Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Moser v. Encore Capital Group, Inc.

United States District Court, S.D. California

December 20, 2012

TIMOTHY M. MOSER, an individual, Plaintiff,
v.
ENCORE CAPITAL GROUP, INC., Defendant

For Timothy W Moser, an individual, Plaintiff: Anthony J Dain, Frederick K Taylor, LEAD ATTORNEYS, Robin L. Phillips, Procopio Cory Hargreaves and Savitch LLP, San Diego, CA.

For Encore Capital Group, Incorporated, a Delaware corporation, Defendant: Earll M Pott, LEAD ATTORNEY, Coughlan, Semmer, Fitch & Pott, LLP, San Diego, CA; Jason D Kogan, Terry W. Bird, Thomas V Reichert, LEAD ATTORNEYS, Preston H. Lim, Bird Marella Boxer Wolpert Nessim Drooks and Lincenberg, Los Angeles, CA; Michael A Attanasio, Ryan E Blair, LEAD ATTORNEYS, Cooley Godward Kronish, San Diego, CA.

For Carl C Gregory, III, an individual, Barry Barkley, an individual, Brandon Black, an individual, Defendants:, Jason D Kogan, Terry W. Bird, Thomas V Reichert, LEAD ATTORNEYS, Bird Marella Boxer Wolpert Nessim Drooks and Lincenberg, Los Angeles, CA.

For Alexander Lemond, an individual, Eric D Kogan, an individual, Defendants: Jason D Kogan, Thomas V Reichert, LEAD ATTORNEYS, Bird Marella Boxer Wolpert Nessim Drooks and Lincenberg, Los Angeles, CA.

For Brian Schorr, an individual, Defendant: Earll M Pott, Raymond J Coughlan, JR, LEAD ATTORNEYS, Coughlan, Semmer, Fitch & Pott, LLP, San Diego, CA; Lewis J. Liman, Max Gitter, LEAD ATTORNEYS, PRO HAC VICE, Cleary Gottlieb Steen & Hamilton LLP, New York, NY.

For Triarc Companies, Inc., Defendant: Earll M Pott, Raymond J Coughlan, JR, LEAD ATTORNEYS, Coughlan, Semmer, Fitch & Pott, LLP, San Diego, CA.

OPINION

Honorable Janis L. Sammartino, United States District Judge.

Page 1225

ORDER REGARDING STOCK OPTION VALUATION

Presently before the Court are Defendant Encore Capital Group, Inc.'s (" Encore" ) Renewed Motion to Preclude Evidence Regarding Options Valuation, (Def.'s MiL, ECF No. 441), and Plaintiff Timothy W. Moser's (" Moser" ) Motion in Limine No. 1 to Preclude Evidence that the Default Date to Value Moser's Options is the Date of the Settlement Agreeement, and in the Alternative, to Preclude Evidence of Prior Options Evaluations, (Pl.'s MiL, ECF No. 444). The parties contend that the Court must modify its prior ruling regarding the valuation of Moser's claim for employee stock options, which is the largest financial element in this breach of contract case. Having considered the parties' arguments and the law, the Court DENIES both motions.

1. The Parties' Arguments

Prior to the first jury trial, the Court ruled that the default date for valuing Moser's stock options must be June 21, 2002--the date that the parties entered into the Settlement Agreement. (Tr. of Status Hrg., June 4, 2012, 25-26, ECF No. 427). The Court also allowed Moser to argue an alternative valuation date to the jury by offering evidence to show that it was reasonably certain that he would have exercised his stock options on some other date. ( Id. ) At trial, Moser testified that he would have exercised 17% of his options in September of 2003, and the remaining 83% of his options in January of 2005. (Declaration of Thomas V. Reichert in Support of Def.'s MiL, Ex. F, Trial Tr., June 20, 2012, 6-7, ECF No. 441). [1] Had Moser exercised the stock options on the dates to which he testified at trial, he would have earned approximately $6,000,000. (Def.'s MiL 1, ECF No. 441).

In anticipation of a second jury trial, both parties now seek to have the Court modify this initial ruling. Encore argues that the stock options must be valued on the date that the parties entered into the Settlement Agreement and that valuing them on any other date would be legal error. (Def.'s MiL 9, ECF No. 441). According to Encore, the only remedy that Moser is seeking in this case is restitutionary in nature, such that his remedy must put him back in the position that he was in immediately before he entered into the Settlement Agreement. (Def.'s Opp'n to Pl.'s MiL 1, ECF No. 456). On that date, Moser's stock options had little or no value. ( Id. )

Moreover, Encore argues that, even if the Court holds to its initial ruling, Moser's evidence is insufficient as a matter of law to show that he would have exercised his options on a different date. (Def.'s MiL 1, ECF No. 441). Encore points to allegedly inconsistent damages calculations that Moser provided during discovery, in pre-trial filings, and at trial. ( Id. at 1-2). According to Encore, " Moser has offered . . . numerous inconsistent and contradictory [accounts of] how many options he was entitled ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.