!"#$ &'()*+,*-(-./*012*340 56+78$9: (- 2;<$= -&>&.>() ?"@$ ( 6A &( ?"@$ B5 C'(D)
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Clifton W. Albright (SBN 100020) David Martin (SBN 189755) David Song (SBN 323073) ALBRIGHT, YEE & SCHMIT, APC 888 West 6th Street, 14th Floor Los Angeles, California 90017 Tel: (213) 833-1700 / Fax: (213) 833-1710 Email:
[email protected];
[email protected] Attorneys for Defendants LAUGH FACTORY, INC. and JAMIE MASADA UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
HARITH ISKANDER, an individual,
) ) Plaintiff, ) v. ) ) LAUGH FACTORY, INC., a California ) corporation; JAMIE MASADA, an ) individual; and DOES 1 through 50, ) inclusive, ) ) Defendants. ) ) LAUGH FACTORY, INC. and JAMIE ) MASADA, ) ) Counter-Claimants, ) v. ) ) HARITH ISKANDER, and DOES 1 ) through 10, ) ) Counter-Defendants. ) )
Case No.: 2:19-cv-01076-MWF-JEM ( Assigned Assigned to Hon. Hon. Michael W. W. Fitzgerald ) AMENDED ANSWER AND COUNTERCLAIMS OF DEFENDANTS/COUNTERDEFENDANTS/COUNTERCLAIMANTS LAUGH FACTORY, INC. AND JAMIE MASADA
26 27 28 "#$%&'() *++ , -.(/&) "01
_____________________________________________________ __________________________ _______________________________________________________ _______________________________ ___ AMENDED ANSWER AND COUNTER-CLAIMS OF DEFENDANTS/COUNTER-CLAIMANTS LAUGH FACTORY, INC. AND JAMIE MASADA
!"#$ &'()*+,*-(-./*012*340 56+78$9: (- 2;<$= -&>&.>() ?"@$ & 6A &( ?"@$ B5 C'(E-
1
Defendants/Counter-Claimants Defendants/Counter-Claimants Laugh Factory, Inc. (“Laugh Factory”) and Jamie
2
Masada (“Masada”) (collectively, “Defendants”) file this Amended Answer, Affirmative
3
Defenses, and Counter-Claims pursuant to Fed.R.Civ.P. 15(a)(1) and L.R. 15-1 – 15-4 as
4
follows:
5
The Complaint contains an introductory paragraph which does not require a
6
response. To the extent a response response is required, Defendants Defendants deny any allegations allegations
7
contained therein. THE PARTIES
8 9
1.
Defendants admit that Plaintiff/Counter-Defendant Plaintiff/Counter-Defendant Harith Iskander
10
(“Iskander”) is an individual over the age of 18 and a resident of Malaysia. Defendants
11
lack information to admit or deny the remainder of Paragraph 1, and therefore those
12
allegations stand denied.
13
2.
Admitted.
14
3.
Admitted.
15
4.
Defendants admit that Masada is the owner, manager, and an officer of
16
Laugh Factory. Factory. The remainder of Paragraph 4 is denied.
17
5.
Denied.
18
6.
Denied.
19
7.
Denied. THE CONTEST
20 21
8.
The document attached to Plaintiff’s Complaint as Exhibit A speaks for
22
itself and is the best evidence of the matters matters set forth in the email. Defendants deny the
23
remaining allegations of Paragraph 8.
24
9.
The document attached to Plaintiff’s Complaint Exhibit B speaks for itself
25
and is the best evidence evidence of the matters set forth forth in the email. Defendants deny the
26
remaining allegations of Paragraph 9.
27 28 "#$%&'() *++ , -.(/&) "01
_____________________________________________________ __________________________ _______________________________________________________ _______________________________ ___ 1 AMENDED ANSWER AND COUNTER-CLAIMS OF DEFENDANTS/COUNTER-CLAIMANTS LAUGH FACTORY, INC. AND JAMIE MASADA
!"#$ &'()*+,*-(-./*012*340 56+78$9: (- 2;<$= -&>&.>() ?"@$ F 6A &( ?"@$ B5 C'(E(
1
10.
The document attached to Plaintiff’s Complaint Exhibit C speaks for itself
2
and is the best evidence evidence of the matters set forth forth in the email. Defendants deny the
3
remaining allegations of Paragraph 10.
4
11.
Denied.
5
12.
The document attached to Plaintiff’s Complaint Exhibit D speaks sp eaks for itself
6
and is the best evidence evidence of the matters set forth forth in the email. email. Defendants deny the
7
remaining allegations of Paragraph 12.
8 9 10 11
13.
The document attached to Plaintiff’s Complaint Exhibit E speaks s peaks for itself
and is the best evidence evidence of the matters set forth forth in the email. Defendants deny the remaining allegations of Paragraph 13. 14.
The document attached to Plaintiff’s Complaint Exhibit F speaks for itself
12
and is the best evidence evidence of the matters set forth forth in the email. Defendants deny the
13
remaining allegations of Paragraph 14.
14
15.
Defendants admit that Iskander was not paid $100,000.00, but maintain that
15
Iskander breached the agreement with Defendants, and relieved them of any alleged
16
obligations to Iskander, Iskander, as described below. below. Defendants paid Iskander Iskander $30,000 for the
17
installments on the Contest contract contract which Iskander did honor. Defendants therefore therefore
18
filled their contractual contractual obligations. obligations. Defendants deny the remaining allegations allegations of
19
Paragraph 15.
20
16.
The Official Rules and Regulations cited by Iskander speak for themselves
21
and are the best evidence evidence of the matters set forth in the document. document. Defendants deny the
22
remaining allegations of Paragraph 16.
23
17.
Denied.
