cy4 - mlm news deskmlmhelpdesk.com/wp-content/docs/oa_vi/a_then/complaint.pdfvisalus maintains a...
Post on 20-Jul-2020
3 Views
Preview:
TRANSCRIPT
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
VISALUS, INC.,
Plaintiff,
CY4 '/s.
AMBER THEN and OCEAN AVENUE LLC,
Case No.;
Defendants.
VERIFIED COMPLAINT FOR INJUNCTIVE AND OTHER RELIEF
Plaintiff, VISALUS, INC. ("ViSalus" or the "Company"), by its attorneys, and for
its complaint against Defendants, AMBER THEN ("Then") and OCEAN AVENUE LLC.
("Ocean Avenue"), states as follows:
PRELIMINARY STATEMENT
Defendant Then Was a prominent and successful independent distributor of ViSalus
weight management products, nutritional supplements, and energy drinks. In approximately
November and December 2012, ViSalus discovered information that led it to believe that, while
Then was still a ViSalus distributor, she had nevertheless begun working with a direct competitor
of ViSalus ie., Defendant Ocean Avenue. Based on that information, ViSalus suspended Then's
account. Thereafter. Then requested to be reinstated as a ViSalus distributor and ViSalus agreed
to reinstate her on the condition that, in addition to other covenants, Then agreed to be bound by
a limited non-compete agreement preventing her from working for Ocean Avenue for one year
following any departure from ViSalus, but not otherwise limiting her employment opportunities.
Then accepted ViSalus' offer of reinstatement and signed the non-compete agreement on
1
Case 4:13-cv-00028-WTM-GRS Document 1 Filed 01/30/13 Page 1 of 18
December 14, 2012, Shortly thereafter, and in blatant violation of her non-compete agreement,
Then began openly working with Ocean Avenue. In addition to violating her non-compete
agreement, Then has actively solicited and recruited other ViSalus distributors to leave ViSalus
for Ocean Avenue. Then's actions have harmed ViSalus and threaten further irreparable injury
unless Then is enjoined from violating her contractual obligations to ViSalus. Ocean Avenue
has intentionally interfered with ViSalus' contractual rights, by, among other things, associating
with Then, despite its knowledge of Then's non-compete agreement, and encouraging Then to
solicit and recruit other ViSalus distributors.
PARTIES, JURISDICTION, AND VENUE
1. This is an action asserting claims for multiple breaches of the non-
compete and non-solicitation agreements by and between Then and ViSalus.
2. ViSalus is a corporation organized under Delaware law with its principal
place of business located at 1607 East Big Beaver Road, Suite 110, Troy, Michigan 48083.
3. On information and belief, Then is a citizen of the State of Georgia who
maintains a residence at 44 White Oak Bluff, Savannah, Georgia 31405. Then became a ViSalus
distributor as an independent contractor beginning on or about March 30, 2011. Then officially
resigned as a ViSalus distributor on December 28, 2012.
4. On information and belief, Ocean Avenue is a limited liability company
organized under the laws of Wyoming, having its principal place of business in South Jordan,
Utah. On information and belief, no members of Ocean Avenue are citizens of Georgia. Ocean
Avenue is a direct competitor of ViSalus.
5. This Court has subject matter jurisdiction under 28 U.S.C. §1332(a)(1)
based on the parties' diversity of citizenship. The amount in controversy exceeds the value, of
2
Case 4:13-cv-00028-WTM-GRS Document 1 Filed 01/30/13 Page 2 of 18
$75,000, exclusive of interest or costs, as evidenced by, among other things, the revenue and
profits generated by Then and the ViSalus distributors whom she has improperly solicited and
will continue to solicit unless enjoined.
6. This Court has personal jurisdiction over the defendants. At all times
relevant hereto, Then has been a resident of and domiciled in the State of Georgia and has
conducted business activities within the State of Georgia. Ocean Avenue does business within
the State of Georgia, has had numerous contacts with Then and other ViSalus distributors in the
State of Georgia, and has committed tortious acts in the State of Georgia.
7, Venue lies in this district because Then resides in this district and a
substantial part of the events or omissions giving rise to the claims in this Complaint occurred in
this district.
FACTS - BACKGROUND
8. ViSalus is a network marketing company that sells weight management
products, nutritional supplements, and energy drinks. it uses the trademark "ViSalus Sciences"
in promoting its prOducts. As a network marketing company, ViSalus products are not sold
through retail outlets. Instead, ViSalus relies on a network of distributors (a/Ida promoters") to
market and sell ViSalus products directly to the public.
9: Founded in 2005, ViSalus is one of the fastest growing companies in the
network marketing (a/k/a direct selling) industry. A key component of this business success has
been ViSalus' ability to build and maintain a vast network of distributors who both market and
sell ViSalus product and recruit additional distributors to join the ViSalus team. This
distribution network is the channel through which ViSalus ultimately is able to sell its products
to the end users.
3
Case 4:13-cv-00028-WTM-GRS Document 1 Filed 01/30/13 Page 3 of 18
10. In order to encourage distributors to encourage growth of product sales
through the recruitment of other distributors, ViSalus not only rewards its top performing
distributors through a generous compensation plan, ViSalus also raises their profile within the
ViSalus network and publicizes their achievements throughout the ViSalus distributor
community.
11. Indeed, ViSalus has developed a program, known as the Rising Stars
program, designed to increase the visibility and exposure of distributors within the Company as
they build their customer base and recruit and develop other distributors, thereby further
increasing ViSalus' customer base.. Through the Rising Stars program, as distributors meet
certain goals designed to measure the sales success of the network of distributors that they bring
to ViSalus, they are assigned a "rank" to recognize their success. The metric used to measure a
distributor's sales success and assign ranks is known as Growth Qualification Volume ("GQV").
The GQV measures the volume of sales generated by the distributor's team. A distributor's
success in recruiting, training, and developing other distributors - which is known as their
"downline network" - is measured by the number of distributors that they directly recruit and the
rank achieved by those distributors, Through this distribution network, YiSalus is able to reach
more and more end users of its products.
