UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Norfolk Division
MICHAEL D. VICK,
Plaintiff,
v. Civil Action No. 2:09 cv
MARY ROY WONG JURY TRIAL DEMANDED and
WILLIAMS AND BULLOCKS, L.L.C.,
Defendants.
COMPLAINT
Plaintiff Michael D. Vick, by his attorneys Crowell & Moring LLP, as and for his complaint against the Defendants, alleges as follows:
NATURE OF THE ACTION
1. By this action, Plaintiff Michael D. Vick (the "Plaintiff') seeks to recover damages pursuant to federal securities law and common law for the Defendants' fraud, breach of
Peter R. Ginsberg, Esq. Michael V. Blumcnthal, Esq. Crowell & Moring LLP 153 East 53rd Street, 31s Floor New York, NY 10022 (212) 223-4000 - Telephone (212) 223-4134-Facsimile Counsel for Plaintiff
Paul K. Campsen, Esq. (VSB No. 18133) Dennis T. Lewandowski (VSB No. 22232) Kaufman & Canoles, a professional corporation 150 West Main Street, Suite 2100 Norfolk, VA 23510 (757) 624-3000 - Telephone (757) 624-3169 - Facsimile Counselfor Plaintiff contract, breach of fiduciary duty, conversion and negligence. The fraudulent actions of
Defendant Mary Roy Wong ("Wong") were perpetrated through misrepresentations and omissions of material facts including failing to disclose that Wong had been sanctioned for previous fraudulent conduct and that Plaintiffs funds would not be invested as had been agreed upon, but, instead, would be used for the personal and business expenses of the Defendants.
Further, Wong wrongfully obtained a power of attorney from the Plaintiff in order to gain access to the PlaintifPs bank and brokerage accounts as well as to his business investments. Due to the frauds committed by the Defendants, the Plaintiff has suffered monetary loss in the amount of at least $2,000,000, including funds due to him that were wrongfully converted by the Defendants and the lost value of investments over which Wong acted as fiduciary.
JURISDICTION AND VENUE
2. The securities claims asserted herein arise pursuant to Section 10(b) of the
Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) and Rule 10b-5 promulgated thereunder by the Securities and Exchange Commission, 17 C.F.R. §240.10b-5.
3. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§1331 and
1367 because the claims either involve questions arising under the federal securities laws or are state law claims arising out of the same transactions or occurrences giving rise to Plaintiffs federal law claims. This Court also has jurisdiction pursuant to 15 U.S.C. §78aa.
4. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1334 because this action relates to a bankruptcy proceeding pending in this District.
5. The Securities Exchange Act of 1934 vests the United States District Courts with exclusive original jurisdiction over claims arising under such Act. Thus, the United States
Bankruptcy Court would have no jurisdiction over the claims under such Act, and the filing of any such claims with the Bankruptcy Court would result in the mandatory withdrawal of the reference under 28 U.S.C. § 157(d).
6. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332(a) because the Defendants are citizens of Nebraska and the Plaintiff is a citizen of Virginia. The amount in controversy exceeds $75,000, exclusive of interest and costs.
7. This Court has personal jurisdiction over the Defendants because they transact and transacted business in this District.
8. Venue is proper in this District pursuant to 28 U.S.C. §1391 and 15 U.S.C. §78aa because many, if not all, of the acts and practices complained of herein occurred in this District.
9. Venue is also proper in this District pursuant to 28 U.S.C. §1409 because this action relates to a bankruptcy proceeding pending in this District.
10. In connection with the acts alleged in this complaint, Defendants directly or indirectly used the means and instrumentalities of interstate commerce, including, but not limited to, the mails, and interstate telephone communications.
11. In connection with the negligence alleged, pursuant to the power of attorney held by Defendant Wong from October 13, 2007 to June 17, 2008, Defendant Wong had a duty to the
Plaintiff to take reasonable steps to protect his investment funds, the Defendants breached that duty to the Plaintiff and, as a result, the Plaintiff has suffered significant damages.
THE PARTIES
12. Plaintiff Michael D. Vick is an individual, is serving a 23-month prison sentence at the United States Penitentiary in Leavenworth, Kansas, and is expected to be released this
year. 13. Defendant Mary Roy Wong is an individual who has a principal place of business at 5614 South 115th Circle, Omaha, Nebraska.
