COUNTY OF NEW YORK ______________________________________________ J ACKSON SU
Plaintiff Index No.
-against- Summons
MSMB GROUP, MSMB CAPITAL MANGAGEMENT LLC, MSMB CAPITAL MANAGEMENT LP, MSMB CONSUMER GP LLC, MSMB CONSUMER LP, MSMB CONSUMER MANAGEMENT LLC, MSMB HEALTHCARE INVESTORS LLC, MSMB HEALTHCARE LP, MSMB HEALTHCARE MANAGEMENT LLC MSMB INVESTORS LLC, MSMB ISOTOPE FUND LP, MSMB ISOTOPE GP LLC, MSMB ISOTOPE MANAGEMENT LLC, MSMB PHARMACEUTICALS, INC.,, RETROPHIN INC, RETROPHIN LLC, RETROPHIN PHARMACEUTICAL INC, SUREPOINT INVESTMENT FUND LLC, MAREK BIESTEK and MARTIN SHKRELI Venue is based on Defendants' Place of Business 777 Third Avenue, 22nd fl.. NY, NY 10017 Defendants County of New York _______________________________________________ TO THE ABOVE NAMED RESPONDENT:
You are hereby summoned to appear in the Supreme Court of the State of New York, County of New York at the office of the Clerk of the said court at 60 Centre Street, NY, NY in the County of New York, City and State of New York within the time provided by law as noted below and to file your answer to the annexed complaint with the clerk: Upon the failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint with interest from March 1, 2013 together with the costs of this action.
Dated: March 25, 2013 M. Daniel Bach, Esq. Attorney for Plaintiff 38 West 32 nd St., Suite 1110 NY, NY 10001 (917) 699.7193 FILED: NEW YORK COUNTY CLERK 04/02/2013 INDEX NO. 152992/2013 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/02/2013 2 Note: The Law provides that a if this summons is served by its delivery to you personally within the city of New York, you must appear and answer within 20 days after service of this summons, exclusive of the day of service; or if this summons is served by delivery to any person other than you personally, or is served outside the city of New York or by publication, or by any means other than personal delivery to you within the city of New York you are allowed thirty days after proof of service thereof is filed with the clerk of this court within which to appear and answer.
Defendants' address: 777 Third Avenue, 22nd Fl. NY, NY 10017 3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ______________________________________________ J ACKSON SU
Plaintiff Index No.
-against- COMPLAINT
MSMB GROUP, MSMB CAPITAL MANGAGEMENT LLC, MSMB CAPITAL MANAGEMENT LP, MSMB CONSUMER GP LLC, MSMB CONSUMER LP, MSMB CONSUMER MANAGEMENT LLC, MSMB HEALTHCARE INVESTORS LLC, MSMB HEALTHCARE LP, MSMB HEALTHCARE MANAGEMENT LLC MSMB INVESTORS LLC, MSMB ISOTOPE FUND LP, MSMB ISOTOPE GP LLC MSMB ISOTOPE GP LLC, MSMB ISOTOPE MANAGEMENT LLC, MSMB PHARMACEUTICALS, RETROPHIN INC, RETROPHIN LLC, RETROPHIN PHARMACEUTICAL INC, SUREPOINT INVESTMENT FUND LLC, MAREK BIESTEK and MARTIN SHKRELI
_______________________________________________
Plaintiff by his attorney, M. Daniel Bach, Esq. complaining of the Defendants herein, upon information and belief, respectfully shows to this court, and alleges as follows:
THE PARTIES
1. That at all times hereinafter mentioned, the Plaintiff presently resides at 401 East 60th St, NY, NY.
2. That at all times hereinafter mentioned, the Defendant MSMB Group is a Delaware Corporation doing business in New York.
4 3. The Defendant MSMB Group is doing business at 777 Third Avenue, NY, NY 10017
4. That at all times hereinafter mentioned, the Defendant MSMB Capital Management, LLC is a Delaware Corporation doing business in New York.
5. The Defendant MSMB Capital Management, LLC is doing business at 777 Third Avenue, NY, NY 10017
6. That at all times hereinafter mentioned, the Defendant MSMB Capital Management, LP is a Delaware Corporation doing business in New York.
7. The Defendant MSMB Capital Management LP is doing business at 777 Third Avenue, NY, NY 10017
8. That at all times hereinafter mentioned, the Defendant MSMB Consumer GP LLC is a Delaware Corporation doing business in New York.
9. The Defendant MSMB Consumer GP, LLC is doing business at 777 Third Avenue, NY, NY 10017
10. That at all times hereinafter mentioned, the Defendant MSMB Consumer LP is a Delaware Corporation doing business in New York. 5
11. The Defendant MSMB Consumer LP is doing business at 777 Third Avenue, NY, NY 10017
12. That at all times hereinafter mentioned, the Defendant MSMB Consumer Management LLC is a Delaware Corporation doing business in New York.
