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1 Lee Sacks (SBN 59029)
2 Law Offices of Lee Sacks
A Professional Corporation
3 21560 Winding Way
Malibu, California 90265
4 Telephone: (310) 451-3113
5 Facsimile: (310) 451-0089
sacksaQ£law@aol.com
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7 Attorney for Plaintiff
INFINITY PICTURES, LLC
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

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COUNTY OF LOS ANGELES

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13 INFINITY PICTURES, LLC, a California ) Case No. ee~58440
14 Limited Liability Company, )
~ COMPLAINT FOR:
15 Plaintiff,
vs. ) 1. BREACH OF ORAL CONTRACT
16 ) 2. BREACH OF IMPLIED
17 NICHOLAS JARECKI, an individual; and ) COVENANT OF GOOD FAITH
DOES 1-10, Inclusive, ) AND FAIR DEALING
18 ) 3. PROMISSORY ESTOPPEL
Defendants. ) 4. INTENTIONAL
19 ) MISREPRESENTATION;
20 ) 5. NEGLIGENT
) MISREPRESENTATION
21 ) 6. INJUNCTIVE RELIEF; AND
7. DECLARATORY RELIEF 22

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Infinity Pictures, LLC ("Plaintiff and/or "Producer") is a limited liability ~ ~ £ 2

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business office located at 15 J 7 N. Orange Grove A venue, Los Angeles, California. Plaintiff and? !i c::o .;::

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PLAINTIFF. as and for its Complaint against Defendants, alleges the following:

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PARTIES

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company organized and existing under the laws of the State of California with its principaf

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Complaint

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its affiliates have produced over 24 feature films and are well respected in the entertainment

industry. Plaintiff and its affiliates' pictures have received numerous accolades and awards,

including a Golden Globe and Academy Award. At all times referenced herein, it was agreed by

and between Plaintiff and Defendant Nicholas Jarecki ("Jarecki") that Plaintiff was to have an

option to acquire the rights to produce the screenplay ("Screenplay") currently entitled "Arbitrage" as a motion picture (the "Picture"), including all ancillary and subsidiary rights

("Rights") associated therewith.

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2.

Defendant Jarecki is an individual who resides at 7562 Woodrow Wilson Drive,

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Los Angeles, California 90046 and is the owner of the Screenplay, subject to the rights of

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Plaintiff therein. Defendant Jarecki is an aspiring screenwriter and is seeking to make his

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directorial debut with the Picture.

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3. At all times referenced herein, the Defendants reside, and the negotiations by and

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between Plaintiff and Jarecki were conducted, in Los Angeles County, which is the proper venue

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for this litigation.

4. The true names and capacities, whether individual, corporate, associate 0

otherwise, of Defendants DOES 1 through 10, inclusive, are unknown to Plaintiff, who therefo sues said Defendants by such fictitious names. Plaintiff will seek leave of Court to amend thi Complaint to show their true names and capacities, when the same have been ascertained.

5. Plaintiff is informed and believes, and thereon alleges, that each of the Defendant

designated herein as a DOES is tortiously and legally responsible in some manner for the even and happenings herein referred to, and for the injuries and damages proximately caused thereb to Plaintiff.

6. At all times mentioned herein. each of the Defendants was an agent, servant an

employee of the remaining Defendants. acting within the time, purpose. scope and course of sai agency and employment, and acting with the express and implied knowledge, permission an

Complaint

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consent of the remaining Defendants, and each of them. Further, each of said Defendants ha knowledge of, ratified, approved and affirmed the acts of the remaining Defendants, and each 0 them.

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Plaintiff is informed and believes, and thereon alleges that, the Defendants, an

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each of them, participated in, had knowledge, ratified, approved and adopted the conspiracy t

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commit the acts alleged herein with the intent and purpose to cause Plaintiff the injuries an

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damages as alleged herein.

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FACTUAL BACKGROUND APPLICABLE TO ALL CAUSES OF ACTION

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8.

Commencing in and about October 2009, and continuing for a period of at least

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fourteen (14) months, Plaintiff, including Kevin Turen, then President and Director of

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Development and Production for Infinity Media, Jnc. (an affiJiate of Plaintiff) and who was

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officed at Plaintiff's production office and received compensation from Plaintiff, provided

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customary development and production activities, including, without limitation, providing

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substantive notes and suggestions to the Screenplay for the Picture, arranging meetings with, and

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making offers to, proposed cast members and/or their agents, preparing or reviewing budgets,

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executing a written agreement with a casting director, reviewing and negotiating the terms of a

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sales agency agreement. reviewing and discussing foreign pre-sales estimates and offers and

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preparing financing structures ("Development Activities") and expending in excess of$40,OOO in

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connection with the Development Activities.

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9. On or about June 9, 20 I 0, Linda Lichter, counsel for Defendant Jarecki

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("Lichter") transmitted an email to Travis Mann, counsel for Plaintiff ("Mann"), setting forth the

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tenus discussed and agreed upon between Ohoven, the Managing Member of Plaintiff

("Ohoven"), and Defendant Jarecki concerning an option to acquire the Rights. A copy of the

June 9, 2010 email is attached hereto as Exhibit "An and incorporated herein by this reference.

Complaint

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When Defendant Jarecki agreed. to grant the Rights to Plaintiff in June 2010, no other producer

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or financial entity was interested in producing or financing the Picture as later acknowledged by

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Defendant Jarecki in October 2010.

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On or about June 22,2010, Plaintiff provided Defendant Jarecki with a standard

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Option Agreement to acquire the Rights. which incorporated the initial terms orally agreed upon

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between Plaintiff and Defendant Jarecki. as referenced in Exhibit "A" and a Directing

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Agreement. A copy of the Option Agreement and Directing Agreement are attached hereto as

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Exhibits "B" and "C", respectively and incorporated herein by this reference. At no time during

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the negotiations concerning the terms of the Option Agreement was there any condition or

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requirement that principal photography for the Picture occur in New York. until Defendant

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Jarecki used that alleged requirement as his reason to terminate the negotiations with Plaintiff in

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bad faith.

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Upon receipt of the Option Agreement, Defendant Jarecki wrote an email on June

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23.2010 to Ohoven wherein he stated "[I] want you to know that I am 100pet conunitted to

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achieving this film in whatever financial reality is necessary and feasible." Defendant Jarecki

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further added that "[O]n another note, I just received the draft option agreements from Travis an

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I was enormously pleased that upon first glance they looked to fully represent our conversation

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in your office, and be agreeable in areas we did not even have time to fully cover! You are

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direct, precise, and straightforward - and you impress me at each tum. I hope to deliver at the

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same level for you." Unfortunately, as hereinafter alleged, Defendant Jarecki did not deliver at

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the same level as Plaintiff. A copy of the June 23, 2010 email is attached hereto as Exhibit "0"

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and incorporated herein by this reference.

Complaint

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Complaint

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In reliance upon the oral agreement between Plaintiff and Defendant Jarecki, and

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in furtherance of its Development Activities, Plaintiff prepared and transmitted an offer Jetter to

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Rachel Weisz, clo her agent, Creative Artist Agency ("CAA"), to playa starring role in the

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Picture. Defendant Jarecki was not only copied on the letter, but a personal letter dated July 7,

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from Defendant Jarecki to Ms. Weisz was enclosed with the offer letter wherein he states that

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"[M]y producing partner and financier Michael Oboven (who produced and financed the

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excellent 'Capote: and also yours and Jamie Foley's 'Confidence'!) is ready to begin production

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immediately." A copy of Defendant Jarecki's letter to Ms. Weisz is attached hereto as Exhibit

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"E" and incorporated herein by this reference.

12 13. On or about July 9,2010, Defendant Jarecki was advised that Parlay, a highly

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regarded sales agent, was asked to, and agreed to, obtain pre-sales estimates for the Picture.

