Incentive Capital v. Camelot Entertainment Group et al

Filing 87

MEMORANDUM in Opposition re 42 MOTION to Dismiss for Lack of Jurisdiction filed by Plaintiff Incentive Capital. (Attachments: # 1 Exhibit A, # 2 Exhibit 1 to Exhibit A, # 3 Exhibit 2 to Exhibit A, # 4 Exhibit 3 to Exhibit A, # 5 Exhibit 4 to Exhibit A, # 6 Exhibit 5 to Exhibit A, # 7 Exhibit 6 to Exhibit A, # 8 Exhibit 7 to Exhibit A, # 9 Exhibit 8 to Exhibit A, # 10 Exhibit 9 to Exhibit A)(Pia, Joseph)

Joseph G. Pia (9945)
Nathan S. Dorius (8977)
PIA ANDERSON DORIUS REYNARD & MOSS
222 South Main Street, Suite 1800
Salt Lake City, Utah 84101
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
[e-mail]
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
INCENTIVE CAPITAL, LLC, a Utah Limited
Liability Company,
Plaintiff,
v.
CAMELOT ENTERTAINMENT GROUP,
INC., a Delaware Corporation; CAMELOT
FILM GROUP, INC., a Nevada Corporation;
CAMELOT DISTRIBUTION GROUP, INC.,
a Nevada Corporation, ROBERT P. ATWELL,
an individual; JAMIE R. THOMPSON, an
individual; STEVEN ISTOCK, an individual;
TED BAER, an individual; PETER
JAROWEY, an individual,

MEMORANDUM IN OPPOSITION
TO TED BAER’S MOTION TO
DISMISS FOR LACK OF
PERSONAL JURISDICTION

Civil No. 2:11-cv-00288
Judge Clark Waddoups
(Oral Argument Requested)

Defendants.

Plaintiff Incentive Capital, LLC (“Plaintiff” or “Incentive”), by and through its counsel,
respectfully submits the following Memorandum in Opposition to the Motion to Dismiss for
Lack of Personal Jurisdiction (the “Motion”) filed by Defendant Ted Baer (“Baer”).

INTRODUCTION
This dispute and the claims alleged against Baer and the other Defendants arise out of
certain loans (collectively the “Loan” or “Loan Transaction”) that Camelot Entertainment Group,
Inc. (“CEG”); Camelot Film Group, Inc. (“CFG”); and Camelot Distribution Group, Inc.
(“CDG” and collectively with CEG and CFG, “Camelot”) took from Plaintiff Incentive to
finance the acquisition and distribution of a film and television library containing hundreds of
media titles (collectively referred to as the “Liberation Library”). See Plaintiff’s Amended
Complaint at ¶1. Baer seeks through his present Motion to be dismissed as a Defendant in this
case on the basis that this Court lacks personal jurisdiction over him.
Baer’s Motion, in essence, presents the following fundamental question to the Court:
Whether Baer, acting as Camelot’s lead counsel in the Loan Transaction, purposefully availed
himself of jurisdiction in the State of Utah by allegedly making false representations and
providing knowingly false information to Incentive via email and/or telephone calls which
Incentive relied upon in deciding to make the Loan to Camelot, which Loan Baer personally
benefited from. At this stage of the proceedings, when faced with a motion to dismiss for lack of
jurisdiction (such as Baer’s present motion), the Tenth Circuit and Utah law mandates that the
plaintiff need only make a prima facie showing that jurisdiction exists. Moreover, because all
allegations and factual disputes are resolved in favor of the plaintiffs, Incentive’s allegation that
Baer made false representations and provided false information to it must be accepted as true.
Utah’s long-arm statute is broad and inclusive. Jurisdiction in Utah exists over a nonresident based on an individual’s causing of any tortious injury within Utah or transaction of any
business within the State, without the need for the individual to ever set foot in or purchase
property within the State. See Utah Code Ann., § 78B-3-205. Additionally, this statute explains
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that “transaction of business within this state” includes “activities of a nonresident person, his
agents, or representatives in this state which affect persons or businesses within the state.” Utah
Code Ann. § 78B-3-202(2) (emphasis added). Governing case law establishes that even contacts
as minimal as a single phone call resulting in an oral contract can be enough to create
jurisdiction.
In his capacity as Camelot’s lead counsel in charge of handling the negotiation and
preparation of the Loan Transaction Documents, Baer was heavily involved and played a crucial
role in obtaining the Loan from Incentive. Baer’s contacts with the State of Utah in connection
with the Loan Transaction consist of, among other things— (i) discussing, negotiating and
exchanging drafts of numerous different agreements relating to the Loan Transaction with
individuals and entities residing in Utah, many of which Utah choice of law and forum selection
provisions; (ii) providing critical financial information regarding Camelot and the profitability of
its business operations to Plaintiff’s counsel in Utah, which was relied upon by Plaintiff in
making its decision to proceed with the Loan Transaction and which included false and inflated
figures; (iii) failing to correct or otherwise notify Plaintiff’s counsel that other financial
information provided to them and to Baer in connection with the Loan Transaction by another
attorney working on Camelot’s behalf was substantially overstated and undoubtedly known to
Baer to be false; and (iv) exchanging during the course of negotiations and discussions
regarding the Loan Transaction dozens of e-mails, phone calls and faxes with individuals
residing in Utah in an effort to make the Loan Transaction happen— all establish jurisdiction in
Utah.
Indeed, Baer admits that he sent the email to Incentive’s representatives on April 1, 2010,
that included attached documents containing false information about the value of Camelot’s
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assets and which, according to Incentive’s allegations, contained false representations by Baer
regarding Camelot’s financial stability, its ability to undertake and pay back loans, and its track
record and abilities as a distributor of films. Although Baer asserts in his supporting affidavit
that he did not personally prepare the falsified financial documents attached to his email,
conspicuously absent from Baer’s affidavit is any statement that he did not know that the
information contained in these documents regarding the value of Camelot’s assets was false at
the time he provided them to Plaintiff’s counsel. Mr. Baer offers no explanation for the
representations he made to Incentive’s representatives regarding, among other things, Camelot’s
financial stability or its ability to repay the Loan., which representations Baer knew Incentive
would rely on these representations in making its decision whether to proceed or not with the
Loan Transaction with Camelot. These contacts are, taken alone, establish that Baer has
sufficient minimum contacts with the State of Utah to provide this Court with specific personal
jurisdiction over him.
As demonstrated below, Baer personally benefitted from the Loan Transaction given the
fact that the legal fees he charged Camelot were to be paid directly from the proceeds of the
Loan and given that he is a 5% owner of Camelot’s shares. Furthermore, evidence provided by
Baer supports Incentive’s assertion that Baer knew that the information and representations he
provided to Incentive’s representatives were false at the time he made them. Within a mere 10
days of the closing of the Loan, on or about May 7, 2010, Baer and Camelot executed a Business
and Legal Services Consultant Agreement (the “Consultant Agreement”), which provides,
among other things, that: (i) Baer had provided legal services to Camelot since August 12, 2009;
(ii) Baer had billed Camelot for the legal services provided to it during the period of August 12,
2009 through May 7, 2010 the amounts of $260,517.67 in cash and $221,440 in Camelot’s
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common stock; and (iii) as of May 7, 2010, Camelot had paid Baer a mere $60,000 in cash and
$124,500 in common stock. Therefore, at virtually the same time Baer was representing to
Incentive that Camelot was financial stable, possessed assets with values that far exceeded the
Loan amount of $650,000 and that the Liberation Library was generating profits of between
$200,000 to $300,000 per month, Baer was aware that Camelot had paid him less than 1/6 of the
cash he was owed for the legal services he had provided to it and barely ½ of the amount of
common stock owed to him. Funds from the Incentive Loan were certainly used to pay him,
reflected by his adamancy that the transaction be expedited. Also of note is that Mr. Baer was
simultaneously arguing that his personal guarantee requested by Incentive was unnecessary.
Despite Baer’s heavy involvement in the Loan Transaction and extensive contacts with
Incentive’s counsel in Utah in connection therewith, Baer remarkably claims that he had no
contact whatsoever with Utah and that the claims against him should be dismissed for lack of
personal jurisdiction. That Baer was not required to set foot in Utah in negotiating and closing
the Loan Transaction on Camelot’s behalf is irrelevant in this textbook example of modern era
electronic business transactions that create jurisdiction.
While Baer was not an officer or director of Camelot and did not personally execute any
of the documents pertaining to the Loan Transaction, Baer was integrally involved in the
negotiations and preparation of each of these documents and played a key role in convincing
Plaintiff to enter into the Loan Transaction with Camelot. In sum, Baer was a key participant in
reaching out to Utah and helping Camelot obtain a loan from Incentive based in large part on the
false financial information and representations Baer provided to Incentive.
For the reasons set forth more fully below jurisdiction over Baer is appropriate here.

v

STATEMENT OF FACTS
1.

In March of 2010, Camelot approached Incentive for a loan of funds (the “Loan”

or “Loan Transaction”) in the principal amount of $650,000 (the “Loan Amount”) to secure
acquisition of a large media library, known as the “Liberation Assets,” which is comprised of
approximately 880 motion pictures, television programs, and other media. For definitional
purposes the term “Liberation Library” means both the Liberation Assets and the “Distribution
Assets” as those two terms appear in the documents executed by the parties in connection with
the Loan Transaction. [See Exhibit 1 to Plaintiff’s Memorandum in Support of its Second
Motion for Temporary Restraining Order and Motion for Preliminary Injunction (Plaintiff’s
“Memorandum in Support of Second TRO Motion”), Declaration of James Mecham (“Mecham
Declaration”) at ¶ 8.]
2.

