Plaintiffs, Plaintiffs Cat Cora and Cat Cora, Inc. (collectively, Cora ), by their attorneys Oved & SUMMARY OF ACTION

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X CAT CORA and CAT CORA, INC., -against- Plaintiffs, Index No: /2017 COMPLAINT FATBIRD RESTAURANT GROUP LLC and FATBIRD I LLC, Defendants X Plaintiffs Cat Cora and Cat Cora, Inc. (collectively, Cora ), by their attorneys Oved & Oved LLP, complaining of the Defendants, sets forth and alleges, upon information and belief, as follows: SUMMARY OF ACTION 1. Cat Cora is a world-renowned chef, restaurateur, author, and television personality who starred in the television program Iron Chef America and currently stars in My Kitchen Rules. This action arises from a breach and repudiation of contract by Defendants Fatbird Restaurant Group LLC ( FRG ) and Fatbird I LLC ( F1 and collectively with FRG, Fatbird ) in connection with the opening of a restaurant called Fatbird Southern Kitchen and Bar (the Fatbird Restaurant ) located at 44 Ninth Avenue and the corner of West 14 th Street, New York, New York. 2. Under a Services and Consultation Agreement dated February 1, 2017 (the Agreement ), Cora agreed to give Fatbird the right to use her name, likeness, recipes and other services in exchange for Fatbird s guaranteed payment to Cora of $400,000 in quarterly payments of $25,000 and a 10% equity interest in Fatbird. Fatbird, however, has defaulted on every installment payment owed to Cora and has now repudiated its agreement to make future

2 payments to Cora. Accordingly, Cora brings this action against Fatbird for its breach and anticipatory breach of contract and now unauthorized use of Cora s name and likeness. Cora seeks actual and consequential, and a preliminary and permanent injunction enjoining Fatbird from using Cora s name and likeness. PARTIES 3. Plaintiff Cat Cora is a natural person who resides in California. Ms. Cora is a world-renowned chef who has opened more than 18 restaurants across the United States and globally. Ms. Cora is the first-ever female inducted into The American Academy of Chefs Culinary Hall of Fame. Ms. Cora is also a famous television personality who was the first-ever female Iron Chef on the Food Network s hit show Iron Chef America and currently stars in the television program My Kitchen Rules. 4. Plaintiff Cat Cora, Inc. is a California corporation with an address at 2850 Ocean Park Boulevard, Suite 300, Santa Monica, California Defendant Fatbird Restaurant Group LLC is a Nevada limited liability company with an address at 8360 W Sahara Avenue, Las Vegas, Nevada Defendant Fatbird I LLC is a Nevada limited liability company with an address at 8360 W Sahara Avenue, Las Vegas, Nevada FACTS COMMON TO ALL CAUSES OF ACTION A. The Agreement Between Fatbird and Cora 7. On or about February 1, 2017, Fatbird and Cora entered into the Agreement. 8. Under Section 3.2 of the Agreement, Cora agreed to provide certain services and permitted Fatbird to use her name, image and likeness. 9. Under Section 3.3 of the Agreement, in exchange for Cora s promises under Section 3.2, Fatbird agreed to pay Cora $400,000 in quarterly payments of $25,000 each. Page 2

3 10. Section 3.3 of the Agreement further provides that the first payment of $25,000 would be paid upon the Cora Parties signature and delivery of this Agreement and that the payments thereafter would be made on each of March 31, June 30, September 30 and December 31 of each calendar year. 11. Section 3.3 of the Agreement also provides that in addition to compensation of $400,000 detailed above, Cora shall receive a ten percent (10%) membership interest in both FRG and F1 and shall be entitled to distributions as members of FRG and F1, to the extent distributions from either FRG or F1 are made to their respective members. 12. Section 3.4 of the Agreement provides that if any payment required under the Agreement is not made, Cora shall provide written notice of the failure to pay and Fatbird shall have fifteen (15) days to cure after such written notice is received. If Fatbird fails to make the required payment after that cure period, the Agreement provides that interest on the past due amount shall then begin to accrue at a rate of eighteen percent (18%) per year. 13. On or about February 15, 2017, the Agreement was amended pursuant to Amendment No. 1 to Services and Consultation Agreement ( Amendment No. 1 ). Amendment No. 1 further authorized Fatbird s permissible use of Cora s photographs for promoting and publicizing the Fatbird brand. Amendment No. 1 did not amend or otherwise alter Fatbird s payment obligations to Cora under the original Agreement. 14. Since executing the Agreement and Amendment No. 1, Cora has performed all of her obligations under the Agreement and Amendment No. 1. B. Fatbird Breached and Repudiated the Agreement 15. To date, Fatbird was required to have made four payments of $25,000 each ($100,000 total) pursuant to the Agreement. Fatbird has failed to make any of those required payments. Page 3

