Infodeli, Llc. et al v. Western Robidoux, Inc. et alMOTION TO DISMISS FOR FAILURE TO STATE A CLAIM OR TO STRIKE SECOND AMENDED COMPLAINT AND INCORPORATED SUGGESTIONS IN SUPPORTW.D. Mo.November 4, 2016 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION INFODELI, LLC, et al. Plaintiffs/Counterdefendants, vs. WESTERN ROBIDOUX, INC., et al. Defendants/Counterclaimants. ) ) ) ) ) ) ) ) ) ) No. 4:15-cv-00364-BCW DEFENDANT BOEHRINGER INGELHEIM VETMEDICA, INC.’S MOTION TO DISMISS OR STRIKE PORTIONS OF PLAINTIFFS’ SECOND AMENDED COMPLAINT AND INCORPORATED SUGGESTIONS IN SUPPORT COMES NOW Defendant Boehringer Ingelheim Vetmedica, Inc. (“BIVI”) and, pursuant to Fed. R. Civ. P. 12 and 16, hereby moves to dismiss or strike Plaintiffs’ Second Amended Complaint with respect to Counts 2, 3, 9, and 13 and all new but unauthorized allegations against BIVI. As discussed below, the new claims and allegations against BIVI were not authorized by the Court and should be dismissed or stricken. Also, several of the new counts against BIVI fail to state a claim. I. Introduction The Court recently granted in part and denied in part Plaintiffs’ Motion for Leave to Amend their Complaint (Doc. 261), only allowing Plaintiffs to add six individual defendants associated with Defendant Engage Mobile Solutions, LLC (“Engage”), but denying Plaintiffs’ request to re-plead claims previously dismissed. See Order, Doc. 283. In its order granting leave for Plaintiffs to file their proposed Second Amended Complaint (“SAC,” Doc. 284), the Court did not address whether Plaintiffs had established good cause and did not grant leave to file the new allegations or counts against BIVI. However, instead of limiting its amendment to the Case 4:15-cv-00364-BCW Document 304 Filed 11/04/16 Page 1 of 7 2 claims against the new individual defendants, as authorized by the Court, Plaintiffs filed a SAC that contained new claims and new allegations regarding BIVI. Specifically, the new claims against BIVI include contributory copyright infringement (SAC, Doc. 284 at ¶¶ 187-89), tampering with computer data (id. at ¶¶ 190-211), vicarious liability for copyright infringement (id. at ¶¶ 240-44), and unjust enrichment under Missouri law (id. at ¶¶ 265-79). Plaintiffs also added new allegations against or relating to BIVI (id. at ¶¶ 43, 48-9, 60-1, 64, 102, 132, 134, 141, 150, 171, 173, 175-76, 180, 189, and 243).1 Defendants Ceva Animal Health LLC and Shane Fairchild (collectively the “Ceva Defendants”) have concurrently moved to dismiss or strike the portions of the SAC that exceed the scope of the Court’s partial grant of leave to amend and fail to state a claim upon which relief can be granted. Docs. 298 and 299. For the same reasons provided by the Ceva Defendants’ Suggestions in Support, the new claims and new allegations asserted against BIVI should also be dismissed or stricken. BIVI specifically joins in, adopts, and incorporates the arguments made by the Ceva Defendants as outlined in detail below. Likewise, Defendants Engage and Matthew Barksdale (collectively, the “Original Engage Defendants”) have concurrently moved to dismiss or strike all amendments in the SAC that do not relate to the addition of the new individual defendants (including the addition of four new copyright registrations), as well as the new unjust enrichment claim because it is preempted by federal law. Docs. 300 and 301. For the same reasons provided by the Original Engage Defendants’ Suggestions in Support, the new claims and new allegations asserted against BIVI should also be dismissed or stricken. BIVI specifically joins in, adopts, and incorporates the 1 Exhibit A, attached hereto, is a copy of the SAC with the new allegations specific to BIVI highlighted, for the Court’s convenience. Case 4:15-cv-00364-BCW Document 304 Filed 11/04/16 Page 2 of 7 3 arguments made by the Original Engage Defendants as outlined in detail below. Similarly, Defendants Western Robidoux, Inc. (“WRI”), Peter Burri, Connie Burri, Brian Burri, and Cindy Burri (collectively the “WRI Defendants”) have concurrently moved to dismiss or strike all amendments in the SAC that do not relate to the addition of the new individual defendants (including the addition of four new copyright registrations), as well as the new unjust enrichment claim because it is preempted by federal law. Docs. 302 and 303. For the same reasons provided by the WRI Defendants’ Suggestions in Support, the new claims and new allegations asserted against BIVI should also be dismissed or stricken. BIVI specifically joins in, adopts, and incorporates the arguments made by the WRI Defendants as outlined in detail below. II. Argument A. The new claims and allegations against BIVI are untimely and improper. As discussed in Section I.A of the Ceva Defendants’ Suggestions in Support, Plaintiffs’ addition of new claims and allegations against the Ceva Defendants exceeds the scope of the Court’s Order granting leave to amend the Complaint to add six individual defendants associated with Engage. Doc. 299. Similarly, as discussed in Sections I and II of the Original Engage Defendants’ Suggestions in Support, (Doc. 301), and Section I of the WRI Defendants’ Suggestions in Support, Doc. (303), the “Unauthorized Amendments” contained in the SAC should be stricken. Likewise, the addition of new claims and allegations against BIVI exceeds the limited amendment authorized by the Court. See Order, Doc. 283 at 1-3. Accordingly, the new claims and allegations against BIVI should also be dismissed. Further, the new claims and allegations are unsupported by “good cause,” as required for amendment at this stage of the litigation. See Order, Doc. 283 at 2; see also Ceva Defendants’ Suggestions in Support at Section I.B, Doc. 299; Original Engage Defendants’ Suggestions in Support at Section II, Doc. 301; WRI Defendants’ Suggestion in Support at Section II, Doc. 303. Case 4:15-cv-00364-BCW Document 304 Filed 11/04/16 Page 3 of 7 4 Plaintiffs have not shown good cause to add claims and allegations against BIVI, and Plantiffs have not provided sufficient justification as to why they waited until now to add these claims and allegations against BIVI. There has been no change in the law, no newly discovered facts, or any other changed circumstance that would provide the good cause necessary for amendment. See Hartis v. Chicago Title Ins. Co., 694 F.3d 935, 948 (8th Cir. 2012). In the absence of good cause, the new claims and allegations against BIVI should be dismissed. Accordingly, BIVI joins the Ceva Defendants’ Motion to Dismiss or Strike in regards to Counts 2 (contributory copyright infringement), 3 (tampering with computer data), 9 (vicarious liability for copyright infringement), and 13 (unjust enrichment under Missouri law). Doc. 298. BIVI also joins the Original Engage Defendants’ and the WRI Defendants’ Motions to Dismiss or Strike the Unauthorized Amendments. Docs. 300 and 302. B. Several of the new claims against BIVI fail to state a claim upon which relief can be granted. 1. Plaintiffs’ claim for unjust enrichment is preempted by federal law BIVI joins in the Ceva Defendants’ motion for dismissal of Plaintiffs’ claim for unjust enrichment and incorporates the arguments made by the Ceva Defendants in Section II.A of their brief. Doc. 299. BIVI also joins in the Original Engage Defendants’ and WRI Defendants’ motions to dismiss regarding the unjust enrichment claim. Docs. 300 and 302. For the reasons stated therein, this new claim against BIVI should be dismissed because it is preempted by federal copyright and patent law. 2. The SAC fails to state a claim against BIVI for tampering with computer data In the SAC, Plaintiffs added a new claim against BIVI for tampering with computer data. Doc. 284 at ¶¶ 190-211. Plaintiffs failed, however, to make any specific allegations regarding BIVI or identify any acts attributable to BIVI. For the same reasons as provided by the Ceva Case 4:15-cv-00364-BCW Document 304 Filed 11/04/16 Page 4 of 7 5 Defendants in Section II.B of their brief (in which BIVI joins), the generic references to “Defendants” throughout this claim and Plaintiffs’ formulaic recitation of the elements of the crime prohibited by Mo. Rev. Stat. § 569.095 are insufficient to meet the “plausible” pleading standard of Twombly and Iqbal as to BIVI. As a result, this claim should be dismissed as to BIVI. III. Conclusion Because the SAC exceeds the scope of leave for amendment granted by the Court, because Plaintiffs cannot show good cause for only now raising the new allegations and claims against BIVI, and because several of Plaintiffs’ new claims against BIVI fail to state a claim upon which relief can be granted, the Court should dismiss or strike the new claims and allegations against BIVI in the SAC, including: (a) the new claim against BIVI for contributory copyright infringement (SAC, Doc. 284 at ¶¶ 187-89); (b) the new claim against BIVI for tampering with computer data (id. at ¶¶ 190-211); (c) the new claim against BIVI for vicarious liability for copyright infringement (id. at ¶¶ 240-44); (d) the new claim against BIVI for unjust enrichment under Missouri law (id. at ¶¶ 265- 79); and (e) other new allegations against or relating to BIVI (id. at ¶¶ 43, 48-9, 60-1, 64, 102, 132, 134, 141, 150, 171, 175-76, 180, 182, 189, and 243). Case 4:15-cv-00364-BCW Document 304 Filed 11/04/16 Page 5 of 7 6 Dated: November 4, 2016 Respectfully submitted, By: /s/ Nicholas B. Clifford Laurence R. Tucker #24284 Armstrong Teasdale LLP 2345 Grand Boulevard, Suite 1500 Kansas City, Missouri 64108-2617 Telephone: 816.221.3420 Fax: 816.221.0786 lrtucker@armstrongteasdale.com Nicholas B. Clifford Armstrong Teasdale LLP 7700 Forsyth Blvd, Suite 1800 St. Louis, Missouri 63105 Telephone: 314-621-5070 Fax: 314-621-5065 nclifford@armstrongteasdale.com ATTORNEYS FOR DEFENDANT BOEHRINGER INGELHEIM VETMEDICA, INC. Case 4:15-cv-00364-BCW Document 304 Filed 11/04/16 Page 6 of 7 7 CERTIFICATE OF SERVICE I hereby certify that on November 4, 2016, the foregoing was filed electronically with the Court, with notice of the filing generated and sent electronically by the Court’s CM/ECF system to all parties of record. /s/ Nicholas B. Clifford Attorney for Boehringer Ingelheim Vetmedica, Inc Case 4:15-cv-00364-BCW Document 304 Filed 11/04/16 Page 7 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION INFODELI, LLC and BREHT C. BURRI, ) ) Plaintiffs, ) ) v. ) ) Case No. 4:15-cv-00364-BCW WESTERN ROBIDOUX, INC., ) CINDY BURRI AND BRIAN BURRI ) PETER BURRI ) CONNIE BURRI ) ) ENGAGE MOBILE SOLUTIONS, LLC. ) DARRIN CLAWSON ) MATTHEW BARKSDALE ) NATHAN HALEY ) JAMES ROBERTSON ) ) CEVA ANIMAL HEALTH, LLC. ) SHANE FAIRCHILD ) ) BOEHRINGER INGELHEIM VETMEDICA, ) INC. ) ) ELIZABETH CORBIN, ) SAI CHOW ) ANTONIO LOVE ) ) SECOND AMENDED COMPLAINT COME NOW the Plaintiffs, Breht C. Burri and InfoDeli, LLC (“InfoDeli”), and for their Second Amended Complaint (“Complaint”) against the above-named Defendants, state and allege as follows: JURISDICTION 1. This Court has subject matter jurisdiction over Plaintiffs’ claims for copyright infringement, inducement of copyright infringement and vicarious copyright infringement Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 1 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 1 of 63 2 pursuant to 17 U.S.C. § 501, and 28 U.S.C. §§ 1331 and 1338(a), and for violation of the Federal Computer Fraud and Abuse Act, 18 U.S.C. § 1030 et seq. 2. This Court has supplemental jurisdiction over Plaintiffs’ other claims pursuant to 28 U.S.C. § 1367(a) because the other claims are closely related to Plaintiff’s Federal claims, are part of the same case or controversy and derive from a common nucleus of operative facts. VENUE 3. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 and § 1400(a) because Defendants Engage Mobile Solutions, Inc. (“Engage”), Western Robidoux, Inc. (“WRI”) and Boehringer Ingelheim Vetmedica, Inc. (“BIVI”) maintain their principal place(s) of business in this District. THE PARTIES 4. Plaintiff InfoDeli is a Missouri corporation, duly licensed and in good standing, with its principal place of business located at 2107 Grand Blvd., Suite #208, Kansas City, MO 64108. 5. Plaintiff Breht C. Burri is a resident of Platte County, state of Missouri, with a home address of 5637 Gresham Circle, Parkville MO 64152. 6. Defendant WRI is a Missouri corporation in good standing, with its principal place of business located at 4006 S. 40th Street, St. Joseph MO 64503. 7. Defendant Peter E. Burri is a resident of the state of Missouri with a home address of 4612 S. Wilshire Dr., St. Joseph MO 64506 8. Defendant Brian P. Burri is a resident of the state of Missouri with a home address of 2198 NW State Route F, Union Star MO 64494. Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 2 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 2 of 63 3 9. Defendant Cindy Burri is a resident of the state of Missouri with a home address of 2198 NW State Route F, Union Star MO 64494. 10. Defendant Connie S. Burri is a resident of the state of Missouri with a home address of 1202 Heartland Road, St. Joseph MO 64506. 11. Defendant Engage Mobile Solutions, LLC is Missouri limited liability corporation with its principal place of business at 112 E. Missouri Ave., Suite 200, Kansas City MO, 64106. 