Filing # 107142705 E-Filed 05/06/2020 03:17:24 PM
IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA LION ADV, INC., Case No. 2020-xxxxxx-CA-xx Plaintiff, JURY TRIAL DEMANDED vs.
SUNSET ENTERPRISE LTD, BCC FOOD HALL LLC d/b/a/ LUNA PARK, and ROBERTO COSTA,
Defendants. ______/
COMPLAINT
Plaintiff Lion Adv, Inc., by and through its attorneys, sues Defendants Sunset Enterprise
Ltd, BCC Food Hall LLC d/b/a/ Luna Park, and Roberto Costa, for breach of contract, unjust
enrichment, and alter ego, and alleges:
PARTIES
1. Plaintiff Lion Adv, Inc. (“Lion”) is a Florida For-Profit Corporation with its
principal place of business in Miami-Dade County, Florida. Mirko Scarcella (“Scarcella”) is the
owner and president of Lion. He is an entrepreneur, author, and renowned personality in the social
media world.
2. Defendant Sunset Enterprise Ltd (“Sunset”) is a United Kingdom Limited Liability
Company with its principal place of business in London, England. Sunset does extensive business
in Florida and has attorneys in Florida to handle its legal matters.
3. Defendant BCC Food Hall LLC (“BCC”) is a Florida Limited Liability Company
with its principal place of business in Miami-Dade County, Florida. BCC operates a food hall at
Brickell City Centre under the name Luna Park.
1 4. Defendant Roberto Costa (“Costa”) is the owner of BCC. Costa also owns eleven other restaurants around the world.
RELEVANT NON-PARTY WITNESSES
5. Walter Gumina (“Mr. Gumina”) is an employee or agent of BCC.
6. Muhammad Asif (“Mr. Asif”) is the CFO of G-Life Corp., another Costa company.
7. Fengze Yeh (“Mr. Fengze”) is an agent of Sunset and BCC. He is a friend, partner, and close confidant of Costa. He was the person designated by Costa to sign the first agreement at issue in this case. He is also the CEO of G-Life Corp.
8. André Miranda (“Mr. Miranda”) is a Luna Park employee involved in the initial communications that gave rise to the first agreement at issue in this case.
9. Gianluigi Torzi (“Mr. Torzi”) is the director of Sunset.
JURISDICTION AND VENUE
10. is court has subject matter jurisdiction over this case because it is an action for damages in excess of $30,000, exclusive of interest, attorneys’ fees, and costs.
11. is court has personal jurisdiction over the Defendants because they operate, conduct, engage in, or carry on a business or business venture in this state. Moreover, BCC resides in Miami-Dade County, Florida, while Sunset and Costa have consented to the jurisdiction of this court by contractual agreement. See Sunset Agreement, p.4, at Exhibit A; Costa Agreement, p.4, at Exhibit B.
12. Venue is proper in Miami-Dade County, Florida, because the causes of action alleged herein accrued in Miami-Dade County, Florida. Moreover, BCC resides in Miami-Dade
County, Florida, while Sunset and Costa have consented to this venue by contractual agreement.
See Sunset Agreement, p.4, at Exhibit A; Costa Agreement, p.4, at Exhibit B.
2 FACTS
13. On December 22, 2019, Mr. Gumina contacted Scarcella looking for a company to manage the social media accounts of Luna Park, a food hall inside Brickell City Centre.
14. On December 28, 2019, Scarcella met with Mr. Gumina and Costa, the owner of
Luna Park, to discuss a potential collaboration.
15. At this meeting, Costa told Scarcella that he wanted a contract for the management of his personal Instagram account (@robicosta_) and Luna Park’s account (@lunaparkmiami).
16. Costa and Scarcella agreed to such a contract for the sum of $14,700 per month for twelve months, as well as an initial setting payment of $67,000 at the signing of the contract.
17. Costa told Scarcella to speak to Mr. Asif regarding the details of the contract.
18. On January 16, 2020, Mr. Asif emailed Scarcella telling him to make the contract to BCC. Mr. Miranda provided Scarcella with BCC’s information. Mr. Fengze was also copied in this email chain.