12. Under the Rising Stars program, a distributdr is first assigned the rank of
Associate. As the distributor achieves certain goals in the size of their GQV per month and the
size and quality of their downline network, a distributor can advance to Director, Regional
Director, National Director, Presidential Director, and Ambassador. At the Ambassador level, a
distributor can continue to progress through additional ranks such as One Star, Two Star, Three
Star, Four Star, and Five Star Ambassador. Advancement through these ranks correlates with
4
Case 4:13-cv-00028-WTM-GRS Document 1 Filed 01/30/13 Page 4 of 18
increased sales of ViSalus' products to customers, both by the distributor and through her or her
downline network.
13. ViSalus maintains a web-based intranet system known as Vi-Net. Vi-Net
is accessible to all ViSalus distributors. On Vi-Net, ViSalus recognizes each week those
distributors who had received a promotion to a higher rank. ViSalus also distributes a.quarterly
newsletter to its distributors identifying the distributors who have been promoted in the last
quarter and touting their successes to the ViSalus network of distributors.
14. In addition, ViSalus hosts regional and national meetings, at substantial
expense, at which individuals receiving promotions are recognized by the Company in front of
large audiences of other distributors.
15. During ViSalus' regional and national meetings, its high-ranking
distributors are also given special access to other top performers through closed-door sessions
that are limited to distributors who have achieved a certain rank within the Company, such as
National Director-and Ambassador-only sessions.
16. Through this process of recognizing and promoting distributors for
growing their GQV and downline network, high-ranking distributors gain access to, and become
known to, others who have proved themselves to be superior performers in the network
marketing industry and also gain insights into which distributors are rising more quickly than
others - i.e., which distributors are likely to continue their success, Further, as a recognized
leader in growing a customer and distributor network, a high-ranking distributor at ViSalus also
obtains influence over other distributors who aspire to expand their own networks, increase their
customer base and product sales, and thereby increase their compensation.
5
Case 4:13-cv-00028-WTM-GRS Document 1 Filed 01/30/13 Page 5 of 18
Then's Relationship with ViSahis
17. On or about November 11, 2010, Then joined ViSalus as a distributor.
For the reasons that follow, Then customarily andregularly solicited customers and distributors
for ViSalus, customarily and regularly engaged in making sales or obtaining orders or contracts
for ViSalus, gained a high level of influence with ViSalus's distributors and business
relationships, was intimately involved in running her part of the business, and possesses
specialized skills, abilities; contacts and information by reason of her work with ViSalus.
18. Then rapidly advnod within \TiSalus, achieving the rank of Ambassador,
An Ambassador designation, such as Then had, means that she and her downline network
generated substantial sales. As of December 2012, Then had a downline network of more than
1100 distributors.
19. As Then progressed through ViSalus' ranks, ViSalus internally marketed
Then's achievements and promotions through the Vi-Net site and ViSalus' quarterly newsletter,
In addition, Then's accomplishments were recognized by ViSalus in front of other distributors.
20. Attaining a high rank within the ViSalus distributor community and
receiving accolades and visibility from ViSalus, as Then did, essentially "brands" a distributor
such as Then both as a highly, successful person and as a person on whose team other distributors
want to be. To competitors of ViSalus, it is desirable to recruit successful and high-ranking
distributors such as Then, because their "star power" will attract other distributors without
further efforts by the competitor.
21. Ordinarily, ViSalus is willing, to live with this fact, provided the
distributor does not actively solicit or recruit other ViSalus distributors. (See IT 24-27, below,)
However, when Then sought to be reinstated with ViSalus, ViSalus was concerned that if it
Case 4:13-cv-00028-WTM-GRS Document 1 Filed 01/30/13 Page 6 of 18
agreed to reinstate her, she represented a greater risk than she did before as a new distributor,
because Then had already demonstrated her willingness to leave ViSalus and because the
possibility existed that Then had an ulterior motive for wanting to be reinstated.
22. ViSalus was unwilling to reinstate Then, continue to promote her, and
continue to give her access to ViSalus information and other ViSaIus distributors without a
promise from Then not to go back to Ocean Avenue,
23. Ocean Avenue is of particular concern to ViSalus based on Ocean
Avenue's concerted efforts over the past several months to recruit ViSalus distributors. During
this period, ViSalus has lost a substantial number of distributors to Ocean Avenue, including
numerous distributors with the rank of Ambassador. Moreover, ViSalus was especially
concerned about the good faith of Then and two other Vi Salus distributors with whom was
aligned: her brother Thomas Then and Chelsea Nile. All three of them have now openly joined
Ocean Avenue, just as ViSalus had feared they would. Then's non-compete agreement
addressed ViSalus' legitimate concerns that Then either intended to work with (or return to)
Ocean Avenue, or that she might be tempted to do so in the future.
24. In 2012, and at the time of her separation from ViSalus, Then had a
downline network of distributors principally in northern Florida (approximately north of
Orlando), southern Georgia (south and east of Macon), and eastern South Carolina, and she sold
products, directly or indirectly, to customers and prospective customers in those same areas. In
addition, Then had distributors in her downline network in Del Ray Beach, Ft, Lauderdale,
Miami, and Miami Beach, Florida; Tiffin, Ohio; New Haven, Connecticut; Denver, Colorado
and it suburbs; El Paso and El Campo, Texas; Hohenwald and Columbia, Tennessee, and other
cities in eastern Tennessee; New York, New York and approximately seven other cities in New
7
Case 4:13-cv-00028-WTM-GRS Document 1 Filed 01/30/13 Page 7 of 18
York State; Framinghani, Massachusetts; Spokane, Washington; and numerous cities in
Alabama, Then had no geographic restrictions on her efforts to recruit distributors or sell
products.
Then's Aff eements with ViSalus.
25. Upon joining ViSalus, Then was provided, with, an "Independent
Distributor Terms Of Agreement" (referred to hereinafter as the "Distributor Agreement" and
attached hereto as Exh. A, pages 9-11) and an "IP Terms of Agreement" (collectively referred to
as the "Non-Solicitation Agreements") through the Vi-Net system (referred to hereinafter as the
"IP Agreement" and attached hereto as Exh, B).
26. Through the Distributor Agreement and the IP Agreement, Then agreed to
various conditions on her right to operate as a distributor, including a provision in each
agreement prohibiting her from soliciting or recruiting any ViSalus distributors for one year
following her departure from ViSalus. (Exh. A, at p,11123; Exh. B ¶24).
