LLC - DocumentCloud
ELECTRONICALLY FILED 2015-Jun-05 15:08:05 60CV-15-2539 C06D05 : 95 Pages
IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS DIVISION TEXAS.NEW MEXICO NEWSPAPER PARTNERSHIP; NEW ENGLAND NEWSPAPERS, INC.; CALIFORNIA NEWSPAPER PARTNERSHIP, LLC; KEARNS-TRIBUNE, LLC; THE DENVER POST, LLC; NORTHWEST PUBLICATIONS, LLC; 21ST CENTURY MEDIA NEWSPAPER, LLC; LOS ANGELES DAILY NEWS PUBLISHING COMPANY; and TORRANCE HOLDINGS, LLC
PLAINTIFFS
vs.
SPORTS CARDS PLUS,INC. d/b/A ROGERS PHOTO ARCHIVE; PHOTO ARCHIVE PARTNERS, LLC; NEWPORT ARCHIVBS, INC.; LEGENDARY PHOTOS, LLC; FIRST ARKANSAS BANK & TRUST; BANK OF LITTLE ROCK; FIRST COMMUNITY BANK; PROVIDENCE BANK, LLC; JOHN M. ROGERS; ANGELICA ROGERS; JOHN L. CONNER, JR.; DOUG ALLEN; AMY ALLEN; GEORGE DEMOS; ROBERT C. FAILING, JR.; WILIAM M. HOGAN; LEO BAUBY; and JOHN DOES 1.5
MICHAEL MCAFEE
DEFENDANTS RECEIVER
PLAINTIFFS' COMPLAINT COME NOW the Plaintiffs, Texas-New Mexico Newspapers Partnership; New England Newspapers, Inc.; California Newspaper Partnership, LLC; Kearns-Tribune, LLC; The Denver Post,
LLC; Northwest Publications, LLC;21'r Century Media Newspaper,LLC; Los Angeles Daily News Publishing Company; and Torrance Holdings, LLC; by and through their attorneys, Baxter, Jewell & Dobson, P.4., and for their Complaint against Defendants Sports Cards Plus, Inc. d/b/a Rogers Photo
Archive; Photo Archive Partners, LLC; Newport Archives, Inc.; Legendary Photos, LLC; First
Arkansas Bank and Trust; Bank of Little Rock; First Community Bank; Providence Bank, LLC; John
M. Rogers; Angelica Rogers; John L. Conner, Jr.; Doug Allen; Amy Allen; George Demos; Robert C.
Failing, Jr.; William M. Hogan; Leo Bauby; certain "John Does 1-5" Defendants (collectively, hereinafter, all separate Defendants referred to as "Defendants"), and Receiver, Michael McAfee, respectfully state as follows:
PARTIES
l.
Plaintiff Texas-New Mexico Newspapers Partnership
is a
general partnership
organized and existing under the laws of the State of Delaware with its principal place of business
located at 500 W. Overland Drive, Suite 150, El Paso, Texas. Texas-New Mexico Newspapers Partnership does business as the El Paso Times newspaper ("El Paso Times").
2.
Plaintiff New England Newspapers, Inc. is a company organized and existing under
the laws of the State of Delaware with its principal place of business located at 75 S. Church Street,
Pittsfield, Massachusetts. New England Newspapers, Inc. does business as the Berkshire Eagle newspaper ("Berkshire Eagle").
3.
Plaintiff California Newspaper Partnership is a partnership organized and existing
under the laws of the State of Delaware with its principal place of business located at 4 North Second Street, San Jose, California. California Newspaper Partnership,LLC, does business as the Contra Costa
Times newspaper ("Contra Costa Times"), the San Gabriel Valley Tribune newspaper ("San Gabriel
Valley Tribune"), the Whittier Daily News newspaper ("Whittier"), the Inland Valley Daily Bulletin newspaper ("Inland Valley Daily Bulletin"), the Redlands Daily Facts newspaper ("Redland Daily
Facts"); Oakland Tribune newspaper ("Oakland Tribune"), the San Jose Mercury News newspaper ("San Jose Mercury News"), the Hayward Daily Review newspaper ("Hayward Daily Review"), the
Tri-Valley Herald newspaper ("Tri-Valley Herald"), the East County Times newspaper ("East County Times"), the Alameda Times Star newspaper ("Alameda Times Star"), and The Argus newspaper ("The Argus"). 2
4.
Plaintiff Kearns-Tribune, LLC, is a limited liability company organized and existing
under the laws of the State of Delaware with its principal place of business located at 90 S. 400 West,
Suite 700, Salt Lake City, Utah. Kearns-Tribune, LLC does business as the Salt Lake Tribune newspaper ("Salt Lake Tribune").
5.
Plaintiff The Denver Post, LLC, is a limited liability company organized and existing
under the laws of the State of Delaware with its principal place of business located at
l0l
W. Colfax
Avenue, Denver, Colorado. The Denver Post, LLC does business as The Denver Post newspaper ("The Denver Post").
6.
Plaintiff Northwest Publications, LLC, is a limited liability company organized and
existing under the laws of the State of Delaware with its principal place of business located at 345 Cedar Street, St. Paul, Minnesota. Northwest Publications, LLC does business as the St. Paul Pioneer Press newspaper 7
.
("St. Paul Pioneer Press").
Plaintiff 2l't Century Media Newspaper ,LLC, is a limited liability company organized
and existing under the laws of the State of Delaware with its principal place of business located at 448
Lincoln Highway, Fairless Hill, Pennsylvania. 2l't Century Media Newspaper , LLC does business
as
the New Haven Register newspaper ("New Haven Register").
8.
Plaintiff Los Angeles Daily News Publishing Company is a company organized and
existing under the laws of the State of Delaware with its principal place of business located at21860 Burbank Boulevard, Suite 200, Woodland Hills, California. The Los Angeles Daily News Publishing Company does business as the Los Angeles Daily News ne,wspaper
9.
("LA Daily News").
Plaintiff Torrance Holdings, LLC, is a limited liability company organized and existing
underthe laws of the State of Delaware with its principal place ofbusiness locatedat21250 Hawthorne Boulevard, Suite 170, Torrance, California. Torrance Holdings, LLC does business newspaper ("Daily Br eeze").
J-
as the
Daily Breeze
10.
Upon information and belief, Defendant Sports Cards Plus, Inc. d/b/a Rogers Photo
Archive ("RPA") is a corporation organized and existing under the laws of the State of Arkansas, with its formerprincipal place ofbusiness locatedat250l North Poplar Street, North Little Rock, Arkansas.
11.
Upon information andbelief, Defendant Photo Archive Partners, LLC ("PAP") is a
limited liability company organized and existing under the laws of the State of Texas.
12.
Upon information and beliet Defendant Newport Archives, Inc. ("Newport") is an
Arkansas corporation, with its principal place of business located, upon information and belief,
Mclain
at230l
Street, Newport, Arkansas.
13.
Upon information and belief, Defendant Legendary Photos, LLC ("Legendary
Photos") is a limited liability company organized and existing under the laws of the State of Illinois.
14.
Upon information and belief, Defendant First Arkansas Bank & Trust ("FABT") is a
banking institution organized and existing under the laws of the State of Arkansas.
15.
Upon information and belief, Defendant Bank of Little Rock ("BoLR") is a banking
institution organized and existing under the laws of the State of Arkansas.
16.
Upon information and belief, Defendant First Community Bank ("FCB") is a banking
institution organized and existing under the laws of the State of Arkansas.
17.
Upon information and belief, Defendant Providence Bank, LLC ("Providence") is a
banking institution located at 630 E. 162"d Street, South Holland, Illinois.
18.
Upon information and belief, Defendant John M. Rogers is an individual resident of
the State of Arkansas.
19.
Upon information and belief, Defendant Angelica Rogers is an individual resident of
the State of Arkansas.
20.
Upon information and beliel Defendant John L. Conner, Jr. ("Conner") is an individual
resident of the State of Arkansas.
4
21.
Upon information and belief, Defendant Doug Allen is an individual resident of the
State of Illinois.
22. State of
Upon information and belief, Defendant Amy Allen is an individual resident of the
lllinois.
23.
Upon information and belief, Defendant George Demos ("Demos") is an individual
resident of the State of Wisconsin.
24.
Upon information and belief, Defendant Robert C. Failing, Jr. ("Failing") is
an
individual resident of the State of New York.
25.
Upon information and belief, Defendant William M. Hogan ("Hogan") is an individual
resident of the State of Arkansas.
26. 27
.
John Does Nos. 1-5 ("John Does") are individuals, yet to be identified. Upon information and belief, Defendant Leo Bauby ("Bauby") is an individual resident
of the State of lllinois.
28.
Michael McAfee ("McAfee") is the Receiver appointed by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the Complaint filed by FABT (the "FABT Complaint") in the Circuit Court of Pulaski County, Arkansas, Second Division, Case No. 60CV-144341 (the
"FABT Action"), on January 5,2075. The "Borrower Collateral" consists of all of personal
property of defendants Sports Card Plus, Inc., Planet Giant, LLC and Digital Stock Planet, LLC, in the
FABT Action, including but not limited to their accounts, contract rights, inventory, machinery, equipment, furniture, photographic images, memorabilia, documents, general intangibles, and books
and records, as more particularly defined in the Complaint and the exhibits thereto. The "PAP Collateral" consists of all of the personal property of Photo Archive Partners, LLC, including but not
limited to its accounts, contract rights, inventory, machinery, equipment, furniture, photographic images, memorabilia, documents, general intangibles, and books and records, as more particularly
defined in the Complaint and the exhibits thereto. 5
JURISDICTION AND VENUE
29. 3
0.
3l.
The Plaintiffs incorporate Paragraphs
l--t\, supra, into this Paragraph.
This Court has subject matter jurisdiction pursuant to Ark. Code Ann. $ I 6- 1 3 -20 I . The Court has personal jurisdiction over the parties, and venue is proper in Pulaski
Countypursuant to Ark. Code Ann. $ 16-55-213and $16-60-104.
BACKGROUND FACTS
32.
Plaintiffs incorporate Paragraphs 1-31, supra, into this Paragraph.
33.
The Plaintiffs are subsidiaries of MediaNews Group,Inc. dlbla Digital First Media,
("MediaNews"), a company organized and existing under the laws of the State of Delaware and Gannett Company, Inc. ("Gannett") a company organized and existing under the laws of the State
of
Delaware. MediaNews and Gannett are media companies that include metropolitan, rural, regional and
community newspapers in the United States. MediaNews and Gannett o\ryn a large number of original photographs and original negatives associated with the Plaintiffs' publications dating back as far as the
mid-1800s. The Plaintiffs became interested
in digitizing the photographs and negatives of their
publications in order to improve their ability to use and reference the materials.
34.
The Plaintifß' photographic and negative archives are also referred to as the Digital
First Photographic Archive and the Digital First Media Collection (collectively, the "MediaNews Archive") and include photographs, photo negatives, transparencies, slides, contact sheets, collectable items (including, but not limited to maps, postcards, handbills, tickets or posters), "clip files" (i.e.,
physical files which contain historical information including published news articles, pamphlets, leaflets, and other unpublished documents, some of which date as far back
as
the 1800's), and newspaper
archives, whether in print, digital form, or otherwise.
35.
Seven Plaintiff ne\ryspapers entered into separate agreements
with RPA for
the
digitization of those ne\4/spapers' archives, which make up a portion of the MediaNews Archive.
6
Thirteen Plaintiff newspapers did not execute agreements with RPA; however, RPA took possession of those newspapers' archives, and those archives make up a portion of the MediaNews Archive.
SEVEN PLAINTIFF NEWSPAPERS THAT ENTER.ED INTO AGREEMENTS WITH RPA
A.
El Paso Times Agreement with RPA
36.
The Plaintiffs incorporate Paragraphs
37
.
1-35, supra, into this Paragraph.
On or about January 8,2014, the El Paso Times and Defendant RPA executed the Photo
Archive Acquisition and Digital Library Services Agreement (the "El Paso Times Agreement"). A copy of the El Paso Times Agreement, including the Exhibits, is attached as Exhibit Paso Times Agreement, RPA was responsible for the
l.
Under the El
digitization of certain photographs and negatives
identified in Exhibit A of the Agreement (the "El Paso Times Archived Materials").
38.
The purpose of the Agreement was the creation of a digitized library of the El Paso
Times Archived Materials for the El Paso Times' reference and use (the "El Paso Times Digital Library"). RPA was responsible for the digitization of the El Paso Times Archived Materials and the creation ofthe El Paso Times Digital Library in North Little Rock, Arkansas at RPA's place ofbusiness, consistent with the Specif,rcations set forth in Exhibit B of the El Paso Times Agreement.
39.
A material term of the El
Paso Times Agreement was that the
El Paso Times would
have continued use of its El Paso Times Archived Materials that were needed for editorial purposes, pursuant to Section 2.4.More specifically, the El Paso Times Agreement states that, "prior to delivery
of the entire Digital Library, or during the storage, creation or conversion of the Archived Materials," the El Paso Times retained the right to request from RPA a digital image of any item contained in the
El Paso Times Archived Materials, and RPA was obligated to provide the item requested no later than 24 hours after receiving the request.
40.
According to Section 3.1 of the El Paso Times Agreement, upon completion "of the
Services provided by RPA
to El Paso Times, subject to the terms and conditions set forth in this 7
Agreement, El Paso Times shall" convey title to the El Paso Times Archived Material to RPA. The
"Services" have not been completed. Therefore, title to the El Paso Times Archived Materials remains
in the El Paso Times. The term "Services" is specifically defined under Section 1.6 of the El
Paso
Times Agreement as follows:
"Services" means, collectively, the retrieval and delivery of the
Archived Materials and the creation and delivery
of
the Deliverables, and all other materials required to be delivered under this Agreement, in accordance with the terms of this Agreement, and any additional services mutually agreed upon by the Parties associated therewith.
41.
The El Paso Times Archived Materials as defined under Exhibit A of the El Paso Times
Agreement, included:
a.
The El Paso Times vintage photograph and negative archive; and
b.
The Herald Post Archived Materials which consist of the photograph archive from
the Herald Post newspaper and which is owned by the University of Texas at El Paso.
42.
The Project Schedule, as defined under Exhibit C of the El Paso Times Agreement,
required RPA to deliver the digital library of the El Paso Times Digital Library as follows:
a.
The first one-third
(l/3) of the digital library was to be delivered to the El
Paso
Times no later than twelve (12) months following the date the El Paso Times Archived Materials arrived at RPA's offices in North Little Rock, Arkansas;
b.
The second one-third (l/3) of the digital library was to be delivered to the El Paso
Times no later than eighteen (18) months following the date the El Paso Times Archived Materials arrived at RPA's offices in North Little Rock, Arkansas; and
c.
The final one-third (l/3) of the digital library was to be delivered to the El Paso
Times no later than twelve (12) months following the date the El Paso Times Archived Materials arrived at RPA's ofhces in North Little Rock, Arkansas.
8
43. a
Pursuant to Section 4 of the El Paso Times Agreement, the El Paso Times granted RPA
right and license to reproduce images copyrighted by the El Paso Times and belonging to the El Paso
Times Archived Materials. RPA was required to pay the El Paso Times fifty percent(s}%) of all profits
of net sales from any project in which the copyrighted items covered by the El Paso Times Agreement are used.
44.
Further, the
El
Paso Times Agreement obligated RPA
to "develop, market,
and
maintain" a website for the El Paso Times for hosting, editorial licensing, and selling commercial products for the El Paso Times Archived Materials.
45.
According to Section 7 .2 of the El Paso Times Agreement, RPA represented, warranted
and covenanted to the El Paso Times that its personnel had the proper skill, training and background necessary to accomplish their assigned tasks, and all Services to be rendered under the El Paso Times
Agreement would be performed in a competent, professional, and workmanlike manner by fully qualified personnel.
46.
Section 9.4 of the El Paso Times Agreement gave either party the right to terminate the
El Paso Times Agreement under the following circumstances, among others:
Termination
for
lnsolvenc]¡. Either Party may immediately
terminate this Agreement upon written notice to the other Party in the event that the other Party (a) admits in writing its inability to pay its debts as they become due, fails to satisfy any judgment against it, or otherwise ceases operations of its business in the ordinary course, (b) is adjudicated bankrupt or becomes insolvent, (c) winds up or liquidates its business voluntarily or otherwise, (d) applies for, consents to or suffers the appointment of, or the taking of possession of by, u receiver, custodian, assignee, trustee, liquidator or similar fiduciary of itself or of all or any substantial
portion of -its assets . . . .
47.
Section 9.5 of the El Paso Times Agreement required RPA to return the El Paso Times
Archived Materials to the El Paso Times within ten (10) days after termination of the Agreement.
9
48.
On or about January 14, 2014, RPA took possession of the El Paso Times Archived
Materials. Additionally, RPA took possession of slides, glass negatives, and "clip frles," physical files
which contain historical information including published news articles, pamphlets, leaflets and other unique unpublished documents belonging to the El Paso Times.
49.
On or about January 17,2014, RPA delivered the El Paso Times Archived Materials
to RPA's places of business, which were locatedat240l N. Poplar Street, North Little Rock, Arkansas,
2501 N. Poplar Street, North Little Rock, Arkansas, and I 15 E. 24rh Sffeet, North Little Rock, Arkansas.
50.
Following delivery of the El Paso Times Archived Materials, RPA has failed and refused,
and continues to fail and refuse, to create a digitized library of the El Paso Times Archived Materials as
it
was required to do under the El Paso Times Agreement in the form required by the El Paso Times Agreement. Upon information and belief, the only photographs and/or negatives from the El Paso Times
Archived Materials that RPA has digitized, or "scanned," are the digital images needed for editorial purposes and requested by the El Paso Times pursuant to Section 2.4 of the El Paso Times Agreement.
51.
RPA failed and refused, and continues to fail and refuse, to deliver to the El Paso Times
the digitized images in the form required by RPA under the El Paso Times Agreement.
52.
RPA failed and refused, and continues to fail and refuse, to develop, market, and
maintain a website for the El Paso Times for hosting, editorial licensing, and selling commercial products for the El Paso Times Archived Materials.
53.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things, that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
with the exhibits attached thereto, revealed among other things, RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
l0
54.
On November 17,2014, FABT filed a Motion for the Immediate Appointment of a
Receiver ("FABT Motion") over the collateral of RPA and the other related borrowers; FABT sought the appointment of McAfee as Receiver in the FABT Action.
55.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
56.
By letter dated May 15, 2015, the El Paso Times terminated the El
Paso Times
Agreement under Section 9.4 and demanded that RPA return the El Paso Times Archived Materials.
A copy of the May 15, 2015 Letter of Termination is attached as Exhibit 2. Under the terms of the El Paso Times Agreement, RPA was required to deliver the El Paso Times Archived Materials to the El Paso Times on or before May 26,2015.
57.
At the time of the El Paso Times' termination of the El Paso Times Agreement, RPA
did not "own" or otherwise hold title to the Archived Materials since the Services contemplated by the Agreement were not completed or ever performed.
58.
Upon information and belief, the El Paso Times Archived Materials are in the
possession of McAfee, the Receiver appointed in the FABT Action, at 2401 N. Poplar Street and
1
15
E.24th Sheet, North Little Rock, Arkansas. The El Paso Times Archived Materials and are not subject
to the receivership in that action. McAfee unlawfully detains the El Paso Times Archived Materials.
59.
By letter dated May 15,2015, the El Paso Times demanded that McAfee retum the El
Paso Times Archived Materials to the
El Paso Times. A copy of the May 15, 2015 letter is attached as
Exhibit 2.
60.
Upon information and belief, RPA, John M. Rogers, and/or Angelica
Rogers
wrongfully transferred and delivered some or all of the El Paso Times Archived Materials to third parties who
will be named as Defendants herein
once they are
referred to John Does.
1l
fully identified. Those persons
are
61.
Upon information and belief, RPA, John M. Rogers and/or Angelica Rogers, and John
Does, sold some of the El Paso Times Archived Materials on the online auction website, eBay.com.
Upon information and belief, the El Paso Times Archived Materials being offered for sale had not yet been digitized and/or
if
the photographs had been digitized then the digitized images were never
provided to the El Paso Times. The digital images for the El Paso Times Archive being offered for sale on eBay.com by RPA, John M. Rogers and/or Angelica Rogers, and John Does were never provided
to the El Paso Times as of the filing of this action. Even more concerning, if the photographs sold on eBay.com did not have negative film from which the photos were printed, thereby making the photos
one-of-a-kind items, the El Paso Times Archive has been ineparably harmed. If the photographs being offered for sale on eBay.com had been digitized, the El Paso Times was not ever notified or given an opportunity to inspect the digitized image to ensure the quality of the Services, as set forth in Exhibit B to the Agreement, including but not limited to: 1) digital scans of the photos and negatives saved at maximum quality and minimum size; 2) physical cleaning of all photographic prints prior to scanning including removal of editors' marks and writing or notations on the prints; and 3) the inclusion of all photo data, or metadata, with the digital scans.
62.
Upon information and belief, RPA, John M. Rogers and/or Angelica Rogers and John
Does, are selling images copyrighted by the El Paso Times and belonging to the El Paso Times
Archived Materials on online websites, including but not limited to, RetrolmagesArchive.com. RPA failed and refused, and continues to fail and refuse, to pay the El Paso Times fifty percent (50%) of all
profits of net sales from the sales of products related to the images copyrighted by the El Paso Times and belonging to the El Paso Times Archived Materials.
B.
Berkshire Eagle Agreement with RPA
63.
On or about November 21,2013, the Berkshire Eagle and Defendant RPA executed
the Photo Archive Acquisition and Digital Library Services Agreement (the "Berkshire
Eagle
Agreement"). A copy of the Agreement, including the Exhibits, is attached as Exhibit 3. Under the t2
Agreement, RPA Ìù/as responsible for the digitization of certain photographs and negatives identified
in Exhibit A of the Berkshire Eagle Agreement (the "Berkshire Eagle Archived Materials").
64.
The purpose of the Berkshire Eagle Agreement was the creation of a digitized library
of the Berkshire Eagle Archived Materials for the Berkshire Eagle's reference and use (the "Berkshire Eagle Digital Library"). RPA was responsible for the digitization of the Berkshire Eagle Archived Materials and the creation of the Berkshire Eagle Digital Library in North Little Rock, Arkansas at RPA's place ofbusiness, consistent with the Specifications set forth in Exhibit B of the Berkshire Eagle Agreement.
65.
A material term of the Berkshire Eagle Agreement was that the Berkshire Eagle would
have continued use of the Berkshire Eagle Archived Materials that were needed for editorial purposes, pursuant to Section 2.4.More specifically, the Berkshire Eagle Agreement states that, "prior to delivery
of the entire Digital L1brary, or during the storage, creation or conversion of the Archived Materials," the Berkshire Eagle retained the right to request from RPA a digital image of any item contained in the
Berkshire Eagle Archived Materials, and RPA was obligated to provide the item requested no later than24 hours after receiving the request.
66.
According to Section 3.1 of the Berkshire Eagle Agreement, upon completion "of the
Services provided by RPA to Berkshire Eagle, subject to the terms and conditions set forth in this Agreement, Berkshire Eagle shall" convey title to the Berkshire Eagle Archived Material to RPA. The
"Services" have not been completed. Therefore, title to the Berkshire Eagle Archived Materials remains in the Berkshire Eagle. The term "Services" is specifically defined under Section 1.6 of the
Berkshire Eagle Agreement as follows:
"Services" means, collectively, the retrieval and delivery of the
Archived Materials and the creation and delivery
of
the Deliverables, and all other materials required to be delivered under this Agreement, in accordance with the terms of this Agreement, and any additional services mutually agreed upon by the Parties associated therewith.
l3
67.
The Berkshire Eagle Archived Materials as defined under Exhibit A of the Berkshire
Eagle Agreement included:
68.
a.
The Berkshire Eagle vintage photograph and negative archive; and
b.
The North Adams Transcript photograph archive.
The Project Schedule, as defined under Exhibit C of the Berkshire Eagle Agreement,
required RPA to deliver the digital library of the Berkshire Eagle Digital Library as follows:
a.
The frrst one-third (1/3) of the digital library was to be delivered to the Berkshire
Eagle no later than twelve (12) months following the date the Berkshire Eagle Archived Materials arrived at RPA's offrces in North Little Rock, Arkansas;
b.
The second one-third (1/3) of the digital library was to be delivered to the Berkshire
Eagle Times no later than eighteen (18) months following the date the Berkshire Eagle Archived Materials arrived at RPA's offices in North Little Rock, Arkansas; and
c.
The final one-third
(l/3) of the digital library was to be delivered to the Berkshire
Eagle no later than twelve (12) months following the date the Berkshire Eagle Archived Materials arrived at RPA's offices in North Little Rock, Arkansas.
69.
Pursuant to Section 4 of the Berkshire Eagle Agreement, the Berkshire Eagle granted
RPA a right and license to reproduce images copyrighted by the Berkshire Eagle and belonging to the Berkshire Eagle Archived Material. RPA was required to pay the Berkshire Eagle fifty percent (50%)
of all profits of net sales from any project in which the copyrighted items covered by the Berkshire Eagle Agreement are used.
70.
Further, the Berkshire Eagle Agreement obligated RPA to "develop, market, and
maintain" a website for the Berkshire Eagle for hosting, editorial licensing, and selling commercial products for the Berkshire Eagle Archived Material.
71.
According
to
Section 7.2
of the Berkshire Eagle Agreement, RPA represented,
warranted and covenanted to the Berkshire Eagle that its personnel had the proper skill, training and
t4
background necessary to accomplish their assigned tasks, and all Services to be rendered under the
Berkshire Eagle Agreement would be performed in a competent, professional and workmanlike manner by fully qualified personnel
72.
Section 9.4 of the Berkshire Eagle Agreement gave either party the right to terminate
the Berkshire Eagle Agreement under the following circumstances, among others:
for
lnsolvency. Either Party may immediately terminate this Agreement upon written notice to the other Parly in the event that the other Party (a) admits in writing its inability to pay its debts as they become due, fails to satisff any judgment against it, or otherwise ceases operations of its business in the Termination
ordinary course, (b) is adjudicated bankrupt or becomes insolvent, (c) winds up or liquidates its business voluntarily or otherwise, (d) applies for, consents to or suffers the appointment of, or the taking of possession of by, u receiver, custodian, assignee, trustee, liquidator or similar fiduciary of itself or of all or any substantial portion of -its assets . . . .
73.
Section 9.5 of the Berkshire Eagle Agreement required RPA to return the Berkshire
Eagle Archived Materials to the Berkshire Eagle within ten (10) days after termination of the Berkshire Eagle Agreement.
74.
On or about April 25, 2014, John M. Rogers and Mac Hogan on behalf of PAP, and
Amy Allen and Doug Allen on behalf of Legendary Photos, LLC entered into an agreement in which PAP would provide to Legendary Photos, LLC, under consignment for the sale of various archives, including the Berkshire Eagle Archived Materials in exchange for
75.
$l million
($1,000,000.00).
On or about July 2, 2014, RPA took possession of the Berkshire Eagle Archived
Materials.
76.
The Plaintiffs do not know where RPA transported or delivered the Berkshire Eagle
Archived Materials.
77.
After taking possession of the Berkshire Eagle Archived Materials, RPA failed and
refused, and continues to fail and refuse, to create a digitized library of the Berkshire Eagle Archived
l5
Materials as it was required to do under the Berkshire Eagle Agreement in the form required by the Agreement.
78.
RPA failed and refused, and continues to fail and refuse, to deliver to the Berkshire Eagle
the digitized images in the form required by RPA under the Berkshire Eagle Agreement.
79.
RPA failed and refused, and continues to fail and refuse, to develop, market, and maintain
a website for the Berkshire Eagle for hosting, editorial licensing, and selling commercial products
for
the Berkshire Eagle Archived Materials.
80.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT in the FABT Action, alleged among other things,
that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
with the exhibits attached thereto, revealed among other things, RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
81.
On November 17,2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
82.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
83.
By letter dated May 15, 2015, the Berkshire Eagle terminated the Berkshire Eagle
Agreement under Section 9.4 and demanded that RPA return the Berkshire Eagle Archived Materials.
A copy of the May 15,2015 Letter of Termination is attached as Exhibit 2. Under the terms of
the
Berkshire Eagle Agreement, RPA was required to deliver the Berkshire Eagle Archived Materials to the Berkshire Eagle on or before May 26,2015.
84.
At the time of the Berkshire Eagle's termination of the Berkshire Eagle Agreement,
RPA did not "own" or otherwise hold title to the Berkshire Eagle Archived Materials since the Services contemplated by the Berkshire Eagle Agreement were not completed or ever performed.
t6
85.
Upon information and beliet the Berkshire Eagle Archived Materials are in the
possession of Doug Allen, Amy
Allen, and/or Legendary Photos, LLC, at 17542 Chicago Avenue,
Lansing, Illinois or at 23120 S. Hidden Lake Trail, Crete, Illinois. The Berkshire Eagle Archived Materials are not subject to the receivership in the FABT action. Doug Allen, Amy Allen, and/or Legendary Photos, LLC unlawfully detain the Berkshire Eagle Archived Materials. By letter dated
May 15, 2015, the Berkshire Eagle demanded that they return the Berkshire Eagle Archived Materials.
