Liability

COUNT I

Tortious Interference with Contract

COUNT II
Tortious Interference with Advantageous Business Relationships

For Count II of its Complaint against all Defendants, Plaintiff further states and alleges as follows:

211. Plaintiff enjoyed and was the beneficiary of advantageous business relationships or expectancies with those downline distributors within the Hart Network. Plaintiff reasonably expected that its downline distributors would be a source of business, or serve as an exclusive customer base, for Plaintiff's tool and function business.
     
     
212. Defendants, and each of them, had knowledge of the business relationships and expec-tancies enjoyed by the Plaintiff.
     
     
213. Defendants intentionally and without justification interfered with Plaintiff's well-established business relation-ships and expectancies, causing the breach of the relationships and loss of the expectancies.
     
     
214. As a direct and proximate result of the Defendants' intentional inter-ference, Plaintiff has sustained damages, including, but not limited to, lost profits from tools and functions, which damages substantially exceed the minimum jurisdictional amount for this cause to be brought before this Court.
     
     
215. The conduct of the Defendants, as herein described, was outrageous because of their malice, willfulness, evil motive or reckless indifference to the rights of others. Plaintiff will seek leave, pursuant to § 768.72, Florida Statutes, to recover punitive damages.

For Count III of its Complaint against Defendants Gooch, Childers, Foley and Woods, Plaintiff further states and alleges as follows:

216. Defendants Gooch, Childers, Foley and Woods were at all times mentioned herein following the incorporation of ProNet, members of the ProNet Board of Directors and ProNet Steering Committee. Plaintiff reposed trust and confidence in Gooch, Childers, Foley and Woods, who accepted that trust and confidence. In such capacity, and because of their superior position and knowledge to that of Plaintiff and other participants within the BSMs industry, these Defendants, and each of them, owed a fiduciary duty to every ProNet member, as well as every business or entity that engaged in the tool and function business through ProNet, as directed and controlled by these Defendants. These Defendants owed the Plaintiff, as a participant in the tool and function busi-ness within the Gooch/Childers line of sponsorship, a fiduciary duty of due care and with loyalty regarding the tool and function business as administered and controlled by ProNet, including the duties to deal with Plaintiff in good faith, to treat Plaintiff equitably and in good conscience, to make full disclosure to Plaintiff of all material facts concerning Plaintiff, to act honestly and in Plaintiff's best interest, and to refrain from self-dealing.
     
     
217. Defendants breached their fiduciary duty owed to Plaintiff by engaging in self-dealing and other conduct injurious to Plaintiff, including but not limited to, the following:
     
     
     1. Defendants established pay scales setting forth the compensation that those distributors dealing with ProNet would receive for the sale of BSMs, which inequitably and unfairly inured to the Defendants' benefit and to the detriment of Plaintiff and other BSMs distributors.
        
        
     2. These Defendants set their own compensation for tools to be paid to them by Global or otherwise.
        
        
     3. These Defendants sought to secure unfair and exorbitant profits from the marketing and sale of tools and functions under the auspices of ProNet, which were paid to them to the ultimate detriment of other ProNet members, as well as those distributors participating in the tool and function business through ProNet.
        
        
     4. These Defendants sought to perpetuate themselves in total control of ProNet by re-electing themselves to the ProNet Board of Directors (and indirectly to the ProNet Steering Committee), contrary to the specific provisions of Delaware law.
        
        
     5. These Defendants withheld knowledge from ProNet members and other distributors participating through ProNet that one or more of them had directed and incorporated ProNet Profit for these Defendants' own pecuniary benefit, and to the disadvantage and injury of ProNet members and other distributors participating in the BSMs business through ProNet.
        
        
     6. Upon knowledge and belief, these Defendants have taken monies from tools and functions (including but not limited to, the aforesaid "secret pots"), that belong to other ProNet members and those distributors participating in the tool and function business through ProNet.
        
        
     7. These Defendants suspended the Harts from ProNet functions in order to benefit themselves.
        
        
     8. These Defendants orchestrated boycotts of Plaintiff in direct violation of the BSMs rules contravening the essential line of sponsorship which ProNet represented would be honored.
        