12. Defendant Darrin Clawson is, on information and belief, the CEO of Engage Mobile Solutions, LLC and is a resident of the state of Missouri with a home address of 10404 N Willow Ave, Kansas City MO 64157-7731. 13. Defendant Matthew Barksdale is the President of Engage Mobile Solutions, LLC, and is a resident of the state of Missouri with a home address of 822 N. Farley Ave., Kansas City MO 64157-8538. 14. Defendant Nathan Haley is, on information and belief, a former project manager with Engage Mobile Solutions, LLC and a resident of the state of Kansas with a home address of 1942 Stewart Ave, Apt 24d, Lawrence KS 66046-2533. 15. Defendant James Robertson is, on information and belief, a former project manager with Engage Mobile Solutions, LLC and a resident of the state of Kansas with a home address of W 127th Terr., Leawood KS 66209-3339. 16. Defendant CEVA Animal Health, LLC. (“CEVA”) is a Delaware limited liability corporation duly qualified to do business in the state of Missouri. Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 3 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 3 of 63 4 17. Defendant Shane Fairchild is a Product Manager at Defendant CEVA with a home address of 8210 N.E. 102nd St., Kansas City MO 64157. 18. Defendant BIVI is a Delaware corporation duly qualified to do business in the state of Missouri with its principal place of business at 2621 N. Belt Hwy, St. Joseph, MO 64506. 19. Defendant Elizabeth Corbin is, on information and belief, a former contractor with Engage Mobile Solutions, LLC and a resident of the state of Kansas with a home address of 2700 W. 51st St. Westwood, KS 66205. 20. Defendant Sai Chow is, on information and belief, a former contractor with Engage Mobile Solutions, LLC and a resident of the state of Kansas with a home address of 5218 W. 157th Terr., Overland Park, KS 66224-3535. 21. Defendant Antonio (“Tony”) Love is, on information and belief, a former contractor with Engage Mobile Solutions, LLC and a resident of the state of Missouri with a home address of 1008 Duck Road, Grandview MO 64030. 22. Based upon the above, venue is proper in this jurisdiction. ALLEGATIONS Allegations Specific to Defendant WRI 23. Defendant WRI is a commercial printing company owned by Defendant Connie Burri, and her three sons, Plaintiff Breht Burri, Defendant Brian Burri and Defendant Peter Burri. 24. WRI was historically a printing company, and printed flyers, brochures, and other types of matter for its customers. Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 4 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 4 of 63 5 25. In 2009, WRI joined forces with Plaintiffs and created a joint venture between WRI and Plaintiffs. The joint venture brought expanded upon a fledgling business for WRI – fulfillment. In fact, WRI began doing fulfillment as a result of the Plaintiffs’ Software Platform running for BIVI. 26. Fulfillment entails storing items at WRI, and when orders come in for the items, shipping them to a destination. 27. WRI’s fulfillment business has revitalized the company, which like all printing companies, was slowly eroding due to a decrease in demand caused by the explosion of the internet. Allegations Specific to the Burri Family 28. Plaintiff Breht Burri is the oldest of three sons, and as of the filing of this Second Amended Complaint, is 53. 29. Plaintiff Breht Burri has been a loyal, faithful son and worked in the family business in school and then for about one year prior to going to law school. During that short time he worked at WRI (at the request of his father, Roger Burri) after he graduated from college but before law school, Breht brought in several important accounts (e.g., Intertec Publishing and Sosland Publishing which accounted for approximately 50% or more of the company’s revenues for many years) to WRI that generated a substantial amount of revenue for WRI over the following years. Breht neither asked for nor received compensation for the profits enjoyed by WRI from these accounts after he started law school. 30. As a young man, Plaintiff Breht Burri left the family business, obtained a degree in law, and practiced law in California for several years. Breht then decided to change career Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 5 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 5 of 63 6 paths, electing to pursue computer programming instead. Breht founded TooBaRoo, the precursor company to Plaintiff InfoDeli. InfoDeli deals in the business of software development, database development, systems licensing, web development and internet marketing. 31. Defendant Brian Burri is the middle of the three sons, and as of the filing of this First Amended Complaint is approximately 42. With perhaps a few minor exceptions, Brian has worked exclusively at WRI his entire career. 32. Defendant Peter Burri is the youngest of the three sons, and as of the filing of this First Amended Complaint is approximately 40. With perhaps a few minor exceptions, Peter has worked exclusively at WRI his entire career. 33. Defendant Cindy Burri is married to Defendant Brian Burri. Defendant Cindy Burri also works at WRI. Defendant Cindy Burri’s “LinkedIn” profile proclaims that she is the CEO of WRI. Cindy Burri’s profile states, among other things, that she handles: Software and Systems .liaison between software developers and WRI .recognize needs for systems enhancements .oversee development, implementation, training, upgrades .plan and communicate rollouts of software enhancements 34. However, Cindy Burri is not a computer programmer, and WRI does not provide software services other than using software created by others in its business. 35. On information and belief, in 2013, at least Brian Burri and Cindy Burri decided that they would no longer work with Plaintiffs. They hatched a scheme to convince Connie Burri (Breht’s mother) and Peter Burri (Breht’s brother) that Breht was disloyal and therefore Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 6 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 6 of 63 7 WRI should no longer do business with him, and of course, take his software to avoid any financial disruptions for the Burri Defendants and WRI. 36. On information and belief, their scheme was successful by at least early 2014. 37. . 38. . 39. . 40. . Allegations Specific to Plaintiff InfoDeli 41. Plaintiff InfoDeli creates and licenses Internet (or web-based) database software and systems. The “InfoDeli” platform is a database and web-based information delivery system that allows InfoDeli’s clients and customers to, among other things, order, manage and/or distribute marketing materials and provide product fulfillment in real time through a browser on the internet. Breht Burri founded InfoDeli and its predecessor company TooBaRoo on or about 1996. Breht registered the URL Infodeli.com on January 17, 1996. He was granted a trademark registration for InfoDeli on March 11, 1997. Redacted Redacted Redacted Redacted Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 7 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 7 of 63 8 42. Breht first met with BIVI in TooBaRoo’s California office regarding website development in approximately 1997. Beginning in approximately 1998, Breht Burri first began providing programming services to Defendant BIVI. 43. In 2002, Plaintiff Breht Burri first created the precursor software to the InfoDeli Software Platform. Seven (7) years later (in 2009) the InfoDeli Software Platform, which had been in continuous use at BIVI with modifications over the years, was used in the Joint Venture with WRI as explained below. Creation of the de facto Partnership between InfoDeli, Breht Burri and WRI 44. In 2009, Plaintiffs Breht Burri, InfoDeli and Defendant WRI entered into a de facto partnership (the “Joint Venture”). 45. At the start of the Joint Venture, the Burri Brothers did not own any shares of WRI stock; thereafter, as part of her estate planning, Connie Burri simultaneously and periodically gifted an equal number of shares to each of the three brothers. 46. Each brother received sixteen shares on or about December 29, 2009, sixteen shares each on the same date in 2010, and 160 shares each on the same date in 2012. 47. Breht Burri was on the Board of Directors for WRI from July of 2009 until June 4, 2014 (when Defendant Brian Burri, Defendant Peter Burri, and attorney Robert Kirkland, who claimed he was serving as proxy for Connie Burri, who was allegedly “ill” that day, voted to eliminate one director from the Board of Directors). Prior to June 4, 2014, each brother was a Director of WRI. 48. Approximately six years before the joint venture with WRI began, the InfoDeli platform launched and was already in place and used by BIVI via a direct relationship between Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 8 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 8 of 63 9 BIVI and Breht Burri. In fact, BIVI’s fulfillment services were initially provided by a different company and the InfoDeli Software Platform worked with that vendor. 49. The de facto Joint Venture terms were as follows: (a) Breht and InfoDeli provided Western Robidoux with use of InfoDeli-created software and a significant amount of Breht’s digital capabilities and expertise, along with helping sell business; in exchange, Breht was to receive compensation equal to that of his brothers, Brian Burri and Peter Burri; (b) for example, during the course of the Joint Venture with WRI, an executive from BIVI left and went to CEVA and insisted that CEVA implement the InfoDeli platform, which prompted Breht to first help sell the CEVA business1 and then he and his InfoDeli team created and deployed a new InfoDeli Software Platform installation for Ceva; (c) WRI2, BIVI (and later CEVA) were allowed to use this software at no charge as part of the services provided to them by the Joint Venture because Breht understood that he was sharing equally in the profits of WRI; (d) Plaintiffs provided hosting services for the InfoDeli Software Platforms, which were charged to WRI, and WRI passed those costs along to BIVI and CEVA; (e) Plaintiffs provided related services for BIVI and CEVA, such as email campaigns and data analysis of data from the InfoDeli Software Platforms, some of which was billed to WRI, who passed the bills along to BIVI and CEVA; (f) Plaintiffs provided billing services to WRI for the fulfillment business, i.e., Plaintiffs determined how much had been ordered, shipped, and monthly storage fees for 1 Plaintiff Breht Burri and Defendant Cindy Burri landed the CEVA account for the Joint Venture, and on June 1, 2011, Connie Burri wrote to congratulate them and said “You two are on top of it. * * * *. Good job both of you. * * * *.”; 2 Due to tax advice, InfoDeli and Breht started charging licensing fees on InfoDeli to WRI around 2013 but this was offset by reallocating a lower wage to Breht. The net amount paid did not change. Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 9 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 9 of 63 10 warehousing the physical items stored by Western Robidoux and then calculated the amounts owed to WRI by CEVA or BIVI for the fulfillment services; (g) Plaintiffs provided trouble shooting services, for example, if a customer ordered the wrong product, Plaintiffs would investigate the order history and advise CEVA as to what happened; (h) Plaintiffs provided to BIVI and CEVA use of the InfoDeli Software Platforms, which allowed their respective sales forces to place orders over the internet for printing, printed materials and non-printed premium items such as hats, shirts and pens with the customized Logos, and digital versions of printed items or links to other items; (i) after receipt of the orders through the InfoDeli Software Platform, WRI would print the items and/or ship the items with WRI’s fulfillment services; (j) Breht adapted the InfoDeli Software Platform to allow CEVA’s customers to redeem coupons and directly place orders for free samples of product through pages on other websites created by Breht Burri and the InfoDeli team; (k) these specialized windows allowed access into the InfoDeli Software Platform by the pet owner who could redeem coupons for free samples of CEVA’s products; (l) Breht Burri and InfoDeli would maintain the databases, and also process certain orders or, alternatively, directly route the orders to WRI each day, (m) Plaintiffs would sometimes further enhance or “tweak” the software with requested generalized improvements or, as the creator and owner of the software, Plantiffs would make changes to software and data systems adding functionality and features in a self-directed, autonomous fashion; (n) WRI paid Plaintiffs the same compensation (adjusted for tax purposes since Breht was self-employed) as Breht’s brothers Brian and Peter, and (p) at the end of the year, Plaintiffs, Brian and Peter would split equally whatever profits WRI paid out. 50. Plaintiffs typically billed their customers on an hourly basis for the InfoDeli programmers’ time, and also billed for hosting charges and other related services. Given the Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 10 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 10 of 63 11 unique nature of the joint venture agreement to split profits, Plaintiffs did not bill WRI for the time and energy spent running the InfoDeli Software Platforms. 