FILED: NEW YORK COUNTY CLERK 05/15/2015 04:39 PM INDEX NO. 155631/2015 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/15/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------x RESORB NETWORKS, INC.; ROBERT J. IANUALE Plaintiffs, SUMMONS Index No. - against - Date filed: YouNow.Com; YouNow Inc.; BNOW, INC.; ADI SIDEMAN; and JOHN/JANE DOES 1-3 Defendants. ---------------------------------------------------------------------x To the Person(s) Named as Defendant(s) above: PLEASE TAKE NOTICE THAT YOU ARE SUMMONED to answer the complaint of the plaintiff(s) herein and to serve a copy of your answer on the plaintiff(s) at the address indicated below within 20 days after service of this Summons (not counting the day of service itself), or within 30 days after service is complete if the Summons is not delivered personally to you within the State of New York. YOU ARE HEREBY NOTIFIED THAT should you fail to answer, a judgment will be entered against you by default for the relief demanded in the complaint. Dated: MAY 15, 2015 Robert J. Ianuale, CEO RESORB NETWORKS, INC. 52 Broad St, Suite 3 Keyport, NJ 07735 (732) 264-3084 Defendant(s) Addresses: YouNow.Com; 25 W 36 th St, 11 th FL, New York NY 10018. YouNow Inc.; 25 W 36 th St, 5 th FL, New York NY 10018. BNOW, INC.; 1485 5 th Avenue, #25D, New York, NY 10035. ADI SIDEMAN; 25 W 36 th St, 11 th FL, New York NY 10018. JOHN/JANE DOES 1-3; 25 W 36 th St, 11 th FL, New York NY 10018.
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------x RESORB NETWORKS, INC.; ROBERT J. IANUALE Plaintiffs, Index No. - against - Date filed: YouNow.Com; YouNow Inc.; BNOW, INC.; ADI SIDEMAN; and JOHN/JANE DOES 1-3 COMPLAINT Defendants. ---------------------------------------------------------------------x TO THE SUPREME COURT OF THE STATE OF NEW YORK The complaint of Plaintiffs, RESORB NETWORKS, INC. ( Plaintiff #1 ) and Robert J. Ianuale ( Plaintiff #2 ), respectfully show and allege as follows: PRELIMINARY STATEMENT 1. This is a suit against YouNow.Com, YouNow, Inc., BNOW, INC. and its CEO, Adi Sideman, with regard to making false and defamatory statements and taking defamatory action against Resorb Networks, Inc. and its CEO, Robert J. Ianuale, including Resorb Networks, Inc. s federally registered trademarks, brand, trade name, good will, and reputation. JURISDICTION AND VENUE 2. This Court has personal jurisdiction over Defendants because they reside in and do business in the State and County of New York, and because this action arises out of conduct that took place in the State and County of New York. 3. Venue is proper in this Court because Plaintiffs and Defendants reside in the County of New York and because a substantial part of the events giving rise to this action occurred in the County of New York.
THE PARTIES 4. Plaintiff #1, RESORB NETWORKS, INC., a New York Corporation, has a principal place of business located at 52 Broad St., Suite 3, Keyport, NJ 07735. 5. Plaintiff #2, Robert J. Ianuale, CEO of RESORB NETWORKS, INC., has a residence or principal place of business located at 52 Broad St, Suite 3, Keyport NJ 07735. 6. Defendant, YouNow.Com, has a principal place of business at 25 W 36 th St, 11 th FL, New York NY 10018. 7. Defendant, YouNow Inc., has a principal place of business at 25 W 36 th St, 5 th FL, New York, NY 10018. 8. Defendant, BNOW, Inc., has a principal place of business at 1485 5 th Avenue, #25D, New York, NY 10035. 9. Defendant, Adi Sideman, CEO of BNOW, Inc., has a residence or place of business at 25 W 36 th St, 11 th FL, New York NY 10018. 10. Defendant(s), John/Jane Does 1-3, is/are unknown individual or individuals who work(s) for or is/are employed by YouNow.com, YouNow Inc. and/or BNOW Inc. ALLEGATIONS APPLICABLE TO ALL CLAIMS 11. This action is for declaratory, injunctive and equitable relief, as well as for monetary damages, to redress repeated acts of defamation, trade defamation, destruction to personal and business goodwill and reputation, and libel per se committed by Defendants against Plaintiffs. 12. Defendants unlawful conduct was knowing, malicious, willful and wanton and/or showed a reckless disregard for Plaintiffs rights, which has caused, and continues to cause, Plaintiff #2 disgrace, humiliation and shame throughout the world, permanent
