FILED: NEW YORK COUNTY CLERK 08/02/2016 11/18/2016 11:27 06:12 PM INDEX NO. 654066/2016 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/02/2016 11/18/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------x FRANK FIDILIO, Index No.: Plaintiff, - against - Summons HOOSICK FALLS PRODUCTIONS INC., Date Index No. Purchased: NEW 38TH FLOOR PRODUCTIONS INC. August 2, 2016 and VIACOM INTERNATIONAL INC., Defendants. -------------------------------------------------------------------x TO THE ABOVE-NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiff's attorney within 20 days after the service of this summons, exclusive of the day of service (or within 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 will be taken against you by default for the relief demanded in the complaint. The basis of venue is where New 38 th Floor Productions Inc. and Viacom International Inc. s offices are located which is 1515 Broadway, in New York, New York. Dated: New York, New York August 1, 2016 KERR, LLP /s/ William B. Kerr 44 Wall Street, 12th Floor New York, New York 10005 (212) 423-0305 Attorneys for Plaintiff Frank Fidilio 1 of 2
To: Hoosick Falls Productions Inc. 12021 Wilshire Boulevard, Suite 417 Los Angeles, California 90025 New 38 th Floor Productions Inc. 1515 Broadway New York, New York 10003 Viacom International Inc. 1515 Broadway New York, New York 10003 2 of 2
FILED: NEW YORK COUNTY CLERK 08/02/2016 11:27 PM INDEX NO. 654066/2016 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/02/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------x FRANK FIDILIO, Index No.: Plaintiff, - against - COMPLAINT HOOSICK FALLS PRODUCTIONS INC., NEW 38TH FLOOR PRODUCTIONS INC. and VIACOM INTERNATIONAL INC., A Trial by Jury is Demanded Defendants. -------------------------------------------------------------------x Plaintiff FRANK FIDILIO ( Frankie or Plaintiff ), by and through his attorneys, KERR, LLP, as and for his Complaint against Defendants HOOSICK FALLS PRODUCTIONS INC. ( Hoosick Falls ), NEW 38TH FLOOR PRODUCTIONS INC. ( New 38 th Floor ) and VIACOM INTERNATIONAL INC. ( Viacom International, together with Hoosick Falls and New 38 th Floor, the Defendants ) alleges as follows: PARTIES 1. Frankie is an individual who resides in the City of Brooklyn, County of Kings, State of New York. 2. Upon information and belief, Defendant Hoosick Falls is a corporation organized and existing by virtue of the laws of the State of California, which at all relevant times maintained its principal place of business at 1633 Stanford Street, Santa Monica, California and/or 12021 Wilshire Boulevard, Suite 417, Los Angeles, California. 3. Upon information and belief, Defendant New 38 th Floor is a corporation organized and existing by virtue of the laws of the State of Delaware, which at all relevant times 1 1 of 12
maintained its principal place of business at 1515 Broadway, New York, New York. Upon information and belief, New 38 th Floor is a wholly-owned subsidiary of Viacom Inc., a corporation organized and existing by virtue of the laws of the State of Delaware and which at all times also maintained its principal place of business at 1515 Broadway, New York, New York. 4. Upon information and belief, Defendant Viacom International is a corporation organized and existing by virtue of the laws of the State of Delaware, which at all relevant times maintained its principal place of business at 1515 Broadway, New York, New York. Upon information and belief, Viacom International is a wholly-owned subsidiary of Viacom Inc. and sister-company and affiliate of New 38 th Floor. 5. Frankie is the creator and producer of Scrappers, a reality TV show ( Scrappers ) that aired during the Summer and Fall of 2010 on Spike TV, MTV2 and other cable channels owned by Viacom International and its affiliates. 6. Defendant Hoosick Falls is a production company which produces content for television and other media. Hoosick Falls was hired by Viacom International to produce, and is credited as Executive Producer and Showrunner of, Scrappers. 7. New 38 th Floor is a production and distribution company which distributes Scrappers on behalf its parent company Viacom Inc. and its subsidiaries, including Viacom International. 8. Viacom International is an entertainment content provider, which among its several divisions, operates the MTV Networks, which includes the Spike TV business unit and other units, including MTV2. JURISDICTION 9. The Court has personal jurisdiction over Hoosick Falls pursuant to CPLR 301 2 2 of 12
