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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
FLORIDA MIAMI DIVISION
CASE NO.: ____________________________________ x FIVE FOR
ENTERTAINMENT S.A., d/b/a FIVE : LIVE ENTERTAINMENT and DIEGO
HERNAN : DE IRAOLA, : : Plaintiffs, : : COMPLAINT AND JURY DEMAND
-against: : RAMON LUIS AYALA RODRIGUEZ a/k/a/ :DADDY YANKEE, EL
CARTEL RECORDS INC, ICARO SERVICES INC., and EDGAR BALDIRI
MARTINEZ, Defendants.
----------------------------------------------------------xPlaintiffs
Five for Entertainment S.A. d/b/a Five Live Entertainment (Five
Live) and Diego Hernn de Iraola (De Iraola) (collectively,
Plaintiffs), by and through their attorneys, for their complaint
against Defendants Ramn Luis Ayala Rodriguez a/k/a Daddy Yankee
(Daddy Yankee), El Cartel Records, Inc. (El Cartel), Icaro Services
Inc. d/b/a Icaro Booking Services (Icaro), and Edgar Baldiri
Martinez (Baldiri) (collectively, Defendants), allege as follows:
INTRODUCTION 1. This is an action brought, in part, in contract for
the Defendants failure to honor
certain contractual promises. As set forth in a written
agreement, Defendant Daddy Yankee was to perform at no fewer than
six concerts in Argentina in or about November 2010. As detailed
below, Plaintiff Five Live paid Daddy Yankees representative
approximately $800,000.00 for
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the rights to these concerts. However, just days before the
first of the scheduled concerts, and after Plaintiff Five Live
incurred more than a million dollars of expenses in promoting and
producing these concerts, Daddy Yankee abruptly and without cause
unilaterally cancelled the entire tour. Daddy Yankee has
nonetheless wrongfully retained the entirety of the funds paid to
him, and has failed to reimburse to Plaintiff Five Live the
expenses Five Live incurred in reliance on the contract or
otherwise compensate Five Live for the injuries suffered as a
result of the breach. 2. This action is also brought in tort for
the Defendants systematic public relations
smear campaign consisting of both slanderous and libelous
statements against Plaintiffs, in which Defendants wrongfully and
publicly blamed Plaintiffs for Daddy Yankees last-minute
cancellation of the tour. The public relations campaign included
defamatory and actionable statements that were intended to and did
harm Plaintiffs business and reputation, proximately causing
economic harm to both Plaintiffs and severe emotional distress to
Plaintiff De Iraola. PARTIES, JURISDICTION AND VENUE 3. Plaintiff
Five Live is a corporation organized under the laws of the Republic
of
Argentina, with its principal place of business at Rivadavia
670, Neuqun, Neuqun, Argentina. Five Live produces shows and events
in Argentina, with a particular focus on the production of concerts
for well-known musical artists from South America, Europe and the
United States. 4. Plaintiff De Iraola is the president and majority
shareholder of Five Live. De
Iraola is of Argentine nationality and is domiciled in Buenos
Aires, Argentina. 5. Upon information and belief, Defendant Daddy
Yankee is a United States citizen
domiciled in Puerto Rico. Daddy Yankee is an internationally
well-known, multiple Billboard and Grammy award-winning singer of
Reggaeton music. With more than eight million albums
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sold, five No. 1 hits on Billboard's radio charts, and a
blockbuster film, Daddy Yankee is the top-selling Latin urban
artist of the decade according to Billboard Magazine (2010.) He is
the founder and CEO of his own record label, has appeared in
television shows, movies, and branding campaigns for various
products, and has created his own lines of footwear and cologne. 6.
Upon information and belief, Defendant El Cartel is a corporation
organized
under the laws of Puerto Rico, with its principal place of
business at Ponce de Leon 1612, Suite 301, San Juan, Puerto Rico
00909. El Cartel is Daddy Yankees record label company. 7. Upon
information and belief, Defendant Icaro is a corporation organized
under
the laws of the state of Florida, with its principal place of
business at 1401 Sawgrass Corporate Parkway, Suite 118, Sunrise,
Florida 33323. Icaro is a booking agent, providing publicity,
marketing, and organization of concerts and events on behalf of a
variety of musical artists. Icaro is Daddy Yankees booking agent.
8. Upon information and belief, Defendant Baldiri is the president
and registered
agent of Icaro. He is a Colombian citizen admitted to the United
States for permanent residence and domiciled in the state of
Florida, at 1401 Sawgrass Corporate Parkway, Suite 118, Sunrise,
Florida 33323. 9. This Court has subject matter jurisdiction over
these claims pursuant to 28 U.S.C.
1332, as there is complete diversity between the parties, and
the amount in controversy exceeds $75,000.
10.
This Court has personal jurisdiction over Daddy Yankee pursuant
to Fla. Stat.
48.193(1)(a) and (2). Upon information and belief, Daddy Yankee
has systematically conducted business in the State of Florida
through Icaro, a corporation formed under the laws of
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and with its principal place of business in the State of Florida
and which has handled the booking of Daddy Yankees concerts and
events, and entered into contractsincluding the contracts at issue
in this actionon his behalf, since at least 2009.
11.
Further, upon information and belief, Daddy Yankee also employs
a Florida-
based company, Nevarez Communications, to perform his press and
public relations work, a substantial amount of which is directed at
the Florida market. Daddy Yankee has performed numerous concerts
and publicity events in the State of Florida, and has advertised
and sold his footwear and cologne products there, as well as
recordings of his music. 12. Similarly, this Court has personal
jurisdiction over El Cartel pursuant to Fla. Stat.
48.193(1)(a) and (2) because, upon information and belief, it
too systematically conducts business in the State of Florida,
including on Daddy Yankees behalf through Icaro and otherwise. El
Cartel worked with Icaros Florida-based personnel in connection
with Daddy Yankees 2010 Argentina tour that was the subject matter
of the contracts at issue in this dispute. 13. This Court has
personal jurisdiction over Icaro and Baldiri, as they are
residents
of the State of Florida. 14. Venue is proper in this Court
pursuant to 28 U.S.C. 1391(a)(2), as a substantial
portion of the events giving rise to this complaint took place
in Florida. Among other things: (i) the underlying contract was
drafted and emailed to Plaintiffs by Icaro from its office in
Florida, and bears Icaros Florida address on the bottom of each
page; (ii) Plaintiff Five Live transferred payments under the
contract electronically to Icaros bank account in Florida; (iii)
Defendants issued a communication announcing the cancellation of
the shows contracted and paid for through Icaros Florida-based
office, thereby repudiating and breaching the parties
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contract; and (iv) Defendants published a number of defamatory
and actionable oral and written statements at issue in this action
through Icaro from its Florida office. Alternatively, venue is
appropriate pursuant to 28 U.S.C. 1391(a)(3). FACTS 1. Five Live
and its Business Model 15. Five Live is a company organized under
the laws of Argentina since 2009. Until
recently, Five Live had been engaged in the production of music
shows and other events such as sporting events, promotional
activities and VIP meetings. Five Live was known for producing
concerts and other events that included premium tickets with access
to VIP lounges (that included entertainment), merchandising and
occasional access to the artist/s. It had also developed a
preeminent position in the show producing business in virtually
every province in Argentina. 16. Up until the events giving rise to
this complaint, Five Live had succeeded in
positioning its brand in the entertainment business. It enjoyed
a well-established track record of producing shows in Argentina for
well-known artists from Latin America (e.g., Ricardo Arjona, Los
Fabulosos Cadillacs, Gustavo Ceratti, Andrs Calamaro), Puerto Rico
(Wisin & Yandel, Daddy Yankee), and Europe (Joaqun Sabina). 2.