Over the next approximately 5 week period, Camelot and Incentive negotiated the

terms of the Loan, the security and guarantees thereto, along with the terms of the promissory
note and other documents that would memorialize the Loan Transaction. [See Declaration of
Joseph G. Pia (“Pia Declaration”), attached hereto as Exhibit “A”, at ¶ 7.]
3.

On or about April 27, 2011, the Loan Transaction closed when Incentive and CFG

entered into, among other things, a “Promissory Note Term Loan” (the “Note”) for the Loan
Amount of $650,000. [See Exhibit “A” hereto, Pia Declaration at ¶8, Exhibit 1 thereto, the
Note.]
4.

Defendant Baer acted as Camelot’s representative in negotiating the Loan

Transaction and was Camelot’s primary counsel with regard to the Loan. [See Exhibit “A”
hereto, Pia Declaration at ¶9.] Indeed, as Baer notes in an email to Incentive’s counsel Nathan
Dorius dated March 29, 2010, there were only four individuals participating in reviewing and
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preparing the Loan Transaction document on behalf of Camelot—(i) Baer; (ii) Bob Atwell,
Camelot’s CEO; (iii) Peter Jarowey (“Jarowey”), Camelot’s financial advisor in Boston; and (iv)
Phil Levoff (“Levoff”), the only other attorney working for Camelot on the deal who, like
Jarowey, is based out of Boston and who, prior to the Loan Transaction, had done no previous
work for Camelot. [See id. at ¶9 and Exhibit 2 thereto, Email from Baer to Dorius dated
3/29/2010.] Baer, unlike Levoff who had not previously represented Camelot, began providing
legal services to Camelot nearly 7 months earlier in August of 2009. [See Baer’s Memorandum
in Support of Motion to Dismiss Plaintiff’s Amended Complaint for Lack of Jurisdiction (Baer’s
“Supporting Memo”) at p. 6, ¶22 and Exhibit C thereto, Representation Agreement.]
5.

Beginning in March 2010 and continuing until the Loan Transaction closed on or

about April 27, 2010, Baer, on the one hand, and Dorius and Pia, on the other hand, exchanged
dozens of emails and telephone calls in which the terms and conditions of the Note and the other
Loan Transaction documents were discussed, negotiated and agreed upon. [See Exhibit “A”
hereto, Pia Declaration at ¶10.]
6.

Although Incentive’s counsel prepared first drafts of many of the Loan

Transaction documents, Baer was integrally involved in redrafts, providing updated information,
and drafted himself the Asset Purchase Agreement (“APA”) pertaining to Camelot’s purchase of
the Liberation Library (using a portion of the Loan proceeds) and was primarily responsible for
negotiating, reviewing and making changes and edits to the provisions of the Loan Transaction
documents. . [See Exhibit “A” hereto, Pia Declaration at ¶11.] Indeed, Baer admits that in
connection with his representation of Camelot, he “participated in negotiations with legal
counsel for Plaintiff Incentive Capital regarding the final language and execution of the loan
agreements, security agreements, guaranty agreements, and escrow agreements identified in
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Plaintiff Incentive Capital’s Amended Complaint.” [See Exhibit “B” to Baer’s Supporting
Memo, Affidavit of Julius Arthur Baer III (“Baer Affidavit”) at ¶ 30.]
7.

Incentive alleges in its Amended Complaint that “Baer, acting as general counsel

for CEG, CFG, and CDG during the negotiation of the loan agreements [i.e. the Loan
Transaction documents], misrepresented that CDG’s assets have a significantly higher value than
the amount of the proposed loan and the interest thereon.” [See Baer’s Supporting Memo at p. 3,
¶6 and Exhibit “A” thereto, Plaintiff’s Amended Complaint, at ¶80; Exhibit “A” hereto, Pia
Declaration at ¶12.]
8.

In addition, Incentive alleges in its Amended Complaint that, in order to induce

Incentive to make the Loan, Baer (along with the other Defendants) misrepresented Camelot’s
financial stability, its ability to undertake and pay back loans, and its track record and abilities as
a distributor of films and in generating revenues from the exploitation of the Liberation Library,
and grossly overstated the value of the Liberation Library itself. [See Exhibit “A” to Baer’s
Supporting Memo, Plaintiff’s Amended Complaint, at ¶¶ 2, 75; Exhibit “A” hereto, Pia
Declaration at ¶13.]
9.

In particular, in an email to Baer dated April 1, 2010, Incentive’s counsel stated,

among other things, that “[a]s for the guarantors [of the Loan], the lender requires that Bob
Atwell, Ted Baer, and Peter Jarowey personally guaranty payment of the Note.” [See Exhibit
“A” hereto, Pia Declaration at ¶14, Exhibit 3 thereto, Email from Dorius to Baer dated
4/1/2010.] Incentive wanted Baer and Jarowey to guarantee the Loan, despite neither of them
being a director of Camelot at the time (Baer was an owner), to ensure that they communicated
correct and accurate information to Incentive regarding Camelot’s assets, its business, and the
value of the Liberation Assets and stood behind the representations regarding such that they
viii

made in connection with the Loan Transaction. [See Exhibit “A” hereto, Pia Declaration at
¶14.]
10.

In response to Incentive’s request that each of Atwell, Baer and Jarowey execute

personal guarantees to guarantee Camelot’s repayment of the Loan, Baer sent an email to Dorius
also dated April 1, 2010, in which Baer makes the following representation:
Also, of particular note, I should point out that the parent company, Camelot
Entertainment Group, Inc. [CEG], is a public company, and, as such, has
substantial value that is far more secure than personal guarantees. For example,
the company would consider placing into escrow $650,000 in convertible
preferred stock in the public-traded entity in order to give your lender additional
comfort of a substantial guarantee. The escrow would only be released upon
satisfaction of the loan.
[See Exhibit “A” hereto, Pia Declaration at ¶15, Exhibit 4 thereto, Email from Baer to Dorius
dated 4/1/2010.]
11.

Ultimately, acting in reliance on Baer’s representation that a placing of CEG’s

shares equal in value to the Loan Amount of $650,000 would have “substantial value that is far
more secure than [the] personal guarantees” of Atwell, Baer and Jarowey which Incentive had
requested, the parties entered into an escrow agreement (the “Escrow Agreement”) at the Closing
of the Loan which required that a share certificate valued at the Principal amount of $650,000
worth of CEG Class F Convertible Preferred shares (“Pledged Shares”) shall be delivered to an
unnamed escrow agent. [See Exhibit “A” hereto, Pia Declaration at ¶16, Exhibit 5 thereto,
Escrow Agreement at p. 1, ¶ 1(a).]
12.

Baer also attached four (4) separate files to his email dated April 1, 2010, which

Baer represented as “cover[ing] the unencumbered assets of the two borrowing entities: Camelot
Film Group [CFG] and Camelot Distribution Group [CDG].” [See Exhibit “A” hereto, Pia
Declaration at ¶17, Exhibit 4 thereto, Email from Baer to Dorius dated 4/1/2010.] Baer named
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these four (4) attached files to his April 1, 2010 email as follows:
“1 – the Camelot Distribution Group Sales Revenue Projections on Liberation Library
titled to be purchased” (herein after referred to as “File #1”);
“2 – the Up-dated 2010 valuation of the Liberation Library prepared by the Liberation
management (i.e. an update from the Salter report enclosed)” (herein after referred to as
“File #2”);
“3 – the Camelot Distribution Group Sales Revenue Projections for the new film titles
licensed by CDG over the last number of months” (herein after referred to as “File #3”);
and
4 – the Salter Library valuation report of the Liberation Library” (herein after referred to
as “File #4”).
[See id.]
13.

After listing the files attached to his April 1, 2010 email, Baer represented to

Incentive that “[t]ogether these assets [i.e. the Liberation Library (including the Distribution
Assets)] have a significantly higher value than the amount of the Loan and the interest thereon.”
[See Exhibit “A” hereto, Pia Declaration at ¶18, Exhibit 4 thereto, Email from Baer to Dorius
dated 4/1/2010.]
14.

File #1 (attached by Baer to his April 1, 2010 email) provides, in sum, the

following revenue projections from the Liberation Library:
a. Estimated Total Value (low): $22,845,000
b. Short Term Sales Potential (10%) [payable to Incentive]: $2,284,500
c. Estimated Total Value (med): $41,536,500
d. Short Term Sales Potential (10%) (med) [payable to Incentive]: $4,153,650.
[See Exhibit “A” hereto, Pia Declaration at ¶19, Exhibit 4 thereto, Email from Baer to Dorius
dated 4/1/2010 at attached File #1.]
15.

File #1 is attached as Exhibit A to the Note and is initialed by Camelot’s CEO,
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Atwell, as representing the gross proceeds to be generated from the Liberation Library (“Gross
Revenue Representations”). In addition to sending the Gross Revenue Representations to
Incentive’s representative’s as File #1 to his April 1, 2010 email, Baer, acting as Camelot’s
general counsel in the Loan Transaction, reviewed, edited and made modifications and changes
to the Note and the attached Exhibit A to the Note containing the Gross Revenue
Representations. [See Exhibit “A” hereto, Pia Declaration at ¶20, Exhibit 1 thereto, the Note at
Exhibit “A”.]
16.

