Long John Silvers, Inc. v. Willingham et al

Filing 1

COMPLAINT against All Defendants Filing fee $ 350, receipt number 644-1280591., filed by Long John Silvers, Inc.. (Attachments: # 1 Cover Sheet, # 2 Exhibit A. Oracle Fran Ag part 1 & 2, # 3 Exhibit B. Broadway Fran Ag part 1 & 2, # 4 Exhibit C. Guaranty Agreements, # 5 Exhibit D. Conditional Reinstatement, # 6 Exhibit E. Default Ltrs, # 7 Exhibit F. Termination Ltr, # 8 Exhibit G. Bankruptcy Desist Ordr, # 9 Exhibit H. LJS Trademarks, # 10 Summons J. Willingham, # 11 Summons P. Willingham) (JSS)

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VIA UPS OVERNIGHT DELIVERY

April 7, 2011

Southwest Seafood Shoppes, LLC
Attn: John Willingham
4321 N. Bear Claw Way
Tucson, AZ 85749

RE:

NOTICE OF TERMINATION, LONG JOHN SILVER'S RESTAURANT(s)
FOR ROYALTY AND ADVERTISING - STORES 07459, 07555, 07606,
07705, & 07919

Dear John:
This is to advise you that you have failed to cure the defaults in your obligations under the Long
John Silver's Franchise Agreement(s) (the "Agreement") as set forth on Exhibit "A" attached
hereto. Such defaults were set forth in the Notices of Default dated January 27, 2011 and
March 15,2011.
.

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Accordingly, pursuant to prior notice, and under the provisions of Section 11 of the Agreement,
Long John Silver's, Inc. has the right to terminate the Agreement. This letter constitutes notice to
you that Long John Silver's, Inc. has elected to exercise its right to terminate the Agreement
effective as of the date hereof. As a result of this termination, Long John Silver's, Inc. will advise
all distributors and suppliers to immediately cease distribution of any and all Long John Silver's
proprietary products and all products bearing Long John Silver's trademarks or service marks to
your formerly franchised restaurant. Furthermore, you must immediately comply with all of your
post-termination obligations under the Agreement, including, without limitation:
1. Return to Long John Silver's, Inc. all Confidential Operating Manuals, together with all other
materials containing, in whole or in part, any trade secrets, confidential materials, operating
instructions, or business practices.
2. Discontinue the use of any and all service marks, trademarks and trade names of Long John
Silver's, Inc. and the use of any and all signs, menu board inserts, point of sale materials and
printed goods bearing such marks or names or any reference thereto.

Long John Silver's Inc.
1900 Colonel Sanders Lane
Louisville, KY 40213

3. Renovate or refurbish the restaurant sufficiently to eliminate any possibility of confusion in
the mind of the public that your restaurant is in any manner connected with Long John Silver's,
Inc. or any of its licensed restaurants. Such renovation will require changing the building interior
and exterior color scheme and removing glass, removing light fixtures, and other items bearing
any of the marks, symbols, color schemes or identifications of Long John Silver's, Inc.
4. Cease operating or doing business under any name or in any manner that might tend to give
the general public the impression that your franchise with Long John Silver's, Inc. is still in force,
or that you are iii any way connected with Long John Silver's, Inc. or authorized to use Long
John Silver's, Inc. trademarks.
5. Cease making, using, or availing yourself of any of the trade secrets, trademarks of, or
information imparted by Long John Silver's, Inc., and do not disclose or reveal any such other
information or any portion thereof to others.
6. Remove any and all characteristically

designed roof or building features.

7. We are also requiring you to cease and desist operation of the restaurant located at 4640 W.
Ina Road in Tucson, AZ. This location is not subject to any franchise agreement. You have been
operating this location without an agreement and this practice must cease immediately. All
trademarks and service marks must be removed on an expedited basis.
This Notice of Termination does not in any way release you from any existing or continuing
obligation incurred under the provisions ofthe Agreement or any other agreement you may have
with Long John Silver's, Inc. or any of its affiliates and any applicable national and/or local
advertising cooperative. The acceptance by Long John Silver's, Inc. of any sums of money due
from you, or the acceptance of any payments purporting to be for royalties or advertising fees
applying to periods following the termination of your Franchise Agreement(s), shall not
constitute a waiver by Long John Silver's, Inc. of 'any of its rights under the Agreement. Our
retention and negotiation of any payments is without waiver or prejudice of Long John Silver's,
Inc. 's position. Long John Silver's, Inc. may elect to retain any payments purporting to be for
royalties or advertising fees applying to periods following the termination as partial payment of
damages, costs and expenses incurred as the result of your unauthorized use of Long John
Silver's, Inc. 's trademarks and systems at the restaurant in question.
Very truly yours,

Don Becker
Division Counsel
Long John Silver's, Inc.

EXHmIT "A"

Royalty

Location

Agreement Date

Default Timeframe

Address

07459

06/21/2002

12/0112010-12/3112010
01101120110113112011

4105 N. Oracle Rd.
Tucson, AZ 85705

07555

01/20/2005

12/0112010-12/3112010
0110112011 - 0113 112011

7120 E. Broadway
Tucson, AZ 85710

07606

01120/2005

12/0112010-12/3112010
01101/2011 - 0113112011

4030 E. 22nd St.
Tucson, AZ 85711

07705

01/20/2005

12/0112010 - 12/3112010
01101/2011 - 0113112011

3700 S. 6th Ave.
Tucson, AZ 85713

07919

01120/2005

12/011201012/3112010
0110112011 - 0113112011

4640 W. Ina Rd.
Tucson, AZ 85741

EXHIBIT "A" (Continued)

Advertising

Location

Agreement Date

Default Timeframe

Address

07459

06/2112002

10/0112010 - 10/31/2010
1110112010- 1113012010
12/0112010 - 12/3112010
01/0112011-0113112011

4105 N. Oracle Rd.
Tucson, AZ 85705

07555

01120/2005

1% 112010 - 10/3 112010
11/0112010- 11/30/2010
12/0112010- 12/3112010

7120 E. Broadway
Tucson, AZ 85710

01/0112011 - 01/3112011

07606

01/20/2005

I % 112010 - 10/3 1/201 0
11/0112010 - 11130/2010
12/0112010- 12/3112010

4030 E. 22nd St.
Tucson, AZ 85711

0110112011 - 0113112011

07705

01120/2005

1% 1120 10 - 10/3 112010
1110112010 - 11130/2010
12/0112010-12/3112010
0110112011 - 01/3112011

07919

01/20/2005

I % 1/20I 0 - I 0/3 112010
11/0112010-

11130/2010

12/01/2010-

12/31/2010

- --01101120 1]-~01/Jl/201-1

3700 S. 6th Ave.
Tucson, AZ 85713

4640 W. Ina Rd.
Tucson, AZ 85741