harm to his professional and personal reputations, and severe mental anguish and emotional distress. 13. Plaintiffs have acquired both federal and common law trademark rights to FISTPUMP brand, persona and name (collectively the Trademark ). Registration No: 4,031,644, and the Trademark has become well known online in the video broadcasting and live streaming communities, as well as various offline markets. 14. Plaintiffs adopted and used the Trademark before the acts complained of herein by Defendants. More particularly, Plaintiffs used the Trademark at least as early as January 2011, and continue to use it in commerce. 15. The Trademark is inherently distinctive. Through use and promotion thereof, the Trademark has become an intrinsic and essential part of the valuable goodwill, business, trade name, reputation and property of Plaintiffs (the Brand Name ). 16. Defendants unlawful acts, unless restrained, are likely to continue diverting monies from Plaintiffs and causing irreparable harm. Plaintiffs have no adequate remedy at law because injury to reputation and goodwill cannot be quantified and such injury cannot be compensated solely by monetary awards. 17. Defendants unlawful acts alleged herein have been willful, deliberate, intentional, malicious, and in bad faith. 18. Defendants are engaged in the business of offering a live streaming video platform (the Service ). Plaintiffs had been using the Service since July, 2014, to promote the Brand Name, and had been working with Defendants as a partner (the Partnership ), a contractual obligation, which included monetization and profit sharing from individuals paying (herein referred as Tips ) to Plaintiff #2 because they respected and trusted the Brand Name and reputation of Plaintiff #2, and consistently watched Plaintiff #2 via the Service (the Broadcast ) on a daily basis, since January 19, 2015.
19. During the course of Plaintiffs use of the Service, Plaintiffs promoted the Brand Name with nearly 57,000 individuals (the Fans ) who supported and liked Plaintiff #2 s reputation and the Brand Name. 20. Plaintiffs have made Defendants considerable revenue during the course of their Partnership, based on the Brand Name and reputation of Plaintiff #2, estimated to be an amount of more than $100,000.00 during the course of the three (3) months from February 2015 to May 2015. 21. On May 3, 2015 on or about 6:00 PM EST, Plaintiffs were using the Service when an unexpected argument arose between Plaintiff #2 and his girlfriend during a four (4) hour Broadcast, while nearly 900 Fans were watching. 22. Plaintiff #2 s argument with his girlfriend was not physical in nature, and the Broadcast was ended one (1) minute into the argument by an employee of Defendants (the Moderator ). Plaintiffs restarted the broadcast ten (10) seconds later, and continued to promote the Brand Name as regularly scheduled with Plaintiff #2 s reputation still intact. 23. Plaintiff #2 continued with the Broadcast several more times, as regularly scheduled using the Service, from May 3, 2015 through May 5, 2015 and continued to monetize on using the Brand Name without incident, and with Plaintiff #2 s reputation in good standing. 24. On May 5, 2015 at approximately 5:28 PM EST, Defendants wrongfully deactivated Plaintiffs access to the Service and made statements to the effect that Plaintiff #2 had verbally and physically abused a woman on his broadcast. Defendants alleged that Plaintiff #2 had engaged in this felonious activity, against Defendants Community Standards, in order to terminate Plaintiffs access to the Service. A true and correct copy of the defamatory writing emailed by Defendants is attached to this petition as Exhibit A and incorporated herein by reference.
25. Defendants then began to issue defamatory statements and actions to the Fans, preventing the Fans from discussing the topic matter with risk of being suspended from the Service. Defendants actually began to harm the Brand Name, as well as the reputation and good will of Plaintiff #2, by suspending the Fans. A correct and true copy of this has been attached to this petition as Exhibit B and incorporated herein by reference. 26. The Fans, who were now upset regarding Defendants negligent decision to deactivate Plaintiffs account, began to broadcast and voice their opinions in support of Plaintiffs. Defendants then began to disable the Fans broadcasts and began disabling the associated words describing a user s broadcast content ( Hashtags ), if they contained the Trademark, (i.e., FISTPUMP). 27. Defendants willfully and maliciously targeted Plaintiffs by disabling the Hashtags containing the Trademark, thereby preventing the Fans from supporting Plaintiffs and protesting the defamatory actions of Defendants. Defendants intended their actions and statements to cause financial loss to Plaintiff #2, or they should have reasonably recognized that their defamatory actions would result in financial loss. A correct and true copy of this has been attached to this petition as Exhibit C and incorporated herein by reference. 28. The truth of the underlying facts would have been relatively easy to confirm, but Defendants failed and refused to confirm or attempt to confirm them. Plaintiffs supplied Defendants with copies of the police incident report, attached to this petition as Exhibit D and incorporated herein by reference, which clearly stated: RECEIVED CALL STATING THAT CALLER JUST WATCHED A DOMESTIC VIOLENCE ON *YOUNOW* OF ROBERT IANUALE AT HIS APARTMENT HITTING HIS GIRLFRIEND. DISP PATROLS, SGT AUMACK ADVISES THAT ALL IS IN ORDER, STORY IS FABRICATED. PATROLS BACK IN SERVICE.