27. The operative provision in the Distributor Agreement reads as follows:
During the term of this Agreement (and any renewals) I will not sell any other products for any entity competing with VISALUS. During the term of the Agreement (and any renewals) and for (1) one year (hereafter, I will not solicit or recruit, VISALUS employees or Distributors, whether active or inactive, to participate in a network marketing program whether or not such marketing company offers products. I acknowledge that my violation of this provision will result in immediate termination of my Distributorship and payments of any kind.
Exh. A, at p.11 123 (emphasis added).
28. The operative provision in the IP Agreement reads as follows:
During the term of this agreement (and any renewals) I will not participate in any other network marketing companies. In addition, during the terms of the Agreement and for (1) one year thereafter, I will not solicit or recruit, ViSatus employees
8
Case 4:13-cv-00028-WTM-GRS Document 1 Filed 01/30/13 Page 8 of 18
or Promoters, whether active or inactive, to participate in any network marketing .program. I acknowledge that my violation of this provision will result in immediate termination of my Prômotorship and payments of any kind.
Exh, B, ¶24 (emphasis added).
29. Then accepted the benefits of the Agreements, including access to
ViSalus' products, Commission payments, marketing materials, and customer tracking and
accounting services. While affiliated with ViSalus and accepting the benefits of her affiliation
with ViSalus, Then did not object to the - Non-Solicitation Agreements or any of their terms or
conditions.
30. In November and December 2012, ViSalus discovered information that
led it to believe that Then had begun working with Ocean Avenue, a direct competitor of
ViSalus, while Then was still a ViSalus distributor. This was • a violation of the Non-Solicitation
Agreements, which prohibited Then from selling products for "any entity competing with
VISALUS" or "partieipaflingj in any other network marketing companies." Accordingly,
ViSalus took the appropriate steps to suspend Then's account and terminate its distributor
relationship with Then, and informed her of that fact.
31. Shortly thereafter, Then informed ViSalus that she wished to be reinstated
as a ViSalus distributor. As a condition of reinstatement with ViSalus, Then agreed to remove
her Ocean Avenue marketing site and to cease any further marketing of Ocean Avenue products.
ViSalus also required Then to execute a limited non-compete agreement (referred to hereinafter
as the "Non-Compete Agreement" and attached hereto as Exhibit C) prohibiting her from
working for Ocean Avenue for one (1) year following any departure from ViSalus. Then
accepted ViSalus' offer of reinstatement and signed the Non-Compete Agreement on December
14, 2012.
Case 4:13-cv-00028-WTM-GRS Document 1 Filed 01/30/13 Page 9 of 18
32. The Non-Compete Agreement reads, in part, as follows:
As you know, there was and continues to be credible evidence that you enrolled with a competing network marketing company called Ocean Avenue. With your Ocean Avenue marketing Web site taken down, and your further assurance, that you will resign from Ocean Avenue and cease all promoting for that company, we are willing to reinstate you. The terms are simple. Your business will continue uninterrupted, subject to all of the same agreements, policies and procedures. However, we will require you. to confirm by your counter-signature[] below that should you choose to resign from ViSalus, or should you be terminated by 'iSalus at anv time in the future, you will be subject to a one (1) year non-competition provision specific to Ocean Avenue. This is not an attack on Ocean Avenue or its executives per Se, it's an honest recognition that none of us want to live through this exact scenario again. So, to be clear, should you leave ViSalus again you will be prohibited from joining Ocean Avenue for one (1) year, and ViSalus will enforce that restriction through all available means.
Exh. . C (emphasis added).
Then's.VioJit ion of the Non-Compete Agreement
33. Despite having executed the Non-Compete Agreement, on December 28,
2012, Then formally tendered her resignation to ViSalus and began openly to work with Ocean
Avenue.
34. Then's duties and responsibilities as a distributor for Ocean Avenue are
the same or substantially the same as her duties and responsibilities were for ViSalus.
35. In the month following Then's resignation, Then has actively promoted
Ocean Avenue's products on her personal Facebook page. [Facebook.com , Amber Then,
https://www.facebook.comlamber.then.l (last visited January 21, 2013)],
36. Then has violated the Non-Compete Agreement by working for Ocean
Avenue during the one-year period during which she is prohibited from doing so. As a result,
ViSalus has suffered substantial business losses and is threatened with the continuing losses of
10
Case 4:13-cv-00028-WTM-GRS Document 1 Filed 01/30/13 Page 10 of 18
customers and distributors.
37. By her conduct, it is clear that, unless enjoined from doing so, Then will
continue working with Ocean Avenue and expose ViSalus to substantial harm to its legitimate
business interests.
Then's Unlawful Solicitations
38. In direct violation of her Non-Solicitation Agreements, Then has actively
solicited and recruited ViSalus distributors to Ocean Avenue,
39. Then joined Ocean Avenue as a member of the Legacy Global Network
("the Network"). The Network is Travis Flaherty's personally branded system of multi-level
marketing ("MLM") professionals, which Flaherty brought to Ocean Avenue in early 2012. The
Network is specifically aimed at recruiting lv[LM professionals like Then to Ocean Avenue from
other MLM entities such as ViSalus. As a member of the Network, Then successfully solicited
and recruited, among others, Jennifer Gueorguiev, Shellie Hrabal-Hargrove, David Bannerman,
and Tara Kelly.
40. In addition, on or about December 28, 2012, Then posted on her Facebook
page a video message in which she announced that she was now affiliated with Ocean Avenue
and encouraged her audience of ViSatus distributors and others to join her. [Facebook.com ,
Amber Then, https://www.facebook.conilamber.then. I (last visited January 21, 2013)].
41. Then has further announced on her Facebook page that she will be
attending an Ocean Avenue conference in Cancun, Mexico in late January 2013.
42. By her conduct, it is clear that, unless enjoined from doing so, Then will
continue her efforts to recruit and solicit ViSalus distributors to Ocean Avenue and expose
ViSalus to substantial harm to its legitimate business interests.
11
Case 4:13-cv-00028-WTM-GRS Document 1 Filed 01/30/13 Page 11 of 18
First Cause of Action (Against Then) Breach of Contract - Breach of Non-Compete Agreement
43. ViSalus repeats and realleges each and every allegation set forth in
Paragraphs] through 41, above, as though fully set forth herein.