In relation to the Gross Revenue Representations, the Note (which Baer

personally reviewed and edited) provides the following “Warranties”:
. . . 6. The Borrower [CFG] has furnished to the Lender financial assumptions
which, in the opinion of Borrower, fairly and accurately reflect the financial
assumptions for the operations of Borrower, and there has been no material
adverse change in the Borrower’s financial prospects since that date which would
require revision of the same;
7. The Borrower represents and warrants that the international sales projections
previously provided by Borrower in connection with the parties’ initial term sheet
shall not vary by more than 25% less than that represented therein on the
estimated low value and short term sales potential 10% columns. A copy of the
international sales projections is attached hereto [to the Note] as Exhibit A. . . .
[See Exhibit “A” hereto, Pia Declaration at ¶21, Exhibit 1 thereto, the Note at p. 3, ¶¶ 6 – 7.]
17.

Based on the Gross Revenue Representations made by Atwell, which were

included as File #1 to Baer’s April 1, 2010 email and in Exhibit A to the Note attached thereto by
Baer, along with the Warranties contained in the Note itself, it was Incentive’s understanding
that Incentive would receive at least 25% of $2,284,500 to $4,153,650 in gross participation from
the Library. [See Exhibit “A” to Baer’s Supporting Memo, Plaintiff’s Amended Complaint, at
¶16; Exhibit “A” hereto, Pia Declaration at ¶22.]
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18.

Incentive materially relied upon Baer’s and the other Defendants’ representations

that Incentive would receive at least 25% of $2,284,500 to $4,153,650 in gross participation from
the Library in entering into the Note. [See Exhibit “A” to Baer’s Supporting Memo, Plaintiff’s
Amended Complaint, at ¶ 17; Exhibit “A” hereto, Pia Declaration at ¶23.]
19.

Moreover, also included in Exhibit A to the Note were File #2 and File #3

attached to Baer’s April 1, 2010 email, that Baer also reviewed and included with the Note.
According to the representations made by Camelot, Baer and the other Defendants in these sales
projections, Incentive would receive 10% of the Existing Sales Revenue generated from the
Liberation Library, or at least $15,000 monthly, and 10% of the Exploitation Revenues, or at
least $190,375 monthly, for a total of $205,375 each month (“Payment Benchmark”). These
representations about the sales projections were false. [See Exhibit “A” to Baer’s Supporting
Memo, Plaintiff’s Amended Complaint, at ¶89; Exhibit “A” hereto, Pia Declaration at ¶24.]
20.

Alternatively, according to File #2 and File #3 (attached to Baer’s April 1, 2010

email and as Exhibit “A” to the Note) the representations made by Camelot, Baer and the other
Defendants in the sales projections reviewed and included in the Note by Baer, Incentive would
receive 10% of the Existing Sales Revenue from the Liberation Library, or at least $15,000
monthly, and 10% of the Exploitation Revenues as modified by the 25% cushion referenced in
the preceding paragraph, or at least $142,781.25 monthly, for a total of $157,781.25 (“Cushioned
Benchmark”). These representations were also false. [See Exhibit “A” to Baer’s Supporting
Memo, Plaintiff’s Amended Complaint, at ¶ 90; Exhibit “A” hereto, Pia Declaration at ¶25.]
21.

Baer admits that he sent Files #1-4 as an attachment to his April 1, 2010 email to

Incentive. [See Exhibit “B” to Baer’s Supporting Memo, Baer Affidavit at ¶24; Exhibit “A”
hereto, Pia Declaration at ¶26.]
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22.

Baer claims that he “did not prepare any of the four documents that were sent as

attachments” to his April 1, 2010 email. [See Exhibit “B” to Baer’s Supporting Memo, Baer
Affidavit at ¶27.] Baer also claims that he “did not prepare or calculate any of the information or
estimates contained in the four attached documents” to his email but rather, the information
contained in the documents was “were prepared by someone other than” Baer and was “provided
to him” by Camelot “to send to a representative of Plaintiff Incentive Capital.” [See id. at ¶¶ 28,
29; Exhibit “A” hereto, Pia Declaration at ¶27.]
23.

Conspicuously absent from Baer’s Affidavit is any statement denying that he

reviewed the information contained in Files #1-4 attached to his April 1, 2010 email to Dorius or
regarding whether or not he knew the information contained in the files was false, inaccurate
and/or overstated. [See Exhibit “A” hereto, Pia Declaration at ¶28.]
24.

Furthermore, Baer does not deny that he made the following representations to

Incentive his April 1, 2010 email (as identified above), that he knew such representations were
false at the time they were made, or that he knew Incentive relied on such representations when it
accepted the escrowed stock of Camelot in lieu of receiving the personal guarantees of both
Jarowey and Baer which Incentive had initially requested and in making its decision to make the
Loan to Camelot:
a. That CEG has “substantial value”;
b. That the value of CEG is “far more secure” than the personal guarantees of
Atwell, Jarowey and Baer requested by Incentive; and
c. That the Liberation Library (including the Distribution Assets) “have a
significantly higher value than the amount of the Loan and the interest thereon.”
[See Exhibit “A” hereto, Pia Declaration at ¶29, Exhibit 4 thereto, Email from Baer to Dorius
dated 4/1/2010.]
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25.

On March 24, 2010, Camelot’s representative and Boston-based financial advisor,

Defendant Jarowey, sent an e-mail to Plaintiff’s counsel stating:
It took me a while to locate the best document to provide the detail on revenue
distribution for the Liberation Library. Attached is an income statement with
actuals through 9/30/2009 and monthly forecasts for the 4Q 2009. The forecast
actually came in very close the final numbers for 2009. This will give you a sense
of the annual and monthly cash generation. Also included in the file for your
consideration, are SGA actuals for 2009 and SGA an estimate for 2010. As you
know, Camelot will not be acquiring any overhead in its purchase of the
Liberation assets, so all the estimated SGA goes to the bottom line.
This responds to your request for specific revenue figures as we discussed the
other day. After reading your note to Jamie yesterday regarding the “independent
review of the library”, I believe these numbers serve to solidly support that, in
fact, the library does generate significant revenue exclusive of some of the
territories Jamie is focusing on--supporting the cash price the Company is paying.
Jamie plans to get back to you directly on the specifics raised in your email to
him, but the attached is my contribution to the position that the Liberation assets
are a good buy and can generate sufficient cash flow to pay back the loan in short
order.
[See Exhibit “A” hereto, Pia Declaration at ¶30, Exhibit 6 thereto, Email from Jarowey dated
3/24/2010.]
26.

Attached to the March 24, 2010 Jarowey E-mail is a spreadsheet with three tabs:

(1) Year to Date Revenue; (2) 2009 Forecast and SGA Detail; (3) SGA 2009 & 2010 Forecasts.
[See Exhibit “A” hereto, Pia Declaration at ¶31, Exhibit 6 thereto, Email from Jarowey dated
3/24/2010, attachments thereto.] Tab 1 of these spreadsheets, consisting of the purported Year to
Date Revenue for the Liberation Library, shows total revenues on the Liberation Library of
$6,004,373. [See id.] This information is false. [See id.]
27.

Jarowey’s email dated March 24, 2010 cc’d Baer and was provided as a joint

representation. [See Exhibit “A” hereto, Pia Declaration at ¶32, Exhibit 6 thereto, Email from
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Jarowey dated 3/24/2010.] Baer does not deny receiving and reviewing Jarowey’s email,
knowing that the information contained therein was false and took no action to correct such
information or otherwise notify Incentive that it was inaccurate.
28.

On March 30, 2010 Jarowey sent a follow-up e-mail stating that his estimate of

monthly gross revenue for the Liberation Assets was and would continue to be “around $200,000
per month net of the overhead reductions, maybe more [c]ould be as much as $300,000 per
month.” [See Exhibit “A” hereto, Pia Declaration at ¶33, Exhibit 7 thereto, Email from Jarowey
dated 3/30/10.] This information was also false. [See id.]
29.

Jarowey’s March 30, 2010 email was also sent to Baer. [See Exhibit “A” hereto,

Pia Declaration at ¶34, Exhibit 7 thereto, Email from Jarowey dated 3/30/10.] As with Jarowey’s
March 24, 2010 email, Baer does not deny receiving and reviewing Jarowey’s email, knowing
that the information contained therein was false and took no action to correct such information or
otherwise notify Incentive that it was inaccurate.
30.

Incentive materially relied upon Jarowey’s representations in the March 24, 2010

e-mail and the March 30, 2010 e-mail in making its decision to provide the Loan to Camelot.
[See Exhibit “A” to Baer’s Supporting Memo, Plaintiff’s Amended Complaint, at ¶ 45; Exhibit
“A” hereto, Pia Declaration at ¶35.]
31.

It was only a matter of months after Incentive made the loan that Camelot was

seriously underperforming on its agreed-to benchmarks pursuant to the Gross Revenue
Representations set forth in Exhibit A to the Note for distributing the Liberation Assets. [See
Exhibit “A” to Baer’s Supporting Memo, Plaintiff’s Amended Complaint, at ¶ 38; Exhibit “A”
hereto, Pia Declaration at ¶36.]
32.

