S.j. Moseley is a resident of San diego, california, and a member of a limited liability company. He alleges he violated a contract Between him and Defendant Pacific Corporate Group Holdings, LLC. Plaintiff is ignorant of the true names and capacities of the Defendants, he says.
S.j. Moseley is a resident of San diego, california, and a member of a limited liability company. He alleges he violated a contract Between him and Defendant Pacific Corporate Group Holdings, LLC. Plaintiff is ignorant of the true names and capacities of the Defendants, he says.
S.j. Moseley is a resident of San diego, california, and a member of a limited liability company. He alleges he violated a contract Between him and Defendant Pacific Corporate Group Holdings, LLC. Plaintiff is ignorant of the true names and capacities of the Defendants, he says.
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FILED
CIVIL BUSINESS OFFICE 18
M.D. SCULLY (SBN: 135853) CENTRAL DIVISION
THOMAS J. STODDARD (SBN: 136299)
GORDON & REES LLP 200 APR 10 1213
101 West Broadway, Suite 2000
San Diego, CA 92101 CLERK R cnuRT
Telephone: (619) 696-6700 SAN 0:
Facsimile: (619) 696-7124
Attomeys for Plaintiff
STEPHEN J. MOSELEY
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN DIEGO
CASE NO. 37-2010-00084760-CU-BC-
CTL
FIRST AMENDED COMPLAINT FOR
VIOLATION OF BUSINESS AND
PROFESSIONS CODE § 17200, ET
SEQ.; BREACH OF CONTRACT;
BREACH OF THE COVENANT OF
GOOD FAITH AND FAIR DEALING;
UNJUST ENRICHMENT;
DECLARATORY RELIEF; and
EXPRESS INDEMNITY
i: February 2, 2010
STEPHEN J. MOSELEY,
Plaintiff,
v.
PACIFIC CORPORATE GROUP HOLDINGS,
LLC, (a limited liability company),
CHRISTOPER J. BOWER and Does 1-30,
Defendants.
Complaint Fil
Judge: Hon. JayM. Bloom
J)
Plaintiff Stephen J. Moseley, by and through his undersigned counsel, alleges as follows:
PARTIES AND VENUE
1. Stephen J. Moseley (“Moseley”) is an individual, who at all relevant times
‘mentioned herein was a resident of California, In 2001, Moseley joined Defendant Pacific
Corporate Group Holdings, LLC as an officer. Beginning in 2001, Moseley was an officer in
Defendant Pacific Corporate Group Holdings, LLC. Between approximately April 2004 and
September 2006, Moseley was a member of Defendant Pacific Corporate Group Holdings, LLC.
2. Paeifie Corporate Group Holdings, LLC. (“PCG”) is, and at all relevant times
was, a Delaware limited liability company with its principal place of business in La Jolla,
“le
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California.
3. Christopher J. Bower (“Bower”) is, and at all relevant times was, a resident of San
Diego County, California, and the CEO and managing member of Defendant Pacific Corporate
Group Holdings, LLC, doing business in La Jolla, California.
4, Plaintiffis ignorant of the true names and capacities of the defendants sued herein
as DOES 1-30, inclusive, and therefore sues these defendants by such fictitious names. Plaintiff
will amend his complaint to allege their true names and capacities when ascertained. In the
‘meantime, Plaintiff is informed and believes that each of the fictitious named defendants is
legally responsible in some manner for the occurrences herein alleged, and subject to and liable
for the relief prayed for below.
5. Plaintiffs informed and believes that all of the defendants, including those
defendants sued in the name of DOE, were agents, servants and employees of theit co-
defendants, and in doing the things hereinafter mentioned, were acting within the scope of their
authority as such agents, servants and employees with the permission and consent of theit co-
defendants.
6. Venue is proper because San Diego County is the residence of Defendants and
San Diego County is the place where the transactions and acts complained of occurred.
FACTS COMMON TO ALL COUNTS
7. Between approximately April 2004 and September 2006, Moseley was a member
of Defendant Pacific Corporate Group Holdings, LLC. Moseley, Bower and others entered into
an Amended and Restated Limited Liability Company Agreement dated November 26, 2003,
(the “Agreement”, The Agreement provided, inter alia, for the continuation of the business of
PCG, and set forth the rights and responsibilities of the members, Moseley was designated as a
“Class B Member” of PCG, and Bower was designated as a “Class C” Member” of PCG.