        
     9. These Defendants, while pretending to make decisions for the benefit of the ProNet members and participants, made decisions and operated ProNet for their unique pecuniary benefit while disadvantaging Plaintiff and others.
        
        
218. As a direct and proximate result of these Defendants' breaches of their fiduciary duty, Plaintiff has sustained damages, including but not limited to, lost profits from tools and functions, which damages substantially exceed the minimum jurisdictional amount for matters to be brought before this Court.
     
     
219. Defendants' aforesaid breach of their fiduciary duty, under the circumstances and events as described, was intentional and willful, and one calculated to injure and damage the Plaintiff. As such, Defendants' conduct rose to the level of an independent, intentional tort. Defendants' conduct is and was outrageous, and clearly demonstrates malice, willfulness, evil motive or reckless indifference to the rights of others. Plaintiff will seek leave, pursuant to § 768.72, Florida Statutes, to recover punitive damages.
     

COUNT IV
Violation of Florida Deceptive and Unfair Trade Practices Act,
Florida Statutes § 501.201, et seq.

For Count IV of its Complaint against all Defendants, Plaintiff further states and alleges as follows:

220. Defendants' actions as described above constitute unfair methods of competition, unconscionable acts and practices, and unfair and deceptive acts and practices in the conduct of trade or commerce (to-wit, the BSMs industry in Florida and beyond), in violation of Florida Statutes, § 501.201 et seq.
     
     
221. As a direct and proximate result of Defendants' deceptive and unfair trade practices, Plaintiff has sustained damages, including but not limited to, lost profits from tools and functions, which amount substantially exceeds the minimum jurisdictional amount for matters to be brought before this Court. In addition, Plaintiff has retained the undersigned law firms and is obligated to pay a reasonable fee for their services in this action. Pursuant to Florida Statutes § 501.201, et seq., Plaintiff, as a prevailing party, is entitled to its damages to be proven at the trial of this matter, plus costs, interest and reasonable attorneys' fees from the Defendants for their deceptive and unfair trade practices.
     

COUNT V
Breach of Implied Contract Concerning the Tool Business

For Count V of its Complaint against all Defendants, Plaintiff further states and alleges as follows:

222. Plaintiff entered into an implied-in-fact and/or implied-in-law contract with the Defendants, as well as other distributors, concerning the purchase and sale of tools within the BSMs industry.
     
     
223. The implied contract, brought about by instruction from Plaintiff's upline and by a course of dealing and business practices over years, provided that the tools be purchased from a distributor's immediate upline distributor of the same or higher pin level than the purchasing distributor, at prices universally applicable to all distributors at the same level, and with the line of sponsorship being recognized and followed or making sure that each distributor is properly compensated within the line of sponsorship.
     
     
224. Plaintiff performed in accordance with the contract.
     
     
225. Defendants, and each of them, breached the contract by failing to follow the line of sponsorship, boycotting Plaintiff, failing to properly compensate Plaintiff, and manipulating prices for the tools such that not all distributors on the same level received the same price for the same tools.
     
     
226. As a direct result of Defendants' breach of this contract, Plaintiff has incurred damages, including but not limited to, lost profits from tools and functions, which damages substantially exceed the minimum jurisdictional amount for matters to be brought before this Court.
     
     
227. Defendants' aforesaid breach of the contractt, under the circumstances and events described, was intentional and willful, and one calculated to injure and damage the Plaintiff. As such, Defendants' conduct rose to the level of an independent, intentional tort. Defendants' conduct is and was outrageous, and/or clearly demonstrates an evil motive or reckless indiffer-ence to the rights of others. Plaintiff will seek leave, pursuant to § 768.72, Florida Statutes, to recover punitive damages.

COUNT VI
Breach of Duty of Good Faith and Fair Dealing Concerning the Contract Governing the Tool Business

For Count VI of its Complaint against all Defendants, Plaintiff further states and alleges as follows:

228. In contracting and dealing with the Plaintiff in respect to the implied-in-fact and/or implied-in-law contract concerning the tool business, Defendants owed the Plaintiff a duty of good faith and fair dealing in both the performance and enforcement of the contract.
     
