FILED: NEW YORK COUNTY CLERK 10/30/2015 02:12 PM INDEX NO. 653610/2015

NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/30/2015

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------)( KEITH DOUGLAS SWEAT, individually and

d/b/a SWEATSHOP ENTERTAINMENTand

WIRLIE MORRIS,

Plaintiffs, V.

KEDAR MASSENBURG, individually and d/b/a KEDAR ENTERTAINMENT, MASSENBURG MANAGEMENT, LLC, and MASSENBURG MEDIA, LLC,

Defendants. ------------------------------------------------------)(

To the above named Defendants:

Index No.

SUMMONS

YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the plaintiffs attorney(s) within 20 days after the service of this summons, exclusive of the day of service, or if service of this summons is made by any means other than personal delivery to you within the state, within 30 days after the service is complete. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint, together with the costs and disbursements of this action.

Plaintiff designates New York County as the place of trial. The basis of the venue designated is Plaintiff's principal place of business in New York County.

Dated: October 30, 2014

Plaintiffs' Addresses:

Keith Sweat Wirlie Morris 2240 Lake Shore Landing Alpharetta, Georgia 30005-6992

9464 Fairdale A venue Jonesboro, Georgia 30236

Defendants' Addresses:

Kedar Massenburg 100 Riverside Blvd. New York, NY 10069

Massenburg Management, LLC Massenburg Media, LLC 200 Biscayne Blvd. Way 200 Biscayne Blvd. Way Miami, FL 33131 Miami, FL 33131

50 Broadway, Suite 800 New York, New York 10004 Atto·rJ.eys for Plaintiff New York, NY 10004 Tel.: (212) 791-7360 Fax: (212) 791-7468

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------)( KEITH DOUGLAS SWEAT, individually and

d/b/a SWEATSHOP ENTERTAINMENT and

WIRLIE MORRIS,

Plaintiffs, v.

KEDAR MASSENBURG, individually and d/b/a KEDAR ENTERTAINMENT, KEDAR ENTERTAINMENT, LLC and MASSENBURG MEDIA, LLC,

Defendants. ------------------------------------------------------)(

Index No.

VERIFIED COMPLAINT

Plaintiff, KEITH DOUGLAS SWEAT, individually and d/b/a SWEATSHOP

ENTERTAINMENT and Plaintiff, WIRLIE MORRIS, by their attorneys Motta & Krents, as and

for their Verified Complaint against the defendants, KEDAR MASSENBURG, individually and

d/b/a KEDAR ENTERTAINMENT, KEDAR ENTERTAINMENT, LLC, and MASSENBURG

MEDIA, LLC (collectively referred to hereafter as ".Liefendants"), allege the following:

THE PARTIES

1. Plaintiff, Keith Douglas Sweat, individually and d/b/a Sweatshop Entertainment"

("Sweat"), is a resident ofthe City of Alpharetta, State of Georgia.

2. Plaintiff, Wirlie Morris ("Morris") is a resident of the City of Atlanta, State of

Georgia.

3. Upon information and belief, the defendant, Kedar Massenburg ("Massenburg"),

resides and maintains a place of business in the State, City and County of New York.

4. Upon information and belief, Massenburg uses "Kedar Entertainment" as an

assumed name although an Assumed Name Certificate has not been filed with the New York

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County Clerk.

5. Upon information and belief, at all times relevant, the defendant, Kedar

Entertainment LLC ("Kedar"), was neither a limited liability company formed pursuant to the

laws of the State of New York, nor a foreign limited liability company authorized to do business

in New York, despite the fact that it did business in the State, City and County of New York.

6. Upon information and belief, defendant, Massenburg Media, LLC ("Massenburg

Media"), is a limited liability company incorporated in the State of Florida on May 15, 2012,

with its registered principal office in Miami, Florida, and business offices in the State, City, and

County ofNew York.

BACKGROUND

7. Sweat is an R&B and soul receding artist, songwriter, producer, and nationally

syndicated radio personality who has enjoyed substantial success and recognition in the music

industry for over three decades. He has received multiple American Music Awards nominations

for "Favorite Male R&B Soul Artist" and won in 1997. In 2013, Sweat received the Soul Train

Lifetime Achievement Award. His debut album, Make It Last Forever, went triple Platinum

selling more than three million copies. The biggest "single" from this album, "I Want Her"

charted #2 on the Billboard R&B Chart and #5 on the Billboard Pop Chart, and the eponymous

track from this album went all the way to #2 on the :J11lboard R&B Chart. Sweat hit the charts

again upon the release of his sophomore album, I'll Give All My Love To You that reached #6 on

the Billboard Top 200 Chart. These are just some of examples of Sweat' sales and chart

successes.