The 2009 Tour: Daddy Yankees First Visit to Argentina 17. In 2009
Five Live produced two live performances by Daddy Yankee in
Argentina and supervised the production of various other shows
by Daddy Yankee during that time (the 2009 Tour).
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18.
Icaro was at the time of the 2009 Tour, and it continues to be
without interruption
through this present date, Daddy Yankees and El Cartels agent
for any and all matters relating to the booking of Daddy Yankees
services and performances. 19. At the conclusion of the 2009 Tour,
Baldiri, on behalf of Icaro, which in turn was
acting as Daddy Yankees agent, advised Plaintiff De Iraola that
they should work together to arrange a follow-up tour. On or about
March 9, 2010, Baldiri reiterated to Plaintiff De Iraola his
intention to work with Five Live on a second tour to Argentina and
invited De Iraola to meet in Buenos Aires, Panama, Colombia, or any
other location of De Iraolas choice for this purpose. As Baldiri
stated in a March 9, 2010 email communication to De Iraola, If I
return [to] Argentina Im going with you. 3. The 2010 World Tour.
Five Live Produces a Six-Concert Tour For Daddy Yankees Second
Visit To Argentina 20. On or about June 8, 2010, Plaintiff Five
Live, represented by Plaintiff De Iraola,
and El Cartel, through its agent Icaro, entered into an Artist
Engagement Contract for the services of Daddy Yankee (the
Engagement Contract). While the Engagement Contract was finalized
on June 8, 2010, it is dated May 24, 2010, which reflected the date
the Engagement Contract was drafted. A true and correct copy of the
Engagement Contract is attached hereto as Exhibit 1. 21. Under the
Engagement Contract, El Cartel, on behalf of Daddy Yankee, in
exchange for valuable consideration, contractually committed to
Plaintiff Five Live that Daddy Yankee would perform six shows at
various venues in Argentina. Pursuant to the Engagement Contract,
each show would consist of a live performance by Daddy Yankee of
approximately one hours duration on the following dates and at the
following venues: November 12, 2010. City of Buenos Aires.
Argentinos Juniors soccer stadium;
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November 13, 2010. City of Tucumn. Atltico Tucumn soccer
stadium; November 14, 2010. City of Crdoba. Orfeo Stadium; November
17, 2010. City of Rosario. Horse Racing stadium; November 19, 2010.
City of Neuqun. Club Cipolleti soccer stadium; November 20, 2010.
City of San Juan. Fiesta del Sol arena. 22. The parties agreed that
this 2010 tour would be marketed as the Tour Mundial.
Daddy Yankee had never before embarked on a tour involving that
many shows in any single country. 23. As explained below at
paragraphs 5860, the foregoing dates were subsequently
rescheduled due to the sudden death of Argentinas former
president, Nestor Kirchner, and ensuing logistical difficulties
with some of the chosen venues. a. Contract Price and Payment
Schedule 24. The Engagement Contract provided that Five Live would
pay to Icaro a total of
US$ 820,000 (eight hundred twenty thousand U.S. dollars) for all
six performances. 25. The Engagement Contract further stipulated
that payment of the contract price
would be made in four installments of US$ 205,000 each in
accordance with the following schedule: (i) a first deposit upon
execution of the contract, (ii) a second deposit by July 30, 2010,
(iii) a third deposit by September 30, 2010, and (iv) one final
deposit by November 1, 2010. 26. The parties agreed that the timing
and amounts of the installment payments did
not need to conform to the dates set forth in the Engagement
Contract. For example, in a transmittal email accompanying the
draft of the Engagement Contract, Baldiri specifically advised
Plaintiff De Iraola that he could make payments on a rolling basis
without strict adherence to the terms set forth in the draft of the
contract. Baldiri explained that he put down
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the dates to help you [but] it doesnt matter if you split them
up and send it to me gradually. Baldiri did, however, request an
initial payment of US$ 205,000. 27. Between June 10, 2010 and
November 16, 2010, Plaintiff De Iraola made the
following payments by wire transfer and in cash for a total of
US$ 796,895.00:Date Pmt. Was Credited On Icaros Account June 10,
2010 July 21, 2010 August 11, 2010 August 24, 2010 September 5,
2010 (*) September 29, 2010 October 06, 2010 October 21, 2010
October 21, 2010 October 22, 2010 October 28, 2010 November 10,
2010 November 16, 2010 (*) Cash Payment Amount $90,000.00
$98,645.00 $14,850.00 $30,000.00 $100,000.00 $90,000.00 $39,600.00
$40,000.00 $50,000.00 $30,000.00 $100,000.00 $100,000.00 $13,800.00
$796,895.00
28.
At no time did Baldiri or any Defendant object to the amounts
paid. To the
contrary, each of the payments was accepted and deposited by
Baldiri, with the acquiescence of all Defendants. 29. In addition,
Plaintiffs were credited with payment of an additional amount
in
recognition of the fact that Plaintiffs had been forced to spend
additional funds to reschedule flights missed by Daddy Yankee and
his crew during a September 2010 promotional tour (see 3839 below.)
Because Icaro had agreed that Plaintiffs were not responsible for
these unexpected travel expenses, Plaintiffs, with Icaros consent,
set off the additional amounts paid by Five Live against the
remainder of the $820,000 contract price.
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b. Production Costs 30. The Engagement Contract stipulated that
Five Live would bear all costs
associated with production of the shows, including the cost of
equipment, lighting, audio, and technical support. 31. Five Live
expended substantial sums in production costs in furtherance of
the
Engagement Contract, in reliance on the contractual promises and
pursuant to its contractual obligations. Some of the larger expense
items included the cost of the necessary technical equipment and
special effects, air transportation, and professional fees and
related costs for a Production Manager, a Tour Manager and a
Production Assistant. Five Live expended such sums, among others,
to satisfy its contractual obligations and to ensure sell-out or
near sell-out audiences at the concerts, which would, in turn,
ensure a successful return on its investment. c. Logistics and
Traveling Arrangements 32. Under the Engagement Contract Five Live
was required to arrange for and bear
all costs relating to air and ground transportation, food and
five-star lodging for Daddy Yankee and more than thirty members of
his staff for the 2010 Tour. 33. As required, Plaintiff Five Live
expended substantial sums on travel arrangements
and lodging for Daddy Yankee and his sizable staff for the 2010
Tour. In this regard, Five Live made down payments of well over
$150,000 for airfare and lodging in anticipation of Defendants
compliance with their contractual obligations. 34. Costs became far
greater than anticipated because of Plaintiffs inability to
obtain
accurate information from Icaro in a timely manner and because
of El Cartels breach of its contractual promises.
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35.
For example, under the Engagement Contract Five Live was
responsible for
making all necessary arrangements to obtain work permits and/or
visas for Daddy Yankee and his personnel by no later than three
working days prior to July 1, 2010 under penalty of cancellation of
the performances. But despite Five Lives multiple requests, neither
Icaro nor El Cartel provided Five Live with the requisite
information (e.g., names, nationalities, passport information)
until on or about November 12, 2010. As a consequence, Five Live
had to forego cheaper airfares that had previously been available
in favor of the more expensive airfares that often accompany
last-minute travel. Likewise, Five Live had to pay to expedite the
processing of visas given Defendants failure to provide this
information in a timely manner. 36. Also, the Engagement Contract
provided that air transportation for Daddy Yankee
and his staff would include a private chartered airplane.