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14. On or about July 12,2010, and in furtherance of its Development Activities,

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Plaintiff commenced negotiations with counsel for Robert Salerno, who was to be engaged as a

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producer on the Picture and for the services of another well known actress through her agent at

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CAA. Defendant Jarecki was advised and approved of these negotiations.

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On or about July 23, 2010, Plaintiff began discussions with Parlay to represent the

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Picture in connection with generating pre-sales to help finance the Picture. On July 23, 2010,

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Defendant Jarecki wrote an email to Ohoven and others wherein he stated "[Ljet's find a realistic

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finance structure and get moving to make October! ... I will get the cast and locations and make

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the movie at the right price. And probably cut my own fee to such embarrassing levels my

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trustees will have me committed." A copy of the July 23,2010 email is attached hereto as

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Exhibit "F" and incorporated herein by this reference.

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16. On orabout July 24,2010. in a response to an inquiry from a potential financial

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investor for the Picture, Ohoveo sent an email to Defendant Jarecki wherein he states "[Ijnfinity

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owns the rights until octJnov, correct?" to which Defendant Jarecki replied on the same day

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"[T]hat was where we left off. Best, N." A copy of these emails are attached hereto as Exhibit

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"G" and incorporated herein by this reference.

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On or about July 24, 2010, in response to an email from a prospective financial

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investor for the Picture to Defendant Jarecki which requested a response "as to who possesses

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the rights at this moment? You or Michael!' Mann replied "Infinity controls the rights."

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Defendant Jarecki was sent a copy of the Mann email to the investor and did not object. A copy

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of the July 24, 2010 emails are attached hereto as Exhibit ''H'' and incorporated herein by this

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reference.

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18. On or about August 2. 2010, Defendant Jarecki was asked to. and did, participate

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in casting decisions for the Picture.

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On or about August 3, 2010, Plaintiff entered into a written agreement with Laura

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Rosenthal, a well known casting director, and agreed to, and did pay Ms. Rosenthal, the initial

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sum of$2.500. Defendant Jarecki was advised of, and approved. the retention of and payment to

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Ms. Rosenthal.

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On or about September 30.2010, Ohoven received from, and transmitted to

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Again, on or about September 30,2010. Ohoven received from; and transmitted t

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Defendant Jarecki. the proposed Sales Agency Agreement and authorized Plaintiff's counsel to

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commence the review of, and the negotiations for, the Sales Agency Agreement with Defendant

Jarecki's approval.

Complaint

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On or about October 2, 2010, Ohoven transmitted to potential investors, with a

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copy to Defendant Jarecki, an email which suggests that "1 O.3MM is a good current target"

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budget for tbe Picture without objection from Defendant Jarecki. Again, there was no statement

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that principal photography for the Picture would be filmed in New York.

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On or about October 21, 20 1 O~ Mann provided a redlined draft of the Sales

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Agency Agreement to Parlay, with a copy to Messrs. Ohoven, Jarecki and Turen, which provid

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that "[I]nfioity Films. LLC" is the ("Producer") and that the "[p]roducer bas the right, power and

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authority to grant to Agent all of the rights granted under this Agreement and agreed to be

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granted to Agent. Plaintiff owns or controls all the necessary rights in and to the Picture and the

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underlying material." (Paragraph 1 I (b) of the Sales Agency Agreement.) Defendant Jarecki did

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not object to the language set forth in the Sales Agency Agreement.

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24. On or about October 22,2010, Mann transmitted an email to the sales agent, with

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a copy to Messrs. Ohoven, Jarecki and Turen, which stated that "this email will confirm that you

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are authorized to send out the Arbitrage screenplay to prospective buyers. We are pleased to

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move forward with you on this exciting project"

25. On or about October 22, 2010, Defendant Jarecki transmitted an email to Ohoven

wherein he authorized Plaintiff and the sales agent to send the screenplay "to anyone you like

now" and "for you to hold discussions with them. We'll find our way."

26. On October 22,2010, approximately four (4) months after the initial Option

Agreement was sent to Defendant Jarecki, and during which time Plaintiff bad engaged in

significant Development Activities, including executing a written agreement with a casting

agent, sending the script to, and negotiating with, potential stars and their agents, reviewing and

negotiating drafts of agreements with Parlay, reviewing and preparing budgets and financing

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structures and corresponding with potential financing partners, Ohoven transmitted an email to

Defendant Jarecki wherein he stated "[Pjlease confirm as well that per our handshake rights

agreement it's okay as well for Infinity to enter into SAA with parlay [the sales agent with whom

Plaintiff had been negotiating]." On that same day, Defendant Jarecki responds to Ohoven by

stating "[Ijm happy for Infinity to do the saa [Sales Agency Agreement] with parlay and I

authorize parlay to rep the script for afm. . .. We should probably start putting together some

real terms going forward with travis and linda but for now this is fine. We will not have a

problem. Nick." A copy of these emails are attached hereto as Exhibit "I" and incorporated

herein by this reference.

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On October 23,2010, Defendant Jarecki wrote an email to Ohoven asking him to

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write "Jeff [Berg, agent for Al Pacino] and tell him you can and will pay for the film. Exactly

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how you do this I'm not sure ... ,n Defendant Jarecki ended the email by stating "As always-

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we're in it together. Love Nick," A copy of this email is attached hereto as Exhibit "J" and

incorporated herein by this reference,

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In response to the October 23,2010 email, Ohoven wrote to Defendant Jarecki

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and stated "I will do everything to make this work. I will discuss monday morning with Andrew

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[Andrew Mann, financial consultant to Plaintiff], .. how we will get there. it might not be pretty



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at the end because we might have to get the budget even further down but at least we would

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know we would have a movie." To which Defendant Jarecki replied "Thank you, Michael." A

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copy of the October 23. 2010 email is attached hereto as Exhibit "K" and incorporated herein by

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this reference.

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29. On October 25, 20] 0, as promised, Ohoven wrote to Jeff Berg and stated '<Further

to our conversation, I want to confirm and outline the financing structure for Arbitrage: Infinity

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is committed for 2m in equity and we have the ability to cashflow an additional 2m against tax

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credits .. " Please explain to Al that the equity and tax component is in place." A copy of this

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email was sent to Defendant Jarecki and is attached hereto as Exhibit "V' and incorporated

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herein by this reference.

30. On October 25, 2010, Mann transmitted to Lichter a revised, updated Option

Agreement and advised her that "[ A]s Nick is aware, Infinity has been moving forward with Jeff

Berg to get a finn commitment from AI Pacino, as well as entering into a Sales Agency

Agreement with GK Films' Parlay label so Lisa Wilson can sell the project at AFM. As such we

need to get the written Option Agreement signed." The revised Option Agreement, which was

sent to Lichter, provided for the Option Period to extend through April 30, 2011. A copy of the

email and revised Option Agreement are attached hereto as Exhibit "M" and incorporated herein

by this reference.

31. Again, on October 25, 2010, Ohoven wrote to Lichter asking her to "confirm that

we have the rights until May"; that "[I]fI make an equity commitment of this nature, I need to

know that I am in control of the project and can determine the financials"; that "[W]e will

negotiate producing and directing deal for Nick in good faith. And, Yes, we do have a WGA

company as well." Lichter responded "[L]et me doublecheck with nick on the time period and

terms .... I'm sure you will have the rights you need, you don't need to worry, we will figure it

out. ,. On that same day, Defendant Jarecki responded to Lichter and Ohoven "whatever it is the

month of may feels a little far off - feb 15 would feel less like I have to think about anything."