     
229. Defendants have heretofore breached, and continue to breach, their duty of good faith and fair dealing in respect to the implied contract concerning the tool business by all of Defendants' aforesaid acts and omissions, including but not limited to, the solicitation and taking of Plaintiff's downline for tools and functions, and the engineering of boycotts of the Plaintiff.
     
     
230. As a direct of Defendants' breach of their duty of good faith and fair dealing, Plaintiff has sustained damages, including, but not limited to, lost profits from tools and functions, which substantially exceed the minimum jurisdictional amount for matters to be brought before this Court.
     
     
231. Defendants' aforesaid breach of the covenant of good faith and fair dealing, under the circumstances and events as described, was intentional and willful, and one calculated to injure and damage the Plaintiff. As such, Defendants' conduct rose to the level of an indepen-dent, intentional tort. Defendants' conduct is and was outrageous, and/or clearly demonstrates an evil motive or reckless indifference to the rights of others. Plaintiff will seek leave, pursuant to § 768.72, Florida Statutes, to recover punitive damages.
     

COUNT VII
Breach of Implied Contract Concerning the Function Business

For Count VII of its Complaint against all Defendants, Plaintiff further states and alleges as follows:

232. Plaintiff entered into an implied-in-fact and/or implied-in-law contract with the Defendants, as well as other Amway distributors, concerning the major functions within the BSMs industry.
     
     
233. This contract, brought about by the instruction of Plaintiff's upline, as well as a course of dealing and business practices over years, provided that only Diamond distributors were permitted to sponsor major functions, at which Diamond distributors were featured speakers, and Diamond and Emerald distributors received compensation from the sponsor for those within their downline network who attended these major functions.
     
     
234. Plaintiff performed in accordance with the contract.
     
     
235. Defendants breached their contract by violating the essential line of sponsorship; by "blackballing" and/or "suspending" the Plaintiff/Harts from participating in major functions, and from being able to successfully sponsor their own; and by refusing or failing to secure Plaintiff's consent to their actions and refusing to reasonably compensate Plaintiff for its downline network of distributors who attended major functions sponsored or supported by the Defendants.
     
     
236. As a direct result of Defendants' breach of this contract, Plaintiff has incurred damages, including but not limited to, lost profits from tools and functions, which damages substantially exceed the minimum jurisdictional amount for matters to be brought before this Court.
     
     
237. Defendants' aforesaid breach of the contract, under the circumstances and events as described, was intentional and willful, and one calculated to injure and damage the Plaintiff. As such, Defendants' conduct rose to the level of an independent, intentional tort. Defendants' conduct is and was outrageous, and/or clearly demonstrates an evil motive or reckless indifference to the rights of others. Plaintiff will seek leave, pursuant to § 768.72, Florida Statutes, to recover punitive damages.
     

COUNT VIII
Breach of Duty of Good Faith and Fair Dealing
Concerning the Contract Governing the Function Business

For Count VIII of its Contract against all Defendants, Plaintiff further states and alleges as follows:

238. In contracting and dealing with the Plaintiff in respect to the implied-in-fact and/or implied-in-law contract concerning the major function business, Defendants owed the Plaintiff a duty of good faith and fair dealing in both the performance and enforcement of the contract.
     
     
239. Defendants have heretofore breached, and continue to breach, their duty of good faith and fair dealing in respect to the implied contract concerning the major function business by all of Defendants' aforesaid actions and omissions, including but not limited to, the violation of the essential line of sponsorship; the solicitation and taking of Plaintiff's downline for functions without consent and reasonable compensation; and the "blackballing" and/or "suspending" of the Plaintiff from participating in major functions.
     
     
240. As a direct result of Defendants' breach of their duty of good faith and fair dealing, Plaintiff has sustained damages, including but not limited to, lost profits from tools and functions, which damages substantially exceed the minimum jurisdictional amount for matters to be brought before this Court.
     
