I GENERAL ALLEGATIONS
COME NOW Plaintiffs, JON GOODWIN (hereinafter, “GOODWIN”) individually and derivatively on behalf of BARRA PARTNERS, L.L.C., and BARRA PARTNERS, L.L.C. who, by reason of the following causes of action against the above captioned defendants, and each of them, alleges as follows:
I JURISDICTIONAL ALLEGATIONS
1. Each of the acts, occurrences and omissions hereinafter set forth took place within the County of San Francisco in the state of California and, thus, within the jurisdiction of this court. The sum total of all claims meets the jurisdictional limits of the above-captioned court.
2. At all times pertinent hereto plaintiff JON GOODWIN (hereinafter “Goodwin”) was a resident of the county of San Francisco in the state of California. At all times pertinent hereto Goodwin was a member BARRA PARTNERS L.L.C., (hereinafter “Barra”).
3. At all times pertinent hereto plaintiff Barra maintained its headquarters in the City and County of San Francisco, in the state of California. Barra has heretofore failed to bring any action, or otherwise seek or obtain redress, for the wrongs alleged herein.
4. At all times pertinent hereto, defendant law firm HELLER, EHRMAN, WHITE & McAULIFFE (hereinafter “Heller,”) was a business entity, business form unknown, engaged in the practice of law, and maintaining headquarters and offices and doing business in the city of San Francisco in the State of California.
5. At all times pertinent hereto, defendant BRUGGEMAN-HATCH a/k/a Marcia Hatch (hereinafter “Bruggeman”) was an attorney, employed by defendant Heller as an Associate. At all times pertinent hereto defendant Bruggeman was a resident of the City and County of San Francisco.
6. At all times pertinent hereto, defendant RUSSELL A. STAMETS (hereinafter”Stamets”) was an attorney, employed by defendant Heller.
7. At all times pertinent hereto, defendant SIMON LUK (hereinafter”Luk”) was an attorney, employed by defendant Heller.
8. At all times pertinent hereto, defendant DAVID JARGIELLO (hereinafter “Jargiello”) was an attorney, was a partner in, and was general counsel for defendant Heller.
9. Plaintiffs do not know the true names or identities of Plaintiff DOES 1-10 inclusive, and therefore plead on their behalf by those fictitious names. Plaintiffs will amend this Complaint to allege their true names and capacities when the same shall become known.
10. Plaintiffs are informed and believe, and based thereon allege, that each of the plaintiff’s has in some actionable manner been damaged by the acts and/or omissions of the defendants, and each of them, herein and that such damage as is herein alleged was proximately caused by such acts and/or omissions.
11. Plaintiffs do not know the true names of Defendants DOES 1 through 50 inclusive, and therefore sues them by those fictitious names. Plaintiffs will amend this Complaint to allege their true names and capacities when the same shall become known. Plaintiffs are informed and believe, and based thereon allege, that each of the defendants is responsible in some manner for the occurrences herein alleged and that plaintiffs’ damages as herein alleged were proximately caused by such conduct.
12. Plaintiffs are informed and believe, and based thereon allege, that at all times mentioned in this Complaint each of the defendants were acting as the agents, employees and co conspirators of their co-defendants, and in doing the things alleged in this complaint were acting in the course and scope of such employment, agency, and/or conspiracy.
II STATEMENT OF FACTS
13. Plaintiffs hereby reallege, as though fully set forth at length hereat, each and every proceeding paragraph of this Complaint
14. In December 2001, Goodwin and Bock formed BARRA PARTNERS L.L.C.
15. On or about August, 2002, Hatch became a member in Barra. By the terms of the August 2002 L.L.C. agreement founding Barra, Goodwin, Hatch and Bock, each owned a one third share of the company.
16. Beginning during or about late 2002 or early 2003, Hatch and Bock entered into a conspiracy to wrongfully, and without just cause, oust plaintiff from his rightful membership in Barra and to wrongfully usurp the assets of Barra and convert such assets to their of uses.
17. Among the acts performed by Hatch and Bock in furtherance of this conspiracy is the concealment of the existence and development of business opportunities and contracts, and the profits therefrom, due and owed to Barra. Such opportunities, contracts and profits included, but were not limited to those arising and resulting from transactions conducted primarily between Hatch, and a company known as “For3D.” All transactions between any member of Barra and “For3D” as well as any profit therefrom were, and remain, the rightful property of Barra.