Consistent with Five Lives contractual obligations, De Iraola
chartered a private jet to depart from Miami, pick up Daddy Yankee
and part of his entourage in Puerto Rico and fly to Argentina and
through the various cities where Daddy Yankee was scheduled to
perform. However, on or about November 12, 2010, Ms. Mireddys
Gonzalez, president of El Cartel and Daddy Yankees manager, advised
Five Live that neither she nor Daddy Yankee would agree to travel
on a private chartered jet and instructed Plaintiff De Iraola
instead to purchase first-class tickets on LAN Airlines for Daddy
Yankee and her. Five Live incurred all associated expenses. 37. By
November 16, 2010, Plaintiffs had completed the process of
gathering all the
requisite information, had secured all necessary work visas at
the Argentine consulate in Miami and had completed travel
arrangements for Daddy Yankee, Ms. Gonzalez and all of their
staff.
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d. The September 2010 Promotional Tour and Discussion of
Additional Performances 38. Pursuant to the Engagement Contract,
Five Live was required to prepare a media
plan and arrange for a promotional tour at least one month prior
to the commencement of the World Tour. Five Live expended still
additional sums in preparing and executing the promotional tour in
reliance on the Engagement Contract and in support of its
contractual obligations. 39. On or about September 4, 2010, Daddy
Yankee and part of his entourage arrived
in Argentina to begin a promotional tour through various cities,
where he made appearances at TV talk shows, radio stations and
other marketing events previously arranged and financed by Five
Live. 40. During the promotional tour, local production companies
other than Five Live
expressed interest in purchasing four additional shows. Upon
information and belief, during the promotional tour, Baldiri
instructed Daddy Yankee to advertise not only the six shows
promised under the Engagement Contract with Five Live, but also the
four additional shows being discussed with other production
companies. 41. In fact, Daddy Yankee thereafter made public
statements promoting the four
shows in addition to the six shows that Five Live had contracted
for, and describing the tour as a ten-show tour. 42. At the
conclusion of the promotional tour, Baldiri indicated in writing to
Plaintiff
De Iraola that Icaro intended to negotiate and execute the
necessary contracts for the four additional shows directly with the
interested producers. 43. However, neither Baldiri nor anyone else
at Icaro or El Cartel ever followed
through by negotiating agreements with the local producers for
the four additional shows that
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Daddy Yankee had just advertised during his promotional tour to
Argentina as part of the World Tour. 44. After two of the four
producers who had expressed interest declined to proceed,
Baldiri advised Plaintiff De Iraola that Defendants expected
Five Live to produce not only the six shows for which Five Live had
contracted, but for the four additional shows Daddy Yankee had
begun to promote as well. Baldiri further threatened that Daddy
Yankee would cancel the tour completely in the event Five Live
failed to produce the four additional shows. Reluctantly, Plaintiff
De Iraolato avoid cancellation of the six-show touragreed to take
over responsibility for the production of the four additional shows
and to engage in direct negotiations with two of the local
producers who agreed to stay on. 4. The 2010 World Tour Expands
from Six to Ten Concerts 45. At the conclusion of the September
2010 promotional tour, production of the six
shows subject to the Engagement Contract was well underway. Five
Live had launched a fullblown marketing campaign, and tickets for
all six shows were already on sale. Five Live had secured and was
in the process of securing contracts with all the venues where the
six shows would take place and with vendors for related services,
including technical equipment and chartered flights. Commencement
of the tour was approximately sixty days away. 46. In light of
Baldiris demands, and given the extreme time pressures, Plaintiff
De
Iraola immediately took steps to commence production of the four
additional shows. Under extreme stress, he traveled extensively to
the different venues, negotiated contracts with local producers and
vendors, and commenced integration of the marketing and logistical
efforts already underway for the initial six shows with those of
the four additional ones. 47. Plaintiffs expended substantial sums
in this effort.
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48.
At the time that Plaintiffs De Iraola and Five Live engaged in
these activities, they
did so in the absence of any new written contract. In fact, the
parties had not even reached an agreement as to form or timing of
payment of Daddy Yankees fee for the four additional shows. 49.
Baldiri and Plaintiff De Iraola did agree on the following dates
and venues where
the four additional shows would take place: November 5, 2010.
City of Baha Blanca. Olimpic Stadium; November 10, 2010. City of
Mendoza. Bustelo Auditorium; November 14, 2010. City of Comodoro
Rivadavia. Huracn Stadium; November 21, 2010. City of Salta. Delmi
Stadium. 50. Around midnight on or about November 1, 2010only four
days prior to the date
originally scheduled for the first of the ten concertsBaldiri
emailed Plaintiff De Iraola a draft contract purporting to reduce
to writing the parties agreement concerning the foregoing
additional shows. 51. The draft attached to Baldiris email
communication had been created the day
prior. Its terms were virtually identical to those of the
Engagement Contract. 52. The draft agreement that Baldiri provided
to Plaintiff De Iraola was backdated to
October 15, 2010. It provided four due dates for payment of the
installments making up the $480,000 contract price, but three of
these dates (October 15, 2010, October 25, 2010 and November 1,
2010) had already lapsed. The parties plainly understood that
payment would be made prospectively, well beyond the backdated
dates contained in the draft contract. 53. Baldiri instructed
Plaintiff De Iraola to sign it and email an electronic copy
back
to him immediately.
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54.
Baldiri had engaged for some time in a systematic practice of
threatening Plaintiff
De Iraola with cancellation of the entire tour despite the
advanced stage of production for each of the ten shows, including
nationwide marketing campaigns and ticket sales in various cities
across the country. 55. Under duress and lacking any real option,
Plaintiff De Iraola proceeded as Baldiri
instructed and emailed to him a signed copy within the hour. 56.
Neither Baldiri nor anyone else at Icaro or El Cartel ever signed
that draft or, for
that matter, any agreement to govern the four additional shows.
The draft agreement, signed only by Plaintiff De Iraola, was
therefore never made final, and was thus never enforceable as
written. 5. President Kirchners Sudden Death Forces Rescheduling of
Daddy Yankees 2010 World Tour 57. On or about October 24, 2010,
Plaintiff De Iraola traveled to Bogota, Colombia,
to meet with Baldiri at the latters request. De Iraola returned
to Buenos Aires on or about October 28, 2010. During that time,
Plaintiff De Iraola and Baldiri discussed a proposal by Baldiri to
reallocate some of the payments made under the Engagement Contract
and apply them to the four additional shows. They did not reach a
consensus, as Plaintiff De Iraola did not accept the proposal. 58.
On or about October 27, 2010, Mr. Nstor Kirchner, Argentinas former
President
and spouse to the then-current president, Ms. Cristina F. de
Kirchner, passed away unexpectedly. 59. Among other repercussions
of this event, weekend games for the national soccer
league were suspended. This in turn caused many of the proposed
venues for Daddy Yankees shows to claim the respective stadiums for
make-up games.
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60.
Baldiri and De Iraola thereafter agreed to reschedule the World
Tour. New
dates agreed upon were as follows: November 19, 2010. City of
Crdoba; November 20, 2010. City of Tucumn; November 21, 2010. City
of Salta; November 23, 2010. City of Rosario; November 25, 2010.
City of San Juan; November 26, 2010. City of Mendoza; November 27,
2010. City of Neuqun; November 28, 2010. City of Baha Blanca;
December 3, 2010. City of Comodoro Rivadavia; December 4, 2010.