On Wednesday, June 2, 2010, Incentive’s legal counsel sent a letter to Camelot
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entitled “Notice and No Waiver.” [See Exhibit “A” hereto, Pia Declaration at ¶37, Exhibit 8
thereto, Notice and No Waiver Letter dated 6/2/2010.] The June 2, 2010 letter states:
[T]here is no question that the amount of revenue generated by the acquisition
represented by Camelot was and continues to be “material.” It was represented to
Incentive Capital that the film library was currently generating $150,000 of gross
revenues each month. We reminded you of this material representation in our
email to you on April 27th, which reads in relevant part as follows:
The lender is “uneasy about advancing operational funds to a distributor
before having some level of comfort that the distributor will perform as
agreed – i.e., make its participation payments. As you have represented to
us that the library now generates approximately $150,000 in gross
revenues monthly, this should not pose much of a hardship.”
Your representations in the final Note confirm this to be the case and specifically
reference the sales projections enclosed herewith as Exhibit A. The Note states in
pertinent part that payment is ‘conditioned upon the (a) Borrower’s and
Guarantors’ performance of all other obligations under th[e] Note and the related
loan documents . . . (b) all representations and warranties by Borrower and the
Guarantors in the Loan Documents being true and accurate . . . Incentive Capital
now believes that the Warranties set forth in the Note are in breach. That relevant
section of the Note reads: ‘The Borrower represents that the international sales
projections previously provided by Borrower in connection with the parties’
initial term sheet shall not vary by more than 25% less than that represented
therein on the estimated low value and short term sales potential 10% columns. A
copy of the international sales projections is attached hereto as Exhibit A.’
Thus, it continues to be Incentive Capital’s express understanding of the parties’
agreements that in addition to your representations that $150,000 was being
generated by the film library at the time it was acquired, that the ‘Short Term
Sales Potential” payments to Incentive Capital of 10% of gross are $2,284,500.
This representation has been relied upon by Incentive Capital.
If the forgoing constitute accurate and truthful representations by Camelot, then
during the month of May 2010 the lender should have received no less than
$15,000 in participation payments. However, to date the lender has only received
a participation payment of $1,012.22 on May 26, 2010 and on May 21, 2010 a
payment of $4,400. The total participation payments to-date equal $5,412.22,
which constitutes 10% of $54,122. The lender has also received $6,750 in interest
payments.
xvi

To make sure that there was a meeting of the minds between lender and borrower
on this critical issue, the Note provides for operational advances on the express
condition that all representations be accurate and true, including (as mentioned
above) the representation that the film library would generate revenues within 25%
of the projections provided by borrower to lender (which were attached as an
exhibit to the Note and incorporated by reference). Those projections indicate that
the library will generate $22,845,000 annually (under the “Estimated Total Value
– Low” column”). The film library would need to generate gross revenues of
approximately $1,427,812.50 per month in order to hit the annualized target
amount of $17,133,750 (given the 25% margin provided for in the Note). Clearly,
the participation payments made to lender thus far show that borrower’s
exploitation of the film library is generating revenues far below the projected
amounts.
Based upon the participation payments received to date, lender is concerned that
one of two things is happening: (a) borrower is not generating monthly gross
revenues as it represented in order to induce lender to make this loan, or (b)
borrower is not making the full participation payments as required under the loan
documents. Despite the occurrence of what lender believes to be material breaches
of the loan documents by borrower, lender, without waiving its rights and
remedies under the loan documents, has made the promised operational advances
to borrower.
[See id. (emphasis added).]
33.

Camelot eventually disclosed that it had financial problems and was unable to

perform in accordance with its representations. After many futile attempts to work out the
issues, Camelot defaulted. [See Exhibit “A” to Baer’s Supporting Memo, Plaintiff’s Amended
Complaint, at ¶ 46; Exhibit “A” hereto, Pia Declaration at ¶38.]
34.

On February 21, 2011 at 9:00 A.M., Incentive held a creditor’s sale (“Foreclosure

Sale”) to foreclose on the collateral set forth in the Security Agreements, namely the Liberation
Assets and the Distribution Assets, which have been collectively defined as the Liberation
Library. [See Exhibit “A” to Baer’s Supporting Memo, Plaintiff’s Amended Complaint, at ¶ 58;
Exhibit “A” hereto, Pia Declaration at ¶39.]
xvii

35.

Despite Baer’s representations to Incentive in his April 1, 2010 email to Dorius

that Camelot’s stock had “substantial value” which was “far more secure” than the personal
guarantees of Atwell, Jarowey and Baer requested by Incentive, Camelot’s most recent stock
quote on its website shows its current stock value to be $0.0001 per share, with total monthly
earnings of $391.75. [See Exhibit “A” to Baer’s Supporting Memo, Plaintiff’s Amended
Complaint, at ¶ 63; Exhibit “A” hereto, Pia Declaration at ¶40.] Apparently, Camelot’s stock is
in lock-down and has been unable to trade more than a few thousand dollars per day. [See id.]
Investigation into Camelot’s financials indicates that there is no discernable market for
Camelot’s stock nor can it be readily liquidated. [See id. at ¶ 64.]
36.

Moreover, Atwell as a guarantor (the only personal guarantee obtained by

Incentive has few or no assets because, among other things, he pledged all of his assets towards
the building of a motion picture studio resulting in the loss of his home and other value. [See
Exhibit “A” to Baer’s Supporting Memo, Plaintiff’s Amended Complaint, at ¶ 64; Exhibit “A”
hereto, Pia Declaration at ¶41.]
37.

Baer alleges that he is “a resident of California,” “an attorney who is admitted to

the California State Bar,” maintains a private law practice in Santa Barbara, California, and
“performs the majority of his legal work in the State of California.” [See Exhibit “B” to Baer’s
Supporting Memo, Baer Affidavit at ¶¶3-6.]
38.

Baer claims he is not, and has not ever been, an officer or director of any of the

entities that comprise Camelot. [See Exhibit “B” to Baer’s Supporting Memo, Baer Affidavit at
¶ 15.] Baer also claims he has never been an employee of Camelot. [See id. at ¶ 16.] Baer
admits, however, that he acted as a representative of Camelot in connection with the Loan
Transaction in the capacity as lead counsel. [See id. at ¶ 30.] Baer also admits he is a
xviii

stockholder of Camelot (having “received some shares of registered common stock in partial
payment” for his legal services). [See id. at ¶ 17.]
39.

Baer admits that in connection with acting as Camelot’s lead counsel with regard

to the Loan Transaction that he made phone calls and sent email messages from California to
representatives of Incentive in Utah (although he did not have any face-to-face meetings with
these representatives within Utah). [See Exhibit “B” to Baer’s Supporting Memo, Baer Affidavit
at ¶¶ 22-23.]
40.

On or about May 7, 2010, approximately ten (10) days after the closing of the

Loan Transaction on April 27, 2010, Baer (as “Consultant”) and Camelot Entertainment Group,
Inc. (“CEG” as the “Corporation”) executed a Business and Legal Services Consultant
Agreement (the “Consultant Agreement”), which replaced the Representation Agreement
executed by Baer and Camelot in August 2009 and which states, among other things, that:
a. “The Consultant has provided and continues to provided specific business
consulting and entertainment and contractual legal services to the Corporation
(‘Services’ as further defined below) . . .” [See Exhibit “B” to Baer’s Supporting
Memo, Baer Affidavit, at Exhibit 2 thereto, Consultant Agreement, at p. 1,
Recitals, ¶B.]
b. “The Consultant has provided Services to the Corporation since August 12, 2009,
pursuant to the Representation Agreement . . .” [See id. at p. 1, Recitals, ¶C.]
c. “As of May 7, 2010 hereof, the Consultant has billed the Corporation for legal
and business services provided to date in the amounts of $260,517.67 in cash and
$221,440 in the Corporation’s $.0001 par value common stock (‘Common
Stock’).” [See id. at p. 1, Recitals, ¶D.]
d. “As of the date hereof [i.e. May 7, 2010], the Consultant has been paid $60,000 in
cash and $124,500 in the Common Stock . . . for Services provided to date.” [See
id. at p. 1, Recitals, ¶E.]
e. “The Corporation has requested Consultant to continue to provide entertainment
and contractual legal Services (collectively and as further described in Exhibit H,
xix

the ‘Services’) to the Corporation on an on-going basis.” [See id. at p. 1, Recitals,
¶H.]
f. “The Board of Directors of the Corporation (the ‘Board’) has determined that it is
in the best interests of the Corporation and its stockholders that the Corporation
retain the services of Consultant to consult with (i) the board, (ii) officers of the
Corporation, and (iii) administrative staff of the Corporation concerning issues
which may occur relating to the business of the Corporation, including assisting
the Corporation in implementing its business model and providing entertainment
and contractual legal Services as further described in Exhibit H attached hereto.”
[See id. at p. 1, Recitals, ¶I.]
g. “The Consultant shall provide the Services to the Corporation on an independent
contractor basis pursuant to the terms and conditions of this Agreement.” [See id.
at p. 1, Recitals, ¶J.]
h. “Incorporation of Recitals. The Recitals are hereby incorporated into this
Agreement.” [See id. at p. 2, ¶1.]
i. Term of Agreement. This Agreement shall be in full force and effect
commencing May 7, 2010 and concluding at the close of business on December
31, 2015 (the “Term”), unless extended by mutual agreement of the parties.” [See
id. at p. 2, ¶2.]
j. “Consultation. The Consultant shall make appropriate personnel available to
consult with the Board, the officers of the Corporation, and the department heads
of the administrative staff of the Corporation, at reasonable times, concerning
matters relating to any issue of importance regarding the business affairs of the
Corporation, including, but not limited to, the specific Services detailed on
Exhibit H attached hereto.” [See id. at p. 2, ¶3.]
k. Confidentiality. The Consultant has and will have access to and participate in
the development of or be acquainted with confidential or proprietary information
and trade secrets related to the business of the Corporation, its parent, subsidiaries
and affiliates (the ‘Corporations’), including but not limited to (i) business plans,
operating plans, marketing plans, bid strategies, bid proposals, financial reports,
operating data, budgets, wage and salary rates, pricing strategies and information,
terms of agreements with suppliers or customers and others, customer lists,
formulae, patents, devices, software programs, reports, correspondence, tapes,
discs, tangible property and specifications owned by or used in the Corporations’
businesses, operating strengths and weaknesses of the Corporations’ officers,
directors, employees, agents, suppliers and customers . . .(the ‘Confidential
Information’). . . .” [See id. at p. 7, ¶16.]
xx

