versa products v. stitch industries - cfaa trade secrets
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5/25/2018 Versa Products v. Stitch Industries - CFAA Trade Secrets
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462838.1
ANDREW V. JABLON (SBN 199083)E-Mail: [email protected] N. KNOX (SBN 192966)E-Mail: [email protected] POLSTER & BERGER LLP1840 Century Park East, 17th Floor
Los Angeles, California 90067Telephone: 310-277-8300Facsimile: 310-552-3209
Attorneys for Versa Products, Inc.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
VERSA PRODUCTS, INC., aCalifornia corporation
Plaintiff,
vs.
STITCH INDUSTRIES, INC., aDelaware corporation doing business asJOYBIRD FURNITURE;CHRISTOPHER STORMER, an
individual; JOSHUA STELLIN, anindividual; ALEJANDO ANDRESDEL TORO, an individual, aka ALEXDEL TORO; ANDRESHINOSTROZA, an individual;ROBERT MCGUIRE, an individualdoing business as MCGUIRE DESIGN,and DOES 1 through 10, inclusive,
Defendants.
Case No. 2:14-cv-03855
COMPLAINT FOR:
1. Violation of the Computer Frauand Abuse Act (18 U.S.C. 103et seq.);
2. Violation of the ElectronCommunications Privacy Act (1U.S.C. 2510, et seq.);
3. Misappropriation of Trade
Secrets;4. Interference with ProspectivEconomic Advantage;
5. Unfair Business Practices (CaBus & Prof. 17200);
6. Aiding and Abetting UnfaBusiness Practices (Cal. Bus Prof. 17200);
7. Conversion;8. Breach of Contract (Stormer);9. Breach of Fiduciary Du
(Stormer);10. Breach of Contract (Stellin);
11. Breach of Fiduciary Duty(Stellin);12. Breach of Contract (Del Toro);13. Breach of Duty of Loyalty (D
Toro);14. Breach of Contract (Hinostroza15. Breach of Duty of Loyal
(Hinostroza);/////////
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462838.1 2
16. Aiding and Abetting Breach ofFiduciary Duty;
17. Trademark Infringement; and18. Unjust Enrichment
JURY TRIAL DEMANDED
Plaintiff Versa Products, Inc. (Versa or Plaintiff) hereby alleges
follows:
JURISDICTION AND VENUE
1. This action arises under, inter alia, the Computer Fraud and Abuse A
(CFAA), Title 10 U.S.C. 1030, et seq.; the Electronic Communication Priva
Act (ECPA), Title 18 U.S.C. 2510, et seq.; and the Lanham Act, Title 15 U.S
1051, et seq.
2. This Court has federal question jurisdiction under 28 U.S.C. 13
and may properly exercise supplemental jurisdiction under 28 U.S.C. 1367.
3. Venue is proper in this district under 28 U.S.C. 1391(b) and (c).
PARTIES
4. Plaintiff is, and at all times herein relevant was, a Califorcorporation organized and existing by virtue of the laws of the State of Californ
and doing business in the County of Los Angeles, State of California. Plain
manufactures and sells furniture throughout the United States under various tra
names and trademarks, including, among other things, Thrive Home Furnishin
(Thrive). Under the Thrive trademark, Plaintiff manufactures and sells Americ
made, mid-century modern style furniture, primarily via its webs
www.thrivefurniture.com (the Thrive Website).
5. Plaintiff is informed and believes, and based thereon alleges t
Defendant Stitch Industries, Inc. (Stitch) is, and at all times herein relevant was
corporation organized and existing by virtue of the laws of the State of Delawa
doing business as Joybird Furniture in the County of Los Angeles, State
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California. Stitch operates www.joybird.com (the Joybird Website), an on-l
retailer of mid-century modern furniture, which was launched on or about Janua
2014. The Internet domain joybird.com was operated by a Korean pet sto
(Parakeet World)until 2009, and then was dormant until approximately Octob
2012 when it was acquired by the Individual Defendants (ownership of which w
subsequently transferred in February of 2014 to Stitch).
6. Plaintiff is informed and believes, and based thereon alleges th
Defendant Christopher Stormer (Stormer) is an individual who is, and at all tim
mentioned herein was, a resident of, and doing business in, the County of L
Angeles, State of California. From approximately May, 2001 to December
2013, Stormer was an employee of Plaintiff, was its Chief Operating Officer, a
was an integral part of its management team.
7. Plaintiff is informed and believes, and based thereon alleges t
Defendant Joshua Stellin (Stellin) is an individual who is, and at all tim
mentioned herein was, a resident of, and doing business in, the County of L
Angeles, State of California. From March 18, 2011 to approximately Octob
2013, Stellin was an employee of Plaintiff, its Vice President of Marketing, and w
an integral part of its management team.
8. Plaintiff is informed and believes, and based thereon alleges th
Defendant Alejandro Andres Alex Del Toro(Del Toro) is an individual who
and at all time mentioned herein was, a resident of, and doing business in, t
County of Los Angeles, State of California. From approximately July, 2011
November, 2013, Del Toro was an employee of Plaintiff in charge of Onl
Marketing, reporting to Stellin.
9. Plaintiff is informed and believes, and based thereon alleges th
Defendant Andres Hinostroza (Hinostroza) is an individual who is, and at
time mentioned herein was, a resident of, and doing business in, the County of L
Angeles, State of California. From approximately July 30, 2012 to Novemb
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2013, Hinostroza was an employee of Plaintiff and in charge of its pay-per-clic
marketing system, reporting to Del Toro.
10. Hereinafter Stormer, Stellin, Del Toro, and Hinostroza shall be referr
to as the Individual Defendants).
11. Plaintiff is informed and believes, and based thereon alleges th
Defendant Robert McGuire, dba McGuire Design (McGuire) is, and at all tim
herein relevant was an individual who is, and at all time mentioned herein was
resident of San Antonio, Texas, but doing business in the County of Los Angel
State of California. McGuire is a graphic designer who, among other thin
helped create the Thrive Website as well as the other websites maintained
Plaintiff.
12. The true names and capacities of the defendants sued herein as DOES
through 10, inclusive, are unknown to Plaintiff at this time, who therefore sues sa
defendants by such fictitious names. Plaintiff will seek leave of Court to amend t
Complaint when the true names and capacities of said defendants have be
ascertained. Plaintiffs are informed and believe, and thereon allege, that each of t
fictitiously named defendants is in some manner responsible or liable for the a
and damages alleged herein. Hereinafter, Stitch, the Individual Defendants, and
DOE Defendants will be collectively referred to as the JoybirdDefendants.
ALTER EGO ALLEGATIONS
13. Plaintiff is informed believes, and on that basis alleges, that there exi
a unity of interest and ownership between Stitch, on the one hand, and the Individ
Defendants, on the other hand, such that there was no individuality and separaten
between Stitch, on the one hand, and the Individual Defendants, on the other hand
14. Plaintiff is informed and believes, and on that basis alleges, that at
times herein mentioned Stitch was merely a shell and sham through which t
Individual Defendants carried on their business in a company name, and that Stit
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was conceived, intended and used by the Individual Defendants as a device to avo
individual obligations and liabilities, both monetary and non-monetary.
15. Plaintiff is informed and believes, and on that basis alleges, that at
times herein mentioned the Individual Defendants treated and used the assets
Stitch as their own personal property, dominated, controlled and operated Stitch
suit their personal convenience and for the purpose of evading duties a
obligations, both monetary and non-monetary, owed by the Individual Defendants
others.