City of Buenos Aires. 61. On or about November 5, 2010, Icaro
issued an official communication
announcing the rescheduled dates. 6. Daddy Yankee Decides to
Cancel the 2010 World Tour Two Days Prior to His First Scheduled
Appearance 62. Plaintiff De Iraola continued to work on each and
every aspect of the logistics
involved in rescheduling each of the ten shows. 63. During that
time Baldiri demanded payment in full of the price of the four
additional shows and intensified his threats to cancel the
entire tour, including the six shows governed by the Engagement
Contract and for which the contract price of $820,000.00 had
already been paid. 64. Plaintiff De Iraola explained to Baldiri
that Five Live would pay the price for the
additional shows by wire to Icaros account upon arrival of Daddy
Yankee and his crew to Argentina. De Iraola insisted on this
because of Baldiris repeated threats to cancel the tour without a
contractual basis to do so.
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65.
Plaintiff De Iraola began to show physical manifestations of the
emotional
distress that Baldiris threats had caused him in light of the
advanced stage of production for every one of the shows and the
pace at which tickets were being sold. Plaintiff De Iraola suffered
several incidents of high blood pressure, nosebleeds, bleeding in
his eyes and sleep deprivation. 66. Late in the evening on or about
November 16, 2010three days prior to the
rescheduled first show for the 2010 World TourMs. Gonzalez,
acting on behalf of El Cartel and Daddy Yankee, sent an email
communication to Plaintiff De Iraola and to Baldiri indicating that
she would order the cancellation of the tour absent prompt payment
of the Artists fee for all ten scheduled performances. 67. On or
about November 17, 2010, Plaintiff De Iraola appealed to Ms.
Gonzalez
and Baldiri, reiterating his assurances that the funds necessary
for payment of the four additional shows were available and ready
to be wired to Icaros account upon arrival of the Artist and his
crew to Argentina. De Iraola even requested that Baldiri allow Ms.
Daira Escobar, a production point person employed by Icaro, to
travel to Buenos Aires to personally supervise along with Plaintiff
De Iraola the electronic transfer of those funds to Icaros account
even before Daddy Yankee and his crew traveled to Argentina. The
funds would take approximately four days to credit in Icaros
account and, given the time constraints, Ms. Escobars personal
supervision of the transaction would provide sufficient assurances
to Ms. Gonzalez and Baldiri in time for them to release Daddy
Yankees crew and allow them to travel to Argentina. Ms. Gonzalez
and Baldiri declined.
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68.
Early in the evening on or about November 17, 2010, Icaro issued
an official
communication to the media announcing the cancellation of all
ten of Daddy Yankees shows in Argentina. 69. Neither Baldiri nor
Ms. Gonzalez nor anyone else at Icaro nor El Cartel reached
out to Plaintiff De Iraola to communicate to him their decision
to cancel the tour. Plaintiff De Iraola instead learned of the
cancellation through the media, just like everyone else. 7. El
Cartel, Icaro and Baldiri Engage in a Smear Campaign Against Five
Live and Ad Hominem Attacks Against Mr. De Iraola 70. On or about
November 17, 2010, Daddy Yankee posted on his and Icaros
publicly available websites a press release singling out
Plaintiffs De Iraola and Five Live as solely responsible for the
cancellation of his Argentina tour. The communication stated,
falsely, that Plaintiff De Iraola and his company, Five Live, had
failed to pay 40% of the contract. This press release has been
removed from Daddy Yankees web site. See
www.daddyyankee.com/news/2010/11/17/por-incumplimiento-en-el-pago-total-de.
Similarly, this press release is no longer accessible on Icaros web
site. Nonetheless, a true and correct copy of the press release, as
widely distributed by Icaro via electronic mail, is attached hereto
with accompanying translation as Exhibit 2. 71. The press release
made the following false and defamatory statements about
Plaintiffs: (i) Plaintiff De Iraola, producer and party
responsible for the concerts in Argentina, was in arrears and owed
more than 40% of Daddy Yankees fee for the shows; (ii) Defendants
had afforded Plaintiff De Iraola every opportunity to pay and
offered him different alternative means of complying with his
contractual obligations; (iii) Defendants goodwill and efforts had
been in vain because on the day prior to the scheduled trip to
Argentina, Plaintiffs were still in default, and (iv) Plaintiff
Five Live, under the direction of Plaintiff De Iraola, had failed
to
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adequately perform its contractual obligations under the
governing contract. On information and belief, each of these
statements was made with the knowledge, consent and approval of
Defendants Baldiri, Icaro, El Cartel and Daddy Yankee. 72. After
initial publication on the websites, the press releases false
statements
foreseeably, and as intended, spread throughout the Internet,
TV, radio, and other news media, including no fewer than 130 news
media outlets, both in the form of direct quotations and in
paraphrase. 73. During the weeks that followed, Baldiri elaborated
on the statements contained in
the press release and made new, yet more outrageous, false and
defamatory statements to the media. 74. For instance, Baldiri
stated in a November 26, 2010 article that Plaintiff De Iraola
had falsified his signature and had stolen money. Baldiri
further declared to the media that Daddy Yankee had been a victim
of a fraud perpetrated by Plaintiff De Iraola. A true and correct
copy of the press release can be found at
http://www.reggaetonea.com/artistas/daddyyankee/estafan-a-daddy-yankee-con-gira-en-argentina.html,
and is also attached hereto with accompanying translation as
Exhibit 3. A week later, Baldiri reported to the media that local
businessmen and producers had also been victims of a deception
scheme mounted by Plaintiff De Iraola. See
http://www.partedelshow.com.ar/noticia/daddy-yankee-ausente-por-falta-depago.
75. In another article dated January 3, 2011, Baldiri stated that
De Iraola had entered
into contracts on behalf of Five Live with local producers, when
in fact he was not associated with Five Live and was not authorized
to act on Five Lives behalf. A true and correct copy of the press
release can be found at
http://www.sonicomusica.info/2011/01/daddy-yankee-sale-a-
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defenderse/ and is also attached hereto with accompanying
translation as Exhibit 4. On information and belief, each of
Baldiris statements was made with the knowledge, consent and
approval of Defendants Icaro, El Cartel and Daddy Yankee. 76.
Baldiri also told local producers who had acquired rights to, or
were otherwise
involved in producing, Daddy Yankees performances that Plaintiff
De Iraola had perpetrated a fraud on them. Baldiri encouraged, and
in fact caused them to join him in disparaging Plaintiff De Iraola
and Five Live under pretenses of future contracts with Daddy
Yankee. Baldiri even provided them with drafts of press releases
that the local producers could release to the media. In one
exchange, Baldiri complained to some of those local businessmen
that they had not been aggressive enough with Plaintiff De Iraola
in the media and exhorted them that we need to hit [De Iraola]
hard. 77. On information and belief, Baldiri acted at all relevant
times on behalf of, and
with the approval, consent and participation of the other
Defendants. 8. Five Live Sees Business Decline Precipitously. De
Iraola Suffers Severe Emotional Distress and Is Referred to
Psychiatric Treatment. 78. The period following the cancellation of
the tour and ensuing smear campaign
was disastrous for both Five Live and De Iraola. The ruining of
their reputations took its toll on them in every possible way. 79.
Five Lives business stopped altogether. Business partners with whom
Five Live
had formerly done business, and who had previously discussed
entering into potential joint ventures and other projects, chose to
avoid Five Live and De Iraola altogether. Ongoing negotiations
immediately ceased. When De Iraola reached out to his previous
business partners, he was met with silence.
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80.