14. Defendant Williams and Bullocks, LLC ("W&B") is a Nebraska limited liability company having a principal place of business at 5614 South 115th Circle, Omaha, Nebraska.
15. W&B is owned by four individuals, each holding a 25% share: Defendant Wong,
Demorrio Williams, Josh Bullocks and Daniel Bullocks.
16. Demorrio Williams is an individual and employed by the Kansas City Chiefs of the National Football League.
17. Josh Bullocks is an individual and employed by the New Orleans Saints of the
National Football League.
18. Daniel Bullocks is an individual and employed by the Detroit Lions of the
National Football League.
19. Upon information and belief, Wong is the registered agent for service of process and manager for W&B.
BACKGROUND
20. The Plaintiff is a former player with the Atlanta Falcons of the National Football
League.
21. The Plaintiff is not a sophisticated investor. To manage his finances and investments, the Plaintiff has, as a matter of ordinary course of business, retained financial and
investment advisors.
22. In or about the spring of 2007, the Plaintiff was introduced to Wong, who presented herself as a "business manager" with experience and expertise in financial affairs and
investing and who has managed the business affairs of other NFL players. Wong Obtains a Power of Attorney from Plaintiff
23. Based upon representations by Wong that Wong could and would help the
Plaintiff manage his affairs, the Plaintiff retained Wong as a financial and/or investment advisor in the summer of 2007.
24. Upon Plaintiffs retention of Wong, Wong assumed the duties and responsibilities of a financial and/or investment advisor for the Plaintiff.
25. On June 20, 2007, at Wong's urging and recommendation, the Plaintiff invested
$500,000 with W&B.
26. On or about October 13, 2007, at Wong's insistence, the Plaintiff signed a power of attorney to Wong (the "Power of Attorney").
27. Specifically, the Power of Attorney gave Wong the full power and authority to act on the Plaintiffs behalf, to manage and conduct all of the Plaintiffs affairs, and to exercise all of the Plaintiffs legal rights and powers, including, but not limited to: (1) access to all of the
Plaintiffs financial records and bank accounts; and (2) authority to sign checks and other financially related items.
28. Upon obtaining the Power of Attorney, Wong became responsible for overseeing the Plaintiffs affairs.
29. By and through the Power of Attorney, Wong assumed control of the Plaintiffs finances and investments, including his bank accounts and the business entities in which the
Plaintiff owned or had an interest.
30. The business entities over which Wong exercised control include: Divine Seven,
LLC d/b/a Payless Car Rental, Airport MD, Williams Realty Fund, LLC and Commonwealth
Ventures, LLC. Wong Fails to Disclose Her Disbarment from the NYSE
31. Before meeting the Plaintiff, Wong was investigated by the New York Stock
Exchange ("NYSE") in connection with several transactions including one in which Wong deposited $147,000 of an elderly woman's money in Wong's personal bank account.
32. On February 13, 2007, the NYSE issued a NYSE Hearing Board Decision finding
Wong guilty of: (a) violating NYSE Rule 476(a)(6) by misappropriating customer funds, receiving customer funds under false pretenses and depositing those funds into her personal bank account, and commingling customer funds; (b) causing violation of NYSE Rule 351(d) by failing to notify her member firm employer of customer complaints; (c) causing violation of NYSE Rule
409(b)(2) by causing customer's account statement to be sent to her home address; (d) causing violation of NYSE Rule 440 and Section 17(a) of Securities Exchange Act of 1934 and Rules
17a-3 and 17a-4 thereunder by causing books and records of her member firm employer to be inaccurate.
33. As a result of its findings, the NYSE censured and permanently barred Wong from the NYSE.
34. At no time before the Plaintiff gave Wong the Power of Attorney, or thereafter, did Wong disclose to the Plaintiff that she had been barred by the NYSE or had even been investigated by the NYSE.
35. At no time before the Plaintiff gave Wong the Power of Attorney, or thereafter, did Wong disclose to the Plaintiff that the NYSE had found that Wong had commingled funds of her customer. 36. At no time before the Plaintiff gave Wong the Power of Attorney, or thereafter, did Wong disclose to the Plaintiff that the NYSE had found that Wong had misappropriated a customer's funds.
37. At no time before the Plaintiff gave Wong the Power of Attorney, or thereafter, did Wong disclose to the Plaintiff that the NYSE had found that Wong had received a customer's funds under false pretenses.