16. Plaintiff is informed and believes, and on that basis alleges, th
adherence to the fiction of the separate existence of Stitch as an entity distinct fro
the Individual Defendants would sanction fraud and promote injustice, in that t
Individual Defendants have used Stitch as a proxy to engage in the conduct alleg
herein on their behalf and for their personal enrichment, with the intention and
the purpose of escaping personal liability for said conduct.
GENERAL ALLEGATIONS
I. The Individual Defendants Employment
17. The Individual Defendants each entered into an employment agreem
with Plaintiff (collectively the Employment Agreement), the terms of which
reflected in the exemplar employment agreement attached hereto as Exhibit 1. Ea
Employment Agreement was substantially identical, and provided, among oth
things, that:
A. the Individual Defendants shall refrain from engaging in a
business activities, pursued for gain, profit or other pecunia
advantage that are directly competitive with the activities
Employer. (Employment Agreement, 2)
B. all trade secrets disclosed to the Individual Defendants,
developed by them in the course of their work for Plaint
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belong to Plaintiff (Id., 5(C))
C. the Individual Defendants were prohibited from making a
private or personal record of Employers Trade Secrets or oth
confidential or proprietary information, or otherwise take steps
preserve or record Employers Trade Secrets or other confident
and proprietary information for use outside the services bei
rendered to Employer. (Id., 5(D)
D. the Individual Defendants were to not use Employers Tra
Secrets or any other confidential and proprietary informati
belonging to Employer for any purpose other than wo
performed by Employee for Employer. (Id., 5(E)
E. the Individual Defendants were not to directly or indirec
solicit, during the term of their employment and for one ye
thereafter, any of Plaintiffs customers, prospective customers,
employees. (Id., 6 and 7)
F. any and all intellectual property developed by Stormer, Stell
Del Toro, and/or Hinostroza during the period of employme
was owned by Plaintiff. (Id., 8)
18. Further, the Individual Defendants each signed identical Confidential
Agreements, a true and correct copy of an exemplar is attached hereto as Exhibit
Among other things, the Confidentiality Agreements prohibited each of t
Individual Defendants from using for their own benefit Plaintiffs:
A. strategic, development and/or business plans;
B. financial information;
C. data;
D. business records;
E. customer lists;
F. project records; and
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G. business procedures and processes.
19. In addition to their contractual obligations, Stormer and Stellin,
officers of Plaintiff, owed fiduciary duties to the Plaintiff. All of the Individ
Defendants, however, owed a duty of loyalty to the Plaintiff.
II. While Employed by Plaintiff, The Individual Defendants Use Plaintif
Resources To Build Joybird
20. Plaintiff is informed and believes, and based thereon alleges, that
Individual Defendants, and each of them, beginning in 2012, while employed
Plaintiff in positions of trust and responsibility, conspired to use Plaintiffs corpor
resources, including financial, to develop a competing business, including
Joybird Website and products that would be offered for sale thereon.
21. Specifically, Plaintiff is informed and believes, and based there
alleges, that while employed by Plaintiff, at some point in 2012 the Individu
Defendants decided to form a competing company, which they forma
incorporated as Stitch on or about December 31, 2013. However, prior to leav
Plaintiff, the Individual Defendants simply stole corporate resources to develop th
competing company.
22. By way of example, from mid 2012 through December, 2013,
Joybird Defendants, through defendant Del Toro, caused approximately $90,700
of Plaintiffs money to be paid to McGuire for the creation of the Joybird Websi
Plaintiff is informed and believes, and based thereon alleges, that at all tim
McGuire was aware that Plaintiffs funds were being diverted for the purpose
helping the Individual Defendants surreptitiously create their competing website.
23. Further, in November, 2012, Del Toro, on behalf of the Individ
Defendants, purchased the Joybird logo from Arwan Sutanto, a graphic design
located in Indonesia, through the Brandcrowds.com website. Concurren
therewith, Del Toro, on behalf of the Individual Defendants, bought t
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www.joybird.com domain name through Buydomains.com. Plaintiff is inform
and believes that the Individual Defendants used Plaintiffs funds to purchase t
logo and domain name.
24. Additionally, in or about August, 2013, while still working for Plaint
the Joybird Defendants, purporting to act on behalf of Plaintiff, hired Video Shark
a Canadian animation advertising company, to create the Joybird promotional vid
that was thereafter used extensively by the Joybird Defendants in the marketing
their company on the Internet (e.g., as paid advertisements on YouTube videos).
25. By spring 2013, months before leaving Plaintiff, the Joybird Webs
was already in advanced stages of development and being tested by the Individu
Defendants from their work computers. Further, by August, 2013, two mon
before the first Individual Defendant left Plaintiff, the Joybird Website was neari
completion.
III. Plaintiffs Design and Manufacturing Process
26. Plaintiff uses a project management system called Basecamp for
development of its products. Basecamp is a multi-platform application (i.e., it c
be accessed by a PC, Mac, iPhone, Android device, etc.) that allows employees
create projects. Each project is a unified location to discuss the project
opposed to over e-mail, where someone may inadvertently be excluded from
discussion thread), have group to-do lists, and share files (e.g., digital renderings
designs).
27. Basecamp provides its registered users with dedicated areas on
cloud server that are password protected in order to prevent unauthorized access
28. The Individual Defendants, and each of them, had access to
Basecamp system as part of their employment and would regularly use it to devel
products for Plaintiff to manufacture and offer for sale.
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29. For example, if Plaintiff was developing a desk for eventual sale
would have its 3-D Computer-Aided-Design (CAD) rendering artist create a th
dimensional digital reproduction of a desk concept (CAD Design). Certain
Plaintiffs employees, including the Individual Defendants, would comment on
design and suggest revisions which would then be incorporated by the artist. F
example, to visualize how the desk would look with different pull handles, the art
could swap out the design of the handles. Through this discussion process, a desi
would go from conception through development and completion.
30. Once a CAD Design was completed, the file was used to create Inter
based advertising as well as the design specifications for the manufacturing of t
product itself.
31. With respect to advertising, the CAD Design would be used by
website developers to display images of furniture being offered for sale that cou
be manipulated by the customer. For example, a customer could, with a click of h
mouse change a rendering of Plaintiffs Cleveland Sofa from Lucky Turquoise
Omega Doeskin
32. As will be discussed below, CAD Designs created by Plaintiff
being used by the Joybird Defendants to advertise products. For example, Plaintif
Cleveland sofa is being advertised atwww.joybird.comas the Fitzgerald Sofa.
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http://www.joybird.com/http://www.joybird.com/http://www.joybird.com/http://www.joybird.com/ -
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33. The completed CAD Designs are then used by Plaintiff to cre
engineering designs for the framing and assembly of the furniture (t
Engineering Schematics), the relevant portions of which are then programm
(the Frame Design) into specialized computer numerical control (known
CNC) machines that cut wood for the frame to the precise measurements call
for in the Engineering Schematics.
34. Similarly, the CAD files are used to create detailed plans for how
fabric will be cut from larger uniform rolls of fabric to create the upholster
portions of the furniture. These fabric plans are programmed into a CNC fab
cutting machine (the Fabric Designs) which cuts the fabric into the various piec
necessary for the creation of the upholstered portions of the furniture.
35. After a CAD Design is finalized, it takes approximately 250 wo
hours to create Engineering Schematics, a Frame Design, and a Fabric Design
each individual furniture design.
36. The Fabric Designs are extremely important to a furniture maker
they take into account both the design of the furniture (e.g., the size of the piec
that need to be cut to form the padded area) and, as the pieces are of vario
irregular shapes, how to maximize the amount of pieces that can be cut out of t
ordered fabric. Minimizing the waste portion of the fabric is critical to the financ
success of any furniture maker.