19. On January 21, 2020, Mr. Fengze sent a message to Lion’s administration asking
Lion to make the contract to Sunset instead of BCC, and to send him an updated agreement for his signature.
20. Lion sent the contract with the requested modifications to Mr. Fengze, who signed it on January 21, 2020. See Sunset Agreement, at Exhibit A.
21. On or about January 21, 2020, Lion issued an invoice to Sunset for $81,700, representing the $67,000 initial setting payment plus $14,700 for the first month of services.
22. Although this invoice was supposed to be paid at the signing of the contract, no payment was received on that date.
23. On January 27, 2020, Lion received a $14,700 late payment for the first month of
3 the contract from G-Life Corp., not Sunset. e initial setting payment remained outstanding at this time.
24. Since the initial setting payment was already more than a week late, Scarcella inquired about it with Mr. Asif, who said the payment had been “flagged up by HSBC’s checks.”
25. Because of the delay caused by the bank in the UK, Mr. Asif cancelled the wire transfer through HSBC and decided to send the money instead “from our sister company from
USA,” i.e., BCC.
26. On February 4, 2020, fourteen days late, Lion finally received the $67,000 initial setting payment from BCC, not Sunset.
27. Lion started working right away in order to increase Costa and Luna Park’s number of followers on Instagram and enhance their brand.
28. Lion’s activities pursuant to the contract included giveaways with celebrities, two photo shoots with a professional photographer, and carefully crafted posts on Instagram.
29. On February 7, 2020, the first photo shoot of Costa took place at Luna Park. During this photo shoot, Costa constantly made a hand gesture simulating a bull, which was Scarcella’s idea for marketing Costa’s brand.
30. On February 24, 2020, the second photo shoot of Costa took place at Scarcella’s building. During this photo shoot, Costa continued making the aforementioned bull sign.
31. Lion paid for both photo shoots, which included the hiring of Douglas Voisin, a celebrated photographer.
32. On February 25, 2020, Lion arranged for a Kris Jenner (@krisjenner) giveaway on
Costa’s account, giving him exposure to her 33.4 million followers.
33. On February 26, 2020, Lion arranged for a Sukihana (@sukihanagoat) giveaway
4 on both accounts, giving Costa and Luna Park exposure to her 876,000 followers.
34. On February 27, 2020, Lion arranged for a Trina (@trinarockstarr) giveaway on both accounts, giving Costa and Luna Park exposure to her 3.8 million followers.
35. On February 27, 2020, Lion arranged for a Mason Ray Parker (@masonrayparker) giveaway on both accounts, giving Costa and Luna Park exposure to his 1.6 million followers.
36. Lion’s activities resulted in a significant and noticeable increase in the number of followers, likes, and comments on both Costa and Luna Park’s accounts. For example, before hiring Lion, the @robicosta_ account had 16,000 followers, while the @lunaparkmiami account had 28,000 followers. Today, after Lion’s work, the @ robicosta_ account has 65,300 followers, while the @lunaparkmiami account has 38,700 followers.
37. On or about February 26, 2020, Lion issued an invoice to Sunset of $14,700 for the second month of services, which remains outstanding.
38. roughout the following month, Lion contacted Costa, Mr. Asif, and Mr. Fengze on multiple occasions regarding the missing payment for the second month of services to no avail.
39. On March 10, 2020, Costa told Scarcella that the investors were giving up on the
Luna Park project because of the COVID-19 pandemic.
40. On March 23, 2020, Mr. Fengze asked Scarcella if it was possible to freeze the contract for three months since they could no longer make payments.
41. In response to Mr. Fengze’s request, Scarcella asked Mr. Fengze to send a formal request for the freeze so Lion could evaluate it. Scarcella also told Mr. Fengze that Sunset had to pay for the second month of services.
42. On March 25, 2020, Scarcella inquired regarding the formal request for a contract freeze and the outstanding payment, to which Mr. Fengze answered: “If I were you, I would stop
5 [working on the accounts]. But this is not a corporate comment.”
