FILED: NEW YORK COUNTY CLERK 07:35 PM NYSCEF DOC. NO. 10 RECEIVED NYSCEF: EXHIBIT A
(FILED: NEW YORK COUNTY CLERK 02/06/2017 02:23 07:35 PM) SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK XLON BEAUTY, LLC, Index No. 16-656771 Plaintiff, AMENDED COMPLAINT v. DORIS DAY, Defendant. Plaintiff xlon Beauty, LLC ( Plaintiff ), ("Plaintiff'), brings suit against defendant Doris Day ("Defendant"), ( Defendant ), and allege upon information and belief, except for the allegations that are made on personal knowledge, as follows: 1. This complaint seeks relief for Plaintiff against Defendant for fraudulent inducement, fraud, breach of contract, breach of the duties of good faith and fair dealing, and unjust enrichment. 2. In summary, Defendant promised to use her fame and celebrity connections to advertise Plaintiff s Plaintiff's main product, Cura Perfect, and induced Plaintiff and its investors to invest substantial funds into the promotion of Cura Perfect. Defendant believed in the product so much that she offered to buy the company, and falsely stated that Defendant had personally invented Cura Perfect. However, Defendant utterly failed to follow through on her promises to Plaintiff, causing damage to Plaintiff. 3. Plaintiff is a New York Limited Liability Company with offices at 48 W. 38th Street, New York, New York 10018. 4. Defendant is, on information and belief, an individual whose address is 10 East 70th Street, New York, NY 10021. 1 of 9
(FILED: NEW YORK COUNTY CLERK 02/06/2017 02:23 07:35 PM) 5. On August 26, 2015, at a meeting between Plaintiff s Plaintiffs representatives, Sy Garfmkle Garfinkle ( Garfinkle ) ("Garfmkle") and Jason Weinberg ( Weinberg ), ("Weinberg"), and Defendant, held at Defendant's Defendant s office, Defendant represented to Garfinkle and Weinberg that she was a Board Certified dermatologist with business connections she could use to promote Plaintiff's Plaintiff s anti-aging product Cura Perfect (the "Product") Product ) through provision of a variety of publicity, including but not limited to introductions to Dr. Oz and Christie Brinkley, and specifically that she could promote the Product on Good Morning America, Dr. Oz, The Talk, and the View, and television shows hosted by Wendy Williams, Ellen DeGeneres, and arrange to have the Product advertised in Allure magazine. 6. Based on Defendants Defendants' representations, after the meeting in August of 2015, the parties entered into an initial Endorsement Agreement (the 3% "3% Agreement ) Agreement") wherein Defendant granted Plaintiff the right and license to use Defendant s Defendant's name, nickname, initials, autograph, facsimile signature, photograph, video, likeness and/or endorsement (the "Property") Property ) in connection with the advertisement, promotion, and sale of its Product, in exchange for Plaintiff s Plaintiffs payment to Defendant of royalties equal to 3% of Adjusted "Adjusted Gross Revenues. Revenues." 7. Despite signing the 3% Agreement, Defendant did nothing to promote the Product. Rather, she requested a greater royalty percentage before she would perform her duties under the 3% Agreement. 8. At Defendant's Defendant s request, on or about August 8, 2016, the parties entered into a revised Endorsement Agreement (the 7% "7% Agreement, Agreement," and together with the 3% Agreement, the Agreements ) "Agreements") wherein Defendant granted Plaintiff the right and license to use the Property in connection with the advertisement, promotion, and sale of the 2 2 of 9
(FILED: NEW YORK COUNTY CLERK 02/06/2017 02:23 07:35 PM) Product, in exchange for Plaintiff s Plaintiff's payment to Defendant of royalties equal to 7% of "Adjusted Adjusted Gross Revenues. Revenues." 9. Aside from a change in the percentage of Adjusted "Adjusted Gross Revenues Revenues" to be paid by Plaintiff to Defendant, the Agreements are identical. 10. Despite her repeated promises made before and in both the 3% Agreement and the 7% Agreement, Defendant did not use her connections to garner publicity for the Product. She entirely failed in her promises to take steps to obtain such publicity. To be specific, she did not make introductions to Dr. Oz and Christie Brinkley, and did not promote the Product on Good Morning America, Dr. Oz, The Talk, and the View, or on television shows hosted by Wendy Williams, Ellen DeGeneres, or arrange to have the Product advertised in Allure magazine. In short, she did nothing that she promised. 11. Instead, she attempted to keep the Product for herself. She attempted to purchase Plaintiff, initially offering a purchase price of $500,000 and later increasing her offer to $750,000. 12. On or around July 19, 2016, Plaintiff, in compliance with the Agreements Agreements' requirement that Plaintiff provide Product to Defendant as she may require in performance of her obligations, provided Defendant with 50 Cura Perfect Light boxes, 50 Cura Perfect Medium boxes, and 10 Cura Perfect Dark boxes (collectively, Samples ). "Samples"). 13. Defendant has failed to use the Samples to perform her obligations or to return the Samples to Plaintiff; instead, on information and belief, Defendant sold the Samples for her personal gain. 3 3 of 9