29. Rather than confirm these facts and adhere to the truth, Defendants published false defamatory material via email and deactivated Plaintiffs account, with Defendants actions causing serious harm to the Brand Name and the reputation of Plaintiff #2. 30. Plaintiff #2 s girlfriend, which Defendants had accused Plaintiff #2 of verbally and physically abusing then broadcasted live on her own account for over four (4) hours, with several hundred people watching, trying to explain that the statements made by Defendants were false and without fact, but Defendants still did not restore the account of Plaintiffs. 31. Plaintiffs repeatedly advised and informed Defendants of Defendants false and defamatory statements and action pursuant thereto, citing falsity, inaccuracies, apparent bias and defamation. Plaintiffs demanded retractions, and requested that Defendants discontinue their course of conduct. Yet, Defendants persisted in their untruthful and defamatory actions. 32. The defamatory statements by Defendants constitute statutory libel in that they tend to injure the reputation of Plaintiffs and expose Plaintiffs to public hatred, contempt or ridicule, tend to expose Plaintiffs to financial injury, and tend to impeach Plaintiffs honesty, integrity, virtue, and reputation further exposing Plaintiffs to public hatred and ridicule. 33. Prior to Defendants defamatory remarks, Plaintiffs enjoyed excellent reputations. 34. As a direct and proximate result of Defendants false and defamatory statements, Plaintiff #2 has endured shame, embarrassment, humiliation, and mental pain and anguish. Additionally, Plaintiff #2 has and will in the future be seriously injured in his business reputation, good name, and standing in the community, and will be exposed to the hatred, contempt, and ridicule of the public in general as well as of his business associates, clients, friends, and relatives. Consequently, Plaintiffs seek actual damages in a sum within the jurisdictional limits of this Court.
35. Furthermore, Plaintiffs are entitled to exemplary damages from Defendants because Defendants acted with the malice required to support an award of exemplary damages. Defendants acted with a specific intent to cause injury to Plaintiffs and/or conscious indifference to the rights, safety, or welfare of Plaintiffs with actual, subjective awareness that its conduct involved an extreme degree of risk of harm to Plaintiff #2. FIRST CAUSE OF ACTION Defamation 36. Plaintiffs repeat and reallege each and every allegation above as if fully set forth herein. 37. Defendants published false statements about Plaintiffs, and by acting in such a manner to discontinue Plaintiffs access to the Service, furthered the defamation with knowledge of, or reckless disregard as to, the falsity, and/or did so negligently or in a grossly negligent and wanton manner, which caused actual injury to Plaintiffs and prejudiced Plaintiffs in the eyes of a substantial and respectable part of the community. 38. Defendants statements concerning Plaintiffs were false and defamatory of Plaintiffs. 39. Defendants statements were defamatory per se because they imputed conduct and characteristics that are undesirable, illegal and that have been taken to mean that Plaintiff #2 is an undesirable person. Defendants statements suggest lack of honesty in Plaintiff #2, prejudice Plaintiff #2 in his trade or business, and tend to deter, and actually deterred, others from working with Plaintiff #2. 40. Defendants published said false and defamatory statements to employees and to others, despite their knowledge that the statements were false, or with reckless disregard as to their truth.
