supreme court of the state of new york … · vs. scott dunlop, dunlop group, ... rancho santa...
TRANSCRIPT
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
PATRICK MOSES, KEVIN KAUFMAN, AND VENTANA VENTURES LLC,
Plaintiffs,
vs.
SCOTT DUNLOP, DUNLOP GROUP, VENTANA VENTURES INC., BRAVO MEDIA LLC (F/K/A BRAVO COMPANY), AND REALAND PRODUCTIONS LLC,
Defendants.
Index No. _________
SUMMONS
TO THE ABOVE NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED to answer the complaint in this action, or to serve a notice of appearance, if the complaint is not served with this summons, within twenty (20) days after the service of this summons, exclusive of the day of service, or within thirty (30) days after service is complete if this summons is not personally delivered to you within the State of New York. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint.
Plaintiff designates New York County as the place of trial pursuant to CPLR § 503(a) on the grounds that at least one of the plaintiffs and defendants is situated in New York County and a substantial part of the occurrences at issue took place in New York County. Additionally, several of the parties agreed that disputes would be adjudicated in this venue in multiple agreements.
Dated: New York, New York JOHNSON GALLAGHER MAGLIERY LLC November 5, 2014
By: __________________________________
John M. Magliery Shannon J. Fields
75 Broad Street, 20th Floor New York, New York 10004 Telephone: (212) 248-2220
Attorneys for Plaintiffs Patrick Moses, Kevin Kaufman, and Ventana Ventures LLC
INDEX NO. UNASSIGNED
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/05/2014
653412/2014
TO: Mr. Scott Dunlop 33 Cherry Hills Drive Coto de Caza, California 92679
Mr. Scott Dunlop The Dunlop Group 30346 Esperanza, Suite B Rancho Santa Margarita CA 92688
Ventana Ventures, Inc. David Paul Lavezzari, Registered Agent 12881 Knott Street, Suite 209 Garden Grove, California 92841
Bravo Media LLC CT Corporation System, Registered Agent 111 Eighth Avenue New York, New York 10011
Realand Productions LLC CT Corporation System, Registered Agent 111 Eighth Avenue New York, New York 10011
1
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
PATRICK MOSES, KEVIN KAUFMAN, AND VENTANA VENTURES LLC,
Plaintiffs,
vs.
SCOTT DUNLOP, DUNLOP GROUP, VENTANA VENTURES INC., BRAVO MEDIA LLC (F/K/A BRAVO COMPANY), AND REALAND PRODUCTIONS LLC,
Defendants.
Index No. _________
COMPLAINT
Plaintiffs Patrick Moses (“Moses”), Kevin Kaufman (“Kaufman”) and Ventana
Ventures, LLC (“Ventana”), by and through their undersigned counsel, as and for their
Complaint against Defendants Scott Dunlop (“Dunlop”), The Dunlop Group, Ventana Ventures
Inc. (“Ventana Inc.,” and collectively with Dunlop and the Dunlop Group, the “Dunlop
Defendants”) Bravo Media LLC, and Realand Productions LLC (collectively, “Bravo”), state
and allege as follows:
Nature of the Action
1. This is a case about the real story behind the Real Housewives - a case of textbook
fraud and self-dealing in which defendant Scott Dunlop, aided by defendant Bravo, repeatedly
lied to his business partners, plaintiffs Moses and Kaufman, in order to take for himself the fruits
of their joint labor: millions of dollars in royalties and fees generated by a hit reality television
series, the Real Housewives of Orange County (the “Program”), and its sequels and spin-offs –
totaling more than 715 episodes to date – that the three of them jointly created. Though his
legitimate one third share of the Series revenue was itself a very substantial sum, Dunlop was not
content with that. Instead, out of pure greed, he conceived and, with Bravo’s help, carried out, a
653412/2014
2
scheme to defraud his partners of their share of the Real Housewives revenue so he could take all
of it for himself.
2. As alleged in detail below, the Program that Kaufman, Moses and Dunlop jointly
conceived – which ultimately became the Real Housewives – was a unique and compelling one
in the television industry. Having come up with such an idea, they took pains to document the
fact that it was a collaborative effort and that all revenue that it ever generated would be shared
equally among the three of them. In the Co-Production Agreement that they signed in January
2005, for example, they agreed that they would “shop the Property together,” that the three of
them would be “locked to the life of the series,” – one for all and all for one – and that they
would share all revenue that the Program ever generated – specifically including producer fees –
on “an equal, one-third basis.” Likewise, the LLC they formed in order to commercialize their
idea, plaintiff Ventana, was owned equally among the three of them.
3. Kaufman, Moses and Dunlop thereafter pitched their show idea to various
networks before coming to an agreement with defendant Bravo. In 2005, Ventana and Bravo
entered into a contract pursuant to which Ventana assigned the rights to the Program to Bravo
and agreed to produce it in exchange for a bundle of lucrative contract rights, which included
among other things: (i) the right to serve as producer for the first season of the Program and to
earn an enumerated producer fee for doing so; (ii) the right of first refusal to provide production
services for future episodes, sequels or spinoffs; and (iii) the right to receive a substantial
royalty each time any episode of the Program (including sequels or spin offs) is produced if, “for
whatever reason,” Ventana did not serve as producer for that episode.
4. Unfortunately for Kaufman and Moses, and without their knowledge, Dunlop was
intent on taking all of these compensation streams exclusively for himself. His greed seemingly
3
stirred by the success of the first season, Dunlop implemented his scheme when production on
the second season was about to begin. At that time, unbeknownst to Moses or Kaufman, in 2006
Dunlop and Bravo came to a secret agreement to abandon the 2005 agreement with Bravo and
replace it with a contract between Bravo and Dunlop alone, in which Bravo made Dunlop an
executive producer and gave him a package of compensation rights that were the same as, or in
some cases superior to, what Ventana was entitled to under the Ventana Agreement. In other
words, Dunlop, while a member of Ventana and when he was actually purporting to act on
Ventana’s behalf, secretly snatched Ventana’s valuable contract rights away from it and gave
them to himself. Bravo conspired with Dunlop in order to create the franchise that the Real
Housewives has become today without being beholden to Ventana as producer - thus
guaranteeing itself massive revenues from and control over the Series and its sequels and spin-
offs.
5. Bravo and Dunlop knew that what they were doing was wrong, as evidenced by
their repeated lies to conceal it. They told Moses and Kaufman that Ventana was being replaced
as producer by a large Los Angeles based production company for cost reasons, when, in fact,
Dunlop, rather than Ventana, would carry on with the Program. Dunlop misrepresented the facts
when he informed Moses and Kaufman that his only ongoing connection with the Program, after
Ventana’s supposed replacement, would be in the limited role of “local fixer,” for which, he said,
he would receive only a few thousand dollars. In fact, Dunlop was continuing as an executive
producer of the Program and stood to earn many millions of dollars having misappropriated
Ventana’s valuable contract rights for himself. Then, to double-down on their fraud, Bravo and
Dunlop entered into another agreement whereby Dunlop purports to release Bravo, on Ventana’s
4
behalf, all without the knowledge or consent of Moses and Kaufman – thereby trying to deprive
them of the right to remedy the wrongs already committed by Dunlop and Bravo.
6. Through these and the other acts of deception that are alleged herein, Dunlop and
Bravo succeeded in hiding their secret arrangement from Moses and Kaufman for many years.