44. By virtue of the conduct described above Then has breached the Non-
Compete Agreement.
45. As a direct and proximate result of Then's breaches of the Non-Compete
Agreement, ViSalus has been injured and will continue to be injured through the loss and threats
of continuing loss of customers, distributors and goodwill.
46. ViSalus' injuries cannot be fully quantified, and ViSalus has suffered
and/or will suffer irreparable harm due to Then's actions
47. ViSalus has no adequate remedy at law, and the balance of hardships
favors entering of an injunction against Then
48. ViSalüs has important and legitimate protectable business interests in
enforcing the term of the Non-Compete Agreement against Then,
49. The scope of the Non-Compete Agreement is reasonable asit is limited to
one year and to a single competing company.
Second Cause of Action (Against Then) Breach of Contract—Breach of Distributor Agreement and I? Agreement
50. ViSalus repeats and realleges each and every allegation set forth. in
Paragraphs 1 through 41, above, as though fully set forth herein.
51. By virtue of the conduct described above, Then has breached the Nan-
Solicitation Agreements.
52, As a direct and proximate result of Then's breaches of the Non-
Solicitation Agreements, ViSalus has been injured and will continue to be injured through the
12
Case 4:13-cv-00028-WTM-GRS Document 1 Filed 01/30/13 Page 12 of 18
loss of distributors and business revenue to a direct competitor.
53. ViSalus' injuries cannot be fully quantified, and ViSalus has suffered
and/or will suffer irreparable harm due to Then's actions,
54. ViSalus has no adequate remedy at law, and the balance of hardships
favors entering of an injunction against Then.
55. ViSalus has a legitimate protectable business interest in enforcing the
terms of the Non-Solicitation Agreements against Then, as that they serve to protect ViSalus'
distributor network by preventing Then from exploiting the knowledge Of, relationships with,
and influence over ViSalus' distributors that he obtained as a result of ViSalus' active promotion
and marketing of her within the Company.
56. The scope of the Non-Solicitation Agreements are reasonable because
they run for only one year and limit only Then's ability to solicit and recruit ViSalus distributors,
Third Cause of Action (Against Then) Tortious Interference with Business Relationship s
57. ViSalus repeats and realleges each and every allegation set forth in
Paragraphs 1 through 41 above as though fully set forth herein.
58. By virtue of the conduct described above, Then has tortiously interfered
with ViSalus' business relationships between ViSalus and its distributors, including Chelsea
Then and Amber Then.
59. Then was fully aware of the business relationships between ViSalus and
its distributors, including the aforementioned distributors, and intentionally and without
justification interfered with those relationships,
60. ViSalus has been damaged as a result of Then's actions through the loss of
its business relationships with its distributors and the loss of potential business from those
13
Case 4:13-cv-00028-WTM-GRS Document 1 Filed 01/30/13 Page 13 of 18
distributors, all in an amount to be determined at trial.
61 Then acted intentionally, willfully, and with reckless disregard to ViSalus'
tights.
Fourth Cause of Action (Against Ocean Avenue)' Torlious Interference with Business ReIationsh1s
62. ViSalus repeats and realleges each and every allegation set forth in
Paragraphs 1 through 41 above as though fully set forth herein.
63. By virtue of the conduct described above, Ocean Avenue has tortiously
interfered with ViSalus' business relationship with Then, and, by encouraging Then to solicit and
recruit other ViSalus distributors, Ocean Avenue has tortiously interfered with the business
relationships between ViSalus and its distributors,
64. Ocean Avenue was fully aware of the business relationship between
ViSalus and Then, and the business relationships between ViSalus and its distributors, and
intentionally and without justification interfered with those relationships. Among other things,
on January 14, 2013, attorneys for ViSalus sent to Ocean Avenue a copy of Then's Non-
Compete Agreement along with similar agreements for two other ViSalus distributors who have
also gone to work for Ocean Avenue in violation of their Non-Compete Agreements (see Exhibit
D attached hereto).
65. ViSalus has been damaged as a result of Ocean Avenue's actions through
the loss of its business relationships with Then and other distributors, and the loss of potential
business from those distributors, all in an amount to be determined at trial.
66. Ocean Avenue acted intentionally, willfully, and with reckless disregard to
ViSalus' rights.
14
Case 4:13-cv-00028-WTM-GRS Document 1 Filed 01/30/13 Page 14 of 18
WHEREFORE, ViSalus respectfully prays that the Court:
(a) issue temporary, preliminary, and permanent injunctive relief against
Then, and that Then be enjoined and restrained from participating in any way in any Ocean
Avenue network marketing program for a period of one (1). year from the date that Then's
relationship was last terminated with ViSalus plus the period of time that this Court determines
Then was in breach of the Non-Compete Agreement;
(b) issue temporary, preliminary, and permanent injunctive relief against
Then, and that Then as well as her agents, representatives, servants, employees, attorneys,
successors and assigns, and all others in active concert or participation with Then, be enjoined
and restrained from soliciting or recruiting any ViSalus employees or distributors, whether active
or inactive, to participate in any network marketing program, including, but not limited to, Ocean
Avenue, for a period of one (1) year from the date that Then's relationship was terminated with
ViSalus plus the period of time that this Court determines Then was in breach of the non-
solicitation provision of the Agreements;
(c) enter a judgment against Then that she has committed a breaches of the
Non-Compete Agreement and the Non-Solicitation Agreements by her acts and conduct set forth
in this Complaint;
(d) issue temporary, preliminary, and permanent injunctive relief against
Ocean Avenue, and that Ocean Avenue be enjoined and restrained from encouraging, inducing,
rewarding, or otherwise interfering with ViSalus' Non-Compete Agreement with Then;
(e) issue temporary, preliminary,. and permanent injunctive relief against
Ocean Avenue, and that Ocean Avenue be enjoined and restrained from encouraging, inducing,
rewarding, or otherwise interfering with ViSalus' Non-Solicitation Agreements with Then;
15
Case 4:13-cv-00028-WTM-GRS Document 1 Filed 01/30/13 Page 15 of 18
(1) order Then to pay ViSalus for the damages caused by her unlawful
conduct, in an amount to be determined at trial;
(g) order Ocean Avenue to pay ViSalus for the damages caused by their
unlawful conduct, in an amount to be determined at trial;
(h) award ViSalus exemplary damages;
(i) award ViSalus its costs and reasonable attorneys' fees;
(j) award ViSalus prejudgment interest on any monetary award; and
(k) award ViSal'us such other and further relief as this Court deems just
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
r1
Case 4:13-cv-00028-WTM-GRS Document 1 Filed 01/30/13 Page 16 of 18
Ircy
L JuMin C. u&r peiaiw of perjury OW pwunt to 29 t 170. dchre as bIkw:
rn Vk Pridrni, Servicemid Supptrt TPntiff ViSalus, Inc.
