Documenti di Didattica
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DISTRICT
OF CALIFORNIA
Case No.
COMPLAINT FOR
BREACH OF CONTRACT
Defendants.
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COURT
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1073157
COMPLAINT
I.
This Court has original subject matter jurisdiction over this action on the
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12 the events or omissions giving rise to the claims herein occurred within this District
13 and (2) LaunchTN is subject to personal jurisdiction within this District. LaunchTN
14 sought out Pando to enter into the Collaboration Agreement at issue; that Agreement
15 was executed within this District; and LaunchTN's officers, employees and/or agents
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16 traveled to this District to promote the Agreement with Pando as well as the event that
17 was the subject of that Agreement, and to solicit companies and investment funds in
18 this District to invest in technology companies in Tennessee.
19
II.
20
PARTIES
3.
21
22 Delaware, with its principal place of business in San Francisco, California. Pando
23 publishes the website PandoDaily.com, which is a leading national online media outlet
24
and web publication, offering breaking technology news, analysis, and commentary,
26
27 under the laws of Tennessee, with its principal place of business in Tennessee, to
28 promote and support the development of high-growth companies in Tennessee.
1073157
1
COMPLAINT
III.
ALLEGATIONS
5.
4 Conference ("Southland Conference") in 2013. The inaugural event was held on June
5
12 & 13,2013, in Nashville Tennessee, the week before the popular Bonnaroo Music
6 and Arts Festival near Nashville. The purpose of the Southland Conference was to
7 introduce investors, tech media and tech companies from across the country to the
8 Southeast's early-stage tech companies.
9
6.
10 sponsorship revenue from the first Southland Conference. For many of the items on
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11 the agenda during the two-day event, the 200-to-300 seat venue was largely empty.
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7.
One star of the 2013 Southland Conference was Pando's CEO and
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13 founder Sarah Lacy, whom LaunchTN hired to conduct the first on-stage interview of
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14 the first Southland Conference. The venue was full for the interview Lacy conducted,
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15 and her performance at the 2013 Southland Conference was lauded in the local press,
16 such as http://www.nashvillescene.comlnashville/the-southland-conference-hints-at17 the-shape-of-things-to-come-for-nashvilles-tech-community/Content?oid=3438192.
18
8.
Lacy and Pando have vast experience successfully hosting similar events
19 dating back to Lacy's time at TechCrunch, for whom she hosted events like the highly
20
successful Disrupt Beijing and helped host Disrupt San Francisco and New York.
21
9.
10.
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2
COMPLAINT
11.
The 2014 Southland Conference was held between June 9-12, 2014. It
2 was much more successful than 2013. It was expanded to three days and featured
3 prominent national speakers such as Al Gore, Christy Turlington-Burns and Bill
4 Ready, with Lacy conducting the on-stage interviews. Tickets more than sold out;
5 initially, Pando and LaunchTN announced only 500 tickets would be available, but
6 ultimately some 600-700 tickets were sold. Sponsorship revenue was nearly four
7 times higher than in 2013, and total revenue was nearly $700,000, far surpassing 2013.
12.
There were conflicts between the parties, however, behind the scenes.
9 During a dispute after the conference over allocation of profits - which resulted in
10 LaunchTN paying Pando nearly $100,000 of what LaunchTN had wrongly withheldII:
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11 the Agreement was terminated in October 2014 in accordance with its terms.
13.
12
Section 6.6 of the Agreement governs the effect of the termination of the
13 Agreement. Section 6.6(a) precludes either party from using the Southland name for a
14 future event. And Section 6.6(b) expressly provides as follows:
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conference
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Southland held the week prior to the Bonnaroo Music festival so long
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Music festival.
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14.
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15.
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within
the
southeastern,
regional
target
market
of
In addition,
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28 its new flagship conference, Pando land, which would be independently produced by
1073157
3
COMPLAINT
5 entitled 36/86, which represents the latitude and longitude of Nashville. 36/86 is
6 scheduled to take place on June 8-10,2015 - two weeks before Pandoland, one week
7 prior to Bonnaroo and within a year of the termination of the Agreement - and will
8 focus on Southeastern United States culture, technology and entrepreneurship.
18.
The press release LaunchTN issued on January 6 also announced that its
10 media partners for 36/86 included not only a regional entity, Silicon Prairie News, but
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14 violation of the Agreement. On January 12,2015, Launch TN's counsel said it did not
15 view its arrangement with TechCrunch as a partnership. However, TechCrunch's core
16 business includes competing with Pando in hosting such events, its editors will be
17 performing the same roles Pando and Lacy performed such as conducting on-stage
18 interviews, and a local journalist has described the relationship as a "partnership."
19
IV.
20
21
(Breach of Contract)
22
20.
23
of the Complaint.
24
21.
22.
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23.