(FILED: NEW YORK COUNTY CLERK 02/06/2017 02:23 07:35 PM) 14. As an example of Defendants Defendants' failure of duty, on or around September 29, 2016, Plaintiff's Plaintiff s representative requested in writing that Defendant appear for a video promotion on November 1, 2016. Defendant did not make herself available. 15. Rather, on the same date, Defendant immediately wrote back and purported to terminate the Agreements. 16. However, Defendant failed to comply with the terms of the Agreements for termination, and therefore the Agreements remain in effect. Nonetheless, Defendant has failed to fulfill her promises to advertise the Product. 17. Plaintiffs now claim fraudulent inducement, fraud, breach of contract, breach of the duties of good faith and fair dealing, and unjust enrichment against Defendant. FIRST CLAIM FOR RELIEF FRAUDULENT INDUCEMENT 18. Plaintiff repeats and realleges the allegations of Paragraphs 1-17 as if set forth in full herein. 19. On August 26, 2015, at a meeting between Plaintiff s Plaintiffs representatives, Garfinkle and Weinberg, and Defendant, held at Defendant s Defendant's office, Defendant represented to Garfinkle and Weinberg that she was a Board Certified dermatologist with business connections she could use to promote Plaintiff s Plaintiff's Product through provision of a variety of publicity, including but not limited to her own radio show, introductions to Dr. Oz and Christie Brinkley, and specifically that she could promote the Product on Good Morning America, Dr. Oz, The Talk, and the View, and television shows hosted by Wendy Williams, Ellen DeGeneres, and arrange to have the Product promoted in Allure magazine. 4 4 of 9
FILED: NEW YORK COUNTY CLERK 02/06/2017 02:23 07:35 PM (FILED: NEW YORK COUNTY CLERK 02/06/2017 02:23 PM) 20. Defendant knew that her representations were false but made them to induce Plaintiff to enter into the 3% Agreement, and in fact she did not use her connections to benefit the Product or the Plaintiff in any way. 21. Defendant repeated her representations to Garfinkle and Weinberg prior to entry into the 7% Agreement, and likewise knew that they were false at that time, and in fact she did not use her connections to benefit the Product or the Plaintiff in any way. 22. Plaintiff entered into the Agreements in justifiable reliance on Defendant s Defendant's misrepresentations. 23. Plaintiff has been damaged by Defendant s Defendant's misrepresentations, as it would not have entered into the Agreements but for the misrepresentations. SECOND CLAIM FOR RELIEF FRAUD 24. Plaintiff repeats and realleges the allegations of Paragraphs 1-23 as if set forth in full herein. 25. On August 26, 2015, at a meeting between Plaintiff s Plaintiffs representatives, Garfinkle and Weinberg, and Defendant, held at Defendant s Defendant's office, Defendant represented to Garfinkle and Weinberg that she was a Board Certified dermatologist with business connections she could use to promote Plaintiff s Plaintiff's Product through provision of a variety of publicity, including but not limited to introductions to Dr. Oz and Christie Brinkley, and specifically that she could promote the Product on Good Morning America, Dr. Oz, The Talk, and the View, and television shows hosted by Wendy Williams, Ellen DeGeneres, and arrange to have the Product promoted in Allure magazine. 26. At a subsequent meeting in Plaintiff s Plaintiff's offices, which included Garfinkle and Weinberg, Defendant repeated the same representations regarding advertising. 5 5 of 9