Even those individuals who were sympathetic to De Iraola
personally, and who
would otherwise have liked to do business with him, informed him
that they simply could not risk becoming professionally involved
with him or his company due to the reputational damage he had
sustained. 81. As for De Iraola personally, he began to experience
repeated panic attacks for
which he sought treatment from the emergency room several times
(including on the night of the cancellation of the tour). As
mentioned in paragraph 65 above, he also began to suffer from high
blood pressure due to stress, which caused him to experience
nosebleeds, bleeding in his eyes and numbness in his limbs. De
Iraola was admitted to the emergency room several times for these
complaints. 82. In the months following the cancellation, De Iraola
lived almost entirely confined
to his home, due to debilitating anxiety and fear of public
places and travel. He became increasingly depressed and suffered
from extreme insomnia. 83. He sought treatment from a psychiatrist,
whom he saw twice a week and who
prescribed for him medication for his depression and anxiety. De
Iraola remains under the care of a psychiatrist. 84. Despite De
Iraolas best efforts to publicize the true facts and to counteract
the
negative publicity created by Defendants, business has not
resumed for Five Live. COUNT ONE Breach of ContractEngagement
Contract (Plaintiff Five Live Against Defendants Daddy Yankee and
El Cartel) 85. Plaintiffs incorporate by reference paragraphs 1
through 84 as if fully set forth
herein, and further state as follows:
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86.
On June 8, 2010, Plaintiff and Defendants entered into an Artist
Engagement
Contract (the Engagement Contract), a valid and binding contract
supported by valuable consideration. 87. Pursuant to the Engagement
Contract, Five Live, represented by Plaintiff De
Iraola, agreed to purchase Daddy Yankees performance services at
a series of six concerts to be held in Argentina in November 2010.
88. Plaintiff has fully (and, at a minimum, substantially)
performed all of its
contractual obligations. 89. In breach of the Engagement
Contract, El Cartel and Daddy Yankee canceled the
entire tour, failing to perform at any of the scheduled
concerts. 90. Defendants breach of contract proximately caused
injury to Plaintiff Five Live in
an amount not less than $75,000. 91. In addition to the $820,000
contract price that Defendant Icaro has failed to
reimburse, Plaintiff Five Live also incurred over $1 million in
out of pocket expenses in preparation for the concerts (for such
items as equipment, lighting, audio, technical support, a private
jet chartered for Daddy Yankee and plane tickets for Daddy Yankees
entire staff of over 30 members), and then incurred still further
expenses in the process of unwinding the concert arrangements and
refunding tickets to customers. 92. The last-minute cancellation of
the contracted-for tour also caused reputational
harm to Plaintiff Five Live, thereby proximately causing a
precipitous decline in business for Five Live.
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93.
Further, Five Live has suffered substantial damages in the form
of lost profits,
which it would otherwise have earned from the sale of tickets to
the shows and merchandise sold at the shows. 94. Five Live is
therefore entitled to a judgment in an amount to be determined
at
trial, inclusive of pre- and post-judgment interest. 95. Five
Live is further entitled to punitive damages in an amount to be
determined at
trial, together with pre-judgment and post-judgment interest, as
Defendants failure to perform was willful and in bad faith.
WHEREFORE, Plaintiff demands a judgment comprising compensatory and
punitive damages in an amount to be determined at trial, together
with pre-judgment and post-judgment interest.
COUNT TWO Breach of ContractSecond Contract (Plaintiff Five Live
Against Defendants Daddy Yankee and El Cartel)96. Plaintiffs
incorporate by reference paragraphs 1 through 84 as if fully set
forth
herein, and further state as follows: 97. On November 1, 2010,
Baldiri emailed Plaintiff De Iraola an Artist Engagement
Contract (the Second Contract), which was backdated to October
15, 2010. While De Iraola signed and returned the Second Contract
that same night, it was never executed by the Defendants and never
became binding as written. 98. A valid and binding contract
supported by valuable consideration nonetheless was
formed between Plaintiff Five Live and Defendants Daddy Yankee
and El Cartel by way of written and oral communications between
Plaintiff De Iraola, acting on behalf of Plaintiff Five Live, and
Baldiri, acting for Icaro on behalf of El Cartel and Daddy Yankee,
and both parties
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course of conduct, namely, Baldiris actions forcing Five Live to
assume responsibility for the four additional shows, and Five Lives
substantial performance through extensive production efforts and
expenditures. 99. The November 1, 2010 draft reflects some general
aspects of the parties oral
agreement, namely, Daddy Yankees undertaking to perform at four
shows in addition to the six shows under the Engagement Contract at
specified dates and venues in consideration for payment by Five
Live of a total of $480,000 for all four shows. 100. The November
1, 2010 draft does not, however, reflect the parties
understanding
as to the form and timing of Five Lives payment of the
agreed-upon consideration. To the contrary, the fact that three of
the four installments identified in the November 1, 2010 draft were
backdated demonstrates that the draft did not reflect the parties
full agreement and understanding. 101. In fact, on or about
November 10, 2011, Baldiri purportedly extended a loan to
Plaintiff De Iraola, acting on behalf of Five Live, of $100,000
to be applied to the $480,000 contract price. The parties agreed
orally that the balance would be paid upon Daddy Yankees arrival in
Argentina. 102. Plaintiff Five Live has fully (and, at a minimum,
substantially) performed all of
its contractual obligations. Specifically, Plaintiff Five Live
performed under the Second Contract by making all necessary
arrangements, bearing all production costs for the concerts, and
ensuring that full payment would be made. 103. Just two days before
the first scheduled concert, Ms. Gonzalez and Baldiri
repudiated and breached the contract on behalf of Icaro and
Daddy Yankee, announcing on Defendants behalf that Daddy Yankee
would not travel to Argentina to perform at the
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concerts. They stated that Daddy Yankee would not perform
because Plaintiffs had failed to make payment in full pursuant to
the Second Contract, despite the parties agreement that such
payment would be received in Argentina upon Daddy Yankees arrival.
Plaintiffs were forced to cancel the concerts. 104. As a result of
Defendants breach of contract, Five Live has suffered damages.
As with the Engagement Contract, Plaintiff incurred significant
out of pocket expenses in preparation for the concerts, and yet
additional expenses in subsequently unwinding the concert
arrangements and refunding the tickets to customers. Plaintiff has
also suffered damages in the form of lost profits, which it would
otherwise have earned from the sale of tickets to the shows and
merchandise sold at the shows. 105. Further, Defendants breach of
contract and failure to appear for the scheduled
concerts has caused great reputational harm to Five Live,
causing others in the industry to shun the company and thus
eliminating business opportunities and engagements. 106. Five Live
is therefore entitled to a judgment in an amount to be determined
at
trial, together with pre-judgment and post-judgment interest.
107. Five Live is further entitled to punitive damages in an amount
to be determined at
trial, together with pre-judgment and post-judgment interest, as
Defendants failure to perform was willful and in bad faith.
WHEREFORE, Plaintiff demands a judgment comprising compensatory and
punitive damages in an amount to be determined at trial, together
with pre-judgment and post-judgment interest.
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COUNT THREE Unjust EnrichmentIn the Alternative to Breach of the
Engagement Contract (Plaintiff Five Live Against Defendants Daddy
Yankee and El Cartel)108. Plaintiffs incorporate by reference
paragraphs 1 through 84 as if fully set forth
herein, and further state as follows: 109. Five Live conferred a
substantial benefit on Defendants Daddy Yankee and El
Cartel by paying them the contract price of $820,000.00,
pursuant to the Engagement Contract. 110. Defendants Daddy Yankee
and El Cartel expressly requested that Five Live pay
this money, and were well aware that Five Live was doing so with
the expectation that Daddy Yankee would perform at the six concerts
listed in the Engagement Contract. 111. Defendants Daddy Yankee and
El Cartel accepted and retained the payments
made to them by Five Live. 112. payments. 113. Given that
Defendants Daddy Yankee and El Cartel requested that Five Live
Defendants Daddy Yankee and El Cartel have not reimbursed Five Live
for these
make these payments, and then at the very last moment, cancelled
the concerts for which Five Live had paid, it would be inequitable
for Defendants Daddy Yankee and El Cartel to retain the benefit
conferred on them by Five Live. 114. Five Live is therefore
entitled to a judgment in the amount of $820,000.00,
together with pre-judgment and post-judgment interest.