A copy of the emails are attached hereto as Exhibit UN" and incorporated herein by this

reference. Neither Lichter or Defendant Jarecki made any other comment to the terms of the

Complaint

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Option Agreement or screenplay, or suggested that Defendant Jarecki would only agree to a one

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picture license, or in any way limit the Rights Plaintiff was to be granted.

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32. On October 25, 20 10, Lichter also wrote to Mann stating "[I1ravis I will look this

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over (referring to the Option Agreement), but we also need the material terms of the directing

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and producing agreements to be agreed before we sign off on the option", clearly implying the

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terms of the Option Agreement had been agreed upon. A copy of the email is attached hereto as

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Exhibit "0" and incorporated herein by this reference.

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33. On or about October 25, 2010, Defendant Jarecki wrote to Lichter. Ohoven and

Mann an email wherein he states "[H]I Guys - This [referring to the Option Agreement] looks

fme in principal, I see a few notes [brackets omitted]. but mostly minor stuff. I think Linda's

right that we need to sort out some master terms to govern what happens when we elect to

proceed (if I recall travis and linda sorted out most of that a couple months ago, so we know we

are all on the same page already .... )" "I will work tomorrow with Linda to get into specifics re

guild issues, length and timeliness and move quickly to provide you comfort. I don't see why w

couldn't get you something pretty quickly, even ifit's a MOU with some blanks to fill in later."

A copy of the email is attached hereto as Exhibit "P" and incorporated herein by this reference.

Again. no mention of limiting the Rights granted to Plaintiff as defined in the Option Agreement.

34. On that same day, Mann sent Lichter a copy of the Directors Agreement

originally sent to her in June (the material terms of which were agreed upon in June),

35. On October 26, 20 I O. Defendant Jarecki wrote to Ohoven stating: "Michael, on

again- I want to thank you for this. You believed in me when nobody else did (barely anybody

does now still!) and it will be a pleasure to see this film come to life with you. Thank you for

being there, for having faith in Arbitrage. for being bold and getting the job done. It's so rare in

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Complaint

los angeles, in movies-in any walk of life I've investigated - for people to see things all the

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way through - not to 'come close,' but to actually make it all the way to the finish line and

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win-and your friendship and your hard work and leadership are taking us where we need to go.

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I will do my best to keep up on this side :). Passing out. Nick." As Defendant Jarecki

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acknowledged in Exhibit "Q", no one except Plaintiff and Ohoven believed in Defendant Jarecki

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or the Picture. Defendant Jarecki used the representations of Plaintiff and Ohoven and Plaintiff's

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agreement to finance the Picture to provide Defendant Jarecki and the Picture with the cloak of

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credibility. Unfortunately, Defendant Jarecki did not keep us his side. A copy of this email is

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attached hereto as Exhibit "Q" and incorporated herein by this reference.

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36.

On October 28, 20 I 0 Mann sent an email to Defendant Jarecki and Lichter

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inquiring as to when he would receive a response to the Option and Director Agreements.

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Also, on October 28, 2010. Mann wrote to the attorney for the sales agent with respect to

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Plaintiff's representations and warranties in the Sales Agency Agreement confirming that

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"[W]ith an option, we don't yet own, we just control and have the right to enter into the Sales

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Agency Agreement," a representation relied upon by the sales agent in negotiating sales

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agreements with prospective buyers in the name of Plaintiff.

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37. On October 29,2010. Ohoven prepared a back up offer to the agent for Richard

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Gere (in the event Al Pacino was unable to do the Picture), which was also to enclose a personal

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letter to Mr. Gere from Defendant Jarecki. offering the lead role to Mr. Gere and confirming that

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two other stars are attached. A copy of the offer letter is attached hereto as Exhibit "R" and

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incorporated herein by this reference. When Defendant Jarecki was told that a copy of the script

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had been sent to Mr. Gere, Defendant Jarecki replied, on October 29,2010. "This is great! Good

work Kevin [Turen]."

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Complaint

38.

On October 29.2010, Ohoven wrote to Jeff Berg, Al Pacino's agent confirming

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that he told the sales agent "she can tell her buyers that Al [pacino} is in and that she can put his

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name up in her suite if she needs to at the AFM representing the Picture as [Plaintiff's] sales

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agent." On the same day, Defendant Jarecki wrote an email to Jeff Berg confirming "It was

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exhilarating to hear from Michael that Al Pacino has committed to star in 'Arbitrage' for a

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payment from Infinity. . .. All sales decisions will be made by Infinity Media and Lisa Wilson."

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In those emails there is no mention of shooting the Picture in New York.

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On October 29, 2010. the sales agent sent the last set of foreign sales estimates to

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Ohoven asking him to approve. Ohoven asked Defendant Jarecki to approve the foreign sales

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estimates for the Picture and advised that those numbers would "still leave us a whole [sic] in the

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financing structure as it is." That very same day, Ohoven wrote to Defendant Jarecki and Lichte

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stating that "[Yjou, God and Lichter make sure though we don't have problems with the rights

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now. You know I have gone far beyond here for you and I am making a lot of big

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representations for our movie here. So I really don't want to have problems with options now at

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the end of this," To which Defendant Jarecki responded "Yes". A copy of the email is attached

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hereto as Exhibit "S" and incorporated herein by this reference.

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40. On October 29,2010, Defendant Jarecki wrote to Ohoven and stated "whoah!!!

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Michael awesome work!" He also confirmed to Lisa Wilson for the press release that the

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"Producers are Michael Ohoven, Kevin Turen and Robert Salerno."

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On October 30,2010, Ohoven informed Defendant Jarecki that Plaintiffhas

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retained IeM (Mr. Pacino's talent agency) to act as the North American sales agent for the

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42.

Also on October 30,2010, Defendant Jarecki wrote to Ohoven and stated: "We

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are a great team. I loved you today- I loved Us- we had to be willing to say no- you stood right

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there and said-no- jeff you do not control my destiny-l do- and it worked. I haven't felt better

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honestly in over a year. We took back control- and we made a great deal that we will all really

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benefit from, even if we had to drag them over the line-that's what it took. and we made it

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happen. The bonus is that AI is a really fantastic actor who now will deliver big for us in return.

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I'm over the moon. Thanks for being my friend. It makes the win so much sweeter. Best to

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Joyce and glad to hear she's feeling better. Nick." A copy of this email is attached hereto as

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Exhibit "TOO and incorporated herein by this reference.

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43.

For the next several days, Ohoven, Lisa Wilson and Defendant Jarecki

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participated in numerous casting discussions.

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44. On November 1.2010. Lichter wrote to Mann that "we are all proceeding on a

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good faith basis .... I'll send you a note today with the basic terms, which I think have been

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substantially agreed."

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45.

On November I, 2010. Mann wrote an email to Defendant Jarecki and Lichter

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stating "we need to close the rights deal urgently. Infinity is proceeding in reliance on the

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agreement I sent." On the same day Defendant Jarecki, in response to an email from Lichter

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which stated do not "rely", wrote to Ohoven regarding the Option Agreement that "nothing has

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changed. You can rely on what I have told you and written you. Our two lawyers need to work

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together on the paperwork and I made clear to Linda this morning that she needed to do this with

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Travis and she said she would asap. Let's not let lawyers interfere with us .... I trust you and I

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feel that you trust me." A copy of the November 1,2010 email is attached hereto as Exhibit "U"

and incorporated herein by this reference.

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Complaint

46.

Finally, on November I, 2010, five (5) months after the original Option

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Agreement was sent to Lichter. Lichter sent an email to Mann wherein she states "[Tjravis, J

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understand from nick that everyone has be [sic] operating on a handshake .... " "[I]in any event.

