, 2021 Ajin 

Decl.]; id., ¶ 15, Ex. 8 [Jan. 26, 2022 Donovan Decl.]. Similarly, in Ajin’s August 25, 2022 letter to the 

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Court, he refers to several of LBN’s compliance obligations in his attempt to explain LBN’s efforts to 

date with regard to each item. Dkt. 219. Furthermore, by volunteering to “work[] out . . . issues” 

regarding LBN’s compliance, Ajin acknowledges his familiarity with the nature of LBN’s obligations. 

Id. at 1. 

Accordingly, because the LBN Principals are legally identified with LBN, aided LBN’s 

violations of the Settlement Orders, and had notice of these orders, the LBN Principals should be 

held in contempt alongside LBN. See Optronic Techs., 2020 WL 3617907, at *2-3 (stating that “a nonparty can be liable for contempt where the non-party has notice of the order and (1) aids the party in 

violating the court order or (2) is legally identified with him”).

C. The Obstructive Conduct of LBN and the LBN Principals Warrants

Imposition of Severe Sanctions.

Because LBN and the LBN Principals continue to violate the Court’s orders—for nearly two 

years and even after the Court already implemented coercive sanctions in the Contempt Order—

Plaintiffs request that the Court impose more severe sanctions targeting the LBN Principals 

individually. The Court has broad discretion to impose civil contempt sanctions to coerce compliance 

with its prior orders. See Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 517 (9th Cir. 1992) (contempt 

sanctions may vary in severity based on “the character and magnitude of the harm threatened by 

continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the 

result desired”); Shillitani v. United States, 384 U.S. 364, 370 (1966) (“There can be no question that 

courts have inherent power to enforce compliance with their lawful orders through civil contempt.”).

In addition to continuing to sanction LBN as described in the Court’s Contempt Order, 

Plaintiffs request that the Court hold the LBN Principals jointly and severally responsible for all of 

LBN’s unsatisfied obligations under the Settlement Orders, and all sanctions imposed on LBN in the 

Contempt Order. Plaintiffs further request that the Court imprison the LBN Principals until LBN’s 

contempt is purged in order to coerce the LBN Principals into bringing LBN into compliance with 

the Settlement Orders. See United States v. Powers, 629 F.2d 619, 624 (9th Cir. 1980) (stating that federal 

courts may “impose fine[s] or imprisonment for” contemptuous conduct); Robert E. Jones, et al., 

Rutter Group Practice Guide: Fed. Civ. Trials & Evid. (June 2022) ¶ 13:312 (“[A] court may punish 

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civil contempt by both a fine and imprisonment.” (citing Campbell v. Keystone Aerial Surveys, Inc., 138 

F.3d 996, 1005 (5th Cir. 1998))). Plaintiffs’ requests regarding the LBN Principals are amply justified 

given the extent of LBN’s noncompliance, the LBN Principals’ responsibility for LBN’s affairs, and 

the LBN Principals’ apparent decision to cause LBN not to comply with the Settlement Orders.

IV. LBN MUST PAY CLASS COUNSEL’S ATTORNEYS’ FEES IN 

BRINGING THIS MOTION

The settlement expressly provides for reasonable attorneys’ fees and costs to the prevailing 

party in any proceeding to enforce the terms of the settlement. See Settlement at 35, § VII(W). 

Moreover, trial courts “should have the discretion to analyze each contempt case individually and 

decide whether an award of fees and expenses is appropriate as a remedial measure.” Perry v. O'Donnell, 

759 F.2d 702, 705 (9th Cir. 1985). Class Counsel has already expended more than 101 hours bringing 

this motion. This includes, among other things, time investigating LBN’s prior violations, 

communicating with LBN’s counsel, and preparing this Motion. See Partovi Decl., ¶¶ 2-5. Using the 

latest version of the reasonable hourly rate scale reviewed by the Court in approving the attorneys’ 

fees for this settlement and subsequent enforcement efforts, Class Counsel’s total lodestar for this 

motion to date is $74,952. See Partovi Decl., ¶ 5. Class Counsel anticipate they will devote additional 

time to a reply brief and hearing on this motion and will then update their fee request accordingly. 