38. At no time before the Plaintiff gave Wong the Power of Attorney, or thereafter, did Wong disclose to the Plaintiff that Wong was not a licensed financial and/or investment advisor.
39. During the one-year period in which Wong managed Plaintiffs finances and acted as his financial and/or investment advisor, the Plaintiffs investment portfolio was substantially diminished and investment opportunities were lost, due to Wong's actions and omissions, resulting in damages exceeding $2,000,000.
TRANSFERS OF PLAINTIFF'S FUNDS
40. Throughout Wong's relationship with the Plaintiff, she caused a substantial amount of funds to be transferred from his accounts. In two separate transactions induced by
Wong, $650,000 was transferred directly from Plaintiffs bank accounts to a W&B bank account.
Additionally, proceeds from the sale of one of Plaintiff s investments, in the amount of $175,000 was deposited into a W&B bank account. Also, as a result of a $200,000 transfer from an account for which the Plaintiff is trustee, the account may be subject to penalties.
41. Wong used her Power of Attorney to make unauthorized withdrawals from the
Plaintiffs accounts.
42. Wong and W&B failed to keep an accounting of the Plaintiffs funds. 43. Wong and W&B failed to keep any records of the transactions relating to the
Plaintiffs funds.
44. Wong and W&B commingled the Plaintiffs funds in W&B accounts.
45. Wong and W&B failed or otherwise refused to return Plaintiffs funds, despite
Plaintiffs demand to do so.
$500.000 Investment in W&B
46. In or about June 2007, Wong approached the Plaintiff with an investment
proposal whereby the Plaintiff would invest $500,000 in W&B, Wong would manage the
investment, and the Plaintiff was promised a 10% return per annum on the investment and the
right to redeem at any time.
47. On June 20, 2007, at the direction of Wong, $500,000 was wired from an account
owned by Plaintiff at Old Point National Bank to an account owned by W&B.
48. As a result of depositing the $500,000 into a W&B account, Wong caused the
Plaintiffs funds to be commingled with W&B funds.
49. Wong and W&B now seek to characterize the $500,000 investment as a loan
notwithstanding the lack of any Promissory Note or other documentation consistent with a loan
transaction.
50. The Plaintiff has never been repaid for this investment.
$175.000 Tax Credit
51. In or about January 2008, Wong arranged for the sale of Georgia state income tax credits owned by the Plaintiff. 52. Wong, through her Power of Attorney, caused the Plaintiffs state tax credits to be
sold for $175,000.
53. Upon information and belief, Wong and/or Robert F. Craig, an attorney whom
Wong arranged for the Plaintiff to retain, received the $175,000 from the sale of the state tax credits.
54. Upon information and belief, on or about January 16, 2008, Wong deposited the
Plaintiffs $175,000 into an account owned by W&B.
55. As a result of depositing the $175,000 into a W&B account, Wong caused the
Plaintiffs funds to be commingled with W&B funds.
56. The Plaintiff has never received the $ 175,000 from the tax credit.
57. Upon information and belief, the tax credits that were sold for $175,000 had a value of at least $350,000.
58. As a result, Plaintiff suffered monetary damages due to the underselling of the tax credits and due to the loss of the funds taken by Wong or Craig.
$200.000 Transfer from Pension Plan Account
59. On November 30, 2007, $200,000 was wired from a Charles Schwab brokerage account for the MV7 Defined Benefit Pension Plan (the "Pension Plan Account"), for which the
Plaintiff is trustee.
60. When Wong arranged for the $200,000 transfer from the Pension Plan Account,
Wong was aware or should have been aware that withdrawing the funds from the account might subject the Plaintiff to financial penalties. 61. When Wong arranged for the $200,000 transfer from the Pension Plan Account,
Wong was aware or should have been aware that withdrawing the funds from the account might
compromise the nature of the account.
62. Wong never advised the Plaintiff of the penalties or risks involved in withdrawing
funds from the Pension Plan Account.
63. As a result of the transfer caused by Wong, the status of the Pension Plan Account may have been compromised.
$150.000 Transfer from Pension Plan Account
64. On June 6, 2008, at the direction of Wong and under her Power of Attorney,
$150,000 was wired from the Pension Plan Account to an account at US Bank owned by W&B.
65. When Wong effectuated the $150,000 transfer from the Pension Plan Account,
Wong was aware or should have been aware that withdrawing the funds from the account might
subject the Plaintiff to financial penalties.