2: [
ha - ad ti ud ftimpiog Vtrifid C pkuiit FOr lnjurcivv And Other Ric
3,
The fafls statcd in ioing Vrffled Cmpam For Inimaivc And Other Relief are t" trd conec the Fsi of my kftowledge md ftnticn
305TY ME Diw
Case 4:13-cv-00028-WTM-GRS Document 1 Filed 01/30/13 Page 17 of 18
DATED this 30th day of January 2013.
Respectfully submitted,
JACKSON LEWIS LLP 1155 Peachtree Street, Suite 1000 Atlanta, Georgia 30309 Telephone: (404) 525-8200 Facsimile: (404) 525-1173
By: /s/ Eric R. Magnus • Eric R. Magnus • Georgia Bar No. 801405
rnagnuse@iackson1ewis.com C. Todd Van Dyke Georgia Bar No. 723420 vandyket@iacksonlewts.com (Admission Pro Hac Vice Pending)
Peter R. Bulmer JACKSON LEWIS LLP 150 North Michigan Ave,, Suite 2500 Chicago, Illinois 60601 Telephone: (312) 787-4949
• Facsimile: (312) 787-4995 Bu1InerPjacksonlewis.com (Admission Pro Hac Vice Pending)
Attorneys for Plaintiff VISALUS • •
•
HOLDINGS, LLC
4821-4026-7026,v. 2
Case 4:13-cv-00028-WTM-GRS Document 1 Filed 01/30/13 Page 18 of 18
Case 4:13-tc-05000 Document 7-1 Filed 01/30/13 Page 1 of 13Case 4:13-cv-00028-WTM-GRS Document 1-1 Filed 01/30/13 Page 1 of 13
Case 4:13-tc-05000 Document 7-1 Filed 01/30/13 Page 2 of 13Case 4:13-cv-00028-WTM-GRS Document 1-1 Filed 01/30/13 Page 2 of 13
Case 4:13-tc-05000 Document 7-1 Filed 01/30/13 Page 3 of 13Case 4:13-cv-00028-WTM-GRS Document 1-1 Filed 01/30/13 Page 3 of 13
Case 4:13-tc-05000 Document 7-1 Filed 01/30/13 Page 4 of 13Case 4:13-cv-00028-WTM-GRS Document 1-1 Filed 01/30/13 Page 4 of 13
Case 4:13-tc-05000 Document 7-1 Filed 01/30/13 Page 5 of 13Case 4:13-cv-00028-WTM-GRS Document 1-1 Filed 01/30/13 Page 5 of 13
Case 4:13-tc-05000 Document 7-1 Filed 01/30/13 Page 6 of 13Case 4:13-cv-00028-WTM-GRS Document 1-1 Filed 01/30/13 Page 6 of 13
Case 4:13-tc-05000 Document 7-1 Filed 01/30/13 Page 7 of 13Case 4:13-cv-00028-WTM-GRS Document 1-1 Filed 01/30/13 Page 7 of 13
Case 4:13-tc-05000 Document 7-1 Filed 01/30/13 Page 8 of 13Case 4:13-cv-00028-WTM-GRS Document 1-1 Filed 01/30/13 Page 8 of 13
Case 4:13-tc-05000 Document 7-1 Filed 01/30/13 Page 9 of 13Case 4:13-cv-00028-WTM-GRS Document 1-1 Filed 01/30/13 Page 9 of 13
Case 4:13-tc-05000 Document 7-1 Filed 01/30/13 Page 10 of 13Case 4:13-cv-00028-WTM-GRS Document 1-1 Filed 01/30/13 Page 10 of 13
Case 4:13-tc-05000 Document 7-1 Filed 01/30/13 Page 11 of 13Case 4:13-cv-00028-WTM-GRS Document 1-1 Filed 01/30/13 Page 11 of 13
Case 4:13-tc-05000 Document 7-1 Filed 01/30/13 Page 12 of 13Case 4:13-cv-00028-WTM-GRS Document 1-1 Filed 01/30/13 Page 12 of 13
Case 4:13-tc-05000 Document 7-1 Filed 01/30/13 Page 13 of 13Case 4:13-cv-00028-WTM-GRS Document 1-1 Filed 01/30/13 Page 13 of 13
Exhibit B
Case 4:13-cv-00028-WTM-GRS Document 1-2 Filed 01/30/13 Page 1 of 2
..1
.1
I.
.1 lhBI I ir cI . wlQig Lteül1i pr FR1
1. IufldstdaUcE dgaIia1 th3;/nM1 4 rd bkckg urd 04Ad X404 byYDU, t1Dã
byM, iU oithct 1Uu
• Ia t&, fdtorIri yi1b t(Y lc 1itI id M flmIi oti Ivr a1cc IW\GU.
pyifl ofol MeN sod stalompWwCm ad &I Oeciur u* S I domlUImftet vm my m "MIS, ffok6im ffoo til InUiedhai I
BDmTh WmberoF epy6 Vmtkft ia 01 frgntn od Rcdre 1bT c'r1d . 7. Ii
6thil liI I efM habnwd 6YYMWV IqAMRwopkm In Oiz n* MSIny lormWls ft PgrmniO wdkig 8pOI pcod nny pr'm fl81Q orM
b tW eipI muLI orddh 49 10. lUwLflyMW msbm alvA 118fl
IR, MOM 400w. 0. I 3Oth8I I II -- iç4wI up 018 8IIRWJ4 LO01 Ui MKWWWMW04 p1mbonin 8w.,
ad$w 4lE18 ssnwdf#ncf0y0Wpiof=mWsbA 1. I81uInd8mU I mi!qnn 10ow wil sn4cçoQ bvm outhIkn 18f 010 out 11 180 I1c14 i vomm nIOin
by01e Ia Pm ini WWooJon NmuM bew=W frnni Ikoa It8Ofl iPO1 ?$il 1 $$Xj c0kI ypç T ftInd
1. Is¼8er * dbW dIn W tadIy
rogkio - de IIa oI01a I18dolt loJ *5mI* 1&UE fl& 001$ %8flI (w*i4 Pini r 0
oWsA brity, bled MMp,Qu1x4dIMth1gn.