18. However, Hatch concealed all such transactions and opportunities, as well as the profits therefrom from plaintiffs. Further, both Hatch and Bock misled Goodwin as to the nature and extent of Hatch’s dealings with “For3D.” Both Hatch and Bock stated to Goodwin that there was no ongoing relationship between For3D and any member of Barra, and that there were no profits had ever been realized as a result of any interaction between “For3D” and any member of Barra. As Goodwin later learned, such statements were false.
19. Hatch and Bock also obtained, for Barra, the services of defendant Heller and, more specifically, of defendants Bruggeman-Hatch, Stamets, Luk and Jargiello.
20. Beginning during or about the summer of 2003, defendant Heller did undertake representation of plaintiff Barra. Such representation included, but was not limited to:
a. Providing legal advice to Barra relating to Barra projects in India and Shanghai;
b. Conducting a meeting with defendant Hatch and defendant Bock regarding such advice;
c. Conducting a secret meeting in its San Francisco offices in which defendants Hatch and Bock, ostensibly acting on behalf of Barra, conducted business with certain persons from Shanghai. Plaintiffs are informed and believe, and based thereon allege that such meeting was arranged, attended and facilitated by defendant Bruggeman. (Significantly, Bruggeman had divided loyalties as well as a conflict of interest in undertaking any representation of Barra in that she had been dating on member of Barra, defendant Hatch, since approximately April 2003 and in that sometime between then and the present married Hatch.)
d. Providing Barra, through Hatch and Bock, with specific legal advice, as well as with certain contracts and other legal documents, for use in certain specific business opportunities, ventures and transactions in which Barra was involved.
e. Advising and assisting Hatch and Bock with their plan to wrongfully oust plaintiff from his rightful membership in Barra and usurp and convert the assets of Barra for their own personal use;
f. Offering advice and assistance in choosing a name for, and in otherwise forming, a new company, ARAN Strategic Finance, L.L.C. (Hereinafter Aran), which into which Hatch and Bock would funnel all of the assets of Barra;
g. Sending to plaintiff correspondence denying any representation of Barra or Aran, despite the fact that Heller and it’s employees had performed the acts alleged in sub paragraphs a. through f., supra.
21. On or about November 27, and as and in furtherance of the above alleged conspiracy, defendants Hatch and Bock, wrongfully terminated plaintiff’s membership in Barra without just cause.
22. Plaintiff is informed and believes, and based thereon alleges that the termination letter was drafted by defendant Bruggemen.
23. Thereafter, and at a date uncertain to plaintiff’s, defendants Hatch and Bock, transferred one-hundred percent of the assets of Barra to Aran.
III FIRST CAUSE OF ACTION
NEGLIGENCE
(By All Plaintiffs Against All Defendants)
24. Plaintiffs hereby reallege each of the proceeding paragraphs of this Complaint as though fully set forth at length hereat.
25. Defendants Hatch and Bock were the business partners of plaintiff Goodwin and members, with Goodwin, of Barra. As such, they each owed a duty to Goodwin and to Barra to avoid any foreseeable harm to plaintiffs.
26. In acting, or in failing to act, as alleged herein, Hatch and Bock breached such duty in that they both failed to inform plaintiffs of business opportunities and income belonging to Barra. Hatch and Bock also failed to inform plaintiffs of their actions in retaining Heller as counsel and of the acts taken by Heller, ostensibly on behalf of Barra, as alleged herein, thereby denying both Goodwin and Barra of business opportunity and income and the opportunity to avoid the removal of all of the assets from Barra.
27. As a direct and proximate result of such breach, plaintiffs have been harmed in that Goodwin was wrongfully removed as a member of Barra and Barra was wrongfully drained of all of its assets.
28. Defendants Bruggeman, Stamets, Luk, Jargiello and Heller, (hereinafter, collectively, the “Heller Defendants”) undertook to act as attorneys to Barra. As such they had a duty to avoid foreseeable harm to Barra and to Goodwin.
29. In acting as alleged in this Complaint, the Heller Defendants breached that duty as follows:
a. Heller and Jargiello failed to adequately supervise, train and manage its partners and associate attorneys instead promoting within the firm a culture of greed and self advancement whereby acts such as those alleged in this Complaint could go unnoticed and unchecked and were, in fact, rewarded;
b. Stamets and Luk failed to adequately prepare for the meetings they held with Hatch and Bock and on behalf of Barra, thereby allowing the intentional acts of Bruggeman, Hatch and Bock, as alleged herein, to pass unchallenged;
c. The Heller defendants as a group, and each of them, failed to consider the interests of Barra, focusing instead on promoting the tortious designs of certain of Barra’s members, Hatch and Bock, to the detriment of the company and ts other member.
