daniel c. girard (state bar no....

Case3:13-cv-04921-JST Document38 Filed03/13/14 Page1 of 43

1 Daniel C. Girard (State Bar No. 114826) Jonathan K. Levine (State Bar No. 220289) GIRARD GIBBS LLP 601 California Street, 14th Floor San Francisco, California 94108 Telephone: (415) 981-4800 Facsimile: (415) 981-4846 Email: [email protected] Email: [email protected]

(Additional Counsel on Signature Page)

Lead Counsel and Attorneys for Lead Plaintiffs Lewis Booth and Stephen Drews

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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LEWIS BOOTH and STEPHEN DREWS, on behalf of themselves and all others similarly situated,

Plaintiffs,

v.

STRATEGIC RETAIL TRUST, INC. (f/k/a TNP STRATEGIC RETAIL TRUST, INC.), THOMPSON NATIONAL PROPERTIES, LLC, TNP STRATEGIC ADVISOR, LLC, TNP SECURITIES, LLC, ANTHONY W. THOMPSON, CHRISTOPHER S. CAMERON, JAMES R. WOLFORD, JACK R. MAURER, PHILLIP I. LEVIN, ARTHUR M. FRIEDMAN, JEFFREY S. ROGERS, ROBERT N. RUTH, and PETER K. KOMPANIEZ

Defendants.

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CASE NO 3:13-cv-04921-JST

CLASS ACTION

AMENDED COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS AND COMMON LAW

JURY TRIAL DEMANDED

AMENDED CLASS ACTION COMPLAINT CASE NO. 3:13-cv-04921-JST

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Lead Plaintiffs Lewis Booth and Stephen Drews (“Plaintiffs”) by and through their attorneys

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file this class action complaint against defendants Strategic Retail Trust, Inc. (“SRT” or the

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“Company”), Thompson National Properties, LLC (“TNP”), TNP Securities, LLC, TNP Strategic

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Advisor, LLC (“TNP Advisors”), Anthony W. Thompson, Christopher S. Cameron, James R. Wolford,

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Jack R. Maurer, Arthur M. Friedman, Jeffrey S. Rogers, Robert N. Ruth, Phillip I. Levin and Peter K.

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Kompaniez (collectively, “Defendants”) on behalf of themselves and other similarly situated

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individuals and allege as follows:

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SUMMARY OF THE CASE

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1. Plaintiffs invested in the initial public offering of the common stock of SRT, a real estate

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investment trust. The success of the investment depended in substantial part on the performance of

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Anthony Thompson, Chief Executive Officer of SRT and Chairman of its Board of Directors and

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Investment Committee. Thompson also directed and controlled TNP, the sponsor of the offering, TNP

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Advisors, the real estate advisory firm responsible for the implementation of SRT’s investment

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strategy, and TNP Securities, the selling agent for the offering.

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2. Shares in SRT were offered pursuant to a registration statement and supplemental

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materials incorporated into the registration statement (the “Offering Materials”) filed with the

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Securities and Exchange Commission (SEC). Shares in SRT were offered to the public on a continuous

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basis from August 7, 2009 through February 7, 2013. In compliance with applicable statutes of

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limitations and repose, Plaintiffs sue on behalf of themselves and other similarly situated investors who

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acquired shares pursuant or traceable to the offering between September 23, 2010 and February 7, 2013

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(the “Offering Period”). During the Offering Period, Defendants raised approximately $70,000,000

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from investors.

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3. Plaintiffs contend that throughout the Offering Period, the Offering Materials contained

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materially inaccurate and incomplete statements about Thompson, TNP, and the results achieved by

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previous TNP-sponsored real estate investment programs. Plaintiffs also contend that the Offering

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Materials contained materially inaccurate and incomplete statements about SRT’s investment strategy,

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internal controls, and governance mechanisms.

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1 AMENDED CLASS ACTION COMPLAINT



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4. The Offering Materials identified a number of previous real estate programs sponsored

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by Thompson and TNP, and provided summary information concerning the performance of the prior

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offerings. The references to the prior programs were misleading because they failed to disclose that at

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least some of those offerings were conducted in violation of federal and state securities laws, through

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the use of materially inaccurate and incomplete offering circulars, exposing Thompson and TNP to

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claims for rescission and other penalties, impairing their ability to perform their obligations in regards

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to the SRT offering, and calling into question Thompson’s fitness and capacity to sponsor the offering

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of SRT shares and implement its investment strategy.

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5. The Offering Materials described a number of safeguards SRT would employ to mitigate

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certain conflicts of interest inherent to SRT’s governance structure. These included Board approval of

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property acquisition and disposition transactions and debt financings, Board-approved investment and

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borrowing guidelines and Board oversight of compliance, and independent director approval of direct

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and indirect compensation to TNP Advisors and its affiliates. The Offering Materials were inaccurate

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and incomplete in that SRT’s Board of Directors (selected by Thompson) lacked the capacity,

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independence, ability and willingness to serve as a meaningful check against Thompson’s self-

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interested decision-making, and/or that the Board did not intend to act or was incapable of acting in

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accordance with the responsibilities ascribed to it in the Offering Materials.

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6. Prior to and at all relevant times during the Offering Period, SRTS’s governance

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mechanisms and internal controls were ineffective in preventing Thompson and the TNP entities from

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(1) paying themselves fees the SRT Board later characterized as unearned; (2) entering into agreements

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with a TNP affiliate that the Board later admitted were contrary to the Company’s charter and neither

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fair nor reasonable; (3) giving guarantees Thompson and TNP lacked the financial and legal capacity to

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honor; and (4) entering into property acquisition agreements the SRT Board admits did not comport

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with the Company’s investment objectives and violated loan covenants. As a direct and proximate

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result of the undisclosed weaknesses in SRT’s governance mechanisms and internal controls, and

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breaches of duty by SRT fiduciaries, SRT shareholders have suffered the loss of a substantial

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percentage of their original investments, interruption and reductions in dividend payments, and further

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investment losses.




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7. The Company terminated the offering on February 7, 2013. Two months later, the

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Company disclosed that it was seeking to oust Thompson and the TNT entities.

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8. On July 30, 2013, FINRA’s Department of Enforcement filed a complaint (the “FINRA

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Complaint”) against Thompson and TNP Securities in connection with a series of note offerings

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referenced in the Offering Materials, alleging material misrepresentations and omissions in the private

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placement memoranda for those programs, violations of sections 17(a)(2) and 17(a)(3) of the Securities

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Act, failure to supervise offerings of private placement securities, and the failure to appear and failure

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to respond timely to FINRA’s written request for information pursuant to FINRA Rule 8210.

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9. In August 2013, the Company severed all ties with the TNP entities and replaced

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Thompson as CEO.

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10. Plaintiffs seek relief on behalf of themselves and a Class of similarly situated investors

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for the damages that they have suffered as a result of the allegations described herein.

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JURISDICTION AND VENUE

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11. The Court has jurisdiction over the subject matter of this action pursuant to section 22 of

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the Securities Act, 15 U.S.C. § 77v and 28 U.S.C. § 1331. The Court has subject matter jurisdiction of

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the state law claims under 28 U.S.C. § 1332(d) because the aggregate amount in controversy exceeds

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$5,000,000 and at least one class member is a citizen of a state different from a defendant.

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12. In connection with the acts alleged in this Complaint, Defendants, directly or indirectly,

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used the means and instrumentalities of interstate commerce, including, but not limited to, the United

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States mails and interstate telephone communications.

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13. Venue is proper in this District pursuant to section 22 of the Securities Act, 15 U.S.C. §

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77v, and 28 U.S.C. § 1391(b) and (c). Many of the acts and transactions that constitute violations of

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law complained of herein occurred in this District and the Company maintains its headquarters and

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principal place of business in this District in San Mateo, California.

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THE PARTIES

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A. The Lead Plaintiffs

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14. Lead Plaintiff Lewis Booth is a resident of Camarillo, California. He acquired the

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Company’s common shares pursuant or traceable to the Offering Materials that contained material




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misstatements and omissions of fact, and has suffered damages as a result of the circumstances

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I described herein.

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15. Lead Plaintiff Stephen Drews is a resident of Peoria, Arizona. He acquired the

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Company’s common shares pursuant or traceable to the Offering Materials that contained material

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misstatements and omissions of fact, and has suffered damages as a result of the circumstances

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I described herein.