1 expressly prohibits LaunchTN from, within a year of the termination date of the
2 Agreement, hosting a conference within the southeastern United Stated the week prior
3 to the Bonnaroo music festival if LaunchTN partners with another national media
4 company to host the conference.
24.
6 2015, that it had partnered with TechCrunch to host its 36/86 conference, scheduled to
7 take place between June 8-10, 2015, which is the week prior to the Bonnaroo music
8 festival. Because LaunchTN partnered with TechCrunch to host a conference in the
9 southeast the week prior to Bonnaroo within one year of the termination of the
10 Agreement, LaunchTN materially breached the terms of the Agreement.
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12 - by replacing Pando with a direct competitor, TechCrunch, as its media partner for a
13 technology conference the week before Bonnaroo - LaunchTN has and will damage
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14 Pando by, inter alia, damaging Pando's goodwill and diverting to LaunchTN ticket
15 and other revenue that otherwise would have gone to Pando in an amount that exceeds
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16 the jurisdictional limit of this Court but which will be difficult to calculate with a
17 reasonable degree of certainty and will not adequately compensate Pando.
26.
18
19 the status quo established by the Agreement, Pando will suffer irreparable injury. If
20 LaunchTN is not enjoined from partnering with TechCrunch for the 36/86 conference,
21 monetary damages will be inadequate to compensate Pando for its loss of goodwill
22 resulting from the public impression that LaunchTN replaced Pando with TechCrunch
23
as its national media partner for what LaunchTN in its press release announcing 36/86
24
25
ordered to cure the breach by moving the 36/86 conference to a date other than the one
26 week this year - the week before Bonnaroo - during which LaunchTN is prohibited
27
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1073157
5
COMPLAINT
1.
2.
3.
For attorneys' fees to the extent permitted by law and the Agreement;
4.
5.
For such other and further relief as may be just and proper.
Respectfully submitted,
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1073157
6
COMPLAINT
1
2
PlaintiffPandoMedia,
3
4
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6 DATED: January 22,2015.
Respectfully submitted,
BRYANCAVELLP
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By: /s/ Roger Myers
Roger Myers
Katherine Keating
Bradley Dugan
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1073157
7
COMPLAINT
Exhibit A
SOUTHLAND
COLLABORATION
AGREEMENT
Southland
Technology
1.1 Southland.
a.
ii.
iii.
iv.
v.
vi.
vii.
viii.
b.
Event Logistics;
Startup Recruitment and Communication;
Regional Investor Recruitment;
BBQ and/or Whiskey Competition;
Southeastern Artisans and Marketplace;
Regional Sponsor Sales;
Dedicated Southland Headcount for 10 Months; and
$225,000 in Funding.
Ii.
iii.
iv.
v.
vi.
vii.
LaunchTN and Pando will collaborate to review Southland Materials (as defined
below) developed under this Agreement according to each party's standard policies
and quality review of content. As such, whether fulfilling its primary responsibilities
identified above or whether pursuing joint, collaborative efforts, each party shall
provide the other party the opportunity to review, offer input with respect to and
I
ButierSnow 17721214v1
mutually approve of such Southland Materials; provided, however, in the event the
matter pertains to such party's primary responsibilities identified under Section 1.1(a)
or (b) above, the other party shall use reasonable best efforts to review and offer input
in a timely manner and in no event longer than 3 days after receiving the opportunity
to provide input. If the primarily responsible party does not receive input within such
3-day period from the other party, then the primarily responsible party may execute
the matter in the manner it desires, so long as it is consistent with the summary
description of Southland set forth on the attached Exhibit A to this Agreement.
1.2
1.3
Endorsement/Conflicts.
Each of Pando's and LaunchTN's service marks and
trademarks may be included on Southland Materials in accordance with Article 4
below. Unless expressly prohibited herein, nothing in this Agreement is intended
to prevent Pando from engaging in other similar projects outside the southeastern,
regional scope of Southland during the term of this Agreement.
1.4
Insurance. At all times during the term of this Agreement each of Pando and
LaunchTN will maintain in force commercial liability insurance in the type and amount
appropriate and customary for the conduct of business similar in nature to the one in
which each respectively is engaged and as co-producers of Southland.
Funding
2.
2.1
Compensation. Each of Pando and LaunchTN will receive compensation for the
performance of its obligations under this Agreement in accordance with the terms of
this Agreement and as specified on Exhibit A. Any additional funding will be provided
by either party only to the extent approved by both parties in writing in advance and at
its sole discretion.
2.2
Terms of Payment. Other than with respect to National Sponsorship Sales (described
further below), LaunchTN will be desiqnated as the recipient of and will receive all
Southland ticket sales, sponsorships sales and other Southland revenues. LaunchTN
will be responsible for payments to all vendors and third-party expenses related to
Southland. With respect to all revenues received, each of Pando and LaunchTN will
provide the other party a monthly accounting of all revenues received and expenses
paid. Each of Pando and LaunchTN will make all required payments as reflected
on Exhibit A to the other party pursuant to a schedule of revenue distribution agreed
upon by both parties within ninety of the last day of the event.
a.
b.
