federal lawsuit

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

Eli Rubel, Plaintiff, v. Acclaim Financial Group, LLC, and FPX, LLC. Defendants.

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Case No. _______________

PLAINTIFF ELI RUBEL’S COMPLAINT

Plaintiff Eli Rubel, as and for his Complaint, states and alleges the following:

THE PARTIES

1. Eli Rubel (“Rubel”), Plaintiff herein, is an individual residing in San Francisco,

California.

2. Acclaim Financial Group, LLC (“Acclaim”) is a Texas limited liability company with

its principal place of business in Tyler, Texas.

3. FPX, LLC (“FPX”) is a Delaware limited liability company with its headquarters in

Dallas, Texas.

JURISDICTION AND VENUE

4. Original jurisdiction of this matter is founded on 28 U.S.C. § 1332, as there is complete

diversity and the amount in controversy exceeds $75,000.

5. Venue is proper pursuant to 28 U.S.C. § 1391, as a substantial part of the events giving

rise to the claim occurred within this judicial district, and Acclaim is located within this judicial

district.

6. This Court has personal jurisdiction over Acclaim and FPX by virtue of their

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continuous and systematic contacts with Texas as both companies are headquartered in Texas.

7. This Court further has personal jurisdiction over Acclaim due to the express contractual

agreement of the parties.

FACTUAL BACKGROUND

8. Rubel is the co-founder, inventor, and CEO of a start-up software company named

Secure Document Technology Company d/b/a Glider (“Glider”).

9. Glider created and wholly-owned a unique software system that automated the closing

of contracts for companies of all sizes using sophisticated CRM solutions such as Salesforce (the

“Glider Software”).

10. On February 10, 2014, Acclaim, a private equity firm, entered into a Stock Sale

Agreement with Glider and Rubel, by which Acclaim wholly acquired the software company. Said

Stock Sale Agreement is attached hereto as Exhibit 1 and incorporated herein by reference.

11. Acclaim states on public social media that its business is “Venture Capital & Private

Equity.”

12. Ms. Audrey Spangenberg states on public social media that she is the “Managing

Member” of Acclaim, and has been from 1994 to date.

13. On information and belief, Acclaim entered into said Stock Sale Agreement specifically

to convey Glider’s software and other intellectual property to FPX, its wholly-owned subsidiary.

14. The headline of a press release on FPX’s website states: “FPX Acquires Glider,

Redefines the Sales Contracting Process.” See http://fpx.com/press-releases/fpx-acquires-glider-

redfines-the-sales-contracting-process (Apr. 22, 2014).

15. In its authored press release, FPX publicly stated that Glider was acquired by FPX as

follows:


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a. “DALLAS, April 22nd, 2014 – FPX . . . announced today its acquisition of

Portland-based Glider to extend its offerings to include best-in-class contract lifecycle management

(CLM) automation. . . . Extending beyond typical CPQ solutions, the acquisition now enables FPX to

facilitate the entire end-to-end sales closing process through workflow automation and predictive

analytics.”

b. “[S]aid Dave Batt, chief executive officer of FPX[,] ‘[T]he acquisition of Glider

illustrates our commitment to provide companies the broad spectrum of applications to transform their

operations . . . .”

c. “[S]aid Dave Hawkins, vice president of sales operations at Fujitsu Network

Communications[,] ‘FPX has a solid track record as our vendor partner and its acquisition of Glider

will enable FPX customers to run more end-to-end business processes in the cloud.” See

http://fpx.com/press-releases/fpx-acquires-glider-redefines-the-sales-contracting-process (emphasis

added).

16. Ms. Audrey Spangenberg lists herself as the Chairman and CEO of FPX from February

of 2009 through April of 2013, and thereafter served as the Chairman of FPX from April of 2013

through the present.

17. On information and belief, Acclaim then entered into a licensing agreement with FPX,

a software company, pursuant to which FPX has integrated and now uses Glider’s software, and in

doing so uses the trade secrets and intellectual property of Glider.

18. Specifically, FPX has renamed the Glider software and function thusly: “The Smart

Contract Management application – the one powered by the FPX Predictive Analytics engine.” See

http://fpx.com/applications/smart-contract-management.

19. At all times prior to the Stock Sale Agreement, Glider held full and complete rights,


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title, and interest in the Glider Software and all aspects thereof, and thereby held full and complete

rights, title, and interest in all copyrights and attendant intellectual property rights in the Glider

Software.

20. Pursuant to the Stock Sale Agreement, Acclaim agreed to pay $3,000,000, the payment

of which was divided between a first cash payment of $1,000,000 and a Promissory Note Payment

securing the remaining $2,000,000 owed.

21. Of the $2,000,000 originally secured by Promissory Note, $1,143,303.09 in principal,

plus interest, was payable to Rubel. The Rubel Promissory Note (“Rubel Note”) is attached hereto as

Exhibit 2 and incorporated herein by reference.

22. On information and belief, as part of the license agreement entered into between FPX

and Acclaim, FPX agreed to pay the amounts due under the Promissory Note Payment, including the

amounts owed under the Rubel Note.

23. The Rubel Note provides that the outstanding amount due was payable on or before

February 10, 2015. See Ex. 2.

24. On February 7, 2015, at the request of Dave Batt and Audrey Spangenberg, Acclaim

and Rubel entered into a letter agreement by which they agreed to extend the February 10, 2015 payoff

date to August 10, 2015. Said Letter Agreement is attached hereto as Exhibit 3 and incorporated

herein by reference.