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I. Defendants

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SRT

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16. SRT is a Maryland corporation with its principal place of business at 400 South El

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Camino Real, San Mateo, California 94402. The Company operates as a REIT and primarily invests in

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and manages a portfolio of income-producing retail properties, located mostly in the Western United

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States. SRT has no employees and, prior to and during the Offering Period, relied entirely on

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Thompson and the TNP entities to conduct and manage all of its business operations.

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17. On November 4, 2008, the Company filed a registration statement on Form S-11 with

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the SEC (the “Registration Statement”) offering up to $1 billion in shares of its common stock, at

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$10.00 per share, in an initial public offering. On August 7, 2009, the SEC declared the Registration

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Statement effective, and the Company commenced the IPO. The Company’s shares are not traded on a

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national exchange, but as a public issuer of common stock, the Company is registered with the SEC

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under the Securities Exchange Act of 1934 and subject to SEC reporting requirements.

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18. On February 7, 2013, the Company terminated the IPO and ceased offering shares. As

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of March 22, 2013, there were 10,969,714 shares of common stock issued pursuant or traceable to the

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IPO.

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19. In August 2013, the Company changed its name from TNP Strategic Retail Trust, Inc. to

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I Strategic Retail Trust, Inc.

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TNP

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20. TNP is a Delaware limited liability company. Thompson founded TNP in February

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2008. Thompson owned and controlled TNP at all relevant times. TNP’s principal place of business is

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3151 Airway Avenue, Suite G-3, Costa Mesa, CA 92626, an address it shares with TNP’s two wholly-

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owned subsidiaries, TNP Securities and TNP Advisors.

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21. At all relevant times, Thompson was the Chairman and CEO of TNP, which served as

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the Company’s sponsor and was responsible for, among other matters, sponsoring the IPO.

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TNP Advisors

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22. TNP Advisors is a Delaware limited liability company that Thompson founded in

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September 2008. At all times relevant herein, Thompson served as TNP Advisors’ CEO.

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23. TNP Advisors is wholly owned by TNP and is indirectly wholly owned by Thompson.

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TNP Advisors was responsible for managing the Company’s day-to-day activities and implementing its

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investment strategy.

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24. TNP Advisors’ last known place of business is 3151 Airway Avenue, Suite G-3, Costa

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Mesa, CA 92626, the same address as TNP and TNP Securities.

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TNP Securities

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25. TNP Securities, a former registered broker-dealer and FINRA member, was formed by

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TNP and Thompson in November 2008. TNP Securities is a wholly owned subsidiary of TNP, and at

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all relevant times Thompson served as its CEO. TNP is the Managing Member of TNP Securities.

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26. TNP Securities acted as deal manager and underwriter for the Company’s IPO, and was

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responsible for ensuring the completeness and accuracy of the various statements contained in or

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incorporated by reference into the Offering Materials.

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27. TNP Securities maintains a principal place of business at 3151 Airway Avenue, Suite G-

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3, Costa Mesa, CA 92626, an address it shares with TNP and TNP Advisors.

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28. As of September 19, 2013, TNP Securities was no longer registered as a broker dealer

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I with FINRA.

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The Individual Defendants

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29. Defendant Anthony W. Thompson served as the Company’s Chairman from September

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2008 until August 9, 2013, and served as a member of the Company’s Board of Directors until his

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resignation on January 22, 2014. Thompson also served as CEO from September 2008 until August 29,

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2012, when he became Co-CEO, a position he held until August 9, 2013. Thompson acted as the




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Company’s President from February 2012 until August 9, 2013. In addition, Thompson serves as CEO

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of the TNP entities.

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30. Defendant Christopher S. Cameron was the Company’s CFO, Treasurer and Secretary,

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and also served as the Chief Administrative Officer of TNP and the CFO, Treasurer and Secretary of

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TNP Advisors. Cameron held these positions from July 1, 2010 until March 2011.

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31. Defendant James R. Wolford was the Company’s CFO, Treasurer and Secretary

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beginning in March 2011, and also served as the CFO, Treasurer and Secretary of TNP Advisors and

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the Executive Vice President and CFO of TNP.

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32. Defendant Jack R. Maurer was the Company’s President and Vice Chairman from

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February 2010 until his resignation on February 3, 2012. Maurer also served as the Vice Chairman-

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Partner of TNP.

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33. Defendant Arthur M. Friedman was a member of the Company’s Board of Directors

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from February 2010 to April 2011. Friedman also served as the Chairman of the Audit Committee of

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the Company’s Board of Directors. Friedman resigned as a director on April 1, 2011.

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34. Defendant Jeffrey S. Rogers was a member of the Company’s Board of Directors from

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February 2010 to June 9, 2011. Rogers was also a member of the Investment Committee of the

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Company’s Board of Directors.

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35. Defendant Robert N. Ruth was, at all times relevant herein, a member of the Company’s

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Board of Directors, beginning in February 2010. Ruth also served as a member of the Audit Committee

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of the Company’s Board of Directors.

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36. Defendant Phillip I. Levin was, at all times relevant herein, a member of the Company’s

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Board of Directors, beginning in April 2011. Levin also served as the Chairman of the Audit

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Committee of the Company’s Board of Directors.

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37. Defendant Peter R. Kompaniez served as a member of the Company’s Board of

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Directors from June 2011 to October 2, 2012.

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38. Defendants Thompson, Cameron, Wolford, Maurer, Friedman, Rogers, Ruth, Levin, and

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Kompaniez collectively are referred to as the “Individual Defendants.” The specific Offering Materials

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that each Individual Defendant signed and caused to be filed with the SEC are identified on Appendix

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A, which is incorporated into and forms a part of this complaint.

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CLASS ALLEGATIONS

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39. Plaintiffs bring this as a class action pursuant to Federal Rules of Civil Procedure 23(a)

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and (b)(3) individually and on behalf of all persons and entities who purchased or otherwise acquired

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the common stock of the Company during the Offering Period, and who were damaged thereby (the

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“Class”). Excluded from the Class are Defendants and any person, firm, trust, corporation, or other

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entity related to or affiliated with any of the Defendants.

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40. Numerosity. The members of the Class are so numerous that joinder of all members is

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impracticable. While the exact number of Class members is presently unknown to Plaintiffs and can

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only be ascertained through appropriate discovery, there were approximately 7 million shares of SRT

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common stock sold to investors during the Offering Period and plaintiffs reasonably believe that there

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are thousands of members of the Class. Record owners and other members of the Class may be

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identified by records maintained by Defendants and their transfer agents, and may be notified of the

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pendency of the action by mail, the internet, or publication using the form of notice similar to that

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customarily used in securities class actions.

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41. Typicality. Plaintiffs’ claims are typical of the claims of the members of the Class they

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represent because all invested in the Company’s shares pursuant to the Offering Materials.

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42. Adequacy of Representation. Plaintiffs will adequately represent and protect the

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interests of the Class and have no interests that conflict with or are antagonistic to the interests of class

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members. Plaintiffs have retained attorneys who are experienced and capable of prosecuting complex

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class and securities litigation. Plaintiffs’ attorneys will actively conduct and be responsible for the

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prosecution of this litigation, and have adequate resources, experience and commitment to litigate this

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matter.

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43. Existence and Predominance of Common Questions. Common questions of law and fact

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exist as to all class members and predominate over questions affecting only individual class members.

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These common questions include the following:

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a. Whether Defendants violated sections 11, 12(a)(2) and 15 of the Securities Act;




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b. Whether the Offering Materials contained materially false and misleading

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statements and failed to disclose facts necessary to make statements in the Offering Materials not

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I materially false and misleading;

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c. Whether the Company, the Individual Defendants and TNP Advisors breached

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their fiduciary duties to Plaintiffs and class members;

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d. Whether the Company, the Individual Defendants and TNP Advisors aided and

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abetted the breach of fiduciary duty;

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e. Whether Defendants were unjustly enriched at the expense of Plaintiffs and class

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members;

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f. Whether TNP Securities breached the duty of care they owed to Plaintiffs and

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class members;

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g. What remedies are appropriate compensation for the damages caused to

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Plaintiffs and class members; and

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i. Whether Plaintiffs and class members are entitled to a reasonable award of

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I attorneys’ fees, interest and costs of suit.

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44. Superiority. A class action is superior to any other method available for the fair and

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efficient adjudication of this controversy because it would be impracticable and unduly burdensome for

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each of the individual class members to bring a separate action. Moreover, individual litigation has the

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potential to result in inconsistent or contradictory judgments. A class action in this case presents fewer

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management problems and provides the benefits of a single adjudication, economies of scale, and

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comprehensive supervision by a single court.

