REPLY BRIEF IN SUPPORT OF 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

PLAINTIFFS’ REPLY BRIEF IN 

SUPPORT OF SUPPLEMENTAL 

MOTION TO HOLD DEFENDANT’S 

PRINCIPALS IN CONTEMPT AND 

FOR SANCTIONS

Judge: Hon. Claudia Wilken

Hearing Date: January 19, 2022

Time: 2:30 p.m.

Courtroom: TBD

Case 4:17-cv-00755-CW Document 241 Filed 01/17/23 Page 1 of 9
REPLY BRIEF IN SUPPORT OF 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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TABLE OF CONTENTS

PAGE(S)

I. INTRODUCTION AND BACKGROUND................................................................................. 1

II. MR. SHOREMAN’S DECLARATION HAS NO BEARING ON PLAINTIFFS’ 

REQUEST FOR SANCTIONS AGAINST THE LBN PRINCIPALS .................................... 2

III. THE COURT HAS AUTHORITY TO HOLD THE LBN PRINCIPALS LIABLE 

FOR THE FULL AMOUNT OF THE JUDGMENT AGAINST DEFENDANT .............. 4

IV. CONCLUSION ................................................................................................................................... 6

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TABLE OF AUTHORITIES

PAGE(S)

CASES

Elec. Workers Pension Trust Fund of Local Union #58, IBEW v. Gary’s Elec. Serv. Co., 

340 F.3d 373 (6th Cir. 2003)................................................................................................................. 5, 6

Lasar v. Ford Motor Co., 

399 F.3d 1101 (9th Cir. 2005)................................................................................................................... 5 

Luv N’Care, Ltd. v. Laurain, 

2019 WL 4279028 (D. Nev. Sept. 10, 2019)........................................................................................... 3 

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

2020 WL 3617907 (N.D. Cal. July 2, 2020)............................................................................................ 4 

United States v. Voss, 

82 F.3d 1521 (10th Cir. 1996)................................................................................................................... 4 

Whittaker Corp. v. Execuair Corp., 

953 F.2d 510 (9th Cir. 1992)..................................................................................................................... 5 

TREATISES

11A Mary Kay Kane, Federal Practice & Procedure § 2960 (3d ed. 2022) ................................................. 5, 6

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I. INTRODUCTION AND BACKGROUND

For the last two years, Plaintiffs have fought to secure Defendant Libre by Nexus’s (“LBN” 

or “Defendant”) compliance with this Court’s orders and the parties’ Settlement Agreement. At every 

turn, LBN’s principals—Micheal Donovan, Richard Moore, and Evan Ajin (the “LBN Principals”)—

have intentionally delayed and obstructed compliance with the Court orders and Settlement 

Agreement to avoid having to fulfill LBN’s obligations. The LBN Principals’ persistent 

noncompliance, which continued even after the Court issued an order holding LBN in contempt and 

imposing coercive sanctions (Dkt. 225 [“Contempt Order”]), forced Plaintiffs to file a motion on 

November 23, 2022, requesting that the Court impose coercive civil sanctions on the LBN Principals. 

Dkt. 232 (“Supplemental Contempt Motion”).

Unsurprisingly, consistent with the LBN Principals’ prior conduct of ignoring their obligations 

to the Court and under the Settlement Agreement, neither Defendant nor any of the LBN Principals 

filed an opposition to the Supplemental Contempt Motion by the December 7, 2022, deadline. Dkt. 

236 (Order to Show Cause) at 1. Furthermore, neither Defendant nor any of the LBN Principals have 

responded in any way to the Court’s Order to Show Cause “why civil contempt sanctions should not 

be imposed against” the LBN Principals by the December 27, 2022 deadline imposed by the Court. 

Id. at 1.

In fact, the only effort to respond to the Court’s Order to Show Cause was from two of 

Defendant’s lawyers, Mr. Shoreman and Mr. Payson, who both separately declared on December 14, 

2022, that they had sent copies of the Order to Show Cause to the LBN Principals. Dkts. 237-38. Mr. 

Shoreman’s Declaration included a second sentence stating that “Richard Moore is no longer an 

officer or director of LBN and owns no interest in the company.” Dkt. 237. That unspecific and 

unsupported second sentence is insufficient to show that Mr. Moore is no longer a principal, and 

should have no impact on the Court’s decision regarding civil contempt. 

