FILED: NEW YORK COUNTY CLERK 05/26/2010 INDEX NO /2010 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/26/2010

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1 FILED: NEW YORK COUNTY CLERK 05/26/2010 INDEX NO /2010 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/26/2010 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK DAS COMMUNICATIONS, LTD. Plaintiff, SUMMONS Index No.: -against- KESHA ROSE SEBERT p/k/a KE$HA, an individual, LUKASZ GOTTWALD p/k/a DR. LUKE, an individual, Defendants. TO THE ABOVE NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the complaint, a copy of which is hereby served upon you, and to serve a copy of your Answer upon the undersigned attorneys listed below within twenty (20) days after the service of this Summons, exclusive of the day of service (or within thirty (30) days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment by default will be taken against you for the relief demanded herein. DATED: Beverly Hills, California May 25, 2010 FREUNDLICH LAW By: KENNETH D. FREUNDLICH. ESQ Ventura Blvd. Ste Encino, California (818) c/o Beigelman Feiner & Feldman PC 100 Wall Street, 23rd Floor New York, New York Counsel for Plaintiff DAS Communications, Ltd.

2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X DAS COMMUNICATIONS, LTD. Index No.: Plaintiff, - against - COMPLAINT KESHA ROSE SEBERT p/k/a KE$HA, an individual, LUKASZ GOTTWALD p/k/a DR. LUKE, an individual, Defendants X DAS COMMUNICATIONS, LTD., (hereinafter referred to as the Plaintiff or DAS ), by its attorneys Freundlich Law, as and for its complaint against the Defendants Kesha Rose Sebert p/k/a Ke$ha ( Kesha ) and Lukasz Gottwald p/k/a Dr. Luke ( Dr. Luke ) herein alleges as follows: 1. This lawsuit concerns Kesha s unlawful breach of her written personal management agreement with DAS. After DAS expended money and considerable time and effort in advancing Kesha s career culminating in Kesha signing a recording agreement with a label distributed by Warner Bros. Records, Kesha, withdrew from that recording agreement, breached the DAS management agreement and illegally terminated same. Dr. Luke tortiously interfered with DAS agreement with Kesha by wrongfully inducing her to breach and terminate the DAS agreement. By this lawsuit, DAS seeks redress from Kesha for her breach of contract and from Dr. Luke for his tortuous interference.

3 PARTIES 2. Plaintiff DAS is and at all times hereinafter mentioned was and still is a corporation organized and existing under and by virtue of the laws of the State of New York, with its principal place of business located at 83 Riverside Drive, New York, New York DAS is a very experienced and successful management company for entertainers in the music industry. 3. Upon information and belief, Defendant Kesha Rose Sebert p/k/a Ke$ha ( Kesha ), is, and at all times mentioned, was an individual residing and domiciled in Los Angeles, California. 4. Upon information and belief, Defendant Lukasz Gottwald p/k/a Dr. Luke ( Dr. Luke ) is, and at all times mentioned, was an individual residing and domiciled at New York, New York. THE RELEVANT FACTS The DAS/Kesha Agreement 5. On or about January 27, 2006, Kesha and DAS entered into a written management agreement for DAS to manage Kesha s career (the DAS Management Agreement ). In exchange for DAS services as a personal manager, Kesha agreed that she would pay DAS a percentage of any and all gross monies or other consideration she received from her activities throughout the entertainment industry. 6. The DAS Management Agreement, a copy of which is attached hereto as Exhibit A, provided that in exchange for DAS services as a personal manager, the parties agreed, inter alia, as follows that: 2

4 (i) DAS would use its best efforts to perform services for Kesha, including representing her as her advisor in all business negotiations and matters of policy relating to [Kesha s] career... [ 2]; (ii) Kesha was required to advise [DAS] of all offers of employment submitted to Kesha and... refer any inquiries concerning [DAS ] services to DAS, in order that [DAS] may advise [Kesha] whether the same are compatible with [Kesha s] career... [ 4]; (iii) The term would be five years provided that Kesha had the option to terminate the DAS Management Agreement if a a recording agreement providing for [Kesha s] services as a recording artist, to be distributed by a major label, (the Recording Agreement ) has not been entered into within one (1) year from the date of the [DAS Management Agreement] [ 7] ( Kesha s One Year Option ) in other words, on or before January 27, 2007 (the One Year Option Date ); (iv) Kesha shall pay to DAS a sum equal to twenty percent (20%) of any and all gross monies she receives as defined in the DAS Management Agreement [ 6], plus further commissions after the term has expired [ 16]; and (v) The parties would give each other a thirty day notice to cure any claim under the DAS Management Agreement [ 10]. 7. Beginning in 2006, in order to promote and assist Kesha, DAS arranged for the writing and production of many master recordings of Kesha s performances (the DAS Masters ). 8. By agreement between Kesha and DAS, the parties waived the One Year Option Date and, at Kesha s request and with her willing cooperation and acceptance, DAS rendered 3