24
FIRST CAUSE OF ACTION
25
(Promissory Fraud against Laugh Factory, Masada & Does 1-50)
26 27
18.
Defendants incorporate their responses to the foregoing paragraphs as if set
forth fully herein.
28 "#$%&'() *++ , -.(/&) "01
_____________________________________________________ __________________________ _______________________________________________________ _______________________________ ___ 2 AMENDED ANSWER AND COUNTER-CLAIMS OF DEFENDANTS/COUNTER-CLAIMANTS LAUGH FACTORY, INC. AND JAMIE MASADA
!"#$ &'()*+,*-(-./*012*340 56+78$9: (- 2;<$= -&>&.>() ?"@$ D 6A &( ?"@$ B5 C'(E&
1
19.
Defendants admit that there was a potential $100,000.00 prize for the winner
2
of the contest, but denies that Iskander was entitled to that that award. Defendants deny that
3
the allegations in Paragraph 19 set forth the full terms and conditions of the contest.
4
Defendants deny the remaining allegations of Paragraph 19.
5
20.
Denied.
6
21.
Denied.
7
22.
Denied.
8
23.
Denied.
9
24.
Denied.
10
25.
Denied.
11
26.
Denied.
12
27.
Denied.
13
SECOND CAUSE OF ACTION
14
(Intentional Misrepresentation Misrepresentation against Laugh Factory, Masada & Does 1-50)
15 16 17
28.
Defendants incorporate their responses to the foregoing paragraphs as if set
forth fully herein. 29.
Defendants admit that there was a potential $100,000.00 prize for the winner
18
of the contest, but denies that Iskander was entitled to that that award. Defendants deny that
19
the allegations in Paragraph 29 set forth the full terms and conditions of the contest.
20
Defendants deny the remaining allegations of Paragraph 29.
21
30.
Denied.
22
31.
Defendants admit that Iskander was contractually obligated to fulfill certain
23
terms and conditions of the parties’ parties’ agreement, which he failed to perform. perform. Iskander’s
obligations was a condition condition precedent to any obligation(s) obligation(s) 24 performance of his contractual obligations 25
on the part of Defendants. Defendants deny the remaining remaining allegations of Paragraph Paragraph 31.
26
32.
Denied.
27
33.
Denied.
28
34.
Denied.
"#$%&'() *++ , -.(/&) "01
_____________________________________________________ __________________________ _______________________________________________________ _______________________________ ___ 3 AMENDED ANSWER AND COUNTER-CLAIMS OF DEFENDANTS/COUNTER-CLAIMANTS LAUGH FACTORY, INC. AND JAMIE MASADA
!"#$ &'()*+,*-(-./*012*340 56+78$9: (- 2;<$= -&>&.>() ?"@$ E 6A &( ?"@$ B5 C'(EF
1
35.
Denied.
2
36.
Denied.
3
37.
Denied.
4
38.
Denied.
5
THIRD CAUSE OF ACTION
6
(Negligent Misrepresentation against Laugh Factory, Masada & Does 1-50)
7 8 9
39.
Defendants incorporate their responses to the foregoing paragraphs as if set
forth fully herein. 40.
Defendants admit that there was a potential $100,000.00 prize for the winner
10
of the contest, but denies that Iskander was was entitled to that award. Defendants deny that
11
the allegations in Paragraph 40 set forth the full terms and conditions of the contest.
12
Defendants deny the remaining allegations of Paragraph 40.
13
41.
Denied.
14
42.
Defendants admit that Iskander was contractually obligated to fulfill certain
15
terms and conditions of the parties’ parties’ agreement, which he failed failed to perform. Iskander’s
obligations was a condition condition precedent to any any obligation(s) 16 performance of his contractual obligations 17
on the part of Defendants. Defendants deny the remaining remaining allegations of Paragraph Paragraph 42.
18
43.
Denied.
19
44.
Denied.
20
45.
Denied.
21
46.
Denied.
22
47.
Denied.
23
FOURTH CAUSE OF ACTION
24
(Breach of Contract against Laugh Factory & Does 1-50)
25
48.
Defendant Laugh Factory incorporates its responses to the foregoing
forth fully herein. herein. 26 paragraphs as if set forth 27
49.
Denied.
28 "#$%&'() *++ , -.(/&) "01
_____________________________________________________ __________________________ _______________________________________________________ _______________________________ ___ 4 AMENDED ANSWER AND COUNTER-CLAIMS OF DEFENDANTS/COUNTER-CLAIMANTS LAUGH FACTORY, INC. AND JAMIE MASADA
!"#$ &'()*+,*-(-./*012*340 56+78$9: (- 2;<$= -&>&.>() ?"@$ / 6A &( ?"@$ B5 C'(ED
1 2
50.
Defendant Laugh Factory admits that Iskander submitted a video in
connection with the contest. Defendant denies the remaining remaining allegations in Paragraph Paragraph 50.
3
51.
Denied.
4
52.
Denied.
6
53.
Denied.
7
54.
Denied.
5
8
FIFTH CAUSE OF ACTION
9
(Breach of Implied Covenant of Good Faith and Fair Dealing against
10
Laugh Factory & Does 1-50)
11
55.
Defendant Laugh Factory incorporates its responses to the foregoing
forth fully herein. herein. 12 paragraphs as if set forth 13 14
56.
Defendant Laugh Factory admits that the parties formed an agreement
regarding the contest, and allege that Iskander breached that agreement, as set forth
the remaining allegations allegations of Paragraph Paragraph 56. 15 below. Defendant denies the 16 17
57.
Paragraph 57 contains a legal conclusion which does not require an
admission or denial. To the extent a response response is required, Defendant Defendant denies that it
implied covenant. 18 breached any implied 19
58.
