in Re Jinsun LLC ( 2015 )

ACCEPTED
14-15-00568-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
7/6/2015 4:58:50 PM
CHRISTOPHER PRINE
CLERK
NO. ______
In the Court of Appeals FILED IN
14th COURT OF APPEALS
for the ___ District of Texas HOUSTON, TEXAS
Houston, Texas 7/6/2015 4:58:50 PM
CHRISTOPHER A. PRINE
JINSUN LLC Clerk
Relator
ORIGINAL MANDAMUS PROCEEDING
FROM THE 113TH JUDICIAL TRIAL COURT OF HARRIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. 2012-54501
PETITION FOR WRIT OF MANDAMUS - RECORD
Respectfully submitted,
/s/ Jason M. Hopkins
Mary-Olga Lovett
State Bar No: 00789289
lovettm@gtlaw.com
Jason S. Lewis
State Bar No: 24007551
lewisjs@gtlaw.com
Jason M. Hopkins
State Bar No: 24059969
hopkinsjm@gtlaw.com
GREENBERG TRAURIG LLP
1000 Louisiana Street, Suite 1700
Houston, Texas 77002
Telephone: (713) 374-3555
Facsimile: (713) 374-3505
Dated: July 6, 2015 ORAL ARGUMENT REQUESTED
1
MANDAMUS RECORD
TAB DOCUMENT DATE
A. Plaintiff’s Original Petition 09/18/2012
B. Plaintiff’s Nineteenth Amended Petition 05/22/2015
C. Plaintiff’s Motion to Quash Deposition of Wayne Dolcefino 06/19/2015
and Motion for Protective Order
D. Jinsun’s Response to Motion to Quash Dolcefino Deposition 06/24/2015
E. Jinsun’s Supplemental Response to Motion to Quash 06/27/2015
Dolcefino Deposition
F. June 16, 2015 email serving Jinsun’s First Amended 06/16/2015
Deposition Subpoena Duces Tecum
G. Order quashing Dolcefino deposition 06/30/2015
2
TAB A
Filed 12 September 18 P3:26
Chris Daniel- District Clerk
Hanis County
2012-54501 / Court: 113 ED101J017084361
By: Charleta Johnson
CAUSE NO._
KHALEÐ AI-ATTAR, s IN THE DISTRTCT COURI'OF
s
Plaintiff, s
$
v. s
$ HARRTS COUNTY, TEXAS
KEVAN CASEY, FREDERICK s
HUTTNER, ANSLOW & JACLIN, s
LLP, AMIR MIR.ESKANDARI, $
TOP GEAR., INC. n/k/a $
LTIXBYARD, INC., JONATHAN s
FRIBDLANDER, and SCOTT GANN, s
s
Defendants. s JUDICIAL DISTRICT
P LAI NTI F F'S O" BI-G-JI.IAL P ETITI ON
Plaintiff, I(haled Alattar, files this Original Petition against Defendants, Kevan
Casey, Frederick Huttner, Anslow & Jaclin, LLP, Amir Mireskandari, Top Gear, Inc.
nlkla Luxeyard, Inc., Jonailran Friedlander, and Scott Gann, and would show as
follows:
p rs covERY coNTRoL_PtAN
1. Plaintiff intends for discovery to be conducted under Level z of Rule 1Ço of
the Texas Rules of Civil Procedure.
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2. Plaintiff Khaied Alattar ("Alatlar") is an individual lesiding in Sugar Land,
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Fort Bend County, Texas.
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æ 3. Defendant Kevan Casey ("Casey") is an individual residing in Harlis
iiC) County, Texas and may be served with process at B W. Broad Oaks Ðlive, Houston,
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4. Defendant Frederick Huttner ("Huttner") is an individual residing in
Harris County, Texas and may be served with process at 675 Bering Dlive, Suite zSoA,
Houston, Texas TT056.
5. Defendant Anslow & Jaclin, LLP ("4&J") is a New Jersey limitecl liability
partnership and may be served with process at r95 US Highway 9, Suite ao4,
Englishtovrn, New Jersey oZZz6 by serving the Texas Secretary of State.
6. Defendant Amir Mireskandari ("Mileskandari") is an individual residing
in Harris County, Texas and may be served with process at 455o Post Oal< Place, Suite
21o, Horiston, Texas TToz7.
Z. Defendant Top Gear', Inc. n/k/a Luxeyard, Inc. ("Top Gear") is a Ðelaware
corporation doing business in the State of Texas and rnay be served with process at
Delar,r'are Business Incorporators, Inc., g4zz Old Capitol Trail, Suite 7oo, Wilmington,
Delaware rg8o8 by serving the Texas Secretary of State. Top Gear is now knorvn as
Luxeyard, Inc. and its stock trades under the syrnbol LUXR.I
B. Defendant Jonathan Friedlander ("Friedlander") is an individual residing
in Las Vegas, Nevada and may be served with plocess at S4gB Vegas Drive, *76t, Las
Vegas, Nevada Bgro8 by serving the Texas Secletary of State.
g. Defendant Scott Gann ("Gann") is an individual residing in Dallas, Texas
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10. Julisdiction and venue are proper in Harris Coun$, Texas because
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Defendants Kevan Casey, Frederick l{uttner, and Amil Mireskandari are resiclents of
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'Top Gear changecl its ¡lame to Lrrxeyard, fnc. orr January g, 2cl-2. 'lhe company narìe is bra¡rded as
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I{arris County, Texas, and a substantial palt of the events or omissions giving rise to
Plaintiffs claims occuned in Harris County, Texas. Fulther, Plaintiff seeks recovery in
excess of the minimum jurisdictional limits of this Court. Additionalìy, Top Gear has
had sufficient contacts with the State of Texas and has purposefullS' ¿uui1.U itself of the
larn¿s of this State. To subject Top Geal to jurisdiction in Texas would not offend
traditional notions of fair piay and justice. The causes of action against Top Geal arìse
out of Top Gear's contacts with this State. A&J has had suffïcient contacts with the State
of Texas and has purposefully availed itself of the larvs of this State. To sr"rbject A&J to
jurisdiction in Texas wodd not offend tlaclitional notions of fair play and justice. The
causes of action against A&J arise out of A&J's contacts witir this State . Fl'iedlandel has
had sufficient contacts with the State of Texas and has purposefully availed himself of
the laws of this State. To subject Friedlander to jurisdiction in Texas would not offend
traditional notions of fair play and justice. The causes of action against Friedlander
arise out of Friedlander's contacts with this State
SUMMARY
11. This is a suit for fi'aud and related claims alising out of an illegal "puìtìp
and duntp" stock schenre.' Defendants' carefulþ-6rchestrated plan involved a
conspiracy to fraudulently acquire the stock of a small publicly traded cornpany, then
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artificially inflate - or' "purnp" - the price of its shares through aggressive aclvertising,
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- or "duìrp" * tlre stock at the inflated plice. While such crimes
53
Ê- only to then rapidly sell
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underlying cornpany was a legitimate business. The fraucl in this instance was not so
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much on an unsuspecting public as on the company's co-founders * Alattal and
Mileskandari - whose business was essentially hijaclied by Defendants,
12. The success of Defendants' pump and durnp scheme is illustrated by the
chart below, sÌrowing the track record of this "penny stock" duling the lelevant time
period:
: LUXR (Luxey6rd, lnt,) PlNt( o 5.ir:¿kCh¿r1s.co*r
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13. The dlamatic rise * and later fall - of the stock price as shov¿n in the above
chait resuited in an approximately $3o,ooo,ooo.oo windfall in just 6o clays.
Defenclants, and other unnamed co-conspiratoLs, r'eaped a huge benefit at Alattar's
expense, whose own stock was restricted and thus could not be sold. Alattar seeì352 F.3d 608 (2d Cir. 2010); U.S. v. Loe, 248 F.3d
449 (5th Cir. 2001); U.S. v. Girard, 744 F.2d 1170, 1171 (5th Cir. 1984). They also
knowingly refused to provide documents and knowingly took positions in open court on
the record that were the exact opposite of what their lawyer was told from the California
bankruptcy lawyer hired to represent Casey and Gann. Finally, it was unlawful to trade
stock on material nonpublic information and, a conspiracy may be based on lawful
conduct through unlawful means. Their overt acts need not “be” the unlawful act or
controlling fact. Conspiracy involves participation in a tort and does not require
independent liability.
59. The above conduct was performed by assisting or encouraging; assisting or
participating; or concert of action under Restatement (Second) of Torts §876, and each
aider and abettor had actual knowledge of the conduct of the primary actor and its
effects. Each aider and abettor substantially assisted the primary actor(s) by concealing
material facts, artificially inflating trading volume through fake accounts, shorting the
21
very stock they promoted, by trading on material nonpublic information, distributing
secret free trading shares, and knowing cashing and retaining the ill gotten profits
(which alone is a sufficient overt act to compose liability). U.S. v. Salmonese, 352 F.3d
608 (2d Cir. 2010); U.S. v. Loe, 248 F.3d 449 (5th Cir. 2001); U.S. v. Girard, 744 F.2d
1170, 1171 (5th Cir. 1984). Each aider and abettor also substantially assisted the primary
actor(s) by attempting to avoid “affiliate” status, concealing the background of the
officers they hand picked, conspiring with A&J, engaging in a secret and self funded
media blitz that contained misrepresentations, and selling all of their shares at a pre-
determined time.
Fraud by Nondisclosure against Casey, Jinsun,
Top Gear, Friedlander, Gann and each of the companies they control
60. Plaintiff incorporates all allegations contained in the foregoing
paragraphs.
61. A&J, Casey, Friedlander, and Gann, individually and on behalf of Top
Gear, committed fraud by nondisclosure in connection with the reverse merger
transaction by failing to disclose new material information when that material
information made earlier representations misleading or untrue. In this case, Casey,
Friedlander, and Gann made material representations to Alattar as described above.
Those representations became misleading and untrue before the reverse merger took
place because Casey knew that he would not be involved in LuxeYard for more than a
few months, much less many years, they knew they would not be subjecting themselves
to any lock-up agreements as they had previously agreed, and they knew that the stated
purpose of the reverse merger was actually to perpetrate a rapid pump and dump
scheme. Casey knew that Alattar was ignorant of the facts concerning the lock-up
22
agreements and the quick pump and dump scheme and did not have an equal
opportunity to discover the truth. Moreover, Defendants were deliberately silent and
failed to disclose these facts with the intent to induce Alattar to enter into the reverse
merger transaction and continually build a viable company for years to come. In this
regard, Alattar acted in reliance on the omission or concealment and suffered injury as a
result of acting without knowledge of the undisclosed facts. Alattar seeks disgorgement
of all ill-gotten profits resulting from the fraud by nondisclosure as well as actual
damages.
62. A&J failed to correct all of the statements it made in the transaction
documents, which documents were based on A&J legal judgment and discretion.
Defendants committed fraud by nondisclosure in connection with the reverse merger
transaction by failing to disclose new material information when that material
information made earlier representations misleading or untrue. In this case,
Defendants made material representations to Alattar as described above. Defendants
knew that Alattar was ignorant of the facts concerning the lock-up agreements and did
not have an equal opportunity to discover the truth. Moreover, they were deliberately
silent and failed to disclose these facts with the intent to induce Alattar to enter into the
reverse merger transaction. In this regard, Alattar acted in reliance on the omission or
concealment and suffered injury as a result of acting without knowledge of the
undisclosed facts. Alattar seeks disgorgement of profits and his actual damages.
Statutory Fraud against Gann, Casey, Jinsun,
Top Gear and Friedlander and each of the companies they control
63. Plaintiff incorporates all allegations contained in the foregoing
paragraphs.
23
64. Casey, Gann, and Friedlander, individually and on behalf of Top Gear,
committed statutory fraud in violation of Texas Business & Commerce Code Section
27.01 in connection with the reverse merger transaction and supposed plans to build a
premier web-based seller of a broad scope of luxury items. Casey, Gann, and
Friedlander knew all along that LuxeYard would never reach the “broad scope” phase.
They made false representations of fact as well as false promises to Alattar as described
above. These false representations and promises were made for the purpose of inducing
Alattar into entering into the reverse merger transaction. Alattar relied on these false
representations and promises when he entered into the transaction, and this reliance
caused him injury. Alattar seeks disgorgement of all ill-gotten profits received by Casey
as a result of this fraud, as well as actual damages.
65. In addition, the actions of Casey, Gann and Friedlander in connection with
the stock purchase agreements described above constitute statutory fraud in violation of
Texas Business & Commerce Code Section 27.01. These defendants made
misrepresentations of fact and false promises, outlined above, to Alattar for the purpose
of inducing Alattar into transferring large blocks of LUXR shares for nominal
consideration. Alattar relied on these false representations and promises.
Breach of Fiduciary Duty against Gann, Friedlander,
Casey and each of the companies they control
66. Plaintiff incorporates all allegations contained in the foregoing
paragraphs.
67. A&J had an attorney-client relationship with Alattar and LY. A&J solicited
LY as a client. Alattar was a member of LY. A&J exercised legal judgment discretion in
drafting dozens of documents for Alattar. As Alattar’s attorneys, A&J owed a fiduciary
24
duty to Alattar. A&J breached its fiduciary duties by, among other things, (1) assisting
Casey’s inducement of Alattar into not only the reverse merger transaction, but the
agreement to work together to build a venture that would last for years to come for
purposes of engineering the quick pump and dump scheme, (2) failing to disclose
Casey’s scheme, (3) failing to disclose A&J’s own role in the scam, (4) failing to take
steps to prevent the fraud, (5) failing to disclose the fraud after it occurred, and (6)
failing to disclose A&J’s conflict of interest. A&J assisted Casey in connection with his
acquisition of the controlling interest of Top Gear, and A&J prepared the contracts and
other documents for the reverse merger transaction at Casey’s direction. These actions
constitute a breach of their fiduciary duty to Alattar, and Alattar has suffered injury as a
result. Alattar seeks forfeiture of all fees paid to A&J in connection with its
representation of Alattar and LY, as well as actual damages. The Defendants conspired
with A&J.
68. Casey and Friedlander owed a fiduciary duty to Alattar because of their
dominance and control over the decision making and daily business affairs of Luxeyard,
a closely-held public company. Under the law, Casey, Gann, and Friedlander also owed
a fiduciary duty to Alattar because they were in possession of material nonpublic
information that they concealed from Alattar. They also owed a fiduciary duty under the
law as both an officer and insider of the company. They also owed a fiduciary duty
because they were an affiliate of the company. They also owed a fiduciary duty because
they acted as the agent for the principal, Alattar, by perpetrating the fraud in connection
with taking Luxeyard public. They also owed a fiduciary duty because they placed
themself in the position of a moral and special relationship of trust and confidence
where they promised to guide Alattar through the reverse merger process as well as the
25
“market awareness” process. Unfortunately, they exercised dominance and undue
influence over Alattar. Casey and his team knew that Alattar relied on Casey for moral
and professional guidance, and that reliance was justifiable. Additionally, Casey
controlled Top Gear, and he acted as the securities broker for Top Gear by giving Top
Gear stock to his insiders and Alattar. A broker owes a fiduciary duty to its customers.