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here's what the parties have agreed to extent discussed and a few other salient issues." Lichter

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then listed all of the issues agreed upon. including that "the budget will not be less than $8M and

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will not have less than 25 shooting days," which confirmed the terms of the oral agreement

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between Plaintiff and Defendant Jarecki. There was no mention of a requirement that the Picture

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be shot in New York or in any way limiting the Rights to granted to Plaintiff. A copy of this

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email is attached hereto as Exhibit "V' and incorporated herein by this reference.

12 47. That day, Mann then responded as follows: "We have a WGA company so that's

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not a problem .... The option fee would be $4,500. . .. We would need for the option to be at

least a year. I'U go through your other points below with MichaeL 1 believe they're the same as

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what was agreed several months ago." Those terms set forth in Exhibit "W" were acceptable to

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Plaintiff.

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48.

On or about November 2,2010, the first day of the American Film Market, an

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article appeared on the cover of Daily Variety, headlined "AI Pacino heads for 'Arbitrage'",

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which stated that Michael Ohoven ("Capote") is producing and financing through his Infinity

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Media banner, which was approved by Defendant Jarecki. The article is attached hereto as

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Exhibit "X" and incorporated herein by this reference.

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49.

On November 3,2010. Mann forwarded a revised Option Agreement, Director

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Agreement and a new Producer Agreement setting forth the agreed upon terms to Lichter. A

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copy of the email, dated November 3, 2010 and the revised Option Agreement, Director

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Complaint

Agreement and Producer Agreement are attached hereto as Exhibit "Y" and incorporated herein

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by this reference.

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50.

On November 7, 2010, the sales agent sent Ohoven the new sales figures and

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stated "All close to ask and Lat Am, CIS, Scandi, Eastern Europe. Turkey, Middle East, Iceland,

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India, France, Taiwan closed with offers incoming from Benelux, Italy and Germany. Interest in

7

Spain. Also Sony hovering." Ohoven sent the email to Defendant Jarecki to which he respond

B

"yeah!!" On November 8, 2010, Ohoven advised Defendant Jarecki that he "accepted the Spain

9

deal as well."

10

11

51.

On November) 1, 2010, for the very first time, and five (5) months after the first

12

Option Agreement was sent to her, and contrary to Lichter's language set forth in Exhibit "V"

13

that "[N]ick will grant an option until april 1 of next year for the appropriate scale option

14

payment plus 200/0", Lichter suggested that the Option Agreement provide for a one picture

15

16

license with the subsidiary rights to be frozen. A copy of the Option Agreement with Lichter's

17

handwritten comments is attached hereto as Exhibit "Z" and incorporated herein by this

18

reference.

19

52. On November 11, 20 I 0, Robert Salerno informed Defendant Jarecki that a

20

company called Stargate had developed a system called Virtual Backlot which would have

21

22

enabled Plaintiff to create any location, even New York, on stage for the Picture. Defendant

23

Jarecki infonned Oboven, Kevin Turen and others that it was "Insanely Amazing", but did not

24

indicate any interest in evaluating the system or the cost in connection with the Picture.

25

53. On November 17,2010, Mann provided revised Option and Director Agreements.

26

iII:I again, essentially agreeing to Lichter's changes except for the one picture license which had

i:,;.l 27

"i

III

~ 28 never been previously raised or discussed.

HI

i-:'o

- 15 -

~ 27

.., 28 ""

...

1

- 16 -

54.

On November 18, 2010, Lichter informed Mann of new and different demands

2

from Defendant Jarecki, including the following items:

3

(a)

"Nick wants to see the finance plan now, because he thinks not everyone

4

5

is on the same page at present. He wants to make sure we're talking about a $1 0.6M film

6

exclusive offinance costs, i.e., the cash price of the movie is $1O.6M";

7

(b)

"Laura and Brian are EPs and Kevin is Producer";

8

(c) "Not less than 30 shooting days";

9

"Payor play Al and start cash flow by December 15th for prep";

10

(d) (e) (f) (g)

"Must get film by credit".

11

"Can't exercise option unless he's payor playas director";

12

"Must be DGA"; and

13

14

55. On November 18,2010, Oboven sent Defendant Jarecki a copy of an internal

15

16

email wherein be wrote "[T]hat means after all of this, Nick does not even want to give me the

17

rights to the project unless I present him a financing structure with 30 days and 1 0.6? I guess

19

was righ~ that he is going to [expletive] me over .... He lets me make every offer in the book and hang my name out there and now breaks his agreement."

20

56. On November 18,2010, Ohoven wrote an email to Defendant Jarecki stating "you

21

22

and I are discussing for the longest time the budget, including budgets under 10M, so far I am

23

still contemplating financing the entire movie for 10M and more. But I will not have one more

24

phone call about this iff don't have the rights. You are now breaking your word and our

25

agreement." On the same day. Defendant Jarecki responded in an email to Ohoven ·'1 will not let

26

you down." A copy of the email is attached hereto as Exhibit "AA" and incorporated herein by

this reference .

Complaint

1

- 17 -

57.

On November 24, 2010, Defendant Jarecki wrote the following email to Andrew

2

M~ the financial consultant for Plaintiff. ''Nick here. Had a good talk with Michael last night.

3

4

He suggested you and I walk through the finance structure oflouisiana" and "I've asked OUf

5

friend Banks in Louisiana to see what he knows about some locations down there just to get

6

started in the next couple days. . .. J am eager to make everything work .... " Obviously, from

'7

this email, there was no requirement that the entire principal photography be filmed in New

s

York.

9

58.

Again, On November 24,2010, Defendant Jarecki wrote to Andrew Mann "[D]o

10

11 you want me to take a look at the current Louisiana budget and see if! can wrap my head around

12 it? ... Yes, we will get this done somehow."

13

59.

On November 26, 20 I 0, Andrew Mann wrote to Defendant Jarecki and stated " ..

14

. as promised here is the ABL portion of the 10.SM budget. This will give you a good

15

16

understanding of the basis of the assumptions for the new budget. I look forward to your

comments and questions."

18

60.

On December I, 2010, Ohoven wrote to Defendant Jarecki and stated: "We need

19

to move forward urgently. Berg just called again. He wants a payor play. I am prepared giving

20

21

it to him once you and I are clear. But I think every day this delays further, it will cause us

22

problems. Also Carter Cohen [agent for Susan Sarandon] is calling. You know I am still relying

23

on our handshake deal but it is time to get the option signed properly. Per our conversation

24

Infinity will now not only put up the 2m equity as initially discussed but we will finance the

25

entire movie with no less than 10m budget. . .. And I will defer my fees as you will yours. Just

26

to show you how much I believe in you and want to make your first movie happen: the above

means that instead of me taking the offered 3m ... and making a fee within the budget, I am

Complaint

1

- 16 -

going to put up my money instead and won't take my fee. This is approximately 3.5miIlion or

2

more worth oflove :) tell me who else give you love like this! AU of this at this budget only

3

4

works right now if we do it in a better soft money environment than New York. The previous

5

financing plan shooting in NY only simply does not make sense. You have seen not even for

6

[name omitted] it made any sense and we know he needs a pic like this badly. The foreign sales

7

and tax credits simply don't justify the budget. I am trying to give you enough money and days

a

to make a great movie. Of course we will do the exterior in NY so we won't compromise the

9

10

look and feel of the picture. Of course I won't force you to do the movie in Louisiana. In the

11

event it doesn't work creatively for you or for AI we will together explore other avenues and

12

worse case make the movie for less in NY. In any event, I need you to formalize the option

13

today. so at least I am in a position to get back to everybody." A copy of this email is attached

14

hereto as Exhibit «BS" and incorporated herein by this reference.

15

16

61.