Class Counsel respectfully requests that the Court order LBN to pay in full Plaintiffs’ 

attorneys’ fees for having to bring this motion. See Hernandez v. County of Monterey, 2019 WL 1934882, 

at *6 (N.D. Cal. May 1, 2019) (granting fee and expense request to plaintiffs in connection with their 

work performed to enforce settlement agreement). The Court should order that these fees be held in 

a trust account by the Settlement Administrator, so that cash payments continue to be made first to 

the Class, with distribution of fees and costs to Class Counsel only after those payments to the Class.

V. AMENDING THE JUDGMENT TO CLARIFY LBN’S AND THE 

PRINCIPAL’S OBLIGATIONS IS APPROPRIATE

As of the date that this Motion is filed, LBN owes a total of $1,749,164.18 in Court-ordered

attorneys’ fees and amounts owed under the Settlement Agreement, plus interest accruing for several 

of LBN’s outstanding payments. Additionally, the daily $1,000 coercive sanctions imposed by the 

Court against LBN in the Contempt Order have accrued to a total of $174,000 as of November 22, 

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2022. Given LBN’s indifference to these debts to date, the amount owed will undoubtedly continue 

to grow. Plaintiffs request that the Court convert the $1,879,164.18 owed by LBN as of November 

22, 2022, plus interest, to a judgment against LBN and the LBN Principals to enable Plaintiffs to begin 

the collections process to recover these sums. See Martin v. City of Barstow, 2015 WL 12743594, at *2 

(C.D. Cal. Dec. 21, 2015) (entering “separate judgment” to enable defendants to “enforce this Order 

and the prior sanction issued as a single money judgment”); Leads Club, Inc. v. Peterson, 2008 WL 

186504, at *2 (S.D. Cal. Jan. 22, 2008) (issuing “a new, separate judgment based on the sanctions order 

amount”).

Furthermore, given the high likelihood that LBN and the LBN Principals will continue to 

ignore their obligations to pay the Contempt Order’s daily sanctions, Plaintiffs request that the Court 

fashion its judgment so that further amounts accruing under the Contempt Order will be converted 

into judgments every thirty days until LBN and the LBN Principals purge their contempt. See 

[Proposed] Amended Judgment. 

VI. CONCLUSION

LBN and the LBN Principals audaciously continue to disregard the obligations imposed by 

the Settlement Orders and have made no further efforts to satisfy these obligations even after the 

Court imposed coercive sanctions against LBN. Accordingly, only increasingly severe sanctions can 

coerce LBN into compliance and allow the Class Members to receive the relief to which they are 

entitled under the Settlement Agreement. Therefore, Plaintiffs respectfully request that the Court 

order the relief requested herein and any such other relief the Court deems appropriate. 

Date: November 23, 2022 TYCKO & ZAVAREEI LLP

By: /s/ Annick M. Persinger

ANNICK M. PERSINGER, SBN 272996

1970 Broadway, Suite 1070

Oakland, California 94612

(510) 254-6808

apersinger@tzlegal.com

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JESSE NEWMARK, SBN 247488

CENTRO LEGAL DE LA RAZA

3022 International Boulevard, Suite 410

Oakland, California 94601

(510) 437-1863 

jnewmark@centrolegal.org

JASON S. RATHOD, pro hac vice

NICHOLAS A. MIGLIACCIO, pro hac vice

MIGLICACCIO & RATHOD LLP 

412 H Street, Northeast, Suite 302

Washington District of Columbia 20002

(202) 470-3520 

nmigliaccio@classlawdc.com 

jrathod@classlawdc.com

Counsel for Plaintiffs and the Class

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