8. The Agreement established certain rights and responsibilities relating to
members’ Capital Accounts. Specifically, the Agreement established an obligation on the part
of PCG to repurchase a Class B Member's interest in his Capital Account and to make other
distributions and payments to the Class B Members, including Moseley, upon the withdrawal or
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removal of the member for any reason.
9. In September 2006, Moseley resigned from PCG for reasons related to
disagreements regarding the proper way to govern a service organization, select investments,
manage conflicts of interest and support client interests. PCG subsequently confirmed and
represented to Moseley on multiple occasions that PCG would meet its obligations to repurchase
Moseley’s membership interest; that PCG would deliver the proceeds of certain accounts held in
Moseley’s name to Moseley; and that PCG would make other pending distributions to Moseley,
as PCG was legally obligated to do. For example, on or about September 4, 2007, PCG sent
written correspondence to Moseley which confirmed “the obligation of Pacific Corporate Group
Holdings...to repurchase your membership interest.
10. Onor about September 25, 2006, PCG unconditionally and forever agreed to
release and discharge Moseley from any and all claims, and/or causes of action of any type or
scope, whether at law or at equity, which PCG may have against Moseley relating to any and all
existing or contemplated private equity co-investment funds.
11, PCG subsequently made occasional payments to Moseley in partial payment of
the amounts which PCG was obligated to pay to Moseley.
12. _ By correspondence dated December 30, 2009, PCG communicated to Moseley
that Moseley had engaged in unspecified and unidentified wrongfal activities which had
allegedly caused PCG to incur damages. Such allegations by PCG were made only to avoid
blame connected with long-standing and documented patterns of institutional conduct at PCG
and for the purpose of attempting to avoid PCG’s financial obligations to Moseley. By such
correspondence, PCG also communicated to Moseley that PCG will not make any further
distributions to Moseley, in contravention of PCG’s legal obligations to do so.
13. Such wrongful conduct by PCG has been directed by Defendant Bower, and
reflects a business scheme orchestrated by Bower to deny departing members of PCG the money
owed to each of them, including Moseley. Moseley is informed and believes that Defendant
Bower employed similar schemes to deny compensation due to former members, including but
not limited to, Monte Brem, Scott Vollmer, and Walter Fitzsimmons. Bower's practice and
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business model is to falsely accuse departing and departed members of wrongful conduct, in an
effort to misappropriate money which PCG is legally obligated to pay.
Disclosure issues related to turnover and staffing:
14, Tenure and the consistency of an investment team is an important performance
factor; this is particularly true in private equity because of the long-term nature of the assets and
strategies. For reasons related to governance and leadership, PCG has been plagued since its
founding by personnel turnover. For example, since 2001, when the LLC was first formed and a
group of 3-6 partners started managing the firm, more than a dozen partners and many more
senior investment professionals have come and gone. Every client management and fund
‘management team has turned over more than once, Turnover drives significant operating risk
connected with PCG and, accordingly, is and has always been an issue of central importance to
PCG’s clients and investors.
15. Despite this, Defendants Bower and PCG have repeatedly elected to conceal
relevant and material facts from investors and potential investors. When concealment or denial
has become impossible, Defendants have delayed, then disguised disclosure, in order to induce
investments from parties to whom PCG owed duties of care and loyalty.
16. Defendants have engaged in a continuing course of failing to disclose material
facts to their clients, When Defendants were obligated to apprise their clients of changes in the
named “Key Persons” designated by limited partners or clients as necessary for successful
implementation of a particular strategy, Defendants withheld or altered reported facts and timing
related to changes in roles and responsibilities.
17. During 2006 the entire group of five remaining B members and other key
investment personnel informed Bower of their individual plans to resign. Bower repeatedly
assured clients, including CalPERS, that tumover issues were not a continuing issue for
Defendants . For example, at a due diligence meeting with CalPERS in Sacramento, Bower told
CalPERS! investment staff “that chapter is behind us,” despite the fact that it was clear from
discussions only days before that the current organization was not sustainable. When CalPERS
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was actively considering two separate $500 million commitments to funds managed by PCG and,
concurrently, a direct investment in PCG, Bower offered financial incentives to partners to stay
through finalization of the CalPERS’ investments saying: "just hold it together until they sign—
then you can do what you want”. Bower also insisted that the NY State Common Retirement
Fund not be informed of these material facts until after their investment commitment was
secured.