Finally, Casey and Alattar formed a joint venture relationship and binding contract in
the Term Sheet. At that time, he then owed a fiduciary duty to his co-venture. He
knowingly ignored the representations in the Term Sheet, and he failed to disclose in the
Term Sheet the dozens of pump and dumps that he and his gang had previously
perpetrated. He even failed to disclose the pump and dumps he was perpetrating on the
very day he bound Alattar in the Term Sheet to a “no shop” provision. Casey breached
his fiduciary duties to Alattar by making false representations of fact to Alattar, making
false promises to Alattar, and engaging in the illicit conduct described above. Casey,
Gann, Friedlander and each of their companies owed a fiduciary duty because they
possessed and traded on material nonpublic information, and because Casey and
Friedlander were officers and insiders. Each of these constituents and the companies
they control breached that duty by never disclosing the truth that their past, the truth
about their future services and that they were going to trade on material nonpublic
information. These breaches have caused injury to Alattar and substantial benefit to
Casey. Thus, Casey is liable to Alattar for actual damages and for disgorgement of all ill-
gotten benefits.
26
Violation of the Texas Securities Act against Casey, Jinsun, Friedlander
and Gann, and each of the companies they control
69. Plaintiff incorporates all allegations contained in the foregoing
paragraphs.
70. As outlined above, Casey offered or sold securities to Alattar by means of
an untrue statement of material fact or an omission to state a material fact necessary in
order to make the statements made, in light of the circumstances under which they are
made, not misleading. TEX. VERNON’S ANN. CIV. ST. ARTS. 581-1 et seq. Casey violated
the Texas Securities Act by misrepresenting and/or omitting the disclosure of material
facts. Casey is liable under the civil penalty provisions of the Texas Securities Act. TEX.
REV. CIV. STAT. ANN. ART. 581-33. Casey bought, sold, and issued securities using
fraudulent means and communications in direct violation of the civil penalty
provisions of the act. A&J, Freidlander and Gann are liable under the Act as far as
aiders and abettors.
71. Friedlander misrepresented and actively concealed his purported
experience, his advertised skill set, the nature of the individuals with whom he would be
working, that they were known criminals, his previous involvement with A&J, his
opinions regarding Luxeyard’s expected revenue, that he was involved in prior pump
and dumps, that he participated in hand-picking employees who were advertised as
strangers (when they were not) and more. Gann actively concealed the prior pump and
dumps, that he was fined and penalized by the Fifth Circuit as follows:
• “The district court found Gann not credible and determined that he had violated
Section 10(b) and Rule 10b-5;”
• “Gann and Fasciano opened 21 accounts for nine HCM affiliates, albeit the
investors in each were the same;”
27
• “After receiving a block notice, Gann and Fasciano would switch the identifier
number they were using, enabling them to continue trading, at least
temporarily;”
• “The material misstatements at issue are Gann’s use of different and varying
client account numbers to disguise the frequency and magnitude of HCM’s
trading in the various funds;”
• “The district court held that Gann’s practice of switching identifying broker and
client account numbers constituted materially misleading statements in violation
of the securities laws;”
• “The SEC’s proof that Gann’s use of different numbers to conduct his trades
demonstrated that he did not want the fund companies catching on this his
trading practices;”
• “In one instance, Fasciano traded a Goldman Sachs fund three times and received
a block notice, yet he and Gann placed five more trades under a difference
number, received two more block notices, and still continued placing trades;”
• “We view the SEC’s characterization of the use of multiple registration and
account numbers as ample evidence of an intent to mislead;”
• “The SEC’s chief evidence of Gann’s intent to deceive was his use of numerous
account and registration numbers that actually represented his (and Fasciano’s)
work for HCM. The SEC contended that Gann’s efforts were meant to circumvent
the funds’ regulations for his own gain and that of his customer;” and
• “For the foregoing reasons, the judgment of the district court is AFFIRMED.”
Gann also concealed his plan to trade on material nonpublic information.
72. Alattar also contends Friedlander (and Equity Highrise) and Gann (and
his companies) aided and abetted by overtly assisting Casey in obtaining shares beneath
the 10% restriction while in fact controlling much more. Friedlander also assisted Casey
by, as shares were sold throughout 2012, misrepresenting the value of the shares by
concealing what was known only to Friedlander and Casey, but not Alattar. Friedlander
and Gann also concealed the fact that they were uniquely aware of inside information
about the status of the issues (Top Gear and Luxeyard) each time Alattar was asked to
28
invest more in the company. Friedlander and Gann had actual and general awareness of
their role in tricking Alattar into the SEA as well as the series A-D financing because
they participated in many prior pump and dumps with Casey and other known
criminals. When they acted, wrote, communicated and concealed material facts from
Alattar, they did so with intent to deceive Alattar. All of these communications were to
Alattar and/or they had a reason to expect the communications would be presented to
Alattar. The above conduct substantially assisted Casey and the other insiders in
facilitating the illegal pump and dump and in helping Casey avoid the restrictions placed
on beneficial owners of greater than 10% on a company’s outstanding shares. See 15
U.S.C. § 78p; 17 C.F.R. § 240.16a-1; 15 U.S.C. §78m(d)(3); Anslow Deposition at pp. 134,
226. They also assisted Casey in tricking Alattar (and others) into making subsequent
investments. They also made misrepresentations in the representations and warranties
they signed in the Subscription Agreement, including:
• “There is no Action pending against, or to the Knowledge of such Investor,
threatened against or affecting, such Investor by any Governmental Authority or
other Person with respect to such Investor that challenges, or may have the effect
of preventing, delaying, making illegal, or otherwise interfering with, any of the
transactions contemplated by this Agreement.”
• “Such Investor is acquiring such the Securities proposed to be acquired
hereunder for investment for its own account and not with a view to the resale or
distribution of any part thereof, and such Investor has no present intention of
selling or otherwise distributing such Securities, except in compliance with
applicable securities Laws.”
• “Such Investor further acknowledges that if the Securities are issued to such
Investor in accordance with the provisions of this Agreement, such Securities
may not be resold without registration under the Securities Act or the existence of
an exemption therefrom.”
• “Such Person will not sell or otherwise transfer the Securities, unless either (A)
the transfer of such securities is registered under the Securities Act or (B) an
exemption from registration of such securities is available.”
29
• “Such Investor has not directly or indirectly, nor has any person acting on behalf
of or pursuant to any understanding with such Investor, engaged in any
transaction in the securities of the Company (including, without limitation, Short
Sales involving the Company’s securities) since the time that such Investor was
first contacted by the Company regarding the investment in the Company
contemplated herein.”
73. In addition, Friedlander and Gann knowingly cashed the proceeds of the
illegal enterprise. U.S. v. Salmonese, 352 F.3d 608 (2d Cir. 2010); U.S. v. Loe, 248 F.3d
449 (5th Cir. 2001); U.S. v. Girard, 744 F.2d 1170, 1171 (5th Cir. 1984). They also
knowingly refused to provide documents and knowingly took positions in open court on
the record that were the exact opposite of what their lawyer was told from the California
bankruptcy lawyer hired to represent Casey and Gann. Finally, it was unlawful to trade
stock on material nonpublic information and, a conspiracy may be based on lawful
conduct through unlawful means. Their overt acts need not “be” the unlawful act or
controlling fact. Conspiracy involves participation in a tort and does not require
independent liability.
74. The above conduct was performed by assisting or encouraging; assisting or
participating; or concert of action under Restatement (Second) of Torts §876, and each
aider and abettor had actual knowledge of the conduct of the primary actor and its
effects. Each aider and abettor substantially assisted the primary actor(s) by concealing
material facts, artificially inflating trading volume through fake accounts, shorting the
very stock they promoted, by trading on material nonpublic information, distributing
secret free trading shares, and knowing cashing and retaining the ill gotten profits
(which alone is a sufficient overt act to compose liability). U.S. v. Salmonese, 352 F.3d
608 (2d Cir. 2010); U.S. v. Loe, 248 F.3d 449 (5th Cir. 2001); U.S. v. Girard, 744 F.2d
1170, 1171 (5th Cir. 1984). Each aider and abettor also substantially assisted the primary
30
actor(s) by attempting to avoid “affiliate” status, concealing the background of the
officers they hand picked, conspiring with A&J, engaging in a secret and self funded
media blitz that contained misrepresentations, and selling all of their shares at a pre-
determined time.
75. Hudson, Brompton and Allen had a meeting of the minds with the insiders
including Casey, Friedlander, Trotter and Gann. Allen had a pre-existing relationship
with those insiders and failed to disclose that relationship when he was introduced to
LuxeYard. He pretended to be an objective and independent consultant to the company
and entered into a consulting agreement. He did not disclose his prior relationship with
the Defendants and he did not disclose that the consideration he received pursuant to
his consulting agreement was actually immediately turned over to the Defendants. He
therefore assisted them in accumulating more stock in LuxeYard. Further, Allen failed
to disclose the imminent pump and dump of which he was aware given his prior
relationship with the Defendants. He assisted the insiders in trading on inside
information, allowing them to have increased beneficial ownership, and in advising the
company pursuant to their instructions. Brompton (which included Hudson) acquired
free trading shares without telling LuxeYard or Alattar. See 15 U.S.C. §78p; 17 C.F.R. §
240.16a-1; 15 U.S.C. §78m(d)(3); Anslow Deposition at pp. 134, 226. Brompton had a
prior relationship with the Defendants and acquired free trading shares in previous
pump and dumps. Brompton never disclosed this in any of the documents Brompton
signed including the subscription agreement. Brompton had a meeting of the minds to
sell its free trading shares on inside information it acquired from Casey, Friedlander,
and Trotter. Brompton never disclosed this previous relationship to Alattar or LuxeYard
and Brompton misrepresented its relationship to the company in the subscription
31
agreement. Brompton assisted Casey and his gang in that they “controlled” the shares
held by Brompton for purposes of the definition of beneficial ownership. The unlawful
acts that Brompton assisted in include insider trading, breach of fiduciary duty, fraud,
and violation of the Texas Securities Act. This conduct also allowed Defendants to
transfer stock under conditions that would have precluded them from disposing of their
stock if Defendants had disclosed that they actually had beneficial ownership of the
stock held by Brompton.
Conspiracy
76. Plaintiff incorporates all allegations contained in the foregoing
paragraphs.
77. Based on the authority contained within the opinion letters, the
“unrestricted” shares were then divided among the Defendants and their co-
conspirators. Some of these shares were hidden in nominee accounts or hidden under
the names of different corporations in the Unites States and in offshore accounts in
places such as Bermuda. These “Hiding” Companies included Lee Bear, Lazy Bear,
Jinsun, Acadia Holdings, The Fishman Family Trust, Equity Highrise, Qvarex
Commerce, Sano Holdings and Core Energy Resources among others.
78. All Defendants (each and every Defendant including Sater and Acadia) had
a meeting of the minds to defraud Alattar and breach fiduciary duties owed to Alattar by
using his legitimate business as a front to perpetrate an overnight pump and dump
scheme. One or more unlawful overt acts were committed by each of these Defendants,
such as A&J’s drafting of the fraudulent documents connected to the reverse merger
transaction and A&J’s assisting Casey in acquiring the controlling interest of Top Gear
prior to the reverse merger. These Defendants conspired further to defraud Alattar into
32
believing that the nature of the transaction at issue was to assist LY in achieving
continued growth by going public through a reverse merger and then go on to become a
premier web-based company without disclosing that Defendants’ actual intent was to
use the shell company to perpetrate a pump and dump scheme. These Defendants,
acting jointly and in concert, each engaged in unlawful acts in furtherance of their
conspiracy, all as outlined above. Alattar has been injured as a result of defendant’s
conspiracy and seeks his actual damages.6 By engaging in a conspiracy to commit fraud,
Defendants are liable for exemplary damages.
79. Friedlander misrepresented and actively concealed his purported
experience, his advertised skill set, the nature of the individuals with whom he would be
working, that they were known criminals, his previous involvement with A&J, his
opinions regarding Luxeyard’s expected revenue, that he was involved in prior pump
and dumps, that he participated in hand-picking employees who were advertised as
strangers (when they were not) and more. Gann actively concealed the prior pump and
dumps, that he was fined and penalized by the Fifth Circuit as follows:
• “The district court found Gann not credible and determined that he had violated
Section 10(b) and Rule 10b-5;”
• “Gann and Fasciano opened 21 accounts for nine HCM affiliates, albeit the
investors in each were the same;”
• “After receiving a block notice, Gann and Fasciano would switch the identifier
number they were using, enabling them to continue trading, at least
temporarily;”
6
Gann and Friedlander and Casey controlled the day-to-day operations of the entities through which they
perpetrated their fraud, breach of fiduciary duty, and stock fraud. Although they acted individually, they
set up separate alter ego companies for purposes of hiding their trading activity. They are alter egos of the
companies that acted as a mere conduit for purposes of individual participation in numerous torts-which
torts damaged Plaintiff. The documents for these companies were sent directly to these Defendants and
signed by them. For purposes of this allegation, Plaintiff refers to and incorporates Plaintiff’s Motions to
Compel as to those Defendants-which Motions attach ample evidence of control, alter ago, and sham to
perpetuate a fraud.
33
• “The material misstatements at issue are Gann’s use of different and varying
client account numbers to disguise the frequency and magnitude of HCM’s
trading in the various funds;”
• “The district court held that Gann’s practice of switching identifying broker and
client account numbers constituted materially misleading statements in violation
of the securities laws;”
• “The SEC’s proof that Gann’s use of different numbers to conduct his trades
demonstrated that he did not want the fund companies catching on this his
trading practices;”
• “In one instance, Fasciano traded a Goldman Sachs fund three times and received
a block notice, yet he and Gann placed five more trades under a difference
number, received two more block notices, and still continued placing trades;”
• “We view the SEC’s characterization of the use of multiple registration and
account numbers as ample evidence of an intent to mislead;”
• “The SEC’s chief evidence of Gann’s intent to deceive was his use of numerous
account and registration numbers that actually represented his (and Fasciano’s)
work for HCM. The SEC contended that Gann’s efforts were meant to circumvent
the funds’ regulations for his own gain and that of his customer;” and
• “For the foregoing reasons, the judgment of the district court is AFFIRMED.”
Gann also concealed his plan to trade on material nonpublic information.
80. Alattar also contends Friedlander (and Equity Highrise) and Gann (and
his companies) aided and abetted by overtly assisting Casey in obtaining shares beneath
the 10% restriction while in fact controlling much more. Friedlander also assisted Casey
by, as shares were sold throughout 2012, misrepresenting the value of the shares by
concealing what was known only to Friedlander and Casey, but not Alattar. Friedlander
and Gann also concealed the fact that they were uniquely aware of inside information
about the status of the issues (Top Gear and Luxeyard) each time Alattar was asked to
invest more in the company. Friedlander and Gann had actual and general awareness of
their role in tricking Alattar into the SEA as well as the series A-D financing because
34
they participated in many prior pump and dumps with Casey and other known
criminals. When they acted, wrote, communicated and concealed material facts from
Alattar, they did so with intent to deceive Alattar. All of these communications were to
Alattar and/or they had a reason to expect the communications would be presented to
Alattar. The above conduct substantially assisted Casey and the other insiders in
facilitating the illegal pump and dump and in helping Casey avoid the restrictions placed
on beneficial owners of greater than 10% on a company’s outstanding shares. See 15
U.S.C. § 78p; 17 C.F.R. § 240.16a-1; 15 U.S.C. §78m(d)(3); Anslow Deposition at pp. 134,
226. They also assisted Casey in tricking Alattar (and others) into making subsequent
investments. They also made misrepresentations in the representations and warranties
they signed in the Subscription Agreement, including:
• “There is no Action pending against, or to the Knowledge of such Investor,
threatened against or affecting, such Investor by any Governmental Authority or
other Person with respect to such Investor that challenges, or may have the effect
of preventing, delaying, making illegal, or otherwise interfering with, any of the
transactions contemplated by this Agreement.”