l. Exhibit H of the Consultant Agreement, which sets forth the Specific Services to
be performed by Baer, as Consultant, lists the following:
i. Provide business, management, consulting and legal services and business
development and production legal services and support to the Corporation.
ii. Provide a general business and financial analysis of the Corporation’s
proposed business plan with respect to the business of Corporation.
iii. Assist in the formulation and evaluation of various structural and financial
alternatives.
iv. Provide the Corporation with business advisory services.
v. Review and analyze all respects of the Corporation’s structure and its
goals and make recommendations on feasibility and achievement of
desired goals.
vi. Provide Entertainment, Contractual and General Business Legal Services
to the Corporation.
vii. Assist Corporation in the preparation of all legal documents, business
plans, offering statements, private placement memorandums, registrations
and all other documents as requested by Corporation.
[See id. at p. 17, Exhibit H.]
41.

Baer alleges that he began providing legal services to Camelot on August 12,

2009 (with the execution of the Representation Agreement) and terminated his representation of
it in November 2010. [See Exhibit “B” to Baer’s Supporting Memo, Baer Affidavit at ¶¶ 10, 34.]
Baer makes no attempt to explain why he terminated his representation of Camelot in November
2010 despite the fact that the Consultant Agreement’s initial term did not end until December 31,
2015. [See id., at Exhibit 2 thereto, Consultant Agreement, Term of Agreement, at p. 2, ¶2.]
42.

In an email from Jamie Thompson (“Thompson”), Camelot’s Sales Manager,

dated April 16, 2010, Thompson represents that the proceeds from the Loan will, in part, be used
to pay all fees incurred by Camelot (i.e. legal fees billed by Baer in addition to other consultants
retained by Camelot) associated with the Loan Transaction. [See Exhibit “A” hereto, Pia
Declaration at ¶42, Exhibit 9 thereto, Email from Thomson to Pia dated 4/16/2010.]

xxi

43.

Incentive has alleged the following causes of action against Baer by including him

in the designation of “All Defendants”: Fraud, Fraud in the Inducement, Alter Ego, Civil
Conspiracy, Negligent Misrepresentation, Gross Negligence, Declaratory Relief, and Tortious
Interference with Economic Relations. [See Exhibit “A” to Baer’s Supporting Memo, Plaintiff’s
Amended Complaint.]

xxii

ARGUMENT
I.

PLAINTIFF HAS MADE A PRIMA FACIE SHOWING OF JURISDICTION.
Defendants’ Motion essentially asks this Court to hold as follows: an out-of-state

individual who makes misrepresentations, provides knowingly false information, and fails to
correct blatantly misleading information given to a resident of Utah for purposes of inducing
such Utah resident to enter into a loan which personally benefits the out-of-state individual is not
subject to jurisdiction in Utah because such conduct was merely directed towards Utah and did
not occur within the State.
Incentive alleges in its Amended Complaint that: “On April 1, 2010, Baer, acting general
counsel for Camelot during negotiation of the loan agreements [i.e. the Loan Transaction
documents], misrepresented that CDG’s assets have a significantly higher value than the amount
of the proposed loan [of $650,000] and the interest thereon.” [See Incentive’s Amended
Complaint at ¶80.] Baer’s assertion that this allegation “fails on its own to specifically tie
Defendant Ted Baer to the forum state or otherwise show that personal jurisdiction in Utah is
appropriate” is misplaced. The allegation refers to the email that Baer sent to Incentive’s counsel
on April 1, 2010. As set forth in the Statement of Facts above and further discussed below, Baer
made several misrepresentations of fact in this email and provided false information to Incentive
in the documents attached thereto (Files #1-4) about the financial strength of Camelot and its
ability to generate revenue as a distributor of the film library.
Baer’s key role in making the Loan Transaction occur, is sufficient to demonstrate a
prima facie showing that a Utah court has personal jurisdiction over him.

1

A. Under Utah and Tenth Circuit Law, Only a Prima Facie Showing of Jurisdiction is
Required and All Factual Disputes Must be Resolved in Plaintiffs’ Favor.
To determine whether a federal court has personal jurisdiction over a nonresident
defendant in a diversity action, the court looks to the law of the forum state. Taylor v. Phelan,
912 F.2d 429, 431 (10th Cir.1990). In Utah, the assertion of personal jurisdiction must both: (1)
satisfy the requirements of Utah’s long-arm statute; and (2) comport with due process. Doering
v. Copper Mountain, Inc., 259 F.3d 1202, 1209 (10th Cir.2001). Utah’s long-arm statute
subjects a defendant to personal jurisdiction for causing any tortious injury within Utah or
transacting any business within the State, without the need for the individual to ever set foot in or
purchase property within the State. See Utah Code Ann., § 78B-3-205.
To comport with due process, a defendant must have minimum contacts with the forum
state such that maintenance of the lawsuit would not offend “traditional notions of fair play and
substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95
(1945). Accordingly, this Court has repeatedly held that under Utah law, a court may assert
jurisdiction to the fullest extent permitted by the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. See, e.g., STV Int’l Marketing v. Cannondell
Corp., 750 F. Supp. 1070, 1074 (D. Utah 1990).
At the pleading stage, when faced with a motion to dismiss for lack of jurisdiction and
accompanying evidence in the form of affidavits and other written materials, Utah law makes
clear that “the plaintiff need only make a prima facie showing that jurisdiction exists.”
Rusakiewicz v. Lowe, 556 F.3d 1095, 1100 (10th Cir. 2009) (emphasis added); see also Neways,
Inc. v. McCausland, 950 P.2d 420, 422 (Utah 1997); Hafen v. Strebeck, 338 F. Supp. 2d 1257,
1260 (D. Utah 2004) (internal citations omitted). “The burden on the plaintiff is light.” Encore
2

Prods, Inc. v. Promise Keepers, 53 F. Supp. 2d 1101, 1114 (D. Colo. 1999), citing Wenz v.
Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995). Additionally, any “factual disputes are
resolved in favor of the plaintiffs when determining the sufficiency of this showing.”
Rusakiewicz, 556 F.3d at 1100; see also Wenz, 55 F.3d at 1505 (10th Cir. 1995); Kuenzle v. HTM
Sport-Und Freizeitgerte AG, 102 F.3d 453, 456 (10th Cir. 1996); Far West Capital Inc. v.
Towne, 46 F.3d 1071, 1075 (10th Cir. 1995) (factual disputes resolved in favor of the Plaintiff in
a motion to dismiss).
Moreover, “[t]he allegations in the complaint must be taken as true to the extent they are
uncontroverted by the defendant’s affidavits. If the parties present conflicting affidavits, all
factual disputes are resolved in the plaintiff’s favor . . .” Spectator Blankets II, LLC v. Jack
McKeon, 2009 U.S. Dist. LEXIS 35309 at *8 (D. Utah 2009) (Stewart, J.) (quoting Kennedy v.
Freeman, 919 F.2d 126, 128 (10th Cir. 1990). Because the allegations in the Complaint must be
resolved in Incentive’s favor, and given that the allegations make far more than simply a prima
facie case of jurisdiction over Baer, this Court’s exercise of personal jurisdiction over Baer
satisfies both due process and Utah law.
B. Personal Jurisdiction Over Defendants Is Proper.
The United States Supreme Court and Utah law recognizes two types of personal
jurisdiction: specific and general. See Carter v. H.R. Plus, 992 F. Supp. 1293, 1294 (D. Utah
1998). “A court may exercise specific jurisdiction if a defendant has purposefully directed his
activity at residents of the forum and the litigation results from claims that arise out of or relate
to those activities.” Id.; see also Burger King, 471 U.S. at 472. “A court may exercise general
jurisdiction where the defendant’s contacts with the forum rise to the level of being ‘continuous
and systematic.’” Id., citing Kuenzle v. HTM Sport-und Freizeitgerate AG, 102 F.3d 453, 455
3