8. Sweatshop Entertainment is used by Sweat as the "d/b/a vehicle" for his

professional musical activities.

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9. Morris is a well-established music producer and songwriter with music production

companies Take Note Entertainment and WIRLwid~. :entertainment, as well as performing as a

musician with the SOS Band, The Gap Band and The Ohio Players, among many other artists.

10. Upon information and belief, Massenburg is a record producer and record label

executive, who was president of Motown Records from 1997 through 2004, and since 2005,

individually and using the name "Kedar Entertainment," has acted as personal manager,

promoted musical artists, served as an executive producer for their albums and released albums

of such musical artists.

11. Upon information and belief, since its incorporation in 2012, Massenburg has

used Massenburg Media as the corporate vehicle for his record label.

12. Upon information and belief, as to Massenburg Media, Massenberg has abused

the privilege of doing business in the corporate form i:y failing to adhere to corporate formalities,

because of the inadequate capitalization of each of the companies, the commingling of

companies' assets with his personal assets, and the use of companies ' funds to pay Massenburg's

personal expenses.

FIRST CAUSE OF ACTION AGAINST MASSENBURG, KEDAR ENTERTAINMENT LLC AND MASSENBURG MEDIA FOR DAMAGES

FOR BREACH OF CONTRACT

13. Plaintiffs repeat the allegations in Paragraphs 1 to 12.

14. In or about April 7 , 2009, Sweat and Massenburg/Kedar Entertainment

and Massenburg Media entered into a so-called "short-form memorandum" creating a

joint venture agreement to produce , release , market and distribute sound recordings,

including, at least , one (1) record album embodying l.he sound recordings, featuring

Sweat as a featured musical recording artist (the "Agreement"). Such record album was

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entitled Ridin' Solo, which was released in or about June 21, 1010 (the "Album).

15. Pursuant to the Agreement, Sweat was to oversee and produce sound

recordings featuring Sweats' performances as a recording artist since Sweat alone was

financially responsible for the "ali-in" recording budget of two hundred thousand dollars

($200,000.00) for the Album. Sweat was to, and in fact did, write, co-write and/or select

the musical compositions to be embodied upon the SC!Jnd recordings for inclusion upon

and comprising the Album, select, oversee and arrange the musicians involved, and

oversee the musical performances and the recording, mixing and mastering of the sound

recordings for ultimate delivery to Massenburg/Kedar and Massenburg Media as a

completed album. The Album was the only album released under the Agreement.

16. Massenburg/Kedar Entertainment and Massenburg Media was to promote,

market and arrange for the distribution and sale of the Album initially through "Fontana

Distribution/Universal Music Distribution" ("Fontana") and then through Red

Distribution, LLC, a division of Sony Music Entertainment ("RED") as well as for the

individual sound recordings embodied on the Album. :md deal with the business relating

to the collecting of all moneys derived from the sale, distribution and exploitation of the

Album, and to pay any costs associated with physical production and publicity/radio

promotion.

17. As Sweat is a co--writer and co--publisher of all of the musical

compositions embodied upon the Album, which are herein identified as: "Famous", "Full

Time Lover", "Test Drive", "Ridin Solo", "Genius Girl", "Do Wrong Tonight", "Hood

Sex", "Its All About You", "I'm The One You Want", "Live In Person, "It's A Shame"

and "Tropical" (the "Sweat Compositions") Sweat is an owner of the right, title and

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interest in and to the Sweat Compositions , holding a fifty (50%) percent interest in the

copyright of each of the Sweat Compositions . Massenburg/Kedar Entertainmnt and

Massenburg Media, as the record label making and causing the distribution of the Album,

is required to account to and pay to Sweat, as a songwriter and co-publisher of the Sweat

Compositions, mechanical royalties as an "off the top expense" derived from the sale and

distribution of the Sweat Compositions at one hundred percent ( 100%) of the current

minimum statutory royalty rate under the United States Copyright Act (.091¢ based upon

one hundred percent (100%) of the Sweat Compositions).