51. On September 28, 2011, Mr. Tom Brodowski of CEVA wrote Cindy Burri and said “Attached is a copy of the fulfillment agreement with all the revised terms Breht and I discussed and agreed to.” Thus, Breht, pursuant to the de facto Joint Venture, negotiated the contract with CEVA on behalf of WRI. 52. By December 22, 2011, Breht had the CEVA Literature Store up and running on the InfoDeli platform. CEVA asked WRI to quote it on integrating the CEVA system with the existing WRI system, and in response, sometime in December of 2011, Defendant Cindy Burri (using detailed discussion points provided to her by Plaintiff Breht Burri) wrote back and explained the benefits of the InfoDeli Software Platform; however Cindy has candidly admitted that she cannot do what Breht does. 53. Indeed, due to substantially higher internet connection speeds available in Kansas City (as opposed to St. Joseph), basic productivity and time management required Breht to be located in Kansas City at the InfoDeli office or at a higher speed connection in the Kansas City area. Indeed, the higher speeds became the paramount in 2013 because Breht was working around the clock processing orders. Also, prior to 2013, the loss of time traveling to St. Joseph from Kansas City did not make business sense. 54. For the years 2009, 2010, 2011, 2012 and 2013, the Joint Venture functioned efficiently and smoothly, partly because Plaintiff Breht did not realize that his brothers began to be compensated at materially higher rates than himself starting in 2013. Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 11 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 1 of 63 12 55. Beginning in 2013, CEVA’s use of the InfoDeli Software Platform increased sharply, as did the orders in WRI’s order fulfillment business, particularly related to the promotional marketing of CEVA’s Vectra products and the related coupon kits ordered through the InfoDeli Software Platform. 56. Specifically, on or about December of 2012, Breht Burri and InfoDeli’s programmers created a website at VectraRebate.com3 that was tightly integrated with the InfoDeli Software Platform. This site allowed pet owners to redeem a coupon for free samples of Vectra by using redemption codes linked, managed and created in the InfoDeli database system at the URL VectraRebate.com. 57. The VectraRebate.com website launched in early 2013. The site also allowed Veterinary Clinics or CEVA Sales Representatives to directly order Vectra Program Replacement Kit Materials by entering a special reorder code in a specialized area of the site. 58. Among his other tasks, at the end of each day, to control quality and costs for CEVA, Breht would monitor and collect the Vectra Kit/Coupon orders placed that day on the InfoDeli system, process those orders for proper printing and shipping, and then forward them to WRI, who would then package and mail the kits, coupons or samples. In doing so, the Joint Venture kept its fulfillment costs down as much as possible for its customer CEVA. 59. Plaintiffs periodically calculated billable hours for programming services and notified WRI of those programming services amounts and WRI passed these costs onto CEVA; 3 Plaintiffs obtained two domain names for CEVA’s Vectra Rebate promotions – VectraRebate.com and VectraPromo.com. Both domains were eventually directed to VectraRebate.com. Thus, if someone visited the URL VectraPromo.com, they were redirected to VectraRebate.com. Because the initial site configuration was VectraPromo.com, when certain log files and analytics mention VectraPromo they are referring to a single online destination. Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 12 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 12 of 63 13 however, Plaintiffs did not directly receive any additional compensation – that compensation was paid directly to WRI. That money along with the other profits generated was then used to pay out WRI’s net profits at the end of the year to Brian, Peter and Breht. 60. Other benefits of the InfoDeli Software Platform were of significant value to CEVA and BIVI as well; for example, the InfoDeli Software Platform was capable of providing real-time, customized marketing reports for CEVA’s and BIVI’s management, purchasing, marketing and sales force. 61. When these customized marketing reports were created, sometimes Plaintiffs would sometimes bill InfoDeli’s programmers’ time to WRI for the work done, and WRI would pass these costs along to BIVI and/or CEVA. 62. The InfoDeli Software Platform also allowed certain reports to be run by authorized users. For example, authorized management could query the InfoDeli Software Platform activity and produce online and downloadable reports by Users Activity, Product Order Activity and Inventory Management. Other reports included online downloadable reports involving specific promotion’s (e.g., buy three get one free program) activity that monitored Clinics, Regions, Territories and Sales Representatives. 63. The InfoDeli Software Platform, through its customized database schema, granted users at CEVA and BIVI certain limited rights and permissions, by assigning each individual user a certain level of authorization to see information or do certain activities in the Platform. 64. For example, sales representatives with different divisions at BIVI had different rights and permissions than sales representatives other divisions. Distributor users also had a Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 13 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 13 of 63 14 different level of rights and permissions. Sales managers had even more rights and permissions while senior management or system administrators typically had the most rights and permissions available. 65. This was extremely valuable to CEVA and BIVI, as it gave the sales representatives all of their physical and electronic promotional materials in one centralized place located on one website, making them easily accessible to order physical printed items and/or to send emails with links to the materials in PDF of other file formats. 66. The system also provided marketing and product inventory reports on the system activity; in fact, the InfoDeli Software Platform was so powerful that WRI also ran their entire fulfillment warehouse for CEVA and BIVI off the front and backend of the InfoDeli Software Platform. 67. As the fulfillment orders and printing orders placed through the InfoDeli web- based database software grew, so too did WRI’s gross revenues and profits, and so too did the salaries for Brian Burri, Cindy Burri and Peter Burri, and to a lesser extent, Breht Burri (until 2014). 68. On information and belief, in 2013, Defendants Brian Burri and Cindy Burri convinced Connie Burri and Peter Burri that Breht was attempting to steal the BIVI and CEVA business, and thus the four Burri Defendants, acting in concert, set in motion the following unconscionable scheme: (a) cause WRI to pay Plaintiff Breht Burri and InfoDeli less than an equal split of the WRI profits in breach of the Joint Venture Agreement; (b) make plans to create a substantially similar software product that copied the protectable aspects of the InfoDeli Software Platforms; (c) when their substantially similar software was created in 2014, eliminate Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 14 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 14 of 63 15 the Joint Venture partnership; and (d) do all of this surreptitiously and in a way to seamlessly eliminate the Plaintiffs without interruption to the services provided to BIVI and CEVA. 69. Further, on information and belief, one or more of the Burri Defendants, whether acting alone or in concert, recruited Defendants Darrin Clawson, Matthew Barksdale, Nathan Haley, James Robertson, Elizabeth Corbin, Sai Chow, Tony Love, other Engage Mobile employees and contractors (such as Ming Yao, Eli Zager and Puneet Singla), unknown BIVI employee(s), and Shane Fairchild and other unknown CEVA employees, to assist them in their scheme to create a substantially similar software product. 70. Because Plaintiff Breht Burri was on the board of directors of WRI until June 4, 2014, on information and belief, beginning in 2013 or perhaps earlier, the Defendants Connie Burri, Brian Burri, Cindy Burri and/or Peter Burri, acting in concert, excluded Breht from WRI meetings regarding their plans to cause WRI to materially breach its de facto Joint Venture partnership with Breht Burri and InfoDeli. 71. Since Breht was a shareholder and on WRI’s Board of Directors, until 2013, Breht had unlimited access to WRI’s books at his brother’s computer whenever Breht inquired. However, on September 26, 2013, Defendants Connie, Brian and Peter Burri denied Breht Burri access to WRI’s electronic books, so that Breht could no longer see WRI’s profits (thus, he could not determine whether the terms of the Joint Venture were being fulfilled). 72. On September 26, 2013, Breht then wrote his Mother, Connie Burri, the following email: Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 15 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 15 of 63 16 73. An email from his Mother’s account replied that same day: Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 16 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 16 of 63 17 74. Connie Burri’s reference to “if you don’t want to be part of Western Robidoux” was an admission of the fact that Connie repeatedly asked Breht to become an employee and work full time at WRI’s offices in St. Joseph, but Breht had repeatedly refused to do so. 75. Breht’s refusal to accept WRI’s offer of employment was well documented such as in the February 12, 2014 email from WRI’s corporate attorney Robert Steinkamp that stated (highlighted emphasis added): Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 17 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 17 of 63 18 76. However, after this lawsuit was filed, WRI filed counterclaims that falsely claimed that Breht “represented to WRI that the fulfillment platform for CEVA and the VectraRebate.com website were owned by WRI, and that Breht Burri was acting as an employee of WRI during the time period he was working on the CEVA fulfillment platform and Vectrarebate.com website.” These claims are absolutely false and an effort to overcome the fact that any transfers of copyrights owned by contractors must be in writing. . 77. In fact, Steinkamp sent Breht a draft consulting agreement in early 2014 that required Breht to sign over the rights to his InfoDeli Software Platforms. Breht refused to sign the agreement for several reasons, one of which was the fact that the document would have Redacted Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 18 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 18 of 63 19 assigned Breht’s InfoDeli Software Platforms over to WRI. Specifically, the draft agreement included a clause that stated: Consultant agrees to, and hereby does, assign to the Company all his right, title and interest throughout the world in and to all Intellectual Property and to anything tangible, which evidences, incorporates, constitutes, represents or records any Intellectual Property. Consultant agrees that all Intellectual Property shall constitute works made for hire under the copyright laws of the United States and hereby assigns and, to the extent any such assignment cannot be made at present, Consultant hereby agrees to assign to the Company all copyrights, patents and other proprietary rights Consultant may have in any Intellectual Property, together with the right to file for and/or own wholly without restriction United States and foreign patents, trademarks, and copyrights. Consultant agrees to waive, and hereby waives, all moral rights or proprietary rights in or to any Intellectual Property and, to the extent that such rights may not be waived, agrees not to assert such rights against the Company or its licensees, successors or assigns. 78. On December 16, 2013, Breht Burri sent an email in response to his mother’s response about him not being an employee and locking him out of WRI’s books: 79. On December 17, 2013, an email from his Mother’s account responded: Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 19 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 19 of 63 20 80. On information and belief, cash flow was not “way down”, and if it was, it was a temporary situation and could have been resolved with a bridge loan from their bank or when payment was received from BIVI or CEVA. ($170,000 less than they should have received). 81. On January 6, 2014, Connie Burri, who resides in St. Joseph, was admitted to Research Hospital’s psychiatric ward in Kansas City. Breht’s spouse was advised by Cindy Burri that his mother was committed to Research Hospital’s psychiatric ward by her doctor because Connie allegedly told her doctor that she wanted to commit suicide. 