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45. Class certification is also appropriate because there is a readily identifiable class on

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whose behalf this action can be prosecuted. Class members are readily ascertainable from Defendants’

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records. A notice of pendency or resolution of this class action can be provided to class members by

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direct mail, email, publication notice, or other similar means.

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FACTUAL ALLEGATIONS

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A. The Offering

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46. On November 11, 2008, the Company filed the Registration Statement with the SEC,

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which declared it effective on August 7, 2009. SRT shares were then offered on a continuous offering

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basis process pursuant to Rule 415 under the Securities Act until the Company ceased offering shares

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on February 7, 2013. By that time, the Company had sold more than $106,054,138 worth of SRT

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shares in the IPO, including approximately $70 million worth of shares sold during the Offering Period.

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47. The “Offering Materials” include certain post-effective amendments to the Registration

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Statement (collectively, “Registration Statement Amendments”), prospectuses and prospectus

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supplements (collectively “Prospectuses”), and certain reports on Forms 10-K, 10-Q and 8-K that were

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incorporated by reference in the Registration Statement Amendments and Prospectuses. The Offering

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Materials are listed on Appendix A.

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B. Company Background

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48. Thompson formed TNP in February 2008 and TNP formed the Company in September

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2008, to offer investments in a portfolio of income-producing retail properties, located primarily in the

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Western United States. TNP contributed $200,000 to the Company’s formation and was its sole

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shareholder prior to the IPO.

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49. Thompson served as the Company’s CEO, Chairman of the Board and Chairman of its

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Investment Committee, while serving simultaneously as CEO of the TNP entities. By virtue of these

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interlocking leadership and control positions, Thompson exercised broad powers and discretion over

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the Company’s business activities.

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50. The Offering Materials repeatedly acknowledged that the Company relied extensively

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on the TNP entities to conduct the IPO, invest the IPO proceeds, identify real estate investment

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opportunities, obtain financing, manage real estate assets, engage in other real estate transactions, and

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otherwise conduct and oversee all of the Company’s business.

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51. As the IPO dealer manager, TNP Securities was responsible for attracting investor

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interest and successfully promoting and marketing the IPO in exchange for 7% of the gross proceeds

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and a dealer manager fee amounting to 3% of the gross proceeds. Each Registration Statement




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Amendment warned, “If our dealer manager fails to perform, we may not be able to raise adequate

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proceeds through this offering to implement our investment strategy.”

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52. In September 2008, Thompson formed TNP Advisors to manage the Company’s day-to-

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day affairs and conduct its operations. Each Registration Statement Amendment advised that “We

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depend upon our advisor and its affiliates to conduct our operations and this offering.” TNP Advisors

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was charged with implementing the Company’s real estate investment strategy, and was given

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substantial discretion in selecting and disposing of real estate investments on the Company’s behalf.

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53. Specifically, the Amended and Restated Advisory Agreement Between TNP Advisors

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and the Company (the “Advisory Agreement”), appended to the Registration Statement, provided that

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TNP Advisors “undertakes to use its best efforts to present to the Company and the Operating

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Partnership potential investment opportunities and to provide a continuing and suitable investment

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program consistent with the investment objectives and policies of the Company as determined and

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adopted from time to time by the Board.”

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54. In exchange for providing advisory services, the Company agreed to pay TNP Advisors:

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(1) up to 3% of the gross offering proceeds from the sale of IPO shares as reimbursement for expenses

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incurred on the Company’s behalf; (2) up to 2.5% of the cost of assets acquired for the Company (or

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the allocable cost of investments acquired in a joint venture) as “acquisition fees”; (3) up to 2.5% of the

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amount funded by the Company to acquire or originate real estate-related loans as loan “origination

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fees”; (4) up to one-twelfth of 0.6% of the sum of the aggregate cost of all assets of the Company as

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monthly “asset management fees”; (5) up to 5.0% of the gross revenues generated by the Company’s

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properties as monthly “property management and leasing fees”; and (6) “disposition fees” up to 50% of

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a customary and competitive real estate sales commission, but not to exceed 3.0% of the contract sales

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price of each property sold.

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55. Thompson and the TNP entities received more than $32 million in fees and expense

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reimbursements from the Company between 2009 and mid-2013.

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C. The Material Misrepresentations in the Offering Materials

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(1) Misrepresentations Concerning Prior TNP-Sponsored Programs

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56. The Offering Materials included “Prior Performance Summaries” and “Prior

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Performance Tables” that detailed the performance and success of previous real estate investment

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programs sponsored by Thompson and TNP. The “Prior Performance Summaries” and “Prior

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Performance Tables” in the Offering Materials were materially misleading and did not accurately

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reflect the performance of Thompson’s previous real estate ventures.

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57. The Offering Materials identified the amount of capital raised in prior programs and the

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number of investors in those programs. Registration Statement Amendment No. 4, issued on

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September 2, 2010, identified five prior TNP programs that had raised more than $56.2 million from

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approximately 602 investors as of December 31, 2009. (Registration Statement Amendment No. 5,

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issued on December 1, 2010, includes the same information with regard to the prior programs.)

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Registration Statement Amendment No. 6, issued on April 15, 2011 (and Amendment Nos. 7 through

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10), identified twelve TNP programs that had reportedly raised more than $112.8 million from

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approximately 1,331 investors as of December 31, 2010. And Registration Statement Amendment No.

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11, issued on April 10, 2012, identified fifteen TNP programs that, according to the Amendment, had

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raised more than $147.1 million from approximately 1,560 investors.

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58. The offering materials for the prior TNP programs contained material misstatements and

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omitted material information that should have been disclosed to investors.

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(a) The 2008 Notes Program

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59. One of the prior TNP real estate programs identified in the Offering Materials is the

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“2008 Participating Notes Program, LLC” (the “2008 Notes Program”) that commenced on December

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9, 2008. According to the private placement memorandum for the 2008 Notes Program (which

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Thompson participated in drafting), “payment of interest and repayment of principal will be guaranteed

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by TNP.” As collateral for the guaranty securing the notes, TNP “pledge[d] all of the membership

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interests in” the 2008 Notes Program—or the program’s total equity—to investors.

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60. The Offering Materials stated that the 2008 Notes Program had raised $19,350,374 as of

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December 31, 2009 and $26,199,903 as of December 31, 2010. According to Amendment No. 6, the




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2008 Notes Program generated revenues in 2010 of more than $4.9 million (before deducting payments

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to the sponsor).

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61. In fact, the 2008 Notes Program suffered negative financial performance from inception,

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sustaining a loss of nearly $2.5 million in 2009 alone and an annual loss of more than $5 million in

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2010. The Program reported negative total equity throughout the time it was offered, with the

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exception of a brief period during mid-2009. As a result, the collateral securing the Program’s guaranty

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had no value for the majority of the time period during which the Program was offered. None of the

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supplements to the private placement memorandum for the Program (which were issued in February

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2009, March 2009, April 2009, September 2009 and December 2009) included information about the

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2008 Note Program’s financial condition, however, and did not include any information about the value

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(or lack of value) of the collateral pledged to Program investors.

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62. The offering materials for the 2008 Notes Program were therefore materially misleading

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and omitted material facts in that they failed to provide Program investors with complete, accurate

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information about the financial performance and condition of the 2008 Note Program (or TNP itself) to

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assess the Program’s “guaranty” and its overall viability.

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63. The private placement memorandum for the 2008 Notes Program also stated that the

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Program would use the net proceeds of the offering “primarily to fund or invest, directly or indirectly,

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in real estate and real estate-related debt....” In fact, the Program did not generate sufficient cash flow

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from investments to make distributions of interest to investors from the results of operations and, as a

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result, on 15 instances in between February 2009 and April 2010, the 2008 Notes Program used

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investor proceeds to make distributions of interest of more than $1.5 million due on notes the Program

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had issued. The offering materials for the 2008 Notes Program did not disclose the material fact that

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investor proceeds were used to pay quarterly distributions to investors.