43. Due to the lack of responsiveness from Sunset’s representatives and its failure to pay for the second month of services, Lion sent a notice to Mr. Fengze on March 30, 2020, advising him that Lion’s services would cease from that date and demanding the payment of the outstanding invoice plus the three-month early termination penalty fee.
44. Costa told Scarcella that he wanted Lion to continue working on his account only, and they agreed Lion would do so for three months at $5,500 per month.
45. Lion sent a new contract memorializing this agreement to Costa, who signed it on
April 3, 2020. See Costa Agreement, at Exhibit B.
46. Afterwards, Costa told Scarcella that Sunset’s director, Mr. Torzi, was proposing as a solution to the Sunset agreement situation to pay Lion for the monthly payment already owed and to freeze the contract for three months.
47. On April 5, 2020, Scarcella emailed Mr. Torzi, explaining to him the situation of the outstanding payment and the lack of communication from Sunset’s agents. Mr. Torzi did not respond to Scarcella’s email.
48. On April 9, 2020, Scarcella and Lion received a letter from Sunset’s attorneys, claiming Mr. Fengze “was not an authorized officer or employee” of Sunset and “had no authorization” to enter into the Service Agreement. See letter at Exhibit C.
49. In an apparent attempt to intimidate Scarcella and Lion, Sunset’s attorneys also demanded they immediately “return” $96,400 to Sunset—even though Lion was only ever paid
$81,700, stating there would be “absolutely no negotiation as to the amount demanded.” Id.
50. On May 3, 2020, the payment for the second month of services under the Costa agreement became due. However, Costa failed to make this payment.
6 COUNT I – BREACH OF CONTRACT (Against Sunset Enterprise)
51. Plaintiff incorporates and realleges paragraphs 1 through 50 above as if fully set forth herein.
52. Lion and Sunset entered into a contract on January 21, 2020, pursuant to the terms stated above, and attached hereto as Exhibit A.
53. Lion did all of the essential things which the contract required it to do. Lion conducted giveaways with celebrities, photo shoots with a professional photographer, and made carefully crafted posts on Instagram, which resulted in a significant and noticeable increase in the number of followers, likes, and comments on both Costa and Luna Park’s accounts.
54. All conditions required by the contract for Sunset’s performance had occurred.
55. Sunset failed to do something essential which the contract required it to do. Sunset failed to pay Lion for the second month of services and for the three months following the early termination of the contract.
56. Lion was damaged by that failure because it was deprived of $58,800 to which it was entitled to under the contract.
WHEREFORE, Plaintiff Lion Adv, Inc. demands judgment against Defendant Sunset
Enterprise Ltd for: (a) damages in an amount to be determined at trial; (b) costs, interest, and reasonable attorneys’ fees; and (c) all other relief that the Court deems just and proper.
COUNT II – UNJUST ENRICHMENT (Against BCC Food Hall and Roberto Costa)
57. Plaintiff incorporates and realleges paragraphs 1 through 50 above as if fully set forth herein.
58. Since February 2020, Lion managed the Instagram account of BCC, which does
7 business under the name “Luna Park” (@lunaparkmiami).
59. Since February 2020, Lion also managed the personal Instagram account of Costa
(@robicosta_).
60. Lion gave a benefit to BCC and Costa. In particular, as a result of Lion’s actions,
BCC and Costa received a noticeable increase in the number of followers, likes, and comments on their accounts, which in turn resulted in an expansion of their brands.
61. BCC and Costa knew of the benefit and expressed their satisfaction with Lion’s services on several occasions.
62. BCC and Costa accepted or retained the benefit, even though payments for the management of their accounts was overdue.
63. e circumstances are such that BCC and Costa should, in all fairness, be required to pay for the benefit.
WHEREFORE, Plaintiff Lion Adv, Inc. demands judgment against Defendants BCC Food
Hall LLC d/b/a/ Luna Park and Roberto Costa for: (a) damages in an amount to be determined at trial; (b) costs, interest, and reasonable attorneys’ fees; and (c) all other relief that the Court deems just and proper.
