Jimmer Fredette lawsuit

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Tyson B. Snow, #10747 PIA ANDERSON DORIUS REYNARD & MOSS 222 South Main St., Suite 1830 Salt Lake City, UT 84101 Phone: 801-350-9000 Fax: 801-350-9010 Email: [email protected] Attorneys for Plaintiff

IN THE THIRD JUDICIAL DISTRICT COURT FOR SALT LAKE COUNTY, STATE OF UTAH

JIMMER FREDETTE, an individual,

Plaintiff, v. BLACK CLOVER ENTERPRISES, LLC, a Utah limited liability company,

Defendant.

COMPLAINT

Civil No.: ________________

Judge: ___________________ (JURY TRIAL REQUESTED)

Plaintiff Jimmer Fredette (“Plaintiff” or “Fredette”) alleges and complains against

Defendant Black Clover Enterprises, LLC (“Defendant” or “Black Clover”) as follows:

NATURE OF THE CASE

1. This is a breach of contract action in which Plaintiff seeks to recover money owed

to him under an Endorsement Agreement between Plaintiff and Defendant. Plaintiff additionally

alleges that Defendant abused his identity without his consent and that Defendant has been

unjustly enriched through its unauthorized use of Plaintiff’s identity.

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PARTIES

2. Plaintiff Jimmer Fredette is a citizen of the state of California, residing in

Sacramento County.

3. Upon information and belief, defendant Black Clover is a citizen of the state of

Utah, with its principal place of business at 352 West 12300 South, Suite 400, Draper, UT

84020.

JURISDICTION AND VENUE

4. This Court has subject matter jurisdiction over this action pursuant to Utah Code

Ann. § 78A-5-102(1).

5. Venue is proper in this Court pursuant to Utah Code Ann. § 78B-3-304 because

the obligation was to be performed in this county, the parties signed the contract in this county,

and the Defendant resides in this county.

GENERAL ALLEGATIONS

6. Plaintiffs incorporate the allegations contained in paragraphs 1-5 above as though

set forth herein verbatim.

7. Plaintiff is a well-known figure within the State of Utah and across the United

States, because of his prominent basketball career, which has received national news and media

attention, media attention that began while Plaintiff played basketball at Brigham Young

University in Provo, Utah. Plaintiff’s playing style, warm personality, and dominance on the

basketball court led to significant notoriety, including numerous national awards, culminating

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with the National Player of the Year award for the 2010-2011 season. Following his collegiate

basketball career, Plaintiff was a lottery pick in the National Basketball Association’s 2011 draft

in June of 2011.

8. According to its website, “Black Clover is a lifestyle apparel company with a

vision rooted in living life to the fullest. We simply call it ‘Live Lucky’. Every premium hat,

piece of clothing and lifestyle accessory is designed to inspire and invite its owner to enjoy life,

to embrace every day, to Live Lucky!”

9. Defendant Black Clover sought to use Plaintiff’s name and likeness to help

promote its “lifestyle apparel.”

10. Accordingly, effective March 15, 2012, Plaintiff and Defendant entered into an

“Endorsement Agreement” (See Endorsement Agreement “Agreement”, attached as Exhibit A)

that would allow Defendant to use Plaintiff’s name and likeness on various products, particularly

Black Clover hats, and in various advertisements and promotions. (Ex. A, Agreement ¶ 3.)

PLAINTIFF’S OBLIGATIONS

11. Pursuant to the Agreement, Plaintiff had various obligations that he was required

to fulfill. For example, during the term of the Agreement, Plaintiff was required to make an

“Appearance Day” where he would make himself available for two hours and Plaintiff was

required to provide a certain number of signed products to the Defendant. (Id. ¶ 4.)

12. Plaintiff was also required to use “commercially reasonable efforts, when possible

and appropriate in his sole discretion, to wear the Signature Product at media events” and

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“mention and promote the Products, the Signature Products, or the Company . . . on each of his

Facebook page and Twitter feed; provided that the content of such posting or message shall be

determined by Athlete in his sole discretion.” (Id. ¶ 5.)