(10th Cir. 1996)). Incentive does not claim that this Court has general jurisdiction over Baer.
However, as demonstrated below, Incentive can establish a prima facie showing of specific
jurisdiction over Baer which comports with the due process requirements of the Fourteenth
Amendment. To establish specific jurisdiction “(1) the defendant’s act or contact must implicate
Utah under the Utah long-arm statute; (2) a ‘nexus’ must exist between the plaintiff’s claims and
the defendant’s acts or contacts; and (3) application of the Utah long-arm statute must satisfy the
requirements of federal due process.” Harnischfeger Eng’rs, Inc. v. Uniflo Conveyor, Inc., 883 F.
Supp. 608, 612-613 (D. Utah 1995).
1. Plaintiff Has Made a Prima Facie Showing that Specific Personal Jurisdiction
Exists over Baer Under Utah’s Long-Arm Statute.
As noted above, Utah’s long-arm statute makes clear that a Utah court may exercise
jurisdiction over a non-resident based on an individual’s “transaction of any business within the
state,” or “the causing of any injury within this state whether tortious or by breach of warranty.”
Utah Code Ann., § 78B-3-205. Additionally, this statute explains that “transaction of business
within this state” includes “activities of a nonresident person, his agents, or representatives in
this state which affect persons or businesses within the state.” Utah Code Ann. § 78B-3-202(2)
(emphasis added). Thus, the initial inquiry of specific personal jurisdiction under Utah law
consists of determining whether Incentive has made allegations in its Amended Complaint which
establish a prima facie showing that Baer either committed a tort directed or felt in Utah, the
forum state, or as an agent or representative of Camelot transacted business which “affected”
Incentive within Utah.
Baer repeatedly emphasizes in his Motion that he did not physically travel to Utah and
that all the work he performed and the conduct he engaged in connection with the Loan
4

Transaction was done in his capacity as a representative and counsel for Camelot. The inference
Baer would like this Court to take from those statements is that the absence of physical presence
in Utah and the fact that all his conduct was done in a representative capacity makes jurisdiction
improper here. Plaintiff does not disagree with the fact that Baer was not physically present in
the state of Utah when he engaged in his tortious conduct or that he engaged in all his conduct in
the capacity as lead counsel for Camelot in connection with the Loan Transaction. However,
Baer’s lack of physical presence in Utah and the fact that he acted as Camelot’s counsel is
immaterial.
Utah’s long-arm statute is interpreted expansively so that “a person may transact business
within the state despite an absence of physical presence in Utah.” Nova Mud Corp. v. Fletcher,
648 F. Supp. 1123, 1126 (D. Utah 1986) (one phone call by a defendant to a Utah company
constituted “transacting business” because it resulted in an oral contract which affected
individuals in Utah); Berrett v. Life Ins. Co. of the Southwest, 613 F. Supp. 946, 949 (D. Utah
1985) (telephone conversation to a Utah resident from an individual outside of Utah is sufficient
to satisfy Utah’s long arm statute.) Thus, whether a defendant is physically present in the
jurisdiction is immaterial when his conduct outside the jurisdiction “affect[s] persons or
businesses within the state,” as Baer’s conduct in California has affected Plaintiff here in Utah.
See Utah Code Ann. § 78B-3-202(2) (emphasis added).
In addition, although there is no decision by a Utah court addressing this issue, courts in
other jurisdictions have repeatedly found that where corporate counsel communicates false
information or otherwise participates in conduct that constitutes a tort which is directed to the
forum state, a tort has been committed in the forum state by counsel which satisfies the state’s
long-arm statute (despite the fact that he did not step foot inside the forum state). For example,
5

in Mihlon v. Superior Court, 215 Cal. Rptr. 442 (Cal. Ct. App. 1985), the plaintiff, a California
attorney, filed a complaint alleging that defendants, a foreign corporation, certain of its officers,
along with its corporate counsel, had caused, induced and assisted two of the plaintiff’s clients to
tortiously breach their attorney retainer agreements with the plaintiff. Id. at 443. The defendants
appeared specially and moved to quash service of summons arguing that their activities within
California and their other contacts with California in relation to plaintiff’s action were in
performance of their duties as officers, directors or corporate counsel for the foreign corporation
and that such conduct did not constitute a valid basis for jurisdiction over them as individuals.
Id. at 444. The affidavit submitted by corporate counsel for the foreign corporation in support of
her motion to quash stated that at the relevant time period, she was a resident of the state of
Maryland who had never done business in California, had never owned property there, and had
never entered an appearance in any legal proceeding in California in her individual or
representative capacity. Importantly, the corporate counsel also averred in her affidavit that
“[m]y contacts with California in connection with this cause of action were made in my role as
corporate officer and counsel. I received and reviewed documents, advised as to the nature of
their contents, suggested revisions, and transmitted drafts and executed documents back to
California. I also placed and received telephone calls to and from California to facilitate the
performance of my function. I performed these actions in the State of Maryland and in the
District of Columbia.” Id. (emphasis in original).
In upholding the trial court’s ruling that the plaintiff had made a prima facie showing that
personal jurisdiction over the corporate counsel existed in the State of California, the California
Court of Appeal found that the “real question” before it was “whether corporate counsel for a
foreign corporation is acting for or as the corporation so as to render counsel’s performance of
6

duties in that official capacity irrelevant for purposes of demonstrating minimum contacts as an
individual. Otherwise stated, does corporate counsel stand in the same position as corporate
officers and directors in this regard?” Id. at 447.
The court answered this question by concluding that “corporate counsel should be treated
as employees or independent contractors for jurisdictional purposes.” Id. The court noted that
unlike officer and directors of a corporation “who may not reasonably be subjected to personal
jurisdiction for their actions qua the corporation,” corporate counsel “merely provides legal
counsel and services, and does not ‘speak for’ or act qua the corporation.” Id. at 449. It then
found that:
The capacity of corporate counsel, whether in-house or independent counsel, is
analogous to that of accountants providing services as professional employees of
or independent contractors for the corporation. It is not subject to serious dispute
that if accountants provide fraudulent financial documents on behalf of their
corporate client, knowing or reasonably foreseeing direct injury to residents of
another state, the accountants should be subjected to personal jurisdiction as joint
tortfeasors. It follows that corporate counsel should be treated for purposes of
personal jurisdiction in the same manner as employees of or independent
contractors for the corporation rather than as officers or directors.
Id. (emphasis added).
Based on these findings, the court held that “[a]n intentionally tortious act of the
corporation would confer personal jurisdiction over participating corporate counsel where
knowledge of the wrongful nature of the corporation’s acts is alleged,” and that “[t]his
conclusion is consistent with the consideration that there is no good reason for treating
counsel advising corporations differently than counsel advising individual clients for
purposes of personal jurisdiction.” Id. at 449-50; see also Linzer v. EMI Blackwood
Music, Inc., 904 F. Supp. 207, 215 (S.D.N.Y. 1995) (holding that allegation that
corporate counsel for foreign corporation knowingly provided false information and
7

documents to the plaintiff in New York to help bolster foreign corporation’s claim to a
renewal of copyrights to songs constituted “an allegation of tortious activity in New
York” and falls under the ambit of New York’s long-arm statute.”)1

1

holdings in Mihlon and Linzer are consistent with the holdings routinely made by other
courts that an attorney or other representative of a company are liable for the torts of the
company if they personally participate in such torts, including knowingly send false information
directed into the forum state. Wyatt v. Union Mortgage Co. ., 24 Cal.3d 773, 785, 157 Cal.Rptr.
392, 598 P.2d 45 (1979) (a representative of a corporation may become liable for the torts of the
company “if they directly ordered, authorized or participated in the tortious conduct.”); Berg &
Berg Enterprises, LLC v. Sherwood Partners, Inc., 32 Cal. Rptr.3d 325, 341 (Cal. Ct. App. 2005)
(finding that attorneys have an independent duty to avoid engaging in conduct that constitutes
fraud); Skarbrevik v. Cohen, England & Whitfield, 231 Cal.App.3d 692, 711, 282 Cal.Rptr. 627
(Cal. Ct. App. 1991) (holding that an attorney has personal duty to abstain from harming another
by false representation or actual fraud, a duty independent of a client’s duty to disclose that may
give rise to its own, but not its lawyer’s, liability for constructive fraud by concealment); PMC,
Inc. v. Kadisha, 78 Cal.App.4th 1368, 1380, 93 Cal.Rptr.2d 663 (2000) (a corporate
representative’s participation in tortious conduct “may be shown not solely by direct but also by
knowing consent to or approval of unlawful acts.”); Miceli v. Stromer, 675 F. Supp. 1559, 1561
(D. Colo. 1987) (finding that “negligent conduct in a foreign state which causes injury in [the
forum state] may be deemed an act committed within [the forum state] for purposes of the longarm statute.”); Cherin v. Cherin, 72 Mass. App. Ct. 288, 295, 891 N.E.2d 684, 689 (Mass. App.
Ct. 2008) (holding that for purposes of personal jurisdiction, “an intentional misrepresentation
made in or sent into [a forum state], for the purpose of inducing the plaintiff’s reliance,
constitutes an act within [that state].”), citing Rye v. Atlas Hotels, Inc., 30 Mass.App.Ct. 904,
906, 566 N.E.2d 617 (1991) (finding that out-of-State defendant’s attorney’s intentional
misrepresentations by telephone and mail sufficient to provide jurisdiction), Murphy v. Erwin–
Wasey, Inc., 460 F.2d 661, 664 (1st Cir.1972) (“Where a defendant knowingly sends into a state
a false statement, intending that it should there be relied upon to the injury of a resident of that
state, he has, for jurisdictional purposes, acted within that state”); In re Enron Corp. Sec.,
Derivative & ERISA Litig., 235 F. Supp. 2d 549, 609 (S.D. Tex. 2002) (holding that “an attorney
has an established duty to third parties not to make material misrepresentations on which the
attorney ‘knew or had reason-to-expect’ that the parties would rely or the attorney intended to
reach and influence a limited group that might reasonably be expected to have access to that
information and act in reliance on it.”), citing Likover v. Sunflower Terrace II, Ltd., 696 S.W.2d
468, 472 (Tex.Civ.App. 1985) (“an attorney is liable if he knowingly commits a fraudulent act
that injures a third person, or if he knowingly enters into a conspiracy to defraud a third person”);
see also The Restatement (Second) of Torts § 531 (1977) (“One who makes a fraudulent
misrepresentation is subject to liability to the person or class of persons whom he intends or has
reason to expect to act or to refrain from action in reliance upon the misrepresentation for
pecuniary loss suffered by them through their justifiable reliance in the type of transaction in
which he intends or has reason to expect their conduct to be influenced.”); The Restatement
8