30. As a direct and proximate result of such breaches of duty, plaintiff’s have been harmed in that Goodwin has been removed as a member of Barra and Barra has been deprived of all of its assets.
WHEREFORE, Plaintiffs pray for the damages as set forth in the Prayer of this Complaint.
IV SECOND CAUSE OF ACTION
BREACH OF FIDUCIARY DUTY
(By All Plaintiff’s Against all Defendants)
31. Plaintiffs hereby incorporate by reference, as though fully set forth at length here at, each of the proceeding paragraphs of this Complaint.
32. At all times described herein, Barra relied on the confidential fiduciary relationship which existed between Barra and the Heller Defendants, as its legal counsel. As a result, the Heller Defendants, and each of them, were fiduciaries with respect to their legal duties to Barra and therefore owed all the duties of exercising the skill, prudence and diligence of a fiduciary, and performing in accordance with the responsibilities of trust and confidence reposed in a fiduciary acting in a legal capacity for a client.
33. At all times described herein Goodwin relied on the confidential fiduciary relationship which existed between himself and Defendants Hatch and Bock, as his business partners. As a result, Hatch and Bock were fiduciaries with respect to their partnership duties to Plaintiff and therefore owed all the duties of exercising the skill, prudence, fairness and diligence of a fiduciary, and performing in accordance with the responsibilities of trust and confidence reposed in a fiduciary.
34. Defendants, and each of them, failed to perform and abide by the duties of a fiduciary, and breached their duty of trust and performance, to Plaintiffs, and each of them, by, and as a result of, the acts and omissions alleged in this Complaint.
35. As a proximate result of the breach of Defendants’ fiduciary obligations to Plaintiffs, Plaintiff have suffered the damages described herein.
WHEREFORE, Plaintiffs pray for the damages as set forth in the Prayer of this Complaint.
V THIRD CAUSE OF ACTION
NEGLIGENT MISREPRESENTATION
(By All Plaintiffs Against All Defendants)
36. Plaintiffs hereby incorporate by reference, as though fully set forth at length hereat, each of the proceeding paragraphs of this complaint.
37. At all times described herein, Defendants Hatch and Bock represented to Goodwin that they were taking appropriate steps to preserve and protect all of Goodwin’s rights and interests under the August, 2002, L.L.C. Agreement and assured him that such interests were preserved, protected and appropriately managed and that they were representing such interests in accordance with the proper standards of business.
38. In fact, such representations and assurances were false, or were made by Hatch and Bock without a reasonable basis for their belief or when they acted in reckless disregard of the knowledge of such falsity.
39. Goodwin justifiably and reasonably relied on these representations and assurances because of his established and ongoing relationship with Hatch and Bock and continued to allow Hatch and Bock to act on behalf himself and of Barra as partners and members.
40. At all times pertinent to the allegations against them set forth in this Complaint, the Heller Defendants, and each of them, represented Barra as its attorneys. As such they represented to Barra that they were taking appropriate steps to preserve and protect all of Barra’s rights and interests and assured Barra that such interests were preserved, protected and appropriately managed and that they were representing such interests in accordance with the proper standards of business.
41. In fact, such representations and assurances were false, or were made by the Heller Defendants without a reasonable basis for their belief or when they acted in reckless disregard of the knowledge of such falsity.
42. Barra justifiably and reasonably relied on these representations and assurances because of the fact that the Heller Defendants were its attorneys and continued to allow the Heller Defendants to act as counsel on its behalf.
43. As a proximate result of the negligent misrepresentations set forth above, Barra and Goodwin have suffered the damages described herein.
WHEREFORE, Plaintiff prays for the damages as set forth in the Prayer of this Complaint.
VI FOURTH CAUSE OF ACTION
INTENTIONAL MISREPRESENTATION
(By all Plaintiffs Against all Defendants)
44. Plaintiffs hereby incorporate by reference, as though fully set forth at length hereat, each of the proceeding paragraphs of this complaint.
45. At all times described herein, Defendants Hatch and Bock represented to Goodwin that they were taking appropriate steps to preserve and protect his rights and interests under the 2002 L.L.C. Agreement and assured them that such interests were preserved, protected and appropriately managed and that they were representing Goodwin’s interests in accordance with the proper standards.
