throbber
Case 2:20-cv-04160-TJH-PLA Document 1 Filed 05/06/20 Page 1 of 17 Page ID #:1
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`Thomas P. Riley
`Law Offices of Thomas P. Riley, P.C.
`First Library Square
`1114 Fremont Avenue
`South Pasadena, CA 91030-3227
`CA SBN No. 194706
`Fax: 626-799-9795
`TPRLAW@att.net
`Tel: 626-799-9797
`
`Attorneys for Plaintiff
`Innovative Sports Management, Inc.,
`d/b/a Integrated Sports Media
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`WESTERN DIVISION
`
`
`
` Case No.:
`Innovative Sports Management, Inc.,
`
`
`d/b/a Integrated Sports Media,
` COMPLAINT
`
`
`
`
`
` Plaintiff,
`
` vs.
`
`Artem A. Timofeev, individually and
`d/b/a The Nickel Mine; and Apricode
`KDS, Corp., an unknown business entity
`d/b/a The Nickel Mine
`
`
` Defendants.
`
`
`
`
`
`PLAINTIFF ALLEGES:
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`JURISDICTION
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`1.
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`Jurisdiction is founded on the existence of a question arising under particular
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` Page 1
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`Case 2:20-cv-04160-TJH-PLA Document 1 Filed 05/06/20 Page 2 of 17 Page ID #:2
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`
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`statutes. This action is brought pursuant to several federal statutes, including the
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`Communications Act of 1934, as amended, Title 47 U.S.C. 605, et seq., and The
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`Cable & Television Consumer Protection and Competition Act of 1992, as
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`amended, Title 47 U.S.C. Section 553, et seq., and California B&P Section 17200, a
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`California state statute.
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`
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`2.
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`This Court has jurisdiction of the subject matter of this action pursuant to 28
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`U.S.C. Section 1331, which states that the District Courts shall have original
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`jurisdiction of all civil actions arising under the Constitution, laws, or treaties, of the
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`United States. This Court has subject matter jurisdiction over the state law claims
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`pursuant to 28 U.S.C. § 1367 (supplemental jurisdiction).
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`3.
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`This Court has personal jurisdiction over the parties in this action as a result
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`of the Defendants’ wrongful acts hereinafter complained of which violated the
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`Plaintiff's rights as the exclusive commercial domestic distributor of the televised
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`fight Program hereinafter set forth at length. The Defendants’ wrongful acts
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`consisted of the interception, reception, publication, divulgence, display, exhibition,
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`and tortious conversion of said property of Plaintiff within the control of the
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`Plaintiff in the State of California constituting an unfair business practice in
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`violation of the law, including specific California state statutes, more particularly set
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`forth below.
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`///
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` Page 2
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`Case 2:20-cv-04160-TJH-PLA Document 1 Filed 05/06/20 Page 3 of 17 Page ID #:3
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`VENUE
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`4.
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`Pursuant to Title 47 U.S.C. Section 605, venue is proper in the Central
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`District of California, because a substantial part of the events or omissions giving
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`rise to the claim occurred in this District and/or because, inter alia, all Defendants
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`reside within the State of California (28 U.S.C. § 1391 (b) and 28 U.S.C. §
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`84(c)(2)).
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`INTRADISTRICT ASSIGNMENT
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`5.
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`Assignment to the Western Division of the Central District of California is
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`proper because a substantial part of the events or omissions giving rise to the
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`claim occurred in Los Angeles County and/or, the United States District Court for
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`the Central District of California has decided that suits of this nature, and each of
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`them, are to be heard by the Courts in this particular Division.
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`
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`THE PARTIES
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`6.
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`Plaintiff, Innovative Sports Management, Inc., d/b/a Integrated Sports Media,
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`is, and at all relevant times mentioned was, a New Jersey corporation with its
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`principal place of business located at 64 North Summit St., Suite 218, Tennafly, NJ
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`07060.