Only recently, as a result of Moses learning from a mutual contact that Dunlop was still
receiving compensation from the Program, and documents subsequently acquired from Dunlop,
have Moses and Kaufman learned that Dunlop diverted Ventana’s contract rights to himself, and
that, all this time, he has been pocketing for himself millions of dollars in producer fees, royalties
and other compensation that should have gone to Ventana.
7. Plaintiffs commence this action in order to address the unlawful misconduct that
their business partner, Dunlop, in tandem with Bravo, committed against them. Dunlop’s
diversion of Ventana’s contract rights to himself is classic self-dealing and a clear cut violation
of his fiduciary duties, one that is all the more egregious because it was carried out and
concealed in a fundamentally fraudulent manner, in which Dunlop made affirmative
misrepresentations to his business partners and concealed a critical fact – the existence of his
secret contract with Bravo – that he was duty-bound to disclose. Of course, he could not have
perpetrated his scheme without the active assistance of Bravo, which itself committed fraud
against the Plaintiffs and, separate from that, breached its own implicit and explicit contractual
duties to Ventana by performing the 2006 contact with Dunlop instead of the 2005 contract with
Ventana.
8. Dunlop and Bravo should be held jointly and severally liable for all of the
damages that their collusive scheme caused Ventana to suffer. Furthermore, because he was so
egregiously disloyal to Ventana and his business partners, Dunlop should be required to forfeit
5
the one third share of Ventana’s recovery that he would have been entitled to had he not schemed
to steal Ventana’s most valuable asset – its contract with Bravo – for himself.
Parties
9. Plaintiff Kevin Kaufman is an individual residing in New York County, New
York.
10. Plaintiff Patrick Moses is an individual residing in Nassau County, New York.
11. Plaintiff Ventana is a limited liability company formed under the laws of the State
of Nevada.
12. Defendant Scott Dunlop is an individual residing, on information and belief, in
Orange County, California.
13. Defendant Dunlop Group is an unincorporated company having a principal place
of business, on information and belief, in Orange County, California.
14. Defendant Ventana, Inc. is a corporation formed under the laws of the State of
California.
15. Defendant Bravo Media LLC is a limited liability company formed under the laws
of the State of Delaware. It is either formerly known as or a successor in interest to Bravo
Company.
16. Defendant Realand Productions LLC is a limited liability company formed under
the laws of the State of Delaware. It also purports in relevant contracts to be the successor in
interest to Bravo Company.
Jurisdiction and Venue
17. This Court has jurisdiction pursuant to CPLR 301 because the parties negotiated
the Ventana Agreement in New York, and consented in it to a New York forum, and for New
6
York law to govern this dispute. Additionally, Bravo is located in New York, and the Dunlop
Defendants regularly do business in New York. Lastly, this Court has jurisdiction pursuant to
CPLR 302 because the Dunlop Defendants committed a tort causing injury to plaintiffs in New
York.
18. Venue is proper because at least one of the plaintiffs and defendants is situated in
New York County and a substantial part of the occurrences at issue took place in New York
County. Additionally, Moses, Kaufman, Dunlop, and Bravo agreed that disputes would be
adjudicated in this venue in multiple agreements.
Background
19. The concept for the Real Housewives dates back to the early 2000’s, when
Kaufman visited Dunlop, his friend of many years, in his residential neighborhood of Coto de
Caza, California, an affluent gated community in Orange County with a unique buzz and
character. Dunlop believed that the neighborhood could offer an entertainment opportunity, but
he had not yet figured out how to make entertainment out of the neighborhood. At the time,
Dunlop was exploring staging a satirical community-theatre type program in Coto de Caza.
Kaufman, on the other hand, an experienced producer of television programs at the time,
including for Bravo network, quickly saw that the neighborhood might be of interest as the
subject of a reality program. The reality genre’s popularity was beginning to soar. Dunlop was
enthusiastic about the idea and not long after that first discussion they decided, along with
Moses, a television producer who was at the time working with Kaufman at Kaufman Films, to
join forces to try and develop a reality television show based on the Coto de Caza neighborhood.
20. As time went on, a more concrete idea for the show emerged. Namely, they
decided that the show – originally titled “Behind the Gates” but which ultimately aired in 2006
7
under the title The Real Housewives of Orange County – would document a group of real women
who live in Coto de Caza as they went about their daily lives. The show would offer viewers a
taste of both the familiar and the not-so-familiar: while the show would be focused on the
everyday lives of non-celebrity, suburban women, it would also permit viewers a rare peek into a
glamorous, exclusive community.
21. This was a novel approach to reality television at the time in at least two
important respects. First, most reality shows prior to 2005 followed one of two predominant
formats: either cast members would be placed together on a single set and engage in activities to
drive the narrative (as in MTV’s popular Real World series), or the show would focus on a single
celebrity headliner and develop storylines relating only to that person (as in Bravo’s Being Bobby
Brown). Both of these formulas, however, limited the complexity of a show by centering the
action around a single location or limited characters. By contrast, the show that Moses, Kaufman
and Dunlop were envisioning would follow several cast members at once, into their own separate
homes and lives, creating a narrative complexity uncommon among its peers.
22. It would also stand apart from its peers by focusing on a group of affluent, non-
celebrity adults and the challenges, personal conflicts, and remarkable privileges they faced in
their normal, everyday lives. This latter aspect of the show turned out to be enormously
popular, making the Program an early pioneer of what has since become widely known, among
both fans and industry professionals, as the “docu-soap.”
The Co-Production Agreement
23. Having jointly conceived of this compelling and unique idea, Moses, Kaufman
and Dunlop wanted to ensure that they would each share equally in all of the revenue that their
idea generated. To this end, they agreed that they would share equally in all of the proceeds of
8
the Program, including any sequels or spin-offs, or any other rights from the Program such as
merchandise sales. The three of them executed a Co-Production Agreement, dated January 23,
2005 (“CPA”), which envisioned that Moses, Kaufman and Dunlop would pitch the Program to
networks and produce it for television, and that they would split “all fees, profits and revenues
equally among the party’s [sic] . . . on a 1/3 basis.” In addition, it stated that they would “split
[Executive Producer], Producer and any and all other fees equally on a 33 1/3% among
themselves after any agency fees are deducted,” and that they would “each receive 33 1/3% of
retail merchandising and any other revenues not listed here after agency fees are paid.” In the
CPA, Dunlop, Kaufman, and Moses would be “locked to the life of the series, sequel or spin-
off.” They understood this language, common in the television industry, to mean that they would
either (i) actively serve as executive producers throughout the life of the Program and its sequels
or spinoffs, or (ii) receive payment, under any network contract that they may obtain, even if
they did not actively produce the Program or its sequels or spin-offs.
Moses, Kaufman and Dunlop Successfully Pitch the Program to Bravo
24. By the early spring of 2005, Dunlop, Moses, and Kaufman had put together a
pitch for the Program that they felt sure would attract network attention, and it did. One of the
first networks they approached was Bravo. Dunlop did not have a pre-existing relationship with
Bravo, but Kaufman and Moses both did, as each had produced well received shows for Bravo
before.1
25. Bravo’s representatives—including its now-President Frances Berwick —were
impressed with the pitch and eager to move forward. They asked Moses, Kaufman and Dunlop
1 Including “The Palladium: Where Mambo Was King,” which traced the history of Latin Jazz and won the 2003 Imagen Award for Best Television Documentary, and “The 100 Scariest Movie Moments,” which became Bravo’s highest rated mini-series for 2004.