66. When Wong effectuated the $150,000 transfer from the Pension Plan Account,
Wong was aware or should have been aware that withdrawing the funds from the account might
compromise the nature of the account.
67. Wong never advised the Plaintiff of the penalties or risks involved in withdrawing
funds from the Pension Plan Account.
Termination of the Power of Attorney
68. On or about June 17, 2008, the Plaintiff revoked Wong's Power of Attorney. The
Plaintiff has demanded that Wong and/or W&B return his entire investment, including: (i) the
$500,000 investment; (ii) the $175,000 received as proceeds from the sale of the tax credits; and
(iii) the $150,000 transfer.
10 69. A sum of $125,000, purportedly the funds remaining from the $150,000 transfer, has been returned by Wong and/or W&B and was deposited into an escrow account.
COUNTS
COUNT I (For Violation of 15 U.S.C. § 78o(a)(l)) (Against Defendant Wong)
70. The Plaintiff repeats and re-alleges the allegations set forth in paragraphs 1 through 69 as if fully set forth herein at length herein.
71. Defendant Wong was not a licensed broker/dealer in accordance with the rules and regulations of Securities Exchange Commission, but nevertheless held herself out to the
Plaintiff to be an authorized financial and/or investment advisor.
72. Defendant Wong made use of mails and other means of interstate commerce to effect transactions in and to induce the purchase and sale of securities.
73. As a result of Wong's violation of federal securities law, the Plaintiff has suffered compensatory damages in an exact amount to be determined at trial, but believed to be in excess of $2,000,000, plus interest, fees, penalties and other costs.
COUNT II (For Violation of 15 U.S.C. § 78j(b)) (Against Defendant Wong)
74. The Plaintiff repeats and re-alleges the allegations set forth in paragraphs 1 through 73 as if fully set forth herein at length herein.
75. Defendant Wong directly and/or indirectly used or employed, in connection with the purchase or sale of a security, a manipulative and/or deceptive device or contrivance in violation of security rules and regulations.
11 76. The manipulative and/or deceptive device or contrivance was used in interstate commerce and through the mails.
77. As a result of Wong's violations of federal securities law, the Plaintiff has suffered compensatory damages in an exact amount to be determined at trial, but believed to be in excess of $2,000,000, plus interest, fees, penalties and other costs.
COUNT III (For Violation of 15 U.S.C. § 80b-6) (Against Defendant Wong)
78. The Plaintiff repeats and re-alleges the allegations set forth in paragraphs 1 through 77 as if fully set forth herein at length herein.
79. Defendant Wong carried out a plan, scheme and course of conduct which was intended to and did (i) deceive the Plaintiff, (ii) transfer the Plaintiffs funds to unknown accounts and (iii) benefit Wong and W&B financially while continuing to deceive the Plaintiff.
80. Defendant Wong employed devices, schemes and artifices to defraud, made untrue statements of material fact, and engaged in acts, practices and a course of business which operated as a fraud and deceit upon the Plaintiff.
81. The manipulative and/or deceptive device or contrivance was used in interstate commerce and through the mails.
82. By virtue of the foregoing, Defendant Wong violated Section 15 U.S.C. § 80b-6.
83. As a result of Wong's violations of federal securities law, the Plaintiff has suffered compensatory damages in an exact amount to be determined at trial, but believed to be in excess of $2,000,000, plus interest, fees, penalties and other costs.
12 COUNT IV
(For Violation of Section 10(b) of the Exchange Act and Rule 10b-5 Promulgated Thereunder) (Against Defendant Wong)
84. The Plaintiff repeats and re-alleges the allegations set forth in paragraphs 1 through 83 as if fully set forth herein at length herein.
85. Defendant Wong carried out a plan, scheme and course of conduct which was intended to and did (i) deceive the Plaintiff, (ii) transfer the Plaintiffs funds to unknown accounts and (iii) benefit Wong and W&B financially while continuing to deceive the Plaintiff.
86. Defendant Wong employed devices, schemes and artifices to defraud, made untrue statements of material fact, and engaged in acts, practices and a course of business which operated as a fraud and deceit upon the Plaintiff.
87. The manipulative and/or deceptive device or contrivance was used in interstate commerce and through the mails.
88. Defendant Wong had actual knowledge of the misrepresentations and omissions of material fact set forth herein, or acted with reckless disregard for the truth in that she failed to ascertain and to disclose such facts even though such facts were available to her.