WHEREFORE, Plaintiff demands a judgment of $820,000.00, together
with prejudgment and post-judgment interest.
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COUNT FOUR Quantum MeruitIn the Alternative to Breach of the
Second Contract (Plaintiff Five Live Against Defendants Daddy
Yankee and El Cartel)115. Plaintiffs incorporate by reference
paragraphs 1 through 84 as if fully set forth
herein, and further state as follows: 116. Five Live conferred a
substantial benefit on Defendants by organizing and
assuming the production costs for four concerts in addition to
the six concerts for which Five Live contracted in the Engagement
Contract. 117. Defendants expressly requested that Five Live
undertake this work, and were well
aware that Five Live was doing so with the expectation that
Daddy Yankee would perform at the four concerts. 118. Defendants
knowingly and voluntarily accepted and retained the benefits
conferred on them by Five Live, and, indeed, actively pressured
Plaintiffs to perform the work and make the necessary expenditures
so that Daddy Yankee could perform at these concerts. 119.
Defendants have not reimbursed Five Live for any of the expenses
they incurred
or for the value of the work Five Live performed in arranging
the four additional concerts. Given that Defendants themselves
requested that Five Live incur these expenses and perform this
work, and then at the very last moment, cancelled the concerts for
which the work was performed, it would be inequitable for
Defendants to retain the benefit conferred on them by Five Live.
120. Five Live is therefore entitled to a judgment in an amount to
be determined at
trial, together with pre-judgment and post-judgment interest.
WHEREFORE, Plaintiff demands a judgment in an amount to be
determined at trial, together with pre-judgment and post-judgment
interest.
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COUNT FIVE Defamation (Plaintiffs Five Live and De Iraola
Against Daddy Yankee, El Cartel, Icaro and Baldiri)121. Plaintiffs
incorporate by reference paragraphs 1 through 84 as if fully set
forth
herein, and further state as follows: 122. Prior to November 17,
2010, Plaintiffs Five Live and De Iraola enjoyed strong,
favorable reputations, both overall and specifically in the
production industry. Five Live had invested heavily in positioning
its brand, and had grown exponentially in the previous years,
accruing an impressive track record of successful high-profile show
productions. 123. On or about November 17, 2010, Defendants Daddy
Yankee, El Cartel, Icaro and
Baldiri published a written press release on Daddy Yankees and
Icaros publicly available websites, wrongly naming Plaintiffs De
Iraola and Five Live as the parties solely responsible for the
eleventh-hour cancellation of Daddy Yankees Argentina tour. The
press release referred to Plaintiffs by name throughout. 124. The
press release was conspicuous to any and all persons visiting the
websites
containing the press release and, as intended, quickly spread
throughout the Internet, TV, radio, and other news media. 125.
Baldiri subsequently made new and yet more outrageous false and
defamatory
written and oral statements about Plaintiff De Iraola and Five
Live to the media, including without limitation to those statements
referenced in paragraphs 7077 above. Baldiri further instigated,
and effectively caused, local businessmen and producers to make
similar defamatory statements to the media in exchange for promises
of future business. On information and belief, Baldiri acted on
behalf and with the approval, consent and participation of the
other Defendants.
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126.
To this day, a Google search of either Plaintiff De Iraola or
Plaintiff Five Live
will yield numerous articles that portray them as culprits in a
scandal that defrauded Daddy Yankee and his fans. 127. The
statements contained in the press release and subsequent news
articles
regarding the Plaintiffs are false. 128. Defendants Daddy
Yankee, El Cartel, Icaro and Baldiris publication of these
statements to others was an unprivileged publication. 129.
Defendants Daddy Yankee, El Cartel, Icaro and Baldiri had no
reasonable factual
basis to make these statements, and made these statements
intentionally, deliberately, knowing them to be false, with
reckless disregard as to the statements truth or falsity, and with
malice. 130. Defendants Daddy Yankee, El Cartel, Icaro and Baldiri
made these defamatory
statements irrespective of the special harm publication of such
statements would cause and did cause. 131. Plaintiffs have suffered
damages as a direct and proximate result of Defendants
defamatory statements. The cited and similar defamatory
statements by Defendants have proximately caused the ruination of
Plaintiffs previously excellent reputations, and have further
proximately caused Plaintiffs business to virtually disappear. 132.
Defendants fault in publishing these defamatory statements amounts
to at least
negligence on their part. 133. As a result of Defendants
defamatory statements, Plaintiffs have been shunned
by many individuals and entities with whom they had previously
done business, have lost sales and business opportunities, and have
experienced difficulty in obtaining credit. Companies that would
otherwise be interested in doing business with Plaintiffs have
elected not to do so
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specifically because of their concerns over the negative
statements in the media. For example, a leading international firm
with operations in multiple cities across North and South America,
Europe, South Africa, Asia and Australia and which is engaged in
the provision of resources and services for the concert touring,
corporate events, trade shows, special events, theater, television
and film industries had expressed interest in entering a joint
venture with Plaintiffs, but has stated more recently that it
cannot and will not do so until Plaintiffs clear their name. 134.
While Five Live had expected to earn approximately $2 million
annually prior to
Defendants public relations campaign against Plaintiffs, Five
Lives business has virtually disappeared as a direct and proximate
result of Defendants defamatory statements. 135. Further, Plaintiff
De Iraola has suffered substantial humiliation and emotional
distress as a result of the defamatory statements, as set forth
in more detail below at paragraphs 150160, incorporated herein by
reference. 136. Plaintiffs are therefore entitled to a judgment in
an amount to be determined at
trial, together with pre-judgment and post-judgment interest.
137. Because Defendants willfully and intentionally made the
defamatory statements
with malice toward Plaintiffs, Plaintiffs are also entitled to a
judgment inclusive of punitive damages in an amount to be
determined at trial, together with pre-judgment and post-judgment
interest. WHEREFORE, Plaintiffs demand a judgment comprising
compensatory and punitive damages in an amount to be determined at
trial, together with pre-judgment and post-judgment interest.
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COUNT SIX Injurious Falsehood (Plaintiffs Five Live and De
Iraola Against Daddy Yankee, El Cartel, Icaro and Baldiri)138.
Plaintiffs incorporate by reference paragraphs 1 through 84 as if
fully set forth
herein, and further state as follows: 139. Plaintiff De Iraola,
as president and majority shareholder of Five Live, has a
property interest in Five Lives commercial success. 140.
Plaintiff Five Live had commercial relationships and interests in
tangible future
business opportunities. 141. As described above, Defendants made
statements in a press release and in other
media including Internet, TV and radio. 142. These statements
are such that they would be (and in fact were) understood as
disparaging to Plaintiff De Iraola and his business, Plaintiff
Five Live. 143. By publication of the press release on Daddy
Yankees and Icaros publicly
available websites, and by making statements in other public
fora such as TV, radio and Internet news articles, Defendants Daddy
Yankee, El Cartel, Icaro and Baldiri published, communicated, and
disseminated the statements to third parties. 144. 145. As set
forth above, these statements were false. At the time Defendants
Daddy Yankee, El Cartel, Icaro and Baldiri made and
published the statements, they knew the statements were false or
demonstrated a reckless disregard for the truth or falsity of the
statements. 146. Defendants Daddy Yankee, El Cartel, Icaro and
Baldiri intentionally and
maliciously published these statements, and thereby
intentionally interfered with Plaintiff De Iraolas and Plaintiff
Five Lives economic relations and property interests.