37. Basecamp is a secure platform, such that the product designs are n
generally known to the public or Plaintiffs competitors. By maintaining
confidentiality of designs until such time as the final products are released to t
general public, Plaintiff maintains a competitive advantage.
38. Additionally, Plaintiffs Engineering Schematics, Frame Designs a
Fabric Designs are kept confidential and not generally known to the public.
maintaining the confidentiality of the Engineering Schematics, Frame Designs a
Fabric Designs, Plaintiff maintains a competitive advantage because a competi
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would have to expend tens of thousands of man-hours replicating Plaintif
Engineering Schematics, Frame Designs, and Fabric Designs, as well as tens
thousands of dollars attempting to reverse engineer Plaintiffs products. Further
is not readily possible to reverse engineer the Fabric Designs to duplicate the c
savings realized by way of Plaintiffs confidential Fabric Designs.
39. Additionally, the CAD Designs retain value, even after the designs
released to the public by way of advertising the furniture for sale. If a competi
wanted to offer the identical piece of furniture, it would have to expend time a
money attempting to reproduce the CAD Designs.
40. The final version of the CAD Designs, whether the products w
offered for sale or not, as well as the Engineering Schematics, Frame Designs a
Fabric Designs, were stored on Plaintiffs Basecamp accountand/or its local serve
Hard copies of Engineering Schematics, Frame Designs and Fabric Designs (t
Hardcopies) were also maintained by Plaintiff.
IV. Theft of Plaintiffs Unreleased Designs, Engineering Schematics, Fram
Design, and Fabric Designs.
41. Despite reasonable attempts by Plaintiff to maintain the secrecy of
unreleased designs, the Joybird Website currently offers for sale products whi
were developed on the Basecamp project management platform that had not y
been offered for sale by Thrive (the Unreleased Products). A comparison of
product images on the Joybird Website with the product images on Basecam
evidence that, without authority, the Individual Defendants accessed Plaintif
local computer servers (which are connected to the Internet), Plaintiffs secu
Basecamp account, and/or Plaintiffs secure leased server space (collectiv
Plaintiffs Computer Systems) and unlawfully made copies of the CAD Desig
for the Unreleased Products.
42. Additionally, Plaintiff is informed and believes, and based there
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alleges, that the Individual Defendants, and each of them, accessed Plaintif
Computer Systems to unlawfully make copies of completed digital renderin
Fabric Designs, and Engineering Schematics of products already offered for sale
Plaintiffs website (the Released Products). Although images of the Releas
Products were publicly available, the CAD Designs, Engineering Schematics, Fra
Designs, and Fabric Designs, remain secured.
43. Additionally, in December, 2013, concurrently with the Individ
Defendants leaving Plaintiffs employ, Plaintiffs fabric CNC machine ceas
operations. In the course of getting it repaired, Plaintiff discovered that Plaintif
database of Fabric Designs had been removed from the system. Plaintiff is inform
and believes, and based thereon alleges, that the Joybird Defendants stole a
duplicated the Fabric Designs and have been utilizing them in the manufacture
furniture that is identical to Plaintiffs designs.
44. Plaintiff has also discovered that approximately 80% of the hardcop
it maintains of its Engineering Schematics, Frame Designs, and Fabric Designs ha
been stolen.
45. Further, prior to leaving their employment at Plaintiff, the Joyb
Defendants changed the passwords to several of Plaintiffs vital systems and th
failed and refused to disclose those passwords to Plaintiff such that, after t
Individual Defendants left Plaintiff, the Plaintiff was prevented from accessing (a
in some case is still prevented from accessing) parts of Plaintiffs Compu
Systems.
46. Including the Unreleased Products, Released Products, and produ
that are not offered by Thrive (the Joybird Only Products), there
approximately twenty (20) different types of sofas (not including love seats a
sectionals), forty-seven (47) different chair types, twenty-eight (28) tables and de
types, nineteen (19) credenza or storage units, five (5) beds, and one hundred fif
five (155) accessories. Even excluding the accessories, and figuring
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conservative 200 man-hours per product type, the Joybird Defendants would ha
had to spend approximately twenty three thousand eight hundred (23,800) ma
hours to independently create the Engineering Schematics, Frame Designs, a
Fabric Designs. This is, of course, not including time spent to: (1) conceive a
create the CAD Designs; (2) develop the accessories; and (3) set up t
manufacturing facility for Joybird. As there were only approximately two thousa
(2,000) total hours between the time the first Individual Defendant (i.e., Stellin) l
Plaintiff until the Joybird Website was launched, there simply is no way that t
Joybird Defendants could have independently conceived of and created the CA
Files, Engineering Schematics, Frame Designs, and Fabric Designs necessary for t
products being offered for sale after they ceased working for Plaintiff.
IV. Theft of Customer Information and Solicitation of Employees
47. As part of its website, Plaintiff offers to send prospective customers
no charge, a swatch of every fabric (Fabric Packets) that can be used in t
manufacture of its furniture. This request form includes the customers nam
address, phone number, and e-mail address, and includes an opt-in for informat
about sales and specials. This information is used to create a master database
potential customers (the Fabric Database). This information of prospect
customers is maintained strictly confidential, and is never sold or given to any th
parties.
48. Based on an analysis of the Fabric Database and purchasing data, it
estimated that each customer request is worth approximately $350. Furth
approximately 64% of individuals who request a Fabric Packet end up purchasin
product from Plaintiff, and Plaintiffs average order is $1,638.
49. Prior to the Individual Defendants leaving Plaintiff, Plaintiff wou
average approximately 80 Fabric Packet requests per week. Shortly after
Individual Defendants left, however, although the traffic to P laintiffs webs
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remained stable, requests for Fabric Packets dropped to approximately 10 per wee
50. Plaintiff began investigating, and found Fabric Packet requests litera
disappearing before its eyes. For example, on March 26, 2014 at 12:43 P.M.,
Fabric Database showed four unprocessed requests. Testing its theory, Plaintiff
not change the requests from unprocessed to processed in its system, and less th
an hour later, at 1:30 p.m., two of the leads were deleted remotely. Less than o
hour later, at 2:17 p.m., another lead was deleted. By the next morning,
remaining lead was deleted from the system.
51. Plaintiff is informed and believes, and based thereon alleges, that
Individual Defendants, and each of them, have, either directly or throu
instructions to third parties acting on their behalf, accessed and unlawfully ma
copies of all or portions of the Fabric Database. Further, in an attempt to profit fro
the Fabric Database and/or hide their activities, the Joybird Defendants dele
customer information from the Fabric Database.
52. Plaintiff is further informed and believes, and based thereon alleg
that the Individual Defendants, and each of them, have, either directly or throu
instructions to third parties acting on their behalf, accessed and duplicated Plaintif
customer list which contains the names, contact information, and order details for
of Plaintiffs customers.
53. Despite Plaintiffs efforts to block the Joybird Defendants continu
access to its system, the Joybird Defendants continue to access Plaintiffs Compu
system to steal and delete customer information. Based on the average order
$1,638 and 64% sell-through rate, Plaintiff estimates that from January 1, 20
through May 1, 2014, Plaintiff has lost at least approximately $83,865.60 in sa
per weeki.e., in excess of $1.5 million dollars.
54. Although Plaintiff has moved its Fabric Database system to a n
server in the hopes that the Joybird Defendantsefforts would be thwarted, Plaint
is informed and believes, and based thereon alleges, that the Joybird Defenda
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continue to remotely access Plaintiffs computer network. Among other thin
Plaintiff is further informed and believes, and based thereon alleges, that the Joyb
Defendants further installed on Plaintiffs Computer Systems a backdoor monitori
system (the Backdoor) by which orders placed via Plaintiffs Website w
intentionally intercepted, duplicated, and sent to the Joybird Defendants.