     
241. Defendants' aforesaid breach of their covenant of good faith and fair dealing, under the circumstances and events as described, was intentional and willful, and one calculated to injure and damage the Plaintiff. As such, Defendants' conduct rose to the level of an indepen-dent, intentional tort. Defendants' conduct is and was outrageous, and/or clearly demonstrates an evil motive or reckless indifference to the rights of others. Plaintiff will seek leave, pursuant to § 768.72, Florida Statutes, to recover punitive damages.
     

COUNT IX
Civil Conspiracy

For Count IX of its Complaint against all Defendants, Plaintiff further states and alleges as follows:

242. Plaintiff further incorporates herein by reference, as though fully set forth, each of the foregoing allegations contained in ¶¶ 206 through 241 above, and ¶¶ 248 through 274 below.
     
     
243. The Defendants' above-described concerted conduct constitutes a conspiracy to violate Florida Statutes § 501.201 et seq., to tortiously interfere with Plaintiff's contracts and advantageous business expectancies, and to commit trade libel.
     
     
244. The Defendants' conspiracy enterprise was intent upon intentionally, tortiously, willfully, maliciously, and unlawfully seizing Plaintiff's rights and benefits in and to the tool and function business afforded by the immense Hart Network.
     
     
245. Defendants' overt acts in furtherance of the conspiracy included misrepresentations by Defendants herein to the Plaintiff and others; misleading the Plaintiff's downline by blatant misrepresentations of fact, including those set forth in 256 below, so as to alienate them from the Plaintiff and its principals, the Harts; engineering boycotts of the Plaintiff/Harts; and manipulating pay scales and other divisions of profit arising out of the tool and function business, to the inherent detriment of Plaintiff and the ultimate benefit of the Defendants/conspirators.
     
     
246. As a direct and proximate result of the acts committed by Defendants in furtherance of the conspiracy, Plaintiff has incurred damages, including but not limited to, lost profits from tools and functions, which damages substantially exceed the minimum amount for matters to be brought before this Court.
     
     
247. Plaintiff will seek leave, pursuant to § 768.72, Florida Statutes, to recover punitive damages.
     

COUNT X
Promissory Estoppel

For Count X of its Complaint against all Defendants, Plaintiff further states and alleges as follows:

248. Defendants, while instructing the Plaintiff on the rules and/or agreements governing the tool and function business, promised Plaintiff that the line of sponsorship with regard to tools and functions would be respected, along with the attendant BSMs rules pertaining to same. This meant that the line of sponsorship would not be violated, and that tool and func-tion income in accordance with the BSMs rules would not be pulled away from the Plaintiff without Plaintiff's consent and without reasonable and equitable compensation being given therefor.
     
     
249. Defendants intended and reasonably expected Plaintiff to rely upon the Defendants' promises, and Defendants used these promises in late 1997 and 1998 to try to convince the Harts that ProNet would be in their best interest.
     
     
250. Defendants knew, at the time they made such representations, that they did not intend to ultimately respect and/or honor the BSMs rules, including the critical line of sponsorship with regard to the tool and function business.
     
     
251. Plaintiff did not know, and did not have the means to discover, that the representations were false or otherwise blatantly misleading and intended only to give the Plaintiff a false sense of security.
     
     
252. Plaintiff relied in good faith on Defendants' representations.
     
     
253. As a result of Defendants' representations, Plaintiff dismissed its previous lawsuit, continued to participate in the tool and function business with the Upline Defendants, all to its injury, detriment and/or prejudice.
     
     
254. Injustice to Plaintiff will be avoided only through enforcement by the Court of Defendants' promises.
     
     
255. As a direct result of Defendants' aforesaid conduct, Plaintiff has incurred damages, including but not limited to, lost profits from tools and functions, which damages substantially exceed the minimum jurisdictional amount for matters to be brought before this Court.
     