4 16. In accordance with the notice provisions under the Agreement, Cora has given Fatbird numerous written and oral notices of Fatbird s breach of its payment obligations under the Agreement. 17. Initially, Fatbird repeatedly assured Cora that payment would be forthcoming. 18. For example, on May 12, 2017, Fatbird represented in writing that it will make payment promptly. 19. Fatbird never made the promised payment. 20. Thereafter, on August 1, 2017, Fatbird represented in writing that it would be sending [Cora] $25,000 this week. 21. Again, Fatbird made no payments. 22. On August 17, 2017, Cora had a telephone conference with the principals of Fatbird, during which Fatbird repeatedly confirmed that it owes Cora payments under the Agreement and assured Cora that those payments would be made promptly. 23. But Fatbird still made no payments. 24. To make matters worse, Fatbird has been operating the Fatbird Restaurant in a substandard manner, but Cora has received the brunt of the blame for the restaurant s lackluster performance, which has caused, and continues to cause, irreparable injury to Cora s brand, good will and reputation as a world class chef and restauranteur. 25. For instance, diners and food critics have given the restaurant numerous negative reviews. 26. Moreover, the Fatbird Restaurant offers numerous menu items that Cora did not approve and contains food pairings that are inconsistent with the restaurant s concept and Cora s high standards. Page 4

5 27. Cora has made numerous attempts to coordinate with Fatbird to make improvements to the restaurant, but Fatbird has refused to respond to those attempts. FIRST CAUSE OF ACTION (Breach of Contract Against Fatbird) 28. Cora repeats, reiterates, and re-alleges each and every allegation as contained in the above paragraphs with the same force and effect as if fully set forth herein. 29. Cora and Fatbird entered into the Agreement, which constituted a valid and binding contract. 30. Cora fully and faithfully performed all of her obligations under the Agreement. 31. Fatbird materially breached the Agreement by, inter alia, failing to make any of the quarterly payments of $25,000 required under the Agreement. 32. As a direct and proximate result of Fatbird s material breaches of the Agreement, Cora has been injured and has suffered monetary damages in an amount to be determined at trial. 33. In addition, because of Fatbird s failure to cure its breaches of the Agreement within 15 days notice thereof, Cora is entitled to interest on the amounts owed at a rate of 18% per year. 34. Fatbird has also breached the implied covenant of good faith and fair dealing by operating the Fatbird Restaurant in a substandard manner, which jeopardizes Fatbird s ability to fulfill its obligation under the Agreement to pay Cora a total of $400,000 plus interest. 35. Further, pursuant to paragraph 5.8 of the Agreement, Cora is entitled to attorneys fees, costs and expenses expended in connection with this action, the exact amount to be determined at trial. 36. By its failure to dutifully perform its obligations owed to Cora, Fatbird has deprived Cora of the benefit of the consideration for which Cora bargained. Page 5

6 37. Fatbird s breaches of the Agreement and its implied covenant of good faith and fair dealing have caused and continue to cause significant damage to Cora, in an amount to be determined at trial. SECOND CAUSE OF ACTION (Anticipatory Breach of Contract Against Fatbird) 38. Cora repeats, reiterates, and re-alleges each and every allegation as contained in the above paragraphs with the same force and effect as if fully set forth herein. 39. On numerous occasions, Cora notified Fatbird that it was in breach of the Agreement by failing to make any of the required quarterly payments due. 40. In response, Fatbird repeatedly acknowledged that it was in breach of the Agreement and that it owed Cora the amounts due under the Agreement. 41. Fatbird, however, has now repudiated its obligations to make future quarterly payments due under the Agreement. 42. As a result of Fatbird s repudiation of the Agreement, Cora has been damaged in an amount to be determined at trial, believed to be no less than $400,000 plus interest accrued and attorneys fees, costs and expenses expended in connection with this action. 43. In addition to the foregoing, Cora has been further damaged in an amount to be determined at trial, which is equal to her pro rata share of distributions owed to the members of FRG and F1. THIRD CAUSE OF ACTION (Unauthorized Use of Name and Likeness, N.Y. Civil Rights Law 51 Against Fatbird) 44. Cora repeats, reiterates, and re-alleges each and every allegation as contained in the above paragraphs with the same force and effect as if fully set forth herein. 45. By letter dated [date], Cora revoked her authorization of Fatbird s use of Cora s name and likeness to promote the Fatbird brand and Fatbird Restaurant. Page 6

7 46. Despite Cora s written revocation of authorization to use her name and likeness, Fatbird continues to publish and distribute advertising, marketing and other promotions of the Fatbird brand and Fatbird Restaurant, using Cora s name and likeness. 47. Fatbird has used and continues to use Cora s name and picture in the State of New York and elsewhere for advertising and trade purposes without Cora s written or oral consent. 48. Fatbird, unless restrained from so doing by the order and judgment of this Court, intends to continue the unauthorized use of Cora s name and likeness for advertising and trade purposes in the State of New York and elsewhere without Cora s consent, to the irreparable damage of Cora, her brand, good will and reputation. WHEREFORE, Plaintiffs demands the judgment as follows: a. On Cora s First and Second Causes of Action, awarding a judgment in favor of Cora and against Fatbird in an amount to be determined at trial, including actual and consequential damages, together with interest accrued and attorneys fees, costs and expenses; b. On Cora s Third Cause of Action, awarding a judgment in favor of Cora and against Fatbird in an amount to be determined at trial together with prejudgment interest and the costs and expenses of this action, and entering an Order that the Defendants and their officers, employees, attorneys, agents and representatives, be preliminarily and permanently enjoined and restrained from the further use of Cora s name and likeness; and c. Awarding any such other and further relief as the Court may deem just and proper. Dated: New York, New York October, 2017 Darren Oved, Esq. Edward C. Wipper, Esq. Michael Kwon, Esq. OVED & OVED LLP Attorneys for Plaintiffs 401 Greenwich Street New York, New York Tel: Page 7