89. As a result of the Wong's misrepresentations, and the Plaintiffs reliance upon her integrity, the Plaintiff was severely damaged.
90. Had the Plaintiff known the truth regarding Wong's being barred from the NYSE and the revocation of her brokerage license, as well as about the fact that his investments and moneys would be used for W&B's and Wong's personal expenses, and the fact that Wong was neither licensed as or qualified to be a financial or investment advisor, he would not have invested in W&B or entrusted Wong with a Power of Attorney.
13 91. By virtue of the foregoing, Defendant Wong has violated Section 10(b) of the
Exchange Act, and Rule 10b-5 promulgated thereunder.
92. As a result of Wong's violations of federal securities law, the Plaintiff has suffered compensatory damages in an exact amount to be determined at trial, but believed to be in excess of $2,000,000, plus interest, fees, penalties and other costs.
COUNT V (For Turnover of Property Under 11 U.S.C. §542) (Against Defendants Wong and W&B)
93. The Plaintiff repeats and re-alleges the allegations set forth in paragraphs 1 through 92 as if fully set forth herein at length herein.
94. On July 7, 2008, the Plaintiff filed a petition under Chapter 11 of Title 11, United
States Code (the "Bankruptcy Code"), in the United States Bankruptcy Court for the Eastern
District of Virginia. The Plaintiff is the debtor and the debtor-in-possession in that action.
95. Pursuant to §541 of the Bankruptcy Code, property of a debtor's bankruptcy estate consists of, inter alia, all legal and equitable interests of the debtor in property as of the commencement of the bankruptcy proceeding as well as property that the estate acquires after the commencement of the case.
96. The Defendants are in possession of cash which constitutes property of the
Plaintiffs bankruptcy estate.
97. Plaintiff has demanded that Wong and W&B turn over his investment in W&B as well as all property belonging to the Plaintiff.
98. Wong and W&B have refused to turn over the Plaintiffs property.
99. Section 542(b) of the Bankruptcy Code provides that a person or entity that owes a debt that is property of the estate shall pay such debt to the trustee.
14 100. Under §1107 of the Bankruptcy Code, the debtor-in-possession in a Chapter 11 bankruptcy case has the rights, powers and duties of a trustee.
101. By virtue of the foregoing, Wong and W&B must turn over the Plaintiffs property in an exact amount to be determined at trial, but believed to be in excess of $700,000, plus interest, fees, penalties and other costs.
COUNT VI (For Violation of Virginia Code § 13.1-502 and under § 13.1-522) (Against Defendant Wong)
102. The Plaintiff repeats and re-alleges the allegations set forth in paragraphs 1 through 101 as if fully set forth herein at length herein.
103. Defendant Wong carried out a plan, scheme and course of conduct which was intended to and did (i) deceive the Plaintiff, (ii) transfer the Plaintiffs funds to unknown accounts and (iii) benefit Wong and W&B financially while continuing to deceive the Plaintiff.
104. Defendant Wong employed devices, schemes and artifices to defraud, made untrue statements of material fact, and engaged in acts, practices and a course of business which operated as a fraud and deceit upon the Plaintiff.
105. By virtue of the foregoing, Defendant Wong violated Virginia Code § 13.1-502.
106. As a result of Wong's violations of Virginia securities law, the Plaintiff has suffered compensatory damages in an exact amount to be determined at trial, but believed to be in excess of $2,000,000, plus interest, fees, penalties and other costs.
15 COUNT VII (For Violation of Virginia Code § 13.1-504 and under § 13.1-522) (Against Defendant Wong)
107. The Plaintiff repeats and re-alleges the allegations set forth in paragraphs 1
through 106 as if fully set forth herein at length herein.
108. Defendant Wong transacted business in the Commonwealth of Virginia as an
investment advisor or investment advisor representative without being registered, or otherwise
qualified or authorized, as required under the Virginia Securities Act.
109. By virtue of the foregoing, Defendant Wong violated Virginia Code §13.1 -504.
110. As a result of Wong's violations of Virginia securities law, the Plaintiff has
suffered compensatory damages in an exact amount to be determined at trial, but believed to be in excess of $2,000,000, plus interest, fees, penalties and other costs.
COUNT VIII (For Common Law Fraud) (Against Defendants Wong and W&B)
111. The Plaintiff repeats and re-alleges the allegations set forth in paragraphs 1 through 110 above as if fully set forth at length herein.