13. Plaintiff performed all of his contractual obligations in all material respects.

DEFENDANT’S OBLIGATIONS

14. In consideration for the obligations imposed on Plaintiff by the Agreement,

Defendant accepted various obligations of its own.

15. Specifically, Defendant contractually agreed that it “shall pay to Athlete a fee of

Fifty Thousand U.S. Dollars (US $50,000) (“Fee”) during each Year. The Fee for the first Year

shall be due as follows: Twenty Five Thousand U.S. Dollars (US $25,000) due promptly upon

execution hereof; and Twenty Five Thousand U.S. Dollars (US $25,000) due within six (6)

months after execution hereof.” (Id. ¶ 6.)

16. Defendant also agreed to pay Plaintiff royalties on all gross revenue generated

from the sale of products endorsed by Plaintiff:

Company shall pay Athlete a royalty fee on all gross revenue generated by or on behalf of Company from the sale of all Endorsed Products at any time (“Royalty” or “Royalties”) as follows (i) with respect to all gross revenues between Fifty Thousand U.S. Dollars (US $50,000) and One Hundred Thousand U.S. Dollars ($100,000), five percent (5%) of such gross revenues; with respect to all gross revenues between One Hundred Thousand U.S. Dollars ($100,000) and Two Hundred Thousand U.S. Dollars ($200,000), eight percent (8%) of such gross revenues; and (iii) with respect to all gross revenues over Two Hundred Thousand U.S. Dollars ($200,000), ten percent of such royalties.

(Id.).

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17. Defendant was contractually required to pay the royalties periodically throughout

the term of the Agreement, at least two times per year. (Id.)

18. Defendant also promised to provide Plaintiff with Five Hundred U.S. Dollars

($500) wholesale value of Products and/or Endorsed Products and an additional Five Hundred

U.S. Dollars ($500) wholesale value of Products and/or Endorsed Products to Plaintiff’s agent.

Moreover, Defendant agreed to provide Plaintiff’s family and friends with discounted pricing.

19. Other relevant provisions of the Agreement state:

Company shall maintain detailed records, books, and accounts related to the Royalties. Company shall permit Athlete’s authorized agents or representatives, during normal business hours and by prior appointment, to inspect and copy from time to time relevant information pertaining to any monies received in connection with the Royalties. Company shall cooperate fully with Athlete’s auditors to assure a prompt and accurate audit of such relevant information. Company shall also cooperate in good faith with Athlete to correct any practices that are found to be deficient as a result of any such audit and Company shall, within ten (10) days of written notice thereof, pay to Athlete any outstanding amounts identified in any such audit. This provision shall survive the termination and/or expiration of this Agreement.

(Id. ¶ 6.)

20. Additionally, “Company shall protect, indemnify, defend, and hold harmless

Athlete, and his employees, agents, representatives and successors from and against . . . any

material breach of this Agreement by Company.” (Id. ¶ 11.)

21. In the event of termination of the Agreement, Defendant agreed that Plaintiff

would still be entitled “to receive (1) the full Fee [$50,000] and (2) all Royalties through the

effective date of termination . . . .” (Id. ¶ 14.)

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22. Finally, “[i]n the event of any litigation arising from or related to this Agreement,

the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs

incurred, including staff time, court costs, attorneys’ fees, and all other related expenses incurred

in such litigation.” (Id. ¶ 20.)

FIRST CAUSE OF ACTION (Breach of Contract – Services Fees)

23. Plaintiff incorporates the allegations contained in paragraphs 1-22 above as

though set forth herein verbatim.

24. The Agreement constituted a valid and enforceable contract, agreed to by Plaintiff

and Defendant.

25. Plaintiff fully performed his obligations under the Agreement.

26. Defendant has failed to perform its express contractual obligations as set forth in

the Agreement. To the extent that Plaintiff has not performed, Defendant is the sole and

exclusive cause of Plaintiff’s lack of performance.