9
to further develop their plans for the potential Program at Bravo’s expense by, for example,
fleshing out storylines, recruiting cast members, shooting an additional sample video called a
“sizzle reel,” and preparing budgets, among other things. Moses and Kaufman (but not Dunlop,
who had no television production experience) devoted substantial time to the sizzle reel and
these other tasks, spending an extended period away from their homes in New York in order to
cast, write, direct, film, edit and narrate the new materials. Dunlop’s role, by contrast, was of a
local nature and was based on his knowledge of the Cota de Caza neighborhood; primarily, he
also recruited cast members and acted as a liaison between the filmmakers and the residents of
the neighborhood.
26. After seeing the new materials that were assembled during this period, Bravo
expressed its desire to purchase the exclusive rights to the Program.
27. Excited by Bravo’s interest, Moses, Kaufman and Dunlop formed Ventana in the
spring of 2005 as the production entity that would sign a contract with Bravo. Consistent with
their agreement in the CPA, each of them received an equal 1/3 ownership interest in Ventana.
The Ventana Agreement
28. Bravo and Ventana entered into a certain “Behind the Gates” – Production
Services Agreement dated as of March 1, 2005 (the “Ventana Agreement”). In the Ventana
Agreement, Bravo agreed that Ventana would act as producer for the first season of the Program,
and that Ventana would have a right of first refusal to serve as Producer on any sequels, future
seasons, or spin offs of the Program, with Bravo being required to negotiate with Ventana in
good faith to come to an agreement as to specific terms. It futher provided that if Ventana, “for
whatever reason,” did not serve as Producer on any sequel or spinoff, it would nonetheless
receive a royalty per produced episode of each sequel, series, or spin-off. The Ventana
10
Agreement also gave Ventana certain rights to additional compensation if the Program was
broadcast in syndication and for the airing of certain episodes of the first season of the Program,
and it provided that Ventana would receive, in addition to all of the above, a percentage of
certain related income, called “Modified Adjusted Gross Receipts” or simply “MAGR,”
ultimately generated by the Program. Taken together, all of these rights to compensation are
referred to herein as the “Ventana Compensation.”
29. All three of Ventana’s members negotiated the Ventana Agreement with Bravo,
and all three of them signed it on Ventana’s behalf. Bravo specifically agreed that each of the
three members of Ventana, personally, were “of the essence of the Agreement,” and stated that
each of the three members of Ventana was personally approved to serve in Ventana’s role as an
Executive Producer of the Program.
Bravo Debuts The Real Housewives
30. With the Ventana Agreement in place, the members of Ventana went about
shooting and producing the Program’s first season (“Season One”). Given the nature of the
Program – following several characters simultaneously away from a single, centralized set – the
logistics of shooting and editing the necessary footage were complex. Moses and Kaufman
focused on the shooting and editing of the Program as well as coordinating the efforts of the
production team. Dunlop’s primary responsibility continued to be as a liaison between Ventana
and the cast, and more generally between Bravo and the community of Coto de Caza, in a role
often referred to in the industry as a “local fixer.”
31. Season One aired on the Bravo network between March and May 2006 under the
name The Real Housewives of Orange County, to astounding success. Press articles credited it
11
with helping to “make 2006 into Bravo’s best ratings year ever,” and the show’s fan base grew
dramatically as Season One unfolded.
Bravo Secretly Agrees to Transfer Ventana’s rights under the Ventana Agreement to Dunlop and Dunlop Implements His Scheme to Cut Kaufman and Moses Out
32. In the Spring of 2006, Dunlop announced to Moses and Kaufman that Bravo had
asked for a meeting with him alone. Given that Dunlop did not have any relationship with Bravo
other than through Ventana, it struck Moses and Kaufman as odd that Bravo would want to meet
with just Dunlop, rather than the three of them together. They questioned Dunlop about this, but
he persuaded them that Ventana should conduct the meeting as Bravo had requested, and assured
them that he would look out for their collective self-interest. Kaufman and Dunlop had been
friends for many years, and therefore Kaufman was confident that Dunlop would represent
Ventana’s interest at the meeting. Accordingly, Kaufman and Moses appointed Dunlop as their
representative for Ventana in the meeting.
33. Despite having a fiduciary obligation to his business partners and his principal,
Ventana, it was during this meeting that Dunlop and Bravo hatched their scheme to dissociate the
Series from Ventana, which would benefit Bravo greatly over time (both by freeing it to hire
other, less expensive producers to work on the program and by giving it more control over the
franchise with Ventana out of the picture). In consideration for assisting it with these goals,
Bravo agreed to pay Dunlop handsomely for his modest role as local fixer.
34. Shortly after the meeting, Dunlop went to the offices of Kaufman Films,
Kaufman’s company, where Dunlop told Moses and Kaufman that he had bad news for them.
He told them that Ventana was out as producer of the Real Housewives project – that Bravo’s
representatives had told him that Bravo would not be using Ventana as a producer anymore and
12
that, for cost reasons, Bravo was replacing Ventana with a large, Los-Angeles based production
company.
35. As for himself, Dunlop claimed that Bravo wanted to hire him in his personal
capacity, but only in the limited capacity of a “local fixer”, for which, Dunlop told them, he
would receive a few thousand dollars at the most. Dunlop claimed to be highly dejected by the
results of the meeting, claimed to share the very genuine disappointment and anger that Kaufman
and Moses felt upon hearing that Ventana was losing the lucrative producer fees that it expected
Ventana would receive for as long as Bravo continued to make Real Housewives shows.
36. Kaufman and Moses were shocked by Dunlop’s report, and Moses asked Bravo
for a meeting to discuss it. Moses contacted Bravo for confirmation of Dunlop’s report, and in a
telephone conference shortly thereafter, two of Bravo’s senior production and business affairs
executives, Shari Levine and David O’Connell, advised Moses that Bravo had in fact decided not
to move forward with Ventana as Producer. When Moses asked them why, Levine and
O’Connell explained that Bravo could produce the Program less expensively using a large, Los
Angeles-based production company in Ventana’s place. Like Dunlop, Ms. Levine and Mr.
O’Connell made no mention of any other discussions during its meeting with Dunlop.
37. Moses and Kaufman were distraught at having been involuntarily dissociated
from the Series, as they believed Ventana was still entitled to compensation and rights under the
terms of the 2005 Agreement., Nonetheless, being told that Ventana (including Dunlop) had no
major role to play in the production of the series going forward, and uncertain as to what the
future of the series would now be, , they expressed their disappointment to Bravo and began
focusing on other projects.
13
38. Based on documents that it recently acquired, however, it is now clear that Bravo
and Dunlop were lying to them in order to conceal the fact that it was none other than Dunlop
himself who was replacing Ventana as producer. Bravo and Dunlop entered into a secret
contract in August 2006 (the “Dunlop Agreement”), shortly after Dunlop’s meeting with Bravo,
in which Bravo gave to Dunlop Ventana’s right to serve as producer, as well as the other bundle
of lucrative compensation rights that Ventana was entitled to under the Ventana Agreement. In
other words, Dunlop, with Bravo’s assistance, snatched the benefits of the Ventana Agreement
away from Ventana and gave them to himself.
