ADVANTONE FLORIDA INC., a corporation, et al vs. ARGO MARKETING, a Maine corporation, et al

Complaint Information

(e\\ 1 || LYNN R. FIORENTINO (SBN 226691)

GV ARENT FOX LLP

?i‘\ 2 || 55 Second Street, 21st Floor

San Francisco, CA 94105-3470

3 || Telephone: 415.757.5500 F I L E D

Facsimile: 415.757.5501

4 (| Email: lvann.fiorentino@arentfox.com SAN MATEO COUNTY 5 || STEPHANIE A. JOYCE (SBN 198978) MAY 2 5 2018

ARENT FOX LLP '

6 || 1717 K Street NW Washington, DC 20006 7 || Telephone: 202.857.6081

Facsimile: 202.857.6395 Email: stephanie.joyce/@arentfox.com

9 || Attorneys for Plaintiffs Advantone Florida Inc., a corporation, and IntelePeer Cloud 10 || Communications LLC, a limited liability company

11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN MATEO

13 || ADVANTONE FLORIDA INC., a CASE NO. corporation; INTELEPEER CLOUD 14 || COMMUNICATIONS LLC, a limited FIRST AMENDED COMPLAINT liability company, 15 O Plaintiffs, AJ 16 v Coovwms

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@ 17 " First Amended Complaint —_— ARGO MARKETING, a Maine - 1173289 — 18 corporation; JASON J. LEVESQUE, an - individual; and DOES 1-50, iy = 19 L _ mEnE A | Defendants. &

25 NATURE OF THE ACTION

26 1. Plaintiffs bring this action to recover from Defendants damages caused by

27 || Defendants’ material breaches and repudiations of contractual payment obligations under (a) a

28 |l Promissory Note and (b) a Master Services Agreement (“MSA”) pursuant to which Plaintiffs

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have provided Defendants cloud-based communications services and advanced application capabilities (collectively, the “Contracts”). These damages include unpaid amounts due under the Contracts, together with accrued interest, penalties, and attorneys’ fees and costs.

2. Plaintiffs also seek compensatory, conéequential, and punitive damages for Defendants’ fraudulent misrepresentations and concealment of material facts, which were calculated to and did induce IntelePeer to enter into the subject Promissory Note and suspend collection of sums past due and owing on the MSA.

PARTIES

3. Plaintiff IntelePeer is a Delaware limited liability company with its headquarters in San Mateo, California. IntelePeer provides on-demand, cloud-based communications services and advanced applications capabilities to customers in California and nationwide.

4. Plaintiff Advantone is a Delaware corporation, with operations in California and other states.

5. In September 2015, IntelePeer Holdings Inc., parent company of IntelePeer Cloud Communications LLC, purchased the assets of Advantone Inc. and its subsidiary Advantone Florida Inc.. Pursuant to that Asset Purchase, IntelePeer succeeded to and assumed Advantone’s rights and benefits under the MSA.

6. Plantiffs are informed and believe and thereon allege that Defendanjc Argo Marketing (“Argo”) has its headquarters in Maine and has contacts with, among other states, California.

7. Plaintiffs are informed and believe and thereon allege that Defendant Jason J. Levesque (“Levesque™) is the CEO and majority owner of Argo.

8. Plaintiffs are informed and believe and thereon allege that Argo was the alfer ego of Levesque, and therefore the former corporate fiction should be disregarded. Plaintiffs are informed and believe and thereon allege that at various times alleged herein, Argo was not a viable business entity, and to recognize its independent existence would sanction a fraud and an injustice. In particular but without limitation, Plaintiffs are informed and believe and thereon allege that there was a unity of interest and ownership as between Levesque and Argo, Levesque

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controlled Argo and committed the wrongs alleged herein under the purported auspices of Argo, Argo was undercapitalized and/or insolvent, and Argo failed to observe corporate formalities prescribed by applicable law. In addition, Plaintiffs are informed and believe and thereon allege that Levesque exercised complete dominion over Argo generally and the transactions discussed here specifically. Permitting Levesque to hide behind the corporate fiction of Argo would be a fraud and an injustice and would jeopardize Plaintiffs’ ability to enforce and collect upon a judgment and be made whole.