46. Goodwin justifiably and reasonably relied on these representations and assurances because of his established and ongoing relationship with Hatch and Bock and continued to allow Hatch and Bock to act on behalf of himself and Barra as partners and members.
47. Said representations and assurances by Hatch and Bock to Goodwin were false and untrue when made and were made when both Hatch and Bock knew them to be false, or when making them acted in reckless disregard of the knowledge of the falsity of such untruth.
48. Furthermore, Hatch and Bock concealed or suppressed material facts which they were bound by contract to disclose including the existence of the “For3D” business opportunities and income belonging to Barra and/or in which Goodwin and Barra had an interest or a right of possession. Moreover, Defendants concealed or suppressed such material facts and by telling Goodwin other facts, such as the assertion that there was no “For3D,”or other, income outstanding in which Goodwin or Barra had in interest, to mislead Plaintiff and prevent him from discovering the concealed or suppressed facts.
49. In reliance upon Defendants’ false statements Goodwin continued to allow Hatch and Bock to act in his interest as his partners and to act on behalf of Barra as members.
50. At all times pertinent to the allegations against them set forth in this Complaint, the Heller Defendants, and each of them, represented Barra as its attorneys. As such they represented to Barra that they were taking appropriate steps to preserve and protect all of Barra’s rights and interests and assured Barra that such interests were preserved, protected and appropriately managed and that they were representing such interests in accordance with the proper legal and business standards.
51. In fact, such representations and assurances were false, and were known by the Heller Defendants to be false when made, or were made by the Heller Defendants without a reasonable basis for their belief or when they acted in reckless disregard of the knowledge of such falsity.
52. Barra justifiably and reasonably relied on these representations and assurances because of the fact that the Heller Defendants were its attorneys and continued to allow the Heller Defendants to act as counsel on its behalf.
53. As a proximate result of the misrepresentations set forth above, Barra and Goodwin havesuffered the damages described herein.
WHEREFORE, Plaintiff prays for the damages as set forth in the Prayer of this Complaint.
VII FIFTH CAUSE OF ACTION
BREACH OF CONTRACT
(By All Plaintiffs Against All Defendants)
54. Plaintiff hereby incorporates by reference, as though fully set forth at length hereat, each of the proceeding paragraphs of this Complaint.
55. Beginning during or about the summer of 2003 and continuing thereafter, the Heller Defendants undertook to perform professional legal services for Barra. Such undertaking is shown by the course of representation performed as alleged elsewhere in this Complaint as well as by certain correspondence.
56. The Heller Defendants, and each of them, breached said contract by failing to properly preserve, protect and advance Barra’s interest, instead, treating Barra as the personal property of two of its members and assisting them in pillaging the company and usurping its assets.
57. As a proximate result of this breach of contract by Defendants, Plaintiff Barra has suffered the damages described herein.
58. At all times pertinent hereto, a written contract, a true and correct copy of which is attached hereto as EXHIBIT “A,” existed between plaintiff Goodwin and defendants Hatch and Bock.
59. By the terms of such contract, Hatch and Bock were required to disclose to Goodwin and to Barra, inter alia, all business opportunities and income and all transactions entered into by, or on behalf of, Barra , including the retention of any legal counsel and the progress of any ongoing business or the advent of any new business.
60. As set forth elsewhere in this complaint Hatch and Bock breached this contract by obtaining new legal counsel without disclosing the fact, by conducting ongoing business and obtaining profit without disclosing same and by obtaining new business without disclosing the fact.
61. As a proximate result of this breach of contract by Defendants, Plaintiff Goodwin has suffered the damages described herein.
WHEREFORE, Plaintiffs pray for damages as set forth in the Prayer of this Complaint.
VIII SIXTH CAUSE OF ACTION
CIVIL CONSPIRACY
(By All Plaintiffs Against All Defendants)
62. Plaintiff hereby incorporates by reference, as though fully set forth at length hereat, each of the proceeding paragraphs of this Complaint.
63. In planning, agreeing to perform, and performing the acts alleged in this Complaint, defendants, and each of them, created and formed among themselves a conspiracy to defraud, cheat and otherwise harm plaintiffs as set forth in this Complaint.
64. Each of the defendants has, by performance of the acts alleged against them, taken active part in the furtherance of such conspiracy.
65. As a proximate result of such conspiracy, Plaintiffs have suffered the damages described herein.
WHEREFORE, Plaintiffs pray for damages as set forth in the Prayer of this Complaint.