and 302 (a)(1) because Hoosick Falls does business, transacts business and contracts to supply goods and services in the State of New York. 10. The Court has personal jurisdiction over New 38 th Floor because it is a New York domiciliary. 11. The Court has personal jurisdiction over Viacom International because it is a New York domiciliary. 12. Venue is proper in this County because both New 38 th Floor and Viacom International are residents of New York County. FACTUAL BACKGROUND 13. Frankie is the creator of Scrappers, a TV show which featured scrap metal crews and their commercial ventures and adventures, driving around New York City collecting scrap metal predominately in Brooklyn, New York. 14. Throughout 2008 and early 2009, Frankie, along with his then-attorney Michael Weiss, pitched the show that culminated in Scrappers to several networks and content providers, including Viacom International. 15. Frankie s pitch included a pilot that he created as sole writer and producer. 16. Viacom International became interested in Scrappers, but contracted with Hoosick Falls to produce Scrappers on behalf of Spike TV, a unit of Viacom International s MTV Networks Division pursuant to certain agreements with Viacom International and New 38 th Floor and/or their affiliates, including that certain Production Services Agreement with New 38 th Floor dated April 1, 2009 ( Production Services Agreement ). 17. In turn, pursuant to a certain Producer Agreement dated August 3, 2009 by and between Frankie and Hoosick Falls ( Producer Agreement ), Hoosick Falls subcontracted with 3 3 of 12
Frankie. Frankie agreed to be a non-writing producer of Scrappers and granted Hoosick Falls certain intellectual property rights arising from his creation thereof. (A true and correct copy of the Producer Agreement is attached hereto as Exhibit 1.) 18. Pursuant to the Producer Agreement, Frankie was to be paid $4,500 for the pilot and each series episode. 19. Section 5 of the Producer Agreement sets forth certain additional Contingent Compensation payable to Frankie in the amount of 14.78125% of certain compensation paid to Hoosick Falls pursuant to its Production Services Agreement with New 38 th Floor ( Contingent Compensation ). 20. Scrappers aired during the Summer and Fall of 2010 on Spike TV and MTV2, and since that time, it has been licensed, relicensed and/or sold to other cable networks and digital media distribution companies, including Amazon.com and itunes, for domestic and international distribution and sale. 21. Upon information and belief, Scrappers has been more profitable to New 38 th Floor and Viacom International than either has disclosed. 22. The Scrappers concept has also been recycled in various forms, including Auction Hunters which began to run on Spike TV in late 2010, featuring competing bands of participants bidding on storage units. 23. In 2013, Discovery Communications began airing the show Porter Ridge, an unscripted TV show about a family run junkyard. 24. In 2014, the unscripted TV show Scrappers began airing in the United Kingdom on BBC One and BBC Two, featuring a scrapyard owner and his wife, their family and employees and the trials and tribulations of each as they purchase and sell scrap metal. 4 4 of 12
25. In 2015, Discovery Communications Velocity premiered Junkyard Empire, an unscripted TV show about a salvage yard with accompanying used auto parts store. 26. Defendants New 38 th Floor and Viacom International have received significant revenues from Scrappers, yet have not provided full disclosure to Frankie in order to deny him his Contingent Compensation and other equitable compensation for the creation of Scrappers and his role in its production. 27. Upon information and belief, Defendants New 38 th Floor and Viacom International have booked revenue from advertising, distribution and licensing that they have not disclosed to Frankie and charged expenses of their affiliates against the limited revenue that they have disclosed. 28. Upon information and belief, revenue from advertising, distribution and licensing, including various intellectual property rights to Scrappers, including but not limited to, the concept, name and the show itself, was paid to Hoosick Falls outside of Contingent Compensation in order to reduce any payments ultimately due Frankie. 29. Upon information and belief, Defendant Hoosick Falls has received significant compensation from Scrappers, yet has failed to pay and/or has severely underpaid Frankie his Contingent Compensation and other equitable compensation for his creation of Scrappers and his role in its production. 30. Upon information and belief, Defendant Hoosick Falls has accepted payment from Defendants New 38 th Floor and Viacom International that they did not classify as, but which qualified as, Contingent Compensation and otherwise failed to pay and/or severely underpaid Frankie his Contingent Compensation and other equitable compensation. 31. Pursuant to Section 5 of the Producer Agreement, Defendant Hoosick Falls agreed 5 5 of 12