0. Defendants DOES 1-50 are named herein under fictitious names, because their true names and capacities are currently unknown to Plaintiffs. Plaintiffs are informed and believe, and thereon allege, that each of said DOES is responsible, in some actionable manner, for the events and happenings hereinafter referred to, either through said Defendants’ conduct, or through the conduct of its agents, servants or employees, or in some other manner, causing the harms alleged by Plaintiffs in this Complaint. When the true names and capacities of the DOE Defendants are aécertained, Plaintiffs will amend this Complaint to set forth the same.

10. At all times relevant herein, each of the Defendants was the authorized agent of each of the other remaining Defendants, and in engaging in the conduct alleged herein acted within the course and scope of such agency.

JURISDICTION AND VENUE

11. This Court has subject matter jurisdiction over this action, because the related transactions and undertakings underlying this action were performed, negotiated, and agreed to in California, and the wrongs alleged in this action were committed in, and resulted in reasonably foreseeable injury to parties and interests in, this forum state.

12. The Court has personal jurisdiction over Defendants due to the contractual agreement between IntelePeer and Defendants, and by virtue of the facts that: (a) Defendants have done business in California or otherwise have minimum contacts in California such that this Court’s exercise of jurisdiction over them is consistent with traditional notions of their play and substantial justice; and (b) the wrongs committed by Defendants arose from those California contacts.

12. The Court has personal jurisdiction over Defendants due to the contractual agreement between IntelePeer and Defendants, and by virtue of the facts that: (a) Defendants have done business in California or otherwise have minimum contacts in California such that this Court’s exercise of jurisdiction over them is consistent with traditional notions of their play and substantial justice; and (b) the wrongs committed by Defendants arose from those California contacts. ARENT Fox LLP ATTORNEYS AT LAaw

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13. Venue is proper in this County in accordance with California Code of Civil Procedure § 395.5 in that the alleged obligations and liability arose in this County, the breaches occurred in this County, and the subject misrepresentations were directed to persons residing in this County. A substantial part of the events and omissions giving rise to Plaintiffs’ claims occurred in this County due to the contractual agreement between IntelePeer and Defendants, which was executed, at least in part, in San Mateo, IntelePeer’s principal place of business.

ALLEGATIONS COMMON TO ALL COUNTS

14, On or around August 8, 2013, Defendants entered into an agreement with Advantone (the “Master Services Agreement” or “MSA”), a true and correct copy of which is attached hereto as Exhibit 1.

15. In or about September 2015, IntelePeer acquired the assets of Advantone, thereby acquiring and succeeding to all rights, benefits, and privileges under the MSA. Following this acquisition, IntelePeer continued to provide services and equipment to Defendants in accordance with the MSA. At all relevant times, Plaintiffs have fully performed their obligations under the MSA.

16. Under the MSA, Defendants were obligated to pay monthly fees for IntelePeer’s services. Plaintiffs timely invoiced Defendants for the fees and costs due and owing under the MSA.

17. Notwithstanding Plaintiffs’ full performance under the MSA and their submission of invoices for monies owed for said performance, from May 1, 2017 to the present, Defendants have failed to pay to Plaintiffs the sums due and owing under the MSA, thereby materially breaching the MSA. Under the MSA, Defendants were and are obligated not only to pay for accrued service fees and costs, but also are subject to late fees, penalties, and related costs of collection.

18. Following Defendants’ non-payment of the amounts due and owing under the MSA, Plaintiffs made repeated demands for payment, in addition to sending monthly invoices. Defendants also reminded Plaintiffs that the MSA states that services thereunder may be discontinued in the event of late or non-payment by Defendants.

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19. Defendants persisted in their failure to pay the sums due and owing under the MSA, despite Plaintiffs’ repeated demands for payment.