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(b) The 12% Notes Program

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64. Registration Statement Amendments Nos. 4 and 5 included information about the 2008

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Notes Program, but did not identify or discuss another failed TNP program, the “TNP 12% Notes

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Program, LLC” (the “12% Notes Program”). The 12% Notes Program which was first offered in June

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2008, was similar to the 2008 Notes Program in that its purpose was to raise money from investors that




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would be loaned to TNP. According to the private placement memorandum for the 12% Notes

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I Program (which Thompson also participated in drafting), payment of interest and repayment of

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principal was unconditionally guaranteed by TNP. The 12% Notes Program had raised $14,554,140 as

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I of December 31, 2008 and $21,555,537 as of December 31, 2009.

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65. In fact, the 12% Notes Program suffered negative financial performance from inception

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in June 2008, sustaining losses of $161,701 in 2008, $844,512 in 2009 and $1,180,956 in 2010. The

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I Program reported negative total equity throughout its entire offering period. Neither of the supplements

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to the private placement memorandum for the Program (which were issued in July 2008 and June 2009)

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included information about the 12% Note Program’s financial condition. Neither the private placement

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memorandum nor the supplements include accurate information about TNP’s financial condition that

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would have allowed investors to evaluate the value (or lack of value) of TNP’s unconditional

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guarantee.

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66. The offering materials for the 12% Notes Program were therefore materially misleading

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and omitted material facts in that they failed to provide Program investors with sufficient, accurate

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information about the financial performance and condition of the 12% Notes Program or TNP itself to

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assess the Program’s “guaranty” and its overall viability.

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67. The private placement memorandum for the 12% Notes Program also stated that the

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I Program would use the net proceeds of the offering “to fund loans to or equity investments in TNP or

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its affiliates....” In fact, the 12% Notes Program did not generate sufficient cash flow from investments

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to make distributions of interest to investors from the results of operations and, as a result, during the

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entire offering period, the 12% Notes Program used investor proceeds to make distributions of interest

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of $1.2 million due on notes the Program had issued. The offering materials for the 12% Notes

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Program did not disclose the material fact that investor proceeds were used to pay quarterly

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distributions to investors.

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68. When the Offering Materials disclosed the 12% Notes Program to SRT investors in

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I April 2011 in Registration Statement Amendment No. 6, the Program was cited as evidence of TNP’s

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prior performance and real estate experience.

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(c) The Bruin Fund, L.P.

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69. Another of the prior TNP programs identified in the Offering Materials is the Bruin

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Fund, L.P, which was commenced on March 3, 2008. The Bruin Fund acquired an approximately 90

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percent interest in two properties located in Dallas, Texas, known as Oakwood Towers for a cost of

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approximately $13.7 million. Oakwood Towers was the Bruin Fund’s only asset.

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70. The Bruin Fund received loans in 2009 of nearly $300,000 from two other TNP

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programs (the 2008 Notes Program and the 12% Notes Program) to meet cash flow shortages. The

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Bruin Fund nevertheless defaulted on at least three mortgage payments in 2010. And in August 2010,

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the mortgage lender on the Oakwood Towers foreclosed.

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71. Notwithstanding this dramatic failure, the September 2, 2010 Amendment states that the

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identified TNP prior programs—including the Bruin Fund—had experienced “no major adverse

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business conditions or developments” other than the general effects of the “recent economic

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conditions.” Not until Amendment No. 6 was issued in April of 2011 did the Offering Materials reveal

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that the Bruin Fund had defaulted on its mortgage obligations, that the lender had foreclosed on the

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properties, and that the “investors in the Bruin Fund, L.P. lost the full amount of their investment.”

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(2) Misrepresentations Concerning the Company’s Internal Controls

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(a) Conflicts of Interest

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72. The Offering Materials acknowledged certain conflicts of interest between the TNP

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entities and the Company as a result of compensation arrangements, time constraints and competition

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for investments. To protect investors from self-dealing by the TNP entities (and Thompson) and to

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mitigate potential conflicts of interest, the Company established internal controls and oversight

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mechanisms.

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73. Registration Statement Amendment No. 4, dated September 2, 2010, provided that the

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independent directors would review and approve every transaction and agreement with Thompson, the

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TNP entities and any affiliates to ensure that the transaction was fair and reasonable to the Company

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and on terms and conditions no less favorable than those that could be obtained from unaffiliated

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entities:

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A majority of our board of directors (including a majority of the independent directors) not otherwise interested in the transaction, must approve all transactions with any of our directors, our advisor or any of their affiliates. (p. 56)

All such agreements, including our advisory agreement, require approval by a majority of our board of directors, including a majority of the independent directors, not otherwise interested in such transactions, as being fair and reasonable to us and on terms and conditions no less favorable than those that could be obtained from unaffiliated entities. (p.75)

The independent directors who are also otherwise disinterested in the transaction must approve each transaction between us and our advisor or any of its affiliates as being fair and reasonable to us and on terms and conditions no less favorable to us than those available from unaffiliated third parties. (p. 75)

Among the matters we expect the independent directors to review and act upon are: The continuation, renewal or enforcement of our agreements with our advisor and its affiliates, including the advisory agreement and the property management agreement, and the agreement with our dealer manager. (p. 76)

Identical language appeared in all of the other Registration Statement Amendments issued prior to and

during the Offering Period.

74. The representations set forth in ¶ 73 above were false and misleading. By August 2010,

I shortly before the start of the Offering Period, the Company had already had entered into at least two

property management agreements with a TNP affiliate (TNP Property Manager, LLC) that had 20-year

terms and were only terminable by the Company for cause. The Company’s charter, however, required

agreements with TNP and its affiliates to be renewed annually and terminable without cause.

Accordingly, the terms of these two agreements were not fair or reasonable to the Company and

violated the Company’s charter.

75. During the Offering Period, the Company entered into eight more property management

agreements (six in 2011 and two in 2012), all of which were also with TNP Property Manager, LLC

and all of which had the same provisions that violated the Company’s charter.



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76. After the IPO was terminated, the Company acknowledged that all of these property

agreements with the TNP affiliate “were commercially unreasonable and void under the Company’s

charter,” and terminated them with cause.

(b) Debt Financing Strategies

77. With regard to debt financing strategies, the Offering Materials stated that the Company

intended to “use secured and unsecured debt as a means of providing additional funds for the

acquisition of our investments.” The Offering Materials assured investors that the Company’s debt

financing strategies would also be subject to Board oversight and approval.

78. Registration Statement Amendment No. 4 stated that:

• the Company’s “borrowings, secured and unsecured, will be reviewed by the board of directors at least quarterly” (p. 8);

• the Board’s responsibilities include “approving and overseeing debt financing strategies” (p.55); and

• the Board would monitor the Company’s and TNP Advisor’s procedures, investment operations and performance to ensure that the Company’s borrowings were consistent with its investment objectives (p. 56).



79. The representations relating to oversight of debt financing strategies were false and

misleading because, before and during the Offering Period, the Company employed a strategy of

incurring significant debt backed by worthless guarantees from TNP and Thompson.

80. In November 2009, the Company obtained a $15 million revolving line of credit from

KeyBank National Association. To induce KeyBank to lend money to the Company, TNP and

Thompson both guaranteed all of the Company’s obligations under that credit line as primary parties

that would be jointly and severally responsible for repayment, performance and observance of all of the

obligations, terms and conditions to be paid, performed or observed by the Company, as borrower. The

KeyBank credit line was renewed in early December 2010 and increased to $35 million.

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81. The guarantees by TNP and Thompson that were a key part of the Company’s debt

I financing strategy were worthless to investors because neither TNP nor Thompson were financially

able to make good on them in 2009 or any time thereafter.

82. TNP had multi-million dollar losses in 2008, its first year of operation, which grew

I exponentially every year thereafter. In 2009, TNP suffered a loss of $25.6 million and had negative

I equity of $13.5 million. In 2010, TNP had an annual loss of more than $23 million leaving it with a

I negative equity of more than $29 million. And throughout 2009 and 2010, TNP was experiencing

severe cash flow deficiencies and accruing substantial accounts payable, while simultaneously lacking

sufficient cash or cash equivalents to meet its credit obligations in a timely manner.

83. Thompson’s financial condition had also dramatically deteriorated by September 2010.

Thompson was the owner of the TNP entities and the second-largest individual shareholder of real

estate company Grubb & Ellis, having engineered its takeover in December 2007. But, as set forth

above, the TNP entities were suffering enormous losses in 2008 and 2009 and experiencing severe cash

flow deficiencies. Thompson’s holdings in Grubb & Ellis lost 80% of their value in late 2008,

I following the credit crisis. Grubb & Ellis never recovered and declared bankruptcy in 2012.