55. Further, despite express contractual provisions whereby the Individ
Defendants agreed not to solicit Plaintiffs employees for a period of one (1) ye
the Joybird Defendants have repeatedly contacted Plaintiffs employees to soli
them to come to work for the Joybird Defendants. Moreover, Plaintiff is inform
and believes, and based thereon alleges, that several of Plaintiffs employees hav
in fact, accepted the Joybird Defendants solicitations for employment.
V. Theft of Materials and Destruction of Property
56. Separate and apart from the Joybird Defendants theft of Custom
Information, Plaintiff is further informed and believes, and based thereon alleg
that, prior to leaving Plaintiff, the Joybird Defendants, and each of them, ha
either directly or through instructions to third parties acting on their behalf, stol
pre-packaged Fabric Packets that were then used by Stitch in fulfilling requests
Fabric Packets received via the Joybird Website.
57. Further, a review of purchasing records confirms that during t
relevant time period, the Joybird Defendants, and in particular Stormer, would ord
fabric far in excess of what was necessary or required to complete orders. Plain
is informed and believes, and based thereon alleges, that the Joybird Defenda
stole the excess fabric (the Excess Fabric) for use in manufacturing their ow
products sold through the Joybird website
58. In addition to changing passwords to Plaintiffs computer systems,
alleged above in Paragraph 45, shortly before their employment terminate
Stormer, Stellin, Del Toro and Hinostroza each took affirmative steps to both hi
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their malfeasance and hinder Plaintiffs continued business operations by:
A. physically (and presumably destroying) the hard drives from t
company owned computers that they were issued;
B. attempting to delete the files contained on the hard drives
company owned computers that they were issued; and/or
C. absconding with, and refusing to return company own
computers that they were issued (the Stolen Computers).
59. Plaintiff is informed and believes, and based thereon alleges, th
physical files belonging to the Plaintiffs were also removed and/or destroyed by t
Joybird Defendants, and each of them.
60. Further, the Joybird Defendants simply embezzled funds whi
Plaintiff is informed and believes, were put towards the development of th
competing business. Two of the schemes discovered so far by which the Joyb
Defendants embezzled funds are:
A. The Individual Defendants would create false orders
Plaintiffs system, wherein an order would be placed and th
would manually show that the product had been paid for by t
customer (although no such payment had actually be
received). Then, the Individual Defendants would credit back
their own credit cards (or credit cards of unknown c
conspirators) the cost of the Order.
B. The Individual Defendants created a mirror website
whereby instead of redirecting a customer who misspelled t
Plaintiffs domain name to Plaintiffs actual website, a duplic
website at the misspelled domain would allow customers
purchase products from Plaintiff. The Individual Defendan
however, changed the payment system on this mirrored webs
such that payments were directed to their own accounts .
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FIRST CLAIM FOR RELIEF
(Violation of the Computer Fraud and Abuse Act (18 U.S.C. 1030, et seq)
against the Joybird Defendants)
61. Plaintiff hereby incorporates by reference and realleges each of t
allegations contained in paragraphs 1 through 60, above.
62. Plaintiff is informed and believes, and based thereon alleges, that
Joybird Defendants, and each of them:
A. knowingly, and with intent, and without authorization (
alternatively, exceeding their authorization) accessed, and thereby obtain
information from Plaintiffs Computer Systems (18 U.S.C. 1030(a)(2)(C));
B. knowingly, and with intent to defraud, and without authorizat
(or, alternatively, exceeding their authorization) accessed, and thereby obtain
information and data of value in excess of $5,000.00 in any 1-year period fro
Plaintiffs Computer Systems (18 U.S.C. 1030(a)(4)); and/or
C. knowingly, and with intent, and without authorization access
and thereby caused damage resulting in an aggregate loss in excess of $5,000.00
value to Plaintiffs Computer Systems (18 U.S.C. 1030(a)(5)(A)(iii)).
63. Plaintiffs Computer Systems are used in interstate commerce an
therefore, are protected computers (18 U.S.C. 1030(e)(2)).
64. In accessing Plaintiffs Computer Systems, the Joybird Defendants, a
each of them, copied, accessed, used, loaded, executed, distributed, and otherw
exploited Plaintiffs trade secrets.
65. In addition to the above-alleged conduct, the Joybird Defendants, a
each of them, denied Plaintiff access to various components of Plaintiffs Compu
Systems, and have thereby further misappropriated Plaintiffs trade secrets and oth
confidential information, obtained information of value, impaired the integrity of t
information stored on Plaintiffs Computer Systems, and caused damage.
66. The value of the use of the Plaintiffs trade secrets far exceeds
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statutory minimum of $5,000.
67. Plaintiff is informed and believes that the Joybird Defendan
unauthorized access impaired the integrity of the information and data stored
Plaintiffs Computer Systems.
68. As a direct and proximate result of the acts of the Joybird Defendan
and each of them, Plaintiff has suffered a loss resulting, inter alia, from the cost
responding to the Joybird Defendants actions, conducting a damage assessme
lost revenue, and other consequential damages and reasonable costs.
69. As a direct and proximate result of the acts of the Joybird Defendan
and each of them, Plaintiff has been damaged in an amount subject to proof at tri
but estimated at no less than two million dollars ($2,000,000).
70. Plaintiff is further entitled to, and by this Complaint seeks,
injunction against the Joybird Defendants, and each of them, prohibiting th
unauthorized access to Plaintiffs Computer Systems and their use of any or all
Plaintiffs trade secrets or data stored thereon.
SECOND CLAIM FOR RELIEF
(Violation of the Electronic Communications Privacy Act (18 U.S.C. 2510,
seq.), against the Joybird Defendants)
71. Plaintiff hereby incorporates by reference and realleges each of
allegations contained in paragraphs 1 through 60, above.
72. As noted above, Plaintiff is informed and believes, and based there
alleges, that the Joybird Defendants further installed on Plaintiffs Compu
Systems the Backdoor, by which orders placed via Plaintiffs Website w
intentionally intercepted, duplicated, and sent to the Joybird Defendants.
73. Pursuant to 18 U.S.C. 2520, Plaintiff seeks an Order of this Co
requiring the Joybird Defendants, and each of them to:
A. Disable the Backdoor;
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B. Destroy all written and electronic copies of each and eve
communication duplicated and sent to the Joybird Defendants by way of t
Backdoor;
C. Provide a list of every person, whether or not they work for
Joybird Defendants or any of their respective agents, consultants, contracto
subsidiaries, or attorneys, that has had access to or been in possession
communications acquired by way of the Backdoor; and
D. Provide hard copies of all correspondence that was captured
the Backdoor.
74. Pursuant to 18 U.S.C. 2520, Plaintiff also seeks recovery of
greater of:
A. the sum of the actual damages suffered by the Plaintiff and a
profits made by the Joybird Defendants as a result of the violations alleged here
or
B. statutory damages of whichever is the greater of $ 100 a day
each day of violation or $ 10,000.
75.. As the conduct alleged herein was intentional, and in wanton disrega
of the rights of Plaintiff, Plaintiff seeks recovery of punitive damages.
76. Further, pursuant to 18 U.S.C. 2520, Plaintiff seeks recovery of
reasonable attorneys fees and other litigation costs incurred in connection with th
prosecution of this action.
THIRD CLAIM FOR RELIEF
(Misappropriation of Trade Secrets, against the Joybird Defendants)
77. Plaintiff hereby incorporates by reference and realleges each of t
allegations contained in paragraphs 1 through 60, above.