Denied.
20
59.
Denied.
21
60.
Denied.
22
SIXTH CAUSE OF ACTION
23
(Declaratory Relief against all Defendants)
24 25 26 27 28 "#$%&'() *++ , -.(/&) "01
61.
Defendants incorporate their responses to the foregoing paragraphs as if set
forth fully herein. 62.
Defendants deny that Iskander complied with the terms of the parties’
agreement. 63.
Denied.
_____________________________________________________ __________________________ _______________________________________________________ _______________________________ ___ 5 AMENDED ANSWER AND COUNTER-CLAIMS OF DEFENDANTS/COUNTER-CLAIMANTS LAUGH FACTORY, INC. AND JAMIE MASADA
!"#$ &'()*+,*-(-./*012*340 56+78$9: (- 2;<$= -&>&.>() ?"@$ . 6A &( ?"@$ B5 C'(EE
1
64.
Denied.
2
65.
Denied.
3
66.
Denied.
4
SEVENTH CAUSE OF ACTION
5
(Misleading Advertising as against all Defendants)
6 7 8 9
67.
Defendants incorporate their responses to the foregoing paragraphs as if set
forth fully herein. 68.
Defendants deny they breached any obligation to Iskander and deny that he
is entitled to any relief.
10
69.
Denied.
11
70.
Paragraph 70 contains contains legal conclusions conclusions which require require no response. To the
12
extent a response is required, Defendants deny the allegations of Paragraph 70.
13
71.
Denied.
14
72.
Denied.
15
73.
Denied.
16
74.
Denied.
17
75.
Paragraph 75 contains contains legal conclusions conclusions which require require no response. To the
18
extent a response is required, Defendants deny the allegations of Paragraph 75.
19
76.
Denied.
20
77.
Denied.
21
78.
Denied.
22
SEVENTH CAUSE OF ACTION
23
(Unfair Competition as against all Defendants)
24 25 26 27
79.
Defendants incorporate their responses to the foregoing paragraphs as if set
forth fully herein. 80.
Defendants deny they breached any obligation to Iskander and deny that he
is entitled to any relief.
28 "#$%&'() *++ , -.(/&) "01
_____________________________________________________ __________________________ _______________________________________________________ _______________________________ ___ 6 AMENDED ANSWER AND COUNTER-CLAIMS OF DEFENDANTS/COUNTER-CLAIMANTS LAUGH FACTORY, INC. AND JAMIE MASADA
!"#$ &'()*+,*-(-./*012*340 56+78$9: (- 2;<$= -&>&.>() ?"@$ G 6A &( ?"@$ B5 C'(E/
1 2 3 4
81.
Paragraph 81 contains contains legal conclusions conclusions which require require no response. To the
extent a response is required, Defendants deny the allegations of Paragraph 81. 82.
Paragraph 82 contains contains legal conclusions conclusions which require require no response. To the
extent a response is required, Defendants deny the allegations of Paragraph 82.
5
83.
Denied.
6
84.
Paragraph 84 contains contains legal conclusions conclusions which require require no response. To the
7
extent a response is required, Defendants deny the allegations of Paragraph 84.
8
85.
Denied.
9
86.
Denied.
10
87.
Denied.
11
88.
Denied.
12
89.
Denied.
13
The balance of Iskander’s Complaint consists of a prayer for relief, to which no
14
specific answer is required, and Defendants deny that Iskander is entitled to any relief
15
requested in the prayer for relief. AFFIRMATIVE DEFENSES
16 17
Defendants demand a jury trial and allege the following Affirmative Defenses.
18
Defendants reserve the right to amend their answer to assert any other defenses, separate
19
or otherwise, that may become known or available during discovery in this case.
20
FIRST AFFIRMATIVE DEFENSE
21
Iskander’s Complaint fails to state a claim upon which relief may be granted.
22
SECOND AFFIRMATIVE DEFENSE
23
Iskander’s claims and defenses are barred by the equitable doctrine of unclean
24 25 26
hands. THIRD AFFIRMATIVE DEFENSE
Iskander lacks standing to assert the claims and defenses in his Complaint.
27 28 "#$%&'() *++ , -.(/&) "01
_____________________________________________________ __________________________ _______________________________________________________ _______________________________ ___ 7 AMENDED ANSWER AND COUNTER-CLAIMS OF DEFENDANTS/COUNTER-CLAIMANTS LAUGH FACTORY, INC. AND JAMIE MASADA
!"#$ &'()*+,*-(-./*012*340 56+78$9: (- 2;<$= -&>&.>() ?"@$ ) 6A &( ?"@$ B5 C'(E.
FOURTH AFFIRMATIVE DEFENSE
1 2 3
Iskander, by reason of his prior acts, conduct, representations and omissions, has waived his right, if any, to obtain the relief sought in the Complaint.
4
COUNTERCLAIM
5
Defendants and Counterclaimants Laugh Factory and Masada, by and through
6
counsel, hereby counterclaim against Iskander and the Doe defendants (collectively,
7
“Counterclaim Defendants”) as follows: PARTIES
8 9
1.
Counterclaimant Counterclaimant Masada is an individual over the age of eighteen and a
10
resident of the State State of California, County of Los Angeles. Angeles. Masada is an owner and
11
officer of Laugh Factory.
12
2.
Counterclaimant Counterclaimant Laugh Factory is a California Corporation and has its
13 principal place of business in the County of Los Angeles. 14 15 16
3.
Counterclaim Defendant Iskander, upon information information and belief, is an
individual over the age of eighteen and a resident of Malaysia. 4.