A copy of the May 15,2015 letter is attached
86.
as
Exhibit
2.
Upon information and beliet Doug Allen, Amy Allen, and/or Legendary Photos, LLC,
acquired possession of the Berkshire Eagle Archived Materials without the knowledge, permission or
authorization of the Berkshire Eagle.
87.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen, and/or Legendary Photos, LLC wrongfully transferred and delivered some or all of the Berkshire Eagle Archived Materials to third parties who will be named as Defendants herein once they are
fully identified. Those persons are referred to John Does.
88.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen, andlor Legendary Photos, LLC and John Does, sold some of the Berkshire Eagle Archived Materials on the online auction website, eBay.com. Upon information and belief, the digital images
from the Berkshire Eagle Archived Materials being offered for sale on eBay.com by RPA, John M. Rogers, Angelica Rogers, Doug Allen, Amy Allen, and/or Legendary Photos,
LLC and John Does
were never provided to the Berkshire Eagle as of the filing of this action. Even more concerning, if the photographs sold on eBay.com did not have negative f,rlm from which the photos were printed, thereby
making the photos one-of-a-kind items, the Berkshire Eagle Archive has been irreparably harmed.
If
the photographs being offered for sale on eBay.com had been digitized, the Berkshire Eagle was not ever notified or given an opportunity to inspect the digitized image to ensure the quality ofthe Services,
l7
as set forth in Exhibit B to the Agreement, including but not limited
to: 1) digital scans of the photos
and negatives saved at maximum quality and minimum size;2) physical cleaning of all photographic
prints prior to scanning including removal of editors' marks and writing or notations on the prints; and 3) the inclusion of all photo data, or metadata, with the digital scans.
89.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen, Amy
Allen, and/or Legendary Photos, LLC and John Does, are selling images copyrighted by the Berkshire Eagle and belonging to the Berkshire Eagle Archived Materials on online websites, including but not
limited to, RetrolmagesArchive.com. RPA failed and refused, and continues to fail and refuse, to pay the Berkshire Eagle
fifty percent (50%) of all profits of net
sales from the sales of products related to
the images copyrighted by the Berkshire Eagle and belonging to the Berkshire Eagle Archived Materials.
C. Contra
90.
Costa Times Agreement with RPA
On or about November 21,2013, the Contra Costa Times and Defendant RPA executed
the Photo Archive Acquisition and Digital Library Services Agreement (the "Contra Costa Times Agreement"). A copy of the Contra Costa Times Agreement, including the Exhibits, is attached as
Exhibit 4. Under the Contra Costa Times Agreement, RPA was responsible for the digitization of certain photographs and negatives identified in Exhibit A of the Contra Costa Times Agreement (the "Contra Costa Times Archived Materials").
91.
The purpose of the Contra Costa Times Agreement was the creation of a digitized
library of the Contra Costa Times Archived Materials for the Contra Costa Times' reference and use (the "Contra Costa Times Digital Library"). RPA was responsible for the digitization of the Contra Costa Times Archived Materials and the creation of the Contra Costa Times Digital Library in North
Little Rock, Arkansas at RPA's place ofbusiness, consistent with the Specifications set forth in Exhibit B of the Agreement.
l8
92. A material term of the Agreement
was that the Contra Costa Times would have
continued use of its Archived Materials that were needed for editorial purposes, pursuant to Section 2.4. More specifically, the Contra Costa Times Agreement states that, "prior to delivery of the entire
Digital L1brary, or during the storage, creation or conversion of the Contra Costa Times Archived Materials," the Contra Costa Times retained the right to request from RPA a digital image of any item contained in the Contra Costa Times Archived Materials, and RPA was obligated to provide the item requested no later than24 hours after receiving the request.
93.
According to Section 3.1 of the Contra Costa Times Agreement, upon completion
"of
the Services provided by RPA to Contra Costa Times, subject to the terms and conditions set forth in
this Agreement, Contra Costa Times shall" convey title to the Archived Material to RPA. The "Services" have not been completed. Therefore, title to the Archived Materials remains in the Contra Costa Times. The term "Services" is specihcally defined under Section 1.6 of the Agreement as
follows: "Services" means, collectively, the retrieval and delivery of the
Archived Materials and the creation and delivery
of
the Deliverables, and all other materials required to be delivered under this Agreement, in accordance with the terms of this Agreement, and any additional services mutually agreed upon by the Parties associated therewith.
94.
The Contra Costa Times Archived Materials as defined under Exhibit A of the Contra
Costa Times Agreement included:
a.
95.
The Contra Costa Times vintage photograph and negative archive.
The Project Schedule, as defined under Exhibit C of the Contra Costa Times
Agreement, required RPA to deliver the digital library of the Contra Costa Times Digital Library as
follows:
t9
a.
The first one-third (1/3) of the digital library was to be delivered to the Contra
Costa Times no later than twelve (12) months following the date the Contra Costa Times Archived
Materials arrived at RPA's offices in North Little Rock, Arkansas;
b.
The second one-third
(l/3) of the digital library was to be delivered to the Contra
Costa Times no later than eighteen (18) months following the date the Contra Costa Times Archived
Materials arrived at RPA's offices in North Little Rock, Arkansas; and
c.
The final one-third (l/3) of the digital library was to be delivered to the Contra
Costa Times no later than twelve (12) months following the date the Contra Costa Times Archived
Materials arrived at RPA's offices in North Little Rock, Arkansas.
96.
Pursuant to Section 4 of the Contra Costa Times Agreement, the Contra Costa Times
granted RPA a right and license to reproduce images copyrighted by the Contra Costa Times and belonging to the Contra Costa Times Archived Materials. RPA was required to pay the Contra Costa Times fifty percent (50%) of all profits of net sales from any project in which the copyrighted items covered by the Contra Costa Times Agteement are used.
97.
Further, the Contra Costa Times Agreement obligated RPA to "develop, market, and
maintain" a website for the Contra Costa Times for hosting, editorial licensing, and selling commercial products for the Contra Costa Times."
98.
According to Section 7.2 of the Contra Costa Times Agreement, RPA represented,
warranted and covenanted to the Contra Costa Times that its personnel had the proper skill, training and background necessary to accomplish their assigned tasks, and all Services to be rendered under the
Contra Costa Times Agreement would be performed in a competent, professional and workmanlike manner by fully qualified personnel.
99.
Section 9.4 of the Contra Costa Times Agreement gave either party the right to
terminate the Contra Costa Times Agreement under the following circumstances, among others:
20
Termination
for
Insolvency. Either Party may immediately
terminate this Agreement upon written notice to the other Party in the event that the other Party (a) admits in writing its inability to pay its debts as they become due, fails to satisfy any judgment against it, or otherwise ceases operations of its business in the ordinary course, (b) is adjudicated bankrupt or becomes insolvent, (c) winds up or liquidates its business voluntarily or otherwise, (d) applies for, consents to or suffers the appointment of, or the taking of possession of by, u receiver, custodian, assignee, trustee, liquidator or similar fiduciary of itself or of all or any substantial portion of its assets . . . .
-
100.
Section 9.5 of the Contra Costa Times Agreement required RPA to return the Contra
Costa Times Archived Materials to the Contra Costa Times within ten (10) days after termination
of
the Agreement.
101. On or about December 12,2013,
RPA took possession of the Contra Costa Times
Archived Materials.
102. On or about December 15, 2013, RPA delivered the Contra Costa Times Archived Materials to RPA's places of business, which were locatedat240l N. Poplar Street, North Little Rock,
Arkansas,250l N. Poplar Street, North Little Rock, Arkansas, and 115 E.24th Sfieet, North Little Rock, Arkansas.
103. Following delivery of the Contra Costa Times Archived
Materials, RPA has failed and
refused, and continues to fail and refuse, to create a digitized library of the Contra Costa Times Archived
Materials as it was required to do under the Contra Costa Times Agreement in the form required by the
Contra Costa Times Agreement. Upon information and belief, the only photographs and/or negatives
from the Contra Costa Times Archived Materials that RPA has digitized, or "scanned," are the digital images needed for editorial purposes and requested by the Contra Costa Times pursuant to Section 2.4
of
the Contra Costa Times Agreement.
104.
RPA failed and refused, and continues to fail and refuse, to deliver to the Contra Costa
Times the digitized images in the form required by RPA under the Contra Costa Times Agreement.
2l
105.
RPA failed and refused, and continues to fail and refuse, to develop, market, and maintain
a website for the Contra Costa Times for hosting, editorial licensing, and selling commercial products
for the Contra Costa Times Archived Materials.
106.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things
that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together with the exhibits attached thereto, revealed among other things, RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
107.
On November 17,2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
108. On January 5,2015, McAfee was appointed
Receiver by the Court for the "Borro'ù/er
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
109. By letter dated May 15,2015, the Contra Costa Times terminated the Contra Costa Times Agreement under Section 9.4 and demanded that RPA return the Contra Costa Times Archived
Materials. A copy of the May 15, 2015 Letter of Termination is attached as Exhibit 2. Under the terms of the Contra Costa Times Agreement, RPA was required to deliver the Contra Costa Times Archived Materials to the Contra Costa Times on or before May 26,2015.
110. At the time of the Contra Costa Times' termination of the Contra Cost Times Agreement, RPA did not "o\ryn" or otherwise hold title to the Contra Costa Times Archived Materials since the Services contemplated by the Contra Costa Times Agreement were not completed or ever performed. II
l.
Upon information and belief, the Contra Costa Times Archived Materials are in the
possession of McAfee, the Receiver appointed in the FABT Action, at 2401 N. Poplar Street and I E
l5
.24rh Street, North Little Rock, Arkansas. The Contra Costa Times Archived Materials are not subject
22
to the receivership in that action. McAfee unlawfully detains the Contra Costa Times Archived Materials.
ll2.
By letter dated May 15, 2015, the Contra Cost Times demanded that McAfee return
the Contra Costa Times Archived Materials to the Contra Costa Times.
A copy of the May
15, 2015
letter is attached as Exhibit 2.
I13.
Upon information and belief,, RPA, John M. Rogers, and/or Angelica
Rogers
wrongfully transferred and delivered some or all of the Contra Costa Times Archived Materials to third parties who
will be named as Defendants herein
once they are
fully identified. Those persons
are
referred to as John Does.
ll4.
Upon information and belief, RPA, John M. Rogers andlor Angelica Rogers, and the
John Doe Defendants, sold some of the Contra Costa Times Archived Materials on the online auction website, eBay.com. Upon information and belief, many of the Contra Costa Times Archived Materials being offered for sale had not yet been digitized and/or
if the photographs
had been digitized then the
digitized images were never provided to the Contra Costa Times. Upon information and belief, digital images for the Contra Costa Times Archived Materials being offered for sale on eBay.com by RPA,
John M. Rogers and/or Angelica Rogers, and John Does were never provided to the Contra Costa Times as of the filing of this action. Even more concerning, if the photographs sold on eBay.com did not have negative film from which the photos were printed, thereby making the photos one-of-a-kind items, the Contra Costa Times Archive has been irreparably harmed. If the photographs being offered
for sale on eBay.com had been digitized, the Contra Costa Times was not ever notified or given
an
opportunity to inspect the digitized image to ensure the quality of the Services, as set forth in Exhibit B to the Agreement, including but not limited to: 1) digital scans of the photos and negatives saved at maximum quality and minimum size; 2) physical cleaning of all photographic prints prior to scanning
23
including removal of editors'marks and writing or notations on the prints; and 3) the inclusion of all photo data, or metadata, with the digital scans.
115.
The Contra Costa Times has learned that RPA, John M. Rogers and/or Angelica Rogers
and John Does, are selling images copyrighted by the Contra Costa Times and belonging to the Conha Costa Times Archive on online websites, including but not limited to, RetrolmagesArchive.com. RPA
failed and refused, and continues to fail and refuse, to pay the Contra Costa Times fifty percent (50%)
of all profits of net sales from the sales of products related to the images copyrighted by the Contra Costa Times and belonging to the Contra Costa Times Archived Materials.
D. Oakland Tribune Agreement with RPA
I16.
On or about November 21,2013, the Oakland Tribune and Defendant RPA executed
the Photo Archive Acquisition and Digital Library Services Agreement (the "Oakland Tribune Agreement"). A copy of the Oakland Tribune Agreement, including the Exhibits, is attached as Exhibit
5. Under the Oakland Tribune Agreement, RPA was responsible for the digitization of
certain
photographs and negatives identified in Exhibit A of the Agreement (the "Oakland Tribune Archived
Materials").
ll7
.
The purpose of the Agreement was the creation of a digitized library of the Archived
Materials for the Oakland Tribune's reference and use (the "Oakland Tribture Digital Library"). RPA was responsible for the digitization of the Oakland Tribune Archived Materials and the creation of the Oakland Tribune Digital Library in North Little Rock, Arkansas at RPA's place of business, consistent
with the Specifications set forth in Exhibit B of the Oakland Tribune Agreement.
ll8.
A material term of the Oakland Tribune Agreement was that the Oakland Tribune
would have continued use of its Archived Materials that were needed for editorial purposes, pursuant to Section 2.4. More specifically, the Oakland Tribune Agreement states that, "prior to delivery of the entire Digital Library, or during the storage, creation or conversion of the Archived Materials," the Oakland Tribune retained the right to request from RPA a digital image of any item contained in the 24
Oakland Tribune Archived Materials, and RPA was obligated to provide the item requested no later than 24 hours after receiving the request.
119. According
to Section 3.1 of the Oakland Tribune Agreement, upon completion "of the
Services provided by RPA to Oakland Tribune, subject to the terms and conditions set forth in this
Agreement, Oakland Tribune shall" convey title to the Oakland Tribune Archived Material to RPA. The "Services" have not been completed. Therefore, title to the Oakland Tribune Archived Materials remains in the Oakland Tribune. The term "Seryices" is specifically defined under Section 1.6 of the Oakland Tribune Agreement as follows:
"Services" means, collectively, the retrieval and delivery of the
Archived Materials and the creation and delivery
of
the Deliverables, and all other materials required to be delivered under this Agreement, in accordance with the terms of this Agreement, and any additional services mutually agreed upon by the Parties associated therewith.
120. The Archived Materials
as defined under
Exhibit A of the Oakland Tribune Agreement,
included:
a.
l2l.
The Oakland Tribune vintage photograph and negative archive.
The Project Schedule, as defined under Exhibit C of the Oakland Tribune Agreement,
required RPA to deliver the digital library of the Oakland Tribune Digital Library as follows:
a.
The first one-third (1/3) of the digital library was to be delivered to the Oakland
Tribune no later than twelve (12) months following the date the Oakland Tribune Archived Materials arrived at RPA's offices in North Little Rock, Arkansas;
b.
The second one-third (1/3) of the digital library was to be delivered to the Oakland
Tribune no later than eighteen ( l8) months following the date the Oakland Tribune Archived Materials
arrived at RPA's offices in North Little Rock, Arkansas; and
25
c.
The final one-third (1/3) of the digital library was to be delivered to the Oakland
Tribune no later than twelve (12) months following the date the Oakland Tribune Archived Materials arrived at RPA's offices in North Little Rock, Arkansas.
122. Pursuant
to Section 4 of the Oakland Tribune Agreement, the Oakland Tribune granted
RPA a right and license to reproduce images copyrighted by the Oakland Tribune and belonging to the Oakland Tribune Archived Materials. RPA was required to pay the Oakland Tribune fifty percent (50%) of all profits of net sales from any project in which the copyrighted items covered by the Oakland Tribune Agreement are used.
123. Further,
the Oakland Tribune Agreement obligated RPA to "develop, market, and
maintain" a website for the Oakland Tribune for hosting, editorial licensing, and selling commercial products for the Oakland Tribune Archived Materials.
124. According to Section 7.2 of the Oakland Tribune
Agreement, RPA represented,
warranted and covenanted to the Oakland Tribune that its personnel had the proper skill, training and
background necessary to accomplish their assigned tasks, and all Services to be rendered under the Oakland Tribune Agreement would be performed in a competent, professional and workmanlike manner by fully qualified personnel.
125.
Section 9.4 of the Oakland Tribune Agreement gave either party the right to terminate
the Oakland Tribune Agteement under the following circumstances, among others:
for Insolvenc)¡. Either Party may immediately terminate this Agreement upon written notice to the other Party in the event that the other Party (a) admits in writing its inability to pay its debts as they become due, fails to satisfu any judgment against it, or otherwise ceases operations of its business in the ordinary course, (b) is adjudicated bankrupt or becomes insolvent, (c) winds up or liquidates its business voluntarily or otherwise, (d) applies for, consents to or suffers the appointment of, or the taking of possession of by, a receiver, custodian, assignee, trustee, liquidator- or similar fìduciary of itself or of all or any substantial portion ofits assets . . . . Termination
26
126. Section
9.5 of the Oakland Tribune Agreement required RPA to return the Oakland
Tribune Archived Materials to the Oakland Tribune within ten (10) days after termination of the Oakland Tribune Agreement.
127. On or about December 16, 2013, RPA took possession of the Oakland Tribune Archived Materials.
128.
On or about December 19, 2013, RPA delivered the Oakland Tribune Archived
Materials to RPA's places of business, which were locatedat240l N. Poplar Street, North Little Rock,
Arkansas,250l N. Poplar Street, North Little Rock, Arkansas, and 115 E.24th Sfieet, North Little Rock, Arkansas.
129. Following
delivery of the Oakland Tribune Archived Materials, RPA has failed and
refused, and continues to fail and refuse, to create a digitized library of the Oakland Tribune Archived
Materials as it was required to do under the Oakland Tribune Agreement in the form required by the Oakland Tribune Agreement. Upon information and belief, the only photographs and/or negatives from
the Oakland Tribune Archived Materials that RPA has digitized, or "scanned," are the digital images needed for editorial purposes and requested by the Oakland Tribune pursuant
to Section 2.4 of the
Oakland Tribune Agreement.
130.
RPA failed and refused, and continues to fail and refuse, to deliver to the Oakland Tribune
the digitized images in the form required by RPA under the Oakland Tribune Agreement.
131. a website
RPA failed and refused, and continues to fail and refuse, to develop, market, and maintain
for the Oakland Tribune for hosting, editorial licensing, and selling commercial products for
the Oakland Tribune Archived Materials.
132. Upon information
and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14, 2014, F ABT, in the FABT Action alleged among other things that RPA had defaulted on several loans extended by FABT to RPA, among other things. The FABT
27
Complaint, together with the exhibits attached thereto, revealed among other things, RPAs true troubled
financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
133.
On November 17, 2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
134.
On January 5, 2015 , McAfee was appointed Receiver by the Court for the "Borro\ryer
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
135.
By letter dated May 15, 2015, the Oakland Tribune terminated the Oakland Tribune
Agreement under Section 9.4 and demanded that RPA return the Oakland Tribune Archived Materials.
A copy of the May
15, 2015 Letter of Termination is attached as
Exhibit 2. Under the terms of the
Oakland Tribune Agreement, RPA was required to deliver the Oakland Tribune Archived Materials to the Oakland Tribune on or before May 26,2015.
136.
At the time of the Oakland Tribune's termination of the Oakland Tribune Agreement,
RPA did not "own" or otherwise hold title to the Oakland Tribune Archived Materials since the Services contemplated by the Oakland Tribune Agreement were not complete.
I37.
Upon information and belief portions of the Oakland Tribune Archived Materials are
in the possession of McAfee, the Receiver appointed in the FABT Action, at 2401 N. Poplar Street, North Little Rock, Arkansas and 115 E.24th Street, North Little Rock, Arkansas and are not subject to the receivership in that action. McAfee unlawfully detains the Oakland Tribune Archived Materials.
Additionally, some photos and negatives belonging to the Oakland Tribune Archived Materials are in the possession of Conner and Newport,
at230l Mclain
Street, Newport, Arkansas and are not subject
to the receivership in the FABT Action. Conner and Newport unlawfully detain the portions of the Oakland Tribune Archived Materials in their possession. By letter dated May 15,2015, the Oakland
28
Tribune demanded that they return the Oakland Tribune Archived Materials. A copy of the May 15, 2015 letter is attached as Exhibit 2.
138. By letter dated May 15,2015, the Oakland Tribune demanded
that McAfee return the
Oakland Tribune Archived Materials to the Oakland Tribune. A copy of the May 15,2015 letter is attached as
Exhibit
2.
139. Upon information
and belief, Conner and Newport acquired possession of the Oakland
Tribune Archived Materials without the knowledge, permission or authorization of the Oakland Tribune.
140.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Conner, andlor
Newport wrongfully transferred and delivered some or all of the Archived Materials to third parties who will be named as Defendants herein once they are fully identified. Those persons are referred to John Does.
141. Upon information
and belief, RPA, John M. Rogers, Angelica Rogers, Conner, and/or
Newport, and John Does, sold some of the Oakland Tribune Archived Materials on the online auction website, eBay.com. Upon information and belief, many of the Oakland Tribune Archived Materials being offered for sale had not yet been digitized and/or
if the photographs
had been digitized then the
digitized images were never provided to the Oakland Tribune. The digital images for the Oakland Tribune Archived Materials being offered for sale on eBay.com by RPA, John M. Rogers, Angelica Rogers, Conner, and/or Newport, and John Does were never provided to the Oakland Tribune as of the
filing of this action. Even more concerning, if the photographs sold on eBay.com did not have negative film from which the photos were printed, thereby making the photos one-of-a-kind items, the Oakland Tribune photographic archive has been irreparably harmed. If the photographs being offered for sale on eBay.com had been digitized, the Oakland Tribune was not ever notified or given an opportunity to inspect the digitized image to ensure the quality of the Services, as set forth in Exhibit B to the Oakland
29
Tribune Agreement, including but not limited to:
l) digital scans of the photos
and negatives saved at
maximum quality and minimum size; 2) physical cleaning of all photographic prints prior to scanning including removal of editors' marks and writing or notations on the prints; and 3) the inclusion of all photo data, or metadata, with the digital scans.
142.
The Oakland Tribune has leamed that RPA, John M. Rogers, Angelica Rogers, Conner
and Newport, and John Does are selling images copyrighted by the Oakland Tribune and belonging to
the Oakland Tribune Archived Materials on online websites, including but not limited
to,
RetrolmagesArchive.com. RPA failed and refused, and continues to fail and refuse, to pay the Oakland Tribune fifty percent (50%) of all profits of net sales from the sales of products related to the images copyrighted by the Oakland Tribune and belonging to the Oakland Tribune Archived Materials.
143. Upon information and belief, RPA, John M. Rogers and/or Angelica
Rogers, without
the knowledge, permission or authorization of the Oakland Tribune, wrongfully took possession of a
portion of the Oakland Tribune Archive consisting of negatives, from an entity known as Zuma Press ("Zuma Press Negatives"). Zuma Press was to create a digital library for the Oakland Tribune from the Zuma Press Negatives.
144.
RPA, John M. Rogers and Angelica Rogers have no rights intheZuma Press Negatives.
RPA does not now "own," nor has
it
ever "owned" nor otherwise held title to the Zuma Press
Negatives.
145. Upon information
and belief, the Zuma Press Negatives are in the possession of
McAfee, the Receiver appointed in the FABT Action, at 2401 N. Poplar Street, North Little Rock, Arkansas and
ll5
E.24th Street, North Little Rock, Arkansas. The Zuma Press Negatives are not
subject to the Receivership in the FABT Action. McAfee unlawfully detains theZuma Press Negatives.
E. San Jose Mercury News Agreement with RPA
146.
On or about November 21,2013, the San Jose Mercury News and Defendant RPA
executed the Photo Archive Acquisition and Digital Library Services Agreement (the "San Jose 30
Mercury News Agreement").
A
copy of the San Jose Mercury News Agreement, including the
Exhibits, is attached as Exhibit 6. Under the San Jose Mercury News Agreement, RPA was responsible for the digitization of certain photographs and negatives identified in Exhibit A ofthe San Jose Mercury News Agreement (the "San Jose Mercury News Archived Materials").
147. The purpose of the San Jose Mercury News Agreement
was the creation of a digitized
library of the San Jose Mercury News Archived Materials for the San Jose Mercury News' reference and use (the "San Jose Mercury News Digital Library"). RPA was responsible for the digitization
of
the San Jose Mercury News Archived Materials and the creation of the San Jose Mercury News Digital
Library in North Little Rock, Arkansas at RPA's place of business, consistent with the Specifications set forth in Exhibit B of the San Jose Mercury News Agreement.
148. A material
term of the San Jose Mercury News Agreement was that the San Jose
Mercury News would have continued use of its San Jose Mercury News Archived Materials that were needed for editorial purposes, pursuant to Section 2.4. More specifically, the San Jose Mercury News
Agreement states that, 'þrior to delivery of the entire Digital Library, or during the storage, creation or conversion of the Archived Materials," the San Jose Mercury News retained the right to request from
RPA a digital image of any item contained in the San Jose Mercury News Archived Materials, and RPA was obligated to provide the item requested no later than24 hours after receiving the request.
149. According
to Section 3.1 of the San Jose Mercury News Agreement, upon completion
"of the Services provided by RPA to San Jose Mercury News, subject to the terms and conditions
set
forth in this San Jose Mercury News Agreement, San Jose Mercury News shall" convey title to the San Jose Mercury News Archived Material to RPA. The "Services" have not been completed. Therefore,
title to the San Jose Mercury News Archived Materials remains in the San Jose Mercury News. The term "Services" is specifically defined under Section 1.6 of the San Jose Mercury News Agreement as
follows:
3l
"Seryices" means, collectively, the retrieval and delivery of the
Archived Materials and the creation and delivery
of
the Deliverables, and all other materials required to be delivered under this Agreement, in accordance with the terms of this Agreement, and any additional services mutually agreed upon by the Parties associated therewith.
150. The San Jose Mercury News Archived
Materials as defined under Exhibit A of the San
Jose Mercury News Agreement, included:
a.
l5l.
The San Jose Mercury News vintage photograph and negative archive.
The Project Schedule, as defined under Exhibit C of the San Jose Mercury News
Agreement, required RPA to deliver the digital library of the San Jose Mercury News Digital Library as follows:
a.
The first one-third (l/3) of the digital librarywas to be deliveredto the San Jose
Mercury News no later than twelve (12) months following the date the San Jose Mercury News Archived Materials arrived at RPA's offices in North Little Rock, Arkansas;
b.
The second one-third (1/3) of the digital library was to be delivered to the San Jose
Mercury News no later than eighteen (18) months following the date the San Jose Mercury News Archived Materials arrived at RPA's offrces in North Little Rock, Arkansas; and
c. The final one-third (1/3) of the digital librarywas
to be deliveredto the San Jose
Mercury News no later than twelve (12) months following the date the San Jose Mercury News Archived Materials arrived at RPA's offices in North Little Rock, Arkansas.
152.
Pursuant to Section 4 of the San Jose Mercury News Agreement, the San Jose Mercury
News granted RPA
a
right and license to reproduce images copyrighted by the San Jose Mercury News
and belonging to the San Jose Mercury News Archived Materials. RPA was required to pay the San Jose Mercury News Times
fifty percent (50%) of all prohts of net sales from any project in which
copyrighted items covered by the San Jose Mercury News Agreement are used.
32
the
153. Further, the San Jose Mercury
News Agreement obligated RPA to "develop, market,
and maintain" a website for the San Jose Mercury News for hosting, editorial licensing, and selling
commercial products for the San Jose Mercury News Archived Materials.
I54.
According to Section 7 .2 of the San Jose Mercury News Agreement, RPA represented,
warranted and covenanted to the San Jose Mercury News that its personnel had the proper skill, training and background necessary to accomplish their assigned tasks, and all Services to be rendered under the San Jose Mercury News Agreement would be performed in a competent, professional and workmanlike
manner by fully qualifìed personnel.
155.
Section 9.4 of the San Jose Mercury News Agreement gave either party the right to
terminate the San Jose Mercury News Agteement under the following circumstances, among others:
for Insolvency. Either Party may immediately terminate this Agreement upon written notice to the other Party in the event that the other Parfy (a) admits in writing its inability to pay its debts as they become due, fails to satisff any judgment against it, or otherwise ceases operations of its business in the ordinary course, (b) is adjudicated bankrupt or becomes insolvent, (c) winds up or liquidates its business voluntarily or otherwise, (d) applies for, consents to or suffers the appointment of, or the taking of possession of by, u receiver, custodian, assignee, trustee, liquidator or similar fiduciary of itself or of all or any substantial portion of its assets . . . . Termination
156.
Section 9.5 of the San Jose Mercury News Agreement required RPA to return the San
Jose Mercury News Archived Materials to the San Jose Mercury News
within ten (10) days after
termination of the San Jose Mercury News Agreement.
157.
On or about December 12,2013, RPA took possession of the San Jose Mercury News
Archived Materials.
158.
The Plaintiffs do not know where RPA transported or delivered the San Jose Mercury
News Archived Materials.