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147.
As a direct and proximate result of Defendants publication of
the statements,
Plaintiffs De Iraolas and Five Lives property rights have been
disparaged and slandered. Since the publication of the press
release and other media statements, Five Lives revenues have
dropped from over $2,000,000 between the date of its incorporation
in 2009 and June 2010, to virtually zero. This loss of business
coincides directly with, and is the proximate result of, the
publication of the defamatory statements, and no other explanation
for that dramatic drop in business exists. Plaintiffs have suffered
foreseeable damage to their business interests from Defendants
disparagement reflecting upon their character and the manner in
which they conduct their business. Defendants statements were a
substantial factor in these losses. 148. Plaintiffs are therefore
entitled to a judgment in an amount to be determined at
trial, together with pre-judgment and post-judgment interest.
WHEREFORE, Plaintiffs demand a judgment in an amount to be
determined at trial, together with pre-judgment and post-judgment
interest.
COUNT SEVEN Intentional Infliction of Emotional Distress
(Plaintiff De Iraola Against Defendants El Cartel, Icaro and
Baldiri)149. Plaintiffs incorporate by reference paragraphs 1
through 84 as if fully set forth
herein, and further state as follows: 150. From the very
beginning of Plaintiff De Iraolas dealings with Baldiri relating
to
Daddy Yankees November 2010 tour, Baldiri behaved in an abusive
way to Iraola, frequently threatening to cancel the tour if his
extra-contractual demands were not satisfied. 151. As Plaintiffs
continued to pay Icaro and El Cartel in support of Five Lives
contractual obligations, and as Plaintiffs invested yet
additional sums toward preparation for the concerts, Defendants
understood that they gained even more leverage on Plaintiffs
because
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Plaintiffs became more reliant on the concerts to realize their
investment. Indeed, if the concerts were cancelled, Plaintiffs
would not only lose the substantial sums already invested and
forego any economic expectation that may have arisen from
production of such a massive undertaking, but Plaintiffs would also
face a significant reputational loss due to the advanced stage of
marketing, production and ticket sales and numerous claims by
vendors and local producers. 152. After the entire tour was
postponed due to Kirchners death, Baldiri took
advantage of the delay to pressure Plaintiffs for yet more
payments. Baldiri continued to threaten cancellation of the entire
tour. 153. As a result of Defendants repeated threats and bad faith
conduct, Plaintiff De
Iraola began to suffer from high blood pressure and from extreme
anxiety. 154. Upon cancellation of the tour on November 17, 2010,
Baldiri launched the above-
described smear campaign. On information and belief, this public
relations campaign against Plaintiffs was launched on behalf and
with the approval, consent and participation of the other
Defendants. 155. In this smear campaign, Baldiri issued press
releases and media statements
attributing the cancellation of the concerts to Five Live and to
De Iraola personally, stating falsely that De Iraola had behaved
fraudulently and acted in default of his contractual obligations.
156. Baldiri also lured various Argentine businessmen and producers
into spreading in
the local media Baldiris knowingly false and reckless
allegations of fraud and theft against Plaintiff De Iraola and his
company, Five Live, in exchange for promises of future
business.
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157.
The sum total of Baldiris intentional and outrageous
behaviormonths of threats
and extortion, followed by the eleventh-hour cancellation of a
massive concert tour, capped with a systematic public smear
campaign targeting De Iraolas business and his professional
reputationhas caused De Iraola very severe emotional distress. 158.
Defendants wrongful conduct proximately caused De Iraola to suffer
extreme
distress, as well as high blood pressure, nosebleeds, bleeding
in his eyes and numbness in his limbs. Plaintiff De Iraola was
admitted to the emergency room on several occasions due to these
problems in this time period. 159. At the time of the cancellation,
De Iraola also began to experience recurrent panic
attacks, which have led him to seek and obtain treatment in the
emergency room as well as regular treatment and medication from a
psychiatrist. 160. De Iraola has also experienced extreme insomnia
and depression as a result of his
emotional distress. Following the cancellation, he spent several
months confined to his home. He remains under the care of a
psychiatrist and is taking medication for his anxiety and sleep
deprivation. 161. Plaintiff De Iraola is therefore entitled to a
judgment in an amount to be
determined at trial, together with pre-judgment and
post-judgment interest. WHEREFORE, Plaintiff demands a judgment in
an amount to be determined at trial, together with pre-judgment and
post-judgment interest.
COUNT EIGHT Violation of Florida Deceptive and Unfair Trade
Practices Act (FDUTPA) (Plaintiff Five Live Against All
Defendants)162. Plaintiffs incorporate by reference paragraphs 1
through 84 as if fully set forth
herein, and further state as follows:
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163.
Five Live contracted in the Engagement Contract to purchase the
right to promote
and sell tickets to a series of six Daddy Yankee concerts in
Argentina. Five Live agreed to the purchase price of $820,000 on
the basis of Defendants explicit representation that (1) Daddy
Yankee would travel to Argentina and perform at these concerts; and
(2) if Daddy Yankee, for reasons attributable to him, did not so
perform, that Five Live would receive a refund of the purchase
price. 164. As described above, Defendants failed to act in good
faith. To the contrary,
Defendants used their leverage to extort extra-contractual
concessions under duress, repeatedly threatening Five Live that its
failure to comply with Defendants whims would prompt Defendants to
cancel the entire 2010 Tour. 165. Consistent with their pattern of
abusive conduct, Defendants essentially ordered
Five Live to assume responsibilityand all of the associated
costs of four more concerts in addition to the first six.
Defendants did so knowing that Five Live would have no choice but
to agree, as Five Live had already invested so much into the
project and would lose everything if Defendants followed through on
their threats to cancel. 166. Further, Defendants caused Five Live
to incur unnecessary expenses by providing
incomplete traveling lists, resulting in costly changes to
flight arrangements. Ms. Gonzalez decided at the very last moment
that she and Daddy Yankee would refuse to travel in the private jet
reserved for them per the Engagement Contract, and instead demanded
that Five Live purchase first-class tickets on a commercial airline
for them. 167. Then, after months of threats, and with full
knowledge that they had caused Five
Live to incur enormous expenses in preparation for a ten-concert
tour, and that cancellation of the tour would mean the loss of Five
Lives entire investment and the destruction of its
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reputation going forward, Defendants unilaterally and publicly
declaredjust two days before the first concertthat Daddy Yankee
would not travel to Argentina to perform at the concerts, based on
the spurious reason that Five Live had failed to pay 40% of the
contract. They also failed to refund any of Five Lives money. 168.
Defendants unjustifiable cancellation of the concerts on the
penultimate eve of
the tour, especially in light of their exploitation of Five
Lives vulnerability, their continual harassment of Five Live and
their knowledge of the disastrous consequences that cancellation
would have, constitutes oppressive, unscrupulous and substantially
injurious conduct. 169. Further, Defendants public campaign against
Five Live, including their deliberate
making of slanderous and libelous statements alleging that Five
Live and its principal, Plaintiff De Iraola, engaged in immoral and
even criminal conduct, together with their manipulation of industry
producers to lure them into disseminating the false information and
to hit [De Iraola] hard, likewise constitute oppressive,
unscrupulous and substantially injurious conduct. 170. Defendants
conduct constitutes an unfair act[] or practice[] in the conduct
of
any trade or commerce, in violation of FDUTPA. 171. Plaintiff
Five Live has suffered actual damages as a direct and proximate
result of
Defendants unlawful conduct. 172. Five Live paid the $820,000
purchase price in full, by making $796,895 in direct
payments and by application of a credit to make up the remainder
of the purchase price, as described in paragraph 29 above. 173.