78. Plaintiff takes reasonable steps to maintain the secrecy of its custom
lists, unreleased product designs, Engineering Schematics, Frame Designs, a
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Fabric Designs (the Trade Secrets). Such steps include, but are not limited to:
A. requiring employees to execute non-disclosure agreements;
B. Password protecting Plaintiffs Computer Systems; and
C. limiting access to the Trade Secrets.
79. Plaintiff takes these steps as the Trade Secrets are extremely valuable
that they are not generally known or readily available to Plaintiffs competitors a
provide a competitive advantage to Plaintiff by virtue of their secret nature.
80. Plaintiff is informed and believes, and based thereon alleges, that sin
the commencement of their common scheme in late 2011 or early 2012, the Joyb
Defendants, and each of them, have copied, accessed, used, loaded, execute
distributed, and otherwise exploited the Trade Secrets.
81. The Joybird Defendants, and each of them, acquired the Trade Secr
either:
A. by way of improper and unauthorized means (Cal. Civ.
3426.1(b)(A)) through accessing Plaintiffs Computer Systems;
B. by way of third party vendors, who they knew had a contract
obligation to maintain the secrecy of the Trade Secrets (Cal. Civ.
3426.1(b)(B)(ii)); and/or
c. by accident or mistake, knowing that they did not have the rig
to access the same (Cal. Civ. 3426.1(b)(B)(iii)).
82. The Joybird Defendants actual and threatened misappropriation of
Trade Secrets entitles Plaintiff to injunctive relief pursuant to Cal. Civ. Code
3426.2.
83. As a direct and proximate result of the Joybird Defendants actual a
threatened misappropriation of Plaintiffs Trade Secrets, Plaintiff has been damag
in an amount subject to proof at trial, but in any event, estimated at no less than t
million dollars ($2,000,000.00).
84. Further, pursuant to Cal. Civ. 3426.3, Plaintiff is entitled to recov
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as damages for the Joybird Defendants unjust enrichment by its utilization
Plaintiffs Trade Secrets that is not otherwise taken into account in computi
damages for actual loss, subject to proof at trial. To the extent that said sums are n
readily ascertainable, Plaintiff reserves its right to seek recovery of a reasonab
royalty.
85. Before and during the misappropriation, actual and threatened,
Joybird Defendants, and each of them, were aware of Plaintiffs rights in and to t
Trade Secrets, and in total disregard of such knowledge, willfully, intentionally, a
maliciously used such information, and continue to use such information, to furth
their own pecuniary gain and in an effort to damage Plaintiff and its busin
operations. Accordingly, Plaintiff is entitled to recover attorneys fees a
exemplary damages for such acts and omissions, threatened and consummated,
the Joybird Defendants, and each of them, pursuant to Cal. Civ. Code 3426.3.
FOURTH CLAIM FOR RELIEF
(Interference With Prospective Economic Advantage, against the Joybird
Defendants)
86. Plaintiff hereby incorporates by reference and realleges each of
allegations contained in paragraphs 1 through 60, above.
87. At all times relevant hereto, Plaintiff had a relationship with tho
individuals identified on its Fabric Database, with the probability of future econom
benefit to the Plaintiff.
88. The Joybird Defendants knew about those relationships.
89. The Joybird Defendants committed intentional wrongful acts design
to disrupt those relationships, as alleged above, which have, in fact, disrupt
Plaintiffs relationships.
90. As a direct, foreseeable and proximate result of interference by t
Joybird Defendants, Plaintiff has been damaged in an amount that is curren
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unknown, but which shall be proven at trial, and is estimated at no less than o
million five hundred thousand dollars ($1,500,000).
FIFTH CLAIM FOR RELIEF
(Unfair Business Practices (Cal. Bus & Prof. 17200), against the Joybird
Defendants)
91. Plaintiff hereby incorporates by reference and realleges each of t
allegations contained in paragraphs 1 through 60, above.
92. The Unfair Competition Law (UCL) prohibits acts of unf
competition, which means and includes any unlawful, unfair or fraudulent busin
act or practice[.]
93. The acts described in paragraphs 1 through 56, above, constitute acts
unfair competition.
94. As a direct and proximate result of the unfair competition alleg
above, Plaintiff has suffered direct monetary losses sufficient to establish standi
as required by Cal. Bus. & Prof. 17205. Such monetary losses include, but are n
limited to lost revenue from the diversion of sales, loss of value in Plaintiffs tra
secrets (to the extent their disclosure is not enjoined), and monies misappropriat
by the Joybird Defendants.
95. As a result of the Joybird Defendantsviolations of the UCL, Stitch
obligated to provide restitution to Plaintiff in an amount subject to proof at tri
Plaintiff estimates such restitution in an amount no less than $2 million dolla
Plaintiff also is entitled to an injunction enjoining and restraining the Joyb
Defendants from their continued violations of the UCL.
/ / /
/ / /
/ / /
/ / /
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SIXTH CLAIM FOR RELIEF
(Aiding and Abetting Unfair Business Practices (Cal. Bus & Prof. 17200),
against the Individual Defendants, McGuire, and the DOE Defendants)
96. Plaintiff hereby incorporates by reference and realleges each of
allegations contained in paragraphs 1 through 60, above.
97. The Individual Defendants, McGuire, and DOE Defendants knew a
were aware of the Stitchs unlawful, unfair or deceptive business practices by virt
of their ownership and/or management of Stitch.
98. The Individual Defendants, McGuire, and DOE Defendants aided a
abetted these violations by Stitch in that the Individual Defendants directed and
personally engaged in the acts and conducted alleged above.
99. As a direct, foreseeable and proximate result of the Individ
Defendants, McGuires, and DOE Defendants aiding and abetting of Stitch
unfair business practices, Plaintiff has been damaged in an amount that is curren
unknown, but which shall be proven at trial, and is estimated at no less than tw
million dollars ($2,000,000).
SEVENTH CLAIM FOR RELIEF
(Conversion, against the Joybird Defendants and McGuire)
100. Plaintiff hereby incorporates by reference and realleges each of
allegations contained in paragraphs 1 through 60, above.
101. At all times mentioned herein, Plaintiff was, and remains, the own
and was, and remains, entitled to the possession of the Trade Secrets, the CAD fi
for released products, the misappropriated monies, Stolen Computers, Excess Fab
and the Fabric Packets (collectively Plaintiffs Property).
102. Plaintiff is informed and believes, and based thereon alleges, t
beginning on or about January 1, 2012, the Joybird Defendants, and each of the
took Plaintiffs Property and converted the same to their own use. With
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Plaintiffs authorization, the Joybird Defendants have used Plaintiffs Property
the benefit of their own business interests.
103. As a direct and proximate result of the Joybird Defendants convers
of Plaintiffs Property, Plaintiff has suffered actual damages and the Joyb
Defendants have been unjustly enriched in an amount subject to proof at tri
Alternatively, because Plaintiffs actual damages and/or the Joybird Defendan
unjust enrichment may not be subject to reasonable proof, Plaintiff is entitled to
royalty equal to a reasonable percentage of the revenue received by the Joyb
Defendants from their conversion of Plaintiffs Property.
104. Plaintiff is informed and believes, and based thereon alleges, that
Joybird Defendants conduct was willful and malicious in that the Joyb
Defendants converted Plaintiffs Property with the deliberate intent to inju
Plaintiffs business and improve their own, thereby entitling Plaintiff to punit
damages.
105. The Joybird Defendants conversion of Plaintiffs Property, unless a
until enjoined and restrained by order of this Court, has caused and will continue
cause great and irreparable injury to Plaintiff as described above. Plaintiff has
adequate remedy at law for this injury, as Plaintiff is informed and believes, a
based thereon alleges, that the Joybird Defendants will continue to use Plaintif
Property in the absence of injunctive relief.
