UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

_______________________________________________________________

Lee Michael Pederson, Appeal No. 18-3195

Plaintiff / Appellant,

v. PLAINTIFF / APPELLANT'S

Phillip Frost, OPKO Health, Inc., Brian FORMAL REQUEST

Keller, and CoCrystal Pharma, Inc.

Defendants / Appellees.

_______________________________________________________________

Plaintff / Appellant's Formal Request

To Supplement the Record by Judicial Notice

Plaintiff hereby requests leave of the Court to supplement the record by

judicial notice. The Court may approve this request under its inherent equitable

authority to advance the principles of fairness, truth, and judicial efficiency. (Harris,

George C. and Li, Xiang (2013) "Supplementing the Record in the Federal Courts

of Appeals: What if the Evidence You Need is not in the Record?" The Journal of

Appellate Practice and Process, Vol. 14, No. 2, pp. 317-333 at p. 323)

Defendants necessitated this request by casting aspersions on the credibility

of Plaintiff's allegations in the District Court. These false insinuations remain

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uncorrected in the record. Supplementation is required to alleviate any effects of

Defendants' misleading statements.

In Defendants' Memorandum of Law in Support of Their Motion to Dismiss

Plaintiff's Amended Complaint, Defendants stated,

"To survive a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), a complaint must contain “enough facts to state a
claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 555 U.S. 544, 570 (2007), and contain more than threadbare
accusations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim has
“facial plausibility” when the “factual content allows the court to draw
the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 555 U.S. at 555). A court need not
accept as true “threadbare recitals of a cause of action’s elements,
supported by mere conclusory statements” and the reviewing court
must “draw on its experience and common sense” in determining
plausibility. Id. at 663-64 (citing Twombly, 555 U.S. at 555-56); see
also Wiles v. Capitol Indem. Corp., 280 F.3d 868, 870 (8th Cir. 2002)
(courts are “free to ignore legal conclusions, unsupported conclusions,
unwarranted inferences and sweeping legal conclusions cast in the
form of factual allegations.”)." (District Court document 62 at pp. 33-
34)

By citing Twombly and Iqbal, Defendants clearly intended to convey the false

implication that Plaintiff's allegations are implausible and unreasonable. Defendants

reinforced this incorrect notion by using the phrases "threadbare accusations,"

"threadbare recitals," "mere conclusory statements," and "unsupported conclusions,

unwarranted inferences and sweeping legal conclusions cast in the form of factual

allegations.”

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 Defendants furthered their false implication that Defendant Frost's wealth,

power and reputation outweigh Pederson's allegations during oral arguments.

Defendants opened their remarks by saying,

"Mr. Pederson alleges in a very lengthy pleading that there was

some type of a criminal organization allegedly being run by my client,
Dr. Phil Frost.
Dr. Frost is an executive with a company called Opko Health
located in Miami, Florida. He's a billionaire. He made most of his
money through a company that manufactured generic pharmaceutical
drugs to compete with name-brand pharmaceutical products and then
he's had numerous other investments over the years. He's a very well-
known person in Miami, an entrepreneur, a philanthropist. The Science
Museum, for example, is named after him in Miami.
The plaintiff alleges, without much detail, Dr. Frost is
supposedly a mastermind of a criminal organization that involved the
other defendants and nonparties who are not named here.
While the allegations are pretty unclear, the gist of it seems to be
that Mr. Pederson alleges that Dr. Frost and Opko, working with the
other alleged co-conspirators, committed a fraud on Mr. Pederson …"
(transcript, District Court document 79 at pp. 8-9)

After disparaging Plaintiff's credibility, Defendants went on to distort and

mischaracterize Plaintiff's allegations, both in their briefs and at oral argument. In

fact, Plaintiff's allegations are extremely clear and detailed. As will be seen below,

the SEC does not view the allegations in Plaintiff's complaint as "threadbare

accusations." Defendants' arguments are nothing but legal posturing. Defendants'

characterization of Plaintiff's allegations as implausible and unreasonable has been

made from behind a veil of money and power. Defendants' attacks on Plaintiff's

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credibility were made with the full knowledge that such attacks are completely false.

Now the truth is coming to light.

Since the briefing and oral hearing in district court, public facts have emerged

that refute Defendants' aspersions and lend considerable credibility to Plaintiff's

allegations. Such facts include:

1. On September 7, 2018 in the Southern District of New York, the United

States Securities and Exchange Commission brought civil charges against 20

defendants. The SEC's complaint in SEC v Honig et al states that, "each of the

Defendants, directly or indirectly, singly or in concert, violated and are otherwise

liable for violations of the federal securities laws…" Three of the four defendants

in the present case, namely Frost, Keller and Opko, are defendants in the SEC case.

The fourth defendant in the present case, CoCrystal, is called "Company A" in the

SEC complaint. The allegations of the pump and dump (P&D) securities fraud at

BioZone/COCP in the SEC complaint exactly match the allegations of the P&D

fraud in Plaintiff's complaint. The SEC complaint also includes allegations of

another P&D fraud by Frost at a separate company.