39. Dunlop was lying when he said that his ongoing role would be limited to that of a
local fixer who would earn just a few thousand dollars. In fact, he stepped into Ventana’s shoes
as regards the Program, taking for himself the millions of dollars in producer fees and other
compensation that Ventana enjoyed under the Ventana Agreement. As for Bravo, it gained the
right to mete out the right to produce various sequels and spin-offs of the Series to inexpensive
production companies in each city in which the franchise was replicated, each of which
companies was beholden to Bravo and none of which was tied to the Series as a whole, as
Ventana was to be. Bravo therefore became the overall architect of the franchising of the Series
– something that otherwise would have been vested in Ventana.
40. In addition to making affirmative misrepresentations, Bravo and Dunlop also
fraudulently concealed material facts in their discussions with Kaufman and Moses. Dunlop
owed fiduciary duties to the Plaintiffs, both as a member of Ventana and also as their agent in
dealings with Bravo, that required him to disclose material facts. Once Dunlop and Bravo
addressed the topic of why Ventana was being removed, they became duty bound to
communicate about that issue in a non-misleading way and to disclose facts that were obviously
14
material to the topic. Fraudulently, Bravo and Dunlop both failed to disclose the critical fact that
Bravo and Dunlop had secretly arranged for Dunlop to replace his business partners as producer
and take for himself the revenue that they had agreed to share equally. Bravo and Dunlop
obviously failed to mention this fact not because they thought it unimportant, but because they
knew that what they had done was unlawful, and they thus wanted to conceal it. In fact, the
same business person from Bravo who signed the Ventana Agreement, Julie Nguyen – who was
plainly aware from signing the Ventana Agreement only a year prior that there were three
essential members of Ventana who were entitled to the very compensation now being granted to
Dunlop - also signed the Dunlop Agreement.
41. Thus, starting in the Summer of 2006 and continuing through the present, as the
Plaintiffs have just recently discovered, Bravo, while abandoning the Ventana Agreement
entirely, was performing the Dunlop Agreement instead. Though it paid Dunlop many millions
of dollars in this period, it did not pay Ventana anything, not even the compensation that Ventana
was entitled to if, “for whatever reason,” it did not act as producer. Each time Bravo has failed
to make a payment due under the Ventana Agreement, Bravo has breached the Ventana
Agreement.
Having Defrauded Ventana of its Valuable Contract Rights, Bravo and Dunlop fraudulently Try to Cover Their Tracks
42. This is not a case about defendants who simply did not understand that what they
were doing was wrong. Rather, Bravo and Dunlop were fully aware that what they were doing
was wrongful – that is why they lied to conceal it when Ventana was removed and, on two
occasions after that, they again resorted to lies and deception to try to conceal what they had
done and avoid the consequences of it.
15
43. First, in 2007, Dunlop fraudulently tried to convince Moses and Kaufman to
relinquish their interests in Ventana and to release all legal claims against him. He tailored his
approach for each of Moses and Kaufman.
44. To Moses, he said that Bravo had recently contacted him to suggest that Bravo
buy Ventana out of the Ventana Agreement for a nominal sum. Dunlop said that Bravo had told
him that it was never going to use Ventana as producer but that, in order to tie up loose ends, it
wanted to formally buy Ventana out and obtain releases in exchange for $25,000. Dunlop
encouraged Moses to accept the proposal that he said Bravo had made, emphasizing that there
was no money in the project anyway so they might as well accept the pittance he said Bravo was
offering.
45. To Kaufman, Dunlop likewise represented that there was “no money” left in the
project as far as Bravo was concerned. And, aware that Kaufman was experiencing personal
financial hardship at the time, however, Dunlop advised him to relinquish his ownership interest
in Ventana in order to avoid incurring personal tax obligations that supposedly would arise if he
continued to own a third of the company. Dunlop claimed that Kaufman’s share of Ventana’s
cash reserves at the time amounted to $8,500, and that Kaufman should simply accept that
amount from Ventana, in exchange for giving up his membership interest in the company, so that
he could avoid paying taxes on an asset that, according to Dunlop, was unlikely to actually yield
any future compensation from Bravo anyway. Moreover, Dunlop’s assurances to Kaufman
were even more duplicitous given their years-long friendship, culminating in the invention of the
Series when Kaufman was visiting Dunlop in Coto de Caza.
46. Though he addressed the topics of the Ventana Agreement, Bravo’s non-
performance thereof, and Ventana’s removal as producer, Dunlop again failed to disclose – to
16
either Kaufman or Moses – the critical fact that, at the same time he was telling his business
partners that there was no money in the project, he was raking in the millions of dollars from the
project that Ventana was entitled to under the Ventana Agreement.
47. Based on those representations and deceitful omissions, Dunlop sent each of
Moses and Kaufman a document entitled “Settlement and Release Agreement,” dated January
27, 2007. The proposed Settlement Agreements were not with Bravo, but were instead drawn as
agreements between Moses and Kaufman, on the one hand, and Ventana Inc. (that is, not
Ventana, but the California corporation that was later organized during production of the
Program) on the other. And they contained not only a clause wherein Moses and Kaufman would
each sell his interest in Ventana Inc. for $8,5000, it also contained a formal release of any claims
they might have against Dunlop, a matter that Dunlop had never discussed with them.
48. Dunlop told Moses that the Bravo-proposed “Settlement Agreement” was
intended to facilitate Bravo’s supposed buy-out of Ventana, but it is now clear he was lying
about that too.
49. Moses declined to sign the agreement Dunlop circulated, but Kaufman did sign,
based on Dunlop’s affirmative misrepresentation that there was “no money” in the project and
his fraudulent concealment of the fact that he had replaced Ventana and was earning millions of
dollars from the project as a result. The release that Dunlop fraudulently obtained from Kaufman
is unenforceable and is evidence only of additional fraud by Dunlop.
Bravo and Dunlop Execute a Second Fraudulent Contract
50. Having successfully duped Moses and Kaufman and defrauded them out of
Ventana’s valuable contract rights in 2006, Dunlop and Bravo then engaged in a second, equally
17
brazen act of fraud in 2009 – this time in an effort to shield themselves from liability for their
misconduct toward Ventana.
51. In an outrageous effort to bury the truth, on or about June 23, 2009—
approximately three years after they had first defrauded Moses and Kaufman, and shortly after
Bravo began airing the first sequels to the Real Housewives (a move which started to indicate for
the first time the enormous earning potential that Bravo had planned for the series), Dunlop and
Bravo entered into a new contract (the “Termination Agreement”). The recitals of this this
new agreement stated that it was being executed in order to resolve “differences” between Bravo
and Dunlop regarding the Dunlop Agreement, but its real purpose was to limit Bravo’s exposure
to litigation claims stemming from its flagrant and ongoing breach of duties to Ventana – to
“button up” the fraud in which Bravo and Dunlop had jointly engaged, and to require that
Dunlop take on the burden of defending and indemnifying Bravo if Moses and Kaufman come to
learn of the deceitful series of events that led to Dunlop stealing the Ventana Compensation for
himself.
52. For example, one major feature of the Termination Agreement was that Bravo and
Dunlop, for the first time, purported to formally terminate the original Ventana Agreement, and
Dunlop purported to release Bravo from any potential claims by Ventana relating to the Series or
the Ventana Agreement. Dunlop, to be clear, did not sign the Termination Agreement on
Ventana’s behalf;; although he signed that Agreement in his personal capacity, he nonetheless
purported to release claims that Ventana may have had against Bravo.