to provide Plaintiff the right to audit its books and records, including an accounting of all such compensation, upon due demand. 32. Upon information and belief, pursuant to the other agreements between Defendants, including the Production Services Agreement, Defendants New 38 th Floor and Viacom International agreed to provide Defendant Hoosick Falls and/or Frankie vis a vis Defendant Hoosick Falls the right to audit their books and records, including an accounting of all revenues attributable to Scrappers. 33. By letter dated May 15, 2014, Plaintiff duly demanded an audit pursuant to the Production Agreement ( Demand ). 34. In response to the Demand, Defendant Hoosick Falls forwarded four summary Participation Statements that it had then-requested from Viacom Inc., covering only four post-air periods ( Audit Response ). These statements lacked any and all detail and did not contain any underlying documentation or information, including but not limited to, any receipts, payment records, or any of the agreements upon which such revenue and expenses allegedly accrued and was paid. 35. Specifically, by Participation Statement dated as of July 31, 2012, Viacom International declared a total participation due Hoosick Falls for the period ending March 31, 2012, in the amount of $105,831.29, based upon a 25% participation in gross revenues from international syndication of $500,000, less a distribution fee of 15% and distribution expenses of $1,648.86. 36. By Participation Statement dated as of November 27, 2012, Viacom International declared a total participation due Hoosick Falls for the period ending September 30, 2012, in the amount of $32.04, based upon a 15% participation in gross revenues from home video/download 6 6 of 12
to own of $5,720.16, less a distribution fee of 25% and distribution expenses of $4,076.50. 37. By Participation Statement dated as of June 17, 2013, Viacom International declared a total participation due Hoosick Falls for the period ending March 31, 2013, in the amount of $84.23, based upon a 15% participation in gross revenues from home video/download to own of $748.72, less a distribution fee of 25%. 38. By Participation Statement dated as of November 18, 2013, Viacom International declared a total participation due Hoosick Falls for the period ending September 30, 2013, in the amount of $80.61, based upon a 15% participation in gross revenues from home video/download to own of $716.53, less a distribution fee of 25%. 39. The Audit Response was woefully inadequate, and tantamount to an outright refusal of Plaintiff s Demand and denial of his contractually provided audit rights, and rendering further demand futile. To date, Defendants have sent no payments and no further statements despite the fact that such statements appear to be prepared, and participations paid, by Viacom on a semi-annual basis. 40. Upon information and belief, Defendant Hoosick Fall s Audit Response was woefully incomplete in order to conceal from disclosure all amounts paid to it and to avoid full disclosure of outstanding payments due Frankie. 41. As set forth above, Defendant Hoosick Valley materially breached the Producer Agreement and Defendants New 38 th Floor and Viacom International materially breached their agreements, including the Production Services Agreement, by failing to pay Frankie his Contingent Compensation and other compensation, refusing Frankie s Demand and denying him his audit rights. 7 7 of 12
AS AND FOR A FIRST CAUSE OF ACTION (Breach of Contract against Hoosick Falls) 42. Plaintiff repeats and reiterates each and every allegation set forth in paragraphs 1-41 as though set forth in full herein. 43. The Producer Agreement was executed by Frankie and Defendant Hoosick Valley and constitutes a binding contract. 44. At all times, Frankie fully performed and/or tendered performance of all of his obligations and duties owed under the Producer Agreement. 45. As set forth above, Defendant Hoosick Valley materially breached the Producer Agreement by failing to pay Frankie his Contingent Compensation, refusing Frankie s Demand and denying him his audit rights. 46. Based upon the foregoing, and as a direct and proximate cause thereof, Frankie has suffered damage as a result thereof, including the value of his Contingent Compensation, other compensation and consequential damages in an amount to be determined at trial. AS AND FOR A SECOND CAUSE OF ACTION (Breach of Implied Contract/ Third Party Beneficiary to Contract against New 38 th Floor Productions and Viacom International) 47. Plaintiff repeats and reiterates each and every allegation set forth in paragraphs 1-46 as though set forth in full herein. 48. The Producer Agreement was executed by Frankie and Defendant Hoosick Valley and constitutes a binding contract for the benefit of the parties named therein as well as thirdparty beneficiaries Defendant New 38 th Floor Productions and Defendant Viacom International. 49. Other agreements were executed between and among the Defendants, including the Production Services Agreement, each providing reciprocal rights of third party beneficiary 8 8 of 12