82. Under Missouri law, when a patient tells their doctor they intend to commit suicide, the doctor may have a police officer take them to a psychiatric ward and commit them for a three day observation period. The statute reads: 3. A mental health coordinator may request a peace officer to take or a peace officer may take a person into custody for detention for evaluation and treatment for a period not to exceed ninety-six hours only when such mental health coordinator or peace Redacted Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 20 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 20 of 63 21 officer has reasonable cause to believe that such person is suffering from a mental disorder and that the likelihood of serious harm by such person to himself or others is imminent unless such person is immediately taken into custody. Upon arrival at the mental health facility, the peace officer or mental health coordinator who conveyed such person or caused him to be conveyed shall either present the application for detention for evaluation and treatment upon which the court has issued a finding of probable cause and the respondent was taken into custody or complete an application for initial detention for evaluation and treatment for a period not to exceed ninety-six hours which shall be based upon his own personal observations or investigations and shall contain the information required in subsection 1 of this section. Mo. Rev. Stat. Ann. § 632.305.3 (emphasis added). However, as required by law, the doctor did not commit Connie Burri and a peace officer did not commit Connie; Cindy Burri drove her from St. Joseph and had her committed without any advance warning or notice to Breht that she was being taken to Research Hospital. 83. Under § 632.315, a copy of the application for detention is supposed to be filed in Missouri state court, however no such application could be found and on information and belief, no such application exists. 84. Mo. Rev. Stat. Ann. § 632.325(2) states that “Within the ninety-six hours, the head of the mental health facility or the mental health coordinator may file a petition to have him detained for an additional period not to exceed twenty-one days, after a court hearing.” Plaintiffs have not been able to find any evidence to show that such a petition was filed or that a hearing was held. On information and belief, no such application exists. 85. Breht visited his mother the first day he was informed that she had been committed, and visited her every day thereafter until she was released. At nearly every visit, Breht’s mother told Breht she wanted to be released from the psychiatric ward immediately. Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 21 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 21 of 63 22 86. Despite her constant pleas to be released, Connie Burri was not released within 96 hours as required by state law, and in fact, on information and belief, she was held against her will in the Research Hospital psychiatric ward. 87. On information and belief, Cindy Burri and Brian Burri committed Connie Burri in an act of elder abuse and continued to have Connie held in the psych ward to gain control of WRI from her. Cindy Burri used the state statute as a reason to justify the committal, except that this was not the first time that Connie had made these kind of threats. In other words, even if Connie had threatened to take her life, she was not in danger of doing so imminently. 88. Breht’s mother was released from the psychiatric ward at Research Hospital on January 20, 2014. 89. While she resided in the psychiatric ward, Connie did not have her cell phone or other access to the internet, although she could receive calls. 90. Breht took his mother home from Research Hospital’s psych ward on January 20, 2014. On information and belief, Cindy, Brian and perhaps Peter have threatened Connie Burri with being sent back to Research’s Psych ward. 91. Indeed, despite a clear conflict of interest, WRI’s corporate counsel is Robert Steinkamp who is affiliated with Connie’s estate planning attorney Robert Kirkland. On information and belief, Steinkamp is taking directions from Cindy and Brian Burri, not WRI’s Board of Directors. 92. Furthermore, Dan Blegen, litigation counsel for WRI and all of the Burri Defendants, is also (on information and belief) taking direction from Cindy and Brian Burri, and not Connie Burri. Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 22 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 2 of 63 23 93. This creates an additional conflict of interest because all of the Burris are being defended by Mr. Blegen and his law firm German May, despite the fact that some of the Burris are far more culpable than others. Whether the Burris have signed written waivers of such conflicts is unknown. Regardless, Breht believes strongly that his mother should receive independent counsel to advise her as to what is really going on. 94. Returning to the timeline, Breht’s frustration with lack of access to the books and the overall situation at WRI continued to escalate (along with WRI’s sales), culminating in Breht sending this email to WRI (i.e., his mother and two brothers) on January 28, 2014: 95. The reference to “lit store functions” are the services that Breht provided operating the lit store and processing orders and have nothing to do with the actual copyrighted software. Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 23 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 23 of 63 24 96. In reply, an email from Connie Burri’s account responded on January 28, 2014: 97. Demanding to be paid an agreed-upon sum in exchange for services rendered is not extortion. In fact, Bob Steinkamp acknowledged the terms of the Joint Venture in an email dated February 12, 2014 where Mr. Steinkamp admitted “you demanded from your Mother, and received, equal pay, consistent with [Brian’s] pay. * * *. You contended that such parity was to continue but after checking with the Company, that was not the understanding from its standpoint. In fact WRI contends that was never the intent and will not be the reality now or in the future.” 98. Steinkamp’s email hides the identity of who he spoke to regarding Breht’s pay, but regardless, WRI is a corporation and the Board of Directors is the appropriate entity to answer Steinkamp’s questions. Since Breht was on the Board of Directors at that time, Steinkamp should have raised this issue at a Board of Directors meeting. 99. On January 29, 2014, Breht received correspondence from WRI’s attorney Bob Steinkamp that threatened Breht and instructed him not to discontinue any services per the Joint Venture Agreement. Specifically, Mr. Steinkamp wrote and said: Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 24 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 24 of 63 25 “In your latest email you suggested that your frustrations might cause you to stop ‘processing orders, performing billings or other lit store functions. . . .’ I trust that such actions (or inactions) have not and will not occur. I also trust that you will not take any actions that would disrupt the business of Western’s customers or cause damage to them or to the Company. Such acts on your part would only cause damage to you, the business (including a possible loss of those customers) and exacerbate the current situation.” 100. Because of Mr. Steinkamp’s email threatening him, and despite his invoices not being fully paid in 2014, and being denied access to the books to determine if he was paid fairly for 2013 (which he was not), Plaintiff Breht Burri continued to provide full services to WRI, CEVA and BIVI in fulfillment of his obligations under the Joint Venture and for the benefit of their joint clients, BIVI and CEVA. 101. Suspecting foul play, Breht Burri further protected his copyrights by registering his software with the United States Copyright Office, and was granted four registrations: TXu 1- 886-832 (effective date February 25, 2014 and attached hereto as Exhibit 1); TXu 1-909-698 (effective date February 25, 2014 and attached hereto as Exhibit 2); TXu 1-886-831 (effective date February 27, 2014 and attached hereto as Exhibit 3) and TXu 1-905-562 (effective date August 18, 2014 and attached hereto as Exhibit 4). 102. Since then, Plaintiffs have obtained and are obtaining additional copyright protection for certain aspects of the InfoDeli Software Platforms. Specifically, Plaintiffs have received the following additional Registrations for its InfoDeli Software Platforms - TXu001959265 (InfoDeli 4B applied for in 2015); TXu002002335 (InfoDeli 4B HTLM applied for in 2015); TXu001959227 2015 (InfoDeli 4C applied for in 2015) and TXu002002336 (InfoDeli 4C HTML applied for in 2015). Those Registrations are attached hereto as Exhibits 11-14. Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 25 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 25 of 63 26 103. Meanwhile, on information and belief, Cindy Burri, Brian Burri and Peter Burri, along with Matthew Barksdale and Darrin Clawson, acting in concert, began to put their plan into action to create a knock-off software product; . 104. Next, on March 4, 2014 (just a week prior to the Terms of Use being put on the InfoDeli Software Platform), one or more of the Burri Defendants met with Defendants Engage Mobile, LLC (a software development company), Darrin Clawson, Matthew Barksdale, Nathan Haley and Elizabeth “Liz” Corbin at Engage Mobile’s offices for a full day “technology strategy session” (i.e., a meeting to decide the best way to knock off the InfoDeli Software Platforms). Mr. Steinkamp did not tell Breht about this meeting or that WRI was attempting to replace the InfoDeli Software Platform. 105. There were seven (7) logins into the InfoDeli Software Platforms on March 4, 2014 alone, all from an IP address associated with Engage Mobile’s Kansas City offices. 106. At one point during the March 4, 2014 meeting, InfoDeli’s Software Platform was simultaneously accessed twice by Cindy Burri’s admin level log-in4 to show (on information and belief) Engage Mobile’s personnel how the InfoDeli Software Platform functioned. 4 The reader should understand that when this Complaint states that a certain person logged into the InfoDeli Software Platform as shown by the InfoDeli login files, the allegation means that is it more likely than not that the person assigned that user-name is the person accessing the Redacted Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 26 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 26 of 63 27 107. In other words, one of two things happened, either two different users logged in under Mrs. Burri’s login at the same time, or Mrs. Burri logged in twice on two different computers. Cindy Burri was not authorized by the Plaintiffs to show third parties the software and would never have received authorization to show third parties the software for the purposes of duplicating its features. 108. . 109. . 110. . 111. On or around March 6, 2014, the person(s) that logged on with Cindy Burri’s password (or someon acting in concert with that person) placed two “dummy” orders in the “live” Bimarketingservices.com/ls/ website to observe how the software processed the orders for InfoDeli Software Platform. However, it is also possible that the certain person gave someone else their username and password to log into the system. Redacted Redacted Redacted Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 27 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 27 of 63 28 purposes of replication, they viewed the “add a product” page, the “add a user” page, the “edit an order” page, plus performed several searched viewing lists of all orders using different specialized queries: open, open2 and complete. 112. At some point in time, these “dummy” orders were deleted from the system by Cindy Burri or someone acting at her direction in a failed effort to “cover their tracks”, causing damage to the InfoDeli Software Platform. 113. Indeed, there were multiple unauthorized logins into the InfoDeli Software Platform on March 4, 2014 alone, all from an IP address associated with Engage Mobile’s Kansas City offices. 114. These logins served no legitimate purpose other than to access the “live” InfoDeli Software Platforms to show Engage Mobile the look and feel of the InfoDeli Software Platforms, and to help it duplicate the copyrighted aspects and expression of the InfoDeli Software. 115. . 116. During these March 4, 2014 logins, many pages and multiple aspects of the system were viewed to display and demonstrate unique, copyrighted aspects of the InfoDeli Software Platform to Defendants Engage Mobile, Darrin Clawson, Matthew Barksdale, Nathan Haley and Liz Corbin. Redacted Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 28 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 28 of 63 29 117. Two days later on March 6, 2014 (from another Kansas City location), one (or more) of the Defendant(s) (presumably Liz Corbin) again logged into the “live” InfoDeli Software Platforms using Cindy Burri’s login and this time, and placed two (2) additional “dummy” orders. . 