53. Bravo was aware that a release from Dunlop alone, in his personal capacity, could
not protect it from claims brought by Ventana (given that Dunlop was not the sole member of
Ventana) or by Ventana’s other members. To deal with this problem, Bravo required Dunlop to
18
make a contractual representation in the Termination Agreement that was wholly and utterly
untrue: Dunlop represented that Ventana had assigned the Ventana Agreement to another entity,
Ventana, Inc., which Dunlop claimed to solely own and control.2 No such assignment had taken
place, nor could it have without the approval of Ventana’s other members—especially that of
Moses, who had never executed the purported Settlement and Release Agreement and therefore
was plainly still a member.
54. Knowing that Dunlop did not really own all of Ventana’s contract rights in the
Real Housewives, and that he did not really have authority to terminate the Ventana Agreement
or to release Ventana’s claims, Bravo took additional steps to avoid liability for its misconduct
toward Moses and Kaufman by having Dunlop expressly represent in the Termination
Agreement that:
. . [T]he other individuals identified as Directors of [Ventana] who executed the Ventana Agreement have no rights of any kind or nature in and to the rights and assets of [Ventana] or Ventana Inc., including without limitation any rights under the [Ventana Agreement] and/or any rights in the [Program].
55. Dunlop was well aware that this representation was a blatant lie, as Moses was
still a member of Ventana and Kaufman had only relinquished his interest by virtue of the
Defendants’ 2006 fraud. Tellingly, Bravo—which had actively helped Dunlop deceive Moses
and Kaufman in 2006 and thus had reason to suspect that they never found out about Dunlop’s
misappropriation of Ventana’s contract for himself—obtained Dunlop’s express agreement to
indemnify it in the event that this representation was false, or in the event that Moses and
Kaufman ever sued Bravo for giving Dunlop Ventana’s valuable contract rights.
2 Dunlop did not solely own and control Ventana, Inc. That company, rather, was incorporated in California in 2005, during the production of the original run of the Program, as a means of handling payroll issue for Ventana using a California company. Ventana, Inc. belonged equally to Ventana’s three members.
19
56. Bravo certainly had ample reason to know that it was false. After all, Bravo knew
that Moses and Kaufman were members of Ventana when Bravo executed the Ventana
Agreement, knew they had insisted on negotiating that agreement together (rather than allowing
Dunlop to negotiate or sign for them), knew they had each executed the Ventana Agreement on
Ventana’s behalf in 2005, knew they had bargained to have the Ventana Agreement state
specifically that they were each personally “of the essence” of that agreement, knew that it had
replaced its agreement with Ventana with a separate agreement with Dunlop in 2006, and, having
been part of the effort to deceive Moses and Kaufman, knew that Moses and Kaufman were
operating under a massive misunderstanding with regard to the reasons Bravo had fired Ventana
as an executive producer of the Series.
57. Moreover, the very nature of the Termination Agreement—i.e., the fact that it
purported to relinquish Ventana’s interest in the Series and claims against Bravo relating to the
Series, and then to bestow nearly the same bundle of rights that Ventana had once held on an
entity that Dunlop now purported to own by himself–perhaps above all else would have caused
any reasonable business organization acting in good faith to contact Kaufman and Moses to
confirm that they understood what Dunlop was doing and representing with Ventana’s rights and
had consented to it. But Bravo never contacted either of them, not doing so precisely because it
knew they did not know about the contract and it did not want them to know about it.
58. Neither Bravo nor Dunlop told Kaufman or Moses about this second secret
contract with Bravo. By failing to disclose this second agreement—which purported to dispose
of Ventana’s valuable rights—and by executing it in secret without their consent, Dunlop
engaged in yet another egregious breach of his fiduciary duties to them – as well as a massive
20
betrayal of his friendship with Kaufman and his working relationship with Kaufman and Moses,
all of whom invented the Series together
59. Likewise, by deliberately assisting Dunlop in the fraudulent transfer of rights
away from Ventana and to himself, and by deliberately executing a contract it had reason to
believe was fraudulent, Bravo aided and abetted Dunlop’s blatant breach of his fiduciary duties
to plaintiffs.
60. Taken as a whole, the Termination Agreement is an additional breach of Dunlop’s
fiduciary duties, and provides compelling proof of Dunlop and Bravo’s collusive effort to strip
Ventana of its contract rights through fraud and deception.
Dunlop Has Received Millions of Dollars Pursuant to the Fraudulent Agreements That Should Have Gone to Ventana
61. Since executing the fraudulent Dunlop Agreement and 2009 Termination
Agreement, Bravo has paid Dunlop millions of dollars in executive producer fees, royalties, and
MAGR that should have been shared with plaintiffs. In the United States alone, Bravo has
produced and aired spinoffs of the original Real Housewives series in New York, Atlanta, New
Jersey, D.C., Beverly Hills and Miami, all of which have run for several seasons, as well as at
least seven other spinoffs featuring cast members from the Real Housewives, resulting in a
combined total of over 715 episodes produced to date. Internationally, the Program has spawned
spinoffs in countries such as Canada, Brazil, France, Australia and Greece, and syndicated
versions of the U.S.-based series have aired throughout the world.
62. On information and belief, Bravo has paid Dunlop as an executive producer for
each episode produced of the Miami, New York City, New Jersey, Orange County, Atlanta, and
D.C. versions of the Real Housewives series. It has also paid him a substantial royalty for each
episode of the series’ many spin-offs (including Date My Ex, Tamara’s OC Wedding, Betheny’s
21
Getting Married, Vanderpump Rules, Don’t be Tardy, The Khandi Factory, and I Dream of
NeNe: The Wedding), as well as a percentage of the MAGR on the franchise as a whole. While
plaintiffs do not yet have the means to calculate the MAGR or the fees and royalties that Dunlop
has received--a figure which includes a cut of Bravo’s substantial earnings from selling the
Program into syndication--it is undoubtedly significant, given the extensive number of episodes
at issue, and the enormous popularity of the franchise worldwide.
63. All of the income that Dunlop has collected from Bravo regarding the Program
should have gone to Ventana rather than Dunlop pursuant to the Ventana Agreement. While
discovery is needed to determine the precise amount of damages that plaintiffs have suffered as a
result of Dunlop’s fraudulent self-dealing, plaintiffs’ estimate is that the damages currently total
at least $5 million, and that they are still growing, as Dunlop continues to receive fees and
royalties under his illicit agreements with Bravo.
Demand on Dunlop to Sue Defendants on Ventana’s Behalf Would Be Futile
64. Moses and Kaufman, each of whom owns a 1/3 interest in Ventana, have the right
to authorize Ventana to pursue its claims in this proceeding, and/or to pursue those claims
personally as members of a closely held company. Even if they did not, however, they would
easily be entitled to bring the claims derivatively on Ventana’s behalf.
65. Moses has at all relevant times been, and still is today, a member of Ventana, so
as to have standing to bring derivative claims on Ventana’s behalf.
66. Kaufman has at all relevant times been, and still is today, a member of Ventana as
well. Although Kaufman executed a “Settlement Agreement” in 2007 purporting to relinquish
his 1/3 ownership interest in Ventana, that agreement is void on the grounds that, as set forth in
detail above, Dunlop fraudulently induced Kaufman to sign it.
22
67. The only other member of Ventana is defendant Dunlop, who holds only a 1/3
ownership interest in Ventana. Therefore Moses and Kaufman have the right to cause Ventana to
bring this action.