 The

In the end, viewing the allegations against Baer in the light most favorable to Incentive,
as the law requires for Baer’s present motion, it is clear that the Plaintiff has more than made a
sufficient prima facie showing of long arm jurisdiction over Baer.
2. Plaintiff Has Made a Prima Facie Showing that a ‘Nexus’ Exists between
Plaintiff’s Claims and Baer’s Acts or Contacts.
To make a prima facie showing that this Court possesses specific personal jurisdiction
over Baer, Incentive must next show that a “nexus” exists between its claims and Baer’s actions
or contacts with the State of Utah. In order to satisfy this requirement, Incentive must show that
“but for” Baer’s forum-related conduct, the injury to Incentive would not have occurred. See,
e.g., Myers v. Bennett Law Offices, 238 F.3d 1068, 1075 (9th Cir.2001); Panavision Int’l, L.P. v.
Toeppen, 141 F.3d 1316, 1322 (9th Cir.1998). Baer’s contacts must also be “sufficiently related
to the underlying causes of action” and “have some degree of proximate causation to be
considered for purposes of jurisdiction.” Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,
243 F.Supp.2d 1073, 1085 (C.D.Cal.2003), citing Doe v. American Nat’l Red Cross, 112 F.3d
1048, 1051-52 (9th Cir.1997).
In the present action, Incentive has alleged that “but-for” the false information supplied
by Baer to Incentive’s counsel in Baer’s April 1, 2010 email, which Baer also attached to the
Note (and which Baer does not claim he did not review or know to be false), Incentive would not
have entered into the Loan with Camelot.

Moreover, “but-for” Baer’s misrepresentations

regarding the financial stability of Camelot and value of its stock (which ended up being

(Second) of Torts § 552 (1977) (“One who, in the course of his business, profession or
employment, or in any transaction in which he has a pecuniary interest, supplies false
information for the guidance of others in their business transactions, is subject to liability for
pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to
exercise reasonable care or competence in obtaining or communicating the information.”)

9

virtually valueless), it would have not agreed to accept Camelot’s escrowed stock in lieu of the
guarantees of both Jarowey and Baer which Incentive had originally requested. In other words,
Baer’s contacts with Utah (the making of false representations and the supplying of false
information (together with his failure to correct the false claims made by Jarowey in his emails
dated March 24, 2010 and March 30, 2010 to both Incentive’s counsel and Baer) clearly are
“sufficiently related to the underlying causes of action” alleged against Baer and “have some
degree of proximate causation” to the injuries asserted by Incentive in its Amended Complaint.
Thus, but for Baer’s conduct in California directed at Utah, Incentive would not have been
injured in Utah. Accordingly, the Court should find that Incentive can make a prima facie
showing that the nexus element is satisfied as well.
3. Plaintiff Has Made a Prima Facie Showing that Jurisdiction over Baer is Proper
Under a Due Process Analysis.
Because Incentive can make a prima facie showing that the requirements of Utah’s longarm statute have been met and that a nexus exists between Baer’s alleged conduct and the injury
suffered by Incentive here, the final element required for a showing of specific personal
jurisdiction over Baer—a nonresident defendant in a diversity action—is a prima facie showing
by Incentive “that the exercise of jurisdiction does not offend the due process clause of the
Fourteenth Amendment.” Soma Med. Int’l v. Standard Chartered Bank, 196 F.3d 1292, 1295
(10th Cir. 1999), quoting Far West Capital, 46 F.3d at 1074).2 The United States Supreme Court
has established that the due process clause “protects an individual’s liberty interest in not being
subject to the binding judgments of a forum with which he has established no meaningful

2

This Court has noted that “[i]t is frequently helpful to undertake the due process analysis first,
because any set of circumstances that satisfies due process will also satisfy the long-arm statute.”
Sys. Designs, Inc. v. New CustomWaare Co., 248 F. Supp. 2d 1093, 1097 (D. Utah 2003).

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‘contacts, ties, or relations.’” Soma Medical, 196 F.3d at 1298, quoting Burger King, 471 U.S. at
471-72. The Court must engage in a two-step analysis to determine whether jurisdiction over the
defendant comports with due process: first, does the defendant have “minimum contacts” with
the forum state, and, second, does assertion of personal jurisdiction offend traditional notions of
fair play and substantial justice? International Shoe Co. v. Washington, 326 U.S. 310, 316
(1945).
Minimum contacts are established when a defendant “purposefully directs” his activities
to residents of the forum state, Burger King, 471 U.S. at 476, citing Keeton v. Hustler Magazine,
Inc., 465 U.S. 770, 774-75, (1984), and the litigation results from alleged injuries that “arise out
of or relate to” those activities. Id., 471 U.S. at 472, 105 S.Ct. at 2182, citing Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984). Because the second part of the
showing of minimum contacts is satisfied by the nexus test discussed above, Incentive can
establish Baer has minimum contacts with Utah by showing that Baer purposely directed his
tortious acts towards Utah or at Incentive here or that he purposely availed himself of the
privilege of conducting activities here. A defendant’s physical presence in the state is not
required, as long as his or her efforts were “purposely directed” toward residents of that state.
See Burger King, 471 U.S. at 476.
Thus, personal jurisdiction may be exercised over a defendant who has caused an effect
in the forum state by an act or omission occur ring elsewhere. See McGee v. International Life
Ins. Co. (1957) 355 U.S. 220, 223–224 (1957). Accordingly, Contrary to the general theme of
Baer’s motion, the United States Supreme Court’s “minimum contacts” analysis does not require
actual physical presence in the forum, a defendant’s “contacts are sufficient if the defendant
purposefully avails itself of the privilege of conducting activities within the forum state.” Far
11

West, 46 F.3d at 1074 (internal quotations omitted); see also Rambo v. Am. S. Ins. Co., 839 F.2d
1415, 1418-19 (10th Cir. 1988). In other words, if plaintiff can show a prima facie case that
Baer’s conduct was tortious or that his conduct adversely affected Incentive’s business (which it
has), then Incentive has satisfied its burden that the harm is based on the “effects” of defendant’s
out-of-state conduct. . See Calder v. Jones, 465 U.S. 783, 789, 104 S.Ct. 1482, 1486-87, 79
L.Ed.2d 804 (1983), citing World-Wide Volkswagen v. Woodson, 444 U.S. 286, 298-99, (1980).
In Calder, the United States Supreme Court discussed the “effects” doctrine. The Court
found that an allegedly libelous article written in Florida by a Florida resident about a California
resident could bring the Florida resident under the jurisdiction of the California court, although
the defendant had no other contacts with that state. The Supreme Court approved of the effects
test adopted by the lower court, which the Supreme Court described as standing for the
proposition that: “[T]he fact that the actions causing the effects in California were performed
outside the State did not prevent the State from asserting jurisdiction over a cause of action
arising out of those effects.” Id. at 787, 104 S.Ct. at 1485. The Court in Calder also emphasized
the intentional nature of the defendants’ conduct and its calculated injurious effect in the forum
state. Id. at 788-90. According to the Court, the defendants knew that the article “would have a
potentially devastating impact on respondent. And they knew that the brunt of that injury would
be felt by respondent in the state in which she lives and works....” Id. at 789-90, 104 S.Ct. at
1487.
Courts have found that the “essence of Calder is that intentional tortfeasors should be
prepared to defend themselves in any jurisdiction where they direct their alleged tortious
activity.” Taylor-Rush, 265 Cal. Rptr. at 680, citing Calder, 465 U.S. at 790. Thus, like the
defendants in Calder, if Baer was a “primary participant[ ] in an alleged wrongdoing
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intentionally directed at a [Utah] resident,” then a prima facie showing of minimum contacts by
Baer has been established. Id.
Indeed, Courts have repeatedly held that an employee, representative (including corporate
counsel), officer, or director may be subject to personal jurisdiction where the individual is a
“primary participant” in the alleged wrongdoing; i.e., where the individual had “control of, and
direct participation in the alleged activities.” Wolf Designs, Inc. v. DHR Co., 322 F.Supp.2d
1065, 1072 (C.D.Cal.2004), citing Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d
1001, 1021 (9th Cir.1985). Therefore where corporate counsel (or other representative or agent
of the company), is alleged to have directly engaged in the alleged wrongful acts directed at the
forum state, these acts are properly considered in determining that the purposeful availment
prong has been satisfied.
For example, in Seagate Tech. v. A. J. Kogyo Co., 219 Cal. App. 3d 696, 268 Cal. Rptr.
586 (Cal. Ct. App. 1990), the California Court of Appeals reversed an order quashing service of
summons against a Japanese citizen, who was president of a Japanese corporation and a
California corporation and had no contacts with California in his individual capacity. The
president there had met with the plaintiff vendor in California, and had sent a letter guaranteeing
any debts to the vendor which the California corporation might incur. The California corporation
went bankrupt and plaintiff filed suit to recover its loss. Id. at 699-700. There, the court
recognized that although a court cannot rely solely on the status of a defendant as a director or
officer to find the existence of personal jurisdiction, a corporate officer may be held personally
responsible for causing a corporation to act (i.e., the corporate officer authorized, directed, or
meaningfully participated in tortious conduct), and that act may be imputed to the officer for
purposes of establishing personal jurisdiction over him, notwithstanding the so-called “fiduciary
13