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`7.
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`At all times relevant hereto, including on Saturday, May 11, 2019, Defendant
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`Artem A. Timofeev was specifically identified as President and stockholder of
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`Case 2:20-cv-04160-TJH-PLA Document 1 Filed 05/06/20 Page 4 of 17 Page ID #:4
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`Apricode KDS, Corp. on the California Department of Alcoholic Beverage Control
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`License (ABC #563263) issued to Apricode KDS, Corp. for The Nickel Mine.
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`
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`8.
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`At all times relevant hereto, including on Saturday, May 11, 2019, Defendant
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`Apricode KDS, Corp. was specifically identified as owner of the California
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`Department of Alcoholic Beverage Control License (ABC #563263) for the
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`establishment doing business as The Nickel Mine operating at 11363 Santa Monica
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`Blvd., Los Angeles, CA 90025.
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`
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`9.
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`At all times relevant hereto, including on Saturday, May 11, 2019, Defendant
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`Artem A. Timofeev was specifically identified as Chief Executive Officer and
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`President on the State of California Secretary of State Statement of Information
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`(C3808562) issued to Apricode KDS, Corp. for The Nickel Mine.
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`
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`10. Plaintiff is informed and believes, and alleges thereon that on Saturday, May
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`11, 2019 (the night of the Program at issue herein, as more specifically defined in
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`Paragraph 18), Defendant Artem A. Timofeev had the right and ability to supervise
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`the activities of The Nickel Mine, which included the unlawful interception, receipt,
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`and publication of Plaintiff’s Program.
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`///
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`///
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`Case 2:20-cv-04160-TJH-PLA Document 1 Filed 05/06/20 Page 5 of 17 Page ID #:5
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`11. Plaintiff is informed and believes, and alleges thereon that on Saturday, May
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`11, 2019 (the night of the Program at issue herein, as more specifically defined in
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`Paragraph 18), Defendant Artem A. Timofeev, as an individual had the obligation to
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`supervise the activities of Apricode KDS, Corp., which included the unlawful
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`interception, receipt, and publication of Plaintiff’s Program, and, among other
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`responsibilities, had the obligation to ensure that The Nickel Mine operated lawfully
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`at all times.
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`12. Plaintiff is informed and believes, and alleges thereon that on Saturday, May
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`11, 2019 (the night of the Program at issue herein, as more specifically defined in
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`Paragraph 18), Defendant Artem A. Timofeev specifically directed or permitted the
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`employees of The Nickel Mine to unlawfully intercept, receive, and publish
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`Plaintiff’s Program at The Nickel Mine, or intentionally intercepted, received, and
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`published the Program at The Nickel Mine himself. The actions of the employees of
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`The Nickel Mine are directly imputable to Defendant Artem A. Timofeev by virtue
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`of his acknowledged responsibility for the operation of The Nickel Mine.
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`13. Plaintiff is informed and believes, and alleges thereon that on Saturday, May
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`11, 2019, Defendant Artem A. Timofeev, as Chief Executive Officer and President
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`of Apricode KDS, Corp. and as an individual specifically identified as President and
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`stockholder on the California Department of Alcoholic Beverage Control License
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`#563263 for Apricode KDS, Corp. had an obvious and direct financial interests in
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`Case 2:20-cv-04160-TJH-PLA Document 1 Filed 05/06/20 Page 6 of 17 Page ID #:6
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`the activities of The Nickel Mine, which included the unlawful interception, receipt,
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`and publication of Plaintiff’s Program.
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`
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`14. Plaintiff is informed and believes, and alleges thereon that the unlawful
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`broadcast of Plaintiff’s Program, as supervised and/or authorized by Defendant
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`Artem A. Timofeev resulted in increased profits for The Nickel Mine.