On December 2. 20) O. Ohoven wrote to Defendant Jarecki and stated "[1] only

17

signed on to this project because I believed in you and in the project. I have devoted

1S

considerable resources from my company. including development of the script, sticking my neck

19

out with offers to Al and a sales agency agreement with Lisa Wilson. all without a signed option

20

21

agreement. And contrary to your statement below that I never signed the option agreement, your

22

lawyer insisted at the time that we simply continue with our handshake deal." Ohoven further

23

requested that "[Y]ou [Defendant Jarecki] honor our deal and sign the option agreement

24

properly. With the signed option, I will guarantee that the movie is fully financed with a NY

25

exterior, Louisiana shoot. and 1 will make a payor play to Al immediately and I am prepared to

26

escrow some of his money." Notwithstanding Plaintiff's proposal to "put up the 2m equity" and

"finance the entire movie with no less than 1 Om budget" as outlined in Exhibit "SB" and

Complaint

1

- 19 -

Plaintiffs proposal on December 2. 201O~ Defendant Jarecki, decided not to honor the oral

2

agreement with Plaintiff. Instead, Defendant Jarecki co-opted all of the Development Activities.

3

including the casting director, sales agent, foreign sales agreements, cast and retaining Kevin

5

Turen as a producer. all of which was arranged for and/or negotiated by Plaintiff, for his own

6

benefit and terminated Plaintiff and Ohoven as the Producers of the Picture. It is apparent that

7

Defendant Jarecki used Plaintiffs representations and agreement to fulJy finance the Picture and

8

the Development Activities arranged for by Plaintiff as a "stalking horse" to interest third parties

9

10

in the Picture. Defendant Jarecki did not even have the courtesy to inform Plaintiff and Ohoven

11

personally of his decision to terminate Plaintiff and Ohoven as producers of the Picture.

12

62.

Rather, on or about December 7.2010, Ohoven was informed by third parties, an

13

not by Defendant Jarecki, that Plaintiff and he were no longer involved in the Picture.

14

63. On or about December 9,2010, Lichter informed Plaintiff that Defendant Jarecki

15

16

would not honor the terms of the oral Option Agreement.

17

64.

Plaintiff has been informed that from and after December 9,2010, Defendant

Jarecki has made critical comments about Plaintiff, which are untrue, and which derogate the

19

reputation of Plaintiff in the entertainment community.

20

21

FIRST CAUSE OF ACTION

22

(Breach of Oral Contract Against All Defendants)

23

65.

Plaintiffrea1leges paragraphs 1-64 of this Complaint and incorporates same herei

24

as though fully set forth.

2S

66. For a period of approximately four months. commencing June 2010. Plaintiff and

26

Defendant Jarecki operated under the terms of an oral agreement. the material terms of which

Complaint

1

2

3

4

5

6

7

9

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

were initially agreed upon in June 2010. As a result of the parties' oral understanding and

agreement, Plaintiff engaged in the Development Activities as Producer of the Picture.

67. On or about November 1,2010, Lichter wrote the email, attached hereto as

Exhibit ~'V", wherein she stated that:

(a)

"[Tlravis, I understand from nick that everyone has be [sic] operating on

handshake .... "

(b) "[Ijin any event. here's what the parties have agreed to extent discussed

and a few other salient issues: ...

(i)

"Nick will grant an option until april 1 of next year for the

appropriate wga scale option payment plus 20%.

(ii) "If the film starts production, the rights can be exercised for the

appropriate scale plus 20% with an extra 2.5% of the budget to the extent the

budget is over 9M.

(iii) "Nick will be the director on a pay and play basis for at least 2

weeks, payor play thereafter, with removal only if bond requires.

(iv) "As the director, he will get dga scale plus 200A. (picture to be dga).

(v) "He'll have 2 cutsl2 previews but will be involved after that on a

first opportunity basis.

(vi) "All decisions to be mutual, with creative decisions decided by

nick, business by Michael, except that the budget will not be less than S8M and

will have not less than 25 shooting days.

(vii) "Backend, after thirds. split 50/50. Joint ownership of the picture

itself (both parties own the llc for the picture).

Complaint

- 20 -

16
17
18
19
20
21
22
23
24
25
26
~ 27
...
I'll
'" 29
,
""
"" 1

Complaint

- 21 -

(viii) "Distribution and sales decisions made jointly.

2

(ix) "Film by credit, mfn with any production credits.

3

4

(x)

"Bob salerno approved as line producer, brian young and Laura

5

Bickford as eps, kevin turen as producer.

6

(xi) "Everything else (perks, travel, ancillaries (frozen), premieres, etc.

7

to be discussed in good faith.

8

(xii) "Please let me know if you have any issues with the above.

9

10

(xiii) "Best, Linda."

11

68.

Plaintiff informed Lichter that those material terms were agreeable to Plaintiff,

12

including the term that "Nick will grant an option until Aprill of next year .... " Those tenus

13

were the culmination of many months of trust and operating under the "handshake agreement"

14

between the parties.

15

69. Plaintiff justifiably relied first on the "handshake agreement" and then the oral

agreement as confirmed by Lichter in Exhibit "V" and all the expressions of trust between the

parties in performing the terms of the oral agreement. including the Development Activities,

required of it to be performed, save and except those obligations which were excused.

70. Notwithstanding that the oral option agreement had not been reduced to a written

option agreement executed by the parties. Plaintiff and Defendant Jarecki continued to operate as

if the written option agreement had been executed as described above.

71. On or about December 9, 20 10, Defendant Jarecki, through his counsel. informed

Plaintiff for the first time that he would not honor and perform the terms of the oral agreement.

including granting Plaintiff the option to acquire the Rights to April 1. 2011,

1

- 22 -

72.

Defendant Jarecki's failure and refusal to perform his obligations under the oral

2

agreement and statements he has made to individuals in the entertainment community has

3

4

damaged Plaintiff's reputation in the entertainment community in an amount to be determined at

5

the trial of this action.

6

73.

Further, Defendant Jarecki's failure and refusal to perform his obligations under

7

the oral agreement has caused, and will cause, Plaintiff monetary damages in an amount to be

B

determined at the trial of this action.

9

10

SECOND CAUSE OF ACTION

11 (Breach of Implied Covenant of Good Faith and Fair Dealing Against An Defendants)

12

74.

Plaintiff'realleges paragraphs 1-73 of this Complaint and incorporates same here'

13

as though fully set forth.

14

15

75. There is an implied covenant of good faith and fair dealing in all contracts which

requires the parties to act fairly and in a manner so as not to frustrate the purpose of the contract.

76. For a period of approximately six months. commencing June 2010, Plaintiff and

16

17

18

Defendant Jarecki operated under the terms of a handshake agreement and an oral agreement, the

19

material terms of which were initially agreed upon in June 2010 and confirmed on November I,

20

2010. As a result of the parties' oral understanding and agreement, Plaintiff engaged in the

21

Development Activities as Producer of the Picture

22

23

77. On October 25, 2010. Ohoven wrote to Lichter asking her to "confirm that we

24

have the rights until May"; that "[I]f I make an equity commitment of this nature. I need to know

25

that I am in control of the project and can determine the financials"; that "[W]e will negotiate

26

producing and directing deal for Nick in good faith. And, Yes. we do have a WGA company as

well." Lichter responded "[L]et me doublecheck with nick on the time period and terms ....

I'm sure you will have the rights you need, you don't need to worry, we will figure it out." On

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

that same day. Defendant Jarecki responded to Lichter and Ohoven "whatever it is the month of

may feels a little far off - feb 15 would feel less like I have to think about anything."

78. On November 1, 20] O. Lichter wrote to Mann that "we are all proceeding on a

good faith basis .... I'll send you a note today with the basic terms, which [think have been

substantially agreed."

79. On or about November 1.2010. Lichter wrote the email, attached hereto as

Exhibit "V". wherein she stated that

(a)

"[T]ravis. I understand from nick that everyone has be [sic] operating on

handshake. . .. "

(b)

"[I]in any event, here's what the parties have agreed to extent discussed

and a few other salient issues: ...