status to Frankie. 50. Frankie was an implied contract party and intended beneficiary to those agreements, including the Production Services Agreement. Frankie is a party to and/or thirdparty beneficiary to those agreements, including the Production Services Agreement. 51. At all times, Frankie fully performed and/or tendered performance of all of his obligations and duties owed under the Producer Agreement and the parties other agreements. 52. As set forth above, Defendant Hoosick Valley materially breached the Producer Agreement by failing to pay Frankie his Contingent Compensation and other compensation, refusing Frankie s Demand and denying him his audit rights. 53. As set forth above, Defendants New 38 th Floor and Viacom International materially breached their agreements, including the Production Services Agreement, by failing to pay Frankie his Contingent Compensation and other compensation, refusing Frankie s Demand and denying him his audit rights. 54. Based upon the foregoing, and as a direct and proximate cause thereof, Frankie has suffered damage as a result thereof, including the value of his Contingent Compensation, other compensation and consequential damages in an amount to be determined at trial. AS AND FOR A THIRD CAUSE OF ACTION (Unjust Enrichment Against All Defendants) 55. Plaintiff repeats and reiterates each and every allegation set forth in paragraphs 1-54 as though set forth in full herein. 56. Defendant New 38 th Street and Defendant Viacom International received revenues from advertising, distribution and licensing of Scrappers, and Defendant Hoosick Falls received compensation from its role as producer of Scrappers, including Contingent Compensation, from 9 9 of 12
Defendant New 38 th Street and Defendant Viacom International. 57. For his part in the production of Scrappers, Frankie has not realized the value of his intellectual property or the services he provided for the benefit of the Defendants. 58. Defendants have been unjustly enriched to their benefit and to the detriment of Frankie. 59. Based upon the forgoing and as a direct and proximate cause thereof, Frankie has lost the value of his intellectual property rights and services provided to Defendants without just compensation. 60. In justice and equity, Frankie is entitled to his fair share of the revenues and profits received and retained by Defendant Hoosick Falls, Defendant New 38 th Floor and Defendant Viacom International, respectively, and all consequential damages that have resulted from Defendants unjust enrichment in an amount to be determined at trial. AS AND FOR A FOURTH CAUSE OF ACTION (Accounting Against All Defendants) 61. Plaintiff repeats and reiterates each and every allegation set forth in paragraphs 1-60 as though set forth in full herein. 62. The Producer Agreement was executed by Frankie and Defendant Hoosick Valley and constitutes a binding contract. 63. Other agreements were executed by and between the Defendants, including the Production Services Agreement, with reciprocal rights of third party beneficiary. 64. At all times, Frankie fully performed and/or tendered performance of all of his obligations and duties owed under the Producer Agreement and Defendants other agreements. 65. As set forth above, Defendant Hoosick Valley materially breached the Producer 10 10 of 12
Agreement by effectively refusing Frankie s Demand and denying him his audit rights. 66. As set forth above, Defendant New 38 th Floor and Defendant Viacom International materially breached the Producer Agreement and Defendants other agreements by effectively refusing Frankie s Demand and denying him his audit rights. 67. Based upon the foregoing, and as a direct and proximate cause thereof, Frankie has suffered damage as a result thereof, including the value of his Contingent Compensation and other compensation and consequential damages to be determined at trial. 68. Frankie is entitled to specific performance and other equitable relief compelling Defendant Hoosick Falls to comply with Frankie s Demand and to deliver into Frankie s possession all records necessary to complete a complete and accurate accounting of his Contingent Compensation and other compensation. 69. Frankie is entitled to specific performance and other equitable relief compelling Defendant New 38 th Floor and Defendant Viacom International to comply with Frankie s Demand and deliver into Frankie s possession all records necessary to complete a complete and accurate accounting of his Contingent Compensation and other compensation. WHEREFORE, Plaintiff demands judgment against Defendants as follows: (a) on his First Cause of Action against Defendant Hoosick Falls, compensatory damages in the amount of his unpaid Contingent Compensation and other compensation, and consequential damages, in amounts to be determined at trial; (b) on his Second Cause of Action against Defendant New 38 th Floor and Defendant Viacom International, compensatory damages in the amount of his unpaid Contingent Compensation and other compensation and consequential damages in amounts to be determined at trial; 11 11 of 12