Conflicts of Interest
18. _ Moreover, Bower repeatedly and systematically undermined the firm’s
investment process and clients by seeking to direct client investments in ways that were intended
to benefit Bower in unrelated activities. In particular, he was inclined to do all within his power
to raise capital for PCG’s Corporate Partners Fund Il, L:P. , in which Bower had a personal
economic interest and incentives significantly greater than those connected with other PCG
activities.
19, Onmultiple occasions, Bower urged Moseley and the PCG staff to alter or
influence the reported valuations of portfolio investments to advance Bowers own interests. In
one case, for example, he pushed to raise the reported valuation of Primus Financial Products $0
he could advertise inaccurate interim returns to clients in order to induce additional capital
commitments from those clients. In these and other documented cases, Defendants elected to
conceal these conflicts of interest from clients.
FIRST CAUSE OF ACTION
For Violations of Business and Professions Code Section 17200 Et. Seq.
(Against all Defendants)
20. Moseley incorporates herein by reference all of the allegations of paragraphs 1
through 19, inclusive, of this Complaint as if fully set forth herein.
21. California Business & Professions Code Section 17200 provides that unfair
competition means and includes “any unlawful, unfair or fraudulent business act or practice and
unfair, deceptive, untrue or misleading advertising.”
22, By and through their conduct, including the conduct detailed above, defendants
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have engaged in activities which constitute unlawful, unfair and fraudulent business practices
prohibited by Business & Professions Code Section 17200 et seq.
23, Beginning at an exact date unknown as yet and continuing up through the
present, defendants have committed acts of unfair competition, including those described above,
by engaging in a pattern of “unlawful” business practices within the meaning of Business &
Professions Code Section 17200, by, for example, falsely and fraudulently accusing departed
members of wrongful conduct, in an effort to avoid required payments to departed members of
PCG. Bower’s practice and business model, through PCG, is to falsely accuse departing and
departed members of wrongful conduct in an effort to negotiate a settlement in the hopes that the
departed member will accept less money than PCG is legally obligated to pay.
24, Beginning at an exact date unknown as yet and continuing up through the
present, defendants have committed acts of unfair competition, including those described above,
prohibited by Business and Professions Code Section 17200 et seg. by engaging in a pattern of
“unfair” business practices that violate the wording and intent of the statutes, by engaging in
practices that are immoral, unethical, oppressive or unscrupulous, the utility (if any) of which
conduct is far outweighed by the harm done to the public and public policy.
25, Beginning at an exact date unknown as yet and continuing up through the
present, defendants have committed acts of unfair competition, including those described above,
prohibited by Business & Professions Code Section 17200 et seq., by engaging in a pattern of
“fraudulent” business practices. Such fraudulent business practices also include, but are not
limited to, the following. Defendants, through Christopher Bower, have engaged in a systematic
scheme of hiding and concealing material facts from clients regarding investment opportunities
which were sponsored by PCG. Once discovered, Defendants’ conduct contributed to the
subsequent resignations of all partners in PCG Asset Management, including Plaintiff. In
addition, Defendants, through Bower, have made a practice of misleading key PCG clients
regarding staff size and tumover of PCG personnel, all in an effort to influence investment
decisions in favor of PCG. Moreover, Defendants, through Bower, have fraudulently concealed
Bowers’ interactions and relationships with various placement agents and intermediaries;
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fraudulently concealed Bowers’ interactions and relationships with current and former CalPERS
board members including Alfred J. Villalobos; and denied and/or concealed the existence of
material conflicts of interest. Defendants, through Bower, have used such acts to influence
investment valuations and investment decisions, in order to advance the personal interests of
Bower and certain unregistered placement agents in contravention of PCG’s fiduciary
obligations. Defendants have also violated the wording and intent of the statutes, by
promulgating statements, receipts and advertising which are unfair, deceptive, untrue and
misleading in that members of the public are likely to be deceived.