118. At some point in time, the two additional “dummy” orders were deleted from the InfoDeli Software Platforms, further damaging the InfoDeli system and causing the dummy orders to be unavailable as evidence in these proceedings. 119. During the March 6, 2014 login(s), one or more of the Defendants, acting in concert, also viewed “live” aspects of the InfoDeli Software Platform’s “backend” administrative systems (used by Breht and/or WRI as part of its fulfillment operations) and other unique and protected aspects of the InfoDeli systems so that Engage Mobile could create a substantially similar software product. 120. On March 11, 2014, Plaintiffs implemented a “Terms of Use” Agreement on all of InfoDeli’s Internet database software; thus, to access or use the “live” InfoDeli Software Platform, the user must agree to the Terms of Use (attached hereto as Exhibit 5). 121. In response, after WRI’s employees had agreed to the Terms of Use Agreement, WRI’s attorney Bob Steinkamp sent an email on March 11, 2014 to counsel for the Plaintiffs, and claimed/demanded that: “Early this afternoon, Breht initiated and placed a new Terms of Use policy on his website which effectively set forth terms of an agreement regarding that use that are not acceptable and never agreed to by WRI. In addition, that Policy changes the status quo. Redacted Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 29 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 29 of 63 30 As a result, he has effectively blocked and terminated WRI (sic) use of that site. We demand that this Terms of Use policy be removed immediately.” 122. Steinkamp’s claim that WRI never agreed to the Terms of Use was false. 123. Steinkamp’s claim that Plaintiffs “effectively blocked and terminated WRI’s use of [the InfoDeli Software Platforms]” was false. The InfoDeli Software Platforms were still available to WRI and WRI had complete access to them. 124. Given that WRI already agreed to the Terms of Use on the morning of March 11, 2014, WRI’s failure to use the sites simply meant that it understood that the Terms of Use were binding and enforceable, and was attempting to renege on its agreement to the Terms of Use. 125. The Terms of Use prohibited, among other things, reverse engineering and/or copying, downloading, reproducing, distributing and duplicating functionality of the InfoDeli Software Platforms. 126. Later that day, Mr. Steinkamp advised counsel for the Plaintiffs that “As I said to you previously, WRI has stopped using infodeli and has been forced to notify its clients that such software is not available at this time.” (Emphasis added). 127. Nothing forced WRI to notify its clients to stop using the InfoDeli Software Platforms, other than the fact that WRI knew it was working feverishly to copy and steal the InfoDeli Software Platforms with whatever WRI could provide to Engage Mobile. WRI did not want to be bound by the Terms of Use nor did it want BIVI or CEVA to be bound by the Terms of Use. 128. Despite Mr. Steinkamp’s claims in his March 11, 2014 email, on March 11, 2014, three different users logged into the InfoDeli Software Platform from WRI’s IP address Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 30 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 30 of 63 31 50.27.188.175 in St. Joseph, Missouri, and accepted the Terms of Use a total of 5 (five) separate times: twice on BIVI’s system and three (3) times on CEVA’s system. 129. Apparently that same day, Engage Mobile provided WRI its “Phased Approach to WRI’s Crisis Management and Digital Strategy”, dated March 11, 2014. (Emphasis added). 130. Apparently, one or more of the Burri Defendants, acting in concert, contacted CEVA and BIVI and claimed that a crisis existed because the InfoDeli Software Platform was no longer available; this obviously was untrue – the InfoDeli Software Platform remained available but WRI did not want to continue to agree to the Terms of Use since it was attempting to knock off the InfoDeli Software Platform at that time. 131. On information and belief, WRI told CEVA and BIVI that the InfoDeli Software Platform was unavailable to create panic in the minds of CEVA and BIVI, who would fear that their business would be interrupted or impeded by Plaintiffs. On information and belief, this untrue claim improperly biased CEVA and BIVI against the Plaintiffs. 132. However, at that time, the InfoDeli Software Platforms remained available and in fact, BIVI’s and CEVA’s employees continued to accept the Terms of Use and the InfoDeli Privacy Policy when logging into the Platforms. While accessing the “live” InfoDeli Software Platforms, these employees would place orders, use its search functions and use its reporting functions. 133. Approximately fifty-eight (58) CEVA users affirmatively agreed to the Terms of Use after they were first posted on March 11, 2014. Several of the Users accessing the InfoDeli Software Platforms after agreeing to the Terms of Use and Privacy Policy were “Admin” level users – typically given to managers or executives at CEVA. Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 31 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 31 of 63 32 134. Over one hundred sixty (160) users from Defendant BIVI (and its associated companies and various Distributor Users) affirmatively agreed to the Terms of Use after they were first posted on March 11, 2014. Several of the Users accessing the InfoDeli Software Platforms after agreeing to the Terms of Use and Privacy Policy were “Admin” level users – typically given to managers or executives at BIVI. 135. On March 12, 2014, the day after the Terms of Use were accepted by WRI at least five times, Defendant Brian Burri, in his alleged capacity as “Secretary of WRI” but without the approval of the Board of Directors, entered into a Master Services Agreement (“the MSA”) with Engage Mobile which stated, among other things, that “WRI has an opportunity to * * * decrease their risk/reliance on an external vendor [Plaintiffs] by implementing new technology for some aspects of their business.” The MSA is attached hereto as Exhibit 6. 136. The MSA between WRI and Engage Mobile committed to a blended rate of $125 per hour for a total estimate of $50,000 to $100,000 to create the knock-off software. . 137. 138. The MSA also explicitly admitted that: Redacted Redacted Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 32 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 32 of 63 33 * * * (Emphasis added; spelling and grammar errors in original). Notably, the very first paragraph of admits that the InfoDeli Software Platforms were created and are managed by a third party, i.e., Plaintiffs. 139. The MSA admits that the InfoDeli Software Platforms were created and managed by a third party (Plaintiffs). This reference clearly shows that WRI knew that Breht was not an employee and that WRI did not own the InfoDeli Software Platforms. Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 33 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 3 of 63 34 140. However, as explained above, numerous users from CEVA and BIVI continued to log into InfoDeli’s Software Platform, continued to accept the Terms of Use and the Privacy Policy, continued to place orders, and continued to create and check reports on the InfoDeli Software Platform well beyond March 11, 2014, thus irrevocably committing CEVA and BIVI to an agreement to the Terms of Use. 141. Additionally, the Privacy Policy, also accepted by WRI, CEVA and BIVI on March 11, 2014, allows InfoDeli to collect information to aid it in enforcing or applying its Terms of Use. 142. The InfoDeli Software Platform generates a confirmation email to a user who has placed an order on it. 143. On information and belief, after WRI claimed it was no longer using the InfoDeli Software Platform, some BIVI employees worked around WRI’s cessation of use by forwarding the confirmation emails to WRI for fulfillment, thus allowing WRI to pretend that it was not using the InfoDeli Software Platform. 144. Alternatively, on information and belief, the sales reps could have worked around this problem in several other ways, such as faxing in orders from the printed emails or obtaining specific links or descriptions to specific documents located in the InfoDeli Software Platform and forwarding/faxing or calling in those links to WRI for fulfillment. 145. One or more of the Defendants WRI, Connie Burri, Brian Burri, Cindy Burri and/or Peter Burri, acting in concert, also met with employees and managers of Defendants CEVA and BIVI to obtain their support for their plan to reverse engineer the copyrighted InfoDeli Software Platform, including but not limited to Defendant Shane Fairchild. Redacted Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 34 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 34 of 63 35 . 146. . 147. Indeed, CEVA and BIVI were unwilling to abandon the collective works and protected aspects of the InfoDeli Software Platform as a whole and thus, one or more of the Defendants, acting in concert, had to quickly develop a plan to view and/or to replicate the database schema, its data, and the database relationships for the thousands of images and documents contained within the InfoDeli Software Platforms and then copy the copyrighted schema, the database relationships and the data to the illegal replacement software. 148. On information and belief, one or more of the Defendants, acting in concert, extracted code (on information and belief), database schema, and data, by copying the exact unique names of the images, documents and assets to the knock-off software from data and information stored in the InfoDeli Software Platform’s online and/or desktop systems. 149. Redacted Redacted Redacted Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 35 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 35 of 63 36 . 150. The Plaintiffs sent Cease and Desist letters to WRI (on March 18, 2014), Engage Mobile (on May 1, 2014), CEVA (on June 2, 2014) and BIVI (on May 30, 2014). Plaintiffs also sent “litigation hold” letters asking the defendants to preserve evidence, but critical evidence was destroyed or allowed to be destroyed by all of them. 151. Demonstrating their bad faith, all of these Defendants have, on information and belief, ignored the cease and desist letters by continuing to use the knock-off software. 152. Some of the Defendants have actually denied any breach of the Terms of Use, denied infringement of the Plaintiffs’ rights, denied theft of Plaintiffs’ software and/or code and/or data and/or schema and/or denied their tortious interference with the Plaintiffs’ Joint Venture or business expectancies. Facts Specific to Defendant Shane Fairchild and/or CEVA 153. Defendant Shane Fairchild, on information and belief, assisted one or more of the Defendants and acted in concert with them to create a substantially similar software product which duplicates the copyrighted aspects of the InfoDeli Software Platform. 154. Defendant Fairchild further provided access to the InfoDeli Software Platform to Engage Mobile and/or WRI and/or other developers to allow them to create software that is, on information and belief, substantially similar to copyrighted aspects of the InfoDeli Software Platform. 155. For example, Fairchild told Breht that he would like another company called 10- Power (now called Element, LLC) to provide an email campaign, and while Breht was Redacted Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 36 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 36 of 63 37 attempting to negotiate a license with CEVA, asked Breht to provide 10-Power with information on the customers who had redeemed Vectra coupons and the clinics that they were affiliated with. 156. Breht was asked to send that information to 10-Power. When the information was provided on March 18, 2014, 10-Power, . 157. Fairchild also asked for and received a copy of Plaintiffs’ entire database for the CEVA Literature Store and the Vectra Rebate website on a thumb drive on March 20, 2014. . 158. Further, acting in bad faith, on information and belief, Defendant Fairchild pretended to negotiate with the Plaintiffs to enter into a license for the InfoDeli Software Platform to buy the other Defendants time to knock off the InfoDeli Software Platform, and within minutes of the new Vectra rebate website coming online on April 1, 2014, Mr. Fairchild ended the purported licensing negotiations with the Plaintiffs. 159. . Despite having the ability to switch the domain name to a website on servers controlled by Engage Mobile, CEVA insisted the data continue to flow to the InfoDeli Software Platform Redacted Redacted Redacted Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 37 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 37 of 63 38 for CEVA, even though Breht was not under contract and was no obligation to provide the data to anyone. 160. Breht provided some of the data for the time period from March 14 to April 1, 2014 to CEVA, but has never been compensated for the data. CEVA and WRI have now sued Plaintiffs claiming that CEVA owns the data despite accepting the InfoDeli Privacy Policy, despite the fact that the data is over two years old, and despite the fact that CEVA could have directed the customers and data elsewhere besides the InfoDeli Software Platform (but did not). 