• “Such Investor is acquiring such the Securities proposed to be acquired
hereunder for investment for its own account and not with a view to the resale or
distribution of any part thereof, and such Investor has no present intention of
selling or otherwise distributing such Securities, except in compliance with
applicable securities Laws.”
• “Such Investor further acknowledges that if the Securities are issued to such
Investor in accordance with the provisions of this Agreement, such Securities
may not be resold without registration under the Securities Act or the existence of
an exemption therefrom.”
• “Such Person will not sell or otherwise transfer the Securities, unless either (A)
the transfer of such securities is registered under the Securities Act or (B) an
exemption from registration of such securities is available.”
• “Such Investor has not directly or indirectly, nor has any person acting on behalf
of or pursuant to any understanding with such Investor, engaged in any
transaction in the securities of the Company (including, without limitation, Short
35
Sales involving the Company’s securities) since the time that such Investor was
first contacted by the Company regarding the investment in the Company
contemplated herein.”
81. In addition, Friedlander and Gann knowingly cashed the proceeds of the
illegal enterprise. U.S. v. Salmonese, 352 F.3d 608 (2d Cir. 2010); U.S. v. Loe, 248 F.3d
449 (5th Cir. 2001); U.S. v. Girard, 744 F.2d 1170, 1171 (5th Cir. 1984). They also
knowingly refused to provide documents and knowingly took positions in open court on
the record that were the exact opposite of what their lawyer was told from the California
bankruptcy lawyer hired to represent Casey and Gann. Finally, it was unlawful to trade
stock on material nonpublic information and, a conspiracy may be based on lawful
conduct through unlawful means. Their overt acts need not “be” the unlawful act or
controlling fact. Conspiracy involves participation in a tort and does not require
independent liability.
82. The above conduct was performed by assisting or encouraging; assisting or
participating; or concert of action under Restatement (Second) of Torts §876, and each
aider and abettor had actual knowledge of the conduct of the primary actor and its
effects. Each aider and abettor (each Defendant) substantially assisted the primary
actor(s) by concealing material facts, providing brokerage and underwriting services in
connection with the purchase of the shell company with knowledge of the intent to use
the shell company in the pump and dump scheme, providing the majority of capital
needed to purchase the shell company, artificially inflating trading volume through fake
accounts, shorting the very stock they promoted, trading on material nonpublic
information, distributing secret free trading shares, coordinating the timing of their
trades to maximize their profits when they dumped their shares, and knowingly cashing
and retaining the ill gotten profits (which alone is a sufficient overt act to compose
36
liability). U.S. v. Salmonese, 352 F.3d 608 (2d Cir. 2010); U.S. v. Loe, 248 F.3d 449 (5th
Cir. 2001); U.S. v. Girard, 744 F.2d 1170, 1171 (5th Cir. 1984). The Defendants acted in
concert, both amongst themselves and with others, to control and dominate the market
in LuxeYard stock, engage in coordinated trading activity (including the use of matched
orders, wash trades, and “gypsy swaps”), and funded and arranged for the creation and
distribution of false promotional materials to the public to generate a false appearance
of liquidity and investor interest in LuxeYard stock, thereby artificially inflating the
trading volume and share price. The Defendants also conspired to use nominee
brokerage and bank accounts in the names of corporate entities, trusts, relatives, and
acquaintances to conceal their fraudulent activity. So, each Defendant has illegally
retained the proceeds despite knowledge of the fraudulent scheme. Each aider and
abettor (each Defendant) also substantially assisted the primary actor(s) by attempting
to avoid “affiliate” status, concealing the background of the officers they hand picked,
conspiring with A&J, engaging in a secret and self funded media blitz that contained
misrepresentations, and selling all of their shares at a pre-determined time. All
Defendants had, by definition, and by admission, a meeting of the minds with the
companies they control.
83. Hudson, Brompton and Allen had a meeting of the minds with the insiders
including Casey, Friedlander, Trotter and Gann. Allen had a pre-existing relationship
with those insiders and failed to disclose that relationship when he was introduced to
LuxeYard. He pretended to be an objective and independent consultant to the company
and entered into a consulting agreement. He did not disclose his prior relationship with
the Defendants and he did not disclose that the consideration he received pursuant to
his consulting agreement was actually immediately turned over to the Defendants. He
37
therefore assisted them in accumulating more stock in LuxeYard. Further, Allen failed
to disclose the imminent pump and dump of which he was aware given his prior
relationship with the Defendants. He assisted the insiders in trading on inside
information, allowing them to have increased beneficial ownership, and in advising the
company pursuant to their instructions. Brompton (which included Hudson) acquired
free trading shares in return for its involvement in the pump and dump scheme without
telling LuxeYard or Alattar. See 15 U.S.C. §78p; 17 C.F.R. § 240.16a-1; 15 U.S.C.
§78m(d)(3); Anslow Deposition at pp. 134, 226. Brompton had a prior relationship with
the Defendants and acquired free trading shares in previous pump and dumps.
Brompton never disclosed this in any of the documents Brompton signed including the
subscription agreement. Brompton had a meeting of the minds to sell its free trading
shares on inside information it acquired from Casey, Friedlander, and Trotter.
Brompton never disclosed this previous relationship to Alattar or LuxeYard and
Brompton misrepresented its relationship to the company in the subscription
agreement. Brompton assisted Casey and his gang in that they “controlled” the shares
held by Brompton for purposes of the definition of beneficial ownership. The unlawful
acts that Brompton assisted in include insider trading, breach of fiduciary duty, fraud,
and violation of the Texas Securities Act. This conduct also allowed Defendants to
transfer stock under conditions that would have precluded them from disposing of their
stock if Defendants had disclosed that they actually had beneficial ownership of the
stock held by Brompton. Doug Shaw and Trevor Ling also conspired with the other
Defendants, and acted as agents of Brompton in this conspiracy.
84. Additionally, Jeff Lamont, Jeffrey Sater, Joseph Lee, Kay Holdings, Lance
Baral, Thomas Hudson, and William Bartlett also made nominal interim investments in
38
the company to help fund operations so that the rest of the pump and dump scheme
could be executed.
85. Additionally, the Defendants concealed their funding of unauthorized
marketing and promotion of LuxeYard stock by selling blocks of stock amongst
themselves through matched orders in the open market. The Defendants used proceeds
from these block trades to fund sham marketing of LuxeYard, by Next Media and
disgraced television and radio personality Tobin Smith, with money laundered through
their illegal coordinated trading activities.
Aiding and Abetting
86. Plaintiff incorporates all allegations contained in the foregoing
paragraphs.
87. Defendants, individually and as a group (each and every Defendant
including Sater and Acadia), assisted or encouraged each other, assisted and
participated with each other, and also acted in concert of action. Under Texas law, such
group participation constitutes aiding and abetting and warrants the imposition of joint
liability even if the Plaintiff dealt primarily with a single defendant. Stated another way,
when a defendant provides assistance or encouragement to another person who
commits a tort, and the aiding or encouragement is a substantial factor in causing the
tort, then the defendant is considered a tortfeasor, and consequently, is liable for the
consequences of the tort. In this case, Defendants aided and abetted each other and
others unnamed in committing the torts enumerated above. Hence, joint and several
liability is appropriate.
88. Friedlander misrepresented and actively concealed his purported
experience, his advertised skill set, the nature of the individuals with whom he would be
39
working, that they were known criminals, his previous involvement with A&J, his
opinions regarding Luxeyard’s expected revenue, that he was involved in prior pump
and dumps, that he participated in hand-picking employees who were advertised as
strangers (when they were not) and more. Gann actively concealed the prior pump and
dumps, that he was fined and penalized by the Fifth Circuit as follows:
• “The district court found Gann not credible and determined that he had violated
Section 10(b) and Rule 10b-5;”
• “Gann and Fasciano opened 21 accounts for nine HCM affiliates, albeit the
investors in each were the same;”
• “After receiving a block notice, Gann and Fasciano would switch the identifier
number they were using, enabling them to continue trading, at least
temporarily;”
• “The material misstatements at issue are Gann’s use of different and varying
client account numbers to disguise the frequency and magnitude of HCM’s
trading in the various funds;”
• “The district court held that Gann’s practice of switching identifying broker and
client account numbers constituted materially misleading statements in violation
of the securities laws;”
• “The SEC’s proof that Gann’s use of different numbers to conduct his trades
demonstrated that he did not want the fund companies catching on this his
trading practices;”
• “In one instance, Fasciano traded a Goldman Sachs fund three times and received
a block notice, yet he and Gann placed five more trades under a difference
number, received two more block notices, and still continued placing trades;”
• “We view the SEC’s characterization of the use of multiple registration and
account numbers as ample evidence of an intent to mislead;”
• “The SEC’s chief evidence of Gann’s intent to deceive was his use of numerous
account and registration numbers that actually represented his (and Fasciano’s)
work for HCM. The SEC contended that Gann’s efforts were meant to circumvent
the funds’ regulations for his own gain and that of his customer;” and
• “For the foregoing reasons, the judgment of the district court is AFFIRMED.”
40
Gann also concealed his plan to trade on material nonpublic information.
89. Alattar also contends Friedlander (and Equity Highrise) and Gann (and
his companies) aided and abetted by overtly assisting Casey in obtaining shares beneath
the 10% restriction while in fact controlling much more. Friedlander also assisted Casey
by, as shares were sold throughout 2012, misrepresenting the value of the shares by
concealing what was known only to Friedlander and Casey, but not Alattar. Friedlander
and Gann also concealed the fact that they were uniquely aware of inside information
about the status of the issues (Top Gear and Luxeyard) each time Alattar was asked to
invest more in the company. Friedlander and Gann had actual and general awareness of
their role in tricking Alattar into the SEA as well as the series A-D financing because
they participated in many prior pump and dumps with Casey and other known
criminals. When they acted, wrote, communicated and concealed material facts from
Alattar, they did so with intent to deceive Alattar. All of these communications were to
Alattar and/or they had a reason to expect the communications would be presented to
Alattar. The above conduct substantially assisted Casey and the other insiders in
facilitating the illegal pump and dump and in helping Casey avoid the restrictions placed
on beneficial owners of greater than 10% on a company’s outstanding shares. See 15
U.S.C. § 78p; 17 C.F.R. § 240.16a-1; 15 U.S.C. §78m(d)(3); Anslow Deposition at pp. 134,
226. They also assisted Casey in tricking Alattar (and others) into making subsequent
investments. They also made misrepresentations in the representations and warranties
they signed in the Subscription Agreement, including:
• “There is no Action pending against, or to the Knowledge of such Investor,
threatened against or affecting, such Investor by any Governmental Authority or
other Person with respect to such Investor that challenges, or may have the effect
of preventing, delaying, making illegal, or otherwise interfering with, any of the
transactions contemplated by this Agreement.”
41
• “Such Investor is acquiring such the Securities proposed to be acquired
hereunder for investment for its own account and not with a view to the resale or
distribution of any part thereof, and such Investor has no present intention of
selling or otherwise distributing such Securities, except in compliance with
applicable securities Laws.”
• “Such Investor further acknowledges that if the Securities are issued to such
Investor in accordance with the provisions of this Agreement, such Securities
may not be resold without registration under the Securities Act or the existence of
an exemption therefrom.”
• “Such Person will not sell or otherwise transfer the Securities, unless either (A)
the transfer of such securities is registered under the Securities Act or (B) an
exemption from registration of such securities is available.”
• “Such Investor has not directly or indirectly, nor has any person acting on behalf
of or pursuant to any understanding with such Investor, engaged in any
transaction in the securities of the Company (including, without limitation, Short
Sales involving the Company’s securities) since the time that such Investor was
first contacted by the Company regarding the investment in the Company
contemplated herein.”
90. In addition, Friedlander and Gann knowingly cashed the proceeds of the
illegal enterprise. U.S. v. Salmonese, 352 F.3d 608 (2d Cir. 2010); U.S. v. Loe, 248 F.3d
449 (5th Cir. 2001); U.S. v. Girard, 744 F.2d 1170, 1171 (5th Cir. 1984). They also
knowingly refused to provide documents and knowingly took positions in open court on
the record that were the exact opposite of what their lawyer was told from the California
bankruptcy lawyer hired to represent Casey and Gann. Finally, it was unlawful to trade
stock on material nonpublic information and, a conspiracy may be based on lawful
conduct through unlawful means. Each Defendant, including Sater, traded on inside
information and based on instruction from the insiders. Their overt acts need not “be”
the unlawful act or controlling fact. Conspiracy involves participation in a tort and does
not require independent liability.
42
91. The above conduct was performed by assisting or encouraging; assisting or
participating; or concert of action under Restatement (Second) of Torts §876, and each
aider and abettor had actual knowledge of the conduct of the primary actor and its
effects. Each aider and abettor (each Defendant) substantially assisted the primary
actor(s) by concealing material facts, providing brokerage and underwriting services in
connection with the purchase of the shell company with knowledge of the intent to use
the shell company in the pump and dump scheme, providing the majority of capital
needed to purchase the shell company, artificially inflating trading volume through fake
accounts, shorting the very stock they promoted, trading on material nonpublic
information, distributing secret free trading shares, coordinating the timing of their
trades to maximize their profits when they dumped their shares, and knowingly cashing
and retaining the ill gotten profits (which alone is a sufficient overt act to compose
liability). U.S. v. Salmonese, 352 F.3d 608 (2d Cir. 2010); U.S. v. Loe, 248 F.3d 449 (5th
Cir. 2001); U.S. v. Girard, 744 F.2d 1170, 1171 (5th Cir. 1984). The Defendants acted in
concert, both amongst themselves and with others, to control and dominate the market
in LuxeYard stock, engage in coordinated trading activity (including the use of matched
orders, wash trades, and “gypsy swaps”), funded and arranged for the creation and
distribution of false promotional materials to the public to generate a false appearance
of liquidity and investor interest in LuxeYard stock, thereby artificially inflating the
trading volume and share price. The Defendants also conspired to use nominee
brokerage and bank accounts in the names of corporate entities, trusts, relatives, and
acquaintances to conceal their fraudulent activity. Each aider and abettor also
substantially assisted the primary actor(s) by attempting to avoid “affiliate” status,
concealing the background of the officers they hand picked, conspiring with A&J,
43
engaging in a secret and self funded media blitz that contained misrepresentations, and
selling all of their shares at a pre-determined time. All Defendants, by definition aided
and abetted the companies they control. Accordingly, Defendant Jeff Sater also traded
on material non-public information by selling based on instructions from the insiders.