20. In June and July of 2017, to induce Plaintiffs to refrain from terminating the MSA and pursuing other remedies thereunder, and induce Plaintiffs to continue to serve as Defendants’ primary provider of the services called for under the MSA, Defendants offered to execute a Promissory Note to secure their payment of the sums past due under the MSA and promised to pay for the ongoing provision of services rendered by Plaintiffs pursuant to the MSA. Defendants represented to Plaintiffs that they intended to and had the ability to pay a fixed sum of $8,562.34 each week from the date the Promissory Note was signed until the end of its three-month term. Those representations were made by Levasque to the Chief Financial Officer of IntelePeer during a telephone conversation that took place on or about July 14, 2017. Those representations were calculated to. and did induce Plaintiffs to continue to provide service to Defendants, to release telephone numbers to Defendants provided under the MSA, and to suspend further collections under the MSA.

21. In reliance on Defendants’ representations, on or about July 26, 2017, IntelePeer entered into a Promissory Note with Defendants and obtained the signature of Levesque indicating his execution of that agreement. A true and correct copy of the Promissory Note, incorporated by reference herein, is attached as Exhibit B.

22. Under the Promissory Note, Defendants agreed to pay IntelePeer the principal sum of $102,748, exclusive of interest, late fees, penalties, and attorneys’ fees and other costs of collection. The Promissory Note required that this principal sum was to be paid by Defendants in weekly instaliments of $8,562.34, beginning on July 31, 2017 and continuing until the Note was fully paid off on or before October 26, 2017. Subject to Plaintiffs’ rights and remedies under the MSA and the Promissory Note, the MSA remained in effect during the term of the Promissory Note.

23. Plaintiffs continued to fully comply with the Contracts, continuing to provide services and equipment under the MSA through September 2017.

24. However, despite further demands for payment by Plaintiffs, Defendants failed to

24. However, despite further demands for payment by Plaintiffs, Defendants failed to oo N N wn b

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make a single weekly payment or partial payment of sums due under the Promissory Note, and continued to fail to make the payments due for services rendered under the MSA.

25. On or about October 10, 2017, Plaintiffs, through counsel, sent Defendants a Notice of Default under the Promissory Note and a demand for payment of the sums due under the Contracts. Defendants failed to make any payment in response to Plaintiffs’ notice and demands, and remain in default on both Contracts.

26. Plaintiffs are informed and believe and thereon allege that Defendants had no intention of meeting their payment obligations under either the Promissory Note or the MSA, and falsely misrepresented that they would and could make such payments. At the time Defendants made those misrepresentations to Plaintiffs and concealed Defendants’ true intentions, Defendants knew that their fepresentations were false. Defendants made these fraudulent statements and concealed material facts for the express purpose of inducing detrimental reliance on the part of Plaintiffs.

27. Plaintiffs’ detrimental reliance on Defendants’ misrepresentations was reasonable, justified, and foreseeable.

28. As a direct and proximate result of the breaches and fraudulent acts and concealments committed by Defendants, Plaintiffs have suffered substantial damages in an amount in excess of this Court’s jurisdictional minimum, the precise amount of which will be determined according to proof at trial.

29. Defendants’ wrongful conduct was despicable. In committing the acts and omissions alleged herein, Defendants acted with malice, oppression, fraud, and a willful and conscious disregard of Plaintiffs’ rights. An award of exemplary and punitive damages against Defendants is therefore warranted.

WHEREFORE, Plaintiffs pray for judgment against Defendants as set forth below.

COUNT I

(Breach Of Contract (MSA) Against Argo, Levesque, and DOES 1-50)

30. Plaintiffs reallege and incorporate by reference paragraphs 1-29, above, as if fully

set forth herein.

set forth herein. ARENT Fox LLP

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31. Defendants entered into the MSA with Plaintiffs for voice communications products and related services more fully set forth in Exhibit 1. The MSA, which was negotiated and agreed to by the Parties at arms-length, was a valid contract, supported by valuable consideration.

32. At all relevant times, Plaintiffs have fully performed under the MSA, providing the contracted for communications and related services to Defendants, which services Defendants knowingly used and benefited from.

33. Plaintiffs sent Defendants timely and regular invoices and demands for payment for the services and equipment that Plaintiffs provided under the MSA.

34. Defendants have failed to and refused to pay the sums due and owing under the MSA, thereby materially breaching and repudiating their payment obligations. None of Defendants’ breaches, refusals to pay or repudiations of their contractual obligations was excused.