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`15. Plaintiff is informed and believes, and alleges thereon that Defendant
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`Apricode KDS, Corp. is an owner, and/or operator, and/or licensee, and/or
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`permittee, and/or entity in possession, and/or an entity with dominion, control,
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`oversight and management of the commercial establishment doing business as The
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`Nickel Mine operating at 11363 Santa Monica Blvd., Los Angeles, CA 90025.
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`16. On Saturday, May 11, 2019 (the night of the Program at issue herein, as more
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`specifically defined in Paragraph 18), The Nickel Mine sold food and alcoholic
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`beverages to its patrons.
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`COUNT I
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`(Violation of Title 47 U.S.C. Section 605)
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`17. Plaintiff Innovative Sports Management, Inc., d/b/a Integrated Sports Media,
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`hereby incorporates by reference all of the allegations contained in paragraphs 1-16,
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`inclusive, as though set forth herein at length.
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`Case 2:20-cv-04160-TJH-PLA Document 1 Filed 05/06/20 Page 7 of 17 Page ID #:7
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`18. Pursuant to contract, Plaintiff Innovative Sports Management, Inc., d/b/a
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`Integrated Sports Media, was granted the exclusive nationwide commercial
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`distribution (closed-circuit) rights to the Bellator 221: Michael Cahndler v. Patricio
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`Pitbull event telecast nationwide on Saturday, May 11, 2019 (this included all under-
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`card bouts and fight commentary encompassed in the television broadcast of the
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`event, hereinafter referred to as the "Program").
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`19. Pursuant to contract, Plaintiff Innovative Sports Management, Inc., d/b/a
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`Integrated Sports Media, entered into subsequent sublicensing agreements with
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`various commercial entities throughout North America, including entities within the
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`State of California, by which it granted these entities limited sublicensing rights,
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`specifically the rights to publicly exhibit the Program within their respective
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`commercial establishments.
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`20. The Program could only be exhibited in a commercial establishment in
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`California if said establishment was contractually authorized to do so by Plaintiff
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`Innovative Sports Management, Inc., d/b/a Integrated Sports Media.
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`21. As a commercial distributor and licensor of sporting events, including the
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`Program, Plaintiff Innovative Sports Management, Inc., d/b/a Integrated Sports
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`Media, expended
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`substantial monies marketing, advertising, promoting,
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` Page 7
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`Case 2:20-cv-04160-TJH-PLA Document 1 Filed 05/06/20 Page 8 of 17 Page ID #:8
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`administering, and transmitting the Program to its customers, the aforementioned
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`commercial entities.
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`22. The Program originated via satellite uplink and was subsequently re-
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`transmitted to cable systems and satellite companies to Plaintiff’s sub-licensees.
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`23. On Saturday, May 11, 2019, in violation of Plaintiff Innovative Sports
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`Management, Inc., d/b/a Integrated Sports Media rights and federal law, Defendants
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`intercepted, received and published the Program at The Nickel Mine. Defendants
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`also divulged and published said communication, or assisted or permitted in
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`divulging and publishing said communication to patrons within The Nickel Mine.
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`24. With full knowledge that the Program was not to be intercepted, received,
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`published, divulged, displayed, and/or exhibited by commercial entities
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`unauthorized to do so, each and every one of the above named Defendants, either
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`through direct action or through actions of employees or agents directly imputable
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`to Defendants (as outlined above), did unlawfully intercept, receive, publish,
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`divulge, display, and/or exhibit the Program at the time of its transmission at
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`commercial establishment located at 11363 Santa Monica Blvd. Los Angeles, CA
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`90025.
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`///
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` Page 8
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`Case 2:20-cv-04160-TJH-PLA Document 1 Filed 05/06/20 Page 9 of 17 Page ID #:9
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`25. Said unauthorized interception, reception, publication, exhibition, divulgence,
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`display, and/or exhibition by each of the Defendants was done willfully and for
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`purposes of direct and/or indirect commercial advantage and/or private financial
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`gain.