EIGHTH CLAIM FOR RELIEF
(Breach of Contract, against Stormer)
106. Plaintiff hereby incorporates by reference and realleges each of
allegations contained in paragraphs 1 through 60, above.
107. Plaintiff has performed all of the terms, conditions, covenants a
promises required to be performed by it in accordance with the terms and conditio
of the Employment Agreement and Confidentiality Agreement between it a
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Stormer, except those which it has been prevented from performing by Defend
Stormer.
108. Defendant Stormer has breached the Employment Agreement a
Confidentiality Agreement between himself and Plaintiff by way of the acts alleg
above.
109. Accordingly, as a direct and proximate result of Defendants breach
of contract, Plaintiff has suffered damages in an amount subject to proof at trial, b
estimated at no less than two million dollars ($2,000,000).
110. Pursuant to the terms of the Employment Agreement a
Confidentiality Agreement, Plaintiff is further entitled to specific performan
whereby all intellectual property created while in Plaintiffs employ e.g.,
Joybird name, joybird.com domain name, Joybird Website, and any and
Engineering Schematics, Frame Designs, and Fabric Designs are turned over
Plaintiff.
NINTH CLAIM FOR RELIEF
(Breach of Fiduciary Duty and Duty of Loyalty, against Stormer)
111. Plaintiff hereby incorporates by reference and realleges each of
allegations contained in paragraphs 1 through 60, above.
112. As the Chief Operating Officer of Plaintiff, Stormer assumed fiducia
duties to Plaintiff, as well as a general duty of loyalty to Plaintiff.
113. Stormer breached said fiduciary duties and duty of loyalty
undertaking the acts alleged above.
114. As a direct and proximate result of Stormers breach of fiduciary du
and duty of loyalty, Plaintiff has been damaged in an amount according to proof, b
in any event, in excess of the jurisdictional minimums of this Court and estimated
no less than two million dollars ($2,000,000).
115. In committing the acts set forth herein, Stormer acted willfully and w
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the intention to cause injury to Plaintiff. Stormer, therefore, is guilty of mali
oppression and fraud, in conscious disregard of Plaintiffs rights, thereby warranti
assessment of punitive damages in an amount appropriate to punish him and to de
others from engaging in similar conduct.
TENTH CLAIM FOR RELIEF
(Breach of Contract, against Stellin)
116. Plaintiff hereby incorporates by reference and realleges each of
allegations contained in paragraphs 1 through 60, above.
117. Plaintiff has performed all of the terms, conditions, covenants a
promises required to be performed by it in accordance with the terms and conditio
of the Employment Agreement and Confidentiality Agreement between it a
Stellin, except those which it has been prevented from performing by Defenda
Stellin.
118. Defendant Stellin has breached the Employment Agreement a
Confidentiality Agreement between himself and Plaintiff by way of the acts alleg
above.
119. Accordingly, as a direct and proximate result of Defendants breach
of contract, Plaintiff has suffered damages in an amount subject to proof at trial, b
estimated at no less than two million dollars ($2,000,000).
120. Pursuant to the terms of the Employment Agreement a
Confidentiality Agreement, Plaintiff is further entitled to specific performan
whereby all intellectual property created while in Plaintiffs employ e.g.,
Joybird name, joybird.com domain name, Joybird Website, and any and
Engineering Schematics, Frame Designs, and Fabric Designs are turned over
Plaintiff.
/ / /
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ELEVENTH CLAIM FOR RELIEF
(Breach of Fiduciary Duty and Duty of Loyalty, against Stellin)
121. Plaintiff hereby incorporates by reference and realleges each of
allegations contained in paragraphs 1 through 60, above.
122. As the Vice President of Marketing, and an integral part of Plaintif
management team, Stellin assumed fiduciary duties to Plaintiff, as well as a gene
duty of loyalty to Plaintiff.
123. Stellin breached said fiduciary duties and duty of loyalty
undertaking the acts alleged above.
124. As a direct and proximate result of Stellins breach of fiduciary du
and duty of loyalty, Plaintiff has been damaged in an amount according to proof, b
in any event, in excess of the jurisdictional minimums of this Court and estimated
no less than two million dollars ($2,000,000).
125. In committing the acts set forth herein, Stellin acted willfully and w
the intention to cause injury to Plaintiff. Stellin, therefore, is guilty of mali
oppression and fraud, in conscious disregard of Plaintiffs rights, thereby warranti
assessment of punitive damages in an amount appropriate to punish him and to de
others from engaging in similar conduct.
TWELFTH CLAIM FOR RELIEF
(Breach of Contract, against Del Toro)
126. Plaintiff hereby incorporates by reference and realleges each of
allegations contained in paragraphs 1 through 60, above.
127. Plaintiff has performed all of the terms, conditions, covenants a
promises required to be performed by it in accordance with the terms and conditio
of the Employment Agreement and Confidentiality Agreement between it and D
Toro, except those which it has been prevented from performing by Defendant D
Toro.
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128. Defendant Del Toro has breached the Employment Agreement a
Confidentiality Agreement between himself and Plaintiff by way of the acts alleg
above.
129. Accordingly, as a direct and proximate result of Defendants breach
of contract, Plaintiff has suffered damages in an amount subject to proof at trial, b
estimated at no less than two million dollars ($2,000,000).
130. Pursuant to the terms of the Employment Agreement a
Confidentiality Agreement, Plaintiff is further entitled to specific performan
whereby all intellectual property created while in Plaintiffs employ e.g.,
Joybird name, joybird.com domain name, Joybird Website, and any and
Engineering Schematics, Frame Designs, and Fabric Designs are turned over
Plaintiff.
THIRTEENTH CLAIM FOR RELIEF
(Breach of Duty of Loyalty, against Del Toro)
131. Plaintiff hereby incorporates by reference and realleges each of
allegations contained in paragraphs 1 through 60, above.
132. Defendant Del Toro, as an employee of Plaintiff, assumed a gene
duty of loyalty to Plaintiff.
133. Del Toro breached said duty of loyalty by undertaking the acts alleg
above.
134. As a direct and proximate result of Del Toros breach of the duty
loyalty, Plaintiff has been damaged in an amount according to proof, but in a
event, in excess of the jurisdictional minimums of this Court and estimated at
less than two million dollars ($2,000,000).
135. In committing the acts set forth herein, Del Toro acted willfully a
with the intention to cause injury to Plaintiff. Del Toro, therefore, is guilty
malice, oppression and fraud, in conscious disregard of Plaintiffs rights, there
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warranting assessment of punitive damages in an amount appropriate to punish h
and to deter others from engaging in similar conduct.
FOURTEENTH CLAIM FOR RELIEF
(Breach of Contract, against Hinostroza)
136. Plaintiff hereby incorporates by reference and realleges each of
allegations contained in paragraphs 1 through 60, above.
137. Plaintiff has performed all of the terms, conditions, covenants a
promises required to be performed by it in accordance with the terms and conditio
of the Employment Agreement and Confidentiality Agreement between it and D
Toro, except those which it has been prevented from performing by Defendant D
Toro.
138. Defendant Del Toro has breached the Employment Agreement a
Confidentiality Agreement between himself and Plaintiff by way of the acts alleg
above.
139. Accordingly, as a direct and proximate result of Defendants breach
of contract, Plaintiff has suffered damages in an amount subject to proof at trial, b
estimated at no less than two million dollars ($2,000,000).
140. Pursuant to the terms of the Employment Agreement a
Confidentiality Agreement, Plaintiff is further entitled to specific performan
whereby all intellectual property created while in Plaintiffs employ e.g.,
Joybird name, joybird.com domain name, Joybird Website, and any and
Engineering Schematics, Frame Designs, and Fabric Designs are turned over
Plaintiff.