35. Asadirect and proximate result of Defendants’ material breaches of and repudiation of the MSA, Plaintiffs have been damaged in an amount in excess of the jurisdictional minimum of this Court, the precise amount of which to be determined according to proof at trial.

WHEREFORE, Plaintiffs pray for judgment as set forth below.

COUNT II

(Breach Of Contract (Promissory Note) Against Argo, Levesque, and DOES 1-50)

36. Plaintiffs reallege and incorporate by reference paragraphs 1-35, above, as if fully set forth herein.

37. Defendants entered into the Promissory Note with IntelePeer under which Defendants promised to make specified payments of principal and interest each week. The Promissory Note was negotiated and agreed to by the Parties at arm’s length and is a valid contract.

38. Defendants failed to make any of the payments under the Promissory Note, thereby materially breaching that contract. They also have repudiated their obligations under the Promissory Note. None of these breaches was excused or excusable.

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which reliance was justified and foreseeable, IntelePeer entered into the Note and agreed to refrain, provisionally, from exercising all rights and remedies under the MSA, and to continue to provide Services to Defendants under the MSA.

46. Plaintiffs are informed and believe and thereon allege that all of the above- referenced representations by Defendants were false. Defendants knew, but concealed from Plaintiffs, that they had no intention or ability to honor their payment obligations under the Promissory Note. Defendants’ misrepresentations were knowingly false when made.

47. As adirect and proximate result of Argo’s and Levesque’s fraudulent misrepresentations and concealment of material fact, Plaintiffs have been damaged in an amount in excess of the jurisdictional minimum of this Court, the precise amount to be determined according to proof at trial.

48. The conduct of Defendants alleged above was despicable. Defendants acted toward Plaintiffs with malice, oppression, fraud, and a willful and conscious disregard of Plaintiffs’ rights. Plaintiffs are therefore entitled to an award of exemplary and punitive damages from Defendants.

WHEREFORE, Plaintiffs pray for judgment as set forth below.

COUNT IV

(Quantum Meruit Against Argo, Levesque, and DOES 1-50)

49. Plaintiffs reallege and incorporate by reference the allegations of paragraphs 1-48, above, as if fully set forth herein.

50. In performing under the MSA, Plaintiffs provided, in good faith, valuable and substantial cloud-based communications and advanced communications applications to Defendants. Defendants received all the benefits to which they were entitled under the MSA. Defendants have never disputed that they received valuable and substantial benefits from Plaintiffs pursuant to the MSA.

51. Plaintiffs reasonably expected to be compensated for the services and benefits they provided to Defendants. Plaintiffs expended substantial cost and effort in providing said services.

52. Despite receiving valuable and substantial services and related benefits from

52. Despite receiving valuable and substantial services and related benefits from ARENT Fox LLP

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Plaintiffs, Defendants have failed to and refused to compensate Plaintiffs for those services and benefits. Defendants therefore have wrongfully obtained an unjustified windfall and have been unjustly enriched.

53. Plaintiffs are therefore entitled to recover the reasonable value of the services and benefits rendered to Defendants, the precise amount of which to be determined according to proof at trial.

WHEREFORE, Plaintiffs pray for judgment as set forth below.

COUNT V

(Unjust Enrichment Against Argo, Levesque, and DOES 1-350)

54. Plaintiffs reallege and incorporate by reference the allegations of paragraphs 1-53, above, as if fully written herein.

55. Plaintiffs provided substantial and valuable cloud-based communications and related services to the Defendants with the reasonable expectation that Plaintiffs would be paid for such services.

56. Plaintiffs have received the full value and benefits of such services but have failed to compensate Plaintiffs for them.

57. Defendants therefore have been unjustly enriched.

58. As a matter of equity, Plaintiffs are therefore entitled to receive an award of restitution from Defendants and a disgorgement of the profits that Defendants realized from the services provided by Plaintiffs, the precise amounts of which to be determined according to proof at trial.

WHEREFORE, Plaintiffs pray for judgment as set forth below.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for judgment against Defendants as follows:

1. For general damages according to proof; 2. For special damages according to proof; 3. For punitive and exemplary damages; 4. For restitution according to proof;