Neither party shall sell category exclusives without the written permission of
the other party. In the event, however, that a category exclusive is granted
(example, "Official Airlines of Southland"), LaunchTN and Pando will split evenly
the revenue derived from such sponsorship.
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ButlerSnow 17721214v1
2.3
3.
3.1
Pre-Existing Materials. Each Party will retain all copyrights in all copyrightable works
in existence prior to the Effective Date ("Pre-existing Materials"). Each Party will
specifically identify to the other in writing any Pre-Existing Materials proposed for use
in connection with Southland.
3.2
Southland Materials. Other than the Pre-existing Materials, each of Pando and
LaunchTN will share joint rights to all materials provided or created pursuant to this
Agreement, including the copyright in all copyrightable works provided or created
pursuant to this Agreement ("Southland Materials"). Accordingly, each of Pando
and LaunchTN may use, copy, publish or distribute Southland Materials in its sale
discretion for any lawful purpose in furtherance of Southland. In any event, no license
or other use will be granted to any party other than LaunchTN or Pando, as reflected
herein.
3.3
Ownership of Materials. The parties each represent and warrant that the materials
created or provided by it in connection with Southland will be its original and
unpublished work, or, if applicable, that the providing party owns all right, title and
interest in the materials; and that it has the sale and exclusive right to dispose of the
materials and grant the rights granted under this Agreement, and that the materials
will contain no defamatory or unlawful matter.
4.
4.1
4.2
43
4.4
LaunchTN Trademarks.
Pando acknowledges LaunchTN's ownership of the
"Southland" name and logo, product names and logos, and other marks used by
LaunchTN in conjunction with its distribution of goods and services, hereinafter
"LaunchTN Trademarks." No license, title to or ownership of LaunchTN Trademarks,
or any part thereof, is hereby transferred to Pando or its sub-Iicensee(s). Pando
3
ButlerSnow 17721214v1
agrees that all uses of the LaunchTN Trademarks will inure to the benefit of
LaunchTN and that Pando and its sublicense will acquire no licenses, rights, interests,
or goodwill in the LaunchTN Trademarks.
5.
Representations
and Warranties
5.1
Southland Materials. Each of Pando and LaunchTN represents and warrants that
it will not alter or supplement Southland Materials already developed in any manner
other than in accordance with Section 1.1.
5.2
Arm's Length Negotiation. Each of Pando and LaunchTN represents and warrants to
the other that this Agreement has been negotiated in an arm's-length transaction.
Term and Termination
6.
6.1
Term. This Agreement will be effective upon the latest date of execution by a party
hereto (the "Effective Date") and will continue in effect until the second anniversary of
the Effective Date, unless earlier terminated in accordance with this Agreement (the
"Term"). The Term of this Agreement may be renewed and extended for successive
one-year terms, if agreed to in writing by the parties 30-days in advance of the end of
the Term or any successive renewal term, if applicable.
6.2
Exclusivity. The parties understand and agree that for purposes of this Agreement,
the "Southeast Region" means and shall consist of the following states: Alabama,
Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina,
South Carolina, Tennessee, Texas, Virginia and West Virginia. As a condition of
this Agreement, Pando agrees to exclusively produce in the Southeast Region the
Southland conference or another multiple day technology conference in Tennessee
for the term of this Agreement and for a period of three-years after termination of this
Agreement so long as Pando is still an independent operating entity. For purposes of
clarity, the parties further agree that the exclusivity provision in this Section 6.2 does
not:
6.3
a.
b.
c.
Modifications.
a. Each of Pando and LaunchTN will have the opportunity to modify any of the terms
of this Agreement with respect to revenue, expense or responsibility if agreed to
by the other party within 3D-days of the first anniversary following the Effective
Date. If neither party elects to pursue such modification, the existing terms of this
Agreement will remain in effect for the duration of the Term.
4
ButlerSnow 17721214v1
b. Notwithstanding the foregoing, if the Southland 2014 event does not result in at
least $350,000 in gross revenues generated from collective sponsorships and
ticket sales, both parties to agree to re-evaluate the terms of this Agreement
within so-days of the event in good faith and use commercially reasonable efforts
to modify the terms of this Agreement for and on behalf of the best interest of, and
the future success and improvement of, the continued viability of Southland.
7.
6.4
Breach.
Either party may terminate this Agreement if the other party materially
breaches any term or condition of this Agreement and fails to cure such breach within
thirty (30) calendar days after receipt of written notice of such breach by the other
party.
6.5
Termination.