2. The SEC issued a press release announcing SEC v Honig et al on

September 7, 2018. This press release says,

"The Securities and Exchange Commission today charged a

group of ten individuals and ten associated entities for their participation
in long-running fraudulent schemes that generated over $27 million from

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 unlawful stock sales and caused significant harm to retail investors who
were left holding virtually worthless stock.
According to the SEC's complaint, from 2013 to 2018, a group
of prolific South Florida-based microcap fraudsters led by Barry Honig
manipulated the share price of the stock of three companies in classic
pump-and-dump schemes. Miami biotech billionaire Phillip Frost
allegedly participated in two of these three schemes. …

The SEC's continuing investigation is being conducted out of its

New York Regional Office by Katherine Bromberg and Charu
Chandrasekhar of the Enforcement Division's Retail Strategy Task
Force, Tim Nealon, Ricky Tong, Joseph Darragh, and Michael Paley of
the Enforcement Division's Microcap Fraud Task Force, and Jon Daniels
of the Enforcement Division's Cyber Unit , with the assistance of Edward
Janowsky and Steven Vitulano of the New York Regional Office Broker
Dealer and Exchange Examination Program."

3. Defendant Opko issued a press release about the SEC litigation (SEC v

Honig) on September 7, 2018.

4. Defendant Frost issued a public statement about the SEC litigation on

September 14, 2018.

5. Defendant Frost resigned from his position as Chairman of Ladenberg

Thalmann Financial Services, Inc. on September 20, 2018.

6. On September 21, 2018, non-party John Ford consented to entry of

Judgment against himself in in SEC v Honig. Ford was a named defendant in the

SEC case. Without admitting or denying the charges, Ford agreed to (a) injunctions;

(b) a permanent penny stock ban; and (c) disgorgement of ill-gotten gains, payment

of a civil penalty, and payment of pre-judgment interest. Ford's role in the

BioZone/CoCrystal pump and dump securities fraud underlying Plaintiff's complaint

5

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is described at paragraphs 142-143, 175-180, 184 and 208-209 of Plaintiff's amended

complaint.

These recent developments refute Defendants' false insinuations in the

District Court. Therefore, Plaintiff requests the Court to take judicial notice of the

following public documents and grant leave to include them in the appendix for this

appeal.

1. SEC press release of September 7, 2018

https://www.sec.gov/litigation/litreleases/2018/lr24262.htm

2. SEC v Honig et al complaint

https://www.sec.gov/litigation/complaints/2018/comp24262.pdf

3. Frost's public statement of September 14, 2018

https://www.businesswire.com/news/home/20180914005562/en/Phillip-Frost-
Issues-Statement-SEC-Lawsuit

4. Opko's press release of September 7, 2018.

https://www.sec.gov/Archives/edgar/data/944809/000094480918000039/ex991pre
ssrelease9718.htm

5. Press release regarding Frost's resignation as Chairman of LTS

https://www.sec.gov/Archives/edgar/data/1029730/000149315218013562/ex99-
1.htm

6. John Ford's consent to judgment in SEC v Honig

https://www.courtlistener.com/docket/7822644/28/securities-and-exchange-
commission-v-honig/

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 Plaintiff also request leave of the court to further supplement the record with

additional public documents that may become available before oral arguments,

including:

7. Further filings in SEC v Honig

8. Further filings in any other civil action reflecting on the credibility of

Plaintiff's allegations

9. Possible SEC settlement agreements relating to Defendants' frauds

10. Possible criminal filings against Defendants

11. Further press releases, public statements, and/or SEC filings by

Defendants

Since the oral hearing in district court, at least 15 other civil suits besides SEC

v Honig have been filed relating to alleged securities fraud at companies where Frost

was involved. 14 of the suits are class actions, involving four different companies,

including Defendants Opko and CoCrystal. The other suit (MabVax v Sichenzia)

involves allegations against attorney Harvey Kesner, whose participation in the

BioZone/CoCrystal P&D fraud is referred to in paragraphs 31, 63 and 168 of

Plaintiff's amended complaint. Plaintiff is not seeking to supplement the record with

documents from any of these 15 cases at this time.

The SEC press release lists nine SEC agents who are involved in the

"continuing investigation" of the Frost gang. This count does not include any agents

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from FINRA or the FBI. As the feature headline in Barron's Online said on

September 10, 2018, "SEC Charges Against Phillip Frost Might Just Be the Tip of

the Iceberg."

Almost certainly, Defendants would not have attacked Plaintiffs credibility in

the District Court in the manner they did if the documents cited above had been

available at that time. In light of the new information, these attacks are absurd on

their face. However, these attacks remain uncorrected in the record. Plaintiff

requests permission to supplement the record by including documents 1-6 in the

appendix, and by introducing any potential new documents under categories 7-11

above in supplemental communications to this court.

Respectfully submitted,

Date: October 19, 2018 Plaintiff/Appellant’s Signature

/s/ Lee Pederson

Lee Michael Pederson

Pro se
MN Atty. No. 225605
2126 Lyndale Ave S #6
Minneapolis, MN 55405
952-836-7949
LeeMPete@aol.com

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