Defendants are ignorant of the true names of Counterclaim Defendants Does
17
1-10, inclusive, and and therefore sue them through fictitious fictitious names. Defendants are
18
informed and believe that each of the fictitiously named Counterclaim Defendants is
19
responsible for the injuries suffered suffered by Defendants, in whole or in part. Defendants will
20
amend these Counterclaims when the true identities id entities of the Doe Counterclaim Defendants
21
are discovered. JURISDICTION AND VENUE
22 23
5.
This Court has jurisdiction in this matter pursuant to 28 U.S.C. § 1332(a).
24
Iskander has subjected himself to the venue and jurisdiction of this Court by filing this
25
action in Los Angeles, California.
26 27 28 "#$%&'() *++ , -.(/&) "01
_____________________________________________________ __________________________ _______________________________________________________ _______________________________ ___ 8 AMENDED ANSWER AND COUNTER-CLAIMS OF DEFENDANTS/COUNTER-CLAIMANTS LAUGH FACTORY, INC. AND JAMIE MASADA
!"#$ &'()*+,*-(-./*012*340 56+78$9: (- 2;<$= -&>&.>() ?"@$ (- 6A &( ?"@$ B5 C'(EG
FACTS
1 2 3
A.
Iskander’s Misappropriation of Intellectual Property
6.
Iskandar first came to the attention of Defendants on or about September 10,
4
2016 when Iskander contacted a Laugh Factory representative about the possibility of
5
“bringing the Laugh Factory brand to Asia.” Asia.” (Exhibit 1). Iskander represented represented that he
6
loved the Laugh Factory brand and wanted to know the history of the brand, how the
7
name was created, and if it was copyrighted. He indicated that he thought the brand
8
would do very well in Malaysia.
9
7.
Iskander in that initial contact also inquired about a contest being sponsored
known as the Laugh Factory's Factory's Funniest Person in the World Competition Competition 10 by Defendants, known 11 12
(the “Competition”). 8.
Iskander acknowledged that the Laugh Factory brand was well known
13
around the world, including in Malaysia. Malaysia. He represented that that he had silent partners partners who
14
could help bring the brand to Malaysia.
15
9.
Iskander again expressed his interest in bringing the Laugh Factory brand to
16
Malaysia in an email to Masada Masada dated September September 21, 2016. (Exhibit 2). He repeated that
17
expression of interest to another Laugh Factory representative the same day, and again
18
approached Defendants regarding the Laugh Factory brand on October 6th, 2016.
19
(Exhibits 3, 4).
20
10.
21 22
Iskander spoke openly about his desire to open a Laugh Factory in Malaysia
in front of several contestants who were in the Competition. 11.
In or about December 2016, Iskander and Masada agreed to pursue
23
discussions about opening opening a Laugh Factory in Malaysia. Those discussions continued in
24
January 2017. (Exhibit 5).
25
12.
When Iskander indicated that he wished to come to the United States in
26
January 2017, Masada instructed him to obtain a visa through an immigration attorney so
27
as not to give the false false impression that a partnership partnership existed. existed. (Exhibit 6).
28 "#$%&'() *++ , -.(/&) "01
_____________________________________________________ __________________________ _______________________________________________________ _______________________________ ___ 9 AMENDED ANSWER AND COUNTER-CLAIMS OF DEFENDANTS/COUNTER-CLAIMANTS LAUGH FACTORY, INC. AND JAMIE MASADA
!"#$ &'()*+,*-(-./*012*340 56+78$9: (- 2;<$= -&>&.>() ?"@$ (( 6A &( ?"@$ B5 C'(E)
1
13.
Iskander then approached Masada with an offer to open three Laugh Factory
2
clubs in Kula Lumpur, Lumpur, Singapore, Singapore, and Jakarta. (Exhibit 7). Iskander’s written
3
communications made clear that there was no agreement allowing him to open a Laugh
4
Factory or that he had any legal interest interest in the Laugh Factory brand. (Exhibit 8).
5
14.
Iskander and Masada communicated about these opportunities and their
lengthy telephone calls calls and on 6 prospective venture in Asia not only in emails, but in lengthy 7 8
Skype. 15.
In the processing of dis discussing cussing a potential arrangement, Iskander represented
9
that he had as a “silent partner” the former Prime Prime Minister of Maylaysia Najib Razak. On
10
information and belief, that representation representation was and is untrue, and was made in an effort to
11
deceive Masada.
12
16.
The parties ultimately came to an agreement in principle to become 50/50
venture to expand the Laugh Laugh Factory brand brand in Asia, including real real estate. 13 partners in a venture 14 15
This agreement was never executed or formalized. formalized. (Exhibit 9). 17.
Iskander never intended to honor this agreement; rather, it was a deceit
16
designed to gain access to and then misappropriate Defendants’ Defendants’ protected, proprietary
17
intellectual property, including trade secrets, trademarks, business operations, and other
18
intellectual property.
19
18.
Masada, unaware of Iskander’s unlawful intentions, proceeded in good faith.
20
In reliance on the parties’ partnership understanding, understanding, when Iskander came to the United
21
States, he came to Defendants’ offices and then to the Laugh Factory club and took
22
copious, detailed notes, asking questions about the Laugh Factory and its operations.
23
19.
Iskander asked questions about the operations of the club, including “open
24
mic” shows, the origins and growth of the brand, and Defendants’ Comedy Camp for
25
underprivileged children. children. For example, Masada Masada disclosed to Iskander Iskander that he had
26
originally wanted to call the club “Joke and Yolk”, and that he had registered that name
27
and gotten a license, but ultimately decided on the “Laugh Factory” name.
28 "#$%&'() *++ , -.(/&) "01
_____________________________________________________ __________________________ _______________________________________________________ _______________________________ ___ 10 AMENDED ANSWER AND COUNTER-CLAIMS OF DEFENDANTS/COUNTER-CLAIMANTS LAUGH FACTORY, INC. AND JAMIE MASADA
!"#$ &'()*+,*-(-./*012*340 56+78$9: (- 2;<$= -&>&.>() ?"@$ (& 6A &( ?"@$ B5 C'(/-
20.