JJ
159. RPA has failed and refused, and continues
to fail and refuse, to create a digitized library
of the San Jose Mercury News Archived Materials as it was required to do under the San Jose Mercury News Agreement in the form required by the San Jose Mercury News Agreement. Upon information and
belief, the only photographs and/or negatives from the San Jose Mercury News Archived Materials that RPA has digitized, or "scanned," are the digital images needed for editorial purposes and requested by the San Jose Mercury News pursuant to Section 2.4 of the San Jose Mercury News Agreement.
160. RPA failed and refused, and continues to fail and refuse, to deliver to the San Jose Mercury News Archived Materials the digitized images in the form required by RPA under the San Jose Mercury News Agreement. I 61
.
RPA failed and refused, and continues to fail and refuse, to develop, market, and maintain
a website for the San Jose Mercury News for hosting, editorial licensing, and selling commercial products for the San Jose Mercury News Archived Materials.
162. Upon information
and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things, that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
with the exhibits affached thereto, revealed among other things, RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
163. On November 17,2014,
FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
164.
On January 5, 2015, McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
165. By letter dated May 15, 2015, the San Jose Mercury News terminated the San Jose Mercury News Agreement under Section 9.4 and demanded that RPA return the San Jose Mercury News Archived Materials. A copy of the May 15, 2015 Letter of Termination is attached as Exhibit 2.
34
Under the terms of the San Jose Mercury News Agreement, RPA was required to deliver the San Jose
Mercury News Archived Materials to the San Jose Mercury News on or before May 26,2015.
166.
At the time of the San Jose Mercury News' termination of the San Jose Mercury News
Agreement, RPA did not "own" or otherwise hold title to the San Jose Mercury News Archived
Materials since the Services contemplated by the San Jose Mercury News Agreement were not completed or ever performed.
167.
Upon information and belief, the San Jose Mercury News Archived Materials are in
the possession of McAfee, the Receiver appointed in the FABT Action, at 2401 N. Poplar Street and I 15 E. 24th Street, North
Little Rock, Arkansas. The San Jose Mercury News Archived Materials
are
not subject to the receivership in that action. McAfee unlawfully detains the San Jose Mercury News
Archive. Additionally, negatives belonging to the San Jose Mercury News Archive are in the possession of Conner and Newport,
at230I Mclain Street, Newport, Arkansas and are not subject to
the receivership in the FABT Action. Conner and Newport unlawfully detain the San Jose Mercury News Archived Materials. By letter dated May 15,2015, the San Jose Mercury New demanded that they return the San Jose Mercury News Archived Materials. A copy of the May 15, 2015 letter is attached as Bxhibit 2.
168.
By letter dated May 75,2015, the San Jose MercuryNews demanded that McAfee
return the San Jose Mercury News Archived Materials to the San Jose Mercury News. A copy of the
May 15,2015 letter is attached as Exhibit 2.
169.
Upon information and belief, Conner and Newport acquired possession of the San Jose
Mercury News Archived Materials without the knowledge, permission or authorization of the San Jose Mercury News.
170.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Conner, and/or
Newport wrongfully transferred and delivered some or all of the San Jose Mercury News Archived
35
Materials to third parties who will be named as Defendants herein once they are fully identified. Those persons are referred to as John Does.
17l.
Upon information and beliet RPA, John M. Rogers, Angelica Rogers, Conner and/or
Newport and John Does, sold some of the San Jose Mercury News Archived Materials on the online
auction website, eBay.com. Upon information and belief, many of the San Jose Mercury News Archived Materials being offered for sale had not yet been digitized andJor if the photographs had been digitized then the digitized images v/ere never provided to the San Jose Mercury News. The digital images for the San Jose Mercury News Archived Materials being offered for sale on eBay.com by
RPA, John M. Rogers, Angelica Rogers, Conner and/or Newport and John Does were never provided to the San Jose Mercury News as of the filing of this action. Even more concerning, if the photographs sold on eBay.com did not have negative film from which the photos were printed, thereby making the
photos one-of-a-kind items, the San Jose Mercury News photographic archive has been irreparably
harmed. If the photographs being offered for sale on eBay.com had been digitized, the San
Jose
Mercury News was not ever notified or given an opportunity to inspect the digitized image to ensure
the quality of the Services, as set forth in Exhibit B to the San Jose Mercury News Agreement, including but not limited to: 1) digital scans of the photos and negatives saved at maximum quality and
minimum size;2) physical cleaning of all photographic prints prior to scanning including removal of editors' marks and writing or notations on the prints; and 3) the inclusion of all photo data, or metadata,
with the digital scans.
172.
The San Jose Mercury News has leamed that RPA, John M. Rogers, Angelica Rogers,
Conner and/or Newport and John Does, are selling images copyrighted by the San Jose Mercury News and belonging to the San Jose
MercuryNews Archived Materials on online websites, including but not
limited to, RetrolmagesArchive.com. RPA failed and refused, and continues to fail and refuse, to pay the San Jose Mercury News fifty percent (50%) of all profits of net sales from the sales of products
36
related to the images copyrighted by the San Jose Mercury News and belonging to the San Jose Mercury News Archived Materials.
F. Salt Lake Tribune Agreement with RPA
173.
On or about February 12, 2014, the Salt Lake Tribune and Defendant RPA executed
the Photo Archive Acquisition and Digital Library Services Agreement (the "Salt Lake Tribune Agreement").
A copy of the Salt Lake Tribune
Agreement, including the Exhibits, is attached as
Exhibit 7. Under the Salt Lake Tribune Agreement, RPA was responsible for the digitization of certain photographs and negatives identified in Exhibit A of the Salt Lake Tribune Agreement (the "Salt Lake
Tribune Archived Materials").
174. The purpose ofthe Salt Lake Tribune Agreement
was the creation of a digitized library
of the Salt Lake Tribune Archived Materials for the Salt Lake Tribune reference and use (the "Salt Lake Tribune Digital Library"). RPA was responsible for the digitization of the Salt Lake Tribune
Archived Materials and the creation of the Salt Lake Tribune Digital Library in North Little Rock, Arkansas at RPA's place of business, consistent with the Specifications set forth in Exhibit B of the Salt Lake Tribune Agreement.
175. A material term of the Salt Lake Tribune
Agreement was that the Salt Lake Tribune
would have continued use of its Salt Lake Tribune Archived Materials that were needed for editorial purposes, pursuant
to Section 2.4. More specifically, the Salt Lake Tribune Agreement
states that,
"prior to delivery of the entire Digital Library, or during the storage, creation or conversion of the Archived Materials," the Salt Lake Tribune retained the right to request from RPA a digital image of any item contained in the Salt Lake Tribune Archived Materials, and RPA was obligated to provide the item requested no later than24 hours after receiving the request.
176. According to Section 3.1 of the Salt Lake Tribune
Agreement, upon completion
"of
the Services provided by RPA to Salt Lake Tribune, subject to the terms and conditions set forth in
this Salt Lake Tribune Agreement, Salt Lake Tribune shall" convey title to the Salt Lake Tribune JI
Archived Material to RPA. The "Services" have not been completed. Therefore, title to the Salt Lake Tribune Archived Materials remain in the Salt Lake Tribune. The term "Services" is specifically defrned under Section 1.6 of the Salt Lake Tribune Agreement as follows:
"Services" means, collectively, the retrieval and delivery of the
Archived Materials and the creation and delivery
of
the Deliverables, and all other materials required to be delivered under this Agreement, in accordance with the terms of this Agreement, and any additional services mutually agreed upon by the Parties associated therewith.
177. The Salt Lake Tribune Archived
Materials as defined under Exhibit A of the Salt Lake
Tribune Agreement, included:
a.
The Salt Lake Tribune photograph and negative archive.
178. The Project Schedule,
as defined under
Exhibit C of the Salt Lake Tribune Agreement,
required RPA to deliver the digital library of the Salt Lake Tribune Digital Library as follows:
a.
The first one-third (1/3) of the digital library was to be delivered to the Salt Lake
Tribune no later than twelve (12) months following the date the Salt Lake Tribune Archived Materials arrived at RPA's offices in North Little Rock, Arkansas;
b.
The second one-third (1/3) of the digital library was to be delivered to the Salt Lake
Tribune no later than eighteen (18) months following the date the Salt Lake Tribune Archived Materials
arrived at RPA's offices in North Little Rock, Arkansas; and
c.
The final one-third (1/3) of the digital library was to be delivered to the Salt Lake
Tribune no later than twelve (12) months following the date the Salt Lake Tribune Archived Materials arrived at RPA's offices in North Little Rock, Arkansas.
179. Pursuant to Section 4 of the Salt Lake Tribune Agreement, the Salt Lake Tribune granted RPA a right and license to reproduce images copyrighted by the Salt Lake Tribune and belonging to the Salt Lake Tribune Archived Materials. RPA was required to pay the Salt Lake Tribune
38
fifty percent (50%) of all profits of net sales from any proj ect in which the copyrighted items covered by the Salt Lake Tribune Agreement are used.
180. Further, the Salt Lake Tribune
Agreement obligated RPA to "develop, market, and
maintain" a website for the Salt Lake Tribune for hosting, editorial licensing, and selling commercial products for the Salt Lake Tribune Archived Materials.
181. According to Section 7.2 of the Salt Lake Tribune
Agreement, RPA represented,
warranted and covenanted to the Salt Lake Tribune that its personnel had the proper skill, training and background necessary to accomplish their assigned tasks, and all Services to be rendered under the Salt Lake Tribune Agreement would be performed in a competent, professional and workmanlike manner
by fully qualified personnel.
182.
Section 9.4 of the Salt Lake Tribune Agreement gave either party the right to terminate
the Salt Lake Tribune Agreement under the following circumstances, among others:
Termination
for
Insolvenc]¡. Either Party may immediately
terminate this Agreement upon written notice to the other Party in the event that the other Party (a) admits in writing its inability to pay its debts as they become due, fails to satisfo any judgment
against it, or otherwise ceases operations of its business in the ordinary course, (b) is adjudicated bankrupt or becomes insolvent, (c) winds up or liquidates its business voluntarily or otherwise, (d) applies for, consents to or suffers the appointment of, or the taking of possession of by, a receiver, custodian, assignee, trustee, liquidator or similar fiduciary of itself or of all or any substantial portion of -its assets . . . .
183.
Section 9.5 of the Salt Lake Tribune Agreement required RPA to return the Salt Lake
Tribune Archived Materials to the Salt Lake Tribune within ten (10) days after termination of the Salt Lake Tribune Agteement.
184.
On or about Marchz0,2014, RPA took possession of the Salt Lake Tribune Archived
Materials.
39
185. The Plaintiffs do not know where RPA transported or delivered
the Salt Lake Tribune
Archived Materials.
186.
On or about April 16, 2014, John M. Rogers and Mac Hogan on behalf of PAP and
Amy Allen and Doug Allen on behalf of Legendary Photos, LLC entered into an agreement in which PAP would provide to Legendary Photos, LLC, under consignment for the sale of various archives, including the Salt Lake Tribune Archived Materials in exchange for
187. After taking possession
$l million
($1,000,000.00).
of the Salt Lake Tribune Archived Materials, RPA failed and
refused, and continues to fail and refuse, to create a digitized library of the Salt Lake Tribune Archived
Materials as it was requiredto do underthe Salt Lake Tribune Agreement in the form requiredbythe Salt Lake Tribune Agreement.
188.
Upon information and belief, the only photographs and/or negatives from the Salt Lake
Tribune Archived Materials that RPA has digitized, or "scanned," aÍe the digital images needed for editorial purposes and requested by the Salt Lake Tribune pursuant to Section 2.4 of the Salt Lake Tribune Agreement.
189.
RPA failed and refused, and continues to fail and refuse, to deliver to the Salt Lake
Tribune the digitized images as it was required to do under the Salt Lake Tribune Agreement in the form required by the Salt Lake Tribune Agreement.
190.
RPA failed and refused, and continues to fail and refuse, to develop, market, and maintain
a website for the Salt Lake Tribune for hosting, editorial licensing, and selling commercial products
for the Salt Lake Tribune Archived Materials.
191.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things, that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
40
with the exhibits attached thereto, revealed among other things RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
192. On November
17,2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
193. On January 5,2014, McAfee was appointed Receiver by the Court for the "Borrower Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
194.
By letter dated May 15,2015, the Salt Lake Tribune terminated the Salt Lake Tribune
Agreement under Section 9.4 anddemanded that RPA return the Salt Lake Tribune Archived Materials.
A copy of the May 15, 2015 Letter of Termination is attached
as
Exhibit 2. Under the terms of the Salt
Lake Tribune Agreement, RPA was required to deliver the Salt Lake Tribune Archived Materials to the Salt Lake Tribune on or before lli4ay 26,2015.
195. At the time of the Salt Lake Tribune's termination ofthe Salt Lake Tribune Agreement, RPA did not "o\ryn" or otherwise hold title to the Salt Lake Tribune Archived Materials since the Services contemplated by the Salt Lake Tribune Agreement were not completed or ever performed.
196. Upon information
and belief, some or all of the Salt Lake Tribune Archived Materials
is in the possession of McAfee, the Receiver appointed in the FABT Action, at 2401N. Poplar Street and I
l5 E.24th
Street, North Little Rock, Arkansas. The Salt Lake Tribune Archived Materials and are
not subject to the receivership in that action. McAfee unlawfully detains the Salt Lake Tribune Archived Materials. Additionally, some or all of the Salt Lake Tribune Archive is in the possession of Doug Allen, Amy Allen and/or Legendary Photos, LLC, at 17542 Chicago Avenue, Lansing, Illinois
or 23120 S. Hidden Lake Trail, Crete, Illinois and are not subject to the receivership in the FABT Action. Doug Allen, Amy Allen and/or Legendary Photos, LLC unlawfully detain the Salt Lake Tribune Archived Materials. Further, some or all of the Salt Lake Tribune Archive is in the possession
of Hogan and/or PAP at 501 Mike Hall Parkway, Mount Pleasant, Texas and is not subject to the
4l
receivership in the FABT Action. Hogan and/or PAP unlawfully detain the Salt Lake Tribune Archived
Materials.
197.
By letter dated May 15,2015, the Salt Lake Tribune demanded that McAfee return the
Salt Lake Tribune Archived Materials to the Salt Lake Tribune. attached as
A copy of the May 15, 2015 letter
is
Exhibit 2.
198.
Upon information and belief, Doug Allen, Amy Allen, and/or Legendary Photos, LLC,
acquired possession of the Salt Lake Tribune Archived Materials without the knowledge, permission
or authorization of the Salt Lake Tribune. By letter dated May 15, 2015, the Salt Lake Tribune demanded that they return the Salt Lake Tribune Archived Materials.
A copy of the May 15,2015
letter is attached as Bxhibit 2.
199.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, PAP, Hogan,
Doug Allen, Amy Allen and/or Legendary Photos, LLC wrongfully transferred and delivered some or all of the Salt Lake Tribune Archived Materials to third parties who will be named as Defendants herein once they are
fully identified. Those persons are referred to John Does.
200.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, PAP, Hogan,
Doug Allen, Amy Allen and/or Legendary Photos, LLC and John Does, sold some of the Salt Lake
Tribune Archived Materials on the online auction website, eBay.com. The Salt Lake Tribune has reason to believe that many of the Salt Lake Tribune Archived Materials being offered for sale had not
yet been digitized and/or if the photographs had been digitized then the digitized images were never provided to the Salt Lake Tribune. The digital images for the Salt Lake Tribune Archived Materials being offered for sale on eBay.com by RPA, John M. Rogers, Angelica Rogers, PAP, Hogan, Doug
Allen, Amy Allen, and/or Legendary Photos, LLC and John Does were never provided to the Salt Lake Tribune as of the filing of this action. Even more concerning, if the photographs sold on eBay.com did not have negative film from which the photos were printed, thereby making the photos one-of-a-kind
42
items, the Salt Lake Tribune photographic archive has been irreparably harmed. If the photographs being offered for sale on eBay.com had been digitized, the Salt Lake Tribune was not ever notified or given an opportunity to inspect the digitized image to ensure the quality of the Services, as set forth in
Exhibit B to the Salt Lake Tribune Agreement, including but not limited to:
l) digital scans of the
photos and negatives saved at maximum quality and minimum size; 2) physical cleaning of all photographic prints prior to scanning including removal of editors' marks and writing or notations on the prints; and 3) the inclusion of all photo data, or metadata, with the digital scans.
201.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, PAP, Hogan, Doug
Allen, Amy Allen, and/or Legendary Photos, LLC and John Does, are selling images copyrighted by the Salt Lake Tribune and belonging to the Salt Lake Tribune Archived Materials on online websites, including but not limited to, RetrolmagesArchive.com. RPA failed and refused, and continues to fail and refuse, to pay the Salt Lake Tribune
fifty percent (50%) of all profits of net sales from the sales of
products related to the images copyrighted by the Salt Lake Tribune and belonging to the Salt Lake Tribune Archived Materials.
G.
The Denver Post
202.
In or about October 2013, The Denver Post and Defendant RPA executed the Photo
Archive Acquisition and Digital Library Services Agreement ("The Denver Post Agreement"). A copy
of The Denver Post Agreement, including the Exhibits, is attached as Exhibit 8. Under The Denver Post Agreement, RPA was responsible for the digitization
of certain photographs and negatives
identified in Exhibit A of The Denver Post Agreement ("The Denver Post Archived Materials").
203.
The purpose of The Denver Post Agreement was the creation of a digitized library
of
The Denver Post Archived Materials for The Denver Post's reference and use (the "The Denver Post
Digital Library"). RPA was responsible for the digitization of The Denver Post Archived Materials
43
and the creation of The Denver Post
DigitalLibrary in North Little Rock, Arkansas at RPA's place of
business, consistent with the Specifications set forth in Exhibit B of The Denver Post Agreement.
204.
A material term of The Denver Post Agreement was that The Denver Post would have
continued use of its The Denver Post Archived Materials that were needed for editorial purposes, pursuant to Section 2.4. More specifically, The Denver Post Agreement states that, "prior to delivery
of the entire Digital Library, or during the storage, creation or conversion of the Archived Materials," The Denver Post retained the right to request from RPA a digital image of any item contained in The Denver Post Archived Materials, and RPA was obligated to provide the item requested no later than 24 hours after receiving the request.
205.
According to Section 3.1 of The Denver Post Agreement, upon completion "of the
Services provided by RPA to The Denver Post, subject to the terms and conditions set forth in this The
Denver Post Agreement, The Denver Post shall" convey title to The Denver Post Archived Material to RPA. The "Services" have not been completed. Therefore, title to The Denver Post Archived Materials
remains in The Denver Post. The term "Services" is specifically defined under Section 1.6 of The Denver Post Agreement as follows:
"Services" means, collectively, the retrieval and delivery of the
Archived Materials and the creation and delivery
of
the Deliverables, and all other materials required to be delivered under this Agreement, in accordance with the terms of this Agreement, and any additional services mutually agreed upon by the Parties associated therewith.
206.
The Denver Post Archived Materials as defined under Exhibit A of The Denver Post
Agreement, included:
a.
207.
The Denver Post negative archive.
The Project Schedule, as defined under Exhibit C of The Denver Post Agreement,
required RPA to deliver the digital library of The Denver Post Digital Library as follows:
44
a.
The first one-third (l/3) of the digital library was to be delivered to The Denver
Post no later than twelve (12) months following the date The Denver Post Archived Materials arrived
at RPA's offices in North Little Rock, Arkansas;
b.
The second one-third (1/3) of the digital library was to be delivered to The Denver
Post no later than eighteen (18) months following the date The Denver Post Archived Materials arrived
at RPA's ofhces in North Little Rock, Arkansas; and
c.
The final one-third (1/3) of the digital library was to be delivered to The Denver
Post no later than twelve (12) months following the date The Denver Post Archived Materials arrived
at RPA's offices in North Little Rock, Arkansas.
208.
Pursuant to Section 4 of The Denver Post Agreement, The Denver Post granted RPA a
right and license to reproduce images copyrighted by The Denver Post and belonging to The Denver Post Archived Materials. RPA was required to pay The Denver Post
fifty percent (50%) of all profits
of net sales from any project in which the copyrighted items covered by The Denver Post Agreement are used.
209.
Further, The Denver Post Agreement obligated RPA
to
"develop, market, and
maintain" a website for The Denver Post for hosting, editorial licensing, and selling commercial products for The Denver Post Archived Materials.
210.
According to Section 7.2 of The Denver Post Agreement, RPA represented, warranted
and covenanted to The Denver Post that its personnel had the proper skill, training and background necessary to accomplish their assigned tasks, and
Agreement would be performed
all Services to be rendered under The Denver Post
in a competent, professional and workmanlike manner by fully
qualif,red personnel.
2ll.
Section 9.4 of The Denver Post Agreement gave either party the right to terminate The
Denver Post Agreement under the following circumstances, among others:
45
for
Insolvency. Either ParA may immediately terminate this Agreement upon written notice to the other Party in the event that the other Party (a) admits in writing its inability to pay its debts as they become due, fails to satisfy any judgment against it, or otherwise ceases operations of its business in the Termination
ordinary course, (b) is adjudicated bankrupt or becomes insolvent, (c) winds up or liquidates its business voluntarily or otherwise, (d) applies for, consents to or suffers the appointment of, or the taking of possession of by, u receiver, custodian, assignee, trustee, liquidator or similar fiduciary of itself or of all or any substantial portion of -its assets . . . .
212.
Section 9.5 of The Denver Post Agreement required RPA to return The Denver Post
Archived Materials to The Denver Post within ten (10) days after termination of The Denver Post Agreement.
213.
On or about January 25,2013, RPA took possession of The Denver Post Archived
Materials.
214.
On or about January 28,2013, RPA delivered The Denver Post Archived Materials to
RPA's places of business, which were locatedat240l N. Poplar Street, North Little Rock, Arkansas, 2501 N. Poplar Street, North Little Rock, Arkansas, and I 15 E. 24rh Sfteet, North Little Rock, Arkansas.
215.
Following delivery of The Denver Post Archived Materials, RPA has failed and refused,
and continues to fail and refuse, to create a digitized library of The Denver Post Archived Materials as
it
was required to do under The Denver Post Agreement in the form required by The Denver Post Agreement. Upon information and belief, the only photographs and/or negatives from The Denver Post
Archived Materials that RPA has digitized, or "scanned," are the digital images needed for editorial purposes and requested by The Denver Post pursuant to Section 2.4 of The Denver Post Agteement.
216.
RPA failed and refused, and continues to fail and refuse, to deliver to The Denver Post
the digitized images in the form required by RPA under The Denver Post Agreement.
46
217 a website
.
RPA failed and refused, and continues to fail and refuse, to develop, market, and maintain
for The Denver Post for hosting, editorial licensing, and selling commercial products for The
Denver Post Archived Materials.
218.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things
that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together with the exhibits affached thereto, revealed among other things, RPA's true houbled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time, among
other things.
219.
On November 17,2014, FABT f,rled the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
220.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
221.
By letter dated May 15, 2015, The Denver Post terminated the Agreement
Section 9.4 and demanded that RPA return The Denver Post Archived Materials.
under
A copy of the May
15, 2015 Letter of Termination is attached as Exhibit 2. Under the terms of The Denver Post Agreement, RPA was required to deliver The Denver Post Archived Materials to The Denver Post on or before
.llday
222.
26,2015. At the time of The Denver Post's termination of The Denver Post Agreement, RPA did
not "own" or otherwise hold title to The Denver Post Archived Materials since the
Services
contemplated by The Denver Post Agreement were not completed or ever performed.
223.
Upon information and belief, The Denver Post Archived Materials are in the possession
of McAfee, the Receiver appointed in the FABT Action, at240l N. Poplar Street and I l5 E.24th Street,
47
North Little Rock, Arkansas. The Denver Post Archived Materials are not subject to the receivership in that action. McAfee unlawfully detains The Denver Post Archived Materials.
224.
By letter dated May 15, 2015, The Denver Post demanded that McAfee return The
Denver Post Archived Materials to The Denver Post. A copy of the May 15, 2015 letter is attached as
Exhibit 2.
225.
Upon information and belief, RPA, John M. Rogers, and/or Angelica Rogers
wrongfully transferred and delivered some or all of The Denver Post Archived Materials to third parties who will be named as Defendants herein once they are fully identified. Those persons are referred to as John Does.
226.
Upon information and belief, RPA, John M. Rogers and/or Angelica Rogers, and the
John Doe Defendants, sold some of The Denver Post Archived Materials on the online auction website,
eBay.com. Upon information and belief, many of The Denver Post Archived Materials being offered
for sale had not yet been digitized and/or if the photographs had been digitized then the digitized images were never provided to The Denver Post. Upon information and belief, digital images for The Denver Post Archived Materials being offered for sale on eBay.com by RPA, John M. Rogers and/or Angelica
Rogers, and John Does were never provided to The Denver Post as of the
more concerning,
if
filing of this action. Even
the photographs sold on eBay.com did not have negative film from which the
photos were printed, thereby making the photos one-oÊa-kind items, The Denver Post Archive has been irreparably harmed.
If
the photographs being offered for sale on eBay.com had been digitized,
The Denver Post was not ever notified or given an opportunity to inspect the digitized image to ensure the quality of the Services, as set forth in Exhibit B to the Agreement, including but not limited to: 1)
digital scans of the photos and negatives saved at maximum quality and minimum size; 2) physical cleaning of all photographic prints prior to scanning including removal of editors' marks and writing or notations on the prints; and 3) the inclusion of all photo data, or metadata, with the digital scans.
48
227
.
The Denver Post has leamed that RPA, John M. Rogers and/or Angelica Rogers and John
Does, are selling images copyrighted by The Denver Post and belonging to The Denver Post Archive
on online websites, including but not limited to, RetrolmagesArchive.com. RPA failed and refused, and continues to fail and refuse, to pay The Denver Post
fifty percent (50%) of all
prof,rts of net sales
from the sales of products related to the images copyrighted by The Denver Post and belonging to The Denver Post Archived Materials.
THIRTEEN PLAINTIFF NEWSPAPERS THAT DID NOT ENTER INTO AGREEMENTS WITH RPA
H.
St. Paul Pioneer Press
228.
In or about December 2013, the St. Paul Pioneer Press engaged in discussions with
RPA for the digitization of certain photographs and negatives (the "St. Paul Pioneer Press Archive")
for the purpose of creating a digitized library of the St. Paul Pioneer Press Archive for the St. Paul Pioneer Press' reference and use.
229.
The St. Paul Pioneer Press and RPA never executed an agreement for the creation of a
digital library from the St. Paul Pioneer Press Archive.
230.
On or about December 12,2013, RPA took possession of the St. Paul Pioneer Press
Archive.
231.
On or about December 15, 2013, RPA accepted delivery of the St. Paul Pioneer Press
Archive at RPA's places of business, which were locatedat240I N. Poplar Street, North Little Rock,
Arkansas,250l N. Poplar Street, North Little Rock, Arkansas, and 115 E.24th Street, North Little Rock, Arkansas.
232.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things,
that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
49
with the exhibits attached thereto, revealed among other things, RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
233.
On November 17,2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
234.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borro'wer
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
235.
By letter dated May 15,2015, the St. Paul Pioneer Press demanded that RPA return the
St. Paul Pioneer Press Archive.
236.
A copy of the May 15, 2015 demand letter is attached
as
Exhibit 2.
RPA has no rights in the St. Paul Pioneer Press Archive. RPA does not now "own,"
nor has it ever "owned" nor otherwise held title to the St. Paul Pioneer Press Archive.
237. possession
Upon information and belief, portions of the St. Paul Pioneer Press Archive are in the
of McAfee, the Receiver appointed in the FABT Action, at 2401N. Poplar Street, North
Little Rock, Arkansas and 115 E.24th Street, North Little Rock, Arkansas. The St. Paul Pioneer
Press
Archive is not subject to the receivership in the FABT Action. McAfee unlawfully detains the St. Paul Pioneer Press Archive. Additionally, some portions of the St. Paul Pioneer Press Archive is in the possession
of Bauby in Dixon, Illinois. Any portion of the St. Paul Pioneer Press Archive in the
possession of Bauby is not subject to the receivership in the FABT Action. Bauby unlawfully detains
the St. Paul Pioneer Press Archive.
238.
Upon information and beliet Bauby acquired possession of the St. Paul Pioneer Press
Archive without the knowledge, permission or authorizationof the St. Paul Pioneer Press.
239.
Upon information and belief, RPA, John M. Rogers, and/or Angelica Rogers
wrongfully transferred and delivered some or all of the St. Paul Pioneer Press Archive to third parlies who will be named as Defendants herein once they are fully identified. Those persons are referred to as John Does.
50
240.
The St. Paul Pioneer Press has learned that RPA, John M. Rogers and/or Angelica
Rogers, and the John Does, sold some of the St. Paul Pioneer Press Archive on the online auction website, eBay.com. Even more concerning, if the photographs sold on eBay.com did not have negative
film from which
the photos were printed, thereby making the photos one-of-a-kind items, the St. Paul
Pioneer Press Archive has been irreparably harmed.
L
New Haven Register
241.
In or about October 2013 the New Haven Register engaged in discussions with RPA
for the digitization of certain photographs and negatives (the "New Haven Register Archive") for the purpose
of creating a digitized library of the New Haven Register Archive for the New Haven
Register's reference and use.
242.