5 valuable personal management services to Kesha which ultimately led to Kesha s signing of a recording agreement with Warner Bros. Records, as well as the record agreement which Kesha entered into with Jive Records to whom she is currently signed. 9. In or about 2008, with the use of the DAS Masters and DAS considerable skills, abilities and connections in the recording industry, Kesha obtained interest from Interscope Records to enter into an exclusive recording agreement. 10. At or about the same time in 2008, DAS introduced Kesha to American Idol Judge Kara Dioguardi who was an A&R executive at Warner Bros. Records. As a result of that introduction and Dioguardi s listening to and liking the DAS Masters, Warner Bros. Records made an offer to Kesha for her exclusive personal services and Kesha entered into a recording agreement with Arthouse/WMG(the Warner Agreement ), a label distributed by Warner Bros. Records. 11. The Warner Agreement was a Recording Agreement under the DAS Management Agreement. 12. On or about June 17, 2008, Kesha signed the Warner Agreement ( Kesha s Signed Recording Agreement ). Dr. Luke Interferes With the DAS Agreement 13. Upon information and belief, after Kesha signed Kesha s Signed Recording Agreement, Dr. Luke asserted an adverse claim against Warner Bros. contending that his company had the exclusive right to Kesha s recording services. 14. Upon further information and belief, with specific knowledge of the DAS Management Agreement, Dr. Luke induced and persuaded Kesha to allow Dr. Luke to explore 4

6 other opportunities for Kesha without DAS involvement in contravention of the material terms and conditions of the DAS Management Agreement. 15. Upon information and belief, under the pretense that Dr. Luke was going to work with DAS for Kesha s benefit, Dr. Luke obtained from DAS a copy of Kesha s Signed Recording Agreement without disclosing to DAS his true intent which, upon information and belief, was to use the DAS Masters and Kesha s Signed Recording Agreement as instruments to procure a different recording agreement for Kesha, and persuade and induce Kesha to eliminate DAS from her career. 16. DAS fully cooperated with Dr. Luke, at Kesha s urging, in providing the DAS Masters and documents to Dr. Luke. At no time during this period did Kesha inform DAS that she was dissatisfied with DAS services or that she was considering terminating DAS services. To the contrary, Kesha asked DAS to cooperate with Dr. Luke in an attempt to resolve Dr. Luke s asserted adverse claims. 17. Plaintiff is informed and believes and thereon alleges that Dr. Luke convinced Kesha to disavow Kesha s Signed Recording Agreement and to instead enter into a recording agreement with Jive Records (the Jive Agreement ), which Dr. Luke obtained for Kesha, with the use of the DAS Masters and by leveraging Kesha s Signed Recording Agreement. 18. Plaintiff is informed and believes and thereon alleges that sometime during this period, Dr. Luke induced, intimidated and convinced Kesha to instruct her attorney to terminate the DAS Management Agreement even though she had no legal right to do so, and to eliminate DAS rights and interests in Kesha s career. 19. On or about September 11, 2008, without justification or legal right to do so, Kesha s counsel, Todd B. Rubenstein, Esq. purported to terminate the DAS Management 5

7 Agreement (the Termination Letter ). DAS rejected the Termination Letter and continued to be ready, willing and able to perform the services required of DAS under the DAS Management Agreement. 20. Upon information and belief, the DAS Management Agreement was in full force and effect when Kesha tried to terminate it and the DAS Management Agreement continues to be in full force and effect. 21. Prior to the release of Kesha s first album on Jive Records, Jive, with Kesha and Dr. Luke s assistance, created a website for Kesha which featured many of the DAS Masters. No authorization was obtained of the use of the DAS Masters and no compensation was paid to DAS for the use of such Masters causing DAS and the writers and producers of the DAS Masters, some of whom are DAS clients, irreparable harm. 22. In or about January 2010, Jive released Kesha s first album titled Animal which, on information and belief, has sold more than One Million (1,000,000) records) including three top ten singles and provided the platform for Kesha to embark on a worldwide tour in AS AND FOR A FIRST CAUSE OF ACTION (Declaratory Relief against Kesha) 23. Plaintiff repeats, realleges and incorporates each and every allegation contained in Paragraphs 1 through 22, inclusive as though fully set forth herein. 24. A dispute has arisen between the parties with respect to the DAS Management Agreement. 25. Since 2006, the parties have operated pursuant to the terms of the DAS Management Agreement which DAS contends is valid, binding and subsisting. 6