27. Specifically, Defendant has breached the terms of the Agreement by, among other

things:

a. Failing to pay the $25,000.00 “Fee” due promptly upon execution of the

Agreement;

b. Failing to pay the $25,000.00 “Fee” due within six months of the

execution of the Agreement.

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28. Defendant’s breach of the express terms of the Agreement has resulted in harm to

Plaintiff.

29. Plaintiff has been damaged by Defendant’s breach of the Agreement in an amount

to be proved with specificity at trial, but in all events, an amount of $50,000.00 or greater.

30. Pursuant to terms of the Agreement, Plaintiff is also entitled to an award of costs

and reasonable attorneys’ fees incurred in bringing this action.

SECOND CAUSE OF ACTION (Breach of the Implied Covenant of Good Faith and Fair Dealing – Services Fees)




and Defendant.

33. By law, every contract includes an implied covenant of good faith and fair

dealing. Thus, the Agreement included an implied covenant of good faith and fair dealing.

34. Defendant breached the implied covenant of good faith and fair dealing owed to

Plaintiff.

35. Specifically, Defendant has breached the implied covenant of good faith and fair

dealing by, among other things:

a. Failing to pay the $25,000.00 “Fee” due promptly upon execution of the

Agreement;

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b. Failing to pay the $25,000.00 “Fee” due within six months of the

execution of the Agreement; and

c. Failing to promote, market, and sale the products endorsed by Plaintiff in a

commercially reasonable manner, thus reducing the value of the Agreement to Plaintiff and

causing a premature termination of the Agreement.


Plaintiff.


to be proved with specificity at trial, but in all events, an amount of $50,000.00 or greater.



THIRD CAUSE OF ACTION (Breach of Contract – Royalties)




and Defendant.

41. Plaintiff fully performed his obligations under the Agreement.

42. Defendant has failed to perform its express contractual obligations as set forth in

the Agreement. To the extent that Plaintiff has not performed, Defendant is the sole and

exclusive cause of Plaintiff’s lack of performance.

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43. Specifically, Defendant has breached the terms of the Agreement by, among other

things:

a. Failing to pay Plaintiff royalties on the gross revenues it received because

of Plaintiff’s endorsement of Defendant’s products; and

b. Failing to provide Plaintiff with an accounting of gross revenues received,

so that Plaintiff could establish the gross revenues associated with the endorsed products.


Plaintiff.


to be proved with specificity at trial or as discovery proceeds in this matter.



FOURTH CAUSE OF ACTION (Breach of Contract of the Covenant of Good Faith and Fair Dealing – Royalties)




and Defendant.

49. By law, every contract includes an implied covenant of good faith and fair

dealing. Thus, the Agreement included an implied covenant of good faith and fair dealing.

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50. Defendant breached the implied covenant of good faith and fair dealing owed to

Plaintiff.

51. Specifically, Defendant has breached the implied covenant of good faith and fair

dealing by, among other things:

a. Failing to pay Plaintiff royalties on the gross revenues it received because

of Plaintiff’s endorsement of Defendant’s products;

b. Failing to provide Plaintiff with an accounting of gross revenues received,

so that Plaintiff could establish the gross revenues associated with the endorsed products.

c. Failing to promote, market, and sale the products endorsed by Plaintiff in a

commercially reasonable manner, thus reducing the value of the Agreement to Plaintiff and

causing a premature termination of the Agreement.

52. Defendant’s breach of the implied covenant of good faith and fair dealing has

resulted in harm to Plaintiff.


to be proved with specificity at trial or as discovery proceeds in this matter.



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FIFTH CAUSE OF ACTION (Abuse of Identity – Violation of Utah Code Ann. §§ 45-3-1 to -6)



56. Defendant caused advertisements to be published in which Plaintiff’s personal

identity was used in a manner which expressed or implied that Plaintiff approved, endorsed, has

endorsed, or will endorsed the specific subject matter of the advertisement.