1
Iskander falsely represented that he would not use any of Defendants’
information. Iskander knowingly, knowingly, intentionally intentionally and maliciously violated this 2 proprietary information. 3
commitment, which which was false at the time time it was made. Iskander intentionally intentionally
4
misappropriated all of Defendants’ intellectual property and trade secrets. 21.
5
As just one example of Iskander’s misappropriation of Defendants’
6
intellectual property, property, he subsequently opened a business and called it “Joke and Lok.”
7
Iskander is using all of Defendants’ misappropriated proprietary proprietary trade secrets and other
8
intellectual property in connection with his operations of a substantially-similar operation
9
in Malaysia. 22.
10
Iskander also misappropriated Defendants’ proprietary operations on
11
Twitter, Facebook, and Instagram, Instagram, and is using the same techniques in his operations in
12
Malaysia.
13
B.
14 15 16
Iskander’s Breach of the Competition Agreement
23.
In 2016, Defendants sponsored the Competition, which involved an
international group of comedians vying to garner the most votes to win. 24.
Masada specifically told Iskander in writing that the winner of the
17
Competition “must make ten scheduled trips to the United States” to perform.
18
(Exhibit 10). The Competition award of $100,000.00 $100,000.00 was to be paid in 10 installments, installments,
19
and specifically conditioned conditioned on those 10 10 appearances. (Exhibit 11).
20 21 22
25.
By entering the Competition, Iskander became contractually bound to honor
these terms and conditions. 26.
Iskander breached the Competition agreement agreement in numerous numerous ways. On
23
information and belief, Iskander created an unfair advantage to gain votes and win the
24
Competition.
25
27.
Iskander also breached the Competition agreement by failing to fulfill his
26
obligation to make 10 visits to the United States to perform, and by failing to make
27
himself available available to the press. press. (Exhibits 12, 13, 14).
28 "#$%&'() *++ , -.(/&) "01
_____________________________________________________ __________________________ _______________________________________________________ _______________________________ ___ 11 AMENDED ANSWER AND COUNTER-CLAIMS OF DEFENDANTS/COUNTER-CLAIMANTS LAUGH FACTORY, INC. AND JAMIE MASADA
!"#$ &'()*+,*-(-./*012*340 56+78$9: (- 2;<$= -&>&.>() ?"@$ (F 6A &( ?"@$ B5 C'(/(
1 2
C.
Iskander’s Interference with Defendants’ Business Opportunities.
28.
As a result of Iskander’s intentional deceit and other unlawful conduct
3
alleged herein, Iskander knowingly and intentionally interfered with Defendants’ current
4
and prospective business opportunities.
5
29.
Iskander was aware that Defendants had other current and prospective
opportunities in Asia. 6 business opportunities 7
30.
The prospective business relationships and other prospective ventures in
8
Asia contained the probability of future economic benefits benefits to Defendants. Iskander knew
9
of and intended to disrupt these relationships through the unlawful means alleged herein;
10
did in fact disrupt them; and caused substantial economic damages to Defendants as a
11
direct and proximate result.
12
COUNT I
13
(Willful Trademark Infringement, 15 U.S.C. §§ 1114-1117; Lanham Act §32)
14
(Against all Counterclaim Defendants)
15
31.
16
set forth herein.
17
32.
18 19
Defendants incorporate by reference the above-paragraphs above-paragraphs as though fully Defendants own the exclusive and incontestable trademark rights to the
Laugh Factory brand. 33.
Iskander and the other Counterclaim Defendants have used and continue to
20
use the Laugh Factory brand and other proprietary trade information in commerce and
21
without Defendants’ consent.
22
34.
The Counterclaim Defendants’ use of this proprietary information and other
23
acts of trademark infringement have been committed with the intent to and have caused
24
confusion, mistake or deception in violation of 15 U.S.C. § 1114.
25 26
35.
As a direct and proximate result of Counterclaim Defendants’ unlawful
conduct, Defendants have and will continue to suffer substantial harm and injury to their
Counterclaim Defendants’ Defendants’ conduct 27 business, goodwill and reputation. Unless enjoined, Counterclaim 28 "#$%&'() *++ , -.(/&) "01
will continue to cause Defendants immediate and irreparable injury. _____________________________________________________ __________________________ _______________________________________________________ _______________________________ ___ 12 AMENDED ANSWER AND COUNTER-CLAIMS OF DEFENDANTS/COUNTER-CLAIMANTS LAUGH FACTORY, INC. AND JAMIE MASADA
!"#$ &'()*+,*-(-./*012*340 56+78$9: (- 2;<$= -&>&.>() ?"@$ (D 6A &( ?"@$ B5 C'(/&
1 2 3
36.
Counterclaim Defendants’ acts of trademark infringement are willful,
intentional and committed with malice to harm Defendants’ business. 37.
Counterclaim Defendants’ infringement of Defendants’ trademarks t rademarks
4
constitutes an exception case with the meaning of 15 U.S.C. § 1117, and Defendants are
5
therefore entitled to recover enhanced damages and attorneys’ fees.
6
COUNT II
7
(Common Law Trademark Infringement)
8
(Against all Counterclaim Defendants) Defendants)
9
38.
10
set forth herein.
11
39.
12 13 14 15 16
Defendants incorporate by reference the above-paragraphs above-paragraphs as though fully Counterclaim Defendants’ unlawful acts as described herein violate
Defendants’ trademark rights under California common law. 40.