shield doctrine.” Id. at 702-03. The court determined that a California court could properly
assume jurisdiction over a non-resident corporate officer whose only contacts with the state were
in a corporate capacity if (1) the officer’s act was one for which the officer would be personally
liable; and (2) the officer’s act in fact created contacts between the officer and the forum state.
Id. at 703-04. In so holding, the court explained that tortious acts by corporate officers that create
contact with the forum state are not only acts of the corporation but also acts of the individual,
and may be considered contacts of the individual for purposes of determining whether long-arm
jurisdiction may be exercised over the individual. Id. at 701-04, 268 Cal.Rptr. 586. That is, the
acts may be considered in determining if the contacts between the individual and the state are
substantial enough as to permit the state to exercise personal jurisdiction over the individual, or
whether the exercise of personal jurisdiction over the individual offends “traditional notions of
fair play and substantial justice.” Id. at 703-04, 268 Cal.Rptr. 586; see also Neal v. Janssen, 270
F.3d 328 (6th Cir.2001).
Here, Incentive has alleged that Baer knew that the information and representations that
he made in his April 1, 2010 email, along with those contained in Jarowey’s emails to Baer and
Incentive’s counsel dated March 24, 2010 and March 30, 2010, would be and were in fact relied
on by Incentive in making its decision to enter into the Loan Transaction with Camelot and in
determining not to require a personal guarantee from either Jarowey or Baer. He therefore knew
that his statements regarding the financial stability of Camelot and value of its stock, along with
the information he and Jarowey supplied to Incentive’s counsel regarding the value, revenue and
sales projections and monthly earnings of the Liberation Library, which were false, would
adversely affect Incentive’s business and that the brunt of that injury would be felt by Incentive
in Utah—its principal place of business. Therefore, to the extent that Baer harmed Incentive’s
14

business, and the damage occurred in Utah, Baer should have reasonably anticipated being
“haled into court” here. See World-Wide Volkswagen, 444 U.S. at 297.
While Baer’s Motion emphasizes his lack of physical presence in Utah, such emphasis is
surely out of place in the year 2011. Even in 1985, a decade before e-mail communications
became commonplace, the Supreme Court stated that “it is an inescapable fact of modern
commercial life that a substantial amount of business is transacted solely by mail and wire
communications across state lines, thus obviating the need for physical presence within a State in
which business is conducted.” Burger King, 471 U.S. at 477. Courts have clarified that if parties
are “routinely exchang[ing] marked-up documents via electronic communication,” then such
contacts “are sufficient to establish a prima facie case” of jurisdiction. Stone v. Patchett, 2009
U.S. Dist. LEXIS 35049 at *29 (S.D.N.Y. Apr. 23, 2009).
Under the second arm of the due process analysis required by International Shoe and its
progeny, the Court should also find that it would not violate standards of fairness to bring Baer
under the jurisdiction of a Utah court. The United States Supreme Court has stated that as a part
of the fairness inquiry, courts should look at the public policy interests of the forum state:
A state has an especial interest in exercising judicial jurisdiction over those who
commit torts within its territory. This is because torts involve wrongful conduct
which a state seeks to deter, and against which it attempts to afford protection, by
providing that a tortfeasor shall be liable for damages which are the proximate
result of his tort.
Keeton, 464 U.S. at 776, 104 S.Ct. at 1479. Utah has a strong interest in providing a forum for
its residents to redress injuries suffered here. Therefore, the Court should conclude that Baer’s
contacts with Utah satisfy the requirements of due process.

15

In short, by viewing the allegations in the Complaint in the light most favorable to
Incentive, it is clear that Incentive can and has made a prima facie showing that specific personal
jurisdiction exists over Baer in Utah.
II.

ALTERNATIVELY, IN THE EVENT THE COURT FINDS THAT PLAINTIFF
HAS FAILED TO MEET ITS BURDEN OF MAKING A PRIMA FACIE
SHOWING THAT JURISDICTION EXISTS OVER BAER, PLAINTIFF SHOULD
BE GRANTED LEAVE TO CONDUCT LIMITED DISCOVERY ON BAER’S
JURISDICTIONAL CHALLENGE.
Alternatively, if the Court determines that Incentive has failed to meet its burden of

making a prima facie showing that specific personal jurisdiction exists in Utah over Baer, then
Incentive should be granted leave to conduct limited discovery on Baer’s challenge to
jurisdiction in Utah. A plaintiff whose prima facie case of personal jurisdiction is contested by
contradictory evidence “may request a period of limited discovery for the purpose of obtaining
further jurisdictional evidence.” In re Chocolate Confectionary Antitrust Litig., 602 F. Supp. 2d
538, 572 (M.D. Pa. 2009). Courts are to assist the plaintiff by allowing jurisdictional discovery
unless the plaintiff’s claim is “clearly frivolous.” Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d
446, 456 (3d Cir. N.J. 2003) In Far W. Capital v. Towne, 46 F.3d 1071 (10th Cir. Utah 1995),
the Tenth Circuit expressly noted that it is appropriate for a plaintiff to request “limited
discovery from the district court in connection with the defendants’ motion to dismiss.” Id. at
1077, citing Wyatt v. Kaplan, 686 F.2d 276, 283 (5th Cir. 1982) (“when a defendant challenges
personal jurisdiction, courts generally permit depositions confined to the issues raised in the
motion to dismiss.”).
Discovery is appropriate when it could reveal information relevant to determining
whether the court has personal jurisdiction. “When the defendant disputes the factual bases for
16

jurisdiction . . . the court may receive interrogatories, depositions, or ‘any combination of the
recognized methods of discovery’ to help it resolve the jurisdictional issue.” Walk Haydel &
Assocs., v. Coastal Power Produc. Co., 517 F.3d 235, 241 (5th Cir. 2008). Thus, so long as
Plaintiff’s claim is not “clearly frivolous,” this Court should allow Incentive to conduct limited
discovery on the issue of personal jurisdiction in the event it finds that it has failed to make a
prima facie showing the personal jurisdiction exists in Utah over Baer.3
In order to demonstrate that jurisdictional discovery is appropriate, Plaintiff must identify
particular facts that demonstrate the likelihood of contacts sufficient to corral defendants within
the court’s jurisdiction and must produce evidence suggesting that discovery will bear fruit. See
In re Chocolate, 602 F. Supp. 2d at 572; Brown v. AST Sports Sci., Inc., No. Civ.A. 02-1682,
2002 U.S. Dist. LEXIS 12294, 2002 WL 32345935, at *10 (E.D. Pa. June 28, 2002) (citations
omitted). A court weighing a jurisdictional discovery request must “accept the plaintiff’s
allegations as true, and . . . construe disputed facts in favor of plaintiff.” Toys “R” Us, 318 F.3d
at 457. If a plaintiff presents factual allegations that suggest “with reasonable particularity” the
possible existence of the requisite contacts between [the party] and the forum state, the plaintiff’s
right to conduct jurisdictional discovery should be sustained.” Id. at 456 (internal citations
omitted).

3

The decision of whether to allow limited discovery on the issue of personal jurisdiction in left
to the court’s discretion. Nevertheless, as noted by the Fifth Circuit in Wyatt, (the case cited by
the Tenth Circuit as support in Far W. Capital), “we will not hesitate to reverse a dismissal for
lack of personal jurisdiction, on the ground that the plaintiff was improperly denied discovery.”
Wyatt, 686 F2d. at 283, citing Skidmore v. Syntex Laboratories, 529 F.2d 1244, 1248-49 (5th Cir.
1979).

17

Incentive makes the alternative request that this Court allow it to conduct limited
discovery on the following two jurisdictional issues: (1) whether Baer knew that the
representations he made regarding the financial stability of Camelot and the value of its stock
were false and whether he knew that the information he received from Jarowey regarding the
monthly revenues generated during 2009 from the Liberation Library which was provided to
Incentive’s counsel was inaccurate and misleading, and (2) whether Baer reviewed the
information he provided to Incentive’s counsel pertaining to the revenue and sales projections for
the Liberation Library and/or had knowledge that such information was false and misleading at
the time he provided it to Incentive.
CONCLUSION
For the reasons set forth above, the Court should deny Baer’s Motion or alternatively
grant Incentive leave to conduct limited Discovery.
DATED this 5th day of August, 2011.
PIA ANDERSON DORIUS REYNARD & MOSS

/s/ Joseph Pia
Joseph Pia
Attorneys for Plaintiff

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CERTIFICATE OF SERVICE
I hereby certify that on this 5th day of August, 2011, a true and correct copy of forgoing
MEMORANDUM IN OPPOSITION TO TED BAER’S MOTION TO DISMISS FOR
LACK OF PERSONAL JURISDICTION was served by electronic mail on the following:
John A. Snow
Karen E. O’Brien
VAN COTT BAGLEY CORNALL & McCARTHY
[e-mail]
[e-mail]
Jonathan M. Levitan
[e-mail]
Wayne G. Petty
MOYLE & DRAPER, P.C.
[e-mail]
Marc E. Kasowitz
David J. Shapiro
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
[e-mail]
[e-mail]

By: /s/ Joseph Pia

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