COUNT III – BREACH OF CONTRACT (Against Roberto Costa)
64. Plaintiff incorporates and realleges paragraphs 1 through 50 above as if fully set forth herein.
65. Lion and Costa entered into a contract on April 3, 2020, pursuant to the terms stated above, and attached hereto as Exhibit B.
66. Lion did all of the essential things which the contract required it to do. Lion’s work resulted in a significant and noticeable increase in the number of followers, likes, and comments
8 on Costa’s Instagram account.
67. All conditions required by the contract for Costa’s performance had occurred.
68. Costa failed to do something essential which the contract required him to do. Costa failed to pay Lion for the second month of services.
69. Lion was damaged by that failure because it was deprived of $11,000 to which it was entitled to under the contract.
WHEREFORE, Plaintiff Lion Adv, Inc. demands judgment against Defendant Roberto
Costa for: (a) damages in an amount to be determined at trial; (b) costs, interest, and reasonable attorneys’ fees; and (c) all other relief that the Court deems just and proper.
COUNT IV – ALTER EGO (Against all Defendants)
70. Plaintiff incorporates and realleges paragraphs 1 through 50 above as if fully set forth herein.
71. Costa is the sole or majority owner of BCC.
72. Costa is the sole or majority owner of Sunset.
73. Costa dominates and controls BCC to such an extent that BCC’s independent existence is in fact non-existent and BCC is in fact an alter ego of Costa.
74. Costa dominates and controls Sunset to such an extent that Sunset’s independent existence is in fact non-existent and Sunset is in fact an alter ego of Costa.
75. When Mr. Fengze, acting on Costa’s instructions, demanded that Lion put Sunset rather than BCC (a Florida company) as the party to the agreement, Costa used the Sunset corporate shield for the improper purpose of misleading and/or defrauding Lion and to unlawfully avoid his contractual responsibilities.
76. On information and belief, Sunset and BCC have no independent accounting,
9
SERVICE AGREEMENT LION ADV, INC , located at 80 S.W. 8th Street, Miami, FL 33130 - Brickell Bayview Center 20th floor, (hereinafter referred to as “LION”) AND ROBERTO COSTA with offices at 12, Sekforde street, EC1R0HD, London, UK (hereinafter referred to as “COSTA”)
WHEREAS (A) LION is a company specialized in social network marketing aimed at improving the image and knowledge to third parties of personality from the entertainment, sports and art world, as well as companies and commercial brands. More specifically, and with reference to national and international business entities, LION’s activity focuses on enhancing the brand on Instagram through services dedicated to the companies allowing them to generate brand growth, visits, impressions, interactions on the LION page, and on the worldwide Instagram network. For example, LION takes care of creating constant interactions with the potential followers of its customers, operating on the people of Instagram using algorithms and computer techniques that allow creating interaction with people (the so-called “followers”).
(B) COSTA wants to improve its online image and popularity in Instagram.
(C) In view of the above, the Parties intend to enter into a relationship that will be better explained in the following paragraphs of this Agreement.
In light of the foregoing, the Lion and COSTA agree and stipulate the following. 1. Purpose The purpose of this Agreement which is to regulate every aspect of the business relationship between LION an COSTA. 2. Object The service proposed for COSTA Instagram account @Robicosta_ is structured around several points, which are listed below. LION will work on multiple fronts to ensure that COSTA has prominence on social media in such a way as to make the COSTA brand known by giving it international visibility. 3. Services The Instagram growing service includes but is not limited to:
LION ADV, Inc EXHIBIT1 B 80 S.W. 8th Street Brickell Bayview Center, 20th floor Miami, FL, 33130, United States of America - Instagram real followers’ growth1 - Instagram growth through celebrity giveaways. - Enhancement of your brand on Instagram and online generally based on our actions and strategies.