(i) "Nick will grant an option until april ] of next year for the

appropriate wga scale option payment plus 20%.

(ii)

"If the film starts production. the rights can be exercised for the

appropriate scale plus 20% with an extra 2.5% of the budget to the extent the

budget is over 9M.

(iii) "Nick will be the director on a pay and play basis for at least 2

weeks, payor play thereafter, with removal only if bond requires.

(iv) "As the director, he will get dga scale plus 20% (picture to be dga).

(v) "He'll have 2 cuts/2 previews but will be involved after that on a

first opportunity basis.

Complaint

- 23 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
s 27
~
'Jl 28
'"
,..
'"' (vi) "All decisions to be mutual, with creative decisions decided by

nick, business by Michael, except that the budget will not be less than S8M and

will have 90t less than 25 shooting days.

(vii) "Backend, after thirds, split 50/50. Joint ownership of the picture

itself (both parties own the llc for the picture).

(viii) "Distribution and sales decisions made jointly.

(ix) "Film by credit, mfn with any production credits.

(x) "Bob salerno approved as line producer, brian young and Laura

Bickford as cps, kevin turen as producer.

(xi) "Everything else (perks, travel, ancillaries (frozen). premieres, etc.

to be discussed in good faith.

(xii) "Please let me know if you have any issues with the above.

(xiii) "Best, Linda."

80. On or about December 9, 2010, Defendant Jarecki, through his counsel, informed

Plaintiff for the first time that he would not honor and perform the terms of the oral agreement,

including granting Plaintiff the option to acquire the Rights to April 1. 2011.

81. The failure of Defendant Jarecki to disclose that he did not intend to, nor had the

ability to, operate under the terms of an oral agreement. the material terms of which were agreed upon in June 2010. constitutes breaches of the implied covenant of good faith and fair dealing of the oral agreement Defendant Jarecki entered into with Plaintiff.

82. As a direct result of Defendant Jarecki's breaches of the implied covenant of good

faith and fair dealing. Plaintiff is damaged in an amount to be determined at the trial of this

action.

Complaint

- 24 -

2

(b)

1

83.

Plaintiff has been forced to retain the services of attorneys to enforce its rights

3

against Defendant Jarecki. and is entitled to recover its reasonable attorneys' fees and costs in connection with this action.

4

5

6

84.

THIRD CAUSE OF ACTION

(Promissory Estoppel Against All Defendants)

Plaintiff real leges paragraphs 1-83 of this Complaint and incorporates same herei

7

a

as though fully set forth.

9

85.

The promises made by Defendant Jarecki during the period June 2010 through, at

10

least, November 2010, to the effect that Plaintiff would produce the Picture was intended to, and

11

12

did in fact, induce Plaintiff to perform all of the Development Activities. Such promises

included:

13

14

(a)

"1 want you to know that r am I OOpct committed to achieving this film in

16

15 whatever financial reality is necessary and feasible" (Exhibit "D");

17

"I just received the draft option agreements from Travis and ... upon first

glance they look to fully represent our conversation in your office, and be agreeable in agreas we

Ie

did not even have time to fully cover" (Exhibit "D");

19

20 (c)
21 off" (Exhibit "N");
22 (d)
23
(e) 24

"Infinity owns the rights until oct/nov, correct? That was where we left

"We'll find our way";

Defendant Jarecki's failure to object to Mann's statement "Infinity

controls the rights" (Exhibit "H");

2S

26

(f)

Ohoven's statement "Please confirm as well that our handshake rights

~ 27 agreements it's okay as well as Infinity enter into saa." Defendant Jarecki responded "[IJ'm I).)

~ 28

I:: happy for Infinity to do the saa ... " "We will not have a problem" (Exhibit "1");

Complaint

- 25 -

17
18
19
20
21
22
23
24
25
26
~ 27
~I
'\
N
~ 29
-,
'"'"
... 1

Complaint

- 26 -

"As always- we're in it together" (Exhibit "1");

(g) (h)

2

"I'm sure you will have the rights you need, you don't need to worry, we

3

will figure it out" (Exhibit ''N'');

4

5

(i)

"This [referring to the Option Agreement] looks fine in principal" (Exhibit

6 "pn);

7

0)

"I don't see why we couldn't get you something pretty quickly, even if it's

B

a MOU with some blanks to fill in later" (Exhibit "P");

9

10

(k)

"You believed in me when nobody else did ... and it will be a pleasure to

11

see this film come to life with you. . .. I will do my best to keep you on this side" (Exhibit "Q");

12

0) "All sales decisions will be made by Infinity Media and Lisa Wilson";

13

(m) "We are a great team. I love you today."

14

(n) " ... nothing has changed. You can rely on what I have told you and

15

16

written you" ("Exhibit "V");

(0) "1 will not let you down";

(P) "[T]ravis, I understand from nick that everyone has be [sic] operating on a

handshake .... " (Exhibit "V")

(q) "[Ijin any event, here's what the parties have agreed to extent discussed

and a few other salient issues: ... (Exhibit "V")

(i) "Nick will grant an option until april 1 of next year for the

appropriate wga scale option payment plus 20%.

(ii) "Ifthe film starts production, the rights can be exercised for the

appropriate scale plus 20% with an extra 2.5% of the budget to the extent the

budget is over 9M.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
~ 27
.....
N
'.0 28
a (iii) "Nick will be the director on a pay and play basis for at least 2

weeks, payor play thereafter, with removal only if bond requires.

(iv) "As the director, he will get dga scale plus 20% (picture to be dga),

(v) "He'll have 2 cuts12 previews but will be involved after that on a

first opportunity basis.

(vi) "All decisions to be mutual, with creative decisions decided by

nick, business by Michael, except that the budget will not be less than $8M and

will have not less than 25 shooting days.

(vii) "Backend, after thirds, split 50/50. Joint ownership of the picture

itself(both parties own the IIc for the picture).

(viii) "Distribution and sales decisions made jointly.

(ix) "Film by credit, mfn with any production credits.

(x) "Bob salerno approved as line producer, brian young and Laura

Bickford as eps, kevin turen as producer.

(xi) "Everything else {perks, travel, ancillaries (frozen), premieres, etc.

to be discussed in good faith."

86. The promises and representations made by Defendant Jarecki and his

representations were clear and unambiguous in their terms that Plaintiff would have the option to

acquire the Rights to produce the Picture. As Plaintiff acknowledged in his October 26. 2010

email to Ohoven, no one, other than Plaintiff and Ohoven believed in the Picture. Defendant

Jarecki used the representations of Plaintiff and Ohoven, and Plaintiff's agreement to finance the

Picture, to provide Defendant Jarecki and the Picture with the cloak of credibility.

Complaint

- 27 -

1

- 28 -

S) whatever financial reality is necessary and feasible" (Exhibit "D");

w 27

"

N

'4

"' 2B

~

87.

The promises and representations made by Defendant Jarecki were intended to,

2

and did in fact, induce Plaintiff to engage in, perform and pay for the Development Activities.

:3

88. Nevertheless, Defendant Jarecki wrongfully breached those promises and

4

5

representations made to Plaintiff.

6

89.

Defendant Jarecki was, at all times herein, aware that Plaintiff actually relied on

7

Defendant Jarecki's promises and representations in performing and paying for the Development

8

Activities and that Plaintiff's reliance was reasonable and foreseeable.

9

90.

As a result of Defendant Jarecki's promises and representations and his breach

10

11

thereof, Plaintiff has been damaged in an amount to be determined at trial of this action.

12

91.