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`26. Title 47 U.S.C. § 605(a), prohibits the unauthorized interception, receipt,
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`publication and use of communications, including satellite television signals, such as
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`the transmission of the Program for which Plaintiff Innovative Sports Management,
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`Inc., d/b/a Integrated Sports Media had the distribution rights thereto.
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`27. By reason of the aforesaid mentioned conduct, the aforementioned
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`Defendants, and each of them, violated Title 47 U.S.C. Section 605, et seq., either
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`directly or, in the case of Defendant Artem A. Timofeev, contributorily or
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`vicariously.
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`28. By reason of the Defendants’ violation of Title 47 U.S.C. Section 605, et seq.,
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`Plaintiff Innovative Sports Management, Inc., d/b/a Integrated Sports Media, has the
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`private right of action pursuant to Title 47 U.S.C. Section 605.
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`29. As the result of the aforementioned Defendants’ violation of Title 47 U.S.C.
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`Section 605, and pursuant to said Section 605, Plaintiff Innovative Sports
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`Case 2:20-cv-04160-TJH-PLA Document 1 Filed 05/06/20 Page 10 of 17 Page ID #:10
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`Management, Inc., d/b/a Integrated Sports Media, is entitled to the following from
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`each Defendant:
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` (a)
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`Statutory damages for each violation in an amount to
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`$10,000.00 pursuant to Title 47 U.S.C. § 605(e)(3)(C)(i)(II);
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`(b)
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`Statutory damages for each willful violation in an amount to
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`$100,000.00 pursuant to Title 47 U.S.C. 605(e)(3)(C)(ii); and
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` (c) The recovery of full costs, including reasonable attorneys’ fees,
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`pursuant to Title 47 U.S.C. Section 605(e)(3)(B)(iii).
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`COUNT II
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`(Violation of Title 47 U.S.C. Section 553)
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`30. Plaintiff hereby incorporates by reference all of the allegations contained in
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`paragraphs 1-29, inclusive, as though set forth herein at length.
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`31.
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`47 U.S.C. § 553 prohibits the interception or receipt of communications
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`offered over a cable system absent specific authorization.
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`32. The unauthorized interception and receipt of the Program by the above
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`named Defendants was prohibited by Title 47 U.S.C. §553, et seq.
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`///
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`///
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`Case 2:20-cv-04160-TJH-PLA Document 1 Filed 05/06/20 Page 11 of 17 Page ID #:11
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`33. By reason of the aforesaid mentioned conduct, the aforementioned
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`Defendants violated Title 47 U.S.C. Section 553, et seq. either directly or, in the
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`case of Defendant Artem A. Timofeev, contributorily or vicariously.
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`34. By reason of the Defendants’ violation of Title 47 U.S.C. Section 553, et seq.,
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`Plaintiff Innovative Sports Management, Inc., d/b/a Integrated Sports Media, has the
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`private right of action pursuant to Title 47 U.S.C. Section 553.
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`35. As the result of the aforementioned Defendants’ violation of Title 47 U.S.C.
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`Section 553, Plaintiff Innovative Sports Management, Inc., d/b/a Integrated Sports
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`Media, is entitled to the following from each Defendant:
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`(a)
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`Statutory damages for each violation in an amount to
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`$10,000.00 pursuant to Title 47 U.S.C. § 553(c)(3)(A)(ii);
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`(b)
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`Statutory damages for each willful violation in an amount to
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`$50,000.00 pursuant to Title 47 U.S.C. § 553(c)(3)(B);
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`(c) The recovery of full costs pursuant to Title 47 U.S.C. § 553
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`(c)(2)(C); and
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`(d) In the discretion of this Honorable Court, reasonable attorneys’
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`fees, pursuant to Title 47 U.S.C. § 553(c)(2)(C).