41. Plaintiffs are entitled to the damages and other relief requested herein on the basis of Plaintiffs being considered as public figures. 42. Defendants, intentionally and without justification, interfered with Plaintiff #2, and attempted to portray Plaintiff #2 as undesirable and to encourage others not to do business with Plaintiff #2. 43. As a result of Defendants actions, statements and conduct as aforesaid, Plaintiff #2 has suffered significant damage to his reputation. Plaintiffs have also suffered economic damages as a result of Defendants actions, in an amount not yet determined but to be determined, the exact amount to be determined at trial. 44. Defendants false and defamatory statements and actions constituted both defamation per se, and defamation causing damage to Plaintiffs business affairs and reputation, in the amount of not less than $1,000,000, plus interest, costs and fees, the exact amount to be determined at trial. SECOND CAUSE OF ACTION Commercial Disparagement 45. Plaintiffs repeat and reallege each and every allegation above as if fully set forth herein. 46. Plaintiff #2 is CEO of Resorb Networks, Inc., currently located at 52 Broad St, Suite 3, Keyport, NJ 07735. 47. Plaintiff #2 has been the CEO since March, 1999. 48. Resorb Networks, Inc. is an S-Class Corporation, with Plaintiff #2 as the sole shareholder. 49. Defendants published and acted on defamatory statements which implied criminal conduct towards Plaintiff #2 that never occurred. 50. Defendants actions were done with actual malice towards Plaintiff #2, and therefore were defamatory.
51. As a businessman and entertainer, Plaintiff #2 s reputation in the community is essential to cultivating client and Fan relationships. 52. A false implication of criminality is damaging to the reputation of Plaintiff #2. 53. Defendants intended their actions and statements to cause financial loss, or they should have reasonably recognized that their defamatory actions would result in financial loss for Plaintiff #2. 54. Plaintiff #2 did, in fact, suffer a financial loss as a result of the Defendants actions. 55. Defendants knew or should have known that their statements were false and in reckless disregard of their truth or falsity. THIRD CAUSE OF ACTION Trade Libel Pursuant to 15 U.S.C 1125(a) 56. Plaintiffs repeat and reallege each and every allegation above as if fully set forth herein. 57. Defendants have made, or knowingly conspired and agreed to be made, false or misleading statements to Plaintiffs prospective or existing customers. 58. The false or misleading statements made by Defendants were material, in that they misrepresented the business, background, quality and overall validity of Plaintiffs enterprise and services. 59. Defendants made these false or misleading statements and actions in interstate commerce, in connection with goods or services. 60. As a proximate result of the foregoing acts, Defendants have caused actual harm and are liable to Plaintiffs for damages in an amount to be proved at trial. 61. Defendants have engaged in conduct of malicious, oppressive, or fraudulent nature, thereby entitling Plaintiffs to an award of punitive damages.
62. As a direct and proximate result of the actions, conduct, and practices of Defendants as alleged above, Plaintiffs have suffered, and will continue to suffer, damages and irreparable harm. 63. Plaintiffs have no adequate remedy at law. FOURTH CAUSE OF ACTION Breach of Contract 64. Plaintiffs repeat and reallege each and every allegation above as if fully set forth herein. 65. The Partnership agreement was supported by valuable consideration. 66. Defendants intentionally breached the Partnership agreement. 67. As a result of the breach, Plaintiffs incurred damages, which include but are not limited to pecuniary loss and the loss of opportunities to make substantial profits from the Partnership Agreement. 68. Accordingly, Defendants are liable for breach of contract. PRAYER WHEREFORE, Plaintiffs respectfully request judgments as follows: 1. That the Court enter a judgment against the Defendants that they have: a. Committed and are committing acts of trade libel in violation of 15 U.S.C 1125(a); b. Committed and are committing acts of defamation in violation of New York common law; c. Committed and are committing acts of commercial disparagement in violation of New York common law; 2. That the Court order Defendants to pay Plaintiffs damages as follows:
a. Plaintiffs damages (composed of Plaintiffs actual damages and Defendants profits) in an amount to be determined according to proof pursuant to 15 U.S.C 1125(a) for Defendants willful false statements, actions and trade libel; b. Plaintiffs general and specific compensatory damages and punitive damages for Defendants willful, wanton and extreme defamation of Plaintiffs and Defendants willful, wanton and extreme interference with Plaintiffs prospective economic advantages. c. Plaintiffs damages for injury to reputation, in an amount of approximately $10,000,000, the exact amount to be determined at trial; d. Plaintiffs actual, special, consequential and punitive damages on each of these claims, in an amount in excess of the jurisdiction of the lower courts, the exact amount to be determined at trial; e. Plaintiffs additional compensation and liquidated damages; f. Plaintiffs costs and expenses in this action, including attorney s fees; g. Interest, including prejudgment interest, on the forgoing sums. 3. That the Court grant to Plaintiff such additional relief as is just and proper. Dated: May 20, 2015 New York, New York Plaintiffs By: Robert J. Ianuale, CEO RESORB NETWORKS, INC. 52 Broad St, Suite 3 Keyport, NJ 07735 (732) 264-3084 (telephone)