8 26. Kesha contends that she has lawfully terminated the DAS Management Agreement by virtue of the Termination Letter. DAS rejects the Termination Letter and contends that the DAS Management Agreement is in full force and effect. 27. There exists a true and present controversy between DAS and Kesha and the parties require a declaration of this Court that the DAS Management Agreement is binding and enforceable and in full force and effect between DAS and Kesha. 28. Accordingly, DAS respectfully request that this Court enter a declaratory judgment stating that the DAS Management Agreement attached hereto as Exhibit A is a valid and enforceable contract which continues to be in force, and that Kesha s refusal to pay commissions presently due and owing to DAS and her repudiation of her obligation to pay future commissions to DAS is a breach of the DAS Management Agreement for which damages have accrued and will continue to accrue. AS AND FOR A SECOND CAUSE OF ACTION (Breach of Contract against Kesha) 29. Plaintiff repeats, realleges and incorporates each and every allegation contained in Paragraphs 1 through 28, inclusive as though fully set forth herein. 30. In or about September 11, 2008, Kesha materially breached the DAS Management Agreement by failing to advise DAS of the recording agreements that were offered to her, by entering into the Jive Agreement without DAS advice or counsel, by purporting to terminate the DAS Management Agreement without legal right to do so, and by failing and refusing to pay to DAS the commissions due to DAS under the DAS Management Agreement. 31. DAS has performed all duties and obligations on its part required to be performed under the DAS Management Agreement, except to the extent such performance was waived, 7

9 excused, or prevented by reason of Kesha s acts and omissions. DAS has demanded payment of the commissions it is owed pursuant to the DAS Management Agreement but Kesha has refused to pay to DAS the commissions it is entitled to. 32. By reason of the foregoing, and as a direct and proximate result, DAS has been damaged in an amount to be proved at trial but believed to be in excess of Two Million Dollars ($2.000,000.00). AS AND FOR A THIRD CAUSE OF ACTION (Breach of Implied Covenant of Good Faith and Fair Dealing against Kesha) 33. Plaintiff repeats, realleges and incorporates each and every allegation contained in Paragraphs 1 through 32, inclusive as though fully set forth herein. 34. Under New York law, there exists an implied covenant of good faith and fair dealing in the DAS Management Agreement, creating a duty for Kesha to cooperate with DAS to achieve the objectives of the DAS Management Agreement and to refrain from doing anything that would render DAS performance of the DAS Management Agreement impossible or unreasonably difficult. 35. Kesha has breached the implied covenant of good faith and fair dealing in the DAS Management Agreement by (i) failing to advise DAS of any offers for her recording services procured during the term of the DAS Management Agreement and particularly after Dr. Luke inserted himself into Kesha s business, (ii) failing to include DAS in any discussions concerning Dr. Luke s role in her career, (iii) entering into the Jive Agreement and then (iv) purporting to terminate the DAS Management Agreement. By reason of the foregoing, and as a direct and proximate result, DAS has been damaged in an amount to be proved at trial but believed to exceed Two Million Dollars ($2,000,000.00). 8

10 36. The aforementioned conduct of Kesha was fraudulent, oppressive, malicious and constituted a willful attack on DAS rights and therefore, Plaintiff is entitled, in addition to compensatory damages, to punitive damages, in an amount sufficient to punish Kesha and to deter others from engaging in similar misconduct in the amount of Ten Million Dollars ($10,000,000). AS AND FOR A FOURTH CAUSE OF ACTION (Unjust Enrichment/Quantum Meruit against Defendant Kesha) 37. Plaintiff repeats, realleges and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive as though fully set forth herein. 38. During the course of their relationship, Kesha and DAS worked closely together to develop the DAS Masters and to search for the best recording company partner to work with Kesha and exploit her talents and abilities. DAS contributed, among other things, its time and financial assistance and DAS considerable skills, abilities, experience and connections within the music industry which Kesha accepted and utilized to her own advantage. 39. Kesha wrongfully terminated DAS but continues to retain and benefit from the services that DAS performed on her behalf. 40. DAS is entitled to receive as damages an amount equal to the reasonable value of the services Das rendered to Kesha. AS AND FOR A FIFTH CAUSE OF ACTION (Accounting) 41. Plaintiff repeats, realleges and incorporates each and every allegation contained in Paragraphs 1 through 40, inclusive as though fully set forth herein. 9