Either party may terminate this Agreement without cause upon ten (10)
days prior written notice to the other party within the 6-months after the Southland
event. Neither party may cancel this agreement within the 6-months prior to the next
Southland event.The party terminating under this Section 6.5 will provide funding
to the other party for non-cancelable expenses and services completed by such
non-terminating party up to the date of such prior written notice and to the extent
consistent with this Agreement.
6.6
Effects of Termination.
a.
Unless otherwise mutually agreed to by both parties, if either party for any
reason terminates this Agreement, both parties will be precluded from use of the
"Southland" branding, other than the right each has to identify itself as a "CoProducer" of Southland.
b.
In the event this Agreement is terminated by either party, each party understands
and agrees that, as between Pando and LaunchTN or any of their successors
or affiliates, LaunchTN retains the right to host a conference within the
southeastern, regional target market of Southland held the week prior to the
Bonnaroo Music festival so long as LaunchTN does not partner with another
national media company for a period of one year from such termination date.
In addition, Pando retains the right to host a conference during the Bonnaroo
Music festival.
c.
In the event that either party becomes insolvent or agrees to no longer participate
in the production or promotion of a technology, entrepreneur
or investor
focused conference in the Southeast Region, the other party shall retain full
ownership, usage and branding rights to Southland. Furthermore, in the event
that LaunchTN dissolves as an entity, LaunchTN shall transfer its rights to the
"Southland" name and logo to Pando.
d.
Upon the occurrence of any event effecting termination, each party will agree to
settle any outstanding debts or owed revenues between the two parties within
60-days of such termination.
Obligations owed to any vendor or other thirdparty will be consistent with the primary responsibility allocation in effect at the
time of such termination.
Indemnification
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ButlerSnow 17721214v1
7.1
Indemnification by LaunchTN. LaunchTN will indemnify, defend and hold Pando, its
affiliates, officers, directors, agents and employees harmless against any and all third
party losses, liabilities, costs, actions, claims and other obligations and proceedings,
including any reasonable attorney's fees incurred in connection therewith which, may
arise or result in any way from:
a. the gross negligence or intentional misconduct of LaunchTN, its employees,
agents and/or subcontractors in carrying out its obligations under this
Agreement; and
h. claims of copyright or trademark infringement arising out of Pando's proper use
of LaunchTN Trademarks.
7.2
Indemnification by Pando. Pando will indemnify, defend and hold LaunchTN, its
affiliates, officers, directors, agents and employees harmless against any and all third
party losses, liabilities, costs, actions, claims and other obligations and proceedings,
including any reasonable attorney's fees incurred in connection therewith which, may
arise or result in any way from:
a.
b.
Miscellaneous
8.
8.1
Assignment. This Agreement may not be assigned by either party without the prior
written consent of the other party.
8.2
8.3
8.4
Waiver. Any failure or delay by either party in exercising any right or remedy will not
constitute a waiver. The waiver of any default will not waive a subsequent default of
the same or different type.
8.5
8.6
Choice of Law. This Agreement will be governed by the laws of the State of
Tennessee without regard to its conflict of laws provision.
'
8.7
Survival. Section 1.3, Section 1.4, Article 3, Article 4, Article 6, Article 7 and Article 8
will survive termination of this Agreement.
6
Bu!lerSnow 17721214v1
8.8
Entire Agreement.
This contract contains the entire agreement between the parties
relating to the subject matter of this Agreement, and supersedes all prior written and
oral communications between the parties.
SIGNATURE
PAGE FOLLOWS
7
ButierSnow 17721214v1
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized
officers or representatives on the date set forth below.
PandoMedia, Inc.
Name:
Title:
Date:
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property name.
Exhibit A
Southland and Budget and Compensation
Plan
LaunchTN:
Premium tix: 20%
Entre tix: 50%
Culture tix: 80%
National sponsor: 20%
Regional sponsor: 80%
The first $150,000 generated from any of the Southland revenue products will go to LaunchTN
in recognition of LaunchTN's majority funding contribution. After the initial $150,000 is paid,
subsequent payments will be trued-up to reflect the gross revenue share percentages as
reflected in this Exhibit A and any other amendments to the Agreement.
Additionally, Pando will work with LaunchTN to provide discounted promotional marketing units
on pandodaily.com over the Term of the Agreement. The discount, units and agreed upon
value will be determined following Pando's next re-design, anticipated to occur January 2014.
The parties also understand and agree that neither party shall promote, offer or accept
sponsorships (either National or Regional) on a basis different from the mutually agreed-upon
sponsorship packages established by the parties without first obtaining the other party's consent
which shall not be unreasonably withheld.
LaunchTN's
1.
2.
3.
4.
5.
6.
7.
8.
9.
Nissan
Volkswagen
CNN
FedEx
Coca Cola
Eastman
American Airlines
Dell
IndieGogo
Exhibit B
National Sponsorship
Exclusions