4. Terms of payment
4.1 Lion will be paid via wire transfer. 4.2 COSTA will pay $5,500 per month for the duration of this contract (3 months) to be paid on the 3rd of every month starting April 3rd 2020; BY THE PAYMENT DUE DATE OF EACH MONTH COSTA WILL SEND A CONFIRMATION OF PAYMENT BY EMAIL TO THE ADMINISTRATION OF LION : [email protected];
4.3 Lion will be fully responsible for the services under this Agreement. However, Lion is entitled to rely on trustworthy collaborators but has ultimate responsibility from the services of such collaborators.
5. Duration The assignment for the provision of the service has been given by signing - by your Legal Representative - the estimate which in this way assumes the value of an agreement between the parties. The agreement shall be valid for 3 months, starting from the day following the date of the signature (4/3/2020) and ending at midnight on the day of expiry.
Any renewal of the assignment after the above period will be subject to a specific written agreement between the parties, provided that the monthly fee shall not exceed US 5.500 during the first 3 months of services. The withdrawal by COSTA before the end of this Agreement or the missed payment to LION for the services and activities described in art. 2, will not exclude in any case the fees accrued by LION in relation to all the aforesaid activities until the communication of the withdrawal or the missed payment.
6. Warranties and Representations COSTA accepts and agrees all such strategies which include, but are not limited to: a) The promotion of posts published by the @Robicosta_ account even through the Lion's networks and their likes and comments, in order to attract new organic profiles interested in the account; b) The growth of followers pushed through the computer profiles of Lion, coming from all over the world, in order to attract new organic accounts interested in the @Robicosta_ products; c) Client will receive likes from real Instagram accounts that are used on ios/android gaming applications. People who use their accounts to log in inside games to get more coins/gems. Please note that under our exclusive service Agreement All actions are legit and users are not forced. Please note that if there is a new Instagram algorithm update the service will stop working until we update our system. In such cases only the client may get likes from accounts that are mass created from us. Since its real likes, the likes will come in a natural pattern and sometimes there can be delays.2
1 Under this Agreement however, there is no set goal of followers to be reached by Lion. Lion however, will use its best efforts to have a significant impact in the follower growth of COSTA. Further, under this Agreement, Lion does not assume any responsibility for posts made by COSTA itself or its agents. 2 It is also important to note that COSTA independent social medias activity or actions could have a negative impact in the quality of like and followers’ growth. Lion assumes no responsibility for this. LION ADV, Inc 2 80 S.W. 8th Street Brickell Bayview Center, 20th floor Miami, FL, 33130, United States of America
d) Followers and likes that come from all over the world. e) The comments will be made from our team for each specific post from real accounts. f) The account COSTA will have credibility thanks to our engagement work. g) We will make interactions with the followers from the competitors accounts and targets accounts. Like this those accounts will notice @Robicosta_. h) The real followers growth also arrives from giveaways done by celebrities worldwide. With the giveaways and thanks to our credibility the profile will gain many followers, which some of those will unfollow when the giveaway it’s finished, but the once that will remain will be those really interested in your account. i) Driven/customized comments: In order to boost the client post to Instagram explore page, we leverage our Instagram network, that will comments via automated platform the exact text asked by the client. In this way comments will always be appropriate to the client’s posts and look natural on the feed 7. Confidentiality The Parties bind themselves to keep the Agreement confidential - and ensure that the same obligations are met by all those who will work with them, for whatever reason, throughout the duration of this Agreement - all the information obtained or otherwise learned during the course of the activities described in the Agreement. 8. Individual Negotiation The Parties mutually acknowledge that all the terms of this Agreement have been the subject of a specific individual negotiation and are the result of an agreement reached in good faith.