26. The unlawful, unfair and fraudulent business practices of defendants set forth
above present a continuing threat to members of the public in that defendants continue to engage
in the conduct described above.
27. Such acts and-omissions are unlawful and/or unfair and/or fraudulent and/or
deceptive and/or misleading and/or untrue and constitute a violation of Business & Professions
Code Section 17200 et seq. Plaintiff reserves the right to identify additional violations by
defendants as may be established through discovery.
28. Asa direct and legal result of defendants’ unlawful, unfair and fraudulent
conduct described above, Moseley has been injured, harmed and damaged, and defendants have
been and continue to be unjustly enriched with ill-gotten gains.
SECOND CAUSE OF ACTION
Breach of Contract
(Against Defendant PCG and Does 1-10)
29. Moseley incorporates herein by reference all of the allegations of paragraphs 1
through 28, inclusive, of this Complaint as if fully set forth herein,
30. As set forth in more detail above, Moseley and PCG entered into written
agreements through which PCG agreed to pay Moseley certain monies upon Moseley’s
withdrawal from PCG. Moseley and PCG entered into such agreements in exchange for valuable
consideration. Through such agreements PCG agreed to pay Moseley for the repurchase of
Moseley’s membership interest in PCG, PCG further agreed to pay and/or release the proceeds
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of certain accounts held in Moseley’s name to Moseley, and that PCG would make other pending
distributions to Moseley, among other obligations.
31. Moseley has fully performed all of his obligations to be performed under the
terms of the agreements.
32, PCG has materially breached the agreements by failing and refusing to pay
Moseley the amounts owed to him relating to Moseley’s Capital account, bank accounts held in
Moseley’s name, and the other pending distributions which are owed by PCG to Moseley.
33. As aproximate result of the wrongful conduct alleged above, Moseley has
sustained and will continue to sustain damages in an amount in excess of the jurisdiction limit of
this Court, and in an amount to be proven at trial.
‘THIRD CAUSE OF ACTION
Breach of the Covenant Of Good Faith and Fair Dealing
(Against all Defendants)
34. Moseley incorporates herein by reference all of the allegations of paragraphs 1
through 33, inclusive, of this Complaint as if fully set forth herein,
35. There is a covenant of good faith and fair dealing implied into every contract and
this implied covenant requires each contracting party to refrain from doing anything to injure the
right of the other to receive the benefits of the agreement.
36. Defendants Bower, PCG and Does 1-10 breached the covenant, by falsely
promising that Moseley would receive the benefits due him under the agreements and
subsequently reneging on such promises in an effort by Defendants, and each of them, to
convince Moseley to accept less than the full amount due him under the terms of the agreements,
and by engaging in the conduct described above.
37. As aproximate result of the wrongful conduct alleged above, Moseley has
sustained and will continue to sustain damages in an amount in excess of the jurisdiction limit of
this Court, and in an amount to be proven at trial.
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FOURTH CAUSE OF ACTION
For Unjust Enrichment
(Against all Defendants)
38. _ Moseley incorporates herein by reference all of the allegations of paragraphs 1
through 37, inclusive, of this Complaint as if fully set forth herein.
39. Defendants have knowingly withheld and have received the benefit of retaining
monies which are due to Moseley, which benefits have been unjustly retained by Defendants.
40. Defendants have engaged in unfair and inequitable acts and practices to Moseley’s
detriment and injury. Such acts by Defendants include willful breach of contract, willful breach
of the covenant of good faith and fair dealing, and violations of Business & Professions Code
Section 17200 et seq., and unfair competition.
41. Defendants have retained the benefits of their unfair conduct, while Moseley has
suffered the detriment of Defendants’ acts. It would be unjust for Defendants to retain their
profits, and such an outcome would result in Defendants’ being unjustly enriched. Moseley is
entitled to restitution, disgorgement of Defendants' profit, and other equitable relief.
EIETH CAUSE OF ACTION
Declaratory Relief
(Against all Defendants)
42. Moseley incorporates herein by reference all of the allegations of paragraphs 1
through 41, inclusive, of this Complaint as if fully set forth herein.