112. In holding out Defendant Wong as a qualified financial and/or investment advisor, and failing to disclose that Wong had been barred from the NYSE and lost her broker license, and was not licensed to act as an investment advisor, Defendants Wong and W&B knowingly and intentionally made misrepresentations and omitted to state material facts to Plaintiff in order to induce his investment in W&B.
113. In inducing the Plaintiff to invest $500,000 in W&B that Wong and W&B intended to use for personal expenses, Defendants Wong and W&B knowingly and intentionally
16 made misrepresentations and omitted to state material facts to Plaintiff in order to induce his investment in W&B.
114. The Plaintiff reasonably relied upon the representations herein alleged when he determined to invest in W&B and when he continued to entrust his finances to Wong.
115. The Plaintiff has suffered compensatory damages in an exact amount to be determined at trial, but believed to be in excess of $700,000, plus interest, fees, penalties and other costs.
116. In committing the fraud as alleged, Defendants Wong and W&B acted in reckless disregard for the truth, in conscious disregard for Plaintiffs rights, and with malice and oppression so as to justify an award of punitive damages.
COUNT IX (For Common Law Fraud) (Against Defendant Wong)
117. The Plaintiff repeats and re-alleges the allegations set forth in paragraphs 1 through 116 above as if fully set forth at length herein.
118. In holding out Defendant Wong as a qualified financial and/or investment advisor, and failing to disclose that Wong had been barred from the NYSE and lost her broker license, and was not licensed to act - or qualified to act - as an investment advisor, Defendant Wong knowingly and intentionally made misrepresentations and omitted to state material facts to
Plaintiff in order to induce the Plaintiff to give Wong the Power of Attorney.
119. The Plaintiff reasonably relied upon the statements referenced herein when he determined to give Wong the Power of Attorney.
17 120. During the time that Wong held the Power of Attorney, Plaintiffs net worth was
depleted by an amount believed to be in excess of $2,000,000, plus interest, fees, penalties and
other costs.
121. Accordingly, the Plaintiff suffered compensatory damages in an exact amount to
be determined at trial, but believed to be in excess of $2,000,000, plus interest, fees, penalties
and other costs.
122. In committing the fraud as alleged, Wong acted in reckless disregard for the truth,
in conscious disregard for Plaintiffs rights, and with malice and oppression so as to justify an
award of punitive damages.
COUNT X (Breach of Fiduciary Duty) (Against Defendant Wong)
123. The Plaintiff repeats and re-alleges the allegations set forth in paragraphs 1
through 122 as if fully set forth herein at length herein.
124. Defendant Wong owed the Plaintiff, as an investor in W&B and under the Power
of Attorney, a fiduciary duty which encompassed a duty to act honestly, openly, fairly and in the best interests of the Plaintiff.
125. By failing to disclose material facts to the Plaintiff, commingling the Plaintiffs funds and allowing the depletion of the Plaintiffs portfolio, Wong intentionally, knowingly and in bad faith breached her fiduciary duties to the Plaintiff.
126. As a result of the breach of her fiduciary duties, the Plaintiff has suffered compensatory damages in an exact amount to be determined at trial, but believed to be in excess of $2,000,000, plus interest, fees, penalties and other costs.
18 127. In committing the breach of her fiduciary duties as alleged, Defendant Wong acted in reckless disregard for the truth, in conscious disregard for Plaintiffs rights, and with malice and oppression so as to justify an award of punitive damages.
COUNT XI (For Breach of Contract) (Against Defendants Wong and W&B)
128. The Plaintiff repeats and re-alleges the allegations set forth in paragraphs 1 through 127 as if fully set forth herein at length herein.
129. Plaintiff entered into agreements with Defendants Wong and W&B in reliance upon the guarantee of ten percent annualized returns and the right to redeem the investments at any time.
130. By failing to pay the agreed ten percent per annum, and by refusing to abide by the Plaintiffs direction to Defendants to redeem his investment, Defendants Wong and W&B breached the terms of their contract with the Plaintiff, as well as the covenant of good faith and fair dealing implied in every contract.
131. As a result of the foregoing breach of contract, the Plaintiff has suffered compensatory damages in an exact amount to be determined at trial, but believed to be in excess of $500,000, plus interest, fees, penalties and other costs.