68. Even if Moses and Kaufman did not have such a right, demand on Dunlop to
pursue Ventana’s claims in this proceeding would be futile because Dunlop is not disinterested
or independent with respect to those claims. As set forth in detail above, Dunlop deliberately
induced Bravo not to perform under the Ventana Agreement so that it would execute and
perform instead a separate agreement that benefitted him alone. By engaging in self-dealing
with regard to the Ventana Agreement, and by deliberately diverting the funds at issue in this
lawsuit to himself, Dunlop lost his independence and disinterestedness with respect Ventana’s
contract and tort claims asserted in this action.
First Cause of Action (Breach of Fiduciary Duty against Dunlop by all Plaintiffs)
69. Plaintiffs incorporate by reference the foregoing paragraphs as if set forth herein.
70. As a member of Ventana, Dunlop owed fiduciary duties to Ventana, Kaufman and
Moses, including a duty of loyalty. Separately, Dunlop took on fiduciary duties to Ventana,
Moses and Kaufman whenever he purported to act on Ventana’s behalf such as when he attended
the meeting with Bravo, when he related the supposed results of that meeting to Moses and
Kaufman, and when he purported to bind Ventana to an agreement (i.e, the Termination
Agreement) in which Ventana would release the valuable claims that it had against Bravo and
him.
71. Dunlop breached his duty of loyalty by elevating his own interests above
Ventana’s interests, including by taking for himself Ventana’s most valuable asset, i.e., its
contract and compensation rights under the Ventana Agreement.
23
72. Specifically, Dunlop induced Bravo to abandon its agreement with Ventana and to
execute a separate contract that would bestow on Dunlop nearly the same bundle of rights that
Ventana was entitled to receive under the Ventana Agreement, including (i) a right to serve as an
executive producer on the Program, its sequels and spinoffs, and (ii) a right to fees, royalties, and
a percentage of the MAGR generated by the Program and its sequels and spinoffs.
73. But for Dunlop’s disloyal conduct, Bravo would have continued to perform under
the Ventana Agreement, including by (i) paying Ventana royalties on all episodes of sequels and
spinoffs on which it did not act as executive producer, (ii) paying Ventana MAGR pursuant to
the 2005 Bravo Agreement, (iii) employing and paying Ventana (rather than Dunlop alone) as
producer on the numerous episodes of the Program and its sequels and spinoffs on which Dunlop
ultimately received credit as executive producer, and (iv) granting Moses and Kaufman the
valuable executive producer credit for the Program and its sequels and spin-offs as well.
74. Plaintiffs have been harmed as a direct result of Dunlop’s disloyal conduct in an
amount to be determined at trial, but in no event less than $5 million.
75. In addition, because Dunlop was a fiduciary who breached the duty of loyalty,
plaintiffs are entitled to full disgorgement of all profits that Dunlop earned through his disloyal
conduct to the extent that they do not duplicate plaintiffs’ other damages.
Second Cause of Action (Fraud against Dunlop by all Plaintiffs)
76. Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth
herein.
77. As a member of Ventana, Dunlop owed fiduciary duties to Ventana, Kaufman and
Moses, including a duty of loyalty. Separately, Dunlop took on fiduciary duties to Ventana,
Moses and Kaufman whenever he purported to act on Ventana’s behalf such as when he attended
24
the meeting with Bravo, when he related the supposed results of that meeting to Dunlop and
Kaufman, and when he purported to bind Ventana to an agreement (i.e, the Termination
Agreement) in which Ventana would release the valuable claims that it had against Bravo and
him.
78. This fiduciary duty required Dunlop to disclose to his business partners facts that
were material to their shared business. Yet, Dunlop failed to disclose to Moses and Kaufman his
execution of the Dunlop Agreement and the Termination Agreement, and he failed to disclose
that he had induced Bravo to perform under those agreements rather than under the Ventana
Agreement.
79. Dunlop failed to disclose these facts deliberately, with the intent of preventing
plaintiffs from discovering his improper transfer to himself of contractual rights that the three of
them owned jointly.
80. Plaintiffs had no reason to believe that Dunlop had transferred to himself contract
rights belonging to them jointly until October 30, 2013, when a mutual acquaintance informed
Moses that Dunlop was being paid a substantial royalty on all episodes of The Real Housewives
series, sequels and spinoffs.
81. Because Dunlop’s omissions were material to plaintiffs’ ability to enforce their
rights against Dunlop, Dunlop had a duty to disclose them, which he breached when he failed to
do so.
82. Dunlop also made affirmative misrepresentations to plaintiffs concerning Bravo’s
abandonment of the Ventana Agreement.
83. Specifically, Dunlop told Moses and Kaufman in the summer of 2006 that Bravo
had decided not to use Ventana as an executive producer because it wanted to replace Ventana
25
with a larger, Hollywood-based company for “cost” reasons. He also told Moses and Kaufman,
in a meeting in New York around the same time, that he would personally continue working on
the Program in a limited role as “local fixer,” but that the role would yield him at most “only a
few thousand dollars.”
84. These statements were materially misleading because Bravo did not terminate
Ventana’s position as producer for “cost” reasons, nor did it do so because it wanted to replace
Ventana with a larger production company. Rather, Bravo terminated Ventana as a producer
because it had secretly agreed with Dunlop to give Ventana’s executive producer position, along
with the remainder of its contract rights in the Program, to Dunlop alone.
85. Dunlop knew his statements were false because he had already agreed with
Bravo, at the time he made the statements, to accept a position as executive producer on the
Program in Ventana’s place, and to conceal that fact from the other members of Ventana.
86. Dunlop deliberately misled plaintiffs as set forth above for the purpose of (i)
making them believe that, through no fault of his own, Bravo had simply refused to continue
performing its contract with Ventana, (ii) making them believe that he was similarly situated to
them with regard to Bravo’s decision not to honor its contractual obligations to Ventana, and (ii)
discourage them from seeking to enforce Ventana’s rights against Bravo so that he could secretly
enjoy the benefit of those rights alone.
87. Plaintiffs relied on Dunlop’s misrepresentations and omissions by failing to object
to the fraudulent transfer of Ventana’s rights to Dunlop, thereby unknowingly allowing Dunlop
to take all of Ventana’s rights and compensation under the Ventana Agreement for himself. Had
plaintiffs known the truth—i.e., that Bravo was not refusing to perform the obligations it had
agreed to perform under the Ventana Agreement, but that it had simply transferred those rights to
26
Dunlop at Dunlop’s improper request—they would have objected to the arrangement and insisted
that Dunlop share all compensation as provided for under the Ventana Agreement and under
Nevada limited liability company law.
88. Plaintiffs have been injured as a result in an amount to be determined at trial, but
in no event less than $5 million.
Third Cause of Action (Fraud in the Inducement against Dunlop by Kaufman)
89. Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth
herein.
90. During a conversation in January 2007, Dunlop represented to Kaufman that
because of Ventana’s dismissal and Bravo’s absence of concrete plans for the Program, there
was little likelihood of any future compensation from the Ventana Agreement. As a result, he
claimed, Kaufman should relinquish his ownership interest in Ventana because if he did not do
so, he would incur substantial tax liabilities in connection with that ownership interest without
receiving any significant income from Bravo to offset the tax liability.
91. In making these representations, Dunlop did not disclose the existence of the
Dunlop Agreement.