The New Haven Register and RPA never executed an agreement for the creation of a
digital library from the New Haven Register Archive.
243.
On or about June 30,2014, RPA took possession of the New Haven Register Archive.
244.
The Plaintiffs do not know where RPA transported or delivered the New Haven
Register Archive.
245.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things,
that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
with the exhibits attached thereto, revealed among other things, RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
246.
On November 17,2014, FABT hled a Motion for the Immediate Appointment of a
Receiver ("FABT Motion") over the collateral of RPA and the other related borrowers; FABT sought the appointment of McAfee as Receiver in the FABT Action.
5l
247
.
On January 5, 2015 , McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defrned by the FABT Complaint in the FABT Action.
248.
By letter dated May 15,2015, the New Haven Register demanded that RPA retum the
New Haven Register Archive. A copy of the May 15, 2015 demand letter is attached as Exhibit 2.
249. has
RPA has no rights in the New Haven Register Archive. RPA does not now "own," nor
it ever "o\ryned" nor otherwise held title to the New Haven Register Archive.
250.
Upon information and beliet the New Haven Register Archive is in the possession of
Doug Allen, Amy Allen, and/or Legendary Photos, LLC, at
17
542 Chicago Avenue, Lansing, Illinois
and/or 23120 S. Hidden Lake Trail, Crete, Illinois. The New Haven Register Archive is not subject to
the receivership in the FABT Action. Doug Allen, Amy Allen, and/or Legendary Photos, LLC unlawfully detain New Haven Register Archive. By letter dated May l5,20l5,the New Haven Register demanded that they return the New Haven Register Archived Materials. A copy of the May 15, 2015
letter is attached as Exhibit 2.
251.
Upon information and belief, Doug Allen, Amy Allen, and/or Legendary Photos, LLC,
acquired possession
of the New Haven Register Archive without the knowledge, permission or
authorization of the New Haven Register.
252.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen, and/or Legendary Auctions, LLC, wrongfully transferred and delivered some or all of the New Haven Register Archive to third parties who will be named as Defendants herein once they are
fully identifred. Those persons are referred to as the John Does.
253.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen, and/or Legendary Photos, LLC, and John Does, sold some of the New Haven Register Archive on the online auction website, eBay.com. Even more conceming, if the photographs sold on
52
eBay.com did not have negative
film from which the photos were printed, thereby making the photos
one-of-a-kind items, the New Haven Register Archive has been irreparably harmed.
J.
Los Angeles Daily News
254.
In or about July 2013, the Los Angeles Daily News engaged in discussions with RPA
for the digitization of certain photographs and negatives (the "Los Angeles Daily News Archive") for the purpose of creating a digitized library of the Los Angeles Daily News Archive for the Los Angeles
Daily News' reference and use.
255.
The Los Angeles Daily News and RPA never executed an agreement for the creation
of a digital library from the Los Angeles Daily News Archive.
256.
In or about August or September 2013, RPA took possession of the Los Angeles Daily
News Archive.
257.
The Plaintiffs do not know where RPA transported or delivered the Los Angeles Daily
News Archive.
258.
Upon information and beliel RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things,
that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
with the exhibits attached thereto, revealed among other things RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
259.
On November 17, 2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
260.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
53
261.
By letter dated May 15,2015, the Los Angeles Daily News demanded that RPA return
the Los Angeles Daily News Archive. A copy of the May 15, 2015 demand letter is attached as
Exhibit
2.
262.
RPA has no rights in the Los Angeles DailyNews Archive. RPA does not now "own,"
nor has it ever "owned" nor otherwise held title to the Los Angeles Daily News Archive.
263.
Upon information and belief, the Los Angeles Daily News Archive is in the possession
of Doug Allen, Amy Allen, and/or Legendary Photos, LLC, at 17542 Chicago Avenue, Lansing, Illinois or 23120 S. Hidden Lake Trail, Crete, Illinois. The Los Angeles Daily News Archive is not subject to the receivership in the FABT Action. Doug Allen, Amy Allen, and/or Legendary Photos,
LLC unlawfully detain the Los Angeles Daily News Archive. By letter dated May 15,2015, the Los Angeles Daily News demanded that they return the Lost Angeles Daily News Archived Materials. A copy of the May 15, 2015 letter is attached as
264.
Exhibit 2.
Upon information and belief, Doug Allen, Amy Allen, and/or Legendary Photos, LLC,
acquired possession of the Los Angeles Daily News Archive without the knowledge, permission or
authorization of the Los Angeles Daily News.
265.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen, and/or Legendary Auctions, LLC, wrongfully transferred and delivered some or all of the Los Angeles Daily News Archive to third parties who will be named as Defendants herein once they are
fully identif,red. Those persons are referred to as John Does.
266.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen, and/or Legendary Photos, LLC, and John Does, sold some of the Los Angeles Daily News Archive on the online auction website, eBay.com. Even more concerning, if the photographs sold on eBay.com did not have negative
film ftom which the photos were printed, thereby making the photos
one-of-a-kind items, the Los Angeles Daily News Archive has been irreparably harmed.
54
K.
Torrance Daily Breeze
267.
In or about July 2013, the Torrance Daily Breeze engaged in discussions with RPA for
the digitization of certain photographs and negatives (the "Torrance Daily Breeze Archive") for the purpose of creating a digitized library of the Torrance Daily Breeze Archive for the Torrance Daily Breeze's reference and use.
268. a
The Torrance Daily Breeze and RPA never executed an agreement for the creation
of
digital library from the Torrance Daily Breeze Archive.
269.
In or about August or September 2013, RPA took possession of the Torrance Daily
Breeze Archive.
270.
The Plaintiffs do not know where RPA transported or delivered the Torrance Daily
Breeze Archive.
271.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things,
that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
with the exhibits attached thereto, revealed among other things RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
272.
On November 17,2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
273.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borrorryer
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
274.
By letter dated May 15, 2015, the Torrance Daily Breeze demanded that RPA return
the Torrance Daily Breeze Archive. A copy of the May 15, 2015 demand letter is attached as Exhibit ,,
55
275.
RPA has no rights in the Torrance Daily Breeze Archive. RPA does not now "own,"
nor has it ever "owned" nor otherwise held title to Torrance Daily Breeze Archive.
276.
Upon information and belief, the Torrance Daily Breeze Archive is in the possession
of Doug Allen, Amy Allen, andlor Legendary Photos, LLC, at 17542 Chicago Avenue,
Lansing,
Illinois and./or 23120 S. Hidden Lake Trail, Crete, Illinois. The Torrance Daily Breeze Archive is not subject to the receivership in the FABT Action. Doug Allen, Amy Allen, and/or Legendary Photos,
LLC unlawfully detain the Torrance Daily Breeze Archive. By letter dated May 15,2015, the Torrance Daily Breeze demanded that they return the Torrance Daily Breeze Archived Materials. A copy of the
May
15, 2015 letter is attached as
277.
Exhibit 2.
Upon information and belief, Doug Allen, Amy Allen, and/or Legendary Photos, LLC,
acquired possession of the Torrance Daily Breeze Archive without the knowledge, permission or authorization of the Torrance Daily Breeze.
278.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen, and/or Legendary Auctions, LLC, wrongfully transferred and delivered some or all of the Torrance Daily Breeze Archive to third parties who
will
be named as Defendants herein once they are
fully identified. Those persons are referred to as John Does.
279.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen, and/or Legendary Photos, LLC, and John Does, sold some of the Torrance Daily Breeze Archive on the online auction website, eBay.com. Even more concerning, if the photographs sold on eBay.com did not have negative
film from which the photos were printed, thereby making the photos
one-oÊa-kind items, the Torrance Daily Breeze Archive has been ineparably harmed.
L.
San Gabriel Valley Times (Formerly Known as the San Gabriel Valley Tribune)
280.
In or about July 2013, the San Gabriel Valley Times engaged in discussions with RPA
for the digitization of certain photographs and negatives (the "San Gabriel Valley Times Archive") for
56
the purpose of creating a digitized library of the San Gabriel Valley Times Archive for the San Gabriel
Valley Times' reference and use.
281.
The San Gabriel Valley Times and RPA never executed an agreement for the creation
of a digital library from the San Gabriel Valley Times Archive.
282.
In or about August or Septemb er 2013, RPA took possession of the San Gabriel Valley
Times Archive.
283.
The Plaintifß do not know where RPA transported or delivered the San Gabriel Valley
Times Archive.
284.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014,FABT, in the FABT Action, alleged among other things, that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
with the exhibits attached thereto, revealed among other things RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
285.
On November 17, 2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
286.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defrned by the FABT Complaint in the FABT Action. 287
.
By letter dated May 15,2015, the San Gabriel Valley Times demanded that RPA return
the San Gabriel Valley Times Archive. A copy of the May 15, 2015 demand letter is attached
Exhibit
as
2.
288.
RPA has no rights in the San Gabriel Valley Times Archive. RPA does not now "own,"
nor has it ever "o\ryned" nor otherwise held title to San Gabriel Valley Times Archive.
289.
Upon information and beliet the San Gabriel Valley Times Archive is in the possession
of Doug Allen, Amy Allen, andlor Legendary Photos, LLC, at 17542 Chicago Avenue, Lansing,
57
Illinois and/or 23120 S. Hidden Lake Trail, Crete, Illinois. The San Gabriel Valley Times Archive is not subject to the receivership in the FABT Action. Doug Allen, Amy Allen, and/or Legendary Photos,
LLC unlawfully detain the San Gabriel Valley Times Archive. By letter dated May 15,2015, the San Gabriel Valley Times demanded that they return the San Gabriel Valley Times Archived Materials. A copy of the May 15,2015 letter is attached as Exhibit 2.
290.
Upon information and belief, Doug Allen, Amy Allen, and/or Legendary Photos, LLC,
acquired possession of the San Gabriel Valley Times Archive without the knowledge, permission or
authorization of the San Gabriel Valley Times.
291.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen, anüor Legendary Auctions, LLC, wrongfully transferred and delivered some or all of the San Gabriel Valley Times Archive to third parties who are
will
be named as Defendants herein once they
fully identified.
292.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
AmyAllen,and/or LegendaryPhotos, LLC,andJohn Does, sold some ofthe
San Gabriel
ValleyTimes
Archive on the online auction website, eBay.com. Even more concerning, if the photographs sold on eBay.com did not have negative hlm from which the photos were printed, thereby making the photos
one-oÊa-kind items, the San Gabriel Valley Times Archive has been irreparably harmed.
M.
Whittier Daily News
293.
In or about July 2013, the Whittier Daily News engaged in discussions with RPA for
the digitization of certain photographs and negatives (the "Whittier Daily News Archive") for the purpose of creating a digitized library of the Whittier Daily News Archive for the Whittier Daily News'
reference and use.
294.
The Whittier Daily News and RPA never executed an agreement for the creation of a
digital library from the Whittier Daily News Archive.
58
295.
In or about August or September 2013, RPA took possession of the Whittier Daily
News Archive.
296.
The Plaintiffs do not know where RPA transported or delivered the Whittier Daily
News Archive.
297.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things,
that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
with the exhibits attached thereto, revealed RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
298.
On November 17,2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
299.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
300.
By letter dated May 15,2015, the Whittier Daily News demanded that RPA return the
Whittier Daily News Archive. A copy of the May 15, 2015 demand letter is attached as Bxhibit 2.
301.
RPA has no rights in the Whittier Daily News Archive. RPA does not now "own," nor
has it ever "owned" nor otherwise held title to the Whittier Daily News Archive.
302.
Upon information and belief, the Whittier Daily News Archive is in the possession of
Doug Allen, Amy Allen, and/or Legendary Photos, LLC, at 17542 Chicago Avenue, Lansing, Illinois and/or 23120 S. Hidden Lake Trail, Crete, Illinois. The Whittier Daily News Archive is not subject to
the receivership in the FABT Action. Doug Allen, Amy Allen, and/or Legendary Photos, LLC unlawfully detain the Whittier Daily News Archive. By letter dated May 15,2015, the Whittier Daily News demanded that they return the Whittier Daily News Archived Materials. A copy of the May 15, 2015 letter is attached as
Exhibit 2.
59
303.
Upon information and belief, Doug Allen, Amy Allen, and/or Legendary Photos, LLC,
acquired possession of the Whittier Daily News Archive without the knowledge, permission or authorization of the Whittier Daily News.
304.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen and/or Legendary Auctions, LLC, wrongfully transferred and delivered some or all of the Whittier Daily News Archive to third parties who will be named as Defendants herein once they are
fully identified. Those persons are referred to
305.
as John Does.
Upon information and belief,, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen, and/or Legendary Photos, LLC, and John Does, sold some of the Whittier Daily News Archive on the online auction website, eBay.com. Even more concerning, if the photographs sold on eBay.com did not have negative
film from which the photos were printed, thereby making the photos
one-of-a-kind items, the Whittier Daily News Archive has been irreparably harmed.
N.
Inland Valley Daily Bulletin
306.
In or about July 2013, the Inland Valley Daily Bulletin engaged in discussions with
RPA for the digitization of certain photographs and negatives (the "Inland Valley Daily Bulletin Archive") for the purpose of creating a digitized library of the Inland Valley Daily Bulletin Archive for the Inland Valley Daily Bulletin's reference and use.
307.
The Inland Valley Daily Bulletin and RPA never executed an agreement for the
creation of a digital library from the Inland Valley Daily Bulletin Archive.
308.
In or about August or Septemb er 2013, RPA took possession of the Inland Valley Daily
Bulletin.
309.
The Plaintiffs do not know where RPA transported or delivered the Inland Valley Daily
Bulletin.
60
310.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things,
that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
with the exhibits attached thereto, revealed RPA's true troubled frnancial condition and insolvency and also that RPA had not been operating in the ordinary course for some time. 31
1.
On November
17
, 2014, F ABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
3I2.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borro.¡/er
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
313.
By letter dated May 15, 2015, the Inland Valley Daily Bulletin demanded that RPA
return the Inland Valley Daily Bulletin Archive. A copy of the May 15, 2015 demand letter is attached as
Exhibit 2.
3I4.
RPA has no rights in the Inland Valley Daily Bulletin Archive. RPA does not now
"own," nor has it ever "owned" nor otherwise held title to the Inland Valley Daily Bulletin Archive.
315. possession
Upon information and belief, the Inland Valley Daily Bulletin Archive is in the
of Doug Allen, Amy Allen, and/or Legendary Photos, LLC, at 17542 Chicago Avenue,
Lansing, Illinois and/or 23120 S. Hidden Lake Trail, Crete, Illinois. The Inland Valley Daily Bulletin
is not subject to the receivership in the FABT Action. Doug Allen, Amy Allen, and/or Legendary Photos, LLC unlawfully detain the Inland Valley Daily Bulletin. By letter dated May 15, 2015, the
Inland Valley Daily Bulletin demanded that they return the Inland Valley Daily Bulletin Archived Materials. A copy of the May 15, 2015 letter is attached as Exhibit 2.
316.
Upon information and beliet Doug Allen, Amy Allen, and/or Legendary Photos, LLC,
acquired possession of the Inland Valley Daily Bulletin Archive without the knowledge, permission or
authorization of the Inland Valley Daily Bulletin.
6l
317.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen and/or Legendary Auctions, LLC, wrongfully transferred and delivered some or all of the Inland Valley Daily Bulletin Archive to third parties who will be named as Defendants herein once they are fully identified. Those persons are referred to as John Does.
318.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen and/or Legendary Photos, LLC, and John Does, sold some of the Inland Valley Daily Bulletin Archive on the online auction website, eBay.com. Even more concerning, if the photographs sold on eBay.com did not have negative film from which the photos were printed, thereby making the photos one-of-a-kind items, the Inland Valley Daily Bulletin Archive has been irreparably harmed.
O.
Redlands Daily Facts
319.
In or about July 2013, the Redlands Daily Facts engaged in discussions with RPA for
the digitization of certain photographs and negatives (the "Redlands Daily Facts Archive") for the purpose of creating a digitized library of the Redlands Daily Facts Archive for the Redlands Daily
Facts' reference and use.
320.
The Redlands Daily Facts and RPA never executed an agreement for the creation of a
digital library from the Inland Redlands Daily Facts Archive.
321.
In or about August or September 2013, RPA took possession of the Redlands Daily
Facts Archive.
322.
The Plaintiffs do not know where RPA transported or delivered the Redlands Daily
Facts Archive.
323.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things,
that RPA had defaulted on several loans extended by FABT to RPA, among other things. The FABT Complaint, together with the exhibits attached thereto, revealed among other things RPA's true troubled
62
financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
324.
On November 17, 2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
325.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
326.
By letter dated May 15,2015, the Redlands Daily Facts demanded that RPA return the
Redlands Daily Facts Archive. A copy of the May 15, 2015 demand letter is attached as Exhibit 2.
327. has
RPA has no rights in the Redlands Daily Facts Archive. RPA does not now "own," nor
it ever "owned" nor otherwise held title to the Redlands Daily Facts Archive.
328.
Upon information and belief, the Redlands Daily Facts Archive is in the possession of
Doug Allen, Amy Allen, and/or Legendary Photos, LLC, at 17542 Chicago Avenue, Lansing, Illinois and/or 23120 S. Hidden Lake Trail, Crete, Illinois. The Redlands Daily Facts is not subject to the receivership in the FABT Action. Doug Allen, Amy Allen, and/or Legendary Photos, LLC unlawfully detain the Redlands Daily Facts. By letter dated May 15,2015, the Redlands Daily Facts demanded
that they return the Redlands Daily Facts Archived Materials. A copy of the May 15, 2015 letter is attached as Exhibit 2.
329.
Upon information and belief, Doug Allen, Amy Allen, and/or Legendary Photos, LLC,
acquired possession of the Redlands Daily Facts Archive without the knowledge, permission or authorization of the Redlands Daily Facts News.
330.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen , and/or Legendary Auctions, LLC, wrongfully transferred and delivered some or all of the Redlands Daily Facts Archive to third parties who
fully identified. Those persons are referred to
will
be named as Defendants herein once they are
as John Does.
63
331.
The Redlands Daily Facts has learned that RPA, John M. Rogers, Angelica Rogers,
Doug Allen, Amy Allen, and/or Legendary Photos, LLC, and John Does, sold some of the Redlands
Daily Facts Archive on the online auction website, eBay.com. Even more concerning,
if
the
photographs sold on eBay.com did not have negative film from which the photos were printed, thereby
making the photos one-oÊa-kind items, the Redlands Daily Facts Archive has been irreparably harmed.
P.
Hayward Daily Review
332.
In or about November 2013, the Hayward Daily Review engaged in discussions with
RPA for the digitization of certain photographs and negatives (the "Hayward Daily Review Archive") for the purpose of creating a digitized library of the Hayward Daily Review Archive for the Hayward
Daily Review's reference and use.
333. a
The Hayward Daily Review and RPA never executed an agreement for the creation
of
digital library from the Hayward Daily Review Archive.
334.
On or about December 12, 2013, RPA took possession of the Hayward Daily Review
Archive.
335.
On or about December 15, 2013, RPA accepted delivery of the Hayward Daily Review
Archive at RPA's places of business, which were locate d at 2401 N. Poplar Street, North Little Rock,
Arkansas,250l N. Poplar Street, North Little Rock, Arkansas, and 115 E.24rh Sfeet, North Little Rock, Arkansas.
336.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things,
that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together with the exhibits attached thereto, revealed among other things RPA's true troubled hnancial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
64
337.
On November 17,2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
338.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
339.
By letter dated May 15,2015, the Hayward Daily Review demanded that RPA return
the Hayward Daily Review Archive. A copy of the May 15, 2015 demand letter is attached as
Exhibit
,,
340.
RPA has no rights in the Hayward Daily Review Archive. RPA does not now "own,"
nor has it ever "o\ryned" nor otherwise held title to the Hayward Daily Review Archive.
341.
Upon information and belief, the Hayward Daily Review Archive is in the possession
of McAfee, the Receiver appointed in the FABT Action, at240l N. Poplar Street, North Little Rock, Arkansas and I
l5 E.24th Street, North Little Rock, Arkansas. The Hayward Daily Review Archive
is
not subject to the receivership in the FABT Action. McAfee unlawfully detains The Hayward Daily Review Archive.
342.
Upon information and belief, Doug Allen, Amy Allen, and/or Legendary Photos, LLC,
acquired possession of the Hayward Daily Review Archive without the knowledge, permission or authorization of the Haylvard Daily Review.
343.
Upon information and beliet RPA, John
M.
Rogers andlor Angelica Rogers
wrongfully transferred and delivered some or all of the Hayward Daily Review Archive to third parties who will be named as Defendants herein once they are fully identified. Those persons are referred to as John Does.
344.
Upon information and belief, RPA, John M. Rogers and/or Angelica Rogers and John
Does, sold some of the Hayward Daily Review Archive on the online auction website, eBay.com. Even
more concerning,
if the photographs sold on eBay.com did not have negative film from which
65
the
photos were printed, thereby making the photos one-of-a-kind items, the Hayward Daily Review
Archive
has been irreparably harmed.
a.
Tri-Valley Herald
345.
In or about November 2013, the Tri-Valley Herald engaged in discussions with RPA
for the digitization of certain photographs and negatives (the "Tri-Valley Herald Archive") for the purpose of creating a digitized library of the Tri-Valley Herald Archive for the Tri-Valley Herald's reference and use.
346.
The Tri-Valley Herald and RPA never executed an agreement for the creation of a
digital library from the Tri-Valley Herald Archive.
347.
On or about December 12,2013, RPA took possession of the Tri-Valley Herald
Archive.
348.
On or about December 15, 2013, RPA accepted delivery of the Tri-Valley Herald
Archive, in North Little Rock, Arkansas at RPA's places of business, which were located at 2401 N. Poplar Street, North Little Rock, Arkansas, 2501 N. Poplar Street, North Little Rock, Arkansas, and 115 E. 24th Street, North
349.
Little Rock, Arkansas.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things,
that RPA had defaulted on several loans extended by FABT to RPA, among other things. The FABT Complaint, together with the exhibits attached thereto, revealed among other things, RPA's true troubled
financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
350.
On November 17,2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
66
35
1.
On January 5, 2015, McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
352.
By letter dated May 15,2015, the Tri-Valley Herald demanded that RPA return the
Tri-Valley Herald Archive. A copy of the May 15, 2015 demand letter is attached as Exhibit 2.
353.
RPA has no rights in the Tri-Valley Herald Archive. RPA does not now "own," nor
has it ever "owned" nor otherwise held title to the Tri-Valley Herald Archive.
354.
Upon information and belief, the Tri-Valley Herald Archive is in the possession of
McAfee, the Receiver appointed in the FABT Action, at 240I N. Poplar Street, North Little Rock, Arkansas and 115 E.24th Street, North Little Rock, Arkansas. The Tri-Valley Herald Archive is not
subject to the receivership in the FABT Action. McAfee unlawfully detains the Tri-Valley Herald Archive.
355.
Upon information and belief, RPA, John
M. Rogers
and/or Angelica Rogers
wrongfully transferred and delivered some or all of the Tri-Valley Herald Archive to third parties who
will be named
as Defendants herein once they are
fully identified. Those persons are referred to
as
John Does.
356.
Upon information and belief, RPA, John M. Rogers and/or Angelica Rogers, and the
John Doe Defendants, sold some of the Tri-Valley Herald Archive on the online auction website, eBay.com. Even more concerning,
if the photographs sold on eBay.com did not have negative film
from which the photos were printed, thereby making the photos one-of-a-kind items, the Tri-Valley Herald Archive has been irreparably harmed.
R.
East County Times
357.
In or about November 20l3,the East County Times engaged in discussions with RPA
for the digitization of certain photographs and negatives (the "East County Times Archive") for the purpose of creating a digitized library of the East County Times Archive for the East County Times' reference and use. 67
358.
The East County Times and RPA never executed an agreement for the creation of a
digital library from the East County Times Archive.
359.
On or about December 12, 2013, RPA took possession of the East County Times
Archive.
360.
On or about December 15,2013, RPA accepted delivery of the East County Times
Archive at RPA's places of business, which were locate d at 2401 N. Poplar Street, North Little Rock, Arkansas,2501 N. Poplar Street, North Little Rock, Arkansas, and l15 E.24th Street, North Little Rock, Arkansas.
361.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things, that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
with the exhibits attached thereto, revealed among other things RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
362.
On November 17,2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action. 363
.
On January 5, 2015 , McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
364.
By letter dated May 15,2015, the East County Times demanded that RPA return the
East County Times Archive.
365. has
A copy of the May 15, 2015 demand letter is attached
as
Exhibit
2.
RPA has no rights in the East County Times Archive. RPA does not now "own," nor
it ever "owned" nor otherwise held title to the East County Times Archive.
366.
Upon information and belief, the East County Times Archive is in the possession of
McAfee, the Receiver appointed in the FABT Action, at 2401 N. Poplar Street, North Little Rock, Arkansas and 115 E.24th Street, North Little Rock, Arkansas. The East County Times Archive is not
68
subject to the receivership in the FABT Action. McAfee unlawfully detains the East County Times
Archive.
367.
Upon information and belief, RPA, John
M.
Rogers andJor Angelica Rogers
wrongfully transferred and delivered some or all of the East County Times Archive to third parties who
will be named
as Defendants herein once they are
fully identif,red. Those persons are referred to
as
John Does.
368.
Upon information and belief, RPA, John M. Rogers and/or Angelica Rogers, and John
Does, sold some of the East County Times Archive on the online auction website, eBay.com. Even
more conceming,
if
the photographs sold on eBay.com did not have negative film from which the
photos were printed, thereby making the photos one-of-a-kind items, the East County Times Archive has been irreparably harmed.
S.
Alameda Times Star
369.
In or about November 2013, the Alameda Times Star engaged in discussions with RPA
for the digitization of certain photographs and negatives (the "Alameda Times Star Archive") for the purpose of creating a digitized library of the Alameda Times Star Archive for the East County Times' reference and use.
370.
The Alameda Times Star and RPA never executed an agreement for the creation of a
digital library from the Alameda Times Star Archive.
371.
On or about December 12,2013, RPA took possession of the Alameda Times Star
Archive.
372.
On or about December 15, 2013, RPA accepted delivery of the Alameda Times Star
Archive, in North Little Rock, Arkansas at RPA's places of business, which were located at 2401 N. Poplar Street, North Little Rock, Arkansas, 2501 N. Poplar Street, North Little Rock, Arkansas, and I
l5 E. 24th Street, North Little Rock,
Arkansas.
69
373.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things,
that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
with the exhibits attached thereto, revealed among other things RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
374.
On November 17, 2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
375.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
376.
By letter dated May 15,2075, the Alameda Times Star demanded that RPA return the
Alameda Times Star Archive. A copy of the May 15, 2015 demand letter is affached as Exhibit 2.
377.
RPA has no rights in the Alameda Times Star Archive. RPA does not now "own," rìor
has it ever "owned" nor otherwise held title to the Alameda Times Star Archive.
378.
Upon information and belief, the Alameda Times Star Archive is in the possession of
McAfee, the Receiver appointed in the FABT Action, at 2401 N. Poplar Street, North Little Rock, Arkansas and I l5 E.24th Sffeet, North Little Rock, Arkansas. The Alameda Times Star Archive is not subject to the receivership in the FABT Action. McAfee unlawfully detains the Alameda Times Star
Archive.
379.
Upon information and belief, RPA, John
M. Rogers,
andlor Angelica Rogers
wrongfully transferred and delivered some or all of the Alameda Times Star Archive to third parties who will be named as Defendants herein once they are fully identified. Those persons are referred to as John Does.
380.
Upon information and belief, RPA, John M. Rogers, and/or Angelica Rogers, and John
Does, sold some of the Alameda Times Star Archive on the online auction website, eBay.com. Even
70
more concerning,
if
the photographs sold on eBay.com did not have negative film from which the
photos were printed, thereby making the photos one-of-a-kind items, the Alameda Times Star has been
irreparably harmed.
T.
The Argus
381.
On or about November 2013, The Argus engaged in discussions with RPA for the
digitization of certain photographs and negatives (the "The Argus Archive") for the purpose of creating a digitized
library of The Argus Archive for The Argus' reference and use.
382.
The Argus and RPA never executed an agreement for the creation of a digital library
from The Argus Archive.
383.
On or about December 12, 2013, RPA took possession of The Argus Archive.
384.
On or about December 15,2013, RPA accepted delivery of The Argus Archive, in
North Little Rock, Arkansas at RPA's places of business, which were locatedat240l N. Poplar Street,
North Little Rock, Arkansas,250l N. Poplar Street, North Little Rock, Arkansas, and 115 E.24th Street, North
Little Rock, Arkansas.
385.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things, that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
with the exhibits attached thereto, revealed among other things RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
386.
On November 17,2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action. 387
.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
7l
388. By letter dated May 15, 2015, The Argus demanded
that RPA return The Argus
Archive. A copy of the May 15, 2015 demand letter is attached as Exhibit 2.
389.
RPA has no rights in The Argus Archive. RPA does not now "own," nor has it ever
"owned" nor otherwise held title to The Argus Archive.
390.