13. The Defendant MSMB Consumer Management, LLC is doing business at 777 Third Avenue, NY, NY 10017
14. That at all times hereinafter mentioned, the Defendant MSMB Health Care Investors LLC is a Delaware Corporation doing business in New York.
15. The Defendant MSMB Health Care Investors LLC is doing business at 777 Third Avenue, NY, NY 10017
16. That at all times hereinafter mentioned, the Defendant MSMB Health Care LP LLC is a Delaware Corporation doing business in New York.
17. The Defendant MSMB Health Care LP is doing business at 777 Third Avenue, NY, NY 10017
6 18. That at all times hereinafter mentioned, the Defendant MSMB Health Care Management LLC is a Delaware Corporation doing business in New York.
19. The Defendant MSMB Consumer Management, LLC is doing business at 777 Third Avenue, NY, NY 10017
20. That at all times hereinafter mentioned, the Defendant MSMB Investors LLC is a Delaware Corporation doing business in New York.
21. The Defendant MSMB Investors, LLC is doing business at 777 Third Avenue, NY, NY 10017
22. That at all times hereinafter mentioned, the Defendant MSMB Isotope Fund LP is a Delaware Corporation doing business in New York.
23. The Defendant MSMB Isotope Fund LP is doing business at 777 Third Avenue, NY, NY 10017
24. That at all times hereinafter mentioned, the Defendant MSMB Isotope GP LLC is a Delaware Corporation doing business in New York.
25. The Defendant MSMB Isotope GP LLC is doing business at 777 Third Avenue, NY, NY 10017 7
26. That at all times hereinafter mentioned, the Defendant MSMB Isotope Management LLC is a Delaware Corporation doing business in New York.
27. The Defendant MSMB Isotope Management LLC is doing business at 777 Third Avenue, NY, NY 10017
28. That at all times hereinafter mentioned, the Defendant MSMB Pharmaceuticals Inc. is a Delaware Corporation doing business in New York.
29. The Defendant MSMB Pharmaceuticals Inc. is doing business at 777 Third Avenue, NY, NY 10017
30. That at all times hereinafter mentioned, the Defendant Retrophin, Inc., is a Delaware Corporation doing business in New York.
31. The Defendant Retrophin, Inc. is doing business at 777 Third Avenue, NY, NY 10017
32. That at all times hereinafter mentioned, the Defendant Retrophin LLC is a Delaware Corporation doing business in New York.
8 33. The Defendant Retrophin, LLC is doing business at 777 Third Avenue, NY, NY 10017
34. That at all times hereinafter mentioned, the Defendant Retrophin, Pharmaceutical Inc. is a Delaware Corporation doing business in New York.
35. The Defendant Retrophin, Pharmaceutical Inc. is doing business at 777 Third Avenue, NY, NY 10017
36. That at all times hereinafter mentioned, the Defendant Surepoint Investment Fund LLC is a Delaware Corporation doing business in New York.
37. The Defendant Surepoint Investment LLC is doing business at 777 Third Avenue, NY, NY 10017
38. The Defendant Martin Shkreli is the CEO and CFO of all the Defendant companies.
39. The Defendant, Marek Biestek is a major shareholder in the defendant companies.
40. The Defendant Marek Biestek works at said companies located at 777 Third Avenue, New York, NY. 9
41. The Defendant Martin Shkreli is the largest shareholder in the Defendant companies.
42. The Defendant Martin Shkreli works at said companies located at 777 Third Avenue, NY, NY 10017.
FACTS COMMON TO ALL CAUSES OF ACTION
43. That on or about January 12, 2012, Plaintiff signed a contract to work for Defendants; MSMB Capital Management, LLC, MSMB Healthcare Management, LLC, MSMB Isotope LLC, SurePoint Management, LLC, Retrophin, LLC and "its related companies"
44. Defendant Martin Shkreli signed on behalf of the Defendant companies.
45. Plaintiff was to manage the infrastructure for these companies; specifically operations, technology, administration and human resources.
46. The Plaintiff was to be the Chief Operating Officer for all the Defendant companies.
47. That the Plaintiff performed all of these activities as well as other responsibilities during his tenure at the company. 10
48. The offer of employment included incentive payments: (a) 25% of MSMB Isotope, (b) 25% of MSMB Consumer, (c ) 18-25% of MSMB Healthcare and other funds and (d) 2,500 units of Retrophin, LLC.
49. As per the contract, "in the case of Employee departure from the Company, incentive payments will gradually decline 20% each year over the course of 5 years following year of departure.
50. The offer also included a guaranteed salary of $150,000, payable at the beginning of each quarter.
51. The Plaintiff was also informed that health insurance would be included as well.
52. That part of his responsibilities of the defendant companies included but was not limited to: technology, formulating compliance policies, office management, handled administrative duties and assisted in helping Retrophin, Inc. to become a public company.