FIFTEENTH CLAIM FOR RELIEF
(Breach of Duty of Loyalty, against Hinostroza)
141. Plaintiff hereby incorporates by reference and realleges each of
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allegations contained in paragraphs 1 through 60, above.
142. Defendant Hinostroza, as an employee of Plaintiff, assumed a gene
duty of loyalty to Plaintiff.
143. Hinostroza breached said duty of loyalty by undertaking the a
alleged above.
144. As a direct and proximate result of Hinostrozas breach of the duty
loyalty, Plaintiff has been damaged in an amount according to proof, but in a
event, in excess of the jurisdictional minimums of this Court and estimated at
less than two million dollars ($2,000,000).
145. In committing the acts set forth herein, Hinostroza acted willfully a
with the intention to cause injury to Plaintiff. Hinostroza, therefore, is guilty
malice, oppression and fraud, in conscious disregard of Plaintiffs rights, there
warranting assessment of punitive damages in an amount appropriate to punish h
and to deter others from engaging in similar conduct.
SIXTEENTH CLAIM FOR RELIEF
(Aiding and Abetting Breach of Fiduciary DutyAgainst Stitch, Del Toro,
Hinostroza, McGuire and the DOE Defendants)
146. Plaintiff hereby incorporates by reference and realleges each of
allegations contained in paragraphs 1 through 60, above.
147. Defendants Stormer and Stellin assumed fiduciary duties to Plaint
which they breached by undertaking the acts alleged above.
148. The remaining defendants, and each of them, aided and abetted,
otherwise conspired with Stellin and Stormer in their respective breaches
fiduciary duties for their own independent direct financial benefit.
149. As a direct and proximate result of Stormer and Stellins breaches
fiduciary duty, as aided and abetted by the remaining defendants, Plaintiffs ha
been damaged in an amount according to proof, and estimated at no less than t
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million dollars ($2,000,000).
150. In committing the acts set forth herein, the defendants acted willfu
and with the intention to cause injury to Plaintiff. The defendants are theref
guilty of malice, oppression and fraud, in conscious disregard of Plaintiffs righ
thereby warranting assessment of punitive damages in an amount appropriate
punish them and to deter others from engaging in similar conduct.
SEVENTEENTH CLAIM FOR RELIEF
(Trademark Infringement (Violation of the Lanham Act), against the Joybir
Defendants and McGuire)
151. Plaintiff hereby incorporates by reference and realleges each of
allegations contained in paragraphs 1 through 60, above.
152. By virtue of the Individual Defendants respective contract
agreements, as well as the use of Plaintiffs money to develop the name Joybir
and associated logo, Plaintiff is the owner of the trademark in the standard charac
mark Joybird and the associated Joybird logo (collectively the Trademarks).
153. The Joybird Defendants and McGuire, and each of them, ha
infringed the Trademarks in interstate commerce by various acts, including sellin
offering for sale and advertising goods for sale using the Trademarks. Said use
said names and marks by the Joybird Defendants and McGuire was and is witho
permission or authority of Plaintiff and said use by the Joybird Defendants a
McGuire is likely to cause confusion, to cause mistake and to deceive.
154. Plaintiff is informed and believes, and based thereon alleges, that
Joybird Defendants and McGuires acts of trademark infringement and unf
competition have been willful and committed with the intent to cause confusio
mistake and to deceive. Defendantsacts as alleged herein were committed with
intent to pass off and palm off goods under the Trademarks as the goods of Plaint
and with the intent to deceive and defraud the public.
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155. By reason of the Joybird Defendants and McGuires acts alleg
herein, Plaintiff has and will suffer damage to its business, reputation and good w
and the loss of sales and profits Plaintiff would have made but for the acts
McGuire and the Joybird Defendants.
156. The Joybird Defendants and McGuire threaten to continue to do
acts complained of herein, and unless restrained and enjoined, will continue to
so, all to Plaintiffs irreparable damage. It would be difficult to ascertain t
amount of compensation which could afford Plaintiff adequate relief for su
continuing acts, and a multiplicity of judicial proceedings would be requir
Plaintiffs remedy at law is not adequate to compensate it for injuries threatened.
EIGHTEENTH CLAIM FOR RELIEF
(Unjust Enrichment against the Joybird Defendants and McGuire)
157. Plaintiff hereby incorporates by reference and realleges each of
allegations contained in paragraphs 1 through 60, above.
158. By virtue of their conduct as alleged herein, the Joybird Defendants a
McGuire were and continue to be unjustly enriched in that, among other things, th
received a substantial benefit and profit from use of Plaintiffs property e
Plaintiffs money that was used to purchase: (a) the joybird.com domain name;
the Joybird logo; (c) the website currently located at www.joybird.com;
Plaintiffs Engineering Schematics, Frame Designs, and Fabric Designs; (d) fab
used for the creation of product that the Joybird Defendants subsequently so
(collectively Plaintiffs Property).
159. The Joybird Defendants are required to make restitution and p
damages to Plaintiff for the amounts of unjust enrichment received by the Joyb
Defendants as a consequence of their wrongful conduct and acts and activities
alleged herein, according to proof, plus interest thereon, at the legal rate of 10% p
annum.
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160. The Joybird Defendants are constructive trustees for the benefit
Plaintiff with regard to Plaintiffs Property and the proceeds earned from t
exploitation thereof. The Joybird Defendants are required to transfer Plaintif
Property, as well as the proceeds from the exploitation of the same, to Plaintiff
make restitution for the unjust enrichment received by them as a consequence
their wrongful and tortious acts and activities as alleged herein, according to proof
PRAYER
WHEREFORE, Plaintiff prays for relief against defendants, and each of the
as follows:
As to the First Claim For Relief
1. Compensatory damages in an amount subject to proof at trial, b
estimated at no less than two million dollars ($2,000,000);
2. An Injunction prohibiting the Joybird Defendants, and each of the
from continuing to utilize Plaintiffsintellectual property, confidential informatio
and trade secrets, including but not limited to by operating the website located
www.joybird.com;
3. For Plaintiffs costs of suit actually incurred, including its reasonab
attorneys feesto the maximum extent allowable by law; and
4. For such other or further relief as the Court deems just and proper.
As to the Second Claim For Relief
1. An injunction requiring the Joybird Defendants, and each of them to:
a. Disable the Backdoor (as well as any other means of access
Plaintiffs system remotely) and disclose all passwords that they set for Plainti
systems;
b. Destroy all written and electronic copies of each and eve
consumer record or correspondence captured by way of the Backdoor Access;
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c. Provide a list of every person, whether or not they work for
Joybird Defendants or any of its agents, consultants, contractors, subsidiaries,
attorneys, who has had access to or been in possession of Plaintif
communications, emails, trade secrets, or other confidential information;
2. Compensatory damages in the amount of the greater of:
a. the sum of the actual damages suffered by the Plaintiff and a
profits made by the Joybird Defendants as a result of
violations alleged herein; or
b. statutory damages of whichever is the greater of $ 100 a day
each day of violation or $ 10,000.
3. Punitive damages, in an amount subject to proof at trial;
4. For Plaintiffs costs of suit actually incurred, including its reasonab
attorneys fees; and
5. For such other or further relief as the Court deems just and proper.
As to the Third Claim For Relief
1. Compensatory damages in an amount subject to proof at trial, b
estimated at no less than two million dollars ($2,000,000);
2. For exemplary and punitive damages in an amount subject to proof
trial;
3. Disgorgement to Plaintiff of all sums by which the Joybird Defenda
were unjustly enriched that are not otherwise taken into account in computi
damages for actual loss, subject to proof at trial. To the extent that said sums are n
readily ascertainable, Plaintiff reserves its right to seek recovery of a reasonab
royalty.