Injustice to Plaintiff can only be avoided by enforcing the promises and

13

representations made by Defendant Jarecki and the oral agreement between the parties

14

particularly since Plaintiff was induced by Defendant Jarecki to seriously change its position in

15

16

reliance upon the promises and representations made by Defendant Jarecki.

17

FOURTH CAUSE OF ACTION

18

(Intentional Misrepresentation Against All Defendants)

19

92.

Plaintiff reaUeges paragraphs 1·91 of this Complaint and incorporates same herei

20

as though fully set forth.

21

22

93.

During the period June 2010 through and including November 2010, Defendant

23

Jarecki and/or his counsel intentionally and falsely made the following misrepresentations to

24

Plaintiff in Los Angeles. California:

25

(a) "I want you to know that I am 100pct committed to achieving this film in

26

Complaint

1

(b)

"I just received the draft option agreements from Travis and ... upon first

glance they look to fully represent our conversation in your office, and be agreeable in agreas we

2

3

did not even have time to fully cover" (Exhibit "D");

4

5 (c)
6 off' (Exhibit "N");
7 (d)
8
(e) 9

"Infinity owns the rights until oct/nov ~ correct? That was where we left

"We'll find our way";

Defendant Jarecki's failure to object to Mann's statement "Infinity

controls the rights" (Exhibit "W');

10

11

(f)

Ohoven's statement "Please confirm as well that our handshake rights

13

agreements it's okay as well as Infinity enter into saa," Defendant Jarecki responded "[I)'m

18

(i)

12

happy for Infinity to do the saa. .. " "We will not have a problem" (Exhibit "I");

14

15

(g) "As always- we're in it together" (Exhibit "J");

16

(h)

"I'm sure you will have the rights you need. you don't need to worry, we

1 7 will figure it out" (Exhibit <ON");

~ 27

~ 28

'"' ""

19

"P");

20

"This [referring to the Option Agreement] looks fine in principal" (Exhibit

21

(j) "I don't see why we couldn't get you something pretty quickly, even if it's

22

a MOU with some blanks to fill in later" (Exhibit "P");

23

(k)

24

"You believed in me when nobody else did ... and it will be a pleasure to

see this film come to life with you ... , I will do my best to keep you on this side" (Exhibit "Q");

25

(I)

26

"All sales decisions will be made by Infinity Media and Lisa Wilson";

(rn) "We are a great team. I love you today."

Complaint

- 29 -

1

Complaint

- 30 -

(n)

" ... nothing has changed. You can rely on what 1 have told you and

2

written you" ("Exhibit "V");

3

(0) "I will not let you down";

4

"Nick will grant an option until april I of next year" (Exhibit "V").

5

(P) (q)

"In any event, here's what the parties have agreed to extent discussed and

6

7

a few other salient issues" setting forth the terms set forth in Exhibit "V",

8

(i) "Nick will grant an option until april 1 of next year for the

9

10

appropriate wga scale option payment plus 20%.

11

(U) "If the film starts production, the rights can be exercised for the

12

appropriate scale plus 20% with an extra 2.5% of the budget to the extent the

13

budget is over 9M.

14

(iii) "Nick will be the director on a pay and play basis for at least 2

15

16

weeks, payor play thereafter, with removal only ifbond requires.

17

(iv) "As the director, he will get dga scale plus 20% (picture to be dga).

18

(v) "He'll have 2 cuts/2 previews but will be involved after that on a

19

first opportunity basis.

20

(vi) "All decisions to be mutual, with creative decisions decided by

21

22

nick, business by Michael, except that the budget will not be less than SSM and

23

will have not less than 25 shooting days.

24

(vii) "Baekend, after thirds, split 50/50. Joint ownership of the picture

25

itself (both parties own the lIe for the picture).

26

(viii) "Distribution and sales decisions made jointly.

ffi 27 ~

~ 29

'"' too

(ix) "Film by credit, mfn with any production credits.

26 ~ 27

~

'4

, 28

""

~'I

1

- 31 -

(x)

"Bob salerno approved as line producer, brian young and Laura

2

Bickford as eps, kevin turen as producer.

3

(xi) "Everything else (perks, travel, ancillaries (frozen), premieres, etc.

4

5

to be discussed in good faith."

6

94.

The promises and misrepresentations made by Defendant Jarecki to Plaintiff in

7

Los Angeles, California were false and made with the sole intent and purpose to induce and

8

cause Plaintiff to rely on the said promises and misrepresentations and to engage in, perform and

9

10

pay for the Development Activities.

11

95.

The promises and misrepresentations were material in nature and but for those

12

promises and misrepresentations Plaintiff would not have engaged in, performed and/or paid for

13

the Development Activities and agree to provide financing for the Picture.

14

96. Defendant Jarecki knew that the promises and misrepresentations were untrue and

15

16

false when made and were made with the sole intent of causing Plaintiff to rely thereon and

17

engage in, perform and pay for the Development Activities and finance the Picture. Defendant

18

Jarecki intentionally and knowingly made the promises and misrepresentations to induce

19

Plaintiff to engage in the Development Activities and agree to finance the Picture.

20

97. Defendant Jarecki was, at all times herein, aware and intended that Plaintiff

21

22

actually relied on Defendant Jarecki's promises and misrepresentations and that Plaintiff's

23

reliance was justifiable, reasonable and foreseeable.

24

98.

As a result of Defendant Jarecki' s promises and intentional misrepresentations,

25

Plaintiff has been damaged in an amount to be determined at trial of this action.

99. As a direct and proximate result of Defendant Jarecki's foregoing intentional and

reckless misrepresentations, Plaintiffhas suffered damages in the amount to be determined at

Complaint

f! 27 "-

I'll

~ 28

101

'"'

1

"Infinity owns the rights until oct/nov. correct? That was where we left

trial. Defendant Jarecki acted with malice, oppression. fraud and/or in conscious disregard of the

2

rights of Plaintiff, and by reason thereof. Plaintiff is entitled to recover exemplary and punitive

3

damages against Defendant Jarecki in the amount of$500.000.

4

5

FIFfH CAUSE OF ACTION

6

(Negligent Misrepresentation Against All Defendants)

7

100. Plaintiff real leges paragraphs 1-99 of this Complaint and incorporates same herei

8

as though fully set forth.

9

10

101. During the period June 2010 through and including November 2010, Defendant

11 Jarecki and/or his counsel negligently and carelessly made the following promises and

12 misrepresentations to Plaintiff in Los Angeles, California:

13

(a)

"1 want you to know that I am 100pct committed to achieving this film in

14

whatever financial reality is necessary and feasible" (Exhibit "0");

15

16

(b)

"I just received the draft option agreements from Travis and ... upon first

17 glance they look to fuJly represent our conversation in your office. and be agreeable in agreas we

19 did not even have time to fully cover" (Exhibit "D");

19 (c)
20
off" (Exhibit "N");
21
22 (d)
23 (e) "We'll find our way";

Defendant Jarecki's failure to object to Mann's statement "Infinity

24

controls the rights" (Exhibit "H");

25

(t) Oboven' s statement "Please confirm as well that our handshake rights

26

agreements it's okay as well as Infinity enter into saa." Defendant Jarecki responded "[Ij'm

happy for Infinity to do the saa ... " "We will not have a problem" (Exhibit "1");

Complaint

- 32: -

1

Complaint

"As always- we're in it together" (Exhibit "1");

(g) (h)

2

"I'm sure you will have the rights you need, you don't need to worry, we

3

4

will figure it out" (Exhibit "N");

(i)

"This [referring to the Option Agreement] looks fine in principal" (Exhibit

5

6 "P");

7

(j)

'" don't see why we couldn't get you something pretty quickly, even ifit's

8

a MOD with some blanks to fill in later" (Exhibit "P");

9

(k)

"You believed in me when nobody else did .. , and it will be a pleasure to

10

11 see this film come to life with you, , " I will do my best to keep you on this side" (Exhibit "Q");

12

(1) "All sales decisions will be made by Infinity Media and Lisa Wilson";

13

(m) "We are a great team. I love you today."