I wrIind Uo1 lo1nBy niolobe8 rogioy 0lt0i lnIdcnt8 njdou
EIP4 oompe pnm upaa? w I1l Mo aV 1$d0Q1
In 2. I oIdn 0itI Mn r%d nnI uird lbtWW . ad
041 a nInii P1do OroInr44 tnI by fda" md KeMl Lfm r, In
tIth kx$o U annul 01rnd to, dn0ne ro0n 1$ 80 dE1$ h øl rA
og 1bsMfn0In0un Fçev b*thai to ItoW0 Unno,\iOaa w4 Faa
yc41roLt ivaj Is N Paviv*pe P00018 14rm lo t1m, Mthn0tlh U1 WW
RrmcW ftipr up to 120 yo, ftoAd*lskalten Fl6atba tro lTdarftt 0V0OInfl4 bC18nn ANnfiAg PgAtl Lhll AgnmBITUN hm ul
Fta* I bntomW M I vm we we oaakcio Oiul 18ii Idd• ibk*i nad
Oft km I vm iand cii kwai dd. I IV POIul1p h Tff7" K Inidnrol4 21 lOd 5I1InJ2181t 1 n81800Qn V Oul Odenanl I'ranthøn a ml bftpkmd befit my 04M npcI pnand
I a la pthimçpnIL . I $aofin4 a MmAd 640im'nn d
T. I aWo tat MMS A&I nnI40iie m 4 OV WW of lowdlnl
0! I I 0I o nang poil tholnnf n0aLuul I*th01e
poilunt cc 0!rte od tNNJA 0 ii1adnren4 $QJ OL
v '*at acciy e n1t1le. 2t Dathi U nt0 eTm.ffi1sI. ' 1 fWM,I i ad ru in - çe inii jkoftOpa1iT0ee [Cr My WAI ogopwroMM
tW rl un c0cmm1w óJI*I, bt InIacclotnnnttIi M. other aod nle0ra1ane ccnanlcid aithMacc py 1& ma iodit mid iiç*iM to tUO, M4 0n I theanT* sxllm aie
$1 . "kr 0 woirl w01 W UM w MWA%ftsU,' anzee th*i as a PrW4wl 01to ointhntIie4 aimutoaidn4 yaithrcctc 180!ZO01III 01eim1InrioI
the tdt 1,rdccta ietl Ic the Imno acid w0mi e6ftlishod b100U0fiwo 01Ii1ioidaa4 rnndt to1nnuento t&mikn 0u m*lp ai
10.1 w0. ccCI rialce achnamtolacidiç idal*ea1$i 1PLnr1tnac$1t*0 18iiI. PtniiciIr wdn• I arai 0citI w1 npnr4hIeeift4 a1mdd naia 01I IOI ciflaicidP!CI)J1
• - - d c0aInIWdano e4idCaitc1L onn, oclh m bO 3.( dI18 dUOea O!t80lI3$4 184108 cib0 IdUiOe cicid actoidoto
• od*tPnccicc Pcc4acid01$ Pidrllnnt 041 Q1ed9eIhet I up-hiv id jçc Pncin I 5pmilLc y818d 18108tat 20 eruultoientdn010 Iano aJy llc4cicl
0cc piepm PF4 to TU cnnwn0naWo MMk Iue10 18thtto ci*thejnnduots y4 eci0 In seqnIn U Jiedv80ci of ndsnocl It t=t IedQjub p. nij &eneot thc$4h Mn Oett$1 00811 a MW OlOd 1011 10
cnn,w0anm aid EOeDtnCeidoMtogn . -- 10 1akaoMcdci ItcitMUeçy is Planan infflle0 ______to acrinO40thal nci have Tendand au t
The vo Iens met YouçItonUmn to cicdMo4e aihas1iithpayLSanto ITfl0h11 rec eai nki0c,ee, oAqo ihol* of 10 Apwodtjucctie Noptotay 14 mf 5kI08 W*rdm A 14 no011iT4nO daltonfurk am tonI 10101 tool u li idayktabann wta0cco nnpnmloelcc - flcc tl1OlL0U..22J2
Case 4:13-cv-00028-WTM-GRS Document 1-2 Filed 01/30/13 Page 2 of 2
Exhibit C
Case 4:13-cv-00028-WTM-GRS Document 1-3 Filed 01/30/13 Page 1 of 2
-
Vr
SubJo VW1tW1-
-
- we iepf A ' nW ti1 W
reoØt1oth
TIC= tr
- -
JL
egWt ra 1dfl d
i 14P.
a
dL f 1uefOT
/ I
- I AM
- .- tQ
be pc a
w rzed
o___ •
1: -
Case 4:13-cv-00028-WTM-GRS Document 1-3 Filed 01/30/13 Page 2 of 2
Exhibit D
Case 4:13-cv-00028-WTM-GRS Document 1-4 Filed 01/30/13 Page 1 of 6
QlIad&c Bnja, Riaiin StIcare tKoru47s at Law im
Tel 6a129.200 4wqm Ifiteol Fax 0.5690 MiJeiadMde0j1 UYrA*J ww.aarIarcom Waska DC
James A. Ryan Writer's I)ret Dial; 60222.5706 &Matl; jesquarleacam
January 14, 2013
Mr. Jesse L. Ridctte OCEAN AVENUE 10701 River Front Parkway, #110 South Jordan, UT 84095
RE: ViSalus Nón-CompeteAgrwne,u With CheLea MIe, Thomas Then and Amber Then
Dear Jesse:
Thank you for your e..mail message of December 28, 2012, whieh.1 have f'rwaxded to ViSalus, The holiday season has obviously slowed some of our communications considerably. ViSahs believes there is still a concerted poaching campaign underway, and may well decide to take you up on your offer to idcutif' persons whD am violating their non-solicitation agreements so that you can take proper actions at yonr end to stop it. I will keep you posted on that
The specific purpose of this letter, however, is much narrower. Enclosed are copies of three non-compete agreements between Vialus and its former Promoters Chelsea Nile, Thomas The; and Amber Then. The enclosed agreements prohibit these former ViSalus Promoters from affiliating with Ocean Avenue for a period of one year fo11ong termination of their ViSalus distributorships. Nevertheless, since executing the enclosed cntracts, each of these individuals has violated their contractual obligations by continuing or resuming their affiliation with Ocean Avenue.