84. In January 2013, the Company defaulted on a $29 million loan (also guaranteed by TNP

I and Thompson), causing a cross-default of the KeyBank line of credit. Neither TNP nor Thompson

made good on their guarantees, causing significant harm to the Company’s investors. Dividends were

suspended, the share redemption program was suspended and the Company lost millions, substantially

reducing shareholder equity and the value of SRT shares.

(c) Compensation and Fees Paid to TNP Advisors

85. The Offering Materials stated that compensation and fees to be paid to TNP Advisors

(and the other TNP entities) would be subject to review and approval of the independent directors, who

would determine the reasonableness of those fees and whether they were within the limits prescribed by

the Offering Materials.

86. Registration Statement Amendment No. 4 stated:

The independent directors will also supervise the performance of our advisor and review the compensation we pay our advisor to determine that the provisions of the advisory agreement are carried out. (p. 56)



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The independent directors will supervise the performance of our advisor and its affiliates and the compensation we pay to them to determine that the provisions of our compensation agreements are being performed appropriately. (p. 76)


I during the Offering Period.

87. The independent directors were not, however, reviewing and supervising the

I compensation paid to TNP Advisors, which allowed TNP Advisors to pay itself material amounts in

unearned fees in violation of the advisory agreement. Accordingly, the statements in the Offering

Materials relating to the independent directors’ oversight and supervision regarding compensation and

fees paid were false and misleading.

(d) Investment Objectives

88. The Offering Materials also emphasized the Board’s active involvement and oversight

of the Company’s investment objectives and strategy. Registration Statement Amendment No. 4 stated

that: The board of directors, including a majority of the independent directors, must approve all acquisitions (p. 57)

The board of directors has retained our advisor to manage our day-to-day affairs and implement our investment strategy, subject to the board of directors’ direction, oversight and approval (p. 55)

The responsibilities of the board of directors include: - Approving and overseeing our overall investment strategy - Approving any investment for a purchase price, total project cost or sale price greater than an amount equal to 10% of the value of our net assets, including the financing of such investments (p. 55)



89. The Advisory Agreement with TNP Advisors also provided that “[i]f a transaction

I requires approval by the Independent Directors, the [TNP] Advisor will deliver to the Independent

Directors all documents and other information required by them to properly evaluate the proposed

transaction.”

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90. The representations in the Offering Materials relating to the Board’s oversight of the

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I Company’s investment strategy were false and misleading. By 2012, when Thompson needed money

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to address TNP’s mounting financial problems, he recommended that the Company acquire a shopping

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I center in Lahaina, Hawaii for $31 million. Thompson proposed that the Company take out a $29

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I million loan guaranteed by TNP and Thompson to pay for the Lahaina shopping center.

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91. Because the Lahaina transaction implicated more than 10% of the Company’s net assets

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I and provided for a fee to TNP Advisors, the Company’s internal controls required the independent

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directors to review the documents and other information necessary to evaluate the proposed transaction

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and the financing to determine whether it was consistent with the Company’s investment objectives and

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should be approved.

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92. The Board approved the transaction and just weeks later the Company defaulted on the

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I $29 million loan, causing a cross-default of the Company’s credit line at KeyBank. TNP and

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Thompson were incapable of honoring their guarantees. The Company subsequently admitted that

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“Thompson was paid a significant fee by recommending and effecting a risky investment (the Lahaina

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Gateway Center acquisition) that violated loan covenants, which forced us to cease dividend payments

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under the terms of our credit agreement and cost your company millions of dollars.”

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93. Following the loan defaults, the Company suspended paying dividends, suspended its

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share redemption program, and informed shareholders that the value of their SRT shares was likely

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impacted by the defaults and that investors should not rely on the previously estimated share value of

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$10.60 a share in valuing their SRT shares.

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(3) Omissions Concerning Thompson and TNP

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94. Before the Offering Period, the Company implemented its strategy of incurring

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significant debt backed by guarantees from TNP and Thompson. Because Thompson was personally

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guaranteeing the Company’s line of credit and certain loans, his ability to honor those guarantees was

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material information for investors. But the Offering Materials did not disclose any information about

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Thompson’s financial condition and investors thus were not able to evaluate whether Thompson’s

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guarantees had any value. The Offering Materials also failed to disclose the risk that Thompson would

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not be able to honor his guarantees. These omissions were material because Thompson’s declining




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financial condition before and during the Offering Period raised substantial doubts as to his ability to

honor the guarantees he made.

95. The Offering Materials identified Thompson, Maurer, Wolford and Wendy Worcester as

TNP’s key personnel and stated that the Company’s success depended to a significant degree on their

I continued contributions. But the Offering Materials did not disclose that these four key personnel were

in fact engaging in the sale of securities in violation of federal and state securities laws by failing to

disclose and omitting material facts about TNT and certain TNP-sponsored note programs. This was

material information because it called into question their honesty and candor, the accuracy of the

representations in the Offering Materials, their fitness to serve as executives of the Company, and

ability to achieve the Company’s stated investment objectives.

D. The Truth is Revealed and the Company Replaces TNP and Thompson

96. On February 7, 2013, the Company terminated the IPO and ceased offering shares.

97. On April 8, 2013, the Company issued a press release disclosing its efforts to terminate

TNP Advisors and to oust Thompson as CEO. According to the release, the Company also sought to

“correct inaccurate statements contained in a recent letter issued to our shareholders by our current co-

CEO and chairman of the board [ i . e., Thompson].”

98. The press release stated:

...the Lahaina Gateway acquisition and the related [DOF] loan were not in the best interest of our company, especially given our current advisor’s known difficulties and the fact that the termination or insolvency of our advisor triggers a default under the loan. Unfortunately, our advisor misled the board of directors with respect to the [DOF] loan and the Lahaina Gateway acquisition. For these and other reasons, we are entitled to terminate our advisor for cause. We have not done so only on account of [DOF’s] refusal to consent to such termination on commercially reasonable terms.

99. On April 18, 2013, the Company filed a report with the SEC on Form 8-K announcing

that it had dismissed McGladrey as the Company’s auditor. The Company later disclosed that “[t]he

Company’s auditors [who were dismissed] were unwilling to accept certifications signed solely by

Thompson.”



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100. On July 17, 2013, the Company issued a press release announcing, among other matters,

that TNP Advisors had allowed the Company’s unrestricted cash reserves to fall below the $4 million

floor mandated in the Advisory Agreement. As of March 31, 2013, unrestricted cash had fallen to just

$1.1 million, while outstanding accounts payable and accrued expenses exceeded $5 million.

101

On July 30, 2013, FINRA’s Department of Enforcement filed the FINRA complaint.

102

On August 12, 2013, the Company issued a press release announcing that it had

“severed” its relationship with TNP Advisors, appointed a new CEO to replace Thompson, and planned

to change its name to Strategic Realty Trust, Inc.

103. The press release also stated that in order to resolve its obligations under the $29 million

Lahaina loan, the Company had conveyed title to the Lahaina Center to the lender. The press release

also explained that:

The Lahaina loan contained a number of provisions that potentially exposed the Company to substantial risk and constrained its ability to make certain strategic decisions. Unfortunately the Company’s former advisor, Thompson, misled the Board of Directors with respect to Lahaina loan and acquisition.

* * *

Given that the FINRA report suggests that Thompson is possibly insolvent and a Thompson bankruptcy would trigger a loan default and yield maintenance charges, the Company was at real risk of a recourse deficiency judgment of possibly $10 million to $12 million. The bankruptcy process could have taken many months and perhaps years, and meanwhile the Company would have been unable to operate in a normal fashion.

104. The release also revealed that:

The Company has been working for months trying to get complete shareholder records transferred to an independent third party transfer agent, but Thompson has refused to cooperate in those efforts. Thompson owns or controls the current transfer agent, and continues to demand and collect fees and reimbursements while refusing to turn over shareholder records, which are the property of the Company, not Thompson. Having failed to convince Thompson to turn over the Company’s property, the Company had no choice but to file suit against Thompson in an effort to obtain those records. In response to the lawsuit, Thompson furnished a




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partial list of the required information; however it was just a fraction of the data needed by the new transfer agent to fulfill its duties.

105. As a result of its default of the KeyBank line of credit, the Company subsequently

entered into a series of forbearance agreements with KeyBank. Under those agreements, the Company

was not allowed to pay dividends to its stockholders and the proceeds from the sales of the Company’s

properties had to be applied to pay down the KeyBank debt in the first instance.