92. Hudson, Brompton and Allen had a meeting of the minds with the insiders
including Casey, Friedlander, Trotter and Gann. Allen had a pre-existing relationship
with those insiders and failed to disclose that relationship when he was introduced to
LuxeYard. He pretended to be an objective and independent consultant to the company
and entered into a consulting agreement. He did not disclose his prior relationship with
the Defendants and he did not disclose that the consideration he received pursuant to
his consulting agreement was actually immediately turned over to the Defendants. He
therefore assisted them in accumulating more stock in LuxeYard. Further, Allen failed
to disclose the imminent pump and dump of which he was aware given his prior
relationship with the Defendants. He assisted the insiders in trading on inside
information, allowing them to have increased beneficial ownership, and in advising the
company pursuant to their instructions. Brompton (which included Hudson) acquired
free trading shares in return for its involvement in the pump and dump scheme without
telling LuxeYard or Alattar. See 15 U.S.C. §78p; 17 C.F.R. § 240.16a-1; 15 U.S.C.
§78m(d)(3); Anslow Deposition at pp. 134, 226. Brompton had a prior relationship with
the Defendants and acquired free trading shares in previous pump and dumps.
Brompton never disclosed this in any of the documents Brompton signed including the
subscription agreement. Brompton had a meeting of the minds to sell its free trading
shares on inside information it acquired from Casey, Friedlander, and Trotter.
Brompton never disclosed this previous relationship to Alattar or LuxeYard and
44
Brompton misrepresented its relationship to the company in the subscription
agreement. Brompton assisted Casey and his gang in that they “controlled” the shares
held by Brompton for purposes of the definition of beneficial ownership. The unlawful
acts that Brompton assisted in include insider trading, breach of fiduciary duty, fraud,
and violation of the Texas Securities Act. This conduct also allowed Defendants to
transfer stock under conditions that would have precluded them from disposing of their
stock if Defendants had disclosed that they actually had beneficial ownership of the
stock held by Brompton. Doug Shaw and Trevor Ling also assisted the other
Defendants, and acted as agents of Brompton in assisting the primary actor(s) in the
scheme described herein.
93. Additionally, Jeff Lamont, Jeffrey Sater, Joseph Lee, Kay Holdings, Lance
Baral, Thomas Hudson, and William Bartlett also made nominal interim investments in
the company to help fund operations so that the rest of the pump and dump scheme
could be executed.
94. Additionally, the Defendants concealed their funding of unauthorized
marketing and promotion of LuxeYard stock by selling blocks of stock amongst
themselves through matched orders in the open market. The Defendants used proceeds
from these block trades to fund sham marketing of LuxeYard, by Next Media and
disgraced television and radio personality Tobin Smith, with money laundered through
their illegal coordinated trading activities.
Unjust Enrichment against Casey, Jinsun, Friedlander, Gann, Camarillo
and The Jonathan Camarillo Trust and each of the companies they control
95. Plaintiff incorporates all allegations contained in the foregoing
paragraphs.
45
96. Alattar seeks the equitable remedy of unjust enrichment against A&J,
Casey, Friedlander, Gann, Camarillo and The Jonathan Camarillo Trust because they all
obtained a benefit from Plaintiff directly and/or indirectly. See City of Corpus v. S.S.
Smith & Sons Masonry, Inc., 736 S.W.2d 247, 250 (Tex. App.—Corpus Christi 1987, writ
denied) (holding a defendant is liable for unjust enrichment if it secured a benefit, or
passively received one, which would be unconscionable to retain). When a person
obtains a benefit from another by fraud, duress, or the taking of undue advantage, the
aggrieved party may sue to prevent unjust enrichment. To prevent unjust enrichment
and to deter others from violating securities laws and fiduciary duties, a court has broad
powers to order a defendant to disgorge all illicit gains and impose a judgment in trust
on those gains. Further, where two or more individuals or entities have a close
relationship and engage in conduct giving rise to unjust enrichment, the perpetrators
may be held jointly and severally liable for the disgorgement of illegally obtained
proceeds. Casey, for himself and through affiliates, obtained a benefit from Plaintiff
who hired him, trusted him, and sold his company to him, which totaled approximately
$30,000,000 in profits as a direct result of fraud and taking undue advantage of Alattar
by using his legitimate business as a front for a pump and dump scheme. Accordingly,
Alattar seeks disgorgement of all ill-gotten profits under the doctrine of unjust
enrichment.
97. As outlined above, A&J, Casey, Friedlander, Gann, Camarillo and The
Jonathan Camarillo Trust obtained shares of Top Gear stock from Alattar by taking
undue advantage of Alattar and placing Alattar under duress as explained above. They
specifically obtained money from Alattar. They specifically obtained his interest in LY.
These Defendants are liable for rescission of all ill-gotten LUXR shares under the
46
doctrine of unjust enrichment. Alattar has an independent claim for unjust enrichment
because he was lied to as an individual, for months. He was, alone, a party to the
Security Exchange Agreement. Disgorgement is appropriate where there is unjust
enrichment. Moreover had Casey told the truth, then Alattar would have sold his stock
when Casey did and Alattar would have made millions as well. The $30,000,000 is the
amount to which Casey and the other insiders were unjustly enriched. They also
obtained a company that they could then take public.
Money Had and Received against Casey, Jinsun, Top Gear, Friedlander,
Gann, Camarillo and The Jonathan Camarillo Trust and
each of the companies they control
98. Plaintiff incorporates all allegations contained in the foregoing
paragraphs.
99. Alattar seeks the equitable remedy of money had and received against
Casey, Gann, Friedlander and the above named Defendants. Casey and his unnamed co-
conspirators, earned approximately $30,000,000 in profits resulting from their pump
and dump scheme that in equity and good conscience belongs in part to Alattar.
Therefore, Alattar seeks forfeiture of all ill-gotten profits received by them in connection
with the pump and dump scheme.
100. Alattar seeks the equitable remedy of money had and received against Top
Gear, Friedlander and Gann. Top Gear, Friedlander and Gann received substantial
consideration for assisting Casey in avoiding liability for the pump and dump scheme by
signing a release and waiver of claims against Casey. In equity and good conscience, the
consideration received belongs to Alattar. Therefore, Alattar seeks forfeiture of all
consideration received by Top Gear, Friedlander, Gann, Camarillo and The Jonathan
Camarillo Trust in exchange for their execution of the release and waiver.
47
Constructive Trust against Casey, Jinsun, Top Gear, Friedlander,
Gann, Camarillo and The Jonathan Camarillo Trust
101. Plaintiff incorporates all allegations contained in the foregoing
paragraphs.
102. Alattar is entitled to the equitable remedy of constructive trust with
respect to Casey, Friedlander, and Gann (and their companies) because of their
perpetration of the pump and dump scheme as outlined above. Casey, Friedlander, and
Gann committed actual fraud as described above in connection with the reverse merger
transaction and promises to build a viable business venture. This actual fraud has
resulted in unjust enrichment to Casey and his affiliates in the form of approximately
$30,000,000 in ill-gotten profits. Alattar seeks the remedy of constructive trust in the
amount of all ill-gotten profits resulting from the pump and dump scheme.
103. Finally, Alattar seeks the equitable remedy of constructive trust against
Friedlander, Gann, Camarillo and The Jonathan Camarillo Trust as a result of their
concerted efforts to assist Casey.
Negligence
104. Plaintiff incorporates all allegations contained in the foregoing
paragraphs.
105. Defendants conspired with A&J who owed a duty of care to Alattar, but
breached that duty by representing the shell company in the primary transaction,
affirmatively assisting Casey and his team in what A&J admits was pump and dump,
submitting fraudulent letters to the transfer agent to facilitate the transfer of free
48
trading stock, making affirmative misrepresentations of material fact regarding Casey’s
affiliate status, failing to tell Alattar that A&J was revising documents after their
effective date, failing to honor the terms in the Term Sheet provided to A&J, assisting
Casey and his team in obtaining secret control of the shell prior to the reverse merger,
failing to disclose its relationship with Casey, and in refusing to disclose that articles on
the internet allege A&J is connected to a long list of shell pump and dumps. Casey and
Friedlander also made negligent misrepresentations.
Exemplary Damages
106. Plaintiff incorporates all allegations contained in the foregoing
paragraphs.
107. The actions of Casey, Top Gear, Friedlander, Gann, Camarillo and The
Jonathan Camarillo Trust and all of the companies they control surrounding the reverse
merger transaction constitute fraud, malice and/or gross negligence. The actions of
Casey and A&J in inducing Alattar to transfer large blocks of LUXR shares constitute
fraud, malice and/or gross negligence. The actions of Casey and A&J surrounding the
offer and acceptance of the release and waiver similarly constitute fraud, malice, and/or
gross negligence. All Defendants (each and every Defendant including Sater) engaged in
a conspiracy to commit fraud and all acted with malice and gross negligence. Each
Defendant, including Sater, traded on material inside information. Alattar therefore
seeks exemplary damages against all Defendants pursuant to Chapter 41 of the Texas
Civil Practice & Remedies Code.
108. In addition to exemplary damages, Alattar seeks to remove the cap on
exemplary damages pursuant to Section 41.008(c) of the Texas Civil Practice and
Remedies Code. Casey, Friedlander, and each of their companies engaged in conduct
49
that was knowing and intentional, as well as a felony, surrounding the signing of the
release and waiver agreement constitute commercial bribery in violation of Section
32.43 of the Texas Penal Code. A&J and Casey’s actions surrounding the reverse merger
transaction constitute the securing of a document by deception in violation of Section
32.46 of the Texas Penal Code. These actions were knowing and intentional and
constituted a felony. They also knowing and intentionally secured the execution of the
Term Sheet through fraud and deception. They also intentionally and knowingly
secured the execution of the shareholder signature indemnity through fraud and
deception. They also knowingly and intentionally forged that document. They also
knowingly and intentionally forged the names of the 42 Israeli shareholders who
provided Top Gear to them. Therefore, there is no cap on exemplary damages under
the Texas Civil Practice & Remedies Code Section 41.008(c).
109. Casey bribed Luxeyard and LY to settle LY’s claims against Casey and the
gang by Luxeyard to. Casey bribed Mireskandari in the same manner and so as to obtain
a release from Luxeyard. Casey bribed Braden Richter and Tommy Allen by giving them,
the company business consultants, substantial stock in Luxeyard so that Casey could
control Luxeyard through them. In these instances, Casey acted without the consent of
Plaintiff or Luxeyard. Casey was a fiduciary to LY, to Plaintiff and to Luxeyard, and so
was Mr. Richter and Mr. Allen. Tex. Penal Code §32.43(a). In these instances, Casey
offered, conferred, or agreed to confer a benefit upon a fiduciary without the consent of
fiduciary’s beneficiary, Plaintiff, Luxeyard and LY. Tex. Penal Code §32.43(c). The
offers and agreements to confer by Casey to Mireskandari, Mr. Richter and Mr. Allen
were designed to influence their conduct. Tex. Penal Code §32.43(b).
50
Fraudulent Transfer under Texas Uniform Fraudulent Transfer Act
against Casey, Friedlander, Gann and the companies they control
110. Plaintiff incorporates all allegations contained in the foregoing
paragraphs.
111. These Defendants, and their unnamed co-conspirators, earned
approximately $30,000,000 in profits resulting from their pump and dump scheme that
in equity and good conscience belongs in part to Alattar. Alattar does not seek these as
damages to LuxeYard but pursuant to equitable disgorgement. Alattar is a creditor who
has a claim against these Defendants for purposes of Texas Business and Commerce
Code, Section 24.002, et seq. As stated in the above paragraphs, Defendants have
engaged in a series and scheme of fraudulent transfers in violation of Texas Business
and Commerce Code, Section 24.005, et seq. Plaintiff seeks all remedies and damages
as otherwise stated in this petition, as well as those afforded to Plaintiff under the
provisions of this statute, including injunctive relief.
DAMAGES
112. Plaintiff incorporates all allegations contained in the foregoing
paragraphs.
113. Alattar seeks actual damages, exemplary damages, exemplary damages in
excess of the statutory limitation, treble damages, disgorgement of profits, attorney’s
fees, expert witness fees, costs for copies and depositions, court costs, pre-judgment
interest, and post-judgment interest. Plaintiff’s references to the decline in the stock
price are not to establish direct damages. They are relevant to demonstrate a lost
business opportunity, which opportunity was lost long after the decline. They are one of
many variables in an indirect measure of a business valuation for LY Retail, and what
51
Plaintiff could have achieved had he never done business with Casey. They also reveal a
“routine practice” and fraudulent intent. Plaintiff does not invoke the internal affairs
doctrine. Plaintiff sues under Section 101.463(c). Plaintiff separately sues in his
individual capacity in connection to the lies made to him individually. Plaintiff’s right to
sue was recognized by Casey in writing. Plaintiff withdraws his request for a trial by
jury.
114. Alattar is suing Defendants for claims that accrued to him individually
prior to or on November 8, 2011. Alattar does not ask this Court to construe the internal
affairs of LuxeYard. That Alattar has damages that relate to how L.Y. Retail, a Texas
company, would have performed, long after any decline in stock price, but for the fraud,
is not a request by Alattar to construe the internal rights and powers of LuxeYard’s
shareholders. Nor is it a direct measure of damages.
115. So that there is no confusion, Defendants knowingly conspired to defraud
Plaintiff at the time of the reverse merger and to induce him into the reverse merger,
denying him of the lost business opportunity which continued long after the decline in
the stock price, he would have enjoyed had Defendants either fulfilled their promises or
allowed Plaintiff to do business with someone else. Alattar does not seek damages
as a shareholder of LuxeYard.
REQUEST FOR RELIEF
116. Alattar requests that Defendants be cited to appear and answer herein,
and that upon a final hearing of the cause, judgment be entered for Alattar against
Defendants for an amount to be determined at trial, plus attorneys’ fees, court costs, and
pre- and post-judgment interest at the maximum rate permitted by law, and such other
and further relief to which Alattar may be entitled. The maximum amount of damages
52
sought against Defendants is still being determined. Plaintiff has yet to receive
documents and discovery sufficient to calculate profits. Currently, the maximum
amount of damages is that set forth in the testimony of Kevan Casey and Jonathan
Friedlander in the amount of $150 million, which testimony is an indirect measure of
damages to Plaintiff had Plaintiff never done business with Casey.
Respectfully submitted,
FAUBUS KELLER & BURFORD LLP
By: /s/ Brian M. Keller
Brian M. Keller
State Bar No. 00784376
Mark Ritchie
State Bar No. 24002845
1001 Texas Avenue, 11th Floor
Houston, Texas 77002
(713) 222-6400
(713) 222-7240 – Fax
brian@fkblawfirm.com
mark@fkblawfirm.com
Attorneys for Plaintiff Khaled Alattar
53
CERTIFICATE OF SERVICE
A copy of this document was served electronically on all counsel of record on
May 22, 2015, as follows:
David R. Clouston
Leslye Moseley
Sessions Fishman Nathan & Israel LLC
900 Jackson Street, Suite 440
Dallas, Texas 75202
(214) 741-3024 – office
(214) 741-3055 – facsimile
dclouston@sessions-law.biz
lmoseley@sessions-law.biz
Attorneys for Jonathan Friedlander, Equity Highrise, Inc., Scott Gann, Lazy
Bear LLC, Lee Bear LLC, Sun Bear LLC, OSO Capital LLC and Joseph Lee
Jason Hopkins
Jason Lewis
Adam S. Tyler
Greenberg Traurig, LLP
2200 Ross Avenue, Suite 5200
Dallas, Texas 75201
(214) 665-3660 - office
(214) 665-5960 - facsimile
hopkinsjm@gtlaw.com
lewisjs@gtlaw.com
tylera@gtlaw.com
Attorneys for Kevan Casey, Jinsun LLC and Far East Strategies LLC
Danny Sheena
The Sheena Law Firm
2500 West Loop South, Suite 518
Houston, Texas 77027
(713) 224-6508 – office
(713) 225-1560 – facsimile
danny@sheenalawfirm.com
jason@sheenalawfirm.com
cristina@sheenalawfirm.com
Attorney for TOP GEAR, INC. n/k/a LUXEYARD, INC.