18. From inception of the commercial rekase of the Album to date,

Massenburg/Kedar and Massenburg Media have failed to account to Sweat by providing

mechanical royalty statements, and have failed to pay to Sweat the mechanical royalties

due , based upon fifty percent (50%) of the mechanical royalty income due in connection

with the sale and distribution of the Sweat Compositions. As a result of Massenburg's!

Kedar's and Massenburg Media's foregoing actions , Sweat has not received the

mechanical royalties due in connection with the sales and exploitations of the Album, and

has been damaged in an amount believed to be not less than eighty thousand dollars.

19. Under the terms of the Agreement, "Net Proceeds" earned by

Massenburg/Kedar and Massenburg Media from "nrt" sales of the Album through

normal retail channels, inclusive of all digital sales, in the United States and Canada

(sixty percent (60%) for the rest of the world) were to be divided equally between

Massenburg/Kedar and Massenburg Media on the one hand and Sweat on the other hand,

after deducting only the following costs from gross billing: distributor's distribution fee

charged to Massenburg/Kedar and Masenburg Media, any credits due to the distributor's

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customers for actual returns made during each billing period, a reasonable reserve against

anticipated customer returns and credits of units of the Album on a pass through basis

from Massenburg's/Kedar's and Masenburg Media's .. distributor during each billing

period, any advances paid to Sweat (to be born 50/50 with Massenburg/Kedar),

manufacturing charges and costs not paid by Sweat, mechanical royalties, taxes imposed

on distributor, co-op/advertising costs, third-party costs incurred by Massenburg/Kedar

and Masenburg Media, or distributor for the marketing, promotion and advertising of the

Album, any other amounts owed by Massenburg/Kedar Masenburg Media, and

Sweat to distributor.

20. In conformity with the Agreement, Sweat produced, created and delivered

to Massenburg/Kedar and Masenburg Media the sound recordings as embodied upon the

Album whose initial commercial release was in or about June 22,2010.

21. Massenburg/Kedar and Massenburg Media has collected "Net Proceeds"

from both Fontana, RED and other third parties, derived from the sales and other

exploitations of the Album, and failed to account anrl pay Sweat fifty percent (50%) of

these moneys, as required by the Agreement.

22. Massenburg/Kedar and Massenburg Media have refused to abide by their.

obligations under the Agreement by, in part, failing to pay Sweat his fifty percent (50%)

share of the "Net Proceeds" derived from the sale of physical units and DPDs of the

Album.

23. To the extent Massenburg Media assumed the obligations of Massenburg/Kedar

and received monies due Sweat under the Agreemen.:, or contracted directly with Fontana and

RED, the court should pierce the corporate veil of Massenburg Media to hold Massenburg

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personally liable for breach of the Agreement.

24. Sweat has been damaged by Massenburg/Kedar and

Massenburg Media in an amount to be determined at trial, not less than $750,000.00.

25. Morris produced (6) out of twelve (12) master recordings (the" Morris Masters")

included on the Album. Morris also co-wrote fifty percent (50%) of the musical compositions

embodied upon the Morris Masters which are herein identified as: "Famous", "Full Time Lover",

"Genius Girl", "It's All About You", "Live In Person.,, and "Tropical" (the "Morris

Compositions").

26. As Morris is a co--writer and co--publisher of the Morris Compositions, in

addition to being the producer of the Morris Masters upon which the Morris

Compositions are embodied; Morris is an owner of the right, title and interest in and to

the Morris Compositions, holding a fifty (50%) percent interest in the copyright of each

of the Morris Compositions. Massenburg/Kedar and Massenburg as the record label

making and causing the distribution of the Album, is required to account to and pay to

Morris, as songwriter and publisher of the Morris Compositions, mechanical royalties

derived from the sale and distribution of the Morris Compositions at one hundred percent

(100%) of the current minimum statutory royalty rate under the United States Copyright

Act (.091¢ based upon one hundred percent (100%) of the Morris Compositions).

27. From inception of the commercial release of the Album to date,

Massenburg/Kedar and Massenburg Media have failed to account to Morris by providing

to Morris mechanical royalty statements, and have failed to pay to Morris the mechanical

royalties due, based upon fifty percent (50%) of the Morris Compositions. As a result of

Massenburg's/Kedar's and Maseenburg's foregoing actions, Morris has not received the

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mechanical royalties due in connection with the sales 1nd exploitations of the Morris

Compositions in connection with the Album, and has been damaged in an amount

believed to be not less than thirty thousand ($30,000.00) dollars.