92. Dunlop’s representations and omissions were materially misleading. By claiming
that Bravo did not intend to perform under the Ventana Agreement, without disclosing the
existence of the Dunlop Agreement (which contained many substantially similar rights but
bestowed them on Dunlop rather than Ventana), Dunlop misleadingly implied that Ventana’s
rights and obligations in the Program were worth very little and were likely to cost Ventana’s
members money rather than to generate income for them. This was misleading because, but for
Dunlop’s misappropriation of those contract rights for himself by executing the Dunlop
27
Agreement, Bravo would not have abandoned its contract with Ventana, and thus the Ventana
Agreement would have produced substantial income for Ventana that would not have been
outweighed by any supposed tax burden.
93. Dunlop knew his representations and omissions were materially misleading
because he knew about the Dunlop Agreement, he knew that Bravo intended to retain Dunlop in
Ventana’s place as an executive producer on the Program going forward, and he knew that Bravo
intended to continue with sequels and/or spinoffs of the Program.
94. Dunlop deliberately made these material misrepresentations and omissions with
the intent that Kaufman rely on them by executing a “Settlement and Release Agreement”
relinquishing his rights in Ventana and in the Program. Indeed, Dunlop emphasized that
Kaufman would incur tax liability on his interest in Ventana precisely because he knew that
Kaufman was having financial troubles at the time and would not be able to afford substantial tax
liability on his interest in Ventana.
95. Kaufman reasonably relied on Dunlop’s representations by executing the
Settlement Agreement in or around January 2007, purporting to relinquish his one-third
ownership interest in Ventana.
96. Kaufman has been injured in an amount to be determined at trial, but in no event
less than $5 million.
Fourth Cause of Action (Civil Conspiracy to Defraud all Plaintiffs)
97. Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth
herein.
98. Beginning with a meeting in 2006 at Bravo’s offices in New York, Bravo and
Dunlop agreed to a scheme to defraud Moses and Kaufman out of their interest in the Ventana
28
Agreement, to wrest control of the Series away from Ventana, as producer, so that Bravo would
control the franchising and expansion of the Series, its sequels, and spin-offs, and Dunlop would
be compensated handsomely for aiding in this scheme and continuing to corral his neighbors in
Coto de Caza.
99. Bravo and Dunlop furthered their efforts by advising Ventana that it was being
terminated under false pretenses and failing to disclose the Dunlop Agreement and the 2009
Agreement, and by attempting to get Moses and Kaufman to release their rights in the Series.
100. Each of Bravo and Dunlop intended to participate in a scheme to defraud Moses
and Kaufman.
101. Plaintiffs have been injured as a result in an amount to be determined at trial, but
in no event less than $5 million
Fifth Cause of Action (Aiding and Abetting Breach of Fiduciary Duty against Bravo by all Plaintiffs)
102. Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth
herein.
103. The Ventana Agreement is a valid contract between Bravo and Ventana.
104. Bravo knew that Ventana’s members included Moses, Kaufman and Dunlop, and
it knew that all three members were “of the essence” of the Ventana Agreement.
105. Bravo knew that Dunlop, as a member of Ventana and having purported to act on
Ventana’s behalf in the 2006 meeting and in executing the 2009 Termination Agreement, owed a
fiduciary duty of loyalty to Ventana and to Ventana’s other members, Moses and Kaufman.
106. Dunlop breached his duty of loyalty by inducing Bravo to abandon the Ventana
Agreement, Ventana’s most valuable asset, and grant nearly all of the same rights arising under
the Ventana Agreement to himself.
29
107. Bravo participated in and aided and abetted Dunlop’s breach of fiduciary duty by
agreeing to execute and honor the Dunlop Agreement and the Termination Agreement rather
than the Ventana Agreement, by failing to ask for Ventana’s other members’ approval before
transferring Ventana’s contract rights to Dunlop, and by deliberately deceiving plaintiffs so that
they would not find out about Dunlop taking over Ventana’s rights in the project.
108. Bravo knew that it was participating in Dunlop’s breach of fiduciary duty because
Dunlop had no apparent or actual authority to act on Ventana’s behalf without plaintiffs’
knowledge. At no time prior to executing the Dunlop Agreement did Dunlop have any history of
interacting with Bravo on plaintiffs’ behalf; rather plaintiffs had executed the Ventana
Agreement along with Dunlop, rather than allowing Dunlop to execute it in their place, Bravo
had expressly agreed that plaintiffs’ participation in the Program, as well as Dunlop’s, was “of
the essence” of the Ventana Agreement, and plaintiffs expressed disappointment and confusion
to Bravo in 2006 when Bravo announced its decision not to retain Ventana as an executive
producer, which Bravo could not have reasonably expected them to do if it had genuinely
believed that they had agreed with Dunlop to transfer Ventana’s rights in the project to him.
109. Plaintiffs have been harmed as a direct result of Dunlop’s disloyal conduct.
Namely, if Dunlop had not wrongfully diverted Ventana’s contract rights to himself, Ventana
would have had the opportunity to serve as executive producer on the Program after Season One,
and it would have received from Bravo the Ventana Compensation. As a result, plaintiffs are
entitled to recover all amounts that they would have received under the Ventana Agreement but
for Dunlop’s disloyal conduct. At present, plaintiffs estimate this amount to be no less than $5
million, consisting of, at least, MAGR for the Real Housewives of Orange County and the per-
30
production fee that Ventana would have earned for each sequel, series, or spin-off of the
Program.
110. Plaintiffs have been injured by Dunlop’s breaches in an amount to be determined
at trial, but in no event less than $5 million.
Sixth Cause of Action (Fraud against Bravo by all Plaintiffs)
111. Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth
herein.
112. In a telephone conversation during the summer of 2006, Bravo told Moses that it
intended to replace Ventana as an executive producer of the Program with a large, California
based production company because the latter could supposedly produce the Program less
expensively. In a meeting in January 2006, moreover, Bravo agreed with Dunlop that Dunlop
would convey this same representation to Moses and Kaufman.
113. This representation was false because the real reason that Bravo was not retaining
Ventana as an executive producer was because it had executed the Dunlop Agreement in 2006,
which bestowed on Dunlop Ventana’s former executive producer position as well as the
compensation rights that otherwise would have gone to Ventana under the existing Ventana
Agreement.
114. Bravo’s representation was also a misleading half-truth – a material omission of
relevant information – because, even if Bravo were also planning to hire another company to
take the lead on producing the Program, it would have nonetheless retained Ventana as well as
an executive producer but for its execution of the Dunlop Agreement. This is clear in light of the
fact that Bravo did retain Dunlop as an executive producer, in addition to another producer that
Bravo also hired to take the lead on producing the Program, it paid Dunlop nearly the identical
31
compensation it had previously agreed to pay to Ventana for its role as an executive producer
under the Ventana Agreement, and it has kept Dunlop in that role to date in spite of its hiring of
other executive producers for the Program as well.
115. Because Bravo’s representations were materially misleading absent its disclosure
of the Dunlop Agreement and the Termination Agreement, Bravo had a duty to disclose those
agreements to plaintiffs. Bravo breached this duty by failing to do so.
116. Bravo deliberately misrepresented its reasons for failing to retain Ventana as an
executive producer after 2006, and deliberately declined to tell plaintiffs about executing the
Dunlop Agreement and the Termination Agreement, in order to prevent plaintiffs from
discovering that Bravo had actually transferred Ventana’s rights under the Ventana Agreement to
Dunlop without obtaining plaintiffs’ authorization. Bravo sought to hide the fact that it had
secretly transferred Ventana’s rights to Dunlop because Bravo knew that Ventana’s other
members, Moses and Kaufman, were “of the essence” of that agreement, that they had not
consented to Bravo’s abandonment of the Ventana Agreement, and that Dunlop’s
misappropriation of Ventana’s rights in the Program was a breach of Dunlop’s fiduciary duty of
loyalty.