COUNT XI
Trade Libel

For Count XI of its Complaint against all Defendants, Plaintiff further states and alleges as follows:

256. Defendants published to third parties false statements of fact that disparaged the quality of Plaintiff's services, including, but not limited to, the following:
     
     
     1. the Harts have taken themselves out of circulation (as the reason the Harts were not in attendance at ProNet functions following their "suspension" by the ProNet Steering Committee);
        
        
     2. the Harts may no longer be involved in Amway;
        
        
     3. the Harts have decided to become inactive in the Amway business;
        
        
     4. the Harts are focused on other agendas instead of focusing on the Amway business;
        
        
     5. the Harts lack commitment to you and the Amway business;
        
        
     6. the Harts are withholding tool monies from you that you should be getting;
        
        
     7. the Harts cannot be trusted;
        
        
     8. the Harts are out for themselves, and have no intention of helping you build your business or profit fairly from BSMs;
        
        
     9. the problem with inadequate BSMs compensation is because the Harts are greedy, taking more than their share of the profits;
        
        
     10. the Harts are incapable of supporting you in the business;
         
         
     11. the Harts are incapable of providing you with the leadership you need and deserve in building your business; and
         
         
     12. the Harts are selling their business to the Gooch/Childers/Foley organization.
         
         
257. As a direct and proximate result of Defendants' disparagement of the quality of Plaintiff's services, which constitutes a property interest of Plaintiff, Plaintiff's downline were deterred from purchasing Plaintiff's services.
     
     
258. As a direct and proximate result of Defendants' misconduct, Plaintiff has incurred damages, including but not limited to, lost profits from tools and functions, which damages substantially exceed the minimum jurisdictional amount for matters to be brought before this Court.
     
     
259. Defendants' conduct, under the circumstances and events as described, was inten-tional, malicious, and with willful and wanton disregard of the rights and property interest of Plaintiff, and was calculated to injure and damage the Plaintiff. As such, Defendants' conduct rose to the level of an independent, intentional tort. Defendants' conduct is and was outrageous, and/or clearly demonstrates malice, willfulness, evil motive or reckless indifference to the rights of others. Plaintiff will seek leave, pursuant to § 768.72, Florida Statutes, to recover punitive damages.
     

COUNT XII
Demand for Accounting

For Count XII of its Complaint against all Defendants, Plaintiff further states and alleges as follows:

260. By reason of the fiduciary duty that was owed to Plaintiff by Gooch, Childers, Foley and Woods, the concerted activity of all of the Defendants, together with the position of superior knowledge of directing and controlling the tool and function business within the Yager/Gooch/ Childers line of sponsorship -- both before the incorporation of ProNet and thereafter -- each of the Defendants owes this Plaintiff an accounting respecting the tool and function business.
     
     
261. The aforesaid boycotts of the Plaintiff have resulted in millions of tools being sold around the Plaintiff to the Hart Network, pursuant to the knowledge and/or direction of Defendants, in complete violation of the BSMs rules and the implied contracts. Plaintiff did not receive adequate or reasonable compensation for these tools which were sold around the Plaintiff, and in many instances, the Plaintiff received no compensation at all.
     
     
262. Likewise, the boycott of the Plaintiff respecting functions meant that Plaintiff received no compensation whatsoever for its downline distributors attending functions, both before the incorporation of ProNet and thereafter.
     
     
263. Defendants are or should be in a position of trust and confidence and superior knowledge respecting the income derived from tools and functions flowing from the Hart Network since at least January 1, 1994.
     
     
264. Defendants have concealed from Plaintiff the volume of the tools sold to and purchased by the Hart Network, as well as the number of persons comprising the Hart Network who participated in major functions. Plaintiff has no way to determine the particulars in respect to this business activity, including the income flowing therefrom.
     
     
265. Defendants control the books and records reflecting the sale of BSMs (including tools and functions) made in violation of the parties' implied contracts and long-standing course of dealing, and without them being required to account, it would be difficult, if not impossible, for the Plaintiff to determine the amount of money that is owed to Plaintiff.
     