SECOND CAUSE OF ACTION AGAINST MASSENBURG, KEDAR ENTERTAINMENT, MASSENBURG MEDIA, AND MASSENBURG

MANAGEMENT SEEKING AN ACCOUNTING

28. Plaintiffs repeat the allegations in Paragraphs 1 to 27.

29. Under the law of equity, Massenburg, Kedar and Massenburg Media owe an

accounting to Sweat for all the profits and advances earned by the sale and licensing of

the Album, and the sound recordings embodied upon the Album as well to Sweat and

Morris for the total amount of publishing royalties due from inception of the exploitation

of the Album to date, payable "off the top" from gross sales.

30. Under the law of equity, Massenburg, Kedar and Massenburg Media owe an

accounting to Morris for the total amount of publishing royalties due from inception of

the exploitation of the Album to date.

THIRD CAUSE OF ACTION AGAINST MASSENBURG, KEDAR ENTERTAINMENT,

AND MASSENBURG MEDIA

SEEKING THE IMPOSITION OF A CONSTRUCTIVE TRUST

31. Plaintiffs repeat the allegations in Paragraphs 1 to 30.

32. Sweat and Morris are entitled to the imposition of a constructive trust against

Massenburg, Kedar and Massenburg Media, upon all monies improperly withheld, and all assets

obtained using such monies in whole or in part, by Massenburg, Kedar, and Massenburg Media.

FOURTH CAUSE OF ACTION AGAINST MASSENBURG, KEDAR AND MASSENBURG MEDIA

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SEEKING RECOVERY IN QUANTUM MERUIT

33. Plaintiffs repeat the allegations in Paragraphs 1 to 32.

34. Sweat and Morris are entitled to recover in quantum meruit to prevent the unjust

enrichment of Massenburg, Kedar and Massenburg ~. 1edia, in an amount to be determined at trial

not less than $850,000.00.

WHEREFORE, Plaintiffs demand judgment as follows:

a) On Plaintiff Sweat' s First Cause of Action against Massenburg, Kedar,

and Massenburg Media for damages relating to breach of contract and

failure to account and pay publishing royalties due, in an amount to be

determined at trial, not less than $800,000.00.

b) On Plaintiff Morris ' First Cause of Action against Massenburg, Kedar and

Massenburg Media for damages relating to failure to account and pay

publishing royalties due, in an amoUPt to be determined at trial, not less

than $50,000.00.

c) On Plaintiffs' Second Cause of Action for an accounting by Massenburg,

Kedar, and Massenburg Media.

d) On Plaintiffs' Third Cause of Action against Massenburg, Kedar, and

Massenburg Media, for the imposition of a constructive trust.

e) On Plaintiffs' Fourth Cause of Action against Massenburg, Kedar

Entertainment, Massenburg Media, and Massenburg Management for

damages in an amount to be determined at trial, not less than $850,000.00.

f) On all Plaintiffs' causes of action interest from June 22, 2010 and costs

and disbursements.

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Dated: New York, New York October 30, 2015

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Attorneys for Plaintiff 50 Broadway, Suite 800 New York, N.Y. 10004-1874 Tel: (212) 791-7360 Fax: (212) 791-7468

VERIFICATION

INDIVIDUAL VERIFICATION

STATE OF GEORGIA, COUNTY OF FULTON ss.:

I, Keith Dougl~ ~:d~worn, dep::s.! and say: I am a Plaintiff in the within action; I have read the foregoing Verified CoiJ'I;,laint and know the contents thereof; the same is true to my own knowledge, except as to those rna er · n stated to be alleged on information and belief, and as to those matters, · e e it to.. true.

Sworn to before me on July~2015

INDIVIDUAL VERIFICATION

,.

VERIFICATION

STATE OF GEORGIA, COUNTY OF FULTON ~s:

I, Wirlie Morris being duly sworn, depose and say: I am a Plaintiff in the within action; I have read the foregoing Verified Complaint and know the contents thereof; the same is true to my own knowledge, except as to those matters t ein stated to be alleged on information and belief, and as to those matters, I believe ·no..ge.~s.,

Sworn to before me on JulyJ1_2015

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Wirlie Morris