117. Had plaintiffs known the truth, they would have objected to Bravo’s execution of
the Dunlop Agreement and the Termination Agreement and insisted that Bravo perform, instead,
the Ventana Agreement that Bravo had executed with Ventana.
118. Plaintiffs have been injured by Bravo’s fraudulent misrepresentations and
material omissions in an amount to be determined at trial, but in no event less than $5 million.
Seventh Cause of Action (Breach of Contract Against Dunlop by Moses and Kaufman)
32
119. Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth
herein.
120. The CPA is a valid and binding contract.
121. Pursuant to the terms of the CPA, Dunlop, Moses, and Kaufman agreed to “split
all fees, profits and revenues” derived from the Program “equally among the parties…on a 1/3
basis.”
122. Pursuant to the terms of the CPA, each of Dunlop, Moses, and Kaufman “will be
locked into the life of the [Program], sequel[s] or spin-off[s] as executive producers [and]
producers.”
123. Pursuant to the terms of the CPA, Dunlop, Kaufman, and Moses “will split EP,
Producer, and any and all other fees equally on a 33 1/3% [basis].”
124. Pursuant to the terms of the CPA, if the Program “yields follow on opportunities
beyond sequels and spin off for the co-production team or individual producers party to this
agreement, both KG [sic] and DG shall jointly work to bring those opportunities to fruition and
continue forward as a co-producing team.”
125. Dunlop breached the CPA by, among other things, failing split revenues he earned
from the Program with Kaufman and Moses and failing to work to bring the opportunity
presented to him in 2006, namely, the Dunlop Agreement, to fruition as a co-production team
with Kaufman and Moses.
126. Kaufman and Moses have performed all of their obligations under the CPA.
127. By reason of the foregoing, Kaufman and Moses have been damaged by an
amount to be determined at trial, but in no event less than $5 million.
33
Eighth Cause of Action (Breach of Contract against Bravo by Ventana)
128. Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth
herein.
129. The Ventana Agreement is a valid and binding contract.
130. Pursuant to the Ventana Agreement, Bravo is required to pay Ventana a
contractual royalty per episode of any “sequel or spinoff” of the Program produced, for which
Ventana does not serve as executive producer “for whatever reason.”
131. Bravo has produced, to date, at least nine seasons of the Program, amounting to a
total of 140 episodes to date. It has also produced seven other Real Housewives series – Atlanta,
Beverly Hills, Melbourne (Australia), Miami, New Jersey, New York, and Washington, DC –
amounting to a total of 456 episodes. It has also produced eight spinoffs of the Program,
amounting to a total of 185 episodes to date. In total, to date, there are over 715 episodes of the
Program, including sequels and spin-offs.
132. Bravo has not paid plaintiffs any royalty or other amounts with regard to any
episode of the Program’s sequels or spinoffs, even though such royalties have come due,
periodically, as the episodes have been produced.
133. Bravo has failed to grant Moses and Kaufman credit as executive producers of the
Program’s sequels and spin-offs.
134. The Ventana Agreement also required Bravo to give Ventana a right of first
refusal to serve as an executive producer of any sequels or spinoffs of the Program created within
seven years of the execution of the Ventana Agreement.
135. Bravo produced at least seven sequels and eight spinoffs of the Program within
the seven years following the execution of the Ventana Agreement.
34
136. Bravo did not honor Ventana’s right of first refusal to serve as executive producer
on any of these sequels or spinoffs.
137. Had Bravo honored Ventana’s first-refusal rights, Ventana would have earned
fees as producer on these sequels and spinoffs pursuant to the terms of the Ventana Agreement.
138. The Ventana Agreement further provides that Ventana would be paid certain
amounts if the Program were ever syndicated.
139. Bravo breached this obligation by failing to pay Ventana any compensation
pursuant to the Ventana Agreement once the Program was syndicated.
140. The Ventana Agreement further provided that Ventana would be paid certain
amounts for each broadcast showing of certain episodes – episode seven and beyond – of Season
One.
141. Bravo breached this obligation by failing to pay Ventana any compensation
pursuant to the Ventana Agreement for the broadcasting of any episodes of Season One.
142. The Ventana Agreement further provides that Bravo was to share a specified
percentage of the MAGR from the Real Housewives franchise with Ventana.
143. Bravo breached this obligation by failing to share any of the MAGR with
Ventana.
144. Plaintiffs have performed all of their obligations pursuant to the Ventana
Agreement.
145. Plaintiffs have been injured in an amount to be determined at trial, but in no event
less than $5 million.
35
Ninth Cause of Action (Accounting, against Dunlop, The Dunlop Group, and Ventana Inc. by all Plaintiffs)
146. Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth
herein.
147. Moses, Kaufman and Dunlop, through their joint ownership interest in Ventana,
have jointly owned all of Ventana’s right, title and interest in the Program at all relevant times.
148. As a member of Ventana, Dunlop has at all relevant times owed fiduciary duties
to plaintiffs.
149. Plaintiffs entrusted Dunlop to manage income provided by Bravo in connection
with the Program by, inter alia, routing that income through VI, a California corporation that
was organized and owned by Moses, Kaufman, and Dunlop. They entrusted Dunlop with this
task, primarily, because he claimed that it was necessary for payroll purposes, and because he
was a fiduciary to Ventana and to Moses and Kaufman personally.
150. On information and belief, Dunlop misappropriated Ventana’s rights in the
Program by inducing Bravo to abandon the Ventana Agreement and instead perform under the
Dunlop Agreement and/or the Termination Agreement.
151. On information and belief, Bravo has on many occasions paid money pursuant to
the Dunlop Agreement and/or the Termination Agreement to VI, or to the Dunlop Group, in
connection with the Program, and Dunlop has never distributed such income to Ventana or to
Ventana’s other members.
152. As a fiduciary entrusted with receiving and distributing payments from Bravo in
connection with Ventana’s rights in the Program, Dunlop is obligated to render a full accounting
of all amounts that Bravo has provided to Dunlop, to VI, or to The Dunlop Group, in connection
with the 2005 Bravo Agreement, the 2006 Dunlop Agreement or the 2009 Termination
36
Agreement. Dunlop is also required to render to plaintiffs any balance due to them in light of
such accounting.
153. No other remedy will adequately account for the full amount of income that
Dunlop has wrongfully misappropriated from plaintiffs.
WHEREFORE, Plaintiffs Patrick Moses, Kevin Kaufman, and Ventana Ventures LLC
respectfully demand judgment as follows:
(a) On their First through Eighth Causes of Action, damages in an amount to be
determined at trial, but in no event less than $5 million.
(b) On the Ninth Cause of Action, an accounting against Dunlop, The Dunlop Group,
and Ventana, Inc.;
(c) On all causes of action, prejudgment interest, post judgment interest, attorneys’
fees and such other and further relief as this Court deems just.
Dated: New York, New York JOHNSON GALLAGHER MAGLIERY LLC November 5, 2014
By____________________________________________
John M. Magliery Shannon J. Fields
99 Wall Street - 15th Floor New York, New York 10005 (212) 248-2220
Attorneys for Plaintiffs Patrick Moses, Kevin Kaufman, and Ventana Ventures LLC