Counterclaim Defendants’ acts of trademark infringement have been
committed with the intent to and have caused confusion, mistake or deception. 41.
As a direct and proximate result of Counterclaim Defendants’ unlawful
conduct, Defendants have and will continue to suffer substantial harm and injury to their
Counterclaim Defendants’ Defendants’ conduct 17 business, goodwill and reputation. Unless enjoined, Counterclaim 18 19
will continue to cause Defendants immediate and irreparable injury. 42.
Counterclaim Defendants’ acts of trademark infringement are willful,
20
intentional and committed committed with malice malice to harm Defendants’ Defendants’ business. Defendants
21
therefore seek to recover enhanced damages and an award of attorneys’ fees.
22
COUNT III
23
(Misappropriation (Misappropriation of Trade Secrets pursuant to 18 U.S.C. §1836(b)
24
(Against all Counterclaim Defendants) Defendants)
25
43.
Defendants incorporate by reference the above-paragraphs above-paragraphs as though fully
26
set forth herein.
27 28 "#$%&'() *++ , -.(/&) "01
_____________________________________________________ __________________________ _______________________________________________________ _______________________________ ___ 13 AMENDED ANSWER AND COUNTER-CLAIMS OF DEFENDANTS/COUNTER-CLAIMANTS LAUGH FACTORY, INC. AND JAMIE MASADA
!"#$ &'()*+,*-(-./*012*340 56+78$9: (- 2;<$= -&>&.>() ?"@$ (E 6A &( ?"@$ B5 C'(/F
1
44.
Defendants’ trade secrets derive independent economic value from not being
2
known to the public or other persons who could obtain economic value from their
3
disclosure or use.
4
45.
Defendants’ trade secrets are confidential and are the subject of Defendants’
5
efforts that were reasonable under the circumstances ci rcumstances to maintain their secrecy.
6
Defendants are informed and believe that Counterclaim Defendants misappropriated such
7
confidential trade secrets by disclosing them and/or using them.
8 9
46.
Defendants are informed and believe that Counterclaim Defendants
misappropriated the trade secrets while being aware that the trade secrets belong to
10
Defendants and of Counterclaim Defendants’ duties and obligations to Defendants to
11
limit the disclosure and use of such trade secrets only for the benefit of Defendants, and
12
that such disclosure was in violation of Iskander’s agreements with and obligations to
13
Defendants.
14
47.
Counterclaim Defendants' misappropriation misappropriation has caused and continues to
15
cause Defendants damages and irreparable and substantial injury and therefore cannot be
16
fully redressed through damages alone. An injunction prohibiting Counterclaim
17
Defendants from further use or disclosure of Defendants’ trade secrets is necessary to
Defendants with complete relief. relief. 18 provide Defendants 19 20
48.
Counterclaim Defendants' misappropriation misappropriation is willful and malicious and
thereby entitles Defendants to an award of exemplary damages.
21
COUNT IV
22
(Misappropriation (Misappropriation of Trade Secrets pursuant to
23
California Civil Code §3426, et seq.) seq.)
24
(Against all Counterclaim Defendants) Defendants)
25
49.
Defendants incorporate by reference the above-paragraphs above-paragraphs as though fully
26
set forth herein.
27 28 "#$%&'() *++ , -.(/&) "01
_____________________________________________________ __________________________ _______________________________________________________ _______________________________ ___ 14 AMENDED ANSWER AND COUNTER-CLAIMS OF DEFENDANTS/COUNTER-CLAIMANTS LAUGH FACTORY, INC. AND JAMIE MASADA
!"#$ &'()*+,*-(-./*012*340 56+78$9: (- 2;<$= -&>&.>() ?"@$ (/ 6A &( ?"@$ B5 C'(/D
1
50.
Defendants’ trade secrets derive independent economic value from not being
2
known to the public or other persons who could obtain economic value from their
3
disclosure or use.
4
51.
Defendants’ trade secrets are confidential and are the subject of Defendants’
5
efforts that were reasonable under the circumstances to maintain their secrecy.
6
Defendants are informed and believe that Counterclaim Defendants misappropriated such
7
confidential trade secrets by disclosing them and/or using them.
8 9
52.
Defendants are informed and believe that Counterclaim Defendants
misappropriated the trade secrets while being aware that the trade secrets belong to
10
Defendants and of Counterclaim Defendants’ duties and obligations to Defendants to
11
limit the disclosure and use of such trade secrets only for the benefit of Defendants, and
12
that such disclosure was in violation of Iskander’s agreements with and obligations to
13
Defendants.
14
53.
Counterclaim Defendants' misappropriation misappropriation has caused and continues to
15
cause Defendants damages and irreparable and substantial injury and therefore cannot be
16
fully redressed through damages alone. An injunction prohibiting Counterclaim
17
Defendants from further use or disclosure of Defendants’ trade secrets is necessary to
Defendants with complete relief. relief. 18 provide Defendants 19 20
54.
Counterclaim Defendants' misappropriation misappropriation is willful and malicious and
thereby entitles Defendants to an award of exemplary damages.
21
COUNT V
22
(Breach of Written Contract)
23
(Against Iskander)
24
55.
25
set forth herein.
26
56.
27
Defendants incorporate by reference the above-paragraphs above-paragraphs as though fully As set forth above, Defendants and Iskander entered into a contract
concerning the Competition. Competition. The terms and conditions of that agreement agreement were agreed to
were memorialized memorialized in writing. 28 both orally and were "#$%&'() *++ , -.(/&) "01
_____________________________________________________ __________________________ _______________________________________________________ _______________________________ ___ 15 AMENDED ANSWER AND COUNTER-CLAIMS OF DEFENDANTS/COUNTER-CLAIMANTS LAUGH FACTORY, INC. AND JAMIE MASADA
!"#$ &'()*+,*-(-./*012*340 56+78$9: (- 2;<$= -&>&.>() ?"@$ (. 6A &( ?"@$ B5 C'(/E
57.