57. Defendant knew it had not obtained Plaintiff’s consent to use Plaintiffs personal

identity because it had not tendered payment of the $25,000.00 “Fee” to Plaintiff as required by

the Agreement governing Defendant’s ability to use Plaintiff’s personal identify.

58. Accordingly, Defendant knew that it had breached a material term of the

Agreement but proceeded to use Plaintiff’s identity in advertisements and other promotional

materials despite this knowledge.

59. As a result of Defendant’s knowing and purposeful abuse of Plaintiff’s identity,

Plaintiff “is entitled to injunctive relief, damages alleged and proved, exemplary damages, and

reasonable attorney's fees and costs.” Utah Code Ann. § 43-5-4.

SIXTH CAUSE OF ACTION

(Unjust Enrichment)



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61. Plaintiff conferred a benefit on Defendant by entering into discussions, and

ultimately, an Agreement that would allow Defendant to use Plaintiff’s likeness and identity.

62. Defendant used Plaintiff’s likeness and identify on a variety of Defendant’s

products and in various advertisements for its products.

63. This benefit was valuable to Defendant because of Plaintiff’s popularity in Utah

and throughout the country and Defendant knew this benefit was valuable.

64. It would be inequitable under the circumstances described above to allow

Defendant to retain this benefit where Defendant lost its initial right to use the conferred benefit

when it failed to pay Plaintiff the $25,000 “Fee” upon execution of the Agreement.

65. Accordingly, to the extent that Defendant has been unjustly enriched at Plaintiff’s

expense, Plaintiff should be awarded the amount of Defendant’s unjust enrichment, which will

be determined through discovery or at trial.

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PRAYER FOR RELIEF

Wherefore, Plaintiff prays for judgment against Defendant as follows:

1. With respect to his First Cause of Action:

a. Damages in an amount to be proven at trial, but no less than $50,000.00;

b. Prejudgment and postjudgment interest as allowed by law;

c. Costs and attorneys’ fees incurred in bringing this action; and

d. Such other and further relief as the Court, in its discretion, deems

appropriate.

2. With respect to his Second Cause of Action:

a. Damages in an amount to be proven at trial, but no less than $50,000.00;

b. Prejudgment and post-judgment interest as allowed by law;

c. Costs and attorneys’ fees incurred in bringing this action; and

a. Such other and further relief as the Court, in its discretion, deems

appropriate.

3. With respect to its Third Cause of Action:

a. An order requiring Defendant to provide an accounting of all gross

revenues broken down by product;

b. Damages in an amount to be proven with specificity at trial;

c. Prejudgment and post-judgment interest as allowed by law;

d. Costs and attorneys’ fees incurred in bringing this action; and

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e. Such other and further relief as the Court, in its discretion, deems

appropriate.

4. With respect to its Fourth Cause of Action:

a. An order requiring Defendant to provide an accounting of all gross

revenues broken down by product;

b. Damages in an amount to be proven with specificity at trial;

c. Prejudgment and post-judgment interest as allowed by law;

d. Costs and attorneys’ fees incurred in bringing this action; and

e. Such other and further relief as the Court, in its discretion, deems

appropriate.

5. With respect to his Fifth Cause of Action:

a. Damages alleged and proved;

b. Exemplary damages;

c. Reasonable attorney’s fees and costs.; and

d. Such other and further relief as the Court, in its discretion, deems

appropriate.

6. With respect to his Sixth Cause of Action:

a. An order of restitution from Defendant to the extent it has been unjustly

enriched at Plaintiff’s expense; and

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b. Such other and further relief as the Court, in its discretion, deems

appropriate.

JURY DEMAND

Plaintiff hereby requests a jury trial on all causes of action.

DATED: April 1, 2013 PIA ANDERSON DORIUS REYNARD & MOSS

/s/ Tyson B. Snow Tyson B. Snow Attorneys for Plaintiff Jimmer Fredette

EXHIBIT A

Jimmer Fredette lawsuit

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Transcript of Jimmer Fredette lawsuit