In response to Mr. Shoreman’s Declaration, on January 7, 2023, the Court issued an order 

stating that “some of the civil contempt sanctions that Plaintiffs request . . . fall within the scope of 

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permissible civil contempt sanctions that can be imposed against LBN’s principals,” and directing 

Plaintiffs to file a reply brief addressing two narrow issues:

(1) “The impact, if any,” that Mr. Shoreman’s December 14, 2022 Declaration has on

Plaintiffs’ request for civil contempt sanctions against the LBN Principals; and 

(2) Whether the Court can amend its judgment entered against LBN “pursuant to [the] 

settlement agreement . . . to make a non-party [the LBN Principals] liable for amounts 

owed by that party [Defendant] under that settlement agreement.” 

Dkt. 239 at 2-4.

Plaintiffs maintain that neither of these issues are a barrier to the request for civil contempt 

sanctions against the LBN Principals set forth in the Supplemental Contempt Motion, and address 

each of these issues in greater detail below.

II. MR. SHOREMAN’S DECLARATION HAS NO BEARING ON PLAINTIFFS’ 

REQUEST FOR SANCTIONS AGAINST THE LBN PRINCIPALS

Mr. Shoreman’s January 14, 2022 Declaration is a two-sentence long document. Dkt. 237. The 

first sentence, “declare[d] under the penalties of perjury,” states that Mr. Shoreman served copies of 

the Court’s Order to Show Cause on the LBN Principals. The second sentence, conspicuously not

stated under penalty of perjury, asserts that “Richard Moore is no longer an officer or director of LBN 

and owns no interest in the company.” Dkt. 237. In no sense is this unsworn statement evidence of 

Moore’s role with the company. 

Even if Mr. Shoreman had attested to Mr. Moore’s role with Defendant under penalty of 

perjury, he provides no basis for his assertion. There is nothing in Mr. Shoreman’s short statement to 

corroborate that Mr. Shoreman, in fact, has personal knowledge of Mr. Moore’s status with respect to 

LBN. Indeed, Mr. Shoreman, who is Defendant’s outside counsel and not a company lawyer, does 

not and could not suggest that his assertion was based on his personal knowledge. Further, Mr. 

Shoreman did not attach any documentary evidence to his Declaration providing support for his 

statement, or provide any relevant details – such as when Mr. Moore purportedly relinquished his 

positions and interest at LBN. And most notably, Moore—who would have personal knowledge 

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regarding his role with Defendant—has unlawfully ignored two deadlines where he was required to 

respond to Plaintiffs’ allegations regarding his affiliation with Defendant. 

Accordingly, the Court should give no weight to Mr. Shoreman’s unsubstantiated assertion 

that Moore is no longer an officer of Defendant. Indeed, the only evidence regarding Moore’s role 

comes from Plaintiffs, who observed in their Supplemental Contempt Motion that the Court and 

Defendant’s counsel have already identified Moore as a “principal” of LBN. Dkt. 238 at 7; see Dkt. 218 at 

9 (the Court identifying each of the LBN Principals as Defendants’ principals); Rathod Decl., ¶ 9, Ex. 

2 ([Sept. 15, 2022 Contempt Motion Hearing Tr.] at 3:18-19 (Defendant’s counsel identifying each of 

the LBN Principals as Defendants’ “individual principals”). Mr. Moore also appeared at that hearing, 

and said nothing about any change in his official or unofficial capacity. 

Moreover, regardless of whether Moore continues to be a de jure officer of Defendant, his 

conduct throughout this litigation demonstrates that he has control over Defendant’s operations and 

has taken specific responsibility for ensuring Defendant’s compliance with the Court’s orders and the

Settlement Agreement. See Supplemental Contempt Motion at 10. For instance, in October 2021, 

Moore told Class Counsel that he wanted to set up a meeting to “mediate[] in good faith” and to 

“work out differences” between Plaintiffs and Defendant regarding Defendant’s noncompliance. 

Rathod Decl., ¶ 14, Ex. 7, at 5-6. Further, Moore also explained to Class Counsel that he was “working 

with technicians and consultants” to develop “new software” to assist Defendant’s compliance efforts. 

Rathod Decl., ¶ 14, Ex. 7, at 3. In March 2022, Moore again contacted Class Counsel to discuss the 

purported impact of “a manager transition” at LBN. He also sold $224,850 of LBN’s future 

receivables on March 22, 2022, in exchange for $150,000. 

Moore’s statements and actions evince his oversight and control over Defendant’s compliance, 

which demonstrates that he is “legally identified” with Defendant and can be held liable for 

Defendant’s contempt. See 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 

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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 Wilner v. United States, 221 U.S. 361, 376 

(1911)).