11 42. Plaintiff is informed and believes and thereon alleges that Kesha has received considerable sums of money, a portion of which is due to DAS as previously alleged. 43. The amount of money due from Kesha to DAS is unknown to DAS and cannot be ascertained without an accounting of the receipts and disbursements of the aforementioned transactions and Kesha s books and records. 44. The DAS Management Agreement gives DAS the right to review Kesha s books and records pertaining to the DAS Management Agreement [ 8]. 45. DAS is therefore entitled to a full and complete accounting of Kesha books and records, so that DAS can audit these records and determine what commissions are properly due. AS AND FOR A SIXTH CAUSE OF ACTION AGAINST (Intentional Interference with Contract against Dr. Luke) 46. Plaintiff repeats, realleges and incorporates each and every allegation contained in Paragraphs 1 through 45, inclusive as though fully set forth herein. 47. At all times material hereto, there existed a contractual relationship between Kesha and DAS in the form of the DAS Management Agreement. 48. At all times material hereto, Dr. Luke knew of the DAS Management Agreement and that it was extant and in effect when Dr. Luke solicited offers from recording companies and procured the Jive Agreement for Kesha and when Kesha thereafter purported to terminate DAS. 49. Plaintiff is informed and believes and thereon alleges that, with utter disregard for DAS rights under the DAS Management Agreement, Dr. Luke coordinated and executed a malicious plan to convince, intimidate and otherwise influence Kesha to breach the DAS Management Agreement and exclude DAS from her career. 10

12 50. By reason of the foregoing, and as a direct and proximate result thereof, DAS has been damaged in an amount to be proved at trial but believed to exceed Two Million Dollars ($2,000,000.00). 51. The aforementioned conduct of Dr. Luke was fraudulent, oppressive, malicious and constituted a willful attack on DAS rights and therefore, Plaintiff is entitled, in addition to compensatory damages, to punitive damages, in an amount sufficient to punish Dr. Luke and to deter others from engaging in similar misconduct in the amount of Ten Million Dollars ($10,000,000). PRAYER FOR RELIEF Wherefore, Plaintiff prays for relief against Defendants as follows: As To the First Cause of Action A. For a declaration that the DAS Management Agreement attached hereto as Exhibit A is a valid and enforceable contract which continues to be in force, and that Kesha s refusal to pay commissions presently due and owing to DAS and her repudiation of her obligation to pay future commissions to DAS is a breach of the DAS Management Agreement for which damages have accrued and will continue to accrue; As To the Second Cause of Action B. For compensatory damages, in an amount not yet fully ascertained but believed to be in excess of $2,000,000, or according to proof at trial, plus interest thereon at the legal rate; 11

13 As To the Third Cause of Action C. For compensatory damages, in an amount not yet fully ascertained but believed to be in excess of $2,000,000, or according to proof at trial, plus interest thereon at the legal rate; D. For punitive damages, in an amount not yet fully ascertained but believed to be in excess of $10,000,000, or according to proof at trial, plus interest thereon at the legal rate; As To the Fourth Cause of Action E. For damages equal to the reasonable value of the service DAS rendered to Kesha, or according to proof at trial, plus interest thereon at the legal rate; As To the Fifth Cause of Action F. For the imposition of a constructive trust; G. For an accounting; As To the Sixth Cause of Action H. For compensatory damages, in an amount not yet fully ascertained but believed to be in excess of $2,000,000, or according to proof at trial, plus interest thereon at the legal rate; I. For punitive damages, in an amount not yet fully ascertained but believed to be in excess of $10,000,000, or according to proof at trial, plus interest thereon at the legal rate; As to all causes of action J. For attorneys fees; K. For pre-judgment interest as permitted by law; 12

14 L. For post-judgment interest as permitted by law; M. For costs of suit; and N. For such other and further relief as this Honorable Court determines to be appropriate and just. Dated: May 25, 2010 Encino, California New York, New York FREUNDLICH LAW By: KENNETH D. FREUNDLICH. ESQ Ventura Blvd. Ste Encino, California (818) c/o Beigelman Feiner & Feldman PC 100 Wall Street, 23rd Floor New York, New York Counsel for Plaintiff DAS Communications, Ltd. 13

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