1 2
Defendants duly performed all conditions, covenants, and promises required
on its part to be performed pursuant to the agreement. 58.
3
Iskander breached his contractual obligations to Defendants under the
4
agreement by, inter alia, failing to perform the required 10 shows following the
5
Competition. 59.
6
As a direct and proximate result of Iskander’s breach of the agreement,
7
Defendants have incurred and continue to incur damages in an amount to be proven at
8
trial.
9
COUNT VI
10
(Unfair Competition pursuant pursuant to Cal. Bus. & Prof. Code § 17200, et seq.) seq.)
11
(Against all Counterclaim Defendants)
12
60.
Defendants incorporate by reference the above-paragraphs above-paragraphs as though fully
13
set forth herein.
14
61.
By committing the acts and practices alleged in this Counterclaim,
15
Counterclaim Defendants have violated California’s Unfair Competition Laws by
16
engaging in unfair, deceptive, untrue or misleading acts. For example, Counterclaim
17
Defendants misappropriated Defendants’ Defendants’ trade secrets in violation of 18 U.S.C. §1836
18
and California Civil Code §3426.
19
62.
Defendants are informed and believe that Counterclaim Defendants' actions
20
are and will continue to be willful and deliberate. As a direct and proximate result of such
21
actions by Counterclaim Defendants, Defendants have incurred and continue to incur
22
damages and irreparable injury, including, without limitation, the loss of sales s ales and profits
23
it would have earned but for Counterclaim Counterclaim Defendants' actions, actions, and interference with
24
Defendants’ relationships with customers and potential customers.
25
63.
Defendants are informed and believe that Counterclaim Defendants have
26
derived and received, and will continue to derive and receive, gains, profits, and
27
advantages from their acts of unfair u nfair competition.
28 "#$%&'() *++ , -.(/&) "01
_____________________________________________________ __________________________ _______________________________________________________ _______________________________ ___ 16 AMENDED ANSWER AND COUNTER-CLAIMS OF DEFENDANTS/COUNTER-CLAIMANTS LAUGH FACTORY, INC. AND JAMIE MASADA
!"#$ &'()*+,*-(-./*012*340 56+78$9: (- 2;<$= -&>&.>() ?"@$ (G 6A &( ?"@$ B5 C'(//
1
COUNT VII
2
(Intentional Interference with Prospective Economic Advantage)
3
64.
Defendants incorporate by reference the above-paragraphs above-paragraphs as though fully
4
set forth herein.
5
65.
As alleged above, Defendants had prospective ventures in Asia contained the
future economic economic benefits to Defendants. Defendants. 6 probability of future 7 8 9 10 11
66.
Iskander knew of and intended to disrupt these relationships through the
unlawful means alleged herein. 67.
Iskander did in fact disrupt Defendants’ economic opportunities, opportunities, causing
substantial economic damages to Defendants as a direct and proximate result. 68.
Iskander’s misappropriation misappropriation of Defendants’ trade secrets and other
12
intellectual property continues to damage Defendants to this day, and will continue to
13
cause damage into the future. PRAYER FOR RELIEF
14 15
WHEREFORE, Defendants pray for judgment and relief as follows:
16
A.
Judgment in Defendants’ favor that: 1.
17
Counterclaim Defendants wrongfully misappropriated or used Defendants’ trade secrets;
18
2.
19
Counterclaim Defendants wrongfully misappropriated or used Defendants’ trademarks;
20 21
3.
Counterclaim Defendants engaged in unfair competition;
22
4.
Iskander breached his agreement with Defendants.
23 24 25
B.
Temporary, preliminary and permanent injunctive relief enjoining
Counterclaim Defendants from: 1.
of Defendants’ trade secrets and/or trademarks;
26 27 28 "#$%&'() *++ , -.(/&) "01
Misappropriating and/or aiding and abetting in the misappropriation
2.
Maintaining - and, correspondingly, correspondingly, requiring Counterclaim Defendants to promptly deliver and turn over to Defendants - any and
_____________________________________________________ __________________________ _______________________________________________________ _______________________________ ___ 17 AMENDED ANSWER AND COUNTER-CLAIMS OF DEFENDANTS/COUNTER-CLAIMANTS LAUGH FACTORY, INC. AND JAMIE MASADA
!"#$ &'()*+,*-(-./*012*340 56+78$9: (- 2;<$= -&>&.>() ?"@$ () 6A &( ?"@$ B5 C'(/.
all property of Defendants which is in Counterclaim Defendants'
1
possession, custody or control.
2 3 4
C.
Compensatory damages in an amount to be proven at trial, but at least $10
million.
5
D.
Disgorgement of profits.
6
E.
Constructive trust.
7
F.
Punitive and/or exemplary damages.
8
G.
Attorneys’ fees.
9
H.
Interest and costs.
10
I.
Such further and other relief as the Court may deem proper and just.
11
Respectfully submitted,
12 13
DATED: February 27, 2019
ALBRIGHT, YEE & SCHMIT, APC
14 15 16 17 18 19
By:
/ s s/ David Martin David Martin
Attorneys for Defendants LAUGH FACTORY, INC. and JAMIE MASADA
20 21 22 23 24 25 26 27 28 "#$%&'() *++ , -.(/&) "01
_____________________________________________________ __________________________ _______________________________________________________ _______________________________ ___ 18 AMENDED ANSWER AND COUNTER-CLAIMS OF DEFENDANTS/COUNTER-CLAIMANTS LAUGH FACTORY, INC. AND JAMIE MASADA
!"#$ &'()*+,*-(-./*012*340 56+78$9: (- 2;<$= -&>&.>() ?"@$ &- 6A &( ?"@$ B5 C'(/G Harith Iskander Iskander v. Laugh Laugh Factory, Inc., et et al. LASC Case No. 18STCV08097
ECF/PACER FILE AND SERVE
1 2 3
I, CONNIE R. WHITE, declare:
4
1.