COUNT ONE

(for violations of Section 11 of the Securities Act against the Company)

106. Plaintiffs re-allege and incorporate all of the foregoing paragraphs as if set forth fully

herein.

107. This Count is asserted against the Company for violations of section 11 of the Securities

Act, 15 U.S.C. § 77k, on behalf of Plaintiffs and all members of the Class who purchased or otherwise

acquired the Company’s common stock during the Offering Period pursuant or traceable to the

materially untrue and misleading Offering Materials, and were damaged thereby.

108. The Offering Materials were false and misleading, contained untrue statements of

material facts, omitted to state other facts necessary to make the statements made therein not

misleading, and omitted material facts required to be stated therein.

109. The Company was the issuer of the Offering, and is strictly liable under section 11 for

the materially untrue statements and omissions in the Offering Materials for the Offering of the

Company’s common stock during the Offering Period.

110. Plaintiffs and the members of the Class purchased or acquired the Company’s common

stock pursuant or traceable to the Registration Statement (as amended) during the Offering Period.

111. At the time they purchased or acquired the Company’s common stock, Plaintiffs and the

members of the Class did not know, nor in the exercise of reasonable diligence could they have known,

of the untrue statements of material fact or omissions of material facts in the Registration Statement (as

amended) and incorporated Offering Materials.



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112. The value of the Company’s common stock declined substantially subsequent to the

2

consummation of the Offering, and Plaintiffs and the other members of the Class have sustained

3

I damages.

4

113. Less than one year elapsed between the time Plaintiffs discovered or reasonably could

5

have discovered the facts upon which this Complaint is based and the time this Complaint was filed

6

asserting claims arising out of the falsity of the Offering Materials. Less than three years elapsed

7

between the time that the securities at issue in this Complaint were bona fide offered to the public

8

during the Offering Period and the time that this Complaint was filed asserting claims arising out of the

9

falsity of the Offering Materials for such securities.

10

114. By reason of the foregoing, the Company is liable for violations of section 11 of the

11

Securities Act to Plaintiffs and the other members of the Class who purchased or otherwise acquired the

12

Company’s common stock during the Offering Period pursuant to or traceable to the Offering

13

Materials.

14

COUNT TWO

15

(for violations of Section 11 of the Securities Act against the Individual Defendants)

16


17

I herein.

18

116. This Count is asserted against the Individual Defendants for violations of section 11 of

19

the Securities Act, 15 U.S.C. § 77k, on behalf of Plaintiffs and all members of the Class who purchased

20

or otherwise acquired the Company’s common stock during the Offering Period in or traceable to the

21

materially untrue and misleading Offering Materials, and were damaged thereby.

22

117. The Offering Materials were false and misleading, contained untrue statements of

23

material facts, omitted to state other facts necessary to make the statements made therein not

24

misleading, and omitted material facts required to be stated therein.

25

118. Each Individual Defendant named in this Count is liable in connection with the

26

Offerings (a) made at a time when the Defendant was a director of the Company, or (b) made pursuant

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to the Registration Statement (as amended) that the Defendant signed.

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119. Each of the Individual Defendants is unable to establish an affirmative defense based on

2

a reasonable and diligent investigation of the statements contained in Offering Materials. The

3

Individual Defendants did not make a reasonable investigation or possess reasonable grounds to believe

4

that those statements were true and that there were no omissions of any material fact. Accordingly,

5

they acted negligently and are liable to Plaintiffs and the other members of the Class.

6

120. Plaintiffs and the Class purchased or acquired the Company’s common stock issued

7

pursuant or traceable to the Offering Materials.

8

121. At the time they purchased or acquired the Company’s common stock, Plaintiffs and the

9

members of the Class did not know, nor in the exercise of reasonable diligence could they have known,

10

of the untrue statements of material fact or omissions of material facts in the Offering Materials.

11


12


13

damages.

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between the time that the securities at issue in this Complaint was bona fide offered to the public during

18

the Offering Period and the time that this Complaint was filed asserting claims arising out of the falsity

19

of the Offering Materials for such securities.

20

124. By reason of the foregoing, the Individual Defendants are liable for violations of section

21

11 of the Securities Act to Plaintiffs and the other members of the Class who purchased or otherwise

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acquired the Company’s common stock during the Offering Period pursuant to or traceable to the

23

Offering Materials.

24

COUNT THREE

25

(for violations of Section 12(a)(2) of the Securities Act against TNP Securities)

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I herein.

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126. This Count is asserted against TNP Securities for violations of section 12(a)(2) of the

2

Securities Act, 15 U.S.C. § 77l(a)(2), on behalf of Plaintiffs and all members of the Class, for having

3

promoted and sold the Company’s common stock issued in the Offering pursuant to the Offering

4

Materials, which contained untrue statements of material facts and material omissions as alleged herein.

5

127. TNP Securities acted as the dealer manager for the IPO and directly solicited the

6

purchase of the Company’s common stock by Plaintiffs and other members of the Class by means of

7

the Offering Materials, and financially benefitted thereby. The acts included but are not limited to

8

providing certain sales, promotional and marketing services to the Company in connection with the

9

distribution of the shares of common stock offered pursuant to the Prospectus and Prospectus

10

Supplements, and offering shares of the Company’s common stock to investors on a best efforts basis.

11

128. According to the Offering Materials, the success of the IPO and correspondingly the

12

Company’s ability to implement its business strategy was dependent upon the ability of TNP Securities

13

to establish and maintain a network of licensed securities broker-dealers and other agents, and that if

14

TNP Securities failed to perform, the Company would not have raised adequate proceeds through the

15

Offering to implement its investment strategy.

16

129. In connection with the Offering, TNP used the means and instrumentalities of interstate

17

commerce and the U.S. mails.

18

130. TNP Securities is unable to establish an affirmative defense based upon a reasonable or

19

diligent investigation of the statements contained in the Offering Materials. TNP Securities did not

20

make a reasonable investigation or possess reasonable grounds to believe that the statements contained

21

therein and incorporated by reference in the Offering Materials during the Offering Period were true

22

and that there were no omissions of any material fact.

23

131. Plaintiffs and other members of the Class purchased or otherwise acquired the

24

Company’s common stock issued in the IPO pursuant to the materially inaccurate Offering Materials

25

and did not know, or in the exercise of reasonable diligence could not have known, of the untruths and

26

omissions contained therein.

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I damages.

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between the time that the securities at issue in this Complaint were bona fide offered to the public

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during the Offering Period and the time that this Complaint was filed asserting claims arising out of the

9

falsity of the Offering Materials for such securities.

10

134. By reason of the foregoing, TNP Securities is liable under section 12(a)(2) of the

11

Securities Act to Plaintiffs and other members of the Class who purchased the Company’s common

12

stock in the Offering. Plaintiffs and other members of the Class have the right to rescind and recover

13

the consideration paid for the Company’s common stock on which they have suffered damages. In

14

addition, Plaintiffs and the members of the Class who have sold and suffered damages on their

15

purchases of the Company’s commons stock that they originally purchased through the Offering are

16

entitled to rescissory damages.

17

COUNT FOUR

18

(for violations of Section 15 of the Securities Act against Thompson, Cameron and Wolford)

19


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I herein.

21

136. This Count is asserted against Individual Defendants Thompson, Cameron, and Wolford

22

for violations of section 15 of the Securities Act, 15 U.S.C. § 77o, on behalf of Plaintiffs and the other

23

members of the Class who have asserted claims pursuant to sections 11 or 12(a)(2) of the Securities

24

Act, as set forth above.

25

137. Defendants Thompson, as the Company’s CEO and Chairman of the Board, and

26

Cameron and Wolford, as the Company’s CFO during the Offering Period, were each controlling

27

persons of the Company within the meaning of section 15 of the Securities Act during their respective

28

periods of employment at the times of the Offering. Because of their positions of control and authority




1

as senior officers of the Company and their control of the contents of the Company’s financial

2

statements and SEC disclosures, Thompson, Cameron and Wolford were able to, and did, control the

3

contents of the Offering Materials during their respective periods of employment, which contained

4

I materially untrue or misleading information and omitted material facts.

5

138. By reason of the foregoing, Defendants Thompson, Cameron and Wolford are liable

6

under section 15 of the Securities Act to Plaintiffs and the other members of the Class who purchased

7

or otherwise acquired the Company’s common stock pursuant or traceable to the Offering Materials,

8

and who were damaged thereby.