14

(n) ", .. nothing has changed. You can rely on what I have told you and

15

16

written you" ("Exhibit "V");

(0) "I will not let you down";

17
18
19
20
21
22
23
24
25
26
~ 27
'I.
I>,l
'.0 28
"\
JoII
~ (p) ''Nick will grant an option until april I of next year" (Exhibit "V").

(q) "In any event, here's what the parties have agreed to extent discussed and

a few other salient issues" setting forth the terms set forth in Exhibit "V".

(i) "Nick will grant an option until aprill of next year for the

appropriate wga scale option payment plus 20010.

(ii) "If the film starts production, the rights can be exercised for the

appropriate scale plus 20% with an extra 2.5% of the budget to the extent the

budget is over 9M.

- 33 -

24
25
26
Sl
~ 27
lEI 28
"
...
'" 1

- 34 -

(iii) ''Nick will be the director on a pay and play basis for at least 2

2

weeks, payor play thereafter, with removal only if bond requires.

3

4

(iv) "As the director. he will get dga scale plus 20010 (picture to be dga).

5

(v)

"He'll have 2 cuts/2 previews but will be involved after that on a

6

first opportunity basis.

7

( vi) "All decisions to be mutual, with creative decisions decided by

8

nick, business by Michael, except that the budget will not be less than S8M and

9

10

will have not less than 25 shooting days.

11

(vii) "Backend, after thirds, split 50/50. Joint ownership of the picture

12

itself (both parties own the lIc for the picture).

13

(viii) "Distribution and sales decisions made jointly.

14

(ix) "Film by credit, mfn with any production credits.

15

16

(x)

"Bob salerno approved as line producer, brian young and Laura

17

Bickford as eps, kevin turen as producer.

18

(xi) "Everything else (perks, travel, ancillaries (frozen), premieres, etc.

19

to be discussed in good faith,"

20

21

102. Defendant Jarecki negligently and carelessly made the foregoing promises and

22

misrepresentations made by Defendant Jarecki and without any reasonable ground or basis for

23

believing them to be true.

103. The promises and misrepresentations were made with the intent to induce the

Plaintiff to reJy thereon and engage in. perform and pay for the Development Activities and to

agree to provide financing for the Picture. Defendant Jarecki negligently and carelessly made

Complaint

15
16
17
18
19
20
21
22
23
24
25
26
~ 27
~
III
~ 28
~
'"' 1

Complaint

- 35 -

the promises and misrepresentations to induce Plaintiff to engage in the Development Activities

2

and agree to finance the Picture.

3

104. Defendant Jarecki was, at all times herein. aware and intended that Plaintiff

-4

5

actually relied on Defendant Jarecki's promises and misrepresentations and that Plaintiff's

6

reliance was justifiable, reasonable and foreseeable.

7

105. As a result of Defendant Jarecki' s negligent promises and misrepresentations.

8

Plaintiff has been damaged in an amount to be determined at trial of this action.

9

10

SIXTH CAUSE OF ACTION

11

(Injunctive Relief Against All Defendants)

12 106. Plaintiffrea1leges paragraphs 1-105 of this Complaint and incorporates same

13

herein as though fully set forth.

107. Plaintiff asserts that injunctive relief is fair and just under the circumstances in

that, unless the Court issues an injunction as requested herein, Defendant will:

(a) Produce the Picture utilizing all of Plaintiff's Development Activities

without Plaintiff rendering services and receiving compensation, as producer of the Picture;

(b) Continue to make false and disparaging comments about Plaintiff and

Ohoven to persons within the entertainment industry; and

(c) Prevent Plaintifffrom collecting its Producer's fees, contingent

compensation and the costs incurred in connection with Plaintiff's Development Activities in

conformity with industry standards.

108. Plaintiff has no adequate remedy at law for the damages and injuries currently

being suffered by Plaintiff and threatened in the future by Defendant. Defendant is currently

J

110. Plaintiff'realleges paragraphs 1-109 of this Complaint and incorporates same

1

preparing to commence principal photography on the Picture without Plaintiff rendering services

2

as producer of the Picture.

4

109. Therefore. based upon the foregoing, Plaintiff requests the Court to issue a Court

5

Order:

6

(a)

Restraining and enjoining Defendant from producing the Picture utilizing

Plaintiff's Development Activities;

B

(b) Restraining and enjoining Defendant from making false and disparaging

9

10

comments concerning Plaintiff and Ohoven to persons within the entertainment industry; and

11

(c)

Compelling Defendant to abide by the terms of the oral option agreement.

12

SEVENTH CAUSE OF ACTION

13

(Declaratory Relief Against All Defendants)

14

15

16

herein as though fully set forth.

17 ] ] I. Plaintiff alleges upon information and belief that an actual controversy has arisen

18 and now exists between Plaintiff and Defendants as to whether Plaintiff and Defendant Jarecki 19 entered into an oral option agreement pursuant to which Plaintiff had the option to acquire the 20 Rights to produce the Picture.

21 112. Plaintiff alleges upon information and belief and thereon alleges that an actuaJ 22 controversy has arisen and now exists between Plaintiff and Defendants herein as to whether

23 Defendants owed certain duties to Plaintiff. breached those duties and caused damage to Plainti 24 and the public. thereby making Defendants responsible for Plaintiffs damages.

25 113. A declaration of rights is necessary and appropriate at this time in order that

26 Plaintiff mayascertain its rights and duties to the Picture pursuant to the oral option agreement. 2127 No adequate and expeditious remedy other than such declaration exists by which the rights of the

~

~ 28 parties hereto may be determined,

~

'""

Complaint

- 36 -

1

6.

WHEREFORE, Plaintiff prays for the following relief:

2

3

1. On the First Cause of Action (Breach of Oral Contract):

(a) Damages to be determined at triaL

4

2.

5

6

7

e

3.

9

10

On the Second Cause of Action (Implied Covenant of Good Faith and Fair

Dealing):

(a)

Damages to be determined at trial.

On the Third Cause of Action (promissory Estoppel):

(a)

Damages to be determined at trial.

11

4. On the Fourth Cause of Action (Intentional Misrepresentation):

12

13

14

5.

15

16

17

19

19

20

(a)

Damages to be determined at trial; and

(b)

Exemplary damages.

On the Fifth Cause of Action (Negligent Misrepresentation):

(a) Damages to be determined at trial.

On the Sixth Cause of Action (Injunctive Relief)

(a)

For an Order:

(i)

Restraining and enjoining Defendant from producing the Picture

21

utilizing Plaintiff's Development Activities;

22

(ii) Restraining and enjoining Defendant from making false and

disparaging comments concerning Plaintiff and Ohoven to persons within the entertainment

23

(iii) Compelling Defendant to abide by the terms of the oral option

On the Eighth Cause of Action (Declaratory Relief)

- 37 -

24 industry; and
25
26
agreement.
~ 27
7.
\II 28
"'
100
100
Complaint 8
9
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1:
12
13
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IS
16
17
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21
12
23
24
2S
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21
~ 29
"'I
...,
~
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"'" Complaint
.... 1

Lee AltOmey fl Plaintiff INFINITY ICTURES. LLC

(a)

For an Order determiding P~s Rights under the onLI option

2

3

8. On. aU Causes of ActioD;

5

(a)

The costs of suit herein; and

(0 (b) Such other and further relief as ~ Coun shall deem awropriate.

1 DATED; Mareh ~ 2011. LAW ~S OF LEE SACKS

A p~ . Corporation

- J8 -

-. _-..o..'!-.!..