I am over the age of 18 years and am not a party to the within action. I am
5
employed by Albright Yee and Schmit, APC in the City of Los Angeles, State of
6
California. 2.
7 8
My business address is 888 West 6th Street, 14th Floor, Los Angeles, CA
90017. 3.
9
On February 27, 2019, I served a copy of the foregoing document, titled:
10 11
AMENDED ANSWER AND COUNTER-CLAIMS OF
12
DEFENDANTS/ COUNTER-CLAIMANTS LAUGH FACTORY,
13
INC. AND JAMIE MASADA
14
[ X ] by filing and and serving directly through through ECF/Pacer at the USDC-Central USDC-Central
15 16
District of California website website at: https://cacd.uscourts.gov. https://cacd.uscourts.gov. I declare under penalty of perjury under the laws of the State of California and the
17 18
United States of America that the foregoing is true and correct. Executed on February 27, 2019 at Los Angeles, California.
19 20 21 22 23
By:
/ s s/ Connie White Connie White
24 25 26 27 28 "#$%&'() *++ , -.(/&) "01
_____________________________________________________ __________________________ _______________________________________________________ _______________________________ ___ PROOF OF SERVICE
!"#$ &'()*+,*-(-./*012*340 56+78$9: (- 2;<$= -&>&.>() ?"@$ &( 6A &( ?"@$ B5 C'(/) Harith Iskander Iskander v. Laugh Laugh Factory, Inc., et et al. LASC Case No. 18STCV08097
1 2
CERTIFICATE OF SERVICE
I certify that on February 27, 2019 the foregoing document, entitled:
3 4 5 6 7 8 9 10 11 12 13
AMENDED ANSWER AND COUNTER-CLAIMS OF DEFENDANTS/COUNTER-CLAIMANTS DEFENDANTS/COUNTER-CLAIMANTS LAUGH FACTORY, INC. I NC. AND JAMIE MASADA
was served on all parties or their counsel of record by serving a true and correct copy by U.S. MAIL at the address listed below: Joseph K. Johnson, Esq. Attorneys for Plaintiff LAW OFFICE OF HARITH ISKANDE ISKANDER, R, an individual individual JOSEPH K. JOHNSON, PC 27201 Puerta Real, Suite 300 Mission Viejo, CA 92691-8590 Tel: (949) 284-0062 / Fax: (949) 284-0062 Email: jjohnson@josephkjo Email:
[email protected] hnson.com
14 15 16
Connie R. White
17 18 19 20 21 22 23 24 25 26 27 28 "#$%&'() *++ , -.(/&) "01
_____________________________________________________ __________________________ _______________________________________________________ _______________________________ ___ PROOF OF SERVICE
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ ( 6A B. ?"@$ C5 D'(.-
EXHIBIT 1.
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ & 6A B. ?"@$ C5 D'(.(
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ B 6A B. ?"@$ C5 D'(.&
EXHIBIT 2.
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ E 6A B. ?"@$ C5 D'(.B
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ F 6A B. ?"@$ C5 D'(.E
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ / 6A B. ?"@$ C5 D'(.F
EXHIBIT 3.
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ . 6A B. ?"@$ C5 D'(./
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ G 6A B. ?"@$ C5 D'(..
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ ) 6A B. ?"@$ C5 D'(.G
EXHIBIT 4.
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ (- 6A B. ?"@$ C5 D'(.)
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ (( 6A B. ?"@$ C5 D'(G-
EXHIBIT 5.
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ (& 6A B. ?"@$ C5 D'(G(
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ (B 6A B. ?"@$ C5 D'(G&
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ (E 6A B. ?"@$ C5 D'(GB
EXHIBIT 6.
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ (F 6A B. ?"@$ C5 D'(GE
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ (/ 6A B. ?"@$ C5 D'(GF
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ (. 6A B. ?"@$ C5 D'(G/
EXHIBIT 7.
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ (G 6A B. ?"@$ C5 D'(G.
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ () 6A B. ?"@$ C5 D'(GG
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ &- 6A B. ?"@$ C5 D'(G)
EXHIBIT 8.
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ &( 6A B. ?"@$ C5 D'()-
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ && 6A B. ?"@$ C5 D'()(
EXHIBIT 9.
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ &B 6A B. ?"@$ C5 D'()&
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ &E 6A B. ?"@$ C5 D'()B
EXHIBIT 10.
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ &F 6A B. ?"@$ C5 D'()E
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ &/ 6A B. ?"@$ C5 D'()F
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ &. 6A B. ?"@$ C5 D'()/
EXHIBIT 11.
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ &G 6A B. ?"@$ C5 D'().
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ &) 6A B. ?"@$ C5 D'()G
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ B- 6A B. ?"@$ C5 D'())
EXHIBIT 12.
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ B( 6A B. ?"@$ C5 D'&--
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ B& 6A B. ?"@$ C5 D'&-(
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ BB 6A B. ?"@$ C5 D'&-&
EXHIBIT 13.
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ BE 6A B. ?"@$ C5 D'&-B
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ BF 6A B. ?"@$ C5 D'&-E
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ B/ 6A B. ?"@$ C5 D'&-F
EXHIBIT 14.
!"#$ &'()*+,*-(-./*012*340 56+78$9: (-*( 2;<$= -&>&.>() ?"@$ B. 6A B. ?"@$ C5 D'&-/