4. An Injunction prohibiting the further misappropriation and/or use of
Trade Secrets;
5. For Plaintiffs costs of suit actually incurred, including its reasonab
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attorneys feesto the maximum extent allowable by law; and
6. For such other or further relief as the Court deems just and proper.
As to the Fourth Claim For Relief
1. Compensatory damages in an amount subject to proof at trial, b
estimated at no less than one million five hundred thousand dollars ($1,500,000);
2. For exemplary and punitive damages in an amount subject to proof
trial;
3. An Injunction prohibiting further interference by the Joyb
Defendants, and each of them;
4. For Plaintiffs costs of suit actually incurred; and
5. For such other or further relief as the Court deems just and proper.
As to the Fifth Claim For Relief
1. Restitution to Plaintiff in an amount subject to proof at trial;
2. An Injunction enjoining and restraining the Joybird Defendants fr
their continued wrongful acts, as alleged, and to return or destroy all copies
Plaintiffs Confidential Information and Trade Secrets in their possession, custod
or control; and
3. For such other or further relief as the Court deems just and proper.
As to the Sixth Claim For Relief
1. Restitution to Plaintiff in an amount subject to proof at trial;
2. An Injunction enjoining and restraining the defendants from th
continued wrongful acts, as alleged, and to return or destroy all copies of Plaintif
Confidential Information and Trade Secrets in their possession, custody, or contr
and
3. For such other or further relief as the Court deems just and proper.
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As to the Seventh Claim For Relief
1. For actual damages according to proof;
2. Alternatively, for royalties equal to a reasonable percentage of t
revenue received by the defendants from their use of Plaintiffs Confident
Information and Trade Secrets;
3. For exemplary and punitive damages in an amount subject to proof
trial;
4. For an injunction requiring the return and/or destruction of
misappropriated Trade Secrets;
4. For such other or further relief as the Court may deem proper.
As to the Eighth Claim For Relief
1. Compensatory damages in an amount subject to proof at trial, b
estimated at no less than two million dollars ($2,000,000);
2. For Plaintiffs costs of suit actually incurred;
3. For imposition of a constructive trust on the proceeds earned from
defendants breaches of contract;
4. Specific performance, whereby all intellectual property created while
Plaintiffs employ e.g., the Joybird name, joybird.com domain name, Joyb
Website, and any and all Engineering Schematics, Frame Designs, and Fab
Designsare turned over to Plaintiff; and
5. For such other or further relief as the Court deems just and proper.
As to the Ninth Claim For Relief
1. Compensatory damages in an amount subject to proof at trial, b
estimated at no less than two million dollars ($2,000,000);
2. For exemplary and punitive damages in an amount subject to proof
trial;
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3. For Plaintiffs costs of suit actually incurred; and
4. For such other or further relief as the Court deems just and proper.
As to the Tenth Claim For Relief
1. Compensatory damages in an amount subject to proof at trial, b
estimated at no less than two million dollars ($2,000,000);
2. For Plaintiffs costs of suit actually incurred;
3. For imposition of a constructive trust on the proceeds earned from
defendants breaches of contract;
4. Specific performance, whereby all intellectual property created while
Plaintiffs employ e.g., the Joybird name, joybird.com domain name, Joyb
Website, and any and all Engineering Schematics, Frame Designs, and Fab
Designs are turned over to Plaintiff; and
5. For such other or further relief as the Court deems just and proper.
As to the Eleventh Claim For Relief
1. Compensatory damages in an amount subject to proof at trial, b
estimated at no less than two million dollars ($2,000,000);
2. For exemplary and punitive damages in an amount subject to proof
trial;
3. For Plaintiffs costs of suit actually incurred; and
4. For such other or further relief as the Court deems just and proper.
As to the Twelfth Claim For Relief
1. Compensatory damages in an amount subject to proof at trial, b
estimated at no less than two million dollars ($2,000,000);
2. For Plaintiffs costs of suit actually incurred;
3. For imposition of a constructive trust on the proceeds earned from
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defendants breaches of contract;
4. Specific performance, whereby all intellectual property created while
Plaintiffs employ e.g., the Joybird name, joybird.com domain name, Joyb
Website, and any and all Engineering Schematics, Frame Designs, and Fab
Designs are turned over to Plaintiff; and
5. For such other or further relief as the Court deems just and proper.
As to the Thirteenth Claim For Relief
1. Compensatory damages in an amount subject to proof at trial, b
estimated at no less than two million dollars ($2,000,000);
2. For exemplary and punitive damages in an amount subject to proof
trial;
3. For Plaintiffs costs of suit actually incurred; and
4. For such other or further relief as the Court deems just and proper.
As to the Fourteenth Claim For Relief
1. Compensatory damages in an amount subject to proof at trial, b
estimated at no less than two million dollars ($2,000,000);
2. For Plaintiffs costs of suit actually incurred;
3. For imposition of a constructive trust on the proceeds earned from t
defendants breaches of contract;
4. Specific performance, whereby all intellectual property created while
Plaintiffs employ e.g., the Joybird name, joybird.com domain name, Joyb
Website, and any and all Engineering Schematics, Frame Designs, and Fab
Designs are turned over to Plaintiff; and
5. For such other or further relief as the Court deems just and proper.
/ / /
/ / /
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As to the Fifteenth Claim For Relief
1. Compensatory damages in an amount subject to proof at trial, b
estimated at no less than two million dollars ($2,000,000);
2. For exemplary and punitive damages in an amount subject to proof
trial;
3. For Plaintiffs costs of suit actually incurred; and
4. For such other or further relief as the Court deems just and proper.
As to the Sixteenth Claim For Relief
1. Compensatory damages in an amount subject to proof at trial, b
estimated at no less than two million dollars ($2,000,000);
2. For exemplary and punitive damages in an amount subject to proof
trial;
3. For Plaintiffs costs of suit actually incurred; and
4. For such other or further relief as the Court deems just and proper.
As to the Seventeenth Cause of Action (Trademark Infringement):
1. For an injunction under 15 U.S.C.A. 1116, enjoining and restrain
the Joybird Defendants and McGuire, and their respective agents, servants a
employees from directly or indirectly using the Trademarks or any other ma
word, or name similar to Plaintiff's marks which is likely to cause confusio
mistake or to deceive;
2. For an order under 15 U.S.C.A. 1118, order that all labels, signs, prin
packages, wrappers, receptacles, and advertisements in the possession of defenda
bearing the Trademarks and all plates, molds, matrices and other means of maki
the same, shall be delivered up and destroyed;
3. For all of McGuire and the Joybird Defendants profits derived fr
their infringement of the Trademarks;
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4. Compensatory damages in an amount subject to proof at trial, b
estimated at no less than two million dollars ($2,000,000).
5. For three times the amount of Plaintiffs actual damages caused
McGuire and the Joybird Defendants infringement;
6. That this is an exceptional case and that Plaintiff be awarded
reasonable attorney's fees;
7. For imposition of a constructive trust on the Trademarks, and t
proceeds derived from Defendants use of those trademarks.
As to the Eighteenth Claim For Relief
1. Compensatory damages in an amount subject to proof at trial;
2. For exemplary and punitive damages in an amount subject to proof
trial;
3. For imposition of a constructive trust on Plaintiffs Property, and
proceeds derived from McGuire and the Joybird Defendants use of Plaintif
Property.
4. For Plaintiffs costs of suit actually incurred; and
5. For such other or further relief as the Court deems just and proper.
Dated: May 19, 2014 RESCH POLSTER & BERGER LLP
By: /S/
ANDREW V. JABLON
Attorneys for Versa Products, Inc.
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