53. All of the Defendant companies were responsible for the salary of the Plaintiff.
11 54. That the companies failed to make the first quarterly salary payment in January, 2013 as per the agreement.
55. Said payment should have been in the amount of $37,500.
56. From the start of employment until the final date of employment the Defendants failed to provide health insurance to the Plaintiff as previously agreed to by the parties.
57. That the Plaintiff was forced to provide for his own health insurance in the amount of $11, 970.
58. The Defendant companies breached their agreement with the Plaintiff.
59. That the Plaintiff received a letter dated March 8, 2013 from the Defendants' attorney notifying him that he was terminated retroactively on December 21, 2012.
FIRST CAUSE OF ACTION
60. Plaintiffs repeat and re-alleges each and every paragraph 1 through 59 as if fully set forth herein.
12 61. That the Defendants failed to pay for the salary of the Plaintiff, thirty seven thousand dollars five hundred ($37,500).
62. Defendants have failed to pay for Plaintiff's health benefits eleven thousand three hundred and eighty seven dollars ($11, 970).
63. That the actions of the defendants constitute a breach of contract.
64. As a result, Plaintiff has been damaged and is entitled to recover from defendants his unpaid compensation, interest, reasonable attorney fees and costs and disbursements of the action.
65. That as a result of these actions the Plaintiffs are entitled to at least forty nine thousand four hundred and seventy ($49, 470)
AS AND FOR A SECOND CAUSE OF ACTION
66. Plaintiff repeats and re-alleges each and every paragraph 1 through 65 as if fully set forth herein.
67. Defendants' failure to pay for the wages of the Plaintiff was in violation of New York Labor Law Sec. 191 and its implementing regulations.
13 68. Defendants' failure to pay wages earned was willful within the meaning of New York Labor Law Sec. 198 and supporting regulations. 69. Due to defendants' New York Labor Law violations, plaintiff is entitled to recover from defendants his unpaid compensation, liquidated damages, interest, reasonable attorneys' fees, and costs and disbursements of the action, pursuant to New York Labor Law Sec. 198.
AS AND FOR A THIRD CAUSE OF ACTION
70. Plaintiff repeats and re-alleges each and every paragraph 1 through 69 as if fully set forth herein.
71. That the actions of the Defendants are a breach of covenant of good faith and fair dealing. AS AND FOR A FOURTH CAUSE OF ACTION 72. Plaintiff repeats and re-alleges each and every paragraph 1 through 71 as if fully set forth herein.
73. That the actions of the Defendants consist of quantum meriut, and unjust enrichment. AS AND FOR A FITH CAUSE OF ACTION
74. Plaintiff repeats and re-alleges each and every paragraph 1 through 73 as if fully set forth herein. 14
75. That as per the contract, the Plaintiff was to receive a percentage of the performance fee. 76. The Defendant Martin Shkreli had claimed more than one hundred million in assets ($100,000,000)
77. Based on the management fees of the Defendants, the Defendants should have received $6,800,000.
78. Based on the contract terms the Plaintiff should receive 25% of $6,800,000 or $1,700,000.
79. That as a result of these actions the Plaintiff is entitled to at least one million, seven hundred thousand dollars.
AS AND FOR A SIXTH CAUSE OF ACTION
80. Plaintiff repeats and re-alleges each and every paragraph 1 through 79 as if fully set forth herein.
81. That the Plaintiff was not compensated for unused vacations.
82. That the amount is $4,615. 15
83. That as a result of these actions the Plaintiffs are entitled to at least four thousand six hundred and fifteen dollars $4,615.
AS AND FOR A SEVENTH CAUSE OF ACTION
84. Plaintiff repeats and re-alleges each and every paragraph 1 through 83 as if fully set forth herein.
85. Defendant's actions in failing to pay the wages and benefits have deprived the Plaintiff of the benefits he was due under the agreement.
86. The actions referred to in paragraph 85 were the result of deliberate choices and the exercise of discretion of the Defendants.
87. These actions of the Defendants were the breach of implied covenant of good faith and fair dealing.
88. Plaintiff's damages are at least $1,700,000, but may be a higher amount.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully request that the court grant the following relief: 16 a. Plaintiffs demand compensatory damages due to the actions of the Defendants for unpaid compensation due under New York Labor Law. b. An award of liquidated damages as a result of defendants' willful failure to pay compensation pursuant to New York Labor Law; c. Damages for breach of contract. d. Back pay. e. Punitive damages. f. An award of prejudgment and post judgment interest; g. Plaintiffs demand attorneys fees against the Defendants as well as for costs and expenses of this action. JURY TRIAL DEMAND
Plaintiff demands trial by jury on all issues so triable.
Dated: April 1, 2013 New York, NY M. Daniel Bach, Esq. Attorney for Plaintiff 38 West 32 nd St., Suite 1110 NY, NY 10001 (917) 699.7193