Upon information and belief, The Argus Archive is in the possession of McAfee, the
Receiver appointed in the FABT Action, at 2401 N. Poplar Street, North Little Rock, Arkansas and 115 E.24th Street, North
Little Rock, Arkansas. The Argus Archive is not subject to the receivership
in the FABT Action. McAfee unlawfully detains The Argus Archive.
39I.
Upon information and belief, RPA, John M. Rogers, and,/or Angelica
Rogers
wrongfully transferred and delivered some or all of The Argus Archive to third parties who will be named as Defendants herein once they are fully identified. Those persons are referred to as John Does.
392.
Upon information and beliet RPA, John M. Rogers, and/or Angelica Rogers, and John
Does, sold some
of The Argus Archive on the online auction website, eBay.com. Even
more
concerning, if the photographs sold on eBay.com did not have negative film from which the photos were printed, thereby making the photos one-of-a-kind items, The Argus has been irreparably harmed.
DEFENDANTS WHO MAY CLAIM AN INTEREST IN THE MEDIANEWS ARCHIVE
393.
The Plaintiffs incorporate Paragraphs
394.
Defendant FABT may claim an interest the MediaNews Archive as a result of a UCC
l-392,
supra, into this Paragraph.
Financing Statement filed December 20,201l, as UCC Filing ID: 40000041965180, in the office of
the Arkansas Secretary of State. Any interest of FABT in the MediaNews Archive is inferior and subordinate to the Plaintiffs' interests.
395.
Defendant Hogan may claim an interest in the MediaNews Archive, including Oakland
Tribune negatives acquired from Zuma Press, as a result of a UCC Financing Statement filed June 19,
2013, as UCC Filing
ID:
40000071266894, amending
72
Initial Financing Statement File
No.
40000035436914, in the office of the Arkansas Secretary
of
State.
Any interest of Hogan in the
MediaNews Archive is inferior and subordinate to the Plaintiffs' interests.
396.
Defendant FCB may claim an interest in the MediaNews Archive, as a result of a UCC
Financing Statement filed June 26,2013, as UCC Filing ID: 40000071641083, in the office of the Arkansas Secretary of State. Any interest of FCB in the MediaNews Archive is inferior and subordinate
to the Plaintiffs' interests.
397.
Defendant BoLR may claim an interest in the MediaNews Archive, including the
Digital First Media Collection comprised of photos and negatives from the Oakland Tribune, Contra Costa Times, San Jose Mercury News, El Paso Times, St. Paul Pioneer Express, Salt Lake Tribune,
New Haven Register, Berkshire Eagle and negatives from The Denver Post, as a result of a UCC FinancingStatementfiledApril 14,2014, asUCC FilingID: 14-0011695633, intheofficeofthe Texas Secretary of State and a UCC Financing Statement filed April 15, 2014, as UCC Filing ID: 40000087239891, in the ofhce of the Arkansas Secretary
of State. Any interest of BoLR in
the
MediaNews Archive is inferior and subordinate to the Plaintiffs' interests.
398.
Defendant Providence may claim an interest in the MediaNews Archive, including the
copyright and ownership of the Salt Lake Tribune archive, as a result of a UCC Financing Statement
filed April 21,2014, as UCC Filing ID: 19199940, in the office of the Illinois Secretary of State. Any interest of Providence in the MediaNews Archive is inferior and subordinate to the Plaintiffs' interests.
399.
Defendant Failing may claim an interest in the MediaNews Archive, including the San
Gabriel Valley Times archive of photographs and graphic images, negatives and digital reproductions of the archive, as a result of a UCC Assignment and Security Agreement executed by John M. Rogers
October 17,2014, and filed as UCC Filing ID: 40000097671347, in the office of the Arkansas Secretary of State. Any interest of Failing in the MediaNews Archive is inferior and subordinate to the
Plaintiffs' interests.
73
400.
Defendant Failing may claim an interest in the MediaNews Archive, including the San
Gabriel Valley Tribune archive of photographs and graphic images, including negatives and digital reproductions of the archive and an assignment of all rights and interests arising in connection with a Photo Archive Acquisition Library and Digital Library Services Agreement between Sgt73, LLC, JMFR, LLC, and Los Angeles Daily News, as a result of a UCC Assignment and Security Agreement executed by John M. Rogers on December 23,2074, and filed as UCC Filing ID: 4000010091353, in
the offrce of the Arkansas Secretary of State. Any interest of Failing in the MediaNews Archive is inferior and subordinate to the Plaintiffs' interests.
401.
Defendant Demos may claim an interest in the MediaNews Archive, including Oakland
Tribune negatives dated from 1969-1976
(,See
Answer of Separate Defendant George Demos, filed in
the FABT Action on December 31,2014). Any interest of Demos in the MediaNews Archive is inferior
and subordinate to the Plaintiffs' interests.
402.
Defendant Conner may claim an interest in the MediaNews Archive, including the
Digital First Photographic Archive, as a result of a UCC Financing Statement filed January 23,2015, as
UCC Filing ID: 40000102172572 in the office of the Arkansas Secretary of State. Any interest of
Conner in the MediaNews Archive is inferior and subordinate to the Plaintifß' interests.
403. Defendant Hogan may claim an interest in the MediaNews
Archive, as a result of a
consent judgment in his favor against John M. Rogers and Sports Cards Plus, Inc. d/b/a Rogers Photo
Archive, filed January 21,2015. Any interest of Hogan in the MediaNews Archive is inferior and subordinate to the Plaintiffs' interests.
404.
Defendant FABT may claim an interest in the MediaNews Archive, as a result of a
judgment in its favor against Sports Cards Plus, Inc. d/b/a Rogers Photo Archive, Planet Giant, LLC and Digital Stock Planet,LLC, filed
April 15,2015. Any interest of FABT in the MediaNews Archive
is inferior and subordinate to the Plaintiffs' interests.
74
COUNT
405.
I.
CONVERSION
The Plaintiffs incorporate Paragraphs
406. Upon information
and
I-404,
supra, into this Paragraph.
beliel the MediaNews Archive
and the Zuma Press Negatives
are in the possession or under the control of Defendants RPA, PAP, Legendary Photos, John
M. Rogers,
Angelica Rogers, Newport, Conner, Doug Allen, Amy Allen, the John Doe Defendants or McAfee. Despite demand they have failed and refused and continue to fail and refuse, to return the MediaNews
Archive and the Zuma Press Negatives to the Plaintiffs.
407. Upon information
and belief, RPA, PAP, Legendary Photos, John
M. Rogers, Angelica
Rogers, Newport, Conner, Doug Allen, Amy Allen, John Does, McAfee and/or the other Defendants have sold and continue to attempt to sell or otherwise dispose of the MediaNews Archive and the Zuma Press Negatives.
408.
The Plaintiffs own and are entitled to immediate possession of the MediaNews Archive
and the Zttma Press Negatives.
409. By withholding the MediaNews Archive
from the Plaintiffs and by offering
the
MediaNews Archive and the Zuma Press Negatives for sale, RPA intentionally committed specific acts
of dominion over the MediaNews Archive and the Ztma Press Negatives.
410.
The Plaintiffs state that these acts of dominion are inconsistent with the Plaintiffs'
rights as the owners of the MediaNews Archive and the Zuma Press Negatives.
4ll.
The Defendants RPA, PAP, Legendary Photos, John M. Rogers, Angelica Rogers,
Newport, Conner, Doug Allen, Amy Allen, John Does and/or McAfee have no right or title to the MediaNews Archive or the Zuma Press Negatives because any claimed interest on their part was procured by fraud.
412.
The Plaintiffs suffered damage as a result of the conversion of the MediaNews
Archive and the Zuma Press Negatives by the Defendants RPA, PAP, Legendary Photos, John M. Rogers, Angelica Rogers, Newport, Conner, Doug Allen, Amy Allen, John Does and/or McAfee. 75
Because the MediaNews Archive and the Zuma Press Negatives constitute valuable and important assets of the Plaintiffs necessary for the operation of the
Plaintifß' newspapers, the Plaintiffs have
been damaged by the loss of the MediaNews Archive and the
Ztma
Press Negatives, by the loss
of
the value of the MediaNews Archive and the Zurma Press Negatives since the Plaintiffs no longer have physical possession of the archives, and by an overall diminution of each Plaintiffs' valuation.
COUNT
II - REOUEST FOR ORDER OF DELIVERY - ARK. CODE ANN. 8 18-60-808
4I3.
The Plaintiffs incorporate Paragraphs
414.
Upon information and belief, the MediaNews Archive and the Zuma Press Negatives
l-412,
supra, into this Paragraph.
are in the possession of RPA and/or the other Defendants.
415.
Where there are agreements between the Plaintiff newspapers and RPA, as a result
of
the terminations of the agreements, the Plaintiffs are entitled to immediate possession of the MediaNews Archive. Under the terms
of those
agreements, RPA was required
to deliver
the
MediaNews Archive to the Plaintiffs on or before ll4ay 26, 2015. That date has passed and the Defendants retain possession of the MediaNews Archive. The Plaintifß are entitled to immediate possession of the MediaNews Archive.
416.
The Plaintiffs' rights to possession of the MediaNews Archive and the Zuma Press
Negatives are superior to any right asserted, or that could be asserted,by any Defendant hereto.
417. RPA and/or the other Defendants have possession and unlawfully
detain the
MediaNews Archive and the Ztma Press Negatives under a false claim of ownership or right to possession.
418.
Upon information and belief, RPA and/or the other Defendants are engaged in efforts
to sell or otherwise dispose of the MediaNews Archive and the Ztma Press Negatives.
419.
The Plaintiffs seek, pursuant to Ark. Code Ann. $ 18-60-801 et seq., an immediate
Order of Delivery of the MediaNews Archive and the Zuma Press Negatives and finding that the
Plaintiffs are entitled to immediate possession thereof and ordering RPA and/or the other Defendants 76
holding possession of the MediaNews Archive and the Zuma Press Negatives
to deliver
the
MediaNews Archive and the Zuma Press Negatives to the Plaintiffs.
420. The Plaintiffs are entitled to damages
for the wrongful detention of the MediaNews
Archive and the Zuma Press Negatives, including their costs and attorneys' fees. 421
.
The Plaintiffs pray for an immediate hearing in order to present p rima facie evidence
that the Plaintifß have the right to immediate possession of the MediaNews Archive and the Zuma Press Negatives.
COUNT III
422.
- FRAUD
The Plaintiffs incorporate Paragraphs
423. Upon information
l-421,
supra, into this Paragraph.
and belief, at all times relevant to this action, John M. Rogers was
an authorized representative of RPA, acting as its shareholder, President, and Chairman.
424.
Upon information and belief, at all times relevant to this action, John M. Rogers was
acting on his individual behalf, as well as on behalf of RPA as an authorized representative of RPA.
425.
Upon information and belief, at all times relevant to this action, Angelica Rogers was
an authorized representative of RPA, acting as an agent.
426.
Upon information and belief, at all times relevant to this action, Angelica Rogers was
acting on her own individual behalf, as well as on behalf of RPA as an authorized representative of RPA.
427.
Upon information and belief, John M. Rogers assigned and conveyed his interest in
RPA to Angelica Rogers pursuant to a Divorce Decree entered on October 21,2014 in the Circuit Court of Pulaski County Case No. 60DR-14-3603.
428.
John M. Rogers made false representations of material facts when he represented to
the Plaintiffs that he was highly skilled, knowledgeable and experienced at digitizing, or "scanning" photographs and negatives for the creation of a digital library for newspapers. In particular, John M.
77
Rogers was not highly skilled, knowledgeable or experienced at successfully digitizing or "scanning" photographs using the business model he described to the Plaintiffs with respect to their photographs and negatives. John M. Rogers knew that the business model he described to the Plaintiffs for the
creation of their digital libraries was not economically viable or sustainable and he knew when he made the representations, and afterwards, that he and Angelica Rogers would disregard and deviate
from the representations he made to the Plaintiffs in order to perpetuate, or attempt to perpetuate,
RPA's operations and generation of revenue, from which John M. Rogers would personally plunder and deplete RPA's assets to his benefit, and to the detriment of the Plaintiffs.
429.
John M. Rogers and Angelica Rogers made false representations of material facts
when they represented to the Plaintiffs that they had the necessary staff, facilities and equipment to create a digital library for the Plaintifß, including the cleaning, or removal of marks and notations on
the prints prior to scanning them, and the addition of metadata to the scanned images, including
photo captions, bylines, photographer, etc., so that the images would be high quality and easily indexed and searched. In particular, RPA, John M. Rogers and Angelica Rogers did not have the necessary staff, facilities and equipment to create a digital library for the Plaintiffs using the business
model John M. Rogers described to the Plaintiffs with respect to their photographs and negatives. John M. Rogers and Angelica Rogers knew that the business model John M. Rogers described to the
Plaintiffs for the creation of their digital library was not economically viable or sustainable and John M. Rogers and Angelica Rogers knew when they made the representations, and afterwards, that they would disregard and deviate from the representations he made to the Plaintiffs in order to perpetuate, or attempt to perpetuate, RPA's operations and generation of revenue, from which John M. Rogers and Angelica Rogers would personally plunder and deplete RPA's assets to their benefit, and to the
detriment of the Plaintiffs.
430.
John M. Rogers and Angelica Rogers made a false representation of a material fact
when they represented to the Plaintiffs that RPA was a financially sound, viable company. In 78
particular, John M. Rogers and Angelica Rogers knew when they made the representation to the
Plaintiffs that RPA was not a financially sound, viable company. John M. Rogers and Angelica Rogers knew when they made the false representations that they had no experience at sustaining RPA as a
financially sound and viable company using the business model Rogers described to the
Plaintiffs with respect to their photographs and negatives. John M. Rogers and Angelica Rogers knew that when they made the false representation that they had no experience at sustaining RPA as a
financially sound and viable company using the business model Rogers described to the Plaintiffs
with respect to their photographs and negatives. John M. Rogers knew that the business model he described to the Plaintiffs for the creation of their digital library was not economically viable or sustainable, and John M. Rogers knew when he made the representations, and afterwards, that he and
Angelica Rogers would disregard and deviate from the representations he made to the Plaintifß in order to perpetuate, or attempt to perpetuate RPA's operations and generation of revenue, from
which John M. Rogers and Angelica Rogers would personally plunder and deplete RPAs assets to their benefit, and to the detriment of the Plaintiffs.
431.
John M. Rogers and Angelica Rogers made a false representation of a material fact
when they represented that RPA would clean, scan and add metadata to the MediaNews Archive and
allow the Plaintiffs to inspect and approve the digital archives before John M. Rogers and/or Angelica Rogers or RPA would sell any images from the archives. In particular, RPA, John M. Rogers and Angelica Rogers did not have the necessary staff, facilities and equipment to clean, scan and add metadata to the MediaNews Archive and allow the Plaintiffs to inspect and approve the
digital archives, before John M. Rogers, Angelica Rogers or RPA would sell any images from the archives, using the business model John M. Rogers described to the Plaintiffs with respect to their photographs and negatives. John M. Rogers knew that the business model he described to the
Plaintiffs for cleaning, scanning and adding metadata to the MediaNews Archive was not economically viable or sustainable and John M. Rogers knew when he made the representations, and 79
afterwards, that he and Angelica Rogers would disregard and deviate from the representations he made to the Plaintiffs in order to perpetuate, or attempt to perpetuate, RPA's operations and
generation of revenue, from which John M. Rogers and Angelica Rogers would personally plunder and deplete RPA's assets to their benefit, and to the detriment of the Plaintiffs.
432.
John M. Rogers and Angelica Rogers made a false representation of a material fact
when they represented that RPA would contract with persons or entities in India to add metadata to the MediaNews Archive. In particular, RPA, John M. Rogers and Angelica Rogers did not have or obtain the necessary contracts with persons or entities in India to add metadata to the MediaNews
Archive. John M. Rogers and Angelica Rogers knew that the business model John M. Rogers described to the Plaintiffs for adding metadata to the MediaNews Archive'üas not economically
viable or sustainable and John M. Rogers and Angelica Rogers knew when John M. Rogers made the representations, and afterwards, that they would disregard and deviate from the representations they made to the Plaintiffs in order to perpetuate, or attempt to perpetuate, RPA's operations and
generation of revenue, from which John M. Rogers and Angelica Rogers would personally plunder and deplete RPA's assets to their benefit, and to the detriment of the Plaintiffs.
433.
John M. Rogers and Angelica Rogers made false representations of material facts
when they represented that RPA would develop, market, and maintain a website for each Plaintiff for hosting, editorial licensing, and selling commercial products for the MediaNews Archive. In
particular, John M. Rogers and Angelica Rogers did not have the necessary staff, facilities and equipment to develop, market, and maintain a website for each Plaintiff for hosting, editorial
licensing, and selling commercial products for the MediaNews Archive using the business model John M. Rogers described to the Plaintiffs with respect to their photographs and negatives. John M. Rogers knew that the business model described to the Plaintiffs for developing, marketing, and
maintaining a website for each Plaintiff for hosting, editorial licensing, and selling commercial products for the MediaNews Archive was not economically viable or sustainable and John M. Rogers 80
knew when he made the representations, and afterwards, that he and Angelica Rogers would disregard and deviate from the representations made to the Plaintiffs in order to perpetuate, or attempt to perpetuate, RPA's operations and generation of revenue, from which John M. Rogers and
Angelica Rogers would personally plunder and deplete RPA's assets to their benefit, and to the detriment of the Plaintiffs.
434.
John M. Rogers and Angelica Rogers made a false representation of a material fact
when they represented that they would pay to the Plaintifß a percentage of all profits of new sales
from the sales of products related to the images from the MediaNews Archive and copyrighted by the
Plaintiff newspapers. In particular, John M. Rogers and Angelica Rogers did not have the necessary
staff facilities and equipment to allow and enable RPA to pay to the Plaintiffs a percentage of all prohts of new sales from the sales of products related to the images from the MediaNews Archive and copyrighted by the Plaintiff newspapers using the business model John M. Rogers described to
the Plaintiffs with respect to their photographs and negatives. John M. Rogers knew that the business
model described to the Plaintiffs for paying to the Plaintiffs a percentage of all profits of new sales from the sales of products related to the images from the MediaNews Archive was not economically viable or sustainable and John M. Rogers knew when he made the representations, and afterwards, that he and Angelica Rogers would disregard and deviate from the representations he made to the
Plaintiffs in order to perpetuate, or attempt to perpetuate, RPA's operations and generation of revenue, from which John M. Rogers and Angelica Rogers would personally plunder and deplete
RPA's assets to their benefit, and to the detriment of the Plaintiffs.
435.
The false representations set forth in paragraphs 428 through 434 were false
representations of material facts because those facts were material to the Plaintiffs in their decisions
to choose John M. Rogers, Angelica Rogers, and RPA to digitize the MediaNews Archive.
8l
436. John M. Rogers, Angelica Rogers and RPA knew when the representations were made to the Plaintifß that the representations were false. Similarly, John M. Rogers, Angelica
Rogers and RPA knew that later representations were equally or more false.
437.
John M. Rogers and Angelica Rogers knew when they made the false representations
to the Plaintiffs that RPA was not financially viable or sustainable, because before and after they made the false representations, John M. Rogers was causing fraudulent financial statements to be issued, or actively participating in the issuance of fraudulent financial statements, that were
materially misleading or so inaccurate as to make them worthless. John M. Rogers and Angelica Rogers knew that because RPA's business was not financially viable or sustainable, RPA and John
M. Rogers and Angelica Rogers, individually, would need immediate access to, or infusion of, large amounts of money to perpetuate prior and continuing fraudulent schemes and that RPA, John M. Rogers and Angelica Rogers would pilfer, purloin and otherwise steal from the MediaNews Archive as soon as RPA, John
M. Rogers and Angelica Rogers got possession of the archive by immediately
selling anything of value for RPA's, and consequently John M. Rogers' and Angelica Rogers', direct benefit, without creating a digital library or providing any accounting for revenue and sales from the MediaNews Archive.
438.
John M. Rogers and Angelica Rogers knew that RPA did not have adequate staff or
facilities to perform the commitments made to the Plaintiffs. [n particular, John M. Rogers and Angelica Rogers knew that RPA did not have adequate staff or facilities to perform the commitments made to the Plaintiffs before, during, and after the date that RPA, John M. Rogers and Angelica Rogers made the commitments and before, during, and after the date that RPA, John M. Rogers and
Angelica Rogers obtained the MediaNews Archive from the Plaintiffs.
439.
John M. Rogers and Angelica Rogers knew at the time the false representations were
made to the Plaintifß that neither RPA, John M. Rogers or Angelica Rogers intended to digitize the
MediaNews Archive, but they wanted possession of the MediaNews Archive to sell valuable images 82
and products related to the images for their direct benefit and to use the MediaNews Archive to
perpetuate the RPA, John M. Rogers and Angelica Rogers schemes to defraud other investors and creditors, as evidenced by McAfee's First Quarterly Report of Receiver filed April 30, 2015, other
filed lawsuits against RPA, John M. Rogers and Angelica Rogers and claimants asserting an ownership interest in the MediaNews Archive.
440.
John M. Rogers and Angelica Rogers knew at the time the representations were made
that they did not intend to develop, market, and maintain a website for each Plaintiff for hosting,
editorial licensing, and selling commercial products for the MediaNews Archive.
441.
RPA and John M. Rogers intended to induce the Plaintiffs to allow RPA to acquire
the MediaNews Archive, and in fact, the Plaintiffs relied upon John M. Rogers' false representations and allowed John M. Rogers and RPA to take possession of the MediaNews Archive.
442.
As part of RPA's and John M. Rogers' scheme to induce the Plaintiffs to allow RPA
to acquire the MediaNews Archive, John M. Rogers or other representatives of RPA submitted archive questions to the Plaintifß, ostensibly to develop a business relationship with the Plaintiffs,
but in reality the answers to the archive questions were for RPA, John M. Rogers and Angelica Rogers to deceitfully and surreptitiously acquire knowledge of the value of the MediaNews Archive,
which RPA, John M. Rogers and Angelica Rogers later used to their advantage and to the detriment of the Plaintiffs. Subsequently, John M. Rogers, Angelica Rogers or other representatives of RPA visited various newspapers and examined the archives, again ostensibly to develop a business relationship with the Plaintifß, but in reality for RPA, John M. Rogers and Angelica Rogers to deceitfully and surreptitiously acquire knowledge of the value of the MediaNews Archive, again, which RPA, John M. Rogers and Angelica Rogers later used to their advantage and to the detriment of the Plaintifß. Further, RPA and John M. Rogers asserted that the value of the individual archives would be used, in part, as the basis for RPA to obtain and maintain insurance on the archives. Based
83
upon these actions and inducements, the Plaintiffs relied upon John M. Rogers' and Angelica
Rogers' deceit and allowed John M. Rogers and RPA to take possession of the MediaNews Archive.
443.
John M. Rogers and RPA falsely represented to the Plaintiffs that RPA would obtain
and maintain insurance on the MediaNews Archive and provide certificates of insurance to the
Plaintiffs. In fact, John M. Rogers and RPA never obtained or maintained insurance on the MediaNews Archive and never provided certificates of insurance to the Plaintiffs.
444.
The Plaintiffs justifiably relied on John M. Rogers' representations in making their
decision to allow John M. Rogers and RPA to take possession of the MediaNews Archive, because John M. Rogers referred to large scale digital libraries created for Fairfax Media Management PTY
Limited ("Fairfax") and The New York Post. In fact, John M. Rogers had not successfully created a large scale digital library for any other newspaper using the business model John M. Rogers described to the Plaintifß with respect to their photographs and negatives. As evidence that John M.
Rogers' representations to the Plaintiffs were false and that RPA did not create a large scale digital
library for Fairfax, subsequently Fairfax sued RPA and John M. Rogers and is an Intervenor in the FABT Action.
445.
John M. Rogers', Angelica Rogers' and RPA's actions constitute fraud and they are
liable to Plaintiffs for all resulting damages. The contracts entered into by the El Paso Times, the Berkshire Eagle, the Contra Costa Times, the Oakland Tribune, San Jose Mercury, the Salt Lake Tribune, The Denver Post, and RPA were induced by fraud; thus, the contracts are void ab initio.
446.
The Plaintiffs suffered damage as a result of John M. Rogers' and Angelica Rogers'
false representations because the MediaNews Archive constitutes a valuable and important asset
of
the Plaintiffs and necessary for the operation of the Plaintiffs' ne,wspapers. The MediaNews Archive has been fraudulently taken from the Plaintiffs and therefore, the Plaintiffs have been damaged by the loss of the MediaNews Archive, by the loss of the value of the MediaNews Archive since the
84
Plaintiffs no longer have physical possession of the archives, and by an overall diminution of each
Plaintifß' valuation.
447.
As a direct and proximate result of the fraud committed by John M. Rogers, Angelica
Rogers and RPA, the Plaintiffs have incurred significant and substantial damages.
448. The amount of the damages established attrial of this case will exceed the amount necessary for federal diversity of citizenship jurisdiction.
449. As a direct and proximate result of the fraud, Plaintiffs are entitled to recover from John M. Rogers, Angelica Rogers and RPA,
jointly
and severally, actual damages in an appropriate
amount as established at trial, plus pre-judgment and post-judgment interest and costs, including
attorneys' fees, all as provided by applicable law.
450.
Further, in order to punish John M. Rogers, Angelica Rogers and RPA for their
willful, intentional, malicious
and wrongful fraud, and to deter others similarly situated from
engaging in similar conduct in the future, Plaintiffs should be awarded punitive damages, in an amount to be determined at trial, to deter such future conduct.
COUNT IV
-
FRAUD IN THE INDUCEMENT
451.
The Plaintiffs incorporate Paragraphs
452.
Upon information and belief, at all times relevant to this action, John M. Rogers was
l-450,
supra, into this Paragraph.
an authorized representative of RPA, acting as its shareholder, President, and Chairman.
453.
Upon information and belief, at all times relevant to this action, John M. Rogers was
acting on his individual behalf, as well as on behalf of RPA as an authorized representative of RPA.
454.
Upon information and belief, at all times relevant to this action, Angelica Rogers was
an authorized representative of RPA, acting as an agent.
85
455. Upon information
and belief, at all times relevant to this action, Angelica Rogers was
acting on her own individual behalf, as well as on behalf of RPA as an authorized representative of RPA.
456.
Upon information and belief, John M. Rogers assigned and conveyed his interest in
RPA to Angelica Rogers pursuant to a Divorce Decree entered on October 21,2014 in the Circuit Court of Pulaski County Case No. 60DR-14-3603.
457.
John M. Rogers falsely represented information to the Plaintiffs that he was highly
skilled, knowledgeable and experienced at digitizing, or "scanning" photographs and negatives for the creation of a digital library for newspapers. In particular, John M. Rogers was not highly skilled, knowledgeable or experienced at successfully digitizing or "scanning" photographs using the business model he described to the Plaintiffs with respect to their photographs and negatives. John
M. Rogers knew that the business model he described to the Plaintiffs for the creation of their digital libraries was not economically viable or sustainable and he knew when he made the representations, and afterwards, that he and Angelica Rogers would disregard and deviate from the representations he made to the Plaintiffs in order to perpetuate, or attempt to perpetuate, RPA's operations and
generation of revenue, from which John M. Rogers would personally plunder and deplete RPA's assets to his benefit, to the detriment of the Plaintiffs.
458.
John M. Rogers and Angelica Rogers falsely represented information to the Plaintiffs
regarding RPA's staff, facilities, and equipment to create a digital library for the Plaintiffs, including the cleaning or removal of marks and notations on the prints prior to scanning them, and the addition
of metadata to the scanned images and concealed and misrepresented material information to the Plaintiffs. In particular, RPA, John M. Rogers and Angelica Rogers did not have the necessary staff, facilities and equipment to create a digital library for the Plaintiffs using the business model John M. Rogers described to the Plaintiffs with respect to their photographs and negatives. John M. Rogers 86
and Angelica Rogers knew that the business model Rogers described to the Plaintiffs for the creation
of their digital library was not economically viable or sustainable and John M. Rogers and Angelica Rogers knew when he made the representations, and afterwards, that they would disregard and deviate from the representations he made to the Plaintiffs in order to perpetuate, or attempt to perpetuate RPA's operations and generation of revenue, from which John M. Rogers and Angelica Rogers would personally plunder and deplete RPA's assets to their benefit and to the detriment of the
Plaintiffs.
459.
John M. Rogers and Angelica Rogers falsely represented information to the Plaintiffs
that RPA would clean, scan and add metadata to the Media News Archives and allow the Plaintiffs to inspect and approve the digital archives before John M. Rogers, Angelica Rogers or RPA would sell any images from the MediaNews Archive.
In particular, RPA, John M. Rogers and Angelica Rogers did not have the necessary staff,
facilities and equipment to clean, scan and add metadata to the MediaNews Archive and allow the Plaintiffs to inspect and approve the digital archives, before John M. Rogers, Angelica Rogers or RPA would sell any images from the archives, using the business model John M. Rogers described to the Plaintiffs with respect to their photographs and negatives. John M. Rogers knew that the business model he described to the Plaintiffs for cleaning, scanning and adding metadata to the MediaNews
Archive was not economically viable or sustainable and John M. Rogers knew when he made the representations, and afterwards, that he and Angelica Rogers would disregard and deviate from the representations he made to the Plaintifß in order to perpetuate, or attempt to perpetuate, RPA's operations and generation of revenue, from which John M. Rogers and Angelica Rogers would personally plunder and deplete RPA's assets to their beneht and to the detriment of the Plaintiffs.