9

COUNT FIVE

10

(for violations of Section 15 of the Securities Act against TNP and TNP Advisors)

11


12

I herein.

13

140. This Count is asserted against TNP and TNP Advisor for violations of section 15 of the

14

Securities Act, 15 U.S.C. § 77o, on behalf of Plaintiffs and the other members of the Class who have

15

asserted claims pursuant to sections 11 or 12(a)(2) of the Securities Act, as set forth above.

16

141. At all relevant times, TNP was, by virtue of serving as the Company’s sponsor and its

17

I actual control of the Company’s activities, a controlling person of the Company within the meaning of

18

section 15 of the Securities Act. TNP had the power and influence, and exercised that power and

19

influence, to cause the Company to engage in the acts and violations of law complained of herein,

20

including the power and influence to control (a) the Company’s participation as an issuer in the

21

Offerings, (b) the Company’s role in the preparation and review of the Registration Statement

22

Amendments and other Offering Materials, and (c) the Company’s solicitation, offer and sale of the

23

Company’s common stock.

24

142. At all relevant times, TNP Advisors was, by virtue of running the Company’s day-to-

25

day operations, identifying real estate investment opportunities, obtaining financing, managing real

26

estate assets, engaging in real estate transactions, and otherwise conducting and overseeing the

27

Company’s business functions, a controlling person of the Company within the meaning of section 15

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of the Securities Act. TNP Advisors had the power to influence and control (a) the Company’s




1

participation as an issuer in the Offerings, (b) the Company’s role in the preparation and review of the

2

Registration Statement Amendments and other Offering Materials.

3

143. By reason of the foregoing, Defendants TNP and TNP Advisors are liable under section

4

15 of the Securities Act to Plaintiffs and the other members of the Class who purchased or otherwise

5

acquired the common stock issued by the Company or underwritten or sold by TNP Securities, and who

6

were damaged thereby.

7

COUNT SIX

8 (for breach of fiduciary duty and aiding and abetting breach of fiduciary duty against the

9

Company and the Individual Defendants)

10 144. Plaintiffs re-allege and incorporate all of the foregoing paragraphs as if set forth fully

11

I herein.

12 145. The Individual Defendants owed Plaintiffs and other members of the class a duty of

13 ordinary and reasonable care and good faith by virtue of the charter, which explicitly provided that the

14 Individual Defendants served in a fiduciary capacity to the Company and had a fiduciary duty to the

15 stockholders, including a specific fiduciary duty to supervise the relationship of the Company with TNP

16 Advisor.

17 146. The Individual Defendants breached this duty by, among other things, negligently

18 making numerous false and misleading misrepresentations about the Company’s flawed internal

19 controls that allowed TNP Advisors to pay itself unearned fees, and by negligently failing to supervise

20 TNP Advisor’s acquisitions and financing strategies,

21 147. The Individual Defendants advanced their own interests in continuing the sale of the

22 Company’s shares and the fees those sales generated to the detriment of Plaintiffs and other members

23 of the class.

24 148. The Company aided and abetted the Individual Defendants’ breach of fiduciary duties to

25 Plaintiffs and other members of the class, in that it knew about and substantially assisted in or

26 encouraged the breach.

27

28




1

149. The Company also aided and abetted TNP Advisor’s breach of its fiduciary duties to

2

I Plaintiffs and other members of the class, in that it knew about and substantially assisted in or

3

encouraged the breach.

4

150. As a result of the Individual Defendants’ and the Company’s breaches of their fiduciary

5

duties and/or aiding and abetting breaches of fiduciary duty, Plaintiffs and other members of the class

6

have suffered and continue to suffer economic losses in an amount to be determined according to proof

7

at trial.

8

COUNT SEVEN

9 (for breach of fiduciary duty and aiding and abetting breach of fiduciary duty against TNP

10

Advisors)

11


12

I herein.

13

152. As set forth in the Company’s charter, TNP Advisors owed fiduciary duties to Plaintiffs

14 and other members of the class as stockholders, and as required by the North American Securities

15

Administrators Association’s Policy Regarding Real Estate Investment Trusts, which provides that the

16 advisor of a REIT shall be deemed to be in a fiduciary relationship to the REIT and the shareholders.

17

153. TNP Advisors had a fiduciary duty to deal fairly with Plaintiffs and other members of

18

the class and to communicate promptly to them all material facts it knew or should have known about

19

the true nature of the investments in the Company.

20

154. TNP Advisors breached the duties and obligations of ordinary care by, among other

21

things, taking unearned fees; engaging in acquisitions and financing without having conducted a

22 reasonable due diligence investigation to understand the potential risks and rewards associated with the

23

investments; and failing to conduct further inquiry when red flags were present. TNP Advisors

24 advanced its own interests to obtain management fees to the detriment of Plaintiffs and other members

25 of the class.

26

155. TNP Advisors also aided and abetted the Company and Individual Defendants in

27

breaching their fiduciary duties to Plaintiffs and other members of the class in making numerous false

28




1

and misleading misrepresentations about the Company, in that they knew about and substantially

2

I assisted in or encouraged the breach.

3

156. As a result of TNP Advisors’ breaches of their fiduciary duties and/or aiding and

4

abetting breaches of fiduciary duty, Plaintiffs and other members of the class have suffered and

5

continue to suffer economic losses in an amount to be determined according to proof at trial.

6

COUNT EIGHT

7

(for unjust enrichment against Defendants)

8


9

I herein.

10

158. By their wrongful acts and omissions alleged above, Defendants were unjustly enriched

11

at the expense of and to the detriment of Plaintiffs and other members of the class.

12

159. As a result of Defendants’ wrongful conduct as alleged herein, Plaintiffs and other

13

members of the class acquired shares in the Company that are not worth the value reported and are

14

contrary to the descriptions and understanding of the investments as sold to them.

15

160. Defendants’ knowing acceptance and retention of this non-gratuitous benefit conferred

16

by Plaintiffs and other members of the class under these circumstances is unjust and inequitable.

17

161. No other remedy at law can adequately compensate Plaintiffs and other members of the

18

class for the economic damages resulting to them from Defendants’ wrongful actions as alleged herein.

19

162. Plaintiffs and other members of the class seek restitution from Defendants, and seek an

20

order of this Court disgorging all profits, benefits and other compensation obtained by the Defendants

21

from their wrongful conduct.

22

COUNT NINE

23

(for negligence against TNP Securities)

24


25

I herein.

26

164. TNP Securities owed a duty of care to Plaintiffs and other members of the class through

27

its roles as a registered broker-dealer and FINRA member, and as deal manager and underwriter for the

28

Company’s IPO.




1

165. TNP Securities had a duty to exercise due care when acting as deal manager and

2

underwriter in connection with selling the Company’s shares to Plaintiffs and other members of the

3

class. TNP Securities’ duty to exercise due care included the following duties:

4

a. To perform a reasonable review and due diligence investigation of the Company,

5

I TNP and TNP Advisors;

6

b

To conduct further inquiry if any red flags are present;

7

c. To ensure that the Company’s securities were suitable investments;

8

d. To ensure that all material facts about and risks of investing in the Company

9

were disclosed;

10

e. To provide full and fair disclosure of the risks and rewards associated with an

11

investment in the Company;

12

f. To ensure that investors were not misled by the practices of the Company’s

13

Board of Directors, TNP, and TNP Advisors as alleged herein.

14

166. TNP Securities’ breach of its duty of care, failure to comply with federal and state laws

15

and industry rules and regulations, and failure to exercise due care are the proximate and factual causes

16

of the losses suffered by Plaintiffs and other members of the class.

17

PRAYER FOR RELIEF

18

WHEREFORE, Plaintiffs pray for relief and judgment, as follows:

19

a. Determining that this action is a proper class action under Rule 23(a) and (b)(3) of the

20

Federal Rules of Civil Procedure on behalf of the Class defined herein;

21

b. Awarding compensatory, special and general damages according to proof;

22

c. Awarding pre-judgment and post-judgment interest;

23

d. Awarding recission or other appropriate equitable relief;

24

e. Awarding Plaintiffs and the Class their reasonable costs and expenses incurred in this

25

action, including counsel fees and expert fees; and

26

f. Such other and further relief as the Court may deem just and proper.

27

28




1

JURY TRIAL DEMANDED

2

Plaintiffs hereby demand a jury trial.