161. Through these bad faith negotiations, Defendant Fairchild convinced Plaintiffs to keep the InfoDeli Software Platform active, at no charge to CEVA (which CEVA used to its full advantage), all based upon the false pretense that CEVA would ultimately enter into a license agreement because of Plaintiffs’ show of good faith by, among other things, keeping the Platform up and running for CEVA. Facts Specific to Haley, Robertson, Corbin, Chow and Love 162. Haley, Robertson, Corbin, Chow and Love were the key individuals that reviewed information about the InfoDeli Software Platforms and then replicated it as closely as possible. 163. The initial position of Engage Mobile that its attorney provided to Plaintiffs (and presumably its contractors) was that WRI owned the software, and thus had the right to knock it off. 164. When Plaintiffs persisted in asking Engage Mobile, WRI, CEVA and BIVI to cease and desist, on information and belief, . Redacted Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 38 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 38 of 63 39 165. On information and belief, . 166. On information and belief, these individuals often used their own computers, portable drives, thumb drives, and online applications in creating the knock-off platforms. These are critical witnesses and infringers since they created the knock-off Platforms. Not a Family Dispute 167. From time to time, various non-Burri Defendants have characterized the facts alleged herein as a “family dispute”. Make no mistake, this was not a family dispute, but an effort by sophisticated entities such as CEVA and BIVI to replicate copyrighted software without paying licensing fees to the Plaintiffs to avoid interruption of service to their business. 168. Further, Engage Mobile, as a software development company, knew or should have known that its actions could potentially infringe Plaintiffs’ copyrights and that such infringement was not a “family dispute”, because the MSA prepared by Engage Mobile referred to Plaintiffs as an “external vendor”. 169. Given the brazen theft of Plaintiffs’ IP (Intellectual Property) by the Defendants, through all of the above described conduct, the Defendants have acted knowingly, willfully, wantonly, maliciously, intentionally, and recklessly in disregarding the rights of the Plaintiff, all so that they could cut Plaintiffs out of the business that Plaintiffs’ InfoDeli Software Platform made possible. 170. Out of the events alleged above, the Plaintiffs bring the following claims. Redacted Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 39 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 39 of 63 40 First Claim for Relief COPYRIGHT INFRINGEMENT (Against all Defendants) 171. Plaintiffs incorporate by reference all of the preceding paragraphs as if set forth in full at this point, including ownership of the copyrights attached as Exhibits 1-4 and 11-14, and the Terms of Use attached hereto as Exhibit 5. 172. Well prior to 2014, InfoDeli’s login screens and footers contained notice(s) that the works are copyright protected, placing users of the InfoDeli Software Platform on notice of the copyrights. 173. InfoDeli’s Software, including the structure, sequence, organization, reporting functions, database schema, administrative access codes, product identification codes, and all protectable non-literal elements are copyrightable subject matter under the laws of the United States. See Exhibits 1-4 and 11-14. Further, the selection, coordination, classification, categorizations, ordering, grouping and placement of the data may also be protectable. 174. The Defendants, or those acting at their direction, clearly accessed the Plaintiffs’ copyrighted materials for the unauthorized purpose of duplicating it, such as the demonstrations provided on March 4, 2014 at Engage Mobile Solutions, LLC. 175. As for the BIVI Literature Store and the CEVA Literature Store, one or more of the Defendants, acting in concert, worked together to extensively customize an open source5 5 If open source software is used as the platform, then the derivative software is automatically licensed to Magento for use by others on a royalty-free basis (“Licensee hereby grants Magento a perpetual and irrevocable (irrespective of the expiration or termination of this Agreement), nonexclusive, transferable, worldwide, and royalty-free license to reproduce, create derivative works of, distribute, perform, and display any derivative works of the Software developed by or Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 40 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 40 of 63 41 platform called “Magento” on an “emergency” basis, by the viewing or capturing of screen impressions from the InfoDeli system to create a substantially similar product that replicates protectable and copyrighted aspects of the InfoDeli Software Platform. 176. In other words, Defendants translated the InfoDeli Software Platforms from one computer language into another (Magento). 177. As for the Vectra Rebate website, on information and belief, . 178. On information and belief, CEVA, WRI and Engage Mobile have all failed to provide in discovery copies of the database that ran the first live version of the knock-off Vectra Rebate website, and on information and belief, all such copies were destroyed. 179. One or more of the Defendants, acting in concert, also created software that is substantially similar to the InfoDeli Software by using “screen captures” of the InfoDeli Software Platform (on information and belief), copying and, on information and belief, reproducing the structure, sequence, organization, reporting functions, database schema, administrative access codes, product identification codes, and all protectable non-literal elements of the InfoDeli Software Platform. for Licensee, and to use, make, have made, sell, offer to sell, import, export, and otherwise exploit any product based on any such derivative works.”). See http://magento.com/legal/terms/enterprise (last visited June 23, 2015). Redacted Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 41 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 41 of 63 42 180. Through these acts, the Defendants have infringed the Copyrights attached as Exhibits 11-14, and 1-2, and on information and belief, have also infringed the Copyrights attached as Exhibits 3 and 4 and other protectable aspects of the InfoDeli Software Platform. 181. Thus, the above named Defendants, whether alone or acting in concert, have infringed the Plaintiffs’ rights under copyright law. 182. These rights include the right to reproduce the InfoDeli Software Platform and to create derivative works thereof (such as creating Magento knock-offs), to license others to prepare derivative works from its InfoDeli Software Platform, and to distribute its InfoDeli Software Platform, all as set forth in 17 U.S.C. §106. 183. By reason of the foregoing, all of the individual defendants, who actively engaged in acts of infringement in the forms set forth above, as well as the corporate defendants WRI, Engage Mobile, CEVA and BIVI, and each of their officers, directors, managers and employees who controlled or directed the acts of infringement, are guilty of copyright infringement. 184. Plaintiffs are entitled to injunctive relief against all Defendants, including WRI, Engage Mobile, CEVA, BIVI, and each of their officers, directors, managers, employees, and any third parties acting at their direction to cease further infringement of the Plaintiffs’ copyrights. 185. Plaintiffs request that the Court order the impoundment or destruction of all copies of all infringing works, including all magnetic media, tapes, discs, or other articles by means of which additional infringing copies and/or derivative works may be made. Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 42 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 42 of 63 43 186. Plaintiff seeks all profits made by the Defendants due to the infringing software, as well as Plaintiffs’ damages; and costs and reasonable attorney’s fees. WHEREFORE, Plaintiffs respectfully prays that this Court enter judgment: a. Permanently enjoining WRI, Engage Mobile, CEVA and BIVI, and each of their officers, directors, managers, employees, and any third parties acting at their direction, pursuant to 17 U.S.C. §502, from any further infringement of Plaintiffs’ Copyrights; b. Ordering impoundment or destruction, pursuant to 17 U.S.C. §503, of all copies of any infringing works, including all magnetic media, tapes, discs, or other articles by means of which additional infringing copies and/or derivative works may be made; c. Pursuant to 17 U.S.C. §504, awarding the Plaintiffs their damages in the amount of each Defendants’ profits from their infringement; d. In the alternative, pursuant to 17 U.S.C. §504, awarding the Plaintiffs their actual damages; e. In the alternative, pursuant to 17 U.S.C. §504, awarding the Plaintiffs statutory damages; f. Pursuant to 17 U.S.C. §505, awarding costs and attorney fees; and g. Granting such additional and further relief as this Court deems just and proper. Second Claim for Relief CONTRIBUTORY COPYRIGHT INFRINGEMENT (Against all Defendants) 187. Plaintiffs incorporate by reference all of the preceding paragraphs as if set forth in full at this point. Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 43 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 43 of 63 44 188. Through their volitional conduct as alleged above, on information and belief, each of the above named Defendants, whether acting alone or in concert, contributorily infringed the Plaintiffs’ registered copyrights under copyright law, namely by inducing, assisting, causing, encouraging, or materially contributing to the infringement of Plaintiffs’ registered copyrights, including but not limited to infringement by reproducing the copyrighted aspects of the InfoDeli Software Platform and assisting Defendants WRI, BIVI and/or CEVA in preparing derivative works that infringe the copyrighted aspects of the InfoDeli Software Platform, when Defendants knew or had reason to know of the direct infringement of Plaintiffs’ registered copyrights, all as set forth in 17 U.S.C. §106. 189. By reason of the foregoing, the Plaintiffs hereby assert a claim against Defendants Darrin Clawson, Matthew Barksdale, Nathan Haley, James Robertson, Elizabeth Corbin, Sai Chow, Tony Love, Connie Burri, Brian Burri, Cindy Burri, Peter Burri, Matthew Barksdale, Shane Fairchild, BIVI, CEVA, Engage Mobile and WRI for injunctive relief, impoundment or destruction of all copies of any infringing works, including all tapes, discs, or other articles by means of which additional infringing copies and/or derivative works may be made; Defendants’ profits traceable to the infringement, as well as Plaintiffs’ damages; and costs and reasonable attorney’s fees. WHEREFORE, Plaintiffs respectfully prays that this Court enter judgment: a. Permanently enjoining Defendants Darrin Clawson, Matthew Barksdale, Nathan Haley, James Robertson, Elizabeth Corbin, Sai Chow, Tony Love, Connie Burri, Brian Burri, Cindy Burri, Peter Burri, Matthew Barksdale, Shane Fairchild, BIVI, CEVA, Engage Mobile and WRI pursuant to 17 U.S.C. §502, from any further acts of infringement or contributory infringement of Plaintiffs’ Copyrights; Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 44 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 4 of 63 45 b. Ordering impoundment or destruction, pursuant to 17 U.S.C. §503, of all copies of any infringing works, including all magnetic media, tapes, discs, or other articles by means of which additional infringing copies and/or derivative works may be made; c. Pursuant to 17 U.S.C. §504, awarding the Plaintiffs their damages in the amount of each Defendants’ profits from their infringement; d. In the alternative, pursuant to 17 U.S.C. §504, awarding the Plaintiffs their actual damages; e. In the alternative, pursuant to 17 U.S.C. §504, awarding the Plaintiffs statutory damages; f. Pursuant to 17 U.S.C. §505, awarding costs and reasonable attorney’s fees; and g. Granting such additional and further relief as this Court deems just and proper. Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 45 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 45 of 63 46 Third Claim for Relief TAMPERING WITH COMPUTER DATA (Against Darrin Clawson, Matthew Barksdale, Nathan Haley, James Robertson, Elizabeth Corbin, Sai Chow, Tony Love, Connie Burri, Brian Burri, Cindy Burri, Peter Burri, Matthew Barksdale, Shane Fairchild, BIVI, CEVA, Engage Mobile and WRI) 190. Plaintiffs incorporate by reference all of the preceding paragraphs as if set forth in full at this point. 191. On January 31, 2014 and February 3, 2014, Mark Crable (or someone with his credentials), a WRI employee in its graphics department, logged into the InfoDeli Software Platform built for CEVA, and on information and belief, took snapshots of numerous pages in the InfoDeli Software Platform for the express purpose of copying the copyrighted aspects of the InfoDeli Software Platform. 