460.
John M. Rogers and Angelica Rogers falsely represented information to the Plaintiffs
that RPA would develop, market, and maintain a website for each Plaintiff for hosting, editorial
licensing, and selling commercial products for the MediaNews Archive. In particular, John M. 87
Rogers and Angelica Rogers did not have the necessary staff, facilities and equipment to develop, market, and maintain a website for each Plaintiff for hosting, editorial licensing, and selling
commercial products for the MediaNews Archive using the business model John M. Rogers described to the Plaintiffs with respect to their photographs and negatives. John M. Rogers knew that the business model described to the Plaintiffs for developing,
marketing, and maintaining a website for each Plaintiff for hosting, editorial licensing, and selling commercial products for the MediaNews Archive was not economically viable or sustainable and John M. Rogers knew when he made the representations, and afterwards, that he and Angelica Rogers would disregard and deviate from the representations made to the Plaintiffs in order to perpetuate, or attempt to perpetuate, RPA's operations and generation of revenue, from which John
M. Rogers and Angelica Rogers would personally plunder and deplete RPA's assets to his benefit, and to the detriment of the Plaintiffs.
461. John M. Rogers and Angelica
Rogers falsely represented material information to the
Plaintiffs regarding RPA's financial stability and viability. In particular, John M. Rogers and Angelica Rogers knew when they made the representation to the Plaintiffs that RPA was not a
financially sound, viable company. John M. Rogers and Angelica Rogers knew when they made the false representations that they had no experience at sustaining RPA as a financially sound and viable company using the business model Rogers described to the Plaintiffs with respect to their photographs and negatives. John M. Rogers and Angelica Rogers knew that when they made the false representation that they had no experience at sustaining RPA as a financially sound and viable company using the business model Rogers described to the Plaintifß with respect to their photographs and negatives. John M. Rogers knew that the business model he described to the
Plaintiffs for the creation of their digital library was not economically viable or sustainable, and John M. Rogers knew when he made the representations, and afterwards, that he and Angelica Rogers would disregard and deviate from the representations he made to the Plaintiffs in order to perpetuate, 88
or attempt to perpetuate RPA's operations and generation of revenue, from which John M. Rogers and Angelica Rogers would personally plunder and deplete RPAs assets to their benefrt and to the
detriment of the Plaintiffs.
462.
John M. Rogers and Angelica Rogers made these false representations or material
withholdings to the Plaintiffs with the knowledge that their representations were false or that there was insufficient evidence or information upon which to make those representations.
463.
John M. Rogers and Angelica Rogers made the false representations or material
withholdings to the Plaintiffs with the intent to induce action in reliance upon the representationsnamely for the Plaintiffs to enter into contractual relationships with RPA, and subsequently, for RPA to retain the MediaNews Archive and market and sell images related to the photographic and negative MediaNews Archive for its direct benefit (thereby, John M. Rogers' and Angelica Rogers' direct benefit) without the creation of any digital libraries for the Plaintifß.
464.
The contracts entered into by the El Paso Times, the Berkshire Eagle, the Contra
Costa Times, the Oakland Tribune, San Jose Mercury, the Salt Lake Tribune, The Denver Post and
RPA were induced by fraud; thus, the contracts are void ab initio.
465.
The Plaintifß have been damaged by RPA, John M. Rogers' and Angelica Rogers'
actions, for which they are entitled to compensatory damages for the loss the MediaNews Archive,
for the loss of the value of the MediaNews Archive since the Plaintiffs no longer have physical possession of the archives, and by an overall diminution of each Plaintiffs' valuation.
COUNT V- CONSTRUCTIVE FRAUD
466.
The Plaintiffs incorporate Paragraphs
467.
Upon information and belief, at all times relevant to this action, John M. Rogers was
l-452,
suprq, into this Paragraph.
an authorized representative of RPA, acting as its shareholder, President, and Chairman.
89
468.
Upon information and belief, at all times relevant to this action, John M. Rogers was
acting on his individual behalf,, as well as on behalf of RPA as an authorized representative of RPA.
469. Upon information
and belief, at all times relevant to this action, Angelica Rogers was
anauthorized representative of RPA, acting as an agent.
470.
Upon information and belief, at all times relevant to this action, Angelica Rogers was
acting on her own individual behalt as well as on behalf of RPA as an authorized representative
of
RPA.
471.
Upon information and belief, John M. Rogers assigned and conveyed his interest in
RPA to Angelica Rogers pursuant to a Divorce Decree entered on October 21,2014 in the Circuit Court of Pulaski County Case No. 60DR-14-3603.
472.
John M. Rogers and Angelica Rogers falsely represented information to the Plaintiffs
regarding RPA's staff, facilities, and equipment to create a digital library for the Plaintifß, including the cleaning or removal of marks and notations on the prints prior to scanning them, and the addition
of metadata to the scanned images; that RPA would clean, scan and add metadata to the Media News
Archive and allow the Plaintiffs to inspect and approve the digital archives before John M. Rogers, Angelica Rogers or RPA would sell any images from the MediaNews Archive; and that RPA would develop, market, and maintain a website for each Plaintiff for hosting, editorial licensing, and selling
commercial products for the MediaNews Archive.
473.
John M. Rogers and Angelica Rogers concealed and misrepresented material
information to the Plaintifß.
474.
John M. Rogers and Angelica Rogers made these false representations or material
withholdings to the Plaintiffs with the knowledge that their representations were false or that there was insufficient evidence or information upon which to make those representations. 47
5.
John M. Rogers and Angelica Rogers made the false representations or material
withholdings to the Plaintiffs with the intent to induce action in reliance upon the representations90
namely for the Plaintiffs to enter into contractual relationships with RPA, and subsequently, for RPA to retain the MediaNews Archive and market and sell images related to the photographic and negative MediaNews Archive for its direct benefit (and thereby, John M. Rogers' and Angelica Rogers') direct benefit without the creation of any digital libraries for the Plaintiffs. The Plaintiffs justifiably relied on the misrepresentations made by John M. Rogers.
476.
The contracts entered into by the El Paso Times, the Berkshire Eagle, the Contra
Costa Times, the Oakland Tribune, San Jose Mercury, the Salt Lake Tribune, The Denver Post and
RPA were induced by fraud; thus, the contracts are void ab initio.
477.
The Plaintiffs have been damaged by John M. Rogers' and Angelica Rogers' actions,
for which they are entitled to compensatory and punitive damages.
COUNT VI
- UNJUST ENRICHMENT
478.
The Plaintifß incorporate Paragraphs
479.
Upon information and belief, John M. Rogers was at all times relevant to this action
l-477,
supra, into this Paragraph.
an authorized representative of RPA, acting as its shareholder, President, and Chairman.
480.
Upon information and belief, at all times relevant to this action, John M. Rogers was
acting on his individual behalf, as well as on behalf of RPA as an authorized representative of RPA.
481.
Upon information and belief, at all times relevant to this action, Angelica Rogers was
an authorized representative of RPA, acting as an agent.
482.
Upon information and belief, at all times relevant to this action, Angelica Rogers was
acting on her own individual behalf, as well as on behalf of RPA as an authorized representative of RPA.
483.
Upon information and belief, John M. Rogers assigned and conveyed his interest in
RPA to Angelica Rogers pursuant to a Divorce Decree entered on October 21,2014 in the Circuit Court of Pulaski County Case No. 60DR-14-3603.
9l
484.
During the course of the business relationship with RPA, the Plaintifß conferred
substantial benefits upon John M. Rogers, Angelica Rogers and RPA, specifically, through allowing
RPA to take possession of the MediaNews Archive conditioned upon assurances that RPA could and would create digital libraries for the Plaintifß from the MediaNews Archive.
485.
John M. Rogers, Angelica Rogers and RPA accepted the benefits conferred upon them by
the Plaintiffs, by retaining the MediaNews Archive and marketing and selling images related to the photographic and negative MediaNews Archive for its (thereby, John M. Rogers' and Angelica Rogers' direct benefit) direct benef,rt.
486.
RPA's (thereby, John M. Rogers' and Angelica Rogers') acceptance and retention of the
benefits conferred upon them by the Plaintiffs, particularly in light of RPA's failure and refusal to create
digital libraries from the MediaNews Archive for the Plaintiffs, is inequitable under the circumstances and constitutes unjust enrichment. The Plaintiffs are entitled to restitution of the value of the MediaNews
Archive.
487.
The Plaintiffs have been damaged by RPA's, John M. Rogers' and Angelica Rogers'
actions.
COUNT VII _ DECEPTIVE TRADE PRACTICES UNDER ARK. CODE ANN. 8 4-88-101. ET SEO.
488.
The Plaintiffs incorporate Paragraphs
489.
The conduct of Separate Defendants RPA, John M. Rogers, and Angelica Rogers
l-487,
supra, into this Paragraph.
constitutes a violation or violations of the Arkansas Deceptive Trade Practices Act, codified at Ark. Code
Ann. $ 4-88-101, et seq.
490.
The Plaintifß have been damaged by the actions of Separate Defendants RPA, John M.
Rogers, and Angelica Rogers, and as a consequence, the Plaintiffs are entitled to relief under the Arkansas
Deceptive Trade Practices Act.
92
491. Under Ark. Code Ann. $ 4-88-113, the Plaintiffs are entitled to their damages, costs and attomeys'fees.
COUNT VIII - CryIL ACTION BY CRIME VICTIM UNDER ARK. CODE ANN. S 16-118-108
492.
The Plaintifß incorporate Paragraphs
l-491,
supra, into this Paragraph.
493. The conduct of Separate Defendants RPA, John M. Rogers, and Angelica Rogers constitutes a felony or felonies under Ark. Code Ann. $ 5-1-106, Ark. Code Ann. $ 5-36-101, and Ark. Code Ann. $ 5-36-103. As a consequence, the Plaintifß are entitled to relief under Ark. Code Ann. $ 16I 18-107.
494.
The Plaintiffs have been injured by the felonious conduct of Separate Defendants RPA,
John M. Rogers, and Angelica Rogers.
495.
The Plaintifiß have been damaged by the actions of Separate Defendants RPA, John M.
Rogers, and Angelica Rogers, for which the Plaintiffs are entitled to their damages, attorneys' fees and costs under
Ark. Code Ann. $ 16-118-107(aX3).
COUNT IX - ACCOUNTING
496. 497
.
Plaintiffs incorporate Paragraphs
l-495,
supra, into this Paragraph.
The Defendants, specifically RPA, John M. Rogers and Angelica Rogers have sold and
continue to sell the MediaNews Archive through various outlets, including but not limited to:
l) online
websites such as eBay.com and RetrolmagesArchive.com, and 2) sellers such as Newport Photo Archives, HY Ventures, SFX Auctions, Bauby and Angelica Rogers.
498.
RPA, John M. Rogers and Angelica Rogers failed and refused, and continue to fail and
refuse, to pay the Plaintiffs
fifty percent (50%) of all profits of net
sales from the sales
of
the
MediaNews Archive and products related to the images copyrighted by the Plaintiffs and belonging to the MediaNews Archive, pursuant to the seven agreements entered into with RPA for the digitization of those newspapers' archives.
93
499.
The Plaintiffs are entitled to an Accounting evidencing all of RPA's, John M. Rogers'
and Angelica Rogers' transaction details, receipts and profrts relating to the sales of the MediaNews
Archive and products related to the images copyrighted by the Plaintiffs and belonging to the MediaNews Archive, pursuant to the seven agreements entered into with RPA for the digiiization of those newspapers' archives.
500.
Defendants that are not parties to an agreement with the Plaintiffs have sold and
continue to sell the MediaNews Archive and products related to the images copyrighted by the
Plaintiffs and belonging to the MediaNews Archive through various outlets, including but not limited to: l) online websites such
as eBay.com and
RetrolmagesArchive.com, and2) sellers such as Newport
Photo Archives, HY Ventures, SFX Auctions, Bauby and Angelica Rogers. The Plaintiffs are entitled
to an Accounting from these Defendants evidencing transaction details, receipts and profits relating to the sales of the MediaNews Archive and products related to the images copyrighted by the Plaintiffs and belonging to the MediaNews Archive.
501.
McAfee has information relating to the sales of the MediaNews Archive and products
related to the images copyrighted by the Plaintiffs and belonging to the MediaNews Archive. The
Plaintiffs are entitled to an Accounting from McAfee evidencing transaction details, receipts and profits relating to the sales of the MediaNews Archive and products related to the images copyrighted by the Plaintiffs and belonging to the MediaNews Archive.
DEMAND FOR JURY TRIAL The Plaintiffs demand a trial by jury on all claims to which they are entitled to a trial by jury.
PRAYER FOR RELIEF WHEREFORE, the Plaintiffs respectfully pray to the Court that the Defendants be cited to appear and
file answers herein, and on final hearing hereof, that the Plaintiffs do have and recover of
and from the Defendants as follows:
94
a)
An immediate Order for Delivery
as
to the MediaNews Archive and the Zuma
Press Negatives;
b) An immediate
hearing on the question of the Plaintiffs' rights to possession of the
MediaNews Archive;
c)
An immediate Order for Accounting;
d)
Compensatory damages, statutory damages, punitive damages, attorneys' fees and costs, as requested in the Complaint; and
e) Any other and further relief to which the Plaintiffs may show themselves justly entitled or that the Court deems proper.
DATED: June 5,2015 Respectfully submitted, By:
/s/ Allen C. Do Allen C. Dobson Arkansas Bar No. 85040 Baxter, Jewell & Dobson, P.A. One Information Way, Suite 210
Little Rock, Arkansas 72202 (501) 664-9555 phone (501) 664-9559 fax [email protected]
/s/ John M. Jewell John M. Jewell Arkansas Bar No. 84082 Baxter, Jewell & Dobson, P.A. One Information Way, Suite 210 Little Rock, Arkansas 72202 (501) 664-9555 phone (501) 664-9559 fax
[email protected]
/s/ Shelley Fleisch-Djurica Shelley Fleisch-Djurica Arkansas Bar No. 2001267 Baxter, Jewell & Dobson, P.A. One Information Way, Suite 210 Little Rock, Arkansas 72202 (501) 664-9555 phone (501) 664-9559 fax [email protected]
95
to
be
IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS DIVISION TEXAS.NEW MEXICO NEWSPAPER PARTNERSHIP; NEW ENGLAND NEWSPAPERS, INC.; CALIFORNIA NEWSPAPER PARTNERSHIP, LLC; KEARNS-TRIBUNE, LLC; THE DENVER POST, LLC; NORTHWEST PUBLICATIONS, LLC; 21ST CENTURY MEDIA NEWSPAPER, LLC; LOS ANGELES DAILY NEWS PUBLISHING COMPANY; and TORRANCE HOLDINGS, LLC
PLAINTIFFS
vs.
SPORTS CARDS PLUS,INC. d/b/A ROGERS PHOTO ARCHIVE; PHOTO ARCHIVE PARTNERS, LLC; NEWPORT ARCHIVBS, INC.; LEGENDARY PHOTOS, LLC; FIRST ARKANSAS BANK & TRUST; BANK OF LITTLE ROCK; FIRST COMMUNITY BANK; PROVIDENCE BANK, LLC; JOHN M. ROGERS; ANGELICA ROGERS; JOHN L. CONNER, JR.; DOUG ALLEN; AMY ALLEN; GEORGE DEMOS; ROBERT C. FAILING, JR.; WILIAM M. HOGAN; LEO BAUBY; and JOHN DOES 1.5
MICHAEL MCAFEE
DEFENDANTS RECEIVER
PLAINTIFFS' COMPLAINT COME NOW the Plaintiffs, Texas-New Mexico Newspapers Partnership; New England Newspapers, Inc.; California Newspaper Partnership, LLC; Kearns-Tribune, LLC; The Denver Post,
LLC; Northwest Publications, LLC;21'r Century Media Newspaper,LLC; Los Angeles Daily News Publishing Company; and Torrance Holdings, LLC; by and through their attorneys, Baxter, Jewell & Dobson, P.4., and for their Complaint against Defendants Sports Cards Plus, Inc. d/b/a Rogers Photo
Archive; Photo Archive Partners, LLC; Newport Archives, Inc.; Legendary Photos, LLC; First
Arkansas Bank and Trust; Bank of Little Rock; First Community Bank; Providence Bank, LLC; John
M. Rogers; Angelica Rogers; John L. Conner, Jr.; Doug Allen; Amy Allen; George Demos; Robert C.
Failing, Jr.; William M. Hogan; Leo Bauby; certain "John Does 1-5" Defendants (collectively, hereinafter, all separate Defendants referred to as "Defendants"), and Receiver, Michael McAfee, respectfully state as follows:
PARTIES
l.
Plaintiff Texas-New Mexico Newspapers Partnership
is a
general partnership
organized and existing under the laws of the State of Delaware with its principal place of business
located at 500 W. Overland Drive, Suite 150, El Paso, Texas. Texas-New Mexico Newspapers Partnership does business as the El Paso Times newspaper ("El Paso Times").
2.
Plaintiff New England Newspapers, Inc. is a company organized and existing under
the laws of the State of Delaware with its principal place of business located at 75 S. Church Street,
Pittsfield, Massachusetts. New England Newspapers, Inc. does business as the Berkshire Eagle newspaper ("Berkshire Eagle").
3.
Plaintiff California Newspaper Partnership is a partnership organized and existing
under the laws of the State of Delaware with its principal place of business located at 4 North Second Street, San Jose, California. California Newspaper Partnership,LLC, does business as the Contra Costa
Times newspaper ("Contra Costa Times"), the San Gabriel Valley Tribune newspaper ("San Gabriel
Valley Tribune"), the Whittier Daily News newspaper ("Whittier"), the Inland Valley Daily Bulletin newspaper ("Inland Valley Daily Bulletin"), the Redlands Daily Facts newspaper ("Redland Daily
Facts"); Oakland Tribune newspaper ("Oakland Tribune"), the San Jose Mercury News newspaper ("San Jose Mercury News"), the Hayward Daily Review newspaper ("Hayward Daily Review"), the
Tri-Valley Herald newspaper ("Tri-Valley Herald"), the East County Times newspaper ("East County Times"), the Alameda Times Star newspaper ("Alameda Times Star"), and The Argus newspaper ("The Argus"). 2
4.
Plaintiff Kearns-Tribune, LLC, is a limited liability company organized and existing
under the laws of the State of Delaware with its principal place of business located at 90 S. 400 West,
Suite 700, Salt Lake City, Utah. Kearns-Tribune, LLC does business as the Salt Lake Tribune newspaper ("Salt Lake Tribune").
5.
Plaintiff The Denver Post, LLC, is a limited liability company organized and existing
under the laws of the State of Delaware with its principal place of business located at
l0l
W. Colfax
Avenue, Denver, Colorado. The Denver Post, LLC does business as The Denver Post newspaper ("The Denver Post").
6.
Plaintiff Northwest Publications, LLC, is a limited liability company organized and
existing under the laws of the State of Delaware with its principal place of business located at 345 Cedar Street, St. Paul, Minnesota. Northwest Publications, LLC does business as the St. Paul Pioneer Press newspaper 7
.
("St. Paul Pioneer Press").
Plaintiff 2l't Century Media Newspaper ,LLC, is a limited liability company organized
and existing under the laws of the State of Delaware with its principal place of business located at 448
Lincoln Highway, Fairless Hill, Pennsylvania. 2l't Century Media Newspaper , LLC does business
as
the New Haven Register newspaper ("New Haven Register").
8.
Plaintiff Los Angeles Daily News Publishing Company is a company organized and
existing under the laws of the State of Delaware with its principal place of business located at21860 Burbank Boulevard, Suite 200, Woodland Hills, California. The Los Angeles Daily News Publishing Company does business as the Los Angeles Daily News ne,wspaper
9.
("LA Daily News").
Plaintiff Torrance Holdings, LLC, is a limited liability company organized and existing
underthe laws of the State of Delaware with its principal place ofbusiness locatedat21250 Hawthorne Boulevard, Suite 170, Torrance, California. Torrance Holdings, LLC does business newspaper ("Daily Br eeze").
J-
as the
Daily Breeze
10.
Upon information and belief, Defendant Sports Cards Plus, Inc. d/b/a Rogers Photo
Archive ("RPA") is a corporation organized and existing under the laws of the State of Arkansas, with its formerprincipal place ofbusiness locatedat250l North Poplar Street, North Little Rock, Arkansas.
11.
Upon information andbelief, Defendant Photo Archive Partners, LLC ("PAP") is a
limited liability company organized and existing under the laws of the State of Texas.
12.
Upon information and beliet Defendant Newport Archives, Inc. ("Newport") is an
Arkansas corporation, with its principal place of business located, upon information and belief,
Mclain
at230l
Street, Newport, Arkansas.
13.
Upon information and belief, Defendant Legendary Photos, LLC ("Legendary
Photos") is a limited liability company organized and existing under the laws of the State of Illinois.
14.
Upon information and belief, Defendant First Arkansas Bank & Trust ("FABT") is a
banking institution organized and existing under the laws of the State of Arkansas.
15.
Upon information and belief, Defendant Bank of Little Rock ("BoLR") is a banking
institution organized and existing under the laws of the State of Arkansas.
16.
Upon information and belief, Defendant First Community Bank ("FCB") is a banking
institution organized and existing under the laws of the State of Arkansas.
17.
Upon information and belief, Defendant Providence Bank, LLC ("Providence") is a
banking institution located at 630 E. 162"d Street, South Holland, Illinois.
18.
Upon information and belief, Defendant John M. Rogers is an individual resident of
the State of Arkansas.
19.
Upon information and belief, Defendant Angelica Rogers is an individual resident of
the State of Arkansas.
20.
Upon information and beliel Defendant John L. Conner, Jr. ("Conner") is an individual
resident of the State of Arkansas.
4
21.
Upon information and belief, Defendant Doug Allen is an individual resident of the
State of Illinois.
22. State of
Upon information and belief, Defendant Amy Allen is an individual resident of the
lllinois.
23.
Upon information and belief, Defendant George Demos ("Demos") is an individual
resident of the State of Wisconsin.
24.
Upon information and belief, Defendant Robert C. Failing, Jr. ("Failing") is
an
individual resident of the State of New York.
25.
Upon information and belief, Defendant William M. Hogan ("Hogan") is an individual
resident of the State of Arkansas.
26. 27
.
John Does Nos. 1-5 ("John Does") are individuals, yet to be identified. Upon information and belief, Defendant Leo Bauby ("Bauby") is an individual resident
of the State of lllinois.
28.
Michael McAfee ("McAfee") is the Receiver appointed by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the Complaint filed by FABT (the "FABT Complaint") in the Circuit Court of Pulaski County, Arkansas, Second Division, Case No. 60CV-144341 (the
"FABT Action"), on January 5,2075. The "Borrower Collateral" consists of all of personal
property of defendants Sports Card Plus, Inc., Planet Giant, LLC and Digital Stock Planet, LLC, in the
FABT Action, including but not limited to their accounts, contract rights, inventory, machinery, equipment, furniture, photographic images, memorabilia, documents, general intangibles, and books
and records, as more particularly defined in the Complaint and the exhibits thereto. The "PAP Collateral" consists of all of the personal property of Photo Archive Partners, LLC, including but not
limited to its accounts, contract rights, inventory, machinery, equipment, furniture, photographic images, memorabilia, documents, general intangibles, and books and records, as more particularly
defined in the Complaint and the exhibits thereto. 5
JURISDICTION AND VENUE
29. 3
0.
3l.
The Plaintiffs incorporate Paragraphs
l--t\, supra, into this Paragraph.
This Court has subject matter jurisdiction pursuant to Ark. Code Ann. $ I 6- 1 3 -20 I . The Court has personal jurisdiction over the parties, and venue is proper in Pulaski
Countypursuant to Ark. Code Ann. $ 16-55-213and $16-60-104.
BACKGROUND FACTS
32.
Plaintiffs incorporate Paragraphs 1-31, supra, into this Paragraph.
33.
The Plaintiffs are subsidiaries of MediaNews Group,Inc. dlbla Digital First Media,
("MediaNews"), a company organized and existing under the laws of the State of Delaware and Gannett Company, Inc. ("Gannett") a company organized and existing under the laws of the State
of
Delaware. MediaNews and Gannett are media companies that include metropolitan, rural, regional and
community newspapers in the United States. MediaNews and Gannett o\ryn a large number of original photographs and original negatives associated with the Plaintiffs' publications dating back as far as the
mid-1800s. The Plaintiffs became interested
in digitizing the photographs and negatives of their
publications in order to improve their ability to use and reference the materials.
34.
The Plaintifß' photographic and negative archives are also referred to as the Digital
First Photographic Archive and the Digital First Media Collection (collectively, the "MediaNews Archive") and include photographs, photo negatives, transparencies, slides, contact sheets, collectable items (including, but not limited to maps, postcards, handbills, tickets or posters), "clip files" (i.e.,
physical files which contain historical information including published news articles, pamphlets, leaflets, and other unpublished documents, some of which date as far back
as
the 1800's), and newspaper
archives, whether in print, digital form, or otherwise.
35.
Seven Plaintiff ne\ryspapers entered into separate agreements
with RPA for
the
digitization of those ne\4/spapers' archives, which make up a portion of the MediaNews Archive.
6
Thirteen Plaintiff newspapers did not execute agreements with RPA; however, RPA took possession of those newspapers' archives, and those archives make up a portion of the MediaNews Archive.
SEVEN PLAINTIFF NEWSPAPERS THAT ENTER.ED INTO AGREEMENTS WITH RPA
A.
El Paso Times Agreement with RPA
36.
The Plaintiffs incorporate Paragraphs
37
.
1-35, supra, into this Paragraph.
On or about January 8,2014, the El Paso Times and Defendant RPA executed the Photo
Archive Acquisition and Digital Library Services Agreement (the "El Paso Times Agreement"). A copy of the El Paso Times Agreement, including the Exhibits, is attached as Exhibit Paso Times Agreement, RPA was responsible for the
l.
Under the El
digitization of certain photographs and negatives
identified in Exhibit A of the Agreement (the "El Paso Times Archived Materials").
38.
The purpose of the Agreement was the creation of a digitized library of the El Paso
Times Archived Materials for the El Paso Times' reference and use (the "El Paso Times Digital Library"). RPA was responsible for the digitization of the El Paso Times Archived Materials and the creation ofthe El Paso Times Digital Library in North Little Rock, Arkansas at RPA's place ofbusiness, consistent with the Specif,rcations set forth in Exhibit B of the El Paso Times Agreement.
39.
A material term of the El
Paso Times Agreement was that the
El Paso Times would
have continued use of its El Paso Times Archived Materials that were needed for editorial purposes, pursuant to Section 2.4.More specifically, the El Paso Times Agreement states that, "prior to delivery
of the entire Digital Library, or during the storage, creation or conversion of the Archived Materials," the El Paso Times retained the right to request from RPA a digital image of any item contained in the
El Paso Times Archived Materials, and RPA was obligated to provide the item requested no later than 24 hours after receiving the request.
40.
According to Section 3.1 of the El Paso Times Agreement, upon completion "of the
Services provided by RPA
to El Paso Times, subject to the terms and conditions set forth in this 7
Agreement, El Paso Times shall" convey title to the El Paso Times Archived Material to RPA. The
"Services" have not been completed. Therefore, title to the El Paso Times Archived Materials remains
in the El Paso Times. The term "Services" is specifically defined under Section 1.6 of the El
Paso
Times Agreement as follows:
"Services" means, collectively, the retrieval and delivery of the
Archived Materials and the creation and delivery
of
the Deliverables, and all other materials required to be delivered under this Agreement, in accordance with the terms of this Agreement, and any additional services mutually agreed upon by the Parties associated therewith.
41.
The El Paso Times Archived Materials as defined under Exhibit A of the El Paso Times
Agreement, included:
a.
The El Paso Times vintage photograph and negative archive; and
b.
The Herald Post Archived Materials which consist of the photograph archive from
the Herald Post newspaper and which is owned by the University of Texas at El Paso.
42.
The Project Schedule, as defined under Exhibit C of the El Paso Times Agreement,
required RPA to deliver the digital library of the El Paso Times Digital Library as follows:
a.
The first one-third
(l/3) of the digital library was to be delivered to the El
Paso
Times no later than twelve (12) months following the date the El Paso Times Archived Materials arrived at RPA's offices in North Little Rock, Arkansas;
b.
The second one-third (l/3) of the digital library was to be delivered to the El Paso
Times no later than eighteen (18) months following the date the El Paso Times Archived Materials arrived at RPA's offices in North Little Rock, Arkansas; and
c.
The final one-third (l/3) of the digital library was to be delivered to the El Paso
Times no later than twelve (12) months following the date the El Paso Times Archived Materials arrived at RPA's ofhces in North Little Rock, Arkansas.