FILED: NEW YORK COUNTY CLERK 02/06/2017 02:23 07:35 PM (FILED: NEW YORK COUNTY CLERK 02/06/2017 02:23 PM) 27. Defendant knew that her representations were false but made them to induce reliance on thereon, and in fact she did not use her connections to benefit the Product or the Plaintiff in any way. 28. Based on Defendant s Defendant's misrepresentations, Plaintiff expended in excess of $145,000 for promotion of the Product, including marketing and inventory. 29. Plaintiff has been damaged by Defendant s Defendant's misrepresentations, as it would not have made these expenses but for Defendant s Defendant's misrepresentations. 30. The Product is substantially similar to another product in the industry, known as Instantly Ageless. 31. Instantly Ageless is, on information and belief, manufactured by a Florida LLC known as Jeunesse Global Holdings, LLC ( JGH ) ("JGH") either directly or through one or more subsidiaries. 32. On information and belief, JGH had had profits in the millions of dollars from Instantly Ageless. 33. On information and belief, had Defendant fulfilled her promises to Plaintiff, Plaintiff's Plaintiff s profits from the Product would have been similar to or have exceeded JGH s JGH's profits on the sale of Instantly Ageless. 34. Plaintiff has therefore been damaged in excess of $145,000 for investments that it would not have made but for Defendant s Defendant's misrepresentations, and further damaged in the amount of lost profits, in the millions of dollars, which it would have made but for Defendant's Defendant s misrepresentations. THIRD CLAIM FOR RELIEF BREACH OF CONTRACT 6 6 of 9
(FILED: NEW YORK COUNTY CLERK 02/06/2017 02:23 07:35 PM) 35. Plaintiff repeats and realleges the allegations of Paragraphs 1-34 as if set forth in full herein. 36. The 7% Agreement requires Defendant to make herself available for photographs, speaking engagements and/or commercials in video format for advertising and promoting the Product, if requested to do so by Plaintiff. 37. Defendant failed to do so on multiple occasions. 38. For example, on September 29, 2016, Plaintiff requested in writing that Defendant appear for a video promotion on November 1, 2016. Defendant did not make herself available. 39. Defendant has done no promotional appearances, with the exception of a single video. 40. Plaintiff suffers damages attributable to Defendant s Defendant's breach of the 7% Agreement. FOURTH CLAIM FOR RELIEF BREACH OF DUTIES OF GOOD FAITH AND FAIR DEALING 41. Plaintiff repeats and realleges the allegations of Paragraphs 1-40 as if set forth in full herein. 42. As a party to the Agreements, Defendant owes Plaintiff duties of good faith and fair dealing. 43. Defendant was engaged by Plaintiffs to promote the Product and to use her business connections to garner publicity for the Product. 44. Defendant's Defendant s failure to promote the Product through her business contacts acted to deprive Plaintiff of the right to receive the benefits under the Agreements. 45. Defendant's Defendant s failure to promote the Product was an effort to prevent the Plaintiff from being successful, so that she could buy Plaintiff. 7 7 of 9
(FILED: NEW YORK COUNTY CLERK 02/06/2017 02:23 07:35 PM) 46. Defendant attempted to purchase Plaintiff, initially offering to reimburse the Plaintiff for all expenses to date (up to $350,000), and then for a purchase price of $500,000 and later increasing her offer to $750,000. Plaintiff refused the offers. 47. Plaintiff suffers damages attributable to Defendant s Defendant's breach of the duties of good faith and fair dealing. FIFTH CLAIM FOR RELIEF UNJUST ENRICHMENT 48. Plaintiff repeats and realleges the allegations of Paragraphs 1-47 as if set forth in full herein. 49. Defendant was enriched by Plaintiff s Plaintiff's provision of Samples, to the extent that Defendant sold the Samples for her personal gain. 50. Defendants' Defendants enrichment was at Plaintiff's Plaintiff s expense, as Plaintiff provided the Samples to Defendant to use in the performance of her obligations, but Defendant neither performed her obligations nor returned the Samples to Plaintiff. 51. It is unjust for Defendants to retain the value of the Samples without compensating Plaintiff. 52. Plaintiff claims damages in an amount equal to the amount Defendant received for the sale of the Product. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for judgment as follows: a. Plaintiff's Plaintiff s actual damages in an amount to be proved at trial, but totaling in the millions of dollars; b. Pre-judgment and post-judgment interest; 8 8 of 9
FILED: NEW YORK COUNTY CLERK 02/06/2017 02:23 07:35 PM (FILED: NEW YORK COUNTY CLERK 02/06/2017 02:23 PM) c. Plaintiff's Plaintiff s costs of this action; and d. Such other and further relief as this Court deems just and proper. Dated: February 6, 2017 BOWLES LIBERMAN & NEWMAN LLP David K. Bowles 54 W. 218t st Street, Suite 1007 New York, New York 10010 T: (212) 390-8842 F: (866) 844-8305 E: dbowles@blnlaw.com 9 9 of 9