FOURTH CAUSE OF ACTION ~ (Violations of GBL 170 -190)
104. Plaintiffs repeat and reallege the allegations of Paragraphs 1 through 85 as if set forth fully herein.
105. GBL 186 provides in relevant part, "Any employment agency which collects, receives or retains a fee or other placement contrary to or in excess of the provisions of this article shall return the fee" no matter how they characterize themselves.
106. Because Defendants more than incidentally procure employment for Plaintiffs, Defendants are employment agencies within the meaning of GBL 171 (2) and do not fall within the exclusionary provision of GBL 171 (8).
107. As such, Defendants must be licensed pursuant to GBL 172, may not charge over 10% commissions pursuant to GBL 185, may conduct only employment agency business on the premises pursuant to GBL 187, and may not impose charges for the incidental costs associated with advertising the models' portfolios.
108. Because Defendants are not licensed, charge over 10% commissions, conduct other businesses on their premises, and charge Plaintiffs for the costs associated with advertising Plaintiffs' portfolios, Defendants are in violation of the aforementioned sections.
109. Pursuant to GBL 186, Defendants are required to return all of the wrongfully obtained fees from Plaintiffs.
FIFTH CAUSE OF ACTION (Breach of Fiduciary Duty)
110. Plaintiffs repeat and reallege the allegations of Paragraphs 1 through 85 as if set forth fully herein.
111. As specified in the agreements between the parties, and as matter of law, Defendants' relationship with Plaintiffs was that of a fiduciary. Plaintiffs reposed trust and confidence in Defendants that they would discharge their various obligations to Plaintiffs in an honest, diligent, and loyal manner.in exchange for their various services, Defendants have received millions of dollars in excessive commission fees from Plaintiffs.
112. As fiduciaries, Defendants had a duty to deal candidly and in good faith with Plaintiffs. Above all else, Defendants' fiduciary duties required them to disclose to Plaintiffs the fact that they were operating as employment agencies without a license in contravention of New York State Law.
113.By failing to disclose that they were in fact acting as employment agencies, and by charging excessive fees for their principal service - procuring employment - Defendants breached their fiduciary duties owed to Plaintiffs.
114.in addition, Defendants failed to disclose to certain Plaintiffs their conflict of interest in their dual representation of Plaintiffs and Plaintiffs' employers such as photographers, casting agents, advertising agencies, magazines and retailers.
115. As a direct and proximate result of Defendants' breaches of duty as alleged above, Plaintiffs have suffered and will continue to suffer substantial damages, including but not limited to the excessive compensation wrongfully obtained.
116. Defendants have acted willfully, maliciously, and with intentional disregard for Plaintiffs' rights under the agreements. Accordingly, they are liable to Plaintiffs for exemplary and punitive damages in an amount to be determined at trial.
SIXTH CAUSE OF ACTION (Unjust Enrichment)
117. Plaintiffs repeat and reallege the allegations of Paragraphs 1 through 85 as if set forth fully herein.
118. As discussed above, Defendants are employment agencies as defined by GBL 171. Thus, Defendants must, among other things, be licensed by the Department of Consumer Affairs, limit their commissions to 10% or less, and are prohibited from charging for the incidental costs associated with advertising the models' portfolios.
119. Defendants, however, are not licensed by the Department of Consumer Affairs. Moreover, Defendants have entered into oral and written contracts with Plaintiffs that require Plaintiffs to pay at least 20% commissions in violation of New York state law.
120. Because these oral and written contracts violate GBL 172 and 185, the contracts are unenforceable.
121. Defendants have been unjustly enriched by these unlawful contracts. Thus, Plaintiffs are entitled to an award of damages equal to the fees unlawfully retained.
SEVENTH CAUSE OF ACTION (Accounting)
122. Plaintiffs repeat and reallege paragraphs 1 through 85 as if set forth fully herein.
123. Defendants have acted willfully, maliciously and in bad faith, in a manner designed to undermine Plaintiffs' efforts to earn a living as models.
124.By charging an excessive and unlawful fee in connection with their services Defendants have made a substantial profit at the expense of Plaintiffs' interests.
125. Defendants have been unjustly enriched from their wrongful conduct, and therefore, should account for their profits by separating legitimate profits from those monies obtained through unauthorized commissions.
RELIEF REQUESTED
WHEREFORE, Plaintiffs demand judgment against Defendants, and each of them, as follows:
(A) That the Court determine that this action may be maintained as a Class Action under Rule 23 of the Federal Rules of Civil Procedure and that Plaintiffs be certified as a Class Representatives and their attorneys as Class Counsel;
(B) Under counts I-III, that the unlawful combination and conspiracy alleged herein be adjudged and decreed a ~ restraint of trade or commerce in violation of Section 1 of the Shennan Act, or otherwise violative of Section 1 of the Shennan Act, and awarding Plaintiffs treble their actual damages, plus attorneys' fees and costs to the extent provided by law;
(C) Ordering Defendants to forfeit and disgorge all fees received in violation of New York law, including all secret profits that the Defendants have received as a result of their wrongful conduct and all other damages suffered by Plaintiffs as a result of Defendants' breaches of fiduciary duty and other wrongful conduct;
(D) Punitive and exemplary damages to the extent permitted by law;
(E) An accounting of all costs and expenses claimed to be incurred on behalf of Plaintiffs;
(F) Pre-judgment interest and post judgment interest from the date of entry until the date of satisfaction at the highest rates allowable by law;
(G) Reasonable attorneys fees and costs incurred by Plaintiffs in this action; and
(H) Such other and further relief as this Court deems just and proper.
Annonk, New York June 25
BOIES, SCHILLER & FLEXNER LLP
By: Is/Andrew W. Haves
Andrew W. Hayes (AH-2570)
Ann M. Galvani I
Of Counsel: 80 Business Park Drive
Annonk New York 10504 C
Christina A. Lewicky Tel: (914) 273-9800 " David A. Feuerstein Fax: (914) 749-8265
Paul R. Verkuil
BOIES, SCHILLER & FLEXNER LLP 570 Lexington Avenue
New York, New York 10022 Tel: (212) 446-2300 Fax: (212) 446-2350
Neville Johnson I Brian Rishwain
JOHNSON & RISHWAIN LLP
12121 Wilshire Boulevard, Suite 1201 Los Angeles, California 90025 (310) 826-2410
DEMAND FOR JURY TRIAL
Pursuant to Fed. R. Civ. P. 38, Plaintiffs hereby demand a jury trial of all issues properly triable thereby.
Annonk, New York June 25
BOIES, SCHILLER & FLEXNER LLP
By: Is/Andrew W. Haves
Andrew W. Hayes (AH-2570) Ann M. Galvani
Of Counsel: 80 Business Park Drive
Annonk, New York 10504 Christina A. Lewicky Tel: (914) 273-9800 David A. Feuerstein Fax:' (914) 749-8265
Paul R. Verkuil
BOIES, SCHILLER & FLEXNER LLP 570 Lexington Avenue
New York, New York 10022 Tel: (212) 446-2300 Fax: (212) 446-2350
Neville Johnson Brian Rishwain
JOHNSON & RISHW AIN LLP
12121 Wilshire Boulevard, Suite 1201 Los Angeles, California 90025 (310) 826-2410
Dave
Orlando, Florida
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