8
43. a
Pursuant to Section 4 of the El Paso Times Agreement, the El Paso Times granted RPA
right and license to reproduce images copyrighted by the El Paso Times and belonging to the El Paso
Times Archived Materials. RPA was required to pay the El Paso Times fifty percent(s}%) of all profits
of net sales from any project in which the copyrighted items covered by the El Paso Times Agreement are used.
44.
Further, the
El
Paso Times Agreement obligated RPA
to "develop, market,
and
maintain" a website for the El Paso Times for hosting, editorial licensing, and selling commercial products for the El Paso Times Archived Materials.
45.
According to Section 7 .2 of the El Paso Times Agreement, RPA represented, warranted
and covenanted to the El Paso Times that its personnel had the proper skill, training and background necessary to accomplish their assigned tasks, and all Services to be rendered under the El Paso Times
Agreement would be performed in a competent, professional, and workmanlike manner by fully qualified personnel.
46.
Section 9.4 of the El Paso Times Agreement gave either party the right to terminate the
El Paso Times Agreement under the following circumstances, among others:
Termination
for
lnsolvenc]¡. Either Party may immediately
terminate this Agreement upon written notice to the other Party in the event that the other Party (a) admits in writing its inability to pay its debts as they become due, fails to satisfy any judgment against it, or otherwise ceases operations of its business in the ordinary course, (b) is adjudicated bankrupt or becomes insolvent, (c) winds up or liquidates its business voluntarily or otherwise, (d) applies for, consents to or suffers the appointment of, or the taking of possession of by, u receiver, custodian, assignee, trustee, liquidator or similar fiduciary of itself or of all or any substantial
portion of -its assets . . . .
47.
Section 9.5 of the El Paso Times Agreement required RPA to return the El Paso Times
Archived Materials to the El Paso Times within ten (10) days after termination of the Agreement.
9
48.
On or about January 14, 2014, RPA took possession of the El Paso Times Archived
Materials. Additionally, RPA took possession of slides, glass negatives, and "clip frles," physical files
which contain historical information including published news articles, pamphlets, leaflets and other unique unpublished documents belonging to the El Paso Times.
49.
On or about January 17,2014, RPA delivered the El Paso Times Archived Materials
to RPA's places of business, which were locatedat240l N. Poplar Street, North Little Rock, Arkansas,
2501 N. Poplar Street, North Little Rock, Arkansas, and I 15 E. 24rh Sffeet, North Little Rock, Arkansas.
50.
Following delivery of the El Paso Times Archived Materials, RPA has failed and refused,
and continues to fail and refuse, to create a digitized library of the El Paso Times Archived Materials as
it
was required to do under the El Paso Times Agreement in the form required by the El Paso Times Agreement. Upon information and belief, the only photographs and/or negatives from the El Paso Times
Archived Materials that RPA has digitized, or "scanned," are the digital images needed for editorial purposes and requested by the El Paso Times pursuant to Section 2.4 of the El Paso Times Agreement.
51.
RPA failed and refused, and continues to fail and refuse, to deliver to the El Paso Times
the digitized images in the form required by RPA under the El Paso Times Agreement.
52.
RPA failed and refused, and continues to fail and refuse, to develop, market, and
maintain a website for the El Paso Times for hosting, editorial licensing, and selling commercial products for the El Paso Times Archived Materials.
53.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things, that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
with the exhibits attached thereto, revealed among other things, RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
l0
54.
On November 17,2014, FABT filed a Motion for the Immediate Appointment of a
Receiver ("FABT Motion") over the collateral of RPA and the other related borrowers; FABT sought the appointment of McAfee as Receiver in the FABT Action.
55.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
56.
By letter dated May 15, 2015, the El Paso Times terminated the El
Paso Times
Agreement under Section 9.4 and demanded that RPA return the El Paso Times Archived Materials.
A copy of the May 15, 2015 Letter of Termination is attached as Exhibit 2. Under the terms of the El Paso Times Agreement, RPA was required to deliver the El Paso Times Archived Materials to the El Paso Times on or before May 26,2015.
57.
At the time of the El Paso Times' termination of the El Paso Times Agreement, RPA
did not "own" or otherwise hold title to the Archived Materials since the Services contemplated by the Agreement were not completed or ever performed.
58.
Upon information and belief, the El Paso Times Archived Materials are in the
possession of McAfee, the Receiver appointed in the FABT Action, at 2401 N. Poplar Street and
1
15
E.24th Sheet, North Little Rock, Arkansas. The El Paso Times Archived Materials and are not subject
to the receivership in that action. McAfee unlawfully detains the El Paso Times Archived Materials.
59.
By letter dated May 15,2015, the El Paso Times demanded that McAfee retum the El
Paso Times Archived Materials to the
El Paso Times. A copy of the May 15, 2015 letter is attached as
Exhibit 2.
60.
Upon information and belief, RPA, John M. Rogers, and/or Angelica
Rogers
wrongfully transferred and delivered some or all of the El Paso Times Archived Materials to third parties who
will be named as Defendants herein
once they are
referred to John Does.
1l
fully identified. Those persons
are
61.
Upon information and belief, RPA, John M. Rogers and/or Angelica Rogers, and John
Does, sold some of the El Paso Times Archived Materials on the online auction website, eBay.com.
Upon information and belief, the El Paso Times Archived Materials being offered for sale had not yet been digitized and/or
if
the photographs had been digitized then the digitized images were never
provided to the El Paso Times. The digital images for the El Paso Times Archive being offered for sale on eBay.com by RPA, John M. Rogers and/or Angelica Rogers, and John Does were never provided
to the El Paso Times as of the filing of this action. Even more concerning, if the photographs sold on eBay.com did not have negative film from which the photos were printed, thereby making the photos
one-of-a-kind items, the El Paso Times Archive has been ineparably harmed. If the photographs being offered for sale on eBay.com had been digitized, the El Paso Times was not ever notified or given an opportunity to inspect the digitized image to ensure the quality of the Services, as set forth in Exhibit B to the Agreement, including but not limited to: 1) digital scans of the photos and negatives saved at maximum quality and minimum size; 2) physical cleaning of all photographic prints prior to scanning including removal of editors' marks and writing or notations on the prints; and 3) the inclusion of all photo data, or metadata, with the digital scans.
62.
Upon information and belief, RPA, John M. Rogers and/or Angelica Rogers and John
Does, are selling images copyrighted by the El Paso Times and belonging to the El Paso Times
Archived Materials on online websites, including but not limited to, RetrolmagesArchive.com. RPA failed and refused, and continues to fail and refuse, to pay the El Paso Times fifty percent (50%) of all
profits of net sales from the sales of products related to the images copyrighted by the El Paso Times and belonging to the El Paso Times Archived Materials.
B.
Berkshire Eagle Agreement with RPA
63.
On or about November 21,2013, the Berkshire Eagle and Defendant RPA executed
the Photo Archive Acquisition and Digital Library Services Agreement (the "Berkshire
Eagle
Agreement"). A copy of the Agreement, including the Exhibits, is attached as Exhibit 3. Under the t2
Agreement, RPA Ìù/as responsible for the digitization of certain photographs and negatives identified
in Exhibit A of the Berkshire Eagle Agreement (the "Berkshire Eagle Archived Materials").
64.
The purpose of the Berkshire Eagle Agreement was the creation of a digitized library
of the Berkshire Eagle Archived Materials for the Berkshire Eagle's reference and use (the "Berkshire Eagle Digital Library"). RPA was responsible for the digitization of the Berkshire Eagle Archived Materials and the creation of the Berkshire Eagle Digital Library in North Little Rock, Arkansas at RPA's place ofbusiness, consistent with the Specifications set forth in Exhibit B of the Berkshire Eagle Agreement.
65.
A material term of the Berkshire Eagle Agreement was that the Berkshire Eagle would
have continued use of the Berkshire Eagle Archived Materials that were needed for editorial purposes, pursuant to Section 2.4.More specifically, the Berkshire Eagle Agreement states that, "prior to delivery
of the entire Digital L1brary, or during the storage, creation or conversion of the Archived Materials," the Berkshire Eagle retained the right to request from RPA a digital image of any item contained in the
Berkshire Eagle Archived Materials, and RPA was obligated to provide the item requested no later than24 hours after receiving the request.
66.
According to Section 3.1 of the Berkshire Eagle Agreement, upon completion "of the
Services provided by RPA to Berkshire Eagle, subject to the terms and conditions set forth in this Agreement, Berkshire Eagle shall" convey title to the Berkshire Eagle Archived Material to RPA. The
"Services" have not been completed. Therefore, title to the Berkshire Eagle Archived Materials remains in the Berkshire Eagle. The term "Services" is specifically defined under Section 1.6 of the
Berkshire Eagle Agreement as follows:
"Services" means, collectively, the retrieval and delivery of the
Archived Materials and the creation and delivery
of
the Deliverables, and all other materials required to be delivered under this Agreement, in accordance with the terms of this Agreement, and any additional services mutually agreed upon by the Parties associated therewith.
l3
67.
The Berkshire Eagle Archived Materials as defined under Exhibit A of the Berkshire
Eagle Agreement included:
68.
a.
The Berkshire Eagle vintage photograph and negative archive; and
b.
The North Adams Transcript photograph archive.
The Project Schedule, as defined under Exhibit C of the Berkshire Eagle Agreement,
required RPA to deliver the digital library of the Berkshire Eagle Digital Library as follows:
a.
The frrst one-third (1/3) of the digital library was to be delivered to the Berkshire
Eagle no later than twelve (12) months following the date the Berkshire Eagle Archived Materials arrived at RPA's offrces in North Little Rock, Arkansas;
b.
The second one-third (1/3) of the digital library was to be delivered to the Berkshire
Eagle Times no later than eighteen (18) months following the date the Berkshire Eagle Archived Materials arrived at RPA's offices in North Little Rock, Arkansas; and
c.
The final one-third
(l/3) of the digital library was to be delivered to the Berkshire
Eagle no later than twelve (12) months following the date the Berkshire Eagle Archived Materials arrived at RPA's offices in North Little Rock, Arkansas.
69.
Pursuant to Section 4 of the Berkshire Eagle Agreement, the Berkshire Eagle granted
RPA a right and license to reproduce images copyrighted by the Berkshire Eagle and belonging to the Berkshire Eagle Archived Material. RPA was required to pay the Berkshire Eagle fifty percent (50%)
of all profits of net sales from any project in which the copyrighted items covered by the Berkshire Eagle Agreement are used.
70.
Further, the Berkshire Eagle Agreement obligated RPA to "develop, market, and
maintain" a website for the Berkshire Eagle for hosting, editorial licensing, and selling commercial products for the Berkshire Eagle Archived Material.
71.
According
to
Section 7.2
of the Berkshire Eagle Agreement, RPA represented,
warranted and covenanted to the Berkshire Eagle that its personnel had the proper skill, training and
t4
background necessary to accomplish their assigned tasks, and all Services to be rendered under the
Berkshire Eagle Agreement would be performed in a competent, professional and workmanlike manner by fully qualified personnel
72.
Section 9.4 of the Berkshire Eagle Agreement gave either party the right to terminate
the Berkshire Eagle Agreement under the following circumstances, among others:
for
lnsolvency. Either Party may immediately terminate this Agreement upon written notice to the other Parly in the event that the other Party (a) admits in writing its inability to pay its debts as they become due, fails to satisff any judgment against it, or otherwise ceases operations of its business in the Termination
ordinary course, (b) is adjudicated bankrupt or becomes insolvent, (c) winds up or liquidates its business voluntarily or otherwise, (d) applies for, consents to or suffers the appointment of, or the taking of possession of by, u receiver, custodian, assignee, trustee, liquidator or similar fiduciary of itself or of all or any substantial portion of -its assets . . . .
73.
Section 9.5 of the Berkshire Eagle Agreement required RPA to return the Berkshire
Eagle Archived Materials to the Berkshire Eagle within ten (10) days after termination of the Berkshire Eagle Agreement.
74.
On or about April 25, 2014, John M. Rogers and Mac Hogan on behalf of PAP, and
Amy Allen and Doug Allen on behalf of Legendary Photos, LLC entered into an agreement in which PAP would provide to Legendary Photos, LLC, under consignment for the sale of various archives, including the Berkshire Eagle Archived Materials in exchange for
75.
$l million
($1,000,000.00).
On or about July 2, 2014, RPA took possession of the Berkshire Eagle Archived
Materials.
76.
The Plaintiffs do not know where RPA transported or delivered the Berkshire Eagle
Archived Materials.
77.
After taking possession of the Berkshire Eagle Archived Materials, RPA failed and
refused, and continues to fail and refuse, to create a digitized library of the Berkshire Eagle Archived
l5
Materials as it was required to do under the Berkshire Eagle Agreement in the form required by the Agreement.
78.
RPA failed and refused, and continues to fail and refuse, to deliver to the Berkshire Eagle
the digitized images in the form required by RPA under the Berkshire Eagle Agreement.
79.
RPA failed and refused, and continues to fail and refuse, to develop, market, and maintain
a website for the Berkshire Eagle for hosting, editorial licensing, and selling commercial products
for
the Berkshire Eagle Archived Materials.
80.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT in the FABT Action, alleged among other things,
that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
with the exhibits attached thereto, revealed among other things, RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
81.
On November 17,2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
82.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
83.
By letter dated May 15, 2015, the Berkshire Eagle terminated the Berkshire Eagle
Agreement under Section 9.4 and demanded that RPA return the Berkshire Eagle Archived Materials.
A copy of the May 15,2015 Letter of Termination is attached as Exhibit 2. Under the terms of
the
Berkshire Eagle Agreement, RPA was required to deliver the Berkshire Eagle Archived Materials to the Berkshire Eagle on or before May 26,2015.
84.
At the time of the Berkshire Eagle's termination of the Berkshire Eagle Agreement,
RPA did not "own" or otherwise hold title to the Berkshire Eagle Archived Materials since the Services contemplated by the Berkshire Eagle Agreement were not completed or ever performed.
t6
85.
Upon information and beliet the Berkshire Eagle Archived Materials are in the
possession of Doug Allen, Amy
Allen, and/or Legendary Photos, LLC, at 17542 Chicago Avenue,
Lansing, Illinois or at 23120 S. Hidden Lake Trail, Crete, Illinois. The Berkshire Eagle Archived Materials are not subject to the receivership in the FABT action. Doug Allen, Amy Allen, and/or Legendary Photos, LLC unlawfully detain the Berkshire Eagle Archived Materials. By letter dated
May 15, 2015, the Berkshire Eagle demanded that they return the Berkshire Eagle Archived Materials.
A copy of the May 15,2015 letter is attached
86.
as
Exhibit
2.
Upon information and beliet Doug Allen, Amy Allen, and/or Legendary Photos, LLC,
acquired possession of the Berkshire Eagle Archived Materials without the knowledge, permission or
authorization of the Berkshire Eagle.
87.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen, and/or Legendary Photos, LLC wrongfully transferred and delivered some or all of the Berkshire Eagle Archived Materials to third parties who will be named as Defendants herein once they are
fully identified. Those persons are referred to John Does.
88.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen, andlor Legendary Photos, LLC and John Does, sold some of the Berkshire Eagle Archived Materials on the online auction website, eBay.com. Upon information and belief, the digital images
from the Berkshire Eagle Archived Materials being offered for sale on eBay.com by RPA, John M. Rogers, Angelica Rogers, Doug Allen, Amy Allen, and/or Legendary Photos,
LLC and John Does
were never provided to the Berkshire Eagle as of the filing of this action. Even more concerning, if the photographs sold on eBay.com did not have negative f,rlm from which the photos were printed, thereby
making the photos one-of-a-kind items, the Berkshire Eagle Archive has been irreparably harmed.
If
the photographs being offered for sale on eBay.com had been digitized, the Berkshire Eagle was not ever notified or given an opportunity to inspect the digitized image to ensure the quality ofthe Services,
l7
as set forth in Exhibit B to the Agreement, including but not limited
to: 1) digital scans of the photos
and negatives saved at maximum quality and minimum size;2) physical cleaning of all photographic
prints prior to scanning including removal of editors' marks and writing or notations on the prints; and 3) the inclusion of all photo data, or metadata, with the digital scans.
89.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen, Amy
Allen, and/or Legendary Photos, LLC and John Does, are selling images copyrighted by the Berkshire Eagle and belonging to the Berkshire Eagle Archived Materials on online websites, including but not
limited to, RetrolmagesArchive.com. RPA failed and refused, and continues to fail and refuse, to pay the Berkshire Eagle
fifty percent (50%) of all profits of net
sales from the sales of products related to
the images copyrighted by the Berkshire Eagle and belonging to the Berkshire Eagle Archived Materials.
C. Contra
90.
Costa Times Agreement with RPA
On or about November 21,2013, the Contra Costa Times and Defendant RPA executed
the Photo Archive Acquisition and Digital Library Services Agreement (the "Contra Costa Times Agreement"). A copy of the Contra Costa Times Agreement, including the Exhibits, is attached as
Exhibit 4. Under the Contra Costa Times Agreement, RPA was responsible for the digitization of certain photographs and negatives identified in Exhibit A of the Contra Costa Times Agreement (the "Contra Costa Times Archived Materials").
91.
The purpose of the Contra Costa Times Agreement was the creation of a digitized
library of the Contra Costa Times Archived Materials for the Contra Costa Times' reference and use (the "Contra Costa Times Digital Library"). RPA was responsible for the digitization of the Contra Costa Times Archived Materials and the creation of the Contra Costa Times Digital Library in North
Little Rock, Arkansas at RPA's place ofbusiness, consistent with the Specifications set forth in Exhibit B of the Agreement.
l8
92. A material term of the Agreement
was that the Contra Costa Times would have
continued use of its Archived Materials that were needed for editorial purposes, pursuant to Section 2.4. More specifically, the Contra Costa Times Agreement states that, "prior to delivery of the entire
Digital L1brary, or during the storage, creation or conversion of the Contra Costa Times Archived Materials," the Contra Costa Times retained the right to request from RPA a digital image of any item contained in the Contra Costa Times Archived Materials, and RPA was obligated to provide the item requested no later than24 hours after receiving the request.
93.
According to Section 3.1 of the Contra Costa Times Agreement, upon completion
"of
the Services provided by RPA to Contra Costa Times, subject to the terms and conditions set forth in
this Agreement, Contra Costa Times shall" convey title to the Archived Material to RPA. The "Services" have not been completed. Therefore, title to the Archived Materials remains in the Contra Costa Times. The term "Services" is specihcally defined under Section 1.6 of the Agreement as
follows: "Services" means, collectively, the retrieval and delivery of the
Archived Materials and the creation and delivery
of
the Deliverables, and all other materials required to be delivered under this Agreement, in accordance with the terms of this Agreement, and any additional services mutually agreed upon by the Parties associated therewith.
94.
The Contra Costa Times Archived Materials as defined under Exhibit A of the Contra
Costa Times Agreement included:
a.
95.
The Contra Costa Times vintage photograph and negative archive.
The Project Schedule, as defined under Exhibit C of the Contra Costa Times
Agreement, required RPA to deliver the digital library of the Contra Costa Times Digital Library as
follows:
t9
a.
The first one-third (1/3) of the digital library was to be delivered to the Contra
Costa Times no later than twelve (12) months following the date the Contra Costa Times Archived
Materials arrived at RPA's offices in North Little Rock, Arkansas;
b.
The second one-third
(l/3) of the digital library was to be delivered to the Contra
Costa Times no later than eighteen (18) months following the date the Contra Costa Times Archived
Materials arrived at RPA's offices in North Little Rock, Arkansas; and
c.
The final one-third (l/3) of the digital library was to be delivered to the Contra
Costa Times no later than twelve (12) months following the date the Contra Costa Times Archived
Materials arrived at RPA's offices in North Little Rock, Arkansas.
96.
Pursuant to Section 4 of the Contra Costa Times Agreement, the Contra Costa Times
granted RPA a right and license to reproduce images copyrighted by the Contra Costa Times and belonging to the Contra Costa Times Archived Materials. RPA was required to pay the Contra Costa Times fifty percent (50%) of all profits of net sales from any project in which the copyrighted items covered by the Contra Costa Times Agteement are used.
97.
Further, the Contra Costa Times Agreement obligated RPA to "develop, market, and
maintain" a website for the Contra Costa Times for hosting, editorial licensing, and selling commercial products for the Contra Costa Times."
98.
According to Section 7.2 of the Contra Costa Times Agreement, RPA represented,
warranted and covenanted to the Contra Costa Times that its personnel had the proper skill, training and background necessary to accomplish their assigned tasks, and all Services to be rendered under the
Contra Costa Times Agreement would be performed in a competent, professional and workmanlike manner by fully qualified personnel.
99.
Section 9.4 of the Contra Costa Times Agreement gave either party the right to
terminate the Contra Costa Times Agreement under the following circumstances, among others:
20
Termination
for
Insolvency. Either Party may immediately
terminate this Agreement upon written notice to the other Party in the event that the other Party (a) admits in writing its inability to pay its debts as they become due, fails to satisfy any judgment against it, or otherwise ceases operations of its business in the ordinary course, (b) is adjudicated bankrupt or becomes insolvent, (c) winds up or liquidates its business voluntarily or otherwise, (d) applies for, consents to or suffers the appointment of, or the taking of possession of by, u receiver, custodian, assignee, trustee, liquidator or similar fiduciary of itself or of all or any substantial portion of its assets . . . .
-
100.
Section 9.5 of the Contra Costa Times Agreement required RPA to return the Contra
Costa Times Archived Materials to the Contra Costa Times within ten (10) days after termination
of
the Agreement.
101. On or about December 12,2013,
RPA took possession of the Contra Costa Times
Archived Materials.
102. On or about December 15, 2013, RPA delivered the Contra Costa Times Archived Materials to RPA's places of business, which were locatedat240l N. Poplar Street, North Little Rock,
Arkansas,250l N. Poplar Street, North Little Rock, Arkansas, and 115 E.24th Sfieet, North Little Rock, Arkansas.
103. Following delivery of the Contra Costa Times Archived
Materials, RPA has failed and
refused, and continues to fail and refuse, to create a digitized library of the Contra Costa Times Archived
Materials as it was required to do under the Contra Costa Times Agreement in the form required by the
Contra Costa Times Agreement. Upon information and belief, the only photographs and/or negatives
from the Contra Costa Times Archived Materials that RPA has digitized, or "scanned," are the digital images needed for editorial purposes and requested by the Contra Costa Times pursuant to Section 2.4
of
the Contra Costa Times Agreement.
104.
RPA failed and refused, and continues to fail and refuse, to deliver to the Contra Costa
Times the digitized images in the form required by RPA under the Contra Costa Times Agreement.
2l
105.
RPA failed and refused, and continues to fail and refuse, to develop, market, and maintain
a website for the Contra Costa Times for hosting, editorial licensing, and selling commercial products
for the Contra Costa Times Archived Materials.
106.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things
that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together with the exhibits attached thereto, revealed among other things, RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
107.
On November 17,2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
108. On January 5,2015, McAfee was appointed
Receiver by the Court for the "Borro'ù/er
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
109. By letter dated May 15,2015, the Contra Costa Times terminated the Contra Costa Times Agreement under Section 9.4 and demanded that RPA return the Contra Costa Times Archived
Materials. A copy of the May 15, 2015 Letter of Termination is attached as Exhibit 2. Under the terms of the Contra Costa Times Agreement, RPA was required to deliver the Contra Costa Times Archived Materials to the Contra Costa Times on or before May 26,2015.
110. At the time of the Contra Costa Times' termination of the Contra Cost Times Agreement, RPA did not "o\ryn" or otherwise hold title to the Contra Costa Times Archived Materials since the Services contemplated by the Contra Costa Times Agreement were not completed or ever performed. II
l.
Upon information and belief, the Contra Costa Times Archived Materials are in the
possession of McAfee, the Receiver appointed in the FABT Action, at 2401 N. Poplar Street and I E
l5
.24rh Street, North Little Rock, Arkansas. The Contra Costa Times Archived Materials are not subject
22
to the receivership in that action. McAfee unlawfully detains the Contra Costa Times Archived Materials.
ll2.
By letter dated May 15, 2015, the Contra Cost Times demanded that McAfee return
the Contra Costa Times Archived Materials to the Contra Costa Times.
A copy of the May
15, 2015
letter is attached as Exhibit 2.
I13.
Upon information and belief,, RPA, John M. Rogers, and/or Angelica
Rogers
wrongfully transferred and delivered some or all of the Contra Costa Times Archived Materials to third parties who
will be named as Defendants herein
once they are
fully identified. Those persons
are
referred to as John Does.
ll4.
Upon information and belief, RPA, John M. Rogers andlor Angelica Rogers, and the
John Doe Defendants, sold some of the Contra Costa Times Archived Materials on the online auction website, eBay.com. Upon information and belief, many of the Contra Costa Times Archived Materials being offered for sale had not yet been digitized and/or
if the photographs
had been digitized then the
digitized images were never provided to the Contra Costa Times. Upon information and belief, digital images for the Contra Costa Times Archived Materials being offered for sale on eBay.com by RPA,
John M. Rogers and/or Angelica Rogers, and John Does were never provided to the Contra Costa Times as of the filing of this action. Even more concerning, if the photographs sold on eBay.com did not have negative film from which the photos were printed, thereby making the photos one-of-a-kind items, the Contra Costa Times Archive has been irreparably harmed. If the photographs being offered
for sale on eBay.com had been digitized, the Contra Costa Times was not ever notified or given
an
opportunity to inspect the digitized image to ensure the quality of the Services, as set forth in Exhibit B to the Agreement, including but not limited to: 1) digital scans of the photos and negatives saved at maximum quality and minimum size; 2) physical cleaning of all photographic prints prior to scanning
23
including removal of editors'marks and writing or notations on the prints; and 3) the inclusion of all photo data, or metadata, with the digital scans.
115.
The Contra Costa Times has learned that RPA, John M. Rogers and/or Angelica Rogers
and John Does, are selling images copyrighted by the Contra Costa Times and belonging to the Conha Costa Times Archive on online websites, including but not limited to, RetrolmagesArchive.com. RPA
failed and refused, and continues to fail and refuse, to pay the Contra Costa Times fifty percent (50%)
of all profits of net sales from the sales of products related to the images copyrighted by the Contra Costa Times and belonging to the Contra Costa Times Archived Materials.
D. Oakland Tribune Agreement with RPA
I16.
On or about November 21,2013, the Oakland Tribune and Defendant RPA executed
the Photo Archive Acquisition and Digital Library Services Agreement (the "Oakland Tribune Agreement"). A copy of the Oakland Tribune Agreement, including the Exhibits, is attached as Exhibit
5. Under the Oakland Tribune Agreement, RPA was responsible for the digitization of
certain
photographs and negatives identified in Exhibit A of the Agreement (the "Oakland Tribune Archived
Materials").
ll7
.
The purpose of the Agreement was the creation of a digitized library of the Archived
Materials for the Oakland Tribune's reference and use (the "Oakland Tribture Digital Library"). RPA was responsible for the digitization of the Oakland Tribune Archived Materials and the creation of the Oakland Tribune Digital Library in North Little Rock, Arkansas at RPA's place of business, consistent
with the Specifications set forth in Exhibit B of the Oakland Tribune Agreement.
ll8.
A material term of the Oakland Tribune Agreement was that the Oakland Tribune
would have continued use of its Archived Materials that were needed for editorial purposes, pursuant to Section 2.4. More specifically, the Oakland Tribune Agreement states that, "prior to delivery of the entire Digital Library, or during the storage, creation or conversion of the Archived Materials," the Oakland Tribune retained the right to request from RPA a digital image of any item contained in the 24
Oakland Tribune Archived Materials, and RPA was obligated to provide the item requested no later than 24 hours after receiving the request.
119. According
to Section 3.1 of the Oakland Tribune Agreement, upon completion "of the
Services provided by RPA to Oakland Tribune, subject to the terms and conditions set forth in this
Agreement, Oakland Tribune shall" convey title to the Oakland Tribune Archived Material to RPA. The "Services" have not been completed. Therefore, title to the Oakland Tribune Archived Materials remains in the Oakland Tribune. The term "Seryices" is specifically defined under Section 1.6 of the Oakland Tribune Agreement as follows:
"Services" means, collectively, the retrieval and delivery of the
Archived Materials and the creation and delivery
of
the Deliverables, and all other materials required to be delivered under this Agreement, in accordance with the terms of this Agreement, and any additional services mutually agreed upon by the Parties associated therewith.
120. The Archived Materials
as defined under
Exhibit A of the Oakland Tribune Agreement,
included:
a.
l2l.
The Oakland Tribune vintage photograph and negative archive.
The Project Schedule, as defined under Exhibit C of the Oakland Tribune Agreement,
required RPA to deliver the digital library of the Oakland Tribune Digital Library as follows:
a.
The first one-third (1/3) of the digital library was to be delivered to the Oakland
Tribune no later than twelve (12) months following the date the Oakland Tribune Archived Materials arrived at RPA's offices in North Little Rock, Arkansas;
b.
The second one-third (1/3) of the digital library was to be delivered to the Oakland
Tribune no later than eighteen ( l8) months following the date the Oakland Tribune Archived Materials
arrived at RPA's offices in North Little Rock, Arkansas; and
25
c.