49. A true and genuine dispute has arisen and an actual controversy exists between
Moseley and Defendants, and each of them, concerning their respective rights, duties and
obligations under the subject agreement or agreements, in that Moseley believes that Defendants
have a legal obligation to pay Moseley the amounts owed to him relating to Moseley’s Capital
account, bank accounts held in Moseley’s name, and other pending distributions, Defendants
claim that no monies are owed to Moseley by them, either at present or in the future, and
Moseley claims the opposite. Moseley has further demanded that he be defended and
indemnified by Defendants for and against claims asserted by Defendants for disgorgement of
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monies received by Moseley since his resignation from PCG, and Defendants have failed and
refused to defend and indemnify Moseley pursuant to that demand,
50. Therefore, Moseley herein requests from the Court a declaration of the rights,
duties, obligations and liabilities between Moseley and Defendants, and each of them.
SIXTH CAUSE OF ACTION
Express Indemnity
(Against Defendants PCG and Does 1-10)
51. Moseley incorporates herein by reference all of the allegations of paragraphs 1
through 50, inclusive, of this Complaint as if fully set forth herein,
52, The Agreement provided, in pertinent part, that “The Company shall indemnify,
defend and hold harmless...each of the Members, Directors and officers (if any) of the Company
for any and all liabilities and expenses arising from such Person’s involvement or employment
with the Company...” By the terms of the Agreement, Moseley was a Member and Director of
the Company.
53. Onor about December 30, 2009, PCG demanded in writing that Moseley disgorge
all sums distributed to him by PCG since his resignation from PCG in or about September 2006,
and thereby made a claim against Moseley.
54. On or about January 11, 2010, Moseley demanded in writing that Defendants
provide a defense and indemnification for and against the claim asserted by PCG on or about
December 30, 2009. Defendants have failed and have refused to respond to this tender, and
have failed and refused to defend and indemnify Moseley as required by the Agreement.
55. Moseley has duly performed all obligations required of him under the Agreement
referred to herein above.
56. Moseley has been required to retain and has retained legal counsel to defend him
against the aforementioned claim, and has incurred, and will continue to incur, expenses for
investigation, legal costs and legal fees herein, the full amount of which have not yet been
ascertained, said costs and fees will have been directly and proximately caused by the conduct of
all Defendants and each of them, and Moseley is entitled to reimbursement from Defendants for
10.
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all costs and fees in an amount to be ascertained in accordance with proof.
PRAYER FOR RELIEF
WHEREFORE, Moseley prays for relief and judgment against defendants, and each of
them, as follows:
1. For injunctive and declaratory relief declaring that defendants have violated the
provisions of California Business & Professions Code Section 17200 et seq.
2. For an Order preliminarily and permanently enjoining defendants, their
subsidiaries, affiliates, and their successors, agents, officers, directors, employees, and all
[persons, acting in concert with them, directly or indirectly, from engaging in conduct in violation
jof Business & Professions Code Section 17200 et seq.
3. For restitution and disgorgement of monies obtained by Defendants;
4, Fora judicial declaration that Defendants have a legal obligation to pay monetary
compensation to Moseley pursuant to the terms of the parties’ agreements, and each of them, and
further, that Moseley is entitled to be defended and indemnified by Defendants for and against
the claim for disgorgement made by Defendant PCG.
5. For monetary damages and remedies based on the Defendants’ breach of contract,
land breach of the covenant of good faith and fair dealing, in an amount according to proof;
6. Foradefense and indemnification from and against any and all claims, losses,
damages, attorneys’ fees, judgments and settlement expenses incurred or to be incurred by
Moseley by reason of the claim or claims asserted by Defendants on or about December 30,
2009;
7. Forcosts and attorneys’ fees incurred herein;
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8. For prejudgment interest; and
9. Forsuch other relief as the court deems just and proper.
GORDON & REES LLP
Dated: April 9, 2010
Attomeys for Plaintiff
Stephen Moseley
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
Please take notice that plaintiff Stephen Moseley hereby demands trial by jury in this
action,
Dated: April 9, 2010 GORDON & REES LLP
By: Z ee
MI Scully
Thomas J. Stoddard
Attorneys for Plaintiff
Stephen Moseley
ars
FIRST AMENDED COMPLAINT