54
Mark S. Hellinger
The Hellinger Law Firm
12 Greenway Plaza, Suite 1100
Houston, Texas 77046
(713) 623-1153 – office
(713) 623-1221 – facsimile
mhellinger@hellingerlawfirm.com
Attorney for Jonathan Camarillo and The Jonathan Camarillo Trust
J. Randle Henderson
16506 FM 529, Suite 115-107
Houston, Texas 77095
(713) 870-8358 – office
(281) 758-0545 – facsimile
jrh@hendersonrandy.com
Attorney for Sano Holdings, Inc., Kay Holdings, Inc., William W. Bartlett, Jr.,
Kevin Lisman, Thomas Hudson, The Brompton Group NA, LLC, Jeff Lamont
Robert Klinek, Susan Pack, Lance Baral, Lawrence Isen and the Isen Trust
Kevin T. Kennedy
4550 Post Oak Place, Suite 210
Houston, Texas 77027
(713) 862-3000 – office
(713) 979-2003 - facsimile
k.t.p.kennedy@gmail.com
Attorney for Babak Daghighi
Charley Davidson
Anthony L. Laporte
Hanszen Laporte, LLP
11767 Katy Freeway, Suite 850
Houston, Texas 77079
(713) 522-9444 – office
(713) 524-2580 – facsimile
cdavidson@hanszenlaporte.com
alaporte@hanszenlaporte.com
Attorneys for Mark Trotter
Jonathan D. Neerman
Seth Johnson
Jackson Walker L.L.P.
901 Main Street, Suite 6000
Dallas, Texas 75202
(214) 661-6899
jneerman@jw.com
jsjohnson@jw.com
Attorneys for Apex Clearing Corporation
55
Arthur Gollwitzer, III
Michael Best & Friedrich LLP
12600 Hill Country Blvd., R-275
Austin, Texas 78738
(512) 329-2676 – office
(512) 222-0818 – facsimile
agollwitzer@michaelbest.com
Attorney for Wilson-Davis & Co.
Blaire Bruns Johnson
James Chambers
Edison, McDowell & Hetherington LLP
3200 Southwest Freeway, Suite 2100
Houston, Texas 77027
(713) 337-5580 – office
(713) 337-8850 – facsimile
blaire.johnson@emhllp.com
james.chambers@emhllp.com
Attorneys for Acadia Holding Corporation
U.S. Certified Mail, Return
Receipt Requested No. 70111570000101620905
Regular U.S. First Class Mail
Tommy Allen
631 Cypresswood Ln.
Spring, Texas 77373
tallen2112@yahoo.com
Defendant, Pro se
/s/ Brian M. Keller
Brian M. Keller
56
TAB C
6/19/2015 4:40:20 PM
Chris Daniel - District Clerk Harris County
Envelope No. 5756018
By: DELTON ARNIC
Filed: 6/19/2015 4:40:20 PM
CAUSE NO. 2012-54501
KHALED ALATTAR, § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. § HARRIS COUNTY, TEXAS
§
KEVAN CASEY, ET AL., §
§
Defendants. § 113th JUDICIAL DISTRICT
PLAINTIFF’S MOTION TO QUASH DEPOSITION OF WAYNE DOLCEFINO
AND MOTION FOR PROTECTIVE ORDER
Plaintiff Khaled Alattar files this Motion to Quash Deposition of Wayne Dolcefino
and Motion for Protective Order, and would respectfully show the Court as follows:
INTRODUCTION
On June 17, 2015, Defendant Jinsun LLC (“Jinsun”) filed and served Jinsun
LLC’s First Amended Notice of Deposition Subpoena Duces Tecum of Wayne
Dolcefino, a true and correct copy of which is attached hereto as Exhibit A.1 Based on
the documents listed in the subpoena duces tecum, it is readily apparent that Jinsun (and
thus, in reality, Kevan Casey) is attempting to force Mr. Dolcefino to reveal information
he has compiled as a journalist. Mr. Dolcefino has been working on an investigative
piece on Defendants’ participation in the LuxeYard pump and dump and similar schemes,
as established by his affidavit attached hereto as Exhibit B.
1
The certificate of service erroneously states that the deposition notice and subpoena duces
tecum was served on all counsel of record on June 16, 2015. As evidenced by the file stamped
copy, the notice and subpoena was actually served through the e-filing system on June 17, 2015.
MOTION TO QUASH
Pursuant to Texas Rule of Civil Procedure 199.4, Plaintiff hereby objects to the
time and place designated for Mr. Dolcefino’s deposition, on grounds that counsel for
Plaintiff has a hearing scheduled in another proceeding on the date designated in the
deposition and will be unavailable to attend. As this objection is made within three days
after service of the notice, this deposition is stayed until Plaintiff’s motion can be
determined.
MOTION FOR PROTECTIVE ORDER
“[A]ny … person affected by [a] discovery request” may seek a protective order
regarding the discovery sought. Tex. R. Civ. P. 192.6(a). In ruling on the party’s motion
for protective order, the court “may make any order in the interest of justice” to protect
the moving party “from undue burden, unnecessary expense, harassment, annoyance, or
invasion of personal, constitutional, or property rights.” Id. 192.6(b).
Jinsun’s notice of deposition and subpoena duces tecum directed to Mr. Dolcefino
does not constitute discovery of a matter that is “relevant to the subject matter of the
pending action,” nor is it “reasonably calculated to lead to the discovery of admissible
evidence,” as required under Texas Rule of Civil Procedure 192.3. Indeed, several
categories of documents listed in the subpoena are on their face unrelated to discovering
facts relevant to the contested issues in this lawsuit, that is, facts pertinent to the conduct
and communications of the parties in 2011 and 2012, and facts tending to establish the
Defendants’ intent in inducing Plaintiff to agree to the reverse merger that made the
LuxeYard pump and dump possible.
2
Additionally, and as stated previously, Mr. Dolcefino has compiled the documents
and information sought by Defendants in his role as an investigative journalist.2 Under
Section 22.023 of the Texas Civil Practice & Remedies Code, Mr. Dolcefino has a
journalistic privilege to refuse to testify regarding, produce, or disclose “any confidential
or nonconfidential information, document, or item obtained or prepared while acting as a
journalist,” as well as refusing to identify the source of any such information, document
or item. Fundamentally, Jinsun’s attempt to depose Mr. Dolcefino and subpoena
documents from him is a complete waste of time, as Mr. Dolcefino is entitled to and will
assert his journalistic privilege in response to each and every question and request.
In light of the foregoing, a protective order is necessary to prevent the completely
unnecessary expense and utter waste of time associated with preparing for and attending
the contemplated deposition of Mr. Dolcefino. Mr. Dolcefino has established his status
as a journalist and his intent to assert his journalist’s privilege, refusing to testify or
produce any documents in response to Jinsun’s request. Ex. B. Requiring Plaintiff, and
for that matter Mr. Dolcefino and every other party to this lawsuit, to engage in this
exercise in futility serves no purpose other than to squander the time and resources of all
2
For purposes of the privilege, a journalist is broadly defined as “a person … who for a
substantial portion of the person’s livelihood or for substantial financial gain, gathers, compiles,
prepares, collects, photographs, records, writes, edits, reports, investigates, processes, or
publishes news or information that is disseminated by a news medium or communication service
provider.” Tex. Civ. Prac. & Rem. Code § 22.021(2). “News medium” is likewise broadly
defined to include any entity “that disseminates news or information to the public by any
means,” including print, television, radio, photographic, mechanical, electronic, and other means
known or unknown that are accessible to the public. Id. § 22.021(3).
3
involved. Accordingly, Plaintiff respectfully requested that the Court sign a protective
order to preempt this wasteful exercise.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff Khaled Alattar respectfully
requests that this Court quash the deposition of Wayne Dolcefino, issue a protective order
against future attempts to depose Mr. Dolcefino, and such other and further relief as to
which Plaintiff may be justly entitled.
Respectfully submitted,
KELLER & ASSOCIATES, P.C.
By: /s/ Brian M. Keller
Brian M. Keller
State Bar No. 00784376
2500 West Loop South, Suite 300
Houston, TX 77027
281-853-9456
713-600-5804 (fax)
bkeller@kellerattorneys.com
Of Counsel:
Mark Ritchie
State Bar No. 24002845
mritchie@kellerattorneys.com
Attorneys for Plaintiff Khaled Alattar
4
CERTIFICATE OF CONFERENCE
I certify that on June 19, 2015, I attempted to confer via email with Jason Hopkins,
counsel for Jinsun LLC, regarding this motion to quash and motion for protective order,
indicating that if I did not hear from him by 4:00 p.m. I would presume his opposition.
Mr. Hopkins did not respond before the 4:00 p.m. deadline.
/s/ Mark Ritchie
Mark Ritchie
CERTIFICATE OF SERVICE
A copy of this document was served electronically on all counsel of record on
June 19, 2015, as follows:
David R. Clouston
Leslye Moseley
Sessions Fishman Nathan & Israel LLC
900 Jackson Street, Suite 440
Dallas, Texas 75202
(214) 741-3024 – office
(214) 741-3055 – facsimile
dclouston@sessions-law.biz
lmoseley@sessions-law.biz
Attorneys for Jonathan Friedlander, Equity Highrise, Inc., Scott Gann,
Lazy Bear LLC, Lee Bear LLC, Sun Bear LLC, OSO Capital LLC and Joseph Lee
Jason Hopkins
Jason Lewis
Adam S. Tyler
Greenberg Traurig, LLP
2200 Ross Avenue, Suite 5200
Dallas, Texas 75201
(214) 665-3660 - office
(214) 665-5960 - facsimile
hopkinsjm@gtlaw.com
lewisjs@gtlaw.com
tylera@gtlaw.com
Attorneys for Kevan Casey, Jinsun LLC and Far East Strategies LLC
5
Mark S. Hellinger
The Hellinger Law Firm
12 Greenway Plaza, Suite 1100
Houston, Texas 77046
(713) 623-1153 – office
(713) 623-1221 – facsimile
mhellinger@hellingerlawfirm.com
Attorney for Jonathan Camarillo and The Jonathan Camarillo Trust
J. Randle Henderson
16506 FM 529, Suite 115-107
Houston, Texas 77095
(713) 870-8358 – office
(281) 758-0545 – facsimile
jrh@hendersonrandy.com
Attorney for Sano Holdings, Inc., Kay Holdings, Inc., William W. Bartlett, Jr.,
Kevin Lisman, Thomas Hudson, The Brompton Group NA, LLC, Jeff Lamont,
Robert Klinek, Susan Pack, Lance Baral, Lawrence Isen and the Isen Trust
Charley Davidson
Anthony L. Laporte
Hanszen Laporte, LLP
11767 Katy Freeway, Suite 850
Houston, Texas 77079
(713) 522-9444 – office
(713) 524-2580 – facsimile
cdavidson@hanszenlaporte.com
alaporte@hanszenlaporte.com
Attorneys for Mark Trotter
Jonathan D. Neerman
Brian H. Oates
Jackson Walker L.L.P.
901 Main Street, Suite 6000
Dallas, Texas 75202
(214) 661-6899 – facsimile
(214) 952-5822 - facsimile
jneerman@jw.com
boates@jw.com
Attorneys for Apex Clearing Corporation
6
Arthur Gollwitzer, III
Michael Best & Friedrich LLP
12600 Hill Country Blvd., R-275
Austin, Texas 78738
(512) 329-2676 – office
(312) 222-0818 – facsimile
agollwitzer@michaelbest.com
Attorney for Wilson-Davis & Co.
Blaire Bruns Johnson
James Chambers
Edison, McDowell & Hetherington LLP
3200 Southwest Freeway, Suite 2100
Houston, Texas 77027
(713) 337-5580 – office
(713) 337-8850 – facsimile
blaire.johnson@emhllp.com
james.chambers@emhllp.com
Attorneys for Acadia Holding Corporation
Kevin T. Kennedy
2500 West Loop South, Suite 315
Houston, Texas 77027
(713) 979-2003 – facsimile
k.t.p.kennedy@gmail.com
Attorney for Intervenors
Tommy Allen
631 Cypresswood Ln.
Spring, Texas 77373
tallen2112@yahoo.com
Defendant, Pro se
/s/ Brian M. Keller
Brian M. Keller
7
6/17/2015 11:16:30 AM
Chris Daniel - District Clerk Harris County
Envelope No. 5708919
By: SHELLEY BOONE
Filed: 6/17/2015 11:16:30 AM
CAUSE NO. 2012-54501
KHALED ALATTAR, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. §
§ 113th JUDICIAL DISTRICT
JINSUN, LLC, §
FAR EAST STRATEGIES, LLC, and §
KEVAN CASEY, et al., §
§
Defendants. § HARRIS COUNTY, TEXAS
______________________________________________________________________________
JINSUN LLC’S FIRST AMENDED NOTICE OF DEPOSITION
SUBPOENA DUCES TECUM OF WAYNE DOLCEFINO
______________________________________________________________________________
TO: Wayne Dolcefino, 3701 Kirby, Suite 560, Houston, Texas 77098.
Pursuant to Rule 205.2 of the Texas Rules of Civil Procedure, please take notice that
Defendant Jinsun LLC (“Jinsun”) will take the oral deposition of Wayne Dolcefino before a
certified court reporter on June 26, 2015, beginning at 10:00 a.m., and continuing thereafter until
complete. The deposition will take place at the law offices of Greenberg Traurig LLP, 1000
Louisiana Street, Suite 1700, Houston, Texas 77002, or such other place as may be mutually
agreed.
All parties are invited to attend and examine the witness as prescribed by the Texas Rules
of Civil Procedure. The deposition will be recorded stenographically and may be videotaped.
Any party wishing to have this deposition recorded by another method may serve written notice
designating the desired method on all other parties and must make arrangements for the
additional method at its own expense.
JINSUN LLC’S FIRST AMENDED NOTICE OF DEPOSITION SUBPOENA DUCES TECUM OF
WAYNE DOLCEFINO – PAGE 1
DAL 79492903v2
Pursuant to Rule 199.2(b)(5) of the Texas Rules of Civil Procedure, you are directed to
produce, at or before the time of the deposition, the documents described in Exhibit “A” hereto.
Dated: June 16, 2015.