GIRARD GIBBS LLP

By: /s/ Jonathan K. Levine Jonathan K. Levine

Daniel C. Girard 601 California Street, 14th Floor San Francisco, California 94108 Telephone: (415) 981-4800 Facsimile: (415) 981-4846 Email: [email protected] Email: [email protected]

-and-

John A. Kehoe 711 Third Avenue, 20th Floor New York, New York 10017 Telephone: (212) 798-0159 Facsimile: (212) 867-1767 Email: [email protected]

Lead Counsel and Counsel for Lead Plaintiffs Lewis Booth and Stephen Drews

Peiffer Rosca Abdullah & Carr Joseph C. Peiffer 201 St. Charles Avenue, Suite 4100 New Orleans, Louisiana 70170 Telephone: (504) 523-2434 Facsimile: (504) 523-2464 Email: [email protected]

-and-

Alan L. Rosca 526 Superior Avenue, Suite 401 Cleveland, Ohio 44114 Telephone: (888) 998-0520 Facsimile: (504) 586-5250 Email: [email protected]

Counsel for Lead Plaintiffs Lewis Booth and Stephen Drews



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4 Dated: March 13, 2014

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1 CERTIFICATE OF SERVICE

2

I, Jonathan K. Levine, hereby certify that on March 13, 2014, I caused the foregoing document

3

be filed electronically with the United States District Court for the Northern District of California’s

4 through the Court’s mandated ECF service. Counsel of record are required by the Court to be registered

5

6 e-filers, and as such are automatically e-served with a copy of the document(s) upon confirmation of e-

7 filing.

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I declare under penalty of perjury that the foregoing is true and correct.

9 Executed this 13th day of March 2014 at San Francisco, California.

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11 /S/ Jonathan K. Levine

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APPENDIX A

THE OFFERING MATERIALS

Date Document Signatories

1 8/17/2009 Form 8-K

2 9/11/2009 Form 10-Q for quarter ended June 30, Thompson

2009

3 11/2/2009 Form 8-K

4 11/16/2009 Form 10-Q for quarter ended September Thompson

30, 2009

5 11/18/2009 Form 8-K

6 11/24/2009 Form 8-K Thompson

7 2/3/2010 Form 8-K/A Thompson

8 2/12/2010 Form 8-K/A

9 2/18/2010 Form 8-K

10 2/19/2010 Post-Effective Amendment No. 1 to Thompson, Maurer, Friedman,

Form S-11 Registration Statement Rogers, Ruth

11 3/3/2010 Form 8-K/A

12 3/16/2010 Pre-Effective Amendment No. 1 to Post- Thompson, Maurer, Friedman,

Effective Amendment No. 1 to Form S- Rogers, Ruth

11 Registration Statement

13 3/31/2010 Form 10-K for the fiscal year ended Thompson, Maurer, Friedman,

December 31, 2009 Rogers, Ruth

14 4/13/2010 Prospectus

15 4/13/2010 Supplement No. 1 to Prospectus dated

April 13, 2010



17 4/19/2010 Form 8-K

18 4/29/2010 Form 8-K

19 5/17/2010 Amended Form 10-K for the fiscal year

ended December 31, 2009

Appendix A - 1


APPENDIX A



20 5/17/2010 Form 10-Q for quarter ended March 31, Thompson

2010

21 5/21/2010 Form 8-K


April 13, 2010



24 6/8/2010 Form 8-K Maurer


April 13, 2010

26 6/15/2010 Form 8-K

27 6/24/2010 Form 8-K

28 7/12/2010 Form 8-K Cameron


April 13, 2010



April 13, 2010


33 8/16/2010 Form 10-Q for quarter ended June 30, Thompson, Cameron

2010


April 13, 2010

35 8/20/2010 Form 8-K/A Cameron

36 8/27/2010 Form 8-K/A

37 9/2/2010 Post-Effective Amendment No. 4 to Thompson, Maurer, Cameron,

Form S-11 Registration Statement Friedman, Rogers, Ruth


Appendix A - 2


APPENDIX A



April 13, 2010





43 11/15/2010 Form 10-Q for quarter ended September Thompson, Cameron

30, 2010


April 13, 2010

45 12/1/2010 Post-Effective Amendment No. 5 to Thompson, Maurer, Cameron,

Form S-11 Registration Statement Friedman, Rogers, Ruth


April 13, 2010


April 13, 2010





April 13, 2010


53 4/1/2011 Form 10-K for the fiscal year ended Thompson, Maurer, Wolford,

December 31, 2010 Friedman, Rogers, Ruth

54 4/5/2011 Form 8-K Wolford


56 4/15/2011 Post-Effective Amendment No. 6 to Thompson, Maurer, Wolford,

Form S-11 Registration Statement Levin, Rogers, Ruth


Appendix A - 3


APPENDIX A



April 14, 2011


April 14, 2011


60 4/29/2011 Definitive Proxy Statement Filed on

Schedule 14A

61 4/29/2011 Form 8-A Wolford


April 14, 2011

63 5/16/2011 Form 8-K

64 5/16/2011 Form 10-Q for quarter ended March 31, Thompson, Wolford

2011

65 5/25/2011 Supplement No. 4 to Prospectus dated Thompson, Wolford

April 14, 2011




April 14, 2011


70 6/15/2011 Form 8-K/A Thompson


April 14, 2011





Form S-11 Registration Statement Kompaniez, Levin, Rogers


Appendix A - 4


APPENDIX A



April 14, 2011

77 8/1/2011 Form 8-K Maurer


79 8/12/2011 Form 8-K/A Wolford

80 8/15/2011 Form 10-Q for quarter ended June 30, Thompson, Wolford

2011

81 8/16/2011 Amended Form 10-Q for quarter ended Thompson, Wolford

June 30, 2011


April 14, 2011

83 8/29/2011 Form 8-K Maurer



April 14, 2011


April 14, 2011


88 9/28/2011 Form 8-K Maurer

89 10/3/2011 Form 8-K Maurer


April 14, 2011






April 14, 2011


Appendix A - 5


APPENDIX A




April 14, 2011

97 11/14/2011 Form 10-Q for quarter ended September Thompson, Wolford

30, 2011


April 14, 2011


April 14, 2011

100 12/9/2011 Form 8-K


102 12/22/2011 Form 8-K Wolford

103 12/27/2011 Form 8-K/A Wolford

104 12/28/2011 Form 8-K Wolford




April 14, 2011









April 14, 2011



Appendix A - 6


APPENDIX A





119 3/1/2012 Pre-Effective Amendment No. 1 to Post- Thompson, Wolford, Kompaniez,

Effective Amendment No. 9 to Form S- Levin, Rogers



April 14, 2011





125 3/21/2012 Post-Effective Amendment No. 10 to Thompson, Wolford, Kompaniez,

Form S-11 Registration Statement Levin, Rogers


April 14, 2011



129 3/30/2012 Form 10-K for the fiscal year ended Thompson, Wolford, Kompaniez,

December 31, 2011 Levin, Rogers





April 10, 2012


April 10, 2012

134 4/27/2012 Definitive Proxy Statement Filed on

Schedule 14A

Appendix A - 7


APPENDIX A




136 5/15/2012 Form 10-Q for quarter ended March 31, Thompson, Wolford

2012





April 10, 2012



April 10, 2012

142 6/15/2012 Form S-11 Registration Statement Thompson, Wolford, Kompaniez,

Levin, Rogers


144 7/2/2012

Supplement No. 5 to Prospectus dated

April 10, 2012


April 10, 2012




April 10, 2012




April 10, 2012

151 8/14/2012 Form 10-Q for quarter ended June 30, Thompson, Wolford

2012

Appendix A - 8


APPENDIX A



152 8/15/2012 Form 8-K


April 10, 2012

154 8/16/2012 Form 8-K

155 8/31/2012 Pre-Effective Amendment No. 1 to Post- Thompson, Kompaniez, Levin,

Effective Amendment No. 13 to Form S- Rogers



April 10, 2012

157 9/5/2012 Form 8-K

158 10/9/2012 Form 8-K

159 10/17/2012 Form 8-K

160 10/19/2012 Form 8-K

161 11/9/2012 Form 8-K

162 11/13/2012 Form 8-K

163 11/14/2012 Form 10-Q for quarter ended September Thompson

30, 2012

164 11/14/2012 Form 8-K

165 12/7/2012 Post-Effective Amendment No. 14 to Thompson, Levin, Rogers

Form S-11 Registration Statement


April 10, 2012


April 10, 2012

Appendix A - 9

daniel c. girard (state bar no....

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