QE046121.00009\19221377.1
Case 4:13-cv-00028-WTM-GRS Document 1-4 Filed 01/30/13 Page 2 of 6
January 14 2013 Page 2
Of course, ViSaius intends to institute appropriate legal action against these indivdua1s. We are providing the enclosed copies of the agreements in question to you in order to ensure that Oceati Avenue does not inadvertently iuterkre with the rights of ViSa1is under its agreeiaents with Chelsea Nile, Thomas Then and Amber Then.
Sineerely,
4...R" JARJac
Enclosures
I
QI42.00OO919221377+1
Case 4:13-cv-00028-WTM-GRS Document 1-4 Filed 01/30/13 Page 3 of 6
C-a-
ot
proaioec JLL?. idon on
F~I oj rmylym
ViSa1us Posflon
To: C.n orart$62n Loo <Corgan12grneflcom>
Dear Chelsea,
We are pleased that you wish to ourrrinue aa VSaus InJpendent Pomoters A you Icnow, there ws and continues to be credible edeice that you enrolled wIth a tompethv networld marketing company called (ka n Avenue. With.your Ocean Avenue narketing Web site taken dawn, arid your turther assurance ihatyou wlllrsign from Ocean Avenue and cease at promoting for that comparry, we ar willing to reinstate you. The terms are simple, Your business will continue u.nInterrtted, subject to all of the same ereernents, polIcies and procedures. H oweVer, we vtilIl require yauto cnflrrn by your counte-slgnaturs below that should you thogse to resign from
V1SaIus or should -you Oe terminatedbyValus, atantifl,e in the future, yi will be suhjecttoa }yearncsn competition provision secWr. to Oiean Anue. ThTs is. not, an atta on Oear Avenue or fts executives perse, It's en honest reogiittion that none øf us want to Ihiethuough thlaexact scenario egah. 50, tobe dear, ghould you leave ViSdius again you wIfl be prohibited from joining Oce ni Avenue for one year, and ViSa iu will enforce that restriction through a ll available means.
Piese return this letter with a notarled slgnetur ta
Vlsalus ompllarbce Desrtrrei1t
340 E. BIg Beaver , Ste. 400 Troy MI 48083
Ycu msend a copy to Lth&iiiu.
Best regards,
VISa lusCCMPLNCE I O iLLl 7 i4 -
340 E . liçj goawr ld. Suite 400, Troy. M 4B08 I fax 077
f repct fr other FrQmatr5 and tn ntt rtt I m our ahiUty to rve everytfl hi cnfidc, we zsk that you repe eu w*s ami nt cammuMcate thLs rns& gthin- Prcr. Wo wU cornmuntcale drctty with aiy prtes irwolved Ln this mttr
1r2
Case 4:13-cv-00028-WTM-GRS Document 1-4 Filed 01/30/13 Page 4 of 6
l2#I41
Subjeot: VSaluaPoltlo,
From: ViSalus Conipliance (Damp anevisala.coni)
To: thomaa,thenyahoo.00rn;
Date: Thursday, December 18, 2012 6 ,64 PM
Dear Thomas,
We are pleased that you wish ta tontinue as ViSalus Independent Promoters. As you know, there and corrtlntzes to be credIble evidence that you enrolled with a competIng network marketing company ceiled Ocean Avenue. With your Ocean Avenue marketing Web site taken down, arni your Iwliter assurance that yot will resign from Ocean Avenue and cease all promoting for that company, we are willing to reinstate you. The terms are simple. Your business will continue uninterrupted, s bJect to all of the same agreement polIcies and procedures. Ilowever, we will reqtire you to confirm by your counter-signatures below that should you dmseto resign from VISa lus t or should you be terminated by VlSaIus, at jM time in the future, you witi be ubect to a one 1) year non-competition prevision specific to Pman Avenue. This Is not en attack on Ocean Avenue or Its eecutives perse, it's an honest recognition that none of us want to Nve through this exact scenario again. So, to be clear, should you leave ViSaJu& again you will be pro roitadfrorh Joining Ocean Avenue far one 1) year, and VISalus will enforce that restriction through all available means.
Please return this letter with a notarized signature 10
Visaks Compliance Department 340 C. Big Beaver, Ste. 400 Tray, Mi4083
You may send a copy to co lnc 4sdIus. cpm
Best regards,
#oms
IT — —
ViSa lue COMPLL,NC COMMITTEE bilo1urn I .com011anoe selut.cot I 248704.2180 340 E. 8g Beaer td ulta 400 Tray, Vi 48063 1 fax $77,847,0238. 5 NctayP
• RObSJ RNoi )t : ? ',ri'F Ei*waa
"Out of respeit for oth•ef P'om*ters and to matntatn your trust .%n our abitity to serve everyore In confidence, we ak that you respect our wishes and not communIcate this message to other Promoters. We wIR communicate directly with any parties irwotved In this rnatter *
aIutbLank Ill
Case 4:13-cv-00028-WTM-GRS Document 1-4 Filed 01/30/13 Page 5 of 6
Case 4:13-cv-00028-WTM-GRS Document 1-4 Filed 01/30/13 Page 6 of 6
PERSONAL INJURY 0 625 Drug Related Seizure 0 422 Appeal 28 USC 158
0 355 Personal Inury - efProperty2l USC 281 0 423 Withdrawal • Product Liability 0 690 Other 28 USC 157
13 367HealtbCare/ Pbarn,acostica] .