Respectfully submitted,
/s/ Jason M. Hopkins
Mary-Olga Lovett
Texas Bar No. 00789289
lovettm@gtlaw.com
Jason S. Lewis
Texas Bar No. 24007551
lewisjs@gtlaw.com
Jason M. Hopkins
Texas Bar No. 24059969
hopkinsjm@gtlaw.com
GREENBERG TRAURIG, LLP
2200 Ross Avenue, Suite 5200
Dallas, Texas 75201
(214) 665-3660 - office
(214) 665-5960 - facsimile
ATTORNEYS FOR KEVAN CASEY,
JINSUN, LLC, AND FAR EAST
STRATEGIES, LLC
CERTIFICATE OF SERVICE
I certify that I served the foregoing notice on all counsel of record via email on June 16,
2015.
/s/ Jason M. Hopkins
Jason M. Hopkins
JINSUN LLC’S FIRST AMENDED NOTICE OF DEPOSITION SUBPOENA DUCES TECUM OF
WAYNE DOLCEFINO – PAGE 2
DAL 79492903v2
Exhibit “A”
INSTRUCTIONS
1. Singular and masculine forms of any nouns or pronouns shall embrace and be
applied as the plural, feminine, or neuter, as the context requires, and vice versa.
2. The past tense of any verb shall embrace and be applied as the present tense, as
the context requires or as applicable, and vice versa.
3. The plural includes the singular and vice versa.
4. Each request is to be construed and answered or responded to separately and
independently, and is not to be referenced to any other request for purposes of limitation.
5. These requests are continuing in nature and require supplementation as soon as
practical if you or your attorney obtain information which reveals that your answers were
incorrect or incomplete when made or that your answers are no longer correct or complete.
6. Documents produced pursuant to these requests should be tendered either in the
precise form or manner as they are kept in the usual course of business, or organized and labeled
to correspond with the categories that follow in this request.
7. If any document has been destroyed, describe in detail the circumstances of and
reasons for such destruction and produce all documents that relate to either the circumstances of
or reasons for such destruction.
8. You are to produce all documents, as defined below, that are in your actual or
constructive possession, custody, or control or in the possession, custody, or control of your
respective counsel, agents, or representatives, or which can be obtained through reasonably
diligent efforts. Without limiting the term “control,” a document is deemed to be within one’s
control if you have ownership, possession or custody of the document, or the rights to secure the
document or copy thereof from any person or public or private entity having physical possession
thereof. The terms “possession, custody, or control” are to be construed in the broadest manner
consistent with Texas law.
9. All duplicates or copies of documents are to be provided to the extent they have
handwriting, additions, or deletions of any kind different from the original document being
produced, and vice versa.
10. The requests and interrogatories herein seek documents and information from
January 1, 2012 to present, unless otherwise stated.
DEFINITIONS
The following terms have the following meanings, unless other required by context:
JINSUN LLC’S FIRST AMENDED NOTICE OF DEPOSITION SUBPOENA DUCES TECUM OF
WAYNE DOLCEFINO – PAGE 3
DAL 79492903v2
1. The terms “and” as well as “or” shall be construed either disjunctively or
conjunctively to bring within the scope of these Requests any information which might otherwise
be construed to be outside their scope.
2. “You” or “your” or “Dolcefino” means Wayne Dolcefino, and includes any
person or entity (including Dolcefino Consulting) acting for or on behalf of Dolcefino, including,
but not limited to all present and former directors, officers, agents, managers, servants,
employees (including direct, borrowed, special or statutory employees), and/or representatives,
affiliates, successors, predecessors, subsidiaries, parents, divisions, partners, attorneys, or other
persons or entities acting or purporting to act on his behalf, whether individually or collectively.
3. “Luxeyard” means Luxeyard Inc., LY Retail LLC, and any person or entity acting
on their behalf, including, but not limited to all present and former directors, officers, agents,
managers, servants, employees (including direct, borrowed, special or statutory employees),
and/or representatives, affiliates, successors, predecessors, subsidiaries, parents, divisions,
partners, attorneys, or other persons or entities acting or purporting to act on Luxeyard’s behalf,
whether individually or collectively.
4. The term “Document” is used in the broadest sense and shall mean all things
described in Rule 192.3(b) of the TEXAS RULES OF CIVIL PROCEDURE and includes, but is not
limited to, any and all papers, files, reports, correspondence, summaries, stenographic or
handwritten notes, announcements, drafts, and preliminary copies of documents, transcripts,
minutes, studies, memoranda, notes or memoranda of conversations, telephone messages,
transmittal slips, printed literature, brochures, catalogues, advertising of all types, test reports,
articles, publications, books, pamphlets, pictures, diaries, appointment books, calendars, minute
books, by-laws, stock certificates, statistical compilations, telegrams, telexes, cables, teletypes,
mailgrams, facsimiles, graphs, charts, surveys, analyses, compilations, movie films, audiotapes,
videotapes, microfilms, slides or still films, statistics, data processing cards, computer records, e-
mails, computerized instant messages, .txt messages, SMS files, MMS files, computer tapes,
printouts, books of account, ledgers, journals, spreadsheets, control sheets, working papers,
audits, or any writing or documentation or data of any kind or description, whether handwritten,
typewritten, printed, copied, microfilmed, printed on computer cards or tapes or data in existence
or available or otherwise retrievable, in your custody, possession, or control of every type and
description, regardless of form or nature, pertaining in whole or in part, directly or indirectly, to
the matters referred to in the foregoing Requests. Please note that such definition includes
electronic or videotape recordings, electronic data and data compilations. As it relates to
information that is stored as electronic or magnetic data on a computer, or any other information
storage devise, the terms “document,” “documents,” or “documentation” includes the raw
electronic data and software applications necessary to translate the information into useable form
as well as any tangible copies or printouts of such information.
5. The term “Communications” shall mean any oral or written utterance, transfer or
exchange of information, notation or statement of any nature whatsoever, by or to whomever
made, including, but not limited to correspondence, conversations, dialogues, discussions,
interviews, consultations, telephone calls, meetings, telexes, cables, agreements, electronic mail,
JINSUN LLC’S FIRST AMENDED NOTICE OF DEPOSITION SUBPOENA DUCES TECUM OF
WAYNE DOLCEFINO – PAGE 4
DAL 79492903v2
text messages transmitted by cellular telephone, instant messaging, and/or any other
understandings.
REQUESTS FOR PRODUCTION
Please produce any document that contains, concerns, embodies, refers to, relates to,
analyzes, summarizes, evaluates, discusses, reports, explains, supports, corroborates,
substantiates, confirms, disputes, refutes, contradicts, forms a basis of or otherwise contains
information about the following:
1. Communications with any party (or former party) to this lawsuit;
2. Communications with counsel for any party (or former party) to this lawsuit;
3. Communications with Amir Mireskandari, Alidad Mireskandari, or Yuval Ran;
4. Communications with any other person, entity, or government agency relating to
Luxeyard, this lawsuit, or any defendant in this lawsuit;
5. Your retention or engagement by any party (or former party) to this lawsuit; counsel for
any party (or former party) to this lawsuit; Amir Mireskandari, Alidad Mireskandari, or
Yuval Ran;
6. Payments made, or due to be made, to you by any party (or former party) to this lawsuit,
counsel for any party (or former party) to this lawsuit, Amir Mireskandari, Alidad
Mireskandari, or Yuval Ran;
7. Your review of documents involving litigation relating to Luxeyard;
8. Your research into financial transactions known or suspected to be “pump and dump”
schemes;
9. Documents or other work product generated by you that relate to Luxeyard, this lawsuit,
or any defendant in this lawsuit; and
10. Telephone records reflecting all calls you made relating to Luxeyard, this lawsuit, or any
defendant in this lawsuit.
JINSUN LLC’S FIRST AMENDED NOTICE OF DEPOSITION SUBPOENA DUCES TECUM OF
WAYNE DOLCEFINO – PAGE 5
DAL 79492903v2
THE STATE OF TEXAS
CAUSE NO. 2012-54501
KHALED ALATTAR, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. §
§ 113th JUDICIAL DISTRICT
JINSUN, LLC, §
FAR EAST STRATEGIES, LLC, and §
KEVAN CASEY, et al., §
§
Defendants. § HARRIS COUNTY, TEXAS
______________________________________________________________________________
FIRST AMENDED DEPOSITION SUBPOENA DUCES TECUM
______________________________________________________________________________
STATE OF TEXAS
COUNTY OF HARRIS
TO ANY SHERIFF, CONSTABLE, OR OFFICER FOR THE STATE OF TEXAS OR ANY
OTHER AUTHORIZED PERSON TO SERVE AND EXECUTE SUBPEONAS AS
PROVIDED IN THE TEXAS RULES OF CIVIL PROCEDURE 176.
Greetings:
YOU ARE HEREBY COMMANDED TO SUBPOENA AND SUMMON THE
FOLLOWING DEPONENT:
Wayne Dolcefino
3701 Kirby, Suite 560
Houston, Texas 77098
to appear before a certified court reporter for the State of Texas at the law offices of Greenberg
Traurig LLP, 1000 Louisiana Street, Suite 1700, Houston, Texas 77002, or such other place as
may be mutually agreed, on June 26, 2015 at 10:00 a.m., to attend and give testimony and
produce documents in the above case at a deposition taken on behalf of Defendant Jinsun LLC,
and to remain in attendance from day to day until lawfully discharged. The deposition may also
be videotaped.
Contempt: Failure by any person without adequate excuse to obey a subpoena served upon
that person may be deemed a contempt of the court from which the subpoena is issued or a
FIRST AMENDED DEPOSITION SUBPOENA DUCES TECUM – PAGE 1
DAL 79492903v2
district court in the county in which the subpoena is served, and may be punishable by fine
or confinement, or both. Tex. R. Civ. P. 176.8(a).
WITNESS MY HAND this the 16th day of June, 2015.
Respectfully submitted,
/s/ Jason M. Hopkins
Mary-Olga Lovett
Texas Bar No. 00789289
lovettm@gtlaw.com
Jason S. Lewis
Texas Bar No. 24007551
lewisjs@gtlaw.com
Jason M. Hopkins
Texas Bar No. 24059969
hopkinsjm@gtlaw.com
GREENBERG TRAURIG, LLP
2200 Ross Avenue, Suite 5200
Dallas, Texas 75201
(214) 665-3660 - office
(214) 665-5960 - facsimile
ATTORNEYS FOR KEVAN CASEY,
JINSUN, LLC, AND FAR EAST
STRATEGIES, LLC
FIRST AMENDED DEPOSITION SUBPOENA DUCES TECUM – PAGE 2
DAL 79492903v2
CAUSE NO. 2012-54501
KHALEO ALATTAR, § lN THE DISTRICT COURT
§
§
§
v. §
ss 113" JUOICIAL OISTRICT
JfNSUN, LLC, §
FAR EAST STRATEG 1•:s, LLC, and §
KEVAN CASEY, ct al., §
§
J)efcnd•nts. § HARRfS COUNTY, TEXAS
PROO~· OF S•:RVlCE
Came to hand on .Junt /6tb 1 ;} 0/~
Executed at:_.31.Q.Lkitby-Cryi_ie3\'~Q); /.lr:~1Jet~/'770'J'
Witl1inthe countyof HMtisat Z·.18 fl.a. , on 06//£/Jnf.J
by deli"ering 10 lbe \\ti.thin named: I
Wayne l)olcefino
In person a true copy hereof and tendering S 11 .00 in cash.
By:``
5,;CH'lf'7l3Q':lft/?o~IZ
Server IP #
Subscribed and S\Vorn to by( .. ~ tp.i.2,e\f. Before me, the undetsig.ned authority, on this
the 111\'\ day ofJune, 2015.
YAOUEt l'* G CUESTA.
Plrf Commisuon Expirt;S
January t7, 2018
PR()()f OF SF.RVJC[ ()f SlJBPOF.NA - PA<;E I
DAL 79492903Y2
AFFIDAVIT OF WAYNE DOLCEFINO
STATE OF TEXAS §
§
COUNTY OF HARRIS §
On this day, Wayne Dolcefino appeared before me, the undersigned notary public, and
after I administered an oath to him, upon his oath, he said:
1. My name is Wayne Dolcefino. I am over the age of twenty-one (21) years, of sound mind,
and competent to make this affidavit. The facts stated within this affidavit are within my
personal knowledge and are true and correct.
2. For nearly 27 years, I headed up the 13 Undercover Unit at KTRK TV. As an investigative
journalist, I specialized in reporting on public corruption, wasteful government spending,
and fraud. Since leaving KTRK TV, I have continued to devote substantial amounts of my
time as a consultant to investigating and preparing news and information to be distributed
through written and broadcast news media.
3. Recently, I started developing a story on a group of individuals who have participated in a
number of "pump and dump" schemes, including the one that targeted LuxeYard. All
information I have regarding LuxeYard and the related "pump and dumps" was obtained by
me to put together this story.
4. I have contacted some of the individuals who participated in the LuxeYard "pump and
dump" to offer them an opportunity to comment. I believe that the deposition notice and
subpoena served on me earlier this week is an effort to intimidate me into abandoning this
story.
FURTHER AFFIANT SAITH NOT.
SUBSCRIBED AND SWORN TO BEFORE ME, on this the I q day of
CAUSE NO. 2012-54501
KHALED ALATTAR, § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. § HARRIS COUNTY, TEXAS
§
KEVAN CASEY, ET AL., §
§
Defendants. § 113th JUDICIAL DISTRICT
PROPOSED ORDER ON PLAINTIFF’S MOTION TO QUASH DEPOSITION
OF WAYNE DOLCEFINO AND MOTION FOR PROTECTIVE ORDER
ON THIS DAY came to be heard Plaintiff’s Motion to Quash Deposition of
Wayne Dolcefino and Motion for Protective Order. After considering Plaintiff’s
Motions, any responses on file, and the arguments of counsel, the Court is of the opinion
that Plaintiff’s Motions are meritorious and are in all things GRANTED. It is therefore,
ORDERED, ADJUDGED, AND DECREED that Plaintiff’s Motion to Quash the
Deposition of Wayne Dolcefino and Motion for Protective Order is GRANTED. The
Amended Notice of Deposition and Subpoena Duces Tecum is quashed. Additionally, a
protective order is hereby issued prohibiting further attempts to take the deposition of
Wayne Dolcefino or otherwise obtain discovery from him in this proceeding.
SIGNED this day of , 2015.
JUDGE PRESIDING
TAB D
6/24/2015 6:35:03 PM
Chris Daniel - District Clerk Harris County
Envelope No. 5814777
By: DELTON ARNIC
Filed: 6/24/2015 6:35:03 PM
CAUSE NO. 2012-54501
KHALED ALATTAR, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. §
§ 113th JUDICIAL DISTRICT
JINSUN, LLC, §
FAR EAST STRATEGIES, LLC, and §
KEVAN CASEY, et al., §
§
Defendants. § HARRIS COUNTY, TEXAS
JINSUN LLC’S RESPONSE TO MOTION
TO QUASH DOLCEFINO DEPOSITION
Defendant Jinsun LLC (“Jinsun”) files this Response to Plaintiff’s Motion to Quash
Deposition of Wayne Dolcefino and Motion for Protective Order and states:
Introduction
Wayne Dolcefino, who runs a Houston-area consulting business, has repeatedly contacted
defendants in this case and claimed that he has substantial information relating to “pump and
dumps” of both Luxeyard and other companies into which Alattar has sought (and the Court has
allowed) discovery. Jinsun properly subpoenaed Dolcefino’s deposition so that it could obtain
that information, but Plaintiff moved to quash the deposition on the basis that Dolcefino is
exempt from discovery under the Texas reporter shield law. That argument is baseless because
Dolcefino—who describes himself as a consultant hired by a law firm—is not a reporter to whom
the shield law applies.