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`COUNT III
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`(Conversion)
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`Case 2:20-cv-04160-TJH-PLA Document 1 Filed 05/06/20 Page 12 of 17 Page ID #:12
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`36. Plaintiff hereby incorporates by reference all of the allegations contained in
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`paragraphs 1-35, inclusive, as though set forth herein at length.
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`37. By their aforesaid acts of interception, reception, publication, divulgence,
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`display, and/or exhibition of the Program at their commercial establishment at the
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`above-captioned address, the aforementioned Defendants, tortuously obtained
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`possession of the Program and wrongfully converted same for their own use and
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`benefit.
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`38. The aforesaid acts of the Defendants were willful, malicious, egregious, and
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`intentionally designed to harm Plaintiff Innovative Sports Management, Inc., d/b/a
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`Integrated Sports Media, by depriving Plaintiff of the commercial license fee to
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`which Plaintiff was rightfully entitled to receive from them, and in doing so, the
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`Defendants subjected the Plaintiff to severe economic distress and great financial
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`loss.
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`39. Accordingly, Plaintiff Innovative Sports Management, Inc., d/b/a Integrated
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`Sports Media, is entitled to both compensatory, as well as punitive and exemplary
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`damages, from aforementioned Defendants as the result of the Defendants’
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`egregious conduct, theft, and conversion of the Program and deliberate injury to
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`the Plaintiff.
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` Page 12
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`Case 2:20-cv-04160-TJH-PLA Document 1 Filed 05/06/20 Page 13 of 17 Page ID #:13
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`COUNT IV
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`(Violation of California Business and Professions Code Section 17200, et seq.)
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`40. Plaintiff hereby incorporates by reference all of the allegations contained in
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`Paragraphs 1-39, inclusive, as set forth herein at length.
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`
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`41. By contract, Plaintiff Innovative Sports Management, Inc., d/b/a Integrated
`
`Sports Media, was granted exclusive domestic commercial exhibition closed-circuit
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`rights to the Program.
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`
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`42. Plaintiff did not authorize transmission, interception, reception, divulgence,
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`exhibition, or display of the Program to the general public, persons at large, or to
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`the commercial establishment operated by the foregoing Defendants, or any of
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`them.
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`
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`43. With full knowledge that the Program was not to be intercepted, received,
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`published, divulged, displayed, and/or exhibited by commercial entities
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`unauthorized to do so, the above named Defendants, either through direct action or
`
`through actions of employees or agents directly imputable to Defendants by virtue
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`of their respective positions and authority, did unlawfully intercept, receive, publish,
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`divulge, display, and/or exhibit the Program at the real time transmission of the
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` Page 13
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`Case 2:20-cv-04160-TJH-PLA Document 1 Filed 05/06/20 Page 14 of 17 Page ID #:14
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`
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`Program’s broadcast at the commercial establishment, as more particularly
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`indicated and identified above.
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`44. Plaintiff is informed and believes and alleges thereon that the Defendants
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`and/or their agents, servants, workmen, or employees performed the aforementioned
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`acts knowingly, willfully and to confer a direct or indirect commercial advantage
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`and/or private financial gain to the Defendants, to the detriment and injury of
`
`Plaintiff and its business enterprise as a commercial distributor and closed-circuit
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`licensor of sports and entertainment television programming.
`
`
`
`45. The Defendants’ unauthorized interception, publication, divulgence and/or
`
`exhibition was done by the Defendants wantonly, recklessly, and without regard
`
`whatsoever for the intellectual property rights of the Plaintiff.
`
`
`
`46. The aforementioned unlawful acts of each of the Defendants constituted
`
`unlawful, untrue, fraudulent, predatory, unfair, and deceptive trade practices, and by
`
`reason of the aforementioned conduct, the Defendants violated California and
`
`Professions Code Section 17200, et seq.