Because Defendants cancelled the concerts, Plaintiff Five Live
effectively
purchased a product that was entirely worthlessnamely, the right
to promote and sell tickets to concerts that in fact could not take
place.
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174.
Five Live has also suffered damages in the form of the expenses
it incurred in
preparation for the concerts, in lost profits, and in expenses
incurred in the aftermath of the cancellation. Five Live purchased
the right to promote and sell tickets and merchandise at the
concerts with the reasonable expectation that it would be able to
earn a profit on the sale of such tickets and merchandise. Because
of Defendants unjustified cancellation of the concerts, the money
Five Live spent to prepare for the concerts has been entirely
wasted, Five Live has not been able to earn a profit by selling
tickets and merchandise, and Five Live has been forced to incur
even further expenses in the course of refunding tickets to
customers and unwinding the concert arrangements. 175. Plaintiffs
are therefore entitled to a judgment in an amount of actual damages
to
be determined at trial, but in no event less than $820,000,
together with pre-judgment and postjudgment interest and attorney's
fees and court costs. WHEREFORE, Plaintiffs demand a judgment in an
amount to be determined at trial, together with pre-judgment and
post-judgment interest and attorney's fees and court costs.
COUNT NINE Civil Conspiracy to Defame (Plaintiffs De Iraola and
Five Live Against All Defendants)176. Plaintiffs incorporate by
reference paragraphs 1 through 84 and paragraphs 121 through 137 as
if fully set forth herein, and further state as follows: 177. Upon
agreement amongst themselves, Defendants Daddy Yankee, El
Cartel,
Icaro, and Baldiri, and others unknown, conspired to defame and
cause injury to Plaintiffs Five Live and De Iraola. 178. The
combination of Defendants Daddy Yankee, El Cartel, Icaro, and
Baldiri
resulted in false and defamatory statements being made against
Plaintiffs De Iraola and Five Live, which include but are not
limited to statements that Plaintiffs had failed to comply with
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their contractual obligations, that De Iraola had falsified
Baldiris signature and stolen money, that De Iraola had acted on
Five Lives behalf without having authority to do so, and that
Plaintiffs were entirely responsible for Daddy Yankees failure to
perform at the concerts. 179. Defendants made or caused to be made,
among others, the following defamatory
statements: (i) Plaintiff De Iraola had falsified Baldiris
signature and had stolen money; (ii) Daddy Yankee had been a victim
of a fraud perpetrated by Plaintiff De Iraola; and (iii) De Iraola
had entered into contracts on behalf of Five Live with local
producers even though he allegedly was not affiliated with Five
Live and was not authorized to act on Five Lives behalf; (iv)
Plaintiff De Iraola owed and refused to pay more than 40% of Daddy
Yankees fee for the shows; (v) Defendants had afforded Plaintiff De
Iraola every opportunity to pay and offered him different
alternative means of complying with his contractual obligations;
(vi) Defendants goodwill and efforts had been in vain because on
the day prior to the scheduled trip to Argentina, Plaintiffs were
still in default; and, (vii) Plaintiff Five Live, under the
direction of Plaintiff De Iraola, had failed to adequately perform
its contractual obligations under the governing contract. 180.
Defendants also caused local producers, with the promise of future
contracts, to
join them in disparaging Plaintiff De Iraola and Five Live.
Baldiri even provided them with drafts of press releases that the
local producers could release to the media. 181. Defendants Daddy
Yankee, El Cartel, and Icaro committed at least one overt act
in pursuance of the conspiracy to defame and cause injury to
Plaintiffs Five Live and De Iraola, including, among others, the
publication of false and disparaging statements wrongly accusing
Plaintiffs of immoral and criminal acts in pursuit of their
business interests.
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182.
Defendants Daddy Yankee, El Cartel, Baldiri and Icaro each had a
personal stake
in the conspiracy to defame De Iraola and Five Live separate
from that of any single corporate entity. 183. The combination of
Daddy Yankee, El Cartel, Icaro, and Baldiri in their
defamatory statements about De Iraola and Five Live amounts to a
black listing of De Iraola and Five Live in the entertainment
industry so as to permanently deprive De Iraola and Five Live of a
means of earning a livelihood. 184. Plaintiff De Iraola has been
damaged as a direct and proximate result of the acts
done by Daddy Yankee, El Cartel, Icaro, and Baldiri in the
furtherance of the conspiracy. 185. Plaintiff Five Live has been
damaged as a direct and proximate result of the acts
done by Daddy Yankee, El Cartel, Icaro, and Baldiri in the
furtherance of the conspiracy. 186. Defendants Daddy Yankee, El
Cartel, Icaro, and Baldiri are jointly and severally
liable for the damages they have caused Plaintiffs Five Live and
De Iraola as a direct and proximate result of their civil
conspiracy to defame De Iraola. 187. Plaintiffs Five Live and De
Iraola are therefore entitled to a judgment in an
amount to be determined at trial, together with pre-judgment and
post-judgment interest. 188. Plaintiffs Five Live and De Iraola are
further entitled to punitive damages in an
amount to be determined at trial, together with pre-judgment and
post-judgment interest, as a consequence of their civil
conspiracies. WHEREFORE, Plaintiffs demand a judgment comprising
compensatory and punitive damages in an amount to be determined at
trial, together with pre-judgment and post-judgment interest.
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JURY DEMANDPursuant to Federal Rule of Civil Procedure 38,
Plaintiffs hereby demand a trial by jury of these claims.
PRAYER FOR RELIEFWHEREFORE, Plaintiffs pray as follows: A. On
the first cause of action, for a judgment comprising compensatory
and punitive damages in an amount to be determined at trial,
together with pre-judgment and postjudgment interest; B. On the
second cause of action, for a judgment comprising compensatory and
punitive damages in an amount to be determined at trial, together
with pre-judgment and postjudgment interest; C. On the third cause
of action, for a judgment of $820,000.00, together with
pre-judgment and post-judgment interest; D. On the fourth cause of
action, for a judgment in an amount to be determined at trial,
together with pre-judgment and post-judgment interest; E. On the
fifth cause of action, for a judgment comprising compensatory and
punitive damages in an amount to be determined at trial, together
with pre-judgment and postjudgment interest; F. On the sixth cause
of action, for a judgment in an amount to be determined at trial,
together with pre-judgment and post-judgment interest; G. On the
seventh cause of action, for a judgment in an amount to be
determined at trial, together with pre-judgment and post-judgment
interest; H. On the eighth cause of action, for a judgment in an
amount to be determined at trial, together with pre-judgment and
post-judgment interest and attorney's fees and court costs; I. On
the ninth cause of action, for a judgment comprising compensatory
and punitive damages in an amount to be determined at trial,
together with pre-judgment and postjudgment interest. J. For such
other and further relief as the Court deems just and proper.
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Dated: November 16, 2011
Respectfully submitted, ASSOULINE & BERLOWE, P.A. 3250 Mary
Street, Suite 308 Miami, Florida 33133 Telephone: (305) 567-5576
Facsimile: (305) 567-9343 By: /s/ Peter E. Berlowe Peter E. Berlowe
(FBN 143650) Daniel E. Vielleville (FBN 940496)
WINSTON & STRAWN LLP Eric W. Bloom* Toms Leonard* Margaret
Ciavarella* 1700 K Street N.W. Washington, D.C. 20006-3817 Tel:
(202) 282-5000 Fax: (202) 282-5100 [email protected]
[email protected] [email protected] *Motions for Pro Hac
Vice to be filed this week Attorneys for Plaintiffs Five for
Entertainment, S.A., d/b/a Five Live Entertainment, and Diego Hernn
de Iraola
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