25. To date, Acclaim and FPX have failed to pay the monies owed to Rubel under the

Rubel Note, which represents over 35% of the total consideration that Acclaim is contractually

obligated to pay for Glider.

26. As a result of the event of default, Rubel requested by letter dated September 11th 2015,

pursuant to paragraph 8.2 of the Stock Sale Agreement, further assurances from Acclaim and even


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proposed several options for Acclaim’s compliance with this obligation.

27. Paragraph 8.2 of the Stock Sale Agreement provides that “[i]f at any time after the

Closing any further action is necessary or desirable to carry out the purposes of this [Stock Sale]

Agreement and its contemplated transactions, each of the Parties will take further actions, including

the signing and delivery of further instruments and documents, as the requesting Party reasonably may

request, all at the sole cost and expense of the requesting Party.” See Ex. 1 ¶ 8.2.

28. Despite this contractual agreement, Acclaim has refused to comply with this Post-

Closing Covenant.

29. Acclaim and FPX continue their possession, use and marketing of the Glider software

and intellectual property

30. Based on their continued breach under the note, Rubel hereby brings its claim in a court

within the state of Texas, as required by the Rubel Note and agreed to by the Parties.

COUNT I

DEFAULT ON PROMISSORY NOTE

31. Rubel repeats and realleges paragraphs 1 through 30 above as if fully set forth herein.

32. Defendants have failed to pay the sums due and owing under the Rubel Note on or

before the agreed upon deadlines of August 10, 2015.

33. By virtue of Defendants’ failure to pay, they have committed an act of default under the

Rubel Note.

34. Defendants are required, by the terms and conditions of the Rubel Note, to immediately

pay the full amount due and owing plus interest.


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PRAYER FOR RELIEF

WHEREFORE, Eli Rubel is entitled to judgment as follows:

i. That Defendants have defaulted on the Rubel Note, and that all principal sums

and interest are now due and owing;

ii. To the costs and expenses, including reasonable attorney’s fees, incurred by

Rubel in connection with this action as Rubel is entitled under the Rubel Note

and as a result of Defendants wrongful conduct;

iii. To such other additional relief that this Court determines is just, proper, and

equitable.

Dated: September 17, 2015

FAEGRE BAKER DANIELS LLP /s/ Jesse Linebaugh Jesse Linebaugh TXAT24036970 [email protected] 801 Grand Avenue, 33rd Floor Des Moines, Iowa 50309-8011 Telephone: (515) 248-9000 Facsimile: (515) 248-9010 Attorney for Plaintiff

US.99565945.01


EXHIBIT 1

Case 6:15-cv-00859 Document 1-1 Filed 09/17/15 Page 1 of 12 PageID #: 7

EXHIBIT 2


EXHIBIT 3


CIVIL COVER SHEET

(SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

(b)(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

(c) (Firm Name, Address, and Telephone Number) (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff(For Diversity Cases Only) and One Box for Defendant)

PTF DEF PTF DEF(U.S. Government Not a Party) or

and(Indicate Citizenship of Parties in Item III)

IV. NATURE OF SUIT (Place an “X” in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

PERSONAL INJURY PERSONAL INJURY

PROPERTY RIGHTS

LABOR SOCIAL SECURITY PERSONAL PROPERTY

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS FEDERAL TAX SUITSHabeas Corpus:

IMMIGRATIONOther:

V. ORIGIN (Place an “X” in One Box Only)

(specify)

VI. CAUSE OF ACTION(Do not cite jurisdictional statutes unless diversity)

VII. REQUESTED IN COMPLAINT:

CLASS ACTION DEMAND $JURY DEMAND:

VIII. RELATED CASE(S) IF ANY (See instructions):

FOR OFFICE USE ONLY

ELI GABRIEL RUBEL

SAN FRANCISCO CNTY.

JESSE LINEBAUGH FAEGRE BAKER DANIELS(515) 248-9000 801 GRAND AVENUE, 33rd FLOOR

DES MOINES, IOWA 50309

ACCLAIM FINANCIAL GROUP, LLC, and FPX, LLC

28 U.S.C. § 1332; 28 U.S.C. § 1391

DEFAULT ON PROMISSORY NOTE

1,143,303.19

09/17/2015

plus interest, cost, expenses, and attorney fees

/s/ Jesse Linebaugh


AO 440 (Rev. 06/12) Summons in a Civil Action

UNITED STATES DISTRICT COURTfor the

__________ District of __________

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Plaintiff(s)

v. Civil Action No.

Defendant(s)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address)

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if youare the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 ofthe Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

CLERK OF COURT

Date:Signature of Clerk or Deputy Clerk

Eastern District of Texas

ELI GABRIEL RUBEL

ACCLAIM FINANCIAL GROUP, LLC and FPX, LLC

Jesse LinebaughFaegre Baker Daniels801 Grand Avenue, 33rd FloorDes Moines, Iowa 50309-8003

15-859


AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date) .

I personally served the summons on the individual at (place)

on (date) ; or

I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date) , and mailed a copy to the individual’s last known address; or

I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)

on (date) ; or

I returned the summons unexecuted because ; or

Other (specify):

.

My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date:Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:

0.00


federal lawsuit

Documents

acclaim states

llc fpx

llc acclaim

glider software

eli rubel rubel

based glider

acclaim financial group

managing member of acclaim