`
`
`
`47. As a proximate result of the aforementioned acts attributable to the
`
`Defendants, Plaintiff has been permanently deprived of the patronage of current,
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` Page 14
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`Case 2:20-cv-04160-TJH-PLA Document 1 Filed 05/06/20 Page 15 of 17 Page ID #:15
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`
`
`previous and potential customers of the sports and entertainment programming it
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`licenses commercially to the hospitality industry, all to its severe financial injury
`
`and loss in a sum to be determined at trial.
`
`
`
`48. By reason of the Defendants’ violation of California Business and Professions
`
`Code Section 17200, et seq., Plaintiff Innovative Sports Management, Inc., d/b/a
`
`Integrated Sports Media is entitled to restitution for its injuries, the disgorgement
`
`and turn-over of the Defendants’ ill-gotten gains, as well as injunctive and
`
`declaratory relief, from each of the aforementioned Defendants as may be made
`
`more appropriately determined at trial.
`
`
`
`
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`49. Plaintiff is entitled to its attorneys’ fees from the Defendants for enforcing
`
`California Business and Professions Code Section 17200 as it meets the standards of
`
`a private attorney general as specifically and statutorily defined under California
`
`Civil Procedure Section 1021.5.
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`
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`
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`WHEREFORE, Plaintiff prays for judgment as set forth below.
`
`As to the First Count:
`
` 1.
`
`For statutory damages in the amount of $110,000.00 against the
`
`Defendants, and each of them;
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` 2.
`
`For reasonable attorneys’ fees as mandated by statute;
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` Page 15
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`Case 2:20-cv-04160-TJH-PLA Document 1 Filed 05/06/20 Page 16 of 17 Page ID #:16
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`
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` 3.
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`For all costs of suit, including, but not limited to, filing fees, service of
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`
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`process fees, investigative costs; and
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` 4.
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`For such other and further relief as this Honorable Court may deem
`
`just and proper.
`
`As to the Second Count:
`
`1. For statutory damages in the amount of $60,000.00 against the
`
`Defendants, and each of them;
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`2. For reasonable attorneys’ fees as may be awarded in the Court’s
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` discretion pursuant to statute;
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`
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`
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`3. For all costs of suit, including, but not limited to, filing fees, service
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`of process fees, investigative costs; and
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` 4. For such other and further relief as this Honorable Court may deem just
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`
`
`
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` and proper.
`
`As to the Third Count:
`
`1.
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`For compensatory damages in an amount according to proof against
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`the Defendants, and each of them;
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`2.
`
`3.
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`4.
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`For exemplary damages against the Defendants, and each of them;
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`For punitive damages against the Defendants, and each of them;
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`For reasonable attorneys’ fees as may be awarded in the Court’s
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`discretion pursuant to statute;
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`Case 2:20-cv-04160-TJH-PLA Document 1 Filed 05/06/20 Page 17 of 17 Page ID #:17
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`5.
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`For all costs of suit, including, but not limited to, filing fees, service of
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`process fee, investigative costs; and
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`6.
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`For such other and further relief as this Honorable Court may deem just
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`and proper.
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`
`
`As to the Fourth Count:
`
`1.
`
`For restitution to the Plaintiff in an amount according to and from the
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`Defendants, for their ill-gotten gains;
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`For declaratory relief;
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`For prohibitory and mandatory injunctive relief;
`
`2.
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`3.
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` 4. For reasonable attorneys’ fees as may be awarded in the Court’s
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`
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`
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`discretion pursuant to statute;
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`5. For all costs of suit, including, but not limited to, filing fees, service
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`
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`of process fees, investigative costs; and
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`6.
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`For such other and further relief as this Honorable Court may deem
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`just and proper.
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`
`
`Date: 5/6/2020
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`Respectfully submitted,
`
`
`
`
`/s/Thomas P. Riley
`
`LAW OFFICES OF THOMAS P. RILEY, P.C.
`By: Thomas P. Riley
`Innovative Sports Management, Inc.,
`d/b/a Integrated Sports Media
`
`
`
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` Page 17
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`

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