IX SEVENTH CAUSE OF ACTION
FOR AN ACCOUNTING
(By all Plaintiffs Against Defendants Hatch and Bock)
66. Plaintiffs hereby incorporate by reference, as though fully set forth at length hereat, each of the proceeding paragraphs of this complaint.
67. The partnership agreement between Goodwin, Hatch and Bock, provides that the company shall maintain and that each member shall have access to all books of account, records and documents of the Company.
68. Goodwin has demanded an accounting but Hatch and Bock have failed and refused and continue to fail and refuse to provide such.
69. WHEREFORE, Plaintiffs pray for the damages as set forth in the Prayer of this Complaint.
X EIGHTH CAUSE OF ACTION
CONVERSION
(By All Plaintiffs Against All Defendants)
70. Plaintiffs hereby incorporate by reference, as though fully set forth at length hereat, each of the proceeding paragraphs of this complaint.
71. Defendants, and each of them, by and through the above alleged conspiracy and by and through the acts alleged herein, did exercise dominion and control over the property of plaintiff Goodwin in taking unto themselves his property interest and rights as a member of Barra, and in taking for their own personal use, and for deposit into their newly formed company, all of the assets of Barra.
72. As a proximate result of such conversion, Plaintiffs have suffered the damages described herein.
WHEREFORE, Plaintiffs pray for damages as set forth in the Prayer of this Complaint.
XI NINTH CAUSE OF ACTION
INTENTIONAL INTERFERENCE WITH BUSINESS ADVANTAGE
(By All Plaintiffs Against All Defendants)
73. Plaintiffs hereby incorporate by reference, as though fully set forth at length hereat, each of the proceeding paragraphs of this complaint.
74. At all times relevant hereto Plaintiffs constituted or operated a limited liability company as set forth in EXHIBIT “A” hereto.
75. As set forth in this Complaint. Defendants, and each of them consistently and intentionally both acted and refused to act in a manner intended to harm the business and to frustrate its purposes.
76. Such acts and failures to act have resulted in economic damage to Barra and to Goodwin.
77. As a direct and proximate result of such interference, Plaintiffs have suffered the damages described herein.
WHEREFORE, Plaintiffs pray for damages as set forth in the Prayer of this Complaint.
XII TENTH CAUSE OF ACTION
PUNITIVE DAMAGES
(By All Plaintiffs Against All Defendants)
78. Plaintiffs hereby incorporate by reference, as though fully set forth at length hereat, each of the proceeding paragraphs of this complaint.
79. By their acts, and intentional failures to act, as set forth in this complaint, defendants, and each of them, behaved maliciously, oppressively and fraudulently.
80. Such behavior merits the imposition of punitive damages.
81. Such fraudulent conduct merits the award of punitive damages. Moreover, as a direct and proximate result of the malicious, fraudulent and oppressive conduct set forth above, Plaintiffs hereby allege, on information and belief, that they have suffered monetary damages in an amount exceeding Thirty-Eight Million Dollars.
WHEREFORE, Plaintiffs pray for damages as set forth in the Prayer of this Complaint.
PRAYER
WHEREFORE, Plaintiffs prays for a judgment and damages as follows:
1. For a sum to compensate Plaintiffs for the economic losses suffered as a result of Plaintiffs’ lost business and business opportunities;
2. For attorneys’ fees in bringing this action;
4. For other special damages according to proof;
5. For general damages, including emotional injury, according to proof;
6. For prejudgment interest according to proof;
7. For an accounting;
8. For punitive damages;
9. For costs of suit herein; and
10. For such other and further relief as the court finds is just and right.
DATED: NOVEMBER 23, 2003
By:
JON GOODWIN
Plaintiff, In Propria Persona
/ / / / /
DEMAND FOR JURY TRIAL
Plaintiff hereby demands a trial by jury on all causes.
DATED: NOVEMBER 23, 2003
By:
JON GOODWIN
Plaintiff Plaintiff In Propria Persona
Hey, doesn’t that guy Bock live in Denver CO?
well drafted! any joy?
#1 yes! Michael Bock lives in the Denver area. Littleton we understand. One of his sons, Christopher J. Bock is a Managing Director at KRG Capital. And the other, Michael Bock, is/was employed by Merrill Lynch in their Petrie Parkman energy investment banking unit. According to our source, Bock bragged that he put his sons through college at Harvard and Amherst with cash he skimmed from bars he and some partners owned in the Denver area. He claimed he didn’t pay taxes on the income. So his sons got excellent educations at the taxpayers expense. Nice luxury… eh?