Personal Injury Cl 820 Copyrights Product Liability El 830 Patent
O 368 Asbearos Personal 0 844) Trademailc Injury Product _____
• Liability
PERSONAL PROPERTY 13 71') Pan Labor S1na4rde 0 261 HIA (1 3955) 13 170 Other Fraud Act 13 8452 Black Lung (923)
13 37l Truth inLending 0 720LaboelMunngennmil 0 843 DIWCJD1WW(405(g))
o 380 Other Personal R&atioaio 0 664 SSID Title XVI Properly Dan,ale • 0 740 Railway Labor Act 13 865 rtST (405())
O 385 Property D')lnage Cl 751 family and Medical Product Liability Leave Act
PERSONAL I14JUI6Y 13 :110 Airplane 13 3 It Airplane Product
Liability 13 320 Assault, Libel Sr
Slander O 330 Fedora] Employers
Liability o 349 Marine o 345 Marine Product
Liability 1] 3M Motor Vehicle Ci 355 Motor Vhic1r
Product Liability O 3611 Other Personal
Irtury o 342 Personal Injury -
o 790 Other Labor Litigation O 191 Employee Retirement
lettne Security Act 13 670 Taxes (U.S. Pleintiff of Liefendani)
0 871 IRS—Third Party 26 USC 7619
Cl 465 Other Immigration Actions
0 440 Other Civil Rights Habeas Curpuast 0441 Voting 0 463 Allen Detainee
0 442 Employment 0 510 Motions to Vacate O 443 Uauaingl Scntcricc
Accommodations 13 5140 General O 445 Amer. w/Ditabililits. 13 535 Death Penalty
Eniptaymetit Other; 13 445 Amer wlDiaabiliiion - 0 540 Mwrdumi,t Sr Other
Other 3 5 5 Civil Righis 13 442 Education 0 $55 Prison Condition
0 S6l3 Civil Dalainoc- Conditions of Confinement
o III Insurance
13 120 Manne O 130 Miller Act 13 141 Nrgolisblt Instrument 13 ISO Recovery of Overpayment
dr Enfcroemout cf]udgme O 151 Medicare Act 13 152 Recovery of Defet,Itr,l
• Student Loans (Excludes Veterans)
O 153 Recovery of Overpayment of Veteran's Beneflis
O 161) Stockboldart Suits 191) Other Contract
13 195 Contract Product Liability
13 196pmscknio
o 210 Land Condemnation 13 220 Foreclosure 13 230 Rcnt Lease; drEjectment 13 240 Tarts to Land 13 245 Tort Product Liability O 290 All Other Real Property
El 375 False Claims Act 0 400 State Reapportionment O 410 Antitrust o 430 Banks and l3enkirig O 450 Crmunercc o 460 Deportation Cl 470 Racketeer InOneticed and
Corrupt Orpaninatronu 13 400 Consumer Credit Cl 4110 CabklSat TV O 655 SncurifleulCommoditieij
Exchange Cl S99 Other Statutory Actions 13 891 Agricultural Acts O 693 Eav'rcnrnmstsl Matters 0 895 Freedom of lnibrmatian
Act Cl 8116 Arbitration 0 999 Administrative Procedura
Aci/Reitw or Appeal of Agaticy Decision
0 950 Cunitiratienlity of State Statutes
IS 44 (Rev. 12112) CIVIL COVER SHEET The JS 44 clvi] cover sheet and the infonnation contained herein neither replace nor supplement the filing and service of pIeadins or other papers as required bylaw, except as provided by local rules ofcourL This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of ittitiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM)
I. (a) PLAINTIFFS VISALUS, INC.
(b) County of Residence of Pirat Listed Plaintiff
(ERLEPTJN US PLAINTIFF CAITES)
DEFENDANTS AMBER THEN and OCEAN AVENUE LLC
County of Residence of First Listed Defondani Chatham (IN US PLAINTIFF CASES OWL F)
NOTE: TN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Narer, Ad,fresr, and Ialuphoire Ntmber) Jackson Lewis LLP, 1155 Peachtree Street, NE, Suite 1000 Atlanta, Geor0ia 30309, 404-525-8200
1L BASIS OF JURISDICTION (Place an X' in One Sax Only)
Cl I U.S. (5cvenimeifl
133 FedelQuenlion
Plaintiff
(US. Gocermrrrirl Na! e Part>
Attorneys (If Knower)
Cv4 13-0 III. CITIZENSHIP OF PRINCIPAL PARTIES (Place on T in One J3oxfbr PksIC1ET
(Ier Diversify Cases Only) and One 5osfr IJeIEnttsni) PT? DE) PT? DEF
Citizen of This State 0 1 19 I Incorporated or Principal Place 0 4 34 afflusinese In This State
O 2 US. Government
4 Diversity
CilisenofAcother Stale 13 2 0 2 9 5
Defendant
(]nt&cate Clitsenthip ofPanie.i in Rem III)
of Business In Another SteEn
Citizen or Subject of a 0 3 Cl 3 Forolite Nation 0 6 13 6
Fsreiis Coanlr11
[V. Bar
V. ORIGIN (P/acres 'r'inone flax OprlR)
I Original 13 2 Removed from 13 3 Remanded from 0 4 Rinatated or 0 5 Transferred from 0 6 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation fuse cdv)
under which you are Cling (Do net cltu jurlrdkrlenal #iuretee sir/eec
VI. CAUSE OF ACTION 3nef description of cause: Breach of contract and
VII. REQUESTED IN J CHECK IF 11-113 IS CLASS ACTION DEMAND S CHECK YES only if demanded in complaint:
COMPLAINT UNDER. RULE 23, FR.Cv,P. 75,500.00 JURY DEMAND: A Yes 13 No
VIII. RELATED CASE(S)
I (See iflslh.wlkms.):
F ANY fUDGE POCKET NUMBER
DATE • SIGNATURE OF ATTORNEY OF RECORD
01130/2013 Is/ Eric R. Magnus . •
FOR OFPTCE USE ONLY
RECEIPT 4 AMOUNT APPLYING TFP JUDOIt - MAO. JUDGE
Case 4:13-cv-00028-WTM-GRS Document 1-5 Filed 01/30/13 Page 1 of 1
top related