Argument and Authorities
Dolcefino is not a journalist entitled to protections under the Texas reporter’s shield law.
That law, enacted in 2009, has as its stated purpose the preservation of “a free and active press.”
JINSUN LLC’S RESPONSE TO MOTION TO QUASH DOLCEFINO DEPOSITION – PAGE 1
DAL 79506313v1
Tex. Civ. Prac. & Rem. Code § 22.022. The problem for Dolcefino is that he is not a member of
the press.
In the affidavit Dolcefino provided to Plaintiff’s counsel, Dolcefino testifies that he was
formerly employed as a reporter for KRTK TV. 1 But no provision of law creates any privilege
for a former reporter. And a cursory examination of Dolcefino’s own website demonstrates that
he is no longer a newsman. On his website, Dolcefino states that he is president of an outfit
called Dolcefino Consulting, which provides “credibility when you need it most.”2 Dolcefino
advertises his services in “litigation support,” as a testifying expert witness, 3 a political
consultant, 4 and a private investigator who “knows how to dig ... and what to dig for.”5
Dolcefino summarizes the list of “services” he provides:
This firm consults on crisis management, ethics reviews, informational marketing
and media relations and provides production, investigative services and expert
testimony in litigation. Dolcefino has significant experience in courtroom
litigation relating to first amendment issues. 6
Nowhere in the list of “Services” he provides is there a single mention of journalism.
Dolcefino’s description of his work confirms that he deals in advocacy, not reporting. He
writes on his website that “[t]he opposition must understand the power of your client’s argument
and what that will look like if your case goes to a jury. They must also understand the power of
that suffering if their anguish ever appears on the internet, not for one night on local news, but for
years to come.” 7 Apparently, Dolcefino intends to help “the opposition” [i.e., Jinsun] understand
1
Plaintiff’s Motion to Quash at Exhibit “B,” ¶ 2.
2
www.dolcefinoconsulting.com
3
Id.
4
www.dolcefinoconsulting.com/politicalconsulting
5
www.dolcefinoconsulting.com/investigations
6
www.dolcefinoconsulting.com/about
7
www.dolcefinoconsulting.com/litigationsupport
JINSUN LLC’S RESPONSE TO MOTION TO QUASH DOLCEFINO DEPOSITION – PAGE 2
DAL 79506313v1
Alattar’s “suffering” by posting it on the internet. That is patently not journalism, much less
journalism protected from the discovery process.
The fact that Dolcefino is not acting as a journalist is confirmed by statements he has
made to parties to this case. Specifically, in January of 2015, Dolcefino called Kevan Casey and
told Mr. Casey that he had been hired by an unnamed law firm to write a “pump and dump piece”
on Mr. Casey. 8 Importantly, the “pump and dump piece” Dolcefino intended to write—but
apparently hasn’t gotten around to writing yet—would involve not only on Luxeyard, but also the
other companies Alattar has repeatedly presented to the Court as “other pump and dumps.” 9
Separately, on June 5, 2015, Dolcefino sent a letter to Mr. Camarillo’s lawyer, a true and
correct copy of which is attached as Exhibit “B.” In that letter, Dolcefino describes his firm as an
“investigative communications firm,” says that he is “intrigued” with Mr. Camarillo’s service in
the United States Marine Corps, and threatens to contact “the Pentagon media office in
Washington in the coming days to test their awareness of these civil issues.” 10 He suggests that
all Mr. Camarillo need do to avoid this obvious harassment is to set up an interview, and to
assure “the plaintiffs”—a reference to Amir Mireskandari—that Mr. Camarillo is “OK with
public discussion of this issue.” 11 These efforts at harassment are wholly improper, especially
when they are undertaken by a consultant employed by a lawyer, presumably a lawyer
representing a party to this case.
Notably, actions of third parties acting under an attorney’s direction, such as
investigators, can be imputed to the law firm in the context of attorney ethics. See ABA
8
Casey Affidavit, Exhibit “A,” at ¶ 2.
9
Id. at ¶ 3.
10
Exhibit “B” at 1.
11
Id. at 1-2.
JINSUN LLC’S RESPONSE TO MOTION TO QUASH DOLCEFINO DEPOSITION – PAGE 3
DAL 79506313v1
Committee on Ethics and Professional Responsibility, Formal Op. 95-396 (investigator acting as
lawyer’s alter ego; lawyer ethically responsible for investigator’s conduct). Certainly, if
Dolcefino is directly contacting parties to this case as an undisclosed representative of a law firm
involved in this case, then he and the firm he is allegedly working for are violating Texas
Disciplinary Rule of Professional Conduct 4.02, which provides that “a lawyer shall not
communicate or cause or encourage another to communicate about the subject of the
representation with a person, organization or entity of government the lawyer knows to be
represented by another lawyer regarding that subject, unless the lawyer has the consent of the
other lawyer or is authorized by law to do so.”
Jinsun is entitled to take the deposition of any nonparty witness who has relevant
information, and Dolcefino unquestionably falls within that category. The information he claims
to possess relating to Luxeyard, as well as Alattar’s “other pump and dumps” into which the
Court has allowed discovery, is patently discoverable, especially if he obtained that information
from the parties to this case or their counsel. His admitted communications with Amir
Mireskandari are discoverable, as are his communications with lawyers and parties in this case.
His intent in sending the extortion letter to Mr. Camarillo’s counsel is also discoverable, as is the
question of whether he was instructed to send that letter by his employer. In short, Dolcefino has
discoverable information, and Jinsun is entitled to take his deposition to get it.
Prayer
WHEREFORE, Jinsun respectfully requests that the Court deny Plaintiff’s motion, order
the deposition of Dolcefino, and grant Jinsun such other and further relief to which it may be
entitled.
JINSUN LLC’S RESPONSE TO MOTION TO QUASH DOLCEFINO DEPOSITION – PAGE 4
DAL 79506313v1
Respectfully submitted,
/s/ Jason M. Hopkins
Mary-Olga Lovett
Texas Bar No. 00789289
lovettm@gtlaw.com
Jason S. Lewis
Texas Bar No. 24007551
lewisjs@gtlaw.com
Jason M. Hopkins
Texas Bar No. 24059969
hopkinsjm@gtlaw.com
GREENBERG TRAURIG, LLP
2200 Ross Avenue, Suite 5200
Dallas, Texas 75201
(214) 665-3660 - office
(214) 665-5960 - facsimile
ATTORNEYS FOR KEVAN CASEY, JINSUN,
LLC, AND FAR EAST STRATEGIES, LLC
CERTIFICATE OF SERVICE
I certify that I served the foregoing response on all counsel of record via email on June
24, 2015.
/s/ Jason M. Hopkins
Jason M. Hopkins
JINSUN LLC’S RESPONSE TO MOTION TO QUASH DOLCEFINO DEPOSITION – PAGE 5
DAL 79506313v1
DOLCEFINO CONSULTING
June 5, 2015
Mark S. Hellinger
The Hellinger Law Firm
12 Greenway Plaza, Suite 1100
Houston, Texas 77046
Mr. Hollinger,
I have already left messages with your office, so this will serve as an additional attempt to establish
communications with your firm and your client Jonathan Camarillo.
Dolcefino Consulting is an investigative communications firm in Houston. For several months I have been
researching financial transactions known or suspected in the law enforcement community as “pump and dump”
schemes. Of course, that definition is obviously in the eye of the beholder.
As part of my review I have been examining public records involving ongoing litigation surrounding the rise
and fall of LuxeYard, and in my research your client’s name has surfaced. I am especially intrigued that Mr.
Camarillo appears to have been implicated in litigation in these significant financial transactions, while being
employed as a recruiter for the U.S. Marine Corp.
I understand Mr. Camarillo is out of the country in Japan, which may have shielded him from discovery, but of
course not media scrutiny. I was planning on contacting the Pentagon media office in Washington in the coming
days to test their awareness of these civil issues and whether this assignment was related to litigation, but
thought you might be helpful in convincing your client to discuss this case, as well as his knowledge of Kevan
Casey, Frederick Hutttner, Scott Gann and others. I am most intrigued about his decision to remain a recruiter
despite his obvious knowledge of complicated financial transactions.
I have also reached out to Amir Mireskandari, who has complained vociferously in court documents about the
Luxeyard circumstances. Mr. Mireskandari has advised he cannot discuss Mr. Camarillo on camera with any
media partners while the litigation is proceeding. I am providing him with a copy of this correspondence.
3701 Kirby, Suite 560
Houston, Texas 77098
713-360-6911
Mobile: 713-389-0810 wayne@dolcefinoconsulting.com
www.dolcefino.com
DOLCEFINO CONSULTING
I have been routinely providing updates to Scott Zamost of CNN Investigations and Ira Rosen, a senior
investigative producer of 60 Minutes regarding a number of companies that appear to have had wild fluctuations
in stock prices.
Would appreciate a phone call to set up an interview, and perhaps even your assistance in assuring the plaintiffs
that you are OK with public discussion of this issue, since so many Americans invested in these companies.
Wayne Dolcefino
Dolcefino
Respectfully,
Wayne Dolcefino
Dolcefino Consulting
3701 Kirby, Suite 560
Houston, Texas 77098
713-360-6911
Mobile: 713-389-0810 wayne@dolcefinoconsulting.com
www.dolcefino.com
TAB E
6/27/2015 4:37:11 PM
Chris Daniel - District Clerk Harris County
Envelope No. 5851690
By: SHELLEY BOONE
Filed: 6/29/2015 12:00:00 AM
CAUSE NO. 2012-54501
KHALED ALATTAR, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. §
§ 113th JUDICIAL DISTRICT
JINSUN, LLC, §
FAR EAST STRATEGIES, LLC, and §
KEVAN CASEY, et al., §
§
Defendants. § HARRIS COUNTY, TEXAS
JINSUN LLC’S SUPPLEMENT TO ITS RESPONSE TO MOTION
TO QUASH DOLCEFINO DEPOSITION
Defendant Jinsun LLC (“Jinsun”) files this Supplement to its Response to Plaintiff’s
Motion to Quash Deposition of Wayne Dolcefino and Motion for Protective Order and states:
1. On May 16, 2013, KPRC-TV aired an interview with Dolcefino. That interview is
available at http://www.click2houston.com/news/former-ktrk-reporter-wayne-dolcefino-talks-to-
local-2/20179506.
2. In the interview, Dolcefino stated: “I run a communications company now, I
am not an investigative reporter.” Id. (emphasis added).
3. Dolcefino’s admission is conclusive proof that he is not a reporter entitled to the
protections of the Texas reporter’s shield law. Alattar’s motion to quash Dolcefino’s deposition
on that basis must be denied.
Prayer
WHEREFORE, Jinsun respectfully requests that the Court deny Plaintiff’s motion, order
the deposition of Dolcefino, and grant Jinsun such other and further relief to which it may be
entitled.
JINSUN LLC’S SUPPLEMENT TO ITS RESPONSE TO MOTION TO QUASH DOLCEFINO DEPOSITION – PAGE 1
DAL 79512885v1
Respectfully submitted,
/s/ Jason M. Hopkins
Mary-Olga Lovett
Texas Bar No. 00789289
lovettm@gtlaw.com
Jason S. Lewis
Texas Bar No. 24007551
lewisjs@gtlaw.com
Jason M. Hopkins
Texas Bar No. 24059969
hopkinsjm@gtlaw.com
GREENBERG TRAURIG, LLP
2200 Ross Avenue, Suite 5200
Dallas, Texas 75201
(214) 665-3660 - office
(214) 665-5960 - facsimile
ATTORNEYS FOR KEVAN CASEY, JINSUN,
LLC, AND FAR EAST STRATEGIES, LLC
CERTIFICATE OF SERVICE
I certify that I served the foregoing supplement on all counsel of record via the Court’s
e-filing system on June 27, 2015.
/s/ Jason M. Hopkins
Jason M. Hopkins
JINSUN LLC’S SUPPLEMENT TO ITS RESPONSE TO MOTION TO QUASH DOLCEFINO DEPOSITION – PAGE 2
DAL 79512885v1
TAB F
From: Westin, Jennifer (Secy-Dal-LT)
To: "lmoseley@sessions-law.biz"; "jrh@hendersonrandy.com"; "danny@sheenalawfirm.com"; "jneerman@jw.com";
"jeff@karchmerlaw.com"; "mhellinger@hellingerlawfirm.com"; "steven@engelhardtlaw.com";
"alaporte@hanszenlaporte.com"; "agollwitzer@michaelbest.com"; "brian@fkblawfirm.com";
"k.t.p.kennedy@gmail.com"
Cc: Jason Hopkins
Subject: Cause No. 2012-54501; Alattar
Date: Tuesday, June 16, 2015 3:49:45 PM
Attachments: 2015.06.16 [Alattar] First Amended Depo Subpoena - Dolcefino.pdf
See attached.
Jennifer Westin
Secretary
Greenberg Traurig, LLP | 2200 Ross Avenue, Suite 5200 | Dallas, TX 75201
Tel 214.665.3656 | Fax 214.665.3601
westinj@gtlaw.com | www.gtlaw.com
CAUSE NO. 2012-54501
KHALED ALATTAR, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. §
§ 113th JUDICIAL DISTRICT
JINSUN, LLC, §
FAR EAST STRATEGIES, LLC, and §
KEVAN CASEY, et al., §
§
Defendants. § HARRIS COUNTY, TEXAS
______________________________________________________________________________
JINSUN LLC’S FIRST AMENDED NOTICE OF DEPOSITION
SUBPOENA DUCES TECUM OF WAYNE DOLCEFINO
______________________________________________________________________________
TO: Wayne Dolcefino, 3701 Kirby, Suite 560, Houston, Texas 77098.
Pursuant to Rule 205.2 of the Texas Rules of Civil Procedure, please take notice that
Defendant Jinsun LLC (“Jinsun”) will take the oral deposition of Wayne Dolcefino before a
certified court reporter on June 26, 2015, beginning at 10:00 a.m., and continuing thereafter until
complete. The deposition will take place at the law offices of Greenberg Traurig LLP, 1000
Louisiana Street, Suite 1700, Houston, Texas 77002, or such other place as may be mutually
agreed.
All parties are invited to attend and examine the witness as prescribed by the Texas Rules
of Civil Procedure. The deposition will be recorded stenographically and may be videotaped.
Any party wishing to have this deposition recorded by another method may serve written notice
designating the desired method on all other parties and must make arrangements for the
additional method at its own expense.
JINSUN LLC’S FIRST AMENDED NOTICE OF DEPOSITION SUBPOENA DUCES TECUM OF
WAYNE DOLCEFINO – PAGE 1
DAL 79492903v2
Pursuant to Rule 199.2(b)(5) of the Texas Rules of Civil Procedure, you are directed to
produce, at or before the time of the deposition, the documents described in Exhibit “A” hereto.
Dated: June 16, 2015.