Moore is also “legally identified” with Defendant because he facilitated Defendant’s 

noncompliance with the Court’s prior orders. See Optronic Techs., Inc. v. Ningbo Sunny Elec. Co., Ltd., 2020 

WL 3617907, at *2-3 (N.D. Cal. July 2, 2020) (non-parties are liable for contempt when they “aid[] the 

party in violating the court order”). Moore, alongside Ajin and Donovan, is responsible for 

Defendant’s two-year long pattern of obstruction. Moore’s statements described above—offering to 

renegotiate the Settlement Agreement, which had already been executed and incorporated into the 

Court’s final approval order and judgment, and vaguely promising that he was deploying “new 

software” to speed up Defendant’s compliance—were empty promises designed to placate Class 

Counsel and allow Defendant to continue skirting its obligations. 

For these reasons, Mr. Shoreman’s statement is legally irrelevant to the question of whether 

Moore can be held in civil contempt. As explained here, and explained in detail in the Supplemental 

Contempt Motion, Moore is “legally identified” with Defendant and should be held in civil contempt 

for failing to bring Defendant into compliance with the Court’s prior orders. 

III. THE COURT HAS AUTHORITY TO HOLD THE LBN PRINCIPALS LIABLE 

FOR THE FULL AMOUNT OF THE JUDGMENT AGAINST DEFENDANT

As Plaintiffs explained in their Supplemental Contempt Motion, Plaintiffs request that the 

Court convert the nearly $1.9 million owed by Defendant, plus interest, into a judgment against 

Defendant and the LBN Principals to allow Plaintiffs to begin the process of collecting these amounts. 

Otherwise, Defendant and the LBN Principals will undoubtedly continue ignoring their obligations 

to comply with the Court’s orders and parties’ Settlement Agreement, and the Class Members will be 

forced to continue waiting for—or perhaps never be able to recover—the relief to which they are 

entitled.

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It is well-settled that 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 threated by continued contumacy, and the probable effectiveness of any suggested sanction in 

bringing about the result desired”); see also 11A Mary Kay Kane, Fed. Prac. & Proc. § 2960 (3d ed. 

2022) (“A federal court’s discretion includes the power to frame a sanction to fit the violation.”) Given 

Defendant’s longstanding refusal to fulfill its obligations under the Court’s orders and parties’ 

Settlement Agreement, amending the Court’s prior judgment to at least enable Plaintiffs to begin 

collecting the amounts owed under the Settlement Agreement would be an appropriate use of the 

Court’s broad discretion. 

Further, courts have authorized the specific sanctions requested by Plaintiffs in similar 

circumstances. The Sixth Circuit explained that “one of the purposes of civil contempt is to 

compensate a complainant for its losses,” and that a non-party officer of a defendant company could 

therefore “be fined in an amount equivalent to the original judgment” to the extent that the officer 

“deliberately caused the underlying judgment to remain unpaid.” Elec. Workers Pension Trust Fund of 

Local Union #58, IBEW v. Gary’s Elec. Serv. Co., 340 F.3d 373, 383, fn. 13 (6th Cir. 2003). The Sixth 

Circuit rejected Gary’s Electric’s argument that the contempt motion was an improper “collection 

action” in disguise, observing that contempt orders have been “used to enforce orders for back pay.” 

Id. at 385, fn. 18 (citing NLRB v. Deena Artware, Inc. 361 U.S. 398, 412-14 (1960) (Frankfurter, J., 

concurring)); see generally Lasar v. Ford Motor Co., 399 F.3d 1101, 1111-1112 (9th Cir. 2005)

(acknowledging the validity of compensatory contempt sanctions, which a court may levy after 

providing notice and opportunity for a hearing).

Here, as explained in Plaintiffs’ Supplemental Contempt Motion, the LBN Principals thwarted 

Defendant’s compliance with the amounts owed in the Settlement Agreement by (1) admittedly having 

control over Defendant’s affairs but choosing to do nothing to bring Defendant into compliance; and

(2) deliberately aiding Defendant’s noncompliance by deploying ceaseless delay tactics for two years. 

Supplemental Contempt Motion at 6-11. Accordingly, because the LBN Principals “deliberately 

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caused the underlying judgment to remain unpaid,” converting the amount currently owed by 

Defendant into a judgment against Defendant and the LBN Principals is an appropriate measure to 

compensate Plaintiffs for the harm caused by the contempt of both Defendant and the LBN 

Principals. Gary’s Elec. Serv. Co., 340 F.3d at 383, fn. 13; see generally Mary Kay Kane, 11A Fed. Prac. & 

Proc. § 2960 (3d ed. 2022) (“A federal court’s discretion includes the power to frame a sanction to fit 

the violation.”) 

IV. CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that the Court grant Plaintiffs’ 

Supplemental Contempt Motion in its entirety. 

Date: January 17, 2023 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

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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