192. On the morning of March 4, 2014, at 6:15 AM, on information and belief, Nate Martinez, a WRI employee in its graphics department, logged into the InfoDeli Software Platform that the Plaintiffs designed and configured for BIVI, and on information and belief, took snapshots of BIVI’s Literature Store and downloaded images in preparation for the Engage Mobile meeting to be held later that day, and for the express purpose of copying the copyrighted aspects of the InfoDeli Software Platform. 193. On March 4, 2014, Cindy Burri logged into the InfoDeli Software Platforms to demonstrate them to Engage Mobile, Darrin Clawson, Matthew Barksdale, Nathan Haley and Liz Corbin. . 194. . Redacted Redacted Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 46 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 46 of 63 47 195. 196. One or more of the Defendants, whether alone or acting in concert, did knowingly, intentionally and without authorization or reasonable grounds to believe that they had authorization to do so, logged into and inputted test data into the InfoDeli Software Platform and subsequently destroyed that test data residing or existing internal to a computer, computer system, or computer network in violation of RSMo. 569.095(1). 197. One or more of the Defendants, whether alone or acting in concert, did knowingly, intentionally and without reasonable grounds to believe that they had authorization to do so, took data, programs, and/or supporting documentation residing or existing internal or external to a computer, computer system, or computer network in violation of RSMo 569.095(3). 198. On or about March 4-6, 2014, one or more of the Defendants, whether alone or acting in concert, did knowingly, intentionally and without reasonable grounds to believe that they had authorization to do so, disclosed or took passwords, identifying code, personal identification number, or other confidential information about a computer system or network that is intended to or does control access to the computer system or network in violation of RSMo. 569.095(4). 199. One or more of the Defendants, did knowingly, intentionally and without reasonable grounds to believe that they had authorization to do so, accessed computers, computer Redacted Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 47 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 47 of 63 48 systems, and/or computer networks, to intentionally examine information about another person in violation of RSMo. 569.095(5). 200. One or more of the Defendants, did knowingly and without reasonable grounds to believe that they had authorization to do so, received, retained, used, or disclosed data they knew or believed was obtained in violation of RSMo. 569.095(6). 201. On March 11, 2014, three separate users at WRI logged into the InfoDeli Software Platform and agreed to the Terms of Use approximately five times. Indeed, these users remain logged into the system on March 11, 2014 and performed substantial work. These logins were not quick, meaningless logins immediately followed by a logout. 202. In an effort to avoid the Terms of Use which WRI’s users clearly agreed to, WRI later claimed (untruthfully) to CEVA and BIVI that the InfoDeli Software Platform was “unavailable”. 203. On or about March 4-19, 2014, one or more of the Defendants, whether alone or acting in concert, did knowingly, intentionally and without reasonable grounds to believe that they had authorization to do so, accessed the InfoDeli Software Platform in violation of RSMo. 569.099. 204. One or more of the Defendants, whether alone or acting in concert, did knowingly, intentionally and without reasonable grounds to believe that they had authorization to do so, received, retained, used, or disclosed data they knew or believed was obtained in violation of RSMo. 569.095(6). 205. Specifically, using software known as a FTP (File Transfer Protocol) program, one or more of the Defendants, accessing the internet from IP Address 50.27.188.175, Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 48 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 48 of 63 49 downloaded the InfoDeli database schema (on information and belief), configurations (on information and belief), and collections of images, thumbnails, and documents stored on the InfoDeli site for use in the knock-off system. 206. These images, thumbnails and documents are virtually useless without the corresponding database schema and configurations (the relationship between the images and the data in the system). 207. Plaintiffs have been damaged by the above acts, which allowed Defendants to replicate Plaintiffs’ InfoDeli Software Platform (which took Plaintiff Breht Burri years to develop and perfect) in a very short amount of time that they otherwise could not have created so quickly and so cheaply, because once the knock-off software was up and running, Defendants were able to and did wrongfully terminate Plaintiffs’ previously successful Joint Venture with WRI. 208. Plaintiffs seek their compensatory damages as allowed by statute, including but not limited to lost profits, and/or actual, non-economic and/or economic damages suffered by them. 209. Plaintiffs have been forced to incur attorney fees to prosecute this claim and are therefore entitled to recover their attorney fees and costs pursuant to RSMo. 537.525(2). 210. Defendants acted knowingly, willfully, wantonly, maliciously, intentionally, and recklessly in disregarding the rights of the Plaintiff, all so that they could cut Plaintiffs out of the business that Plaintiffs’ InfoDeli Software Platform made possible. 211. Defendants’ actions are outrageous, and thus Plaintiffs should be entitled to an award of punitive damages as well. Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 49 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 49 of 63 50 WHEREFORE, Plaintiffs respectfully prays that this Court enter judgment in favor of Plaintiffs and award them their damages, punitive damages, attorney fees, costs, injunctive relief and all other relief available under the law. Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 50 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 50 of 63 51 Fourth Claim for Relief (Amended) TORTIOUS INTERFERENCE WITH CONTRACT AND TORTIOUS INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE (Against Connie Burri, Brian Burri, Cindy Burri, Peter Burri, CEVA and Shane Fairchild) 212. Plaintiffs incorporate by reference all of the preceding paragraphs as if set forth in full at this point. 213. Defendants Connie Burri, Brian Burri and Peter Burri are now and at all times relevant hereto were officers and/or directors of WRI. 214. Defendant Cindy Burri is Brian Burri’s wife and at all relevant times was an employee of WRI and now advertises that she is the CEO of WRI. 215. Defendants Darrin Clawson, Matthew Barksdale, Nathan Haley, James Robertson, Liz Corbin, Sai Chow and Tony Love, were at all relevant times related to Engage Mobile and (on information and belief) worked with one or more of the Burri Defendants to replace the services provided by Plaintiffs that Plaintiffs billed for, specifically, hosting services, analysis of data, billing services and bundling of data services. None of these services has anything to do with copyright infringement. 216. Other non-copyright services provided that were tortiously interfered with by EMS include: updating and maintaining WRI’s inventory system, generating billing totals for BIVI and CEVA, developing and managing email marketing campaigns, variable data printing consulting, database development, database management, preparing and delivering sales presentations, providing troubling shooting and technical support to WRI, BIVI and CEVA, creating new websites when desired, conducting client training, AWS cloud management Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 51 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 51 of 63 52 services, web hosting and marketing consulting services. None of these services are related to copyright infringement of the InfoDeli Software Platforms. 217. Defendant Shane Fairchild is a Product Manager at CEVA in charge of the Vectra Rebate program. . Fairchild’s actions wrongfully interfered with those services. 218. However, Fairchild’s and CEVA’s actions allowed Defendants to create knock- offs of the InfoDeli Software Platforms. Without the knock-off Platforms, it would have been impossible to replace Plaintiffs’ non-copyright related services, such as troubleshooting, technical support, new website development, fulfillment billing, hosting and data analysis. 219. On information and belief, all of the Defendants knew that WRI compensated the Plaintiffs for the services such as hosting, billing and data analysis. 220. The Defendants lacked legal justification to tortiously interfere with Plaintiffs’ continued expectancy of payment from WRI via the de facto Joint Venture Agreement for these services. 221. The InfoDeli Software Platform was well received by the clients and in fact, InfoDeli 5.0 was near completion in 2013 and continued to improve upon the already successful product. 222. In order to create an argument that Plaintiff Breht Burri was not servicing the accounts and software, on information and belief, one or more of the Burri Defendants altered the WRI network to deny Plaintiff Breht Burri access to the software and systems that he previously enjoyed, thus preventing him from providing full support services. Redacted Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 52 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 52 of 63 53 223. Each of the Defendants, whether acting alone or in concert, used improper means to further their own interests, including but not limited to infringing Plaintiffs’ copyrights, violating Missouri statutes on computer tampering, violating their fiduciary duties to the Plaintiff Breht Burri (WRI and the Burri Defendants only), engaging in fraud and fraudulent concealment, misrepresentation of facts, and violating the Terms of Use of the InfoDeli Software Platform. 224. Plaintiffs have been severely damaged by Defendants’ conduct, as Plaintiff Breht Burri was supposed to obtain an equal share of WRI’s profits with his two brothers in 2013 and 2014 (which was his primary source of income), but it appears that such profits were only partially paid in 2013 and only partially paid for a very small part of 2014, despite the outstanding success of the InfoDeli Software Platform and the benefits it brought to BIVI, CEVA and WRI. 225. As a result of the foregoing, Plaintiffs have been damaged in an amount to be determined at trial. 226. Defendants acted knowingly, willfully, wantonly, maliciously, intentionally, and recklessly in disregarding the rights of the Plaintiffs, all so that they could cut Plaintiffs out of the business that Plaintiffs’ InfoDeli Software Platform made possible. 227. Defendants’ actions are outrageous, and thus Plaintiffs should be entitled to an award of punitive damages as well. WHEREFORE, Plaintiffs respectfully prays that this Court enter judgment in favor of Plaintiffs and award them their damages, punitive damages, attorney fees, costs, injunctive relief and all other relief available under the law. Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 53 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 53 of 63 54 Fifth Claim for Relief Dismissed by Court’s Order to Not Exercise Supplemental Jurisdiction Sixth Claim for Relief Dismissed by Court’s Order to Not Exercise Supplemental Jurisdiction Seventh Claim for Relief Dismissed by Court’s Order to Not Exercise Supplemental Jurisdiction Eighth Claim for Relief (by Plaintiff InfoDeli LLC only) BREACH OF THE INFODELI TERMS OF USE AGREEMENT (Against Defendants BIVI, CEVA, WRI, and Shane Fairchild) 228. Plaintiff InfoDeli LLC incorporates by reference all of the preceding paragraphs as if set forth in full at this point. 229. Defendant CEVA has many employees who were active users of the CEVA InfoDeli Software Platform and systems in the course of their employment. When logging into the CEVA InfoDeli system after March 11, 2014, the users were presented with Terms of Use (“TOU”) which included, among many other provisions, the following: Users agree not to reverse engineer, copy, download, reproduce, distribute, duplicate functionality, create derivative works or adaptations of, publicly display or in any way exploit any part of the InfoDeli platform, software, or content in whole or in part except as expressly authorized in writing by InfoDeli. Users further waive any right of “fair use” as that phrase is interpreted and defined under U.S. Copyright law and agree to limit their use of the site to the purposes intended. InfoDeli does not grant any express or implied rights in InfoDeli to Users, and all rights in and to the Site and to InfoDeli’s platform, software, or Content are retained and reserved by InfoDeli. 230. Attached hereto as Exhibit 7 is a list of the CEVA employees who logged into the CEVA InfoDeli system and accepted the Terms of Use during the scope and course of their work. 231. CEVA is thus bound by the Terms of Use. Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 54 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 54 of 63 55 232. Upon information and belief, at least some of these CEVA logins were for the purpose of copying the protectable aspects of the InfoDeli system. 