     
266. The accounts maintained by Defendants are of such complexity that a court of law, special master or jury would be unable to examine the accounts with accuracy and, therefore, Plaintiff has no adequate remedy at law. Specifically, the accounts kept by Defendants are extremely complicated in that they involve potentially thousands of distributors in the Hart Network who have either sold and/or purchased BSMs in violation of the parties' implied contracts and long-standing course of dealing, as well as the identity of those distributors in the Hart Network who participated in major functions for which the Plaintiff was not compensated. In addition, in light of the facts and circumstances alleged in this Petition, there is a strong likelihood that Defendants have engaged in fraudulent transfers or taken other fraudu-lent measures to conceal from Plaintiff the true volume of sales made in violation of the parties' implied contracts and course of dealing. Further, the conspiratorial nature of the relationship between the Defendants, as well as the fact that the relationship between the parties is established by the parties' course of dealing rather than by express contract, renders it extremely difficult to obtain a just and true account in a court of law, and requires the Court to order a full accounting by Defendants to Plaintiff.
     
     
267. For the foregoing reasons, Plaintiff demands an accounting from Defendants, and each of them, for all income received by Defendants since January 1, 1994, attributable to tools purchased or functions attended by distributors within the Hart Network.
     
     
268. Separately, Plaintiff demands an accounting from Defendants Brindley and Foley for the disposition of the assets of ProNet Brazil, including accounting for the transfer of all monies from Brazil to the United States.
     

COUNT XIII
Injunction

For Count XIII of its Complaint against all Defendants, Plaintiff further states and alleges as follows:

269. This is an action for permanent injunctive relief. Unless permanently enjoined, Defendants will continue to circumvent the lines of sponsorship, falsely disparage Plaintiff, boycott Plaintiff, and fail to properly compensate Plaintiff for its BSMs business.
     
     
270. Plaintiff will, in the future, suffer extreme hardship and actual and impending irreparable harm unless Defendants are enjoined from circumventing the lines of sponsorship, falsely disparaging Plaintiff, boycotting Plaintiff, and failing to properly compensate Plaintiff.
     
     
271. Plaintiff has a clear legal right to the relief requested in this Petition, and Plaintiff has a substantial likelihood of success on the merits.
     
     
272. Plaintiff has no adequate remedy at law in that Defendants control the books of account with regard to the monies received from the sale of BSMs outside the line of sponsorship. Defendants have denied and continue to deny Plaintiff access to those records. By virtue of Defendants' exclusive control over the books of account, there is a likelihood that such books could be lost, destroyed or manipulated. As a result, it would be extremely difficult for Plaintiff to establish its damages. This request for a permanent injunction is Plaintiff's only means for securing the relief it seeks.
     
     
273. A permanent injunction would serve the interests of the public, or would not disserve or injure any public interest.
     
     
274. The threatened injury to Plaintiff if an injunction is not granted greatly outweighs any harm to Defendants that might result from the requested injunction.
     

Request for Relief:

WHEREFORE, Plaintiff prays judgment against Defendants, jointly and severally, as follows:

1. for Plaintiff's actual damages in a just and reasonable amount, and for such other damages recoverable according to law;
   
   
2. for Plaintiff's reasonable attorneys' fees as provided in Florida Statutes § 501.201, et seq., and Plaintiff's costs herein incurred;
   
   
3. for an accounting from all Defendants as sought under Count XII for all tool and function monies derived from the Hart Network since January 1, 1994;
   
   
4. for an accounting from Defendants Foley and Brindley for the assets of ProNet Brazil, together with an accounting of all monies transferred out of Brazil to the United States or elsewhere;
   
   
5. for a permanent injunction respecting the Plaintiff enjoining the Defendants from:
   
   
   1. circumventing the lines of sponsorship;
   2. falsely disparaging Plaintiff;
   3. boycotting Plaintiff; and
   4. failing to properly and fairly compensate the Plaintiff for tools and functions.
      
      
6. for an accounting from all Defendants respecting monies received by ProNet Global and ProNet Profit for tools sold to or on behalf of and functions attended by distributors, persons and/or participants in the Yager Organization or line of sponsorship;
   
   
7. Disgorgement of all profits Defendants have received since January 1, 1996, that are attributable to tools purchased or functions attended by distributors within the Hart Network; and
   
   
8. for such other and further relief as the Court shall deem just and proper.

PLAINTIFF DEMANDS TRIAL BY JURY OF ALL ISSUES SO TRIABLE.

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This page was last updated on 5/10/2007