COUNT XII (For Conversion) (Against Defendants Wong and W&B)
132. The Plaintiff repeats and re-alleges the allegations set forth in paragraphs 1 through 131 as if fully set forth herein at length herein.
133. Wong used her Power of Attorney to obtain the Plaintiffs money and property.
19 134. The money and property taken by Defendants were at all times property of the
Plaintiff.
135. The Plaintiff has requested repayment of his funds.
136. The Defendants Wong and W&B have not complied with this demand for the return of the investment proceeds.
137. The Defendants Wong and W&B's retention of Plaintiff s property is intentional, without permission or justification, and constitutes conversion of Plaintiff s property.
138. The Plaintiff is entitled to immediate possession of these funds.
139. The Plaintiffs property had a value in an exact amount to be determined at trial, but believed to be in excess of $700,000, plus interest, fees, penalties and other costs.
140. As a result of the foregoing conversion, the Plaintiff has suffered compensatory damages in an exact amount to be determined at trial, but believed to be in excess of $700,000, plus interest, fees, penalties and other costs.
COUNT XIII (For Accounting Fraud/Commingling of Funds) (Against Defendant Wong)
141. The Plaintiff repeats and re-alleges the allegations set forth in paragraphs 1 through 140 as if fully set forth herein at length herein.
142. Defendant Wong, as the Plaintiffs financial and/or investment advisor, represented to the Plaintiff that, pursuant to the Power of Attorney, Plaintiffs funds would be invested and applied for his benefit.
143. Wong failed to maintain adequate records of the use of Plaintiffs funds to account for the expenditure of his funds.
20 144. As a result of the foregoing accounting fraud and/or commingling of funds, the
Plaintiff has suffered compensatory damages in an exact amount to be determined at trial, but believed to be in excess of $2,000,000, plus interest, fees, penalties and other costs.
COUNT XIV (For Negligence) (Against Defendant Wong)
145. The Plaintiff repeats and re-alleges the allegations set forth in paragraphs 1 through 144 as if fully set forth herein at length herein.
146. Defendant Wong owed the Plaintiff a duty to exercise reasonable and prudent business judgment and to act at all times in good faith toward the Plaintiff.
147. Wong breached that duty to the Plaintiff by failing to disclose material facts, or negligently failing to ascertain and disclose material facts, such as the fact that (a) Wong had been barred from the NYSE and had her broker's license revoke and (b) there might be penalties and risks associated with withdrawing funds from the Pension Plan account.
148. Wong also breached that duty by negligently allowing for the significant depletion in value of the Plaintiffs investment portfolio and net worth or negligently failing to preserve the value of Plaintiff s investments.
149. As a result of the foregoing negligence, the Plaintiff has suffered compensatory damages in an exact amount to be determined at trial, but believed to be in excess of $2,000,000, plus interest, fees, penalties and other costs.
21 COUNT XV (For an Equitable Accounting) (Against Defendants Wong and W&B)
150. The Plaintiff repeats and re-alleges the allegations set forth in paragraphs 1 through 149 as if fully set forth herein at length herein.
151. By reason of the breach of fiduciary duties as set forth above, the Plaintiff is entitled to a complete and accurate accounting from Defendants Wong and W&B concerning the use of the Plaintiffs money, assets and property received directly or indirectly from the Plaintiff.
PRAYER FOR RELIEF
WHEREFORE, the Plaintiff seeks judgment as follows:
1. Awarding Plaintiff all compensatory damages he suffered, including lost profits,
consequential and incidental damages, as a result of the wrongful conduct of the
Defendants, in an amount to be determined at trial.
2. Awarding Plaintiff punitive damages in a just amount for Defendant Wong's willful and
wanton conduct.
3. Awarding Plaintiff pre-judgment and post-judgment interest.
4. Awarding Plaintiff his costs, expenses and attorneys' fees incurred in connection with
this action.
5. Awarding Plaintiff such other and further relief as the Court finds just and proper.
22 Dated: January , 2009 New York, New York
Peter R. Ginsberg Vivian M. Arias CROWELL & MORING LLP 153 E.53rf Street New York, New York 10022 (212)895-4200
and
Paul K. Campsen (VSB No. 18133) Dennis T. Lewandowski (VSB No. 22232) KAUFMAN & CANOLES, a professional corporation 150 West Main Street, Suit 2100 Norfolk, VA 23510 (757) 624-3(
By: Paul K. Campsen
Attorneys for Plaintiff Michael D. Vick
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