LION ADV, Inc 3 80 S.W. 8th Street Brickell Bayview Center, 20th floor Miami, FL, 33130, United States of America
9. Communications Any communication or notification between the Parties during the term of this Agreement shall be made to the following addresses: LION ADV, Inc Roberto Costa 80 S.W. 8th Street 12 Sekforde street Brickell Bayview Center EC1R0HD 20th floor London Miami, FL 33130 United States of America
10. Release of Agents
The obligations of LION under this Agreement do not constitute personal obligations of LION’s owners, shareholders, agents or employees. Thus, COSTA will look solely to LION as an entity and not to any asset of its owners, shareholders, agents or employees. 11. Dispute Resolution
In the event that there is a dispute between LION and COSTA regarding the contents of this agreement or the business relationship that this Agreement governs, the parties agree to first try to resolve that dispute via non-binding mediation. Mediation however is not mandatory. In the event that there is no mediation, or that the dispute is not resolved at mediation, the parties agree to resolve any dispute related to their business relationship in the proper forum in the 11th Judicial Circuit in and for Miami Dade County Florida. 12. Miscellaneous a. Headings. e headings in this Agreement are inserted for convenience or reference only and are in no way intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any provision of this Agreement
b. Severability. If any term or provision of this Agreement is held to be invalid, illegal, or unenforceable under Applicable Law in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
c. Entire Agreement. is Agreement, and all related Exhibits and Schedules, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, records, representations and warranties, both written and oral, whether express or implied, with respect to such subject matter.
d. Amendment. Except as otherwise provided by this Agreement, no provision of this Agreement may be amended or modified except by an instrument in writing executed by the parties.
e. Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified
LION ADV, Inc 4 80 S.W. 8th Street Brickell Bayview Center, 20th floor Miami, FL, 33130, United States of America
______420 Lincoln Road, Suite 357, Miami Beach FL, 33139 o: 305.489.9100, f: 786.216.7088, www.bfflegal.com
April 9th, 2020
VIA CERTIFIED MAIL AND ELECTRONIC MAIL
Mr. Mirko Scarcella 5255 Collins Ave, Apt. 12C Miami Beach, 33140 [email protected]
Lion Adv. Holding USA, LLC 80 S.W. 8th St. Brickell Bayview Center, 20th floor, Miami, FL 33130 [email protected]
Dear Mr. Scarcella:
This firm represents Sunset Enterprise, LTD (“SE”), a UK Company, relative to any and all causes of action and claims against you personally, as well as Lion Adv. Inc. (“Lion”). It appears that you have executed a purported agreement with SE, dated January 21, 2020 (“Agreement”), which provides that you and Lion would perform social media (Instagram) marketing services for companies and individuals unrelated to SE. However, the person allegedly signing the Agreement on behalf of SE was not an authorized officer or employee of SE and had no authorization to enter into any such Agreement. More, it appears that you violated the covenant of good faith and fair dealing, as well as Florida Law, in deceptively and fraudulently promising to provide services that you knew would never be performed, and then creating and/or purchasing fake and non-organic social media accounts and followers to conceal your conduct.
As you know, SE paid Lion a total of Ninety-Six Thousand Four Hundred Dollars ($96,400.00), which should be returned immediately. Additionally, please take notice that, even
Page 1 of 2 EXHIBIT C
if the Agreement was valid, which it is not, you have materially breached the Agreement, and have failed to perform your obligations under Sections 3 and 6 of the Agreement. As such, the alleged agreement is hereby repudiated, and you are to immediately cease and desist from accessing any social media accounts affiliated in any way with SE and/or the alleged Agreement.
SE hereby demands that you immediately return the total sum of Ninety Six Thousand Four Hundred Dollars ($96,400.00), via certified funds made payable to Sunset Enterprise and delivered to my office, within ten (10) days; otherwise, we will commence legal action seeking any and all relief available pursuant to Florida and/or Federal law, which may include a claim for recovery of attorney’s fees and costs.
There will be absolutely no negotiation as to the amount demanded herein, and should this payment not be received within ten (10) days, this proposal for resolution is automatically revoked and SE will proceed with seeking a full and complete recovery for all damages incurred, including those in excess of the Ninety Six Thousand Four Hundred Dollars ($96,400.00) previously paid, including, but not limited to, loss of business and profits and damages to reputation. PLEASE GOVERN YOURSELF ACCORDINGLY.
Sincerely,
Giulia Fantacci, Esq.
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