(c) on his Third Cause of Action against all Defendants, compensatory damages in the amount of his unpaid Contingent Compensation and other compensation and consequential damages in amounts to be determined at trial; (d) on his Fourth Cause of Action against all Defendants, specific performance and an accounting as to his Contingent Compensation and other compensation; together with interest, his attorneys fees, costs and disbursements of this action; and for such other, further and different relief as this Court may deem just and proper. Dated: New York, New York August 1, 2016 KERR, LLP /s/ William B. Kerr 44 Wall Street, 12th Floor New York, New York 10005 (212) 423-0305 Attorneys for Plaintiff Frank Fidilio 12 12 of 12
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF New York ----------------- ------------------------------------------------------------------)( FRANK FIDILIO Plaintiff/Petitioner, -against Index No. 654066/2016 HOOSICK FALLS PRODUCTIONS INC., et al. Defendant/Respondent. ------------------------------------------------------------------){ NOTICE OF COMMENCEMENT OF ACTION SUBJECT TO MANDATORY ELECTRONIC FILING PLEASE TAKE NOTICE that the matter captioned above has been commenced as an electronically filed case in the New York State Courts Electronic Filing System ("NYSCEF") as required by CPLR 2111 and Uniform Rule 202.5-bb (mandatory electronic filing). This notice is being served as required by that rule. NYSCEF is designed for the electronic filing of documents with the County Clerk and the court and for the electronic service of those documents, court documents, and court notices upon counsel and unrepresented litigants who have consented to electronic filing. Electronic filing offers significant benefits for attorneys and litigants, permitting papers to be filed with the County Clerk and the court and served on other parties simply, conveniently, and quickly. NYSCEF case documents are filed with the County Clerk and the court by filing on the NYSCEF Website, which can be done at any time of the day or night on any day of the week. The documents are served automatically on all consenting e-filers as soon as the document is uploaded to the website, which sends out an immediate email notification of the filing. The NYSCEF System charges no fees for filing, serving, or viewing the electronic case record, nor does it charge any fees to print any filed documents. Normal filing fees must be paid, but this can be done on-line. Parties represented by an attorney: An attorney representing a party who is served with this notice must either: 1) immediately record his or her representation within the e-filed matter on the NYSCEF site; or 2) file the Notice of Opt-Out form with the clerk of the court where this action is pending. Exemptions from mandatory e-filing are limited to attorneys who certify in good faith that they lack the computer hardware and/or scanner and/or internet connection or that they lack (along with all employees subject to their direction) the operational knowledge to comply with e-filing requirements. [Section 202.5-bb(e)] Parties not represented by an attorney: Unrepresented litigants are exempt from e filing. They can serve and file documents in paper form and must be served with documents in paper form. However, an unrepresented litigant may participate in e-filing. Page 1 of 2 EFM-1
For information on how to participate in e-filing, unrepresented litigants should contact the appropriate clerk in the court where the action was filed or visit www.nycourts.gov/efileunrepresented. Unrepresented litigants also are encouraged to visit www.nycourthelp.gov or contact the Help Center in the court where the action was filed. An unrepresented litigant who consents to e-filing may cease participation at any time. However, the other parties may continue to e-file their court documents in the case. For additional information about electronic filing and to create a NYSCEF account, visit the NYSCEF website at www.nycourts.gov/efile or contact the NYSCEF Resource Center (phone: 646-386-3033; e-mail: efiie@nycourts.gov). Samantha Litt Kerr LLP Signature Name Firm Name 44 Wall Street - 12th Floor Address New York, New York (212) 423-0304 Phone slitt@kerrllp.com E-Mail To: HOOSICK FALLS PRODUCTIONS 12021 Wilshire Blvd. #417 Los Angeles, CA 90025 Nt:N 3B\t\ f\.gv~ ~~\\0~ \~L. I~\ c;- B(~~ N~'lovk... 1 ~~ \0003 ~ \1'\(0t--\ \t\tr~f\(f\a'n~ l~c I<;~<; &ot?j\n~ ~'to~ ~'i \od03 9/3/15 Index # Page 2 of 2 EFM-1