233. The Terms of Use which the CEVA employees, including Shane Fairchild, repeatedly agreed to in the course of performing their jobs with CEVA are binding upon CEVA and Mr. Fairchild. 234. CEVA and Mr. Fairchild materially breached the Terms of Use when Mr. Fairchild and/or the CEVA employees assisted WRI in copying the protectable aspects of the InfoDeli Software Platform. 235. Similarly, attached hereto as Exhibit 8 is a list of the Terms of Use agreed to by employees of BIVI. 236. BIVI is similarly bound by its employees’ acceptance of the Terms of Use in the scope and course of their work, and on information and belief, BIVI breached the Terms of Use when its employees assisted WRI and Engage Mobile in reverse engineering the InfoDeli Software. 237. Similarly, attached hereto as Exhibit 9 is a list of employees of WRI who agreed to the Terms of Use in the scope and course of their work. 238. WRI is similarly bound by the Terms of Use, and on information and belief, WRI breached the Terms of Use when its officers, directors, managers and/or employees assisted Engage Mobile in reverse engineering the InfoDeli Software. 239. As a proximate result of the conduct complained of herein, the Plaintiffs are entitled to compensatory and economic damages that are foreseeable due to the material breaches of the Terms of Use. Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 55 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 5 of 63 56 WHEREFORE, Plaintiff InfoDeli LLC respectfully prays that this Court enter judgment in favor of it and award it compensable damages, costs, and all other relief available under the law. Ninth Claim for Relief VICARIOUS LIABILITY FOR COPYRIGHT INFRINGEMENT (Against All Defendants) 240. Plaintiffs incorporate by reference all of the preceding paragraphs as if set forth in full at this point. 241. The above Defendants, whether acting alone or in concert, had an obvious and direct financial interest in the exploitation of the copyrighted materials. 242. The above Defendants, whether acting alone or in concert, each had the right and the ability to supervise the infringing activities. 243. Each of the above Defendants, profited from the direct infringement of Plaintiffs’ copyrights and declined to exercise the right to stop or limit the infringement. 244. The above Defendants vicariously infringed the Plaintiffs’ copyrights. WHEREFORE, Plaintiffs respectfully prays that this Court enter judgment: a. Permanently enjoining all Defendants pursuant to 17 U.S.C. §502, from any further acts of infringement or vicarious infringement of Plaintiffs’ Copyrights; b. Ordering impoundment or destruction, pursuant to 17 U.S.C. §503, of all copies of any infringing works, including all tapes, discs, or other articles by means of which additional infringing copies and/or derivative works may be made; c. Pursuant to 17 U.S.C. §504, awarding the Plaintiffs their damages in the amount of each Defendants’ profits from their infringement; Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 56 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 56 of 63 57 d. In the alternative, pursuant to 17 U.S.C. §504, awarding the Plaintiffs their actual damages; e. In the alternative, pursuant to 17 U.S.C. §504, awarding the Plaintiffs statutory damages; f. Pursuant to 17 U.S.C. §505, awarding costs and reasonable attorney’s fees; and g. Granting such additional and further relief as this Court deems just and proper. Tenth Claim for Relief VIOLATION OF THE COMPUTER FRAUD AND ABUSE ACT (18 U.S.C. § 1030 et seq.) (Against all Burri Defendants, Shane Fairchild, Engage Mobile, Darrin Clawson, Matthew Barksdale, Liz Corbin and Nathan Haley) 245. Plaintiffs incorporate by reference all of the preceding paragraphs as if set forth in full at this point. 246. Upon information and belief, all Defendants (except defendants Engage Mobile, Darrin Clawson, Nathan Haley, Matthew Barksdale and Liz Corbin, who were not authorized users of the InfoDeli Software Platform) knowingly and intentionally exceeded their authorized accessed to the Plaintiffs’ InfoDeli Software Platform. 247. Upon information and belief, Defendants Darrin Clawson, Matthew Barksdale, Nathan Haley and Liz Corbin without authorization, knowingly and intentionally accessed the Plaintiffs’ protected InfoDeli Software Platform at least on March 4, 2014 and perhaps later. 248. Upon information and belief, Defendant Engage Mobile, by and through its employees, agents and third-party contractors, without authorization, knowingly and intentionally accessed the Plaintiffs’ protected InfoDeli Software Platform. Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 57 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 57 of 63 58 249. Defendants’ conduct, whether alone or in concert, caused Plaintiffs to incur damages in the form of responding to the unauthorized access, as well as responding to the access in excess of authorization. 250. This response occurred at least in March of 2014. 251. Plaintiffs were also damaged because they were forced to perform an investigation and conduct a damage assessment of the protected InfoDeli Software Platform. 252. In order to provide extra security to the InfoDeli Software Platform to prevent further unauthorized access and/or to prevent access in excess of authorization, Plaintiffs were forced to take aspects of the InfoDeli system offline, making it unavailable, which drew complaints from CEVA, thus damaging Plaintiffs’ relationship with CEVA. 253. One or more of the Defendants, acting in concert, placed orders in the InfoDeli Software Platform, and then deleted them, all in excess of their authorization or without authorization, further damaging the system. 254. As a result of Defendants’ unauthorized, intentional access, as well as their access in excess of authorization, of Plaintiffs’ protected InfoDeli Software Platform, Plaintiffs have suffered damages and a loss of no less than $5,000.00 in the last year prior to filing this Complaint, including but not limited to its costs to respond to this offense. 255. As a result of the foregoing, Plaintiffs seek their compensatory damages in an amount to be determined at trial. 256. Defendants acted knowingly, willfully, wantonly, maliciously, intentionally, and recklessly in disregarding the rights of the Plaintiff. Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 58 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 58 of 63 59 257. Defendants’ actions are outrageous, and thus Plaintiffs should be entitled to an award of punitive damages as well. WHEREFORE, Plaintiffs respectfully prays that this Court enter judgment in favor of Plaintiffs and award them their damages, punitive damages, attorney fees, costs and all other relief available under the law. Eleventh Claim for Relief (Amended) UNFAIR COMPETITION UNDER MISSOURI COMMON LAW Deleted Paragraphs supporting this count have been deleted. Twelfth Claim for Relief ILLEGAL CIVIL CONSPIRACY UNDER MISSOURI LAW (Against All Defendants) 258. Plaintiffs incorporate by reference all of the preceding paragraphs as if set forth in full at this point. 259. Plaintiffs have alleged the following illegal and/or wrongful acts by the Defendants: copyright infringement, contributory copyright infringement, vicarious copyright infringement, violations of the computer fraud and abuse act, breach of contract, and tortious interference with contract and prospective business advantage as set forth above. 260. The wrongful acts of each of the Defendants has proximately caused damage to the Plaintiffs, as set forth above. 261. Each of the named Defendants in each of the respective wrongful and/or illegal causes of action set forth above, had an agreement or understanding amongst themselves as to that wrongful or illegal cause of action to do some or all of the above unlawful acts, and/or each of the Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 59 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 59 of 63 60 Defendants used unlawful means to do acts that would otherwise be lawful to accomplish the wrongful or illegal acts in the respective causes of action. 262. Defendants should be held jointly and severally liable for all damages caused by their co-conspirators. 263. Defendants acted knowingly, willfully, wantonly, maliciously, intentionally, and recklessly in disregarding the rights of the Plaintiff. 264. Defendants’ actions are outrageous, and thus Plaintiffs should be entitled to an award of punitive damages as well. WHEREFORE, Plaintiffs respectfully prays that this Court enter judgment in favor of Plaintiffs and award them their damages, punitive damages, attorney fees, costs, injunctive relief and all other relief available under the law. Thirteenth Claim for Relief UNJUST ENRICHMENT UNDER MISSOURI LAW (Against All Defendants) 265. Plaintiffs incorporate by reference all of the preceding paragraphs as if set forth in full at this point. 266. Defendants have taken, without compensation to Plaintiffs, substantial benefits by studying how Plaintiffs’ InfoDeli Software Platforms operate, and then providing the same functionality in their knock-off platforms. 267. Functionality is not capable of copyright protection. 268. Given the extensive functionality of the InfoDeli Software Platforms which has been replicated in the Defendants’ knock-off Platforms by studying Plaintiffs’ solutions, benefits Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 60 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 60 of 63 61 have been conferred upon the Defendants under circumstances that they should not be allowed to keep those benefits without paying the reasonable value thereof. 269. Additionally, Defendants stole data from Plaintiffs and misused databases provided to them. The data (facts) are not protectable under copyright law but the databases are. Plaintiffs do not claim unjust enrichment for any copyrightable subject matter. 270. This data is extremely valuable. In fact, Defendant Fairchild was overheard saying that he just received $1,000,000.00 worth of data when Breht provided him a backup copy of the CEVA database. 271. Data may be considered to be facts. Facts are not copyrightable, although factual compilations are copyrightable. 272. Defendants downloaded from the InfoDeli Software Platform over 9000 images and documents in order to rapidly replicate Plaintiffs’ functionality. Defendants also utilized the InfoDeli system to match data with images. 273. By taking both the data and the images correlated to the data saved Defendants a significant amount of time and, if done using WRI’s billing amounts from 2014, would have cost approximately $540,000.00. 274. WRI charges approximately $75.00 to $150.00 per product to add a new product to the InfoDeli system. This includes creating the images and the data records and adding them to the system. For each product there is a large image, a small image, a pdf document or digital file and a database record. 275. There were approximately 3,814 products in the Boehringer System. 3,814 x 125.00 = $476,750.00. Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 61 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 61 of 63 62 276. . 277. By refusing to license the InfoDeli Software Platform, CEVA was able to operate its Vectra Rebate campaign without a hitch. . 278. Defendants acted knowingly, willfully, wantonly, maliciously, intentionally, and recklessly in disregarding the rights of the Plaintiff. 279. Defendants’ actions are outrageous, and thus Plaintiffs should be entitled to an award of punitive damages as well. WHEREFORE, Plaintiffs respectfully prays that this Court enter judgment in favor of Plaintiffs and award them their damages, punitive damages, attorney fees, costs, injunctive relief and all other relief available under the law. PRAYER WHEREFORE, Plaintiffs respectfully request judgment as follows: a) For all damages available under the law; b) For punitive and/or exemplary damages; c) For all equitable and injunctive relief provided for by law; d) For costs of suit and prejudgment interest; e) For reasonable attorney’s fees and costs; f) For any additional relief that the court deems just and proper. Redacted Redacted Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 62 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 62 of 63 63 DEMAND FOR JURY TRIAL Plaintiff requests a jury trial on all issues so triable. Respectfully submitted, CAREY, DANIS & LOWE By: /s/ Paul A. Maddock Jeffrey J. Lowe Paul A. Maddock Of Counsel 8235 Forsyth Blvd., Ste. 1100 St. Louis, MO 63105 Telephone: 314-678-1205 Facsimile: 314-339-8393 pmaddock@careydanis.com CALDWELL LAW FIRM, P.C. Kenneth N. Caldwell, 1201 NW Briarcliff Pkwy, 2nd Floor Kansas City, MO 64116 Telephone: (816) 673-7655 LAW OFFICE OF JOSEPH K. EISCHENS, LLC Joseph K. Eischens 8013 Park Ridge Drive Parkville, MO 64152 Telephone: 816-945-6393 ATTORNEYS FOR THE PLAINTIFFS BREHT C. BURRI and INFODELI, LLC Case 4:15-cv-00364-BCW Document 284 Filed 10/18/16 Page 63 of 63 EXHIBIT A Case 4:15-cv-0 364-BCW Document 304-1 Filed 11/04/16 Page 63 of 63