Respectfully submitted,
/s/ Jason M. Hopkins
Mary-Olga Lovett
Texas Bar No. 00789289
lovettm@gtlaw.com
Jason S. Lewis
Texas Bar No. 24007551
lewisjs@gtlaw.com
Jason M. Hopkins
Texas Bar No. 24059969
hopkinsjm@gtlaw.com
GREENBERG TRAURIG, LLP
2200 Ross Avenue, Suite 5200
Dallas, Texas 75201
(214) 665-3660 - office
(214) 665-5960 - facsimile
ATTORNEYS FOR KEVAN CASEY,
JINSUN, LLC, AND FAR EAST
STRATEGIES, LLC
CERTIFICATE OF SERVICE
I certify that I served the foregoing notice on all counsel of record via email on June 16,
2015.
/s/ Jason M. Hopkins
Jason M. Hopkins
JINSUN LLC’S FIRST AMENDED NOTICE OF DEPOSITION SUBPOENA DUCES TECUM OF
WAYNE DOLCEFINO – PAGE 2
DAL 79492903v2
Exhibit “A”
INSTRUCTIONS
1. Singular and masculine forms of any nouns or pronouns shall embrace and be
applied as the plural, feminine, or neuter, as the context requires, and vice versa.
2. The past tense of any verb shall embrace and be applied as the present tense, as
the context requires or as applicable, and vice versa.
3. The plural includes the singular and vice versa.
4. Each request is to be construed and answered or responded to separately and
independently, and is not to be referenced to any other request for purposes of limitation.
5. These requests are continuing in nature and require supplementation as soon as
practical if you or your attorney obtain information which reveals that your answers were
incorrect or incomplete when made or that your answers are no longer correct or complete.
6. Documents produced pursuant to these requests should be tendered either in the
precise form or manner as they are kept in the usual course of business, or organized and labeled
to correspond with the categories that follow in this request.
7. If any document has been destroyed, describe in detail the circumstances of and
reasons for such destruction and produce all documents that relate to either the circumstances of
or reasons for such destruction.
8. You are to produce all documents, as defined below, that are in your actual or
constructive possession, custody, or control or in the possession, custody, or control of your
respective counsel, agents, or representatives, or which can be obtained through reasonably
diligent efforts. Without limiting the term “control,” a document is deemed to be within one’s
control if you have ownership, possession or custody of the document, or the rights to secure the
document or copy thereof from any person or public or private entity having physical possession
thereof. The terms “possession, custody, or control” are to be construed in the broadest manner
consistent with Texas law.
9. All duplicates or copies of documents are to be provided to the extent they have
handwriting, additions, or deletions of any kind different from the original document being
produced, and vice versa.
10. The requests and interrogatories herein seek documents and information from
January 1, 2012 to present, unless otherwise stated.
DEFINITIONS
The following terms have the following meanings, unless other required by context:
JINSUN LLC’S FIRST AMENDED NOTICE OF DEPOSITION SUBPOENA DUCES TECUM OF
WAYNE DOLCEFINO – PAGE 3
DAL 79492903v2
1. The terms “and” as well as “or” shall be construed either disjunctively or
conjunctively to bring within the scope of these Requests any information which might otherwise
be construed to be outside their scope.
2. “You” or “your” or “Dolcefino” means Wayne Dolcefino, and includes any
person or entity (including Dolcefino Consulting) acting for or on behalf of Dolcefino, including,
but not limited to all present and former directors, officers, agents, managers, servants,
employees (including direct, borrowed, special or statutory employees), and/or representatives,
affiliates, successors, predecessors, subsidiaries, parents, divisions, partners, attorneys, or other
persons or entities acting or purporting to act on his behalf, whether individually or collectively.
3. “Luxeyard” means Luxeyard Inc., LY Retail LLC, and any person or entity acting
on their behalf, including, but not limited to all present and former directors, officers, agents,
managers, servants, employees (including direct, borrowed, special or statutory employees),
and/or representatives, affiliates, successors, predecessors, subsidiaries, parents, divisions,
partners, attorneys, or other persons or entities acting or purporting to act on Luxeyard’s behalf,
whether individually or collectively.
4. The term “Document” is used in the broadest sense and shall mean all things
described in Rule 192.3(b) of the TEXAS RULES OF CIVIL PROCEDURE and includes, but is not
limited to, any and all papers, files, reports, correspondence, summaries, stenographic or
handwritten notes, announcements, drafts, and preliminary copies of documents, transcripts,
minutes, studies, memoranda, notes or memoranda of conversations, telephone messages,
transmittal slips, printed literature, brochures, catalogues, advertising of all types, test reports,
articles, publications, books, pamphlets, pictures, diaries, appointment books, calendars, minute
books, by-laws, stock certificates, statistical compilations, telegrams, telexes, cables, teletypes,
mailgrams, facsimiles, graphs, charts, surveys, analyses, compilations, movie films, audiotapes,
videotapes, microfilms, slides or still films, statistics, data processing cards, computer records, e-
mails, computerized instant messages, .txt messages, SMS files, MMS files, computer tapes,
printouts, books of account, ledgers, journals, spreadsheets, control sheets, working papers,
audits, or any writing or documentation or data of any kind or description, whether handwritten,
typewritten, printed, copied, microfilmed, printed on computer cards or tapes or data in existence
or available or otherwise retrievable, in your custody, possession, or control of every type and
description, regardless of form or nature, pertaining in whole or in part, directly or indirectly, to
the matters referred to in the foregoing Requests. Please note that such definition includes
electronic or videotape recordings, electronic data and data compilations. As it relates to
information that is stored as electronic or magnetic data on a computer, or any other information
storage devise, the terms “document,” “documents,” or “documentation” includes the raw
electronic data and software applications necessary to translate the information into useable form
as well as any tangible copies or printouts of such information.
5. The term “Communications” shall mean any oral or written utterance, transfer or
exchange of information, notation or statement of any nature whatsoever, by or to whomever
made, including, but not limited to correspondence, conversations, dialogues, discussions,
interviews, consultations, telephone calls, meetings, telexes, cables, agreements, electronic mail,
JINSUN LLC’S FIRST AMENDED NOTICE OF DEPOSITION SUBPOENA DUCES TECUM OF
WAYNE DOLCEFINO – PAGE 4
DAL 79492903v2
text messages transmitted by cellular telephone, instant messaging, and/or any other
understandings.
REQUESTS FOR PRODUCTION
Please produce any document that contains, concerns, embodies, refers to, relates to,
analyzes, summarizes, evaluates, discusses, reports, explains, supports, corroborates,
substantiates, confirms, disputes, refutes, contradicts, forms a basis of or otherwise contains
information about the following:
1. Communications with any party (or former party) to this lawsuit;
2. Communications with counsel for any party (or former party) to this lawsuit;
3. Communications with Amir Mireskandari, Alidad Mireskandari, or Yuval Ran;
4. Communications with any other person, entity, or government agency relating to
Luxeyard, this lawsuit, or any defendant in this lawsuit;
5. Your retention or engagement by any party (or former party) to this lawsuit; counsel for
any party (or former party) to this lawsuit; Amir Mireskandari, Alidad Mireskandari, or
Yuval Ran;
6. Payments made, or due to be made, to you by any party (or former party) to this lawsuit,
counsel for any party (or former party) to this lawsuit, Amir Mireskandari, Alidad
Mireskandari, or Yuval Ran;
7. Your review of documents involving litigation relating to Luxeyard;
8. Your research into financial transactions known or suspected to be “pump and dump”
schemes;
9. Documents or other work product generated by you that relate to Luxeyard, this lawsuit,
or any defendant in this lawsuit; and
10. Telephone records reflecting all calls you made relating to Luxeyard, this lawsuit, or any
defendant in this lawsuit.
JINSUN LLC’S FIRST AMENDED NOTICE OF DEPOSITION SUBPOENA DUCES TECUM OF
WAYNE DOLCEFINO – PAGE 5
DAL 79492903v2
THE STATE OF TEXAS
CAUSE NO. 2012-54501
KHALED ALATTAR, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. §
§ 113th JUDICIAL DISTRICT
JINSUN, LLC, §
FAR EAST STRATEGIES, LLC, and §
KEVAN CASEY, et al., §
§
Defendants. § HARRIS COUNTY, TEXAS
______________________________________________________________________________
FIRST AMENDED DEPOSITION SUBPOENA DUCES TECUM
______________________________________________________________________________
STATE OF TEXAS
COUNTY OF HARRIS
TO ANY SHERIFF, CONSTABLE, OR OFFICER FOR THE STATE OF TEXAS OR ANY
OTHER AUTHORIZED PERSON TO SERVE AND EXECUTE SUBPEONAS AS
PROVIDED IN THE TEXAS RULES OF CIVIL PROCEDURE 176.
Greetings:
YOU ARE HEREBY COMMANDED TO SUBPOENA AND SUMMON THE
FOLLOWING DEPONENT:
Wayne Dolcefino
3701 Kirby, Suite 560
Houston, Texas 77098
to appear before a certified court reporter for the State of Texas at the law offices of Greenberg
Traurig LLP, 1000 Louisiana Street, Suite 1700, Houston, Texas 77002, or such other place as
may be mutually agreed, on June 26, 2015 at 10:00 a.m., to attend and give testimony and
produce documents in the above case at a deposition taken on behalf of Defendant Jinsun LLC,
and to remain in attendance from day to day until lawfully discharged. The deposition may also
be videotaped.
Contempt: Failure by any person without adequate excuse to obey a subpoena served upon
that person may be deemed a contempt of the court from which the subpoena is issued or a
FIRST AMENDED DEPOSITION SUBPOENA DUCES TECUM – PAGE 1
DAL 79492903v2
district court in the county in which the subpoena is served, and may be punishable by fine
or confinement, or both. Tex. R. Civ. P. 176.8(a).
WITNESS MY HAND this the 16th day of June, 2015.
Respectfully submitted,
/s/ Jason M. Hopkins
Mary-Olga Lovett
Texas Bar No. 00789289
lovettm@gtlaw.com
Jason S. Lewis
Texas Bar No. 24007551
lewisjs@gtlaw.com
Jason M. Hopkins
Texas Bar No. 24059969
hopkinsjm@gtlaw.com
GREENBERG TRAURIG, LLP
2200 Ross Avenue, Suite 5200
Dallas, Texas 75201
(214) 665-3660 - office
(214) 665-5960 - facsimile
ATTORNEYS FOR KEVAN CASEY,
JINSUN, LLC, AND FAR EAST
STRATEGIES, LLC
FIRST AMENDED DEPOSITION SUBPOENA DUCES TECUM – PAGE 2
DAL 79492903v2
CAUSE NO. 2012-54501
KHALED ALATTAR, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. §
§ 113th JUDICIAL DISTRICT
JINSUN, LLC, §
FAR EAST STRATEGIES, LLC, and §
KEVAN CASEY, et al., §
§
Defendants. § HARRIS COUNTY, TEXAS
______________________________________________________________________________
PROOF OF SERVICE
______________________________________________________________________________
Came to hand on _________________________________________.
Executed at:_____________________________________________.
Within the county of Dallas at , on .
by delivering to the within named:
Wayne Dolcefino
In person a true copy hereof and tendering $11.00 in cash.
By:
Server ID #
Subscribed and sworn to by , Before me, the undersigned authority, on this
the day of June, 2015.
Notary Public in and For the State of Texas
PROOF OF SERVICE OF SUBPOENA – PAGE 1
DAL 79492903v2
TAB G
Filed 15 July 01 P5:07
Chris Daniel - District Clerk
Harris Gounty
Pgs-3
CAUSE NO. 201254501
QUDEX
JNPAX
REPAX
ALATTAR, KHALED, $ IN THE DISTRICT COURT OF
MODIX
$
Plaintffis), $
$
VS $ HARRIS COUNTY, TEXAS
s
$
CASEY, KEVAN, $ 1 13th JUDICIAL DISTRICT
Defendant(s) $
ORDER
Pursuant to notice dated June 23,2015, a conference was held by telephone on June 29,
2015 concerning a dispute among the pzuties concerning Plaintiff's Motion to Quash Deposition
of Wayne Dolcefino and Motion for Protective Order, filed June 19,2015. The Court considered
the said Motion, the response thereto filed by Jinsun, LLP on June24,2015 and its supplement
filed on lune29,2015, as well as the argument of counsel and relevant authority. Inasmuch as
no party asserts that Mr. Dolcefino has personal knowledge of any facts relevant to the disputed
issues in this case; that it appeals whatever relevant information Dolcefino may possess is
available to the parties fi'om other sources through discovery; and, that there is no cornpelling
need l'or Dolcefino's research or conclusions, the Motion to Quaslr is granted.
On June 8, 2015, a hearing was held on Plaintiff's Amended Motion for Leave to Add
Donald Cameron, Acadia Life Limited and Acadia Life International Limited as Defendants,
filed June 3,2015. Several counsel voiced opposition to the said Motion at the hearing, yet no
o written responses to the Motion were filed before the hearing, and none have been fìled since,
o
Òo
(É though time was allowed for same. The said Motion for leave to add Donald Cameron, Acadia
À
Life Limited and Acadia Life International Limited as parties is granted. Plaintiff is perrnitted to
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file an amended pleading to add such parties afterthe June22,2015 pleading cut-off. plovided
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any such amended pleading shall not amend any claims made against existing Defendants.
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The Defendants' Motion to Rcalign thc Parties is grantcd. Hcnceforth, the Plaintiffs in
the case shall be Khaled Alattar, Babak Daghighi and Luxeyard, Inc.
Plaintiff's Motion to Compcl thc Dcposition of Jonathan Frjedlander, previously set for
hearing on June 8, 2015, is rescheduled for hearing on July 24,2015 at 1:30 PM.
In light of the June 8, 2015 Order withdrawing the jury assignment for the case, the
Coutt's Pre-Trial Scheduling Order signed February 5,2015 is amended only in the following
respects:
The pre-trial hearing scheduled for October 15,2Al5 is cancelled.
The requirement that the parties exchange certain pre-trial materials is amended to read
as follows:
The parties are directed to exchange the following on ol before September 30,
20r5:
¡ Each party's esûmate of the time needed for presentation of its case, in days
or portions thereof;
o Each party's proposed findings of fact and conclusions of law;
r Trial Exhibit lists;
o Copies of demonstrative exhibits;
¡ Trial witness lists, which shall identify which witnesses, if any, will be
presented via deposition;
¡ Excerpt designations fol any testimony to be offered by deposition at trial;
and,
o Proposecl stipulations of facts.
Each party may file with the Court a pre-trial brief on or before September 30,
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2015; all other materials may be brought to trial. Pre-trial briefs shall acldress issues of
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law only and shall not exceed 20 pages in length. Any rebuttal bdef shall not exceed ten
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pages.
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Except as modified herein, the Pre-Tlial Scheduling Ordcr signed February 5, 2015
remains in effect.
June 30,2015
Hon. LANDRUM
Judge, 113th District Court
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I, Chris Daniel, District Clerk of Harris
County, Texas certi$i that this is a true and
correct copy ofthe original record filed and or
recorded in my offltce, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this July 6.2015
Certifìed Document Number: 6605731 I Total Pages: 3
t,Lør¿
Cliris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS
In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com