The final one-third (1/3) of the digital library was to be delivered to the Oakland
Tribune no later than twelve (12) months following the date the Oakland Tribune Archived Materials arrived at RPA's offices in North Little Rock, Arkansas.
122. Pursuant
to Section 4 of the Oakland Tribune Agreement, the Oakland Tribune granted
RPA a right and license to reproduce images copyrighted by the Oakland Tribune and belonging to the Oakland Tribune Archived Materials. RPA was required to pay the Oakland Tribune fifty percent (50%) of all profits of net sales from any project in which the copyrighted items covered by the Oakland Tribune Agreement are used.
123. Further,
the Oakland Tribune Agreement obligated RPA to "develop, market, and
maintain" a website for the Oakland Tribune for hosting, editorial licensing, and selling commercial products for the Oakland Tribune Archived Materials.
124. According to Section 7.2 of the Oakland Tribune
Agreement, RPA represented,
warranted and covenanted to the Oakland Tribune that its personnel had the proper skill, training and
background necessary to accomplish their assigned tasks, and all Services to be rendered under the Oakland Tribune Agreement would be performed in a competent, professional and workmanlike manner by fully qualified personnel.
125.
Section 9.4 of the Oakland Tribune Agreement gave either party the right to terminate
the Oakland Tribune Agteement under the following circumstances, among others:
for Insolvenc)¡. Either Party may immediately terminate this Agreement upon written notice to the other Party in the event that the other Party (a) admits in writing its inability to pay its debts as they become due, fails to satisfu any judgment against it, or otherwise ceases operations of its business in the ordinary course, (b) is adjudicated bankrupt or becomes insolvent, (c) winds up or liquidates its business voluntarily or otherwise, (d) applies for, consents to or suffers the appointment of, or the taking of possession of by, a receiver, custodian, assignee, trustee, liquidator- or similar fìduciary of itself or of all or any substantial portion ofits assets . . . . Termination
26
126. Section
9.5 of the Oakland Tribune Agreement required RPA to return the Oakland
Tribune Archived Materials to the Oakland Tribune within ten (10) days after termination of the Oakland Tribune Agreement.
127. On or about December 16, 2013, RPA took possession of the Oakland Tribune Archived Materials.
128.
On or about December 19, 2013, RPA delivered the Oakland Tribune Archived
Materials to RPA's places of business, which were locatedat240l N. Poplar Street, North Little Rock,
Arkansas,250l N. Poplar Street, North Little Rock, Arkansas, and 115 E.24th Sfieet, North Little Rock, Arkansas.
129. Following
delivery of the Oakland Tribune Archived Materials, RPA has failed and
refused, and continues to fail and refuse, to create a digitized library of the Oakland Tribune Archived
Materials as it was required to do under the Oakland Tribune Agreement in the form required by the Oakland Tribune Agreement. Upon information and belief, the only photographs and/or negatives from
the Oakland Tribune Archived Materials that RPA has digitized, or "scanned," are the digital images needed for editorial purposes and requested by the Oakland Tribune pursuant
to Section 2.4 of the
Oakland Tribune Agreement.
130.
RPA failed and refused, and continues to fail and refuse, to deliver to the Oakland Tribune
the digitized images in the form required by RPA under the Oakland Tribune Agreement.
131. a website
RPA failed and refused, and continues to fail and refuse, to develop, market, and maintain
for the Oakland Tribune for hosting, editorial licensing, and selling commercial products for
the Oakland Tribune Archived Materials.
132. Upon information
and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14, 2014, F ABT, in the FABT Action alleged among other things that RPA had defaulted on several loans extended by FABT to RPA, among other things. The FABT
27
Complaint, together with the exhibits attached thereto, revealed among other things, RPAs true troubled
financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
133.
On November 17, 2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
134.
On January 5, 2015 , McAfee was appointed Receiver by the Court for the "Borro\ryer
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
135.
By letter dated May 15, 2015, the Oakland Tribune terminated the Oakland Tribune
Agreement under Section 9.4 and demanded that RPA return the Oakland Tribune Archived Materials.
A copy of the May
15, 2015 Letter of Termination is attached as
Exhibit 2. Under the terms of the
Oakland Tribune Agreement, RPA was required to deliver the Oakland Tribune Archived Materials to the Oakland Tribune on or before May 26,2015.
136.
At the time of the Oakland Tribune's termination of the Oakland Tribune Agreement,
RPA did not "own" or otherwise hold title to the Oakland Tribune Archived Materials since the Services contemplated by the Oakland Tribune Agreement were not complete.
I37.
Upon information and belief portions of the Oakland Tribune Archived Materials are
in the possession of McAfee, the Receiver appointed in the FABT Action, at 2401 N. Poplar Street, North Little Rock, Arkansas and 115 E.24th Street, North Little Rock, Arkansas and are not subject to the receivership in that action. McAfee unlawfully detains the Oakland Tribune Archived Materials.
Additionally, some photos and negatives belonging to the Oakland Tribune Archived Materials are in the possession of Conner and Newport,
at230l Mclain
Street, Newport, Arkansas and are not subject
to the receivership in the FABT Action. Conner and Newport unlawfully detain the portions of the Oakland Tribune Archived Materials in their possession. By letter dated May 15,2015, the Oakland
28
Tribune demanded that they return the Oakland Tribune Archived Materials. A copy of the May 15, 2015 letter is attached as Exhibit 2.
138. By letter dated May 15,2015, the Oakland Tribune demanded
that McAfee return the
Oakland Tribune Archived Materials to the Oakland Tribune. A copy of the May 15,2015 letter is attached as
Exhibit
2.
139. Upon information
and belief, Conner and Newport acquired possession of the Oakland
Tribune Archived Materials without the knowledge, permission or authorization of the Oakland Tribune.
140.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Conner, andlor
Newport wrongfully transferred and delivered some or all of the Archived Materials to third parties who will be named as Defendants herein once they are fully identified. Those persons are referred to John Does.
141. Upon information
and belief, RPA, John M. Rogers, Angelica Rogers, Conner, and/or
Newport, and John Does, sold some of the Oakland Tribune Archived Materials on the online auction website, eBay.com. Upon information and belief, many of the Oakland Tribune Archived Materials being offered for sale had not yet been digitized and/or
if the photographs
had been digitized then the
digitized images were never provided to the Oakland Tribune. The digital images for the Oakland Tribune Archived Materials being offered for sale on eBay.com by RPA, John M. Rogers, Angelica Rogers, Conner, and/or Newport, and John Does were never provided to the Oakland Tribune as of the
filing of this action. Even more concerning, if the photographs sold on eBay.com did not have negative film from which the photos were printed, thereby making the photos one-of-a-kind items, the Oakland Tribune photographic archive has been irreparably harmed. If the photographs being offered for sale on eBay.com had been digitized, the Oakland Tribune was not ever notified or given an opportunity to inspect the digitized image to ensure the quality of the Services, as set forth in Exhibit B to the Oakland
29
Tribune Agreement, including but not limited to:
l) digital scans of the photos
and negatives saved at
maximum quality and minimum size; 2) physical cleaning of all photographic prints prior to scanning including removal of editors' marks and writing or notations on the prints; and 3) the inclusion of all photo data, or metadata, with the digital scans.
142.
The Oakland Tribune has leamed that RPA, John M. Rogers, Angelica Rogers, Conner
and Newport, and John Does are selling images copyrighted by the Oakland Tribune and belonging to
the Oakland Tribune Archived Materials on online websites, including but not limited
to,
RetrolmagesArchive.com. RPA failed and refused, and continues to fail and refuse, to pay the Oakland Tribune fifty percent (50%) of all profits of net sales from the sales of products related to the images copyrighted by the Oakland Tribune and belonging to the Oakland Tribune Archived Materials.
143. Upon information and belief, RPA, John M. Rogers and/or Angelica
Rogers, without
the knowledge, permission or authorization of the Oakland Tribune, wrongfully took possession of a
portion of the Oakland Tribune Archive consisting of negatives, from an entity known as Zuma Press ("Zuma Press Negatives"). Zuma Press was to create a digital library for the Oakland Tribune from the Zuma Press Negatives.
144.
RPA, John M. Rogers and Angelica Rogers have no rights intheZuma Press Negatives.
RPA does not now "own," nor has
it
ever "owned" nor otherwise held title to the Zuma Press
Negatives.
145. Upon information
and belief, the Zuma Press Negatives are in the possession of
McAfee, the Receiver appointed in the FABT Action, at 2401 N. Poplar Street, North Little Rock, Arkansas and
ll5
E.24th Street, North Little Rock, Arkansas. The Zuma Press Negatives are not
subject to the Receivership in the FABT Action. McAfee unlawfully detains theZuma Press Negatives.
E. San Jose Mercury News Agreement with RPA
146.
On or about November 21,2013, the San Jose Mercury News and Defendant RPA
executed the Photo Archive Acquisition and Digital Library Services Agreement (the "San Jose 30
Mercury News Agreement").
A
copy of the San Jose Mercury News Agreement, including the
Exhibits, is attached as Exhibit 6. Under the San Jose Mercury News Agreement, RPA was responsible for the digitization of certain photographs and negatives identified in Exhibit A ofthe San Jose Mercury News Agreement (the "San Jose Mercury News Archived Materials").
147. The purpose of the San Jose Mercury News Agreement
was the creation of a digitized
library of the San Jose Mercury News Archived Materials for the San Jose Mercury News' reference and use (the "San Jose Mercury News Digital Library"). RPA was responsible for the digitization
of
the San Jose Mercury News Archived Materials and the creation of the San Jose Mercury News Digital
Library in North Little Rock, Arkansas at RPA's place of business, consistent with the Specifications set forth in Exhibit B of the San Jose Mercury News Agreement.
148. A material
term of the San Jose Mercury News Agreement was that the San Jose
Mercury News would have continued use of its San Jose Mercury News Archived Materials that were needed for editorial purposes, pursuant to Section 2.4. More specifically, the San Jose Mercury News
Agreement states that, 'þrior to delivery of the entire Digital Library, or during the storage, creation or conversion of the Archived Materials," the San Jose Mercury News retained the right to request from
RPA a digital image of any item contained in the San Jose Mercury News Archived Materials, and RPA was obligated to provide the item requested no later than24 hours after receiving the request.
149. According
to Section 3.1 of the San Jose Mercury News Agreement, upon completion
"of the Services provided by RPA to San Jose Mercury News, subject to the terms and conditions
set
forth in this San Jose Mercury News Agreement, San Jose Mercury News shall" convey title to the San Jose Mercury News Archived Material to RPA. The "Services" have not been completed. Therefore,
title to the San Jose Mercury News Archived Materials remains in the San Jose Mercury News. The term "Services" is specifically defined under Section 1.6 of the San Jose Mercury News Agreement as
follows:
3l
"Seryices" means, collectively, the retrieval and delivery of the
Archived Materials and the creation and delivery
of
the Deliverables, and all other materials required to be delivered under this Agreement, in accordance with the terms of this Agreement, and any additional services mutually agreed upon by the Parties associated therewith.
150. The San Jose Mercury News Archived
Materials as defined under Exhibit A of the San
Jose Mercury News Agreement, included:
a.
l5l.
The San Jose Mercury News vintage photograph and negative archive.
The Project Schedule, as defined under Exhibit C of the San Jose Mercury News
Agreement, required RPA to deliver the digital library of the San Jose Mercury News Digital Library as follows:
a.
The first one-third (l/3) of the digital librarywas to be deliveredto the San Jose
Mercury News no later than twelve (12) months following the date the San Jose Mercury News Archived Materials arrived at RPA's offices in North Little Rock, Arkansas;
b.
The second one-third (1/3) of the digital library was to be delivered to the San Jose
Mercury News no later than eighteen (18) months following the date the San Jose Mercury News Archived Materials arrived at RPA's offrces in North Little Rock, Arkansas; and
c. The final one-third (1/3) of the digital librarywas
to be deliveredto the San Jose
Mercury News no later than twelve (12) months following the date the San Jose Mercury News Archived Materials arrived at RPA's offices in North Little Rock, Arkansas.
152.
Pursuant to Section 4 of the San Jose Mercury News Agreement, the San Jose Mercury
News granted RPA
a
right and license to reproduce images copyrighted by the San Jose Mercury News
and belonging to the San Jose Mercury News Archived Materials. RPA was required to pay the San Jose Mercury News Times
fifty percent (50%) of all prohts of net sales from any project in which
copyrighted items covered by the San Jose Mercury News Agreement are used.
32
the
153. Further, the San Jose Mercury
News Agreement obligated RPA to "develop, market,
and maintain" a website for the San Jose Mercury News for hosting, editorial licensing, and selling
commercial products for the San Jose Mercury News Archived Materials.
I54.
According to Section 7 .2 of the San Jose Mercury News Agreement, RPA represented,
warranted and covenanted to the San Jose Mercury News that its personnel had the proper skill, training and background necessary to accomplish their assigned tasks, and all Services to be rendered under the San Jose Mercury News Agreement would be performed in a competent, professional and workmanlike
manner by fully qualifìed personnel.
155.
Section 9.4 of the San Jose Mercury News Agreement gave either party the right to
terminate the San Jose Mercury News Agteement under the following circumstances, among others:
for Insolvency. Either Party may immediately terminate this Agreement upon written notice to the other Party in the event that the other Parfy (a) admits in writing its inability to pay its debts as they become due, fails to satisff any judgment against it, or otherwise ceases operations of its business in the ordinary course, (b) is adjudicated bankrupt or becomes insolvent, (c) winds up or liquidates its business voluntarily or otherwise, (d) applies for, consents to or suffers the appointment of, or the taking of possession of by, u receiver, custodian, assignee, trustee, liquidator or similar fiduciary of itself or of all or any substantial portion of its assets . . . . Termination
156.
Section 9.5 of the San Jose Mercury News Agreement required RPA to return the San
Jose Mercury News Archived Materials to the San Jose Mercury News
within ten (10) days after
termination of the San Jose Mercury News Agreement.
157.
On or about December 12,2013, RPA took possession of the San Jose Mercury News
Archived Materials.
158.
The Plaintiffs do not know where RPA transported or delivered the San Jose Mercury
News Archived Materials.
JJ
159. RPA has failed and refused, and continues
to fail and refuse, to create a digitized library
of the San Jose Mercury News Archived Materials as it was required to do under the San Jose Mercury News Agreement in the form required by the San Jose Mercury News Agreement. Upon information and
belief, the only photographs and/or negatives from the San Jose Mercury News Archived Materials that RPA has digitized, or "scanned," are the digital images needed for editorial purposes and requested by the San Jose Mercury News pursuant to Section 2.4 of the San Jose Mercury News Agreement.
160. RPA failed and refused, and continues to fail and refuse, to deliver to the San Jose Mercury News Archived Materials the digitized images in the form required by RPA under the San Jose Mercury News Agreement. I 61
.
RPA failed and refused, and continues to fail and refuse, to develop, market, and maintain
a website for the San Jose Mercury News for hosting, editorial licensing, and selling commercial products for the San Jose Mercury News Archived Materials.
162. Upon information
and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things, that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
with the exhibits affached thereto, revealed among other things, RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
163. On November 17,2014,
FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
164.
On January 5, 2015, McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
165. By letter dated May 15, 2015, the San Jose Mercury News terminated the San Jose Mercury News Agreement under Section 9.4 and demanded that RPA return the San Jose Mercury News Archived Materials. A copy of the May 15, 2015 Letter of Termination is attached as Exhibit 2.
34
Under the terms of the San Jose Mercury News Agreement, RPA was required to deliver the San Jose
Mercury News Archived Materials to the San Jose Mercury News on or before May 26,2015.
166.
At the time of the San Jose Mercury News' termination of the San Jose Mercury News
Agreement, RPA did not "own" or otherwise hold title to the San Jose Mercury News Archived
Materials since the Services contemplated by the San Jose Mercury News Agreement were not completed or ever performed.
167.
Upon information and belief, the San Jose Mercury News Archived Materials are in
the possession of McAfee, the Receiver appointed in the FABT Action, at 2401 N. Poplar Street and I 15 E. 24th Street, North
Little Rock, Arkansas. The San Jose Mercury News Archived Materials
are
not subject to the receivership in that action. McAfee unlawfully detains the San Jose Mercury News
Archive. Additionally, negatives belonging to the San Jose Mercury News Archive are in the possession of Conner and Newport,
at230I Mclain Street, Newport, Arkansas and are not subject to
the receivership in the FABT Action. Conner and Newport unlawfully detain the San Jose Mercury News Archived Materials. By letter dated May 15,2015, the San Jose Mercury New demanded that they return the San Jose Mercury News Archived Materials. A copy of the May 15, 2015 letter is attached as Bxhibit 2.
168.
By letter dated May 75,2015, the San Jose MercuryNews demanded that McAfee
return the San Jose Mercury News Archived Materials to the San Jose Mercury News. A copy of the
May 15,2015 letter is attached as Exhibit 2.
169.
Upon information and belief, Conner and Newport acquired possession of the San Jose
Mercury News Archived Materials without the knowledge, permission or authorization of the San Jose Mercury News.
170.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Conner, and/or
Newport wrongfully transferred and delivered some or all of the San Jose Mercury News Archived
35
Materials to third parties who will be named as Defendants herein once they are fully identified. Those persons are referred to as John Does.
17l.
Upon information and beliet RPA, John M. Rogers, Angelica Rogers, Conner and/or
Newport and John Does, sold some of the San Jose Mercury News Archived Materials on the online
auction website, eBay.com. Upon information and belief, many of the San Jose Mercury News Archived Materials being offered for sale had not yet been digitized andJor if the photographs had been digitized then the digitized images v/ere never provided to the San Jose Mercury News. The digital images for the San Jose Mercury News Archived Materials being offered for sale on eBay.com by
RPA, John M. Rogers, Angelica Rogers, Conner and/or Newport and John Does were never provided to the San Jose Mercury News as of the filing of this action. Even more concerning, if the photographs sold on eBay.com did not have negative film from which the photos were printed, thereby making the
photos one-of-a-kind items, the San Jose Mercury News photographic archive has been irreparably
harmed. If the photographs being offered for sale on eBay.com had been digitized, the San
Jose
Mercury News was not ever notified or given an opportunity to inspect the digitized image to ensure
the quality of the Services, as set forth in Exhibit B to the San Jose Mercury News Agreement, including but not limited to: 1) digital scans of the photos and negatives saved at maximum quality and
minimum size;2) physical cleaning of all photographic prints prior to scanning including removal of editors' marks and writing or notations on the prints; and 3) the inclusion of all photo data, or metadata,
with the digital scans.
172.
The San Jose Mercury News has leamed that RPA, John M. Rogers, Angelica Rogers,
Conner and/or Newport and John Does, are selling images copyrighted by the San Jose Mercury News and belonging to the San Jose
MercuryNews Archived Materials on online websites, including but not
limited to, RetrolmagesArchive.com. RPA failed and refused, and continues to fail and refuse, to pay the San Jose Mercury News fifty percent (50%) of all profits of net sales from the sales of products
36
related to the images copyrighted by the San Jose Mercury News and belonging to the San Jose Mercury News Archived Materials.
F. Salt Lake Tribune Agreement with RPA
173.
On or about February 12, 2014, the Salt Lake Tribune and Defendant RPA executed
the Photo Archive Acquisition and Digital Library Services Agreement (the "Salt Lake Tribune Agreement").
A copy of the Salt Lake Tribune
Agreement, including the Exhibits, is attached as
Exhibit 7. Under the Salt Lake Tribune Agreement, RPA was responsible for the digitization of certain photographs and negatives identified in Exhibit A of the Salt Lake Tribune Agreement (the "Salt Lake
Tribune Archived Materials").
174. The purpose ofthe Salt Lake Tribune Agreement
was the creation of a digitized library
of the Salt Lake Tribune Archived Materials for the Salt Lake Tribune reference and use (the "Salt Lake Tribune Digital Library"). RPA was responsible for the digitization of the Salt Lake Tribune
Archived Materials and the creation of the Salt Lake Tribune Digital Library in North Little Rock, Arkansas at RPA's place of business, consistent with the Specifications set forth in Exhibit B of the Salt Lake Tribune Agreement.
175. A material term of the Salt Lake Tribune
Agreement was that the Salt Lake Tribune
would have continued use of its Salt Lake Tribune Archived Materials that were needed for editorial purposes, pursuant
to Section 2.4. More specifically, the Salt Lake Tribune Agreement
states that,
"prior to delivery of the entire Digital Library, or during the storage, creation or conversion of the Archived Materials," the Salt Lake Tribune retained the right to request from RPA a digital image of any item contained in the Salt Lake Tribune Archived Materials, and RPA was obligated to provide the item requested no later than24 hours after receiving the request.
176. According to Section 3.1 of the Salt Lake Tribune
Agreement, upon completion
"of
the Services provided by RPA to Salt Lake Tribune, subject to the terms and conditions set forth in
this Salt Lake Tribune Agreement, Salt Lake Tribune shall" convey title to the Salt Lake Tribune JI
Archived Material to RPA. The "Services" have not been completed. Therefore, title to the Salt Lake Tribune Archived Materials remain in the Salt Lake Tribune. The term "Services" is specifically defrned under Section 1.6 of the Salt Lake Tribune Agreement as follows:
"Services" means, collectively, the retrieval and delivery of the
Archived Materials and the creation and delivery
of
the Deliverables, and all other materials required to be delivered under this Agreement, in accordance with the terms of this Agreement, and any additional services mutually agreed upon by the Parties associated therewith.
177. The Salt Lake Tribune Archived
Materials as defined under Exhibit A of the Salt Lake
Tribune Agreement, included:
a.
The Salt Lake Tribune photograph and negative archive.
178. The Project Schedule,
as defined under
Exhibit C of the Salt Lake Tribune Agreement,
required RPA to deliver the digital library of the Salt Lake Tribune Digital Library as follows:
a.
The first one-third (1/3) of the digital library was to be delivered to the Salt Lake
Tribune no later than twelve (12) months following the date the Salt Lake Tribune Archived Materials arrived at RPA's offices in North Little Rock, Arkansas;
b.
The second one-third (1/3) of the digital library was to be delivered to the Salt Lake
Tribune no later than eighteen (18) months following the date the Salt Lake Tribune Archived Materials
arrived at RPA's offices in North Little Rock, Arkansas; and
c.
The final one-third (1/3) of the digital library was to be delivered to the Salt Lake
Tribune no later than twelve (12) months following the date the Salt Lake Tribune Archived Materials arrived at RPA's offices in North Little Rock, Arkansas.
179. Pursuant to Section 4 of the Salt Lake Tribune Agreement, the Salt Lake Tribune granted RPA a right and license to reproduce images copyrighted by the Salt Lake Tribune and belonging to the Salt Lake Tribune Archived Materials. RPA was required to pay the Salt Lake Tribune
38
fifty percent (50%) of all profits of net sales from any proj ect in which the copyrighted items covered by the Salt Lake Tribune Agreement are used.
180. Further, the Salt Lake Tribune
Agreement obligated RPA to "develop, market, and
maintain" a website for the Salt Lake Tribune for hosting, editorial licensing, and selling commercial products for the Salt Lake Tribune Archived Materials.
181. According to Section 7.2 of the Salt Lake Tribune
Agreement, RPA represented,
warranted and covenanted to the Salt Lake Tribune that its personnel had the proper skill, training and background necessary to accomplish their assigned tasks, and all Services to be rendered under the Salt Lake Tribune Agreement would be performed in a competent, professional and workmanlike manner
by fully qualified personnel.
182.
Section 9.4 of the Salt Lake Tribune Agreement gave either party the right to terminate
the Salt Lake Tribune Agreement under the following circumstances, among others:
Termination
for
Insolvenc]¡. Either Party may immediately
terminate this Agreement upon written notice to the other Party in the event that the other Party (a) admits in writing its inability to pay its debts as they become due, fails to satisfo any judgment
against it, or otherwise ceases operations of its business in the ordinary course, (b) is adjudicated bankrupt or becomes insolvent, (c) winds up or liquidates its business voluntarily or otherwise, (d) applies for, consents to or suffers the appointment of, or the taking of possession of by, a receiver, custodian, assignee, trustee, liquidator or similar fiduciary of itself or of all or any substantial portion of -its assets . . . .
183.
Section 9.5 of the Salt Lake Tribune Agreement required RPA to return the Salt Lake
Tribune Archived Materials to the Salt Lake Tribune within ten (10) days after termination of the Salt Lake Tribune Agteement.
184.
On or about Marchz0,2014, RPA took possession of the Salt Lake Tribune Archived
Materials.
39
185. The Plaintiffs do not know where RPA transported or delivered
the Salt Lake Tribune
Archived Materials.
186.
On or about April 16, 2014, John M. Rogers and Mac Hogan on behalf of PAP and
Amy Allen and Doug Allen on behalf of Legendary Photos, LLC entered into an agreement in which PAP would provide to Legendary Photos, LLC, under consignment for the sale of various archives, including the Salt Lake Tribune Archived Materials in exchange for
187. After taking possession
$l million
($1,000,000.00).
of the Salt Lake Tribune Archived Materials, RPA failed and
refused, and continues to fail and refuse, to create a digitized library of the Salt Lake Tribune Archived
Materials as it was requiredto do underthe Salt Lake Tribune Agreement in the form requiredbythe Salt Lake Tribune Agreement.
188.
Upon information and belief, the only photographs and/or negatives from the Salt Lake
Tribune Archived Materials that RPA has digitized, or "scanned," aÍe the digital images needed for editorial purposes and requested by the Salt Lake Tribune pursuant to Section 2.4 of the Salt Lake Tribune Agreement.
189.
RPA failed and refused, and continues to fail and refuse, to deliver to the Salt Lake
Tribune the digitized images as it was required to do under the Salt Lake Tribune Agreement in the form required by the Salt Lake Tribune Agreement.
190.
RPA failed and refused, and continues to fail and refuse, to develop, market, and maintain
a website for the Salt Lake Tribune for hosting, editorial licensing, and selling commercial products
for the Salt Lake Tribune Archived Materials.
191.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things, that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
40
with the exhibits attached thereto, revealed among other things RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
192. On November
17,2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
193. On January 5,2014, McAfee was appointed Receiver by the Court for the "Borrower Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
194.
By letter dated May 15,2015, the Salt Lake Tribune terminated the Salt Lake Tribune
Agreement under Section 9.4 anddemanded that RPA return the Salt Lake Tribune Archived Materials.
A copy of the May 15, 2015 Letter of Termination is attached
as
Exhibit 2. Under the terms of the Salt
Lake Tribune Agreement, RPA was required to deliver the Salt Lake Tribune Archived Materials to the Salt Lake Tribune on or before lli4ay 26,2015.
195. At the time of the Salt Lake Tribune's termination ofthe Salt Lake Tribune Agreement, RPA did not "o\ryn" or otherwise hold title to the Salt Lake Tribune Archived Materials since the Services contemplated by the Salt Lake Tribune Agreement were not completed or ever performed.
196. Upon information
and belief, some or all of the Salt Lake Tribune Archived Materials
is in the possession of McAfee, the Receiver appointed in the FABT Action, at 2401N. Poplar Street and I
l5 E.24th
Street, North Little Rock, Arkansas. The Salt Lake Tribune Archived Materials and are
not subject to the receivership in that action. McAfee unlawfully detains the Salt Lake Tribune Archived Materials. Additionally, some or all of the Salt Lake Tribune Archive is in the possession of Doug Allen, Amy Allen and/or Legendary Photos, LLC, at 17542 Chicago Avenue, Lansing, Illinois
or 23120 S. Hidden Lake Trail, Crete, Illinois and are not subject to the receivership in the FABT Action. Doug Allen, Amy Allen and/or Legendary Photos, LLC unlawfully detain the Salt Lake Tribune Archived Materials. Further, some or all of the Salt Lake Tribune Archive is in the possession
of Hogan and/or PAP at 501 Mike Hall Parkway, Mount Pleasant, Texas and is not subject to the
4l
receivership in the FABT Action. Hogan and/or PAP unlawfully detain the Salt Lake Tribune Archived
Materials.
197.
By letter dated May 15,2015, the Salt Lake Tribune demanded that McAfee return the
Salt Lake Tribune Archived Materials to the Salt Lake Tribune. attached as
A copy of the May 15, 2015 letter
is
Exhibit 2.
198.
Upon information and belief, Doug Allen, Amy Allen, and/or Legendary Photos, LLC,
acquired possession of the Salt Lake Tribune Archived Materials without the knowledge, permission
or authorization of the Salt Lake Tribune. By letter dated May 15, 2015, the Salt Lake Tribune demanded that they return the Salt Lake Tribune Archived Materials.
A copy of the May 15,2015
letter is attached as Bxhibit 2.
199.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, PAP, Hogan,
Doug Allen, Amy Allen and/or Legendary Photos, LLC wrongfully transferred and delivered some or all of the Salt Lake Tribune Archived Materials to third parties who will be named as Defendants herein once they are
fully identified. Those persons are referred to John Does.
200.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, PAP, Hogan,
Doug Allen, Amy Allen and/or Legendary Photos, LLC and John Does, sold some of the Salt Lake
Tribune Archived Materials on the online auction website, eBay.com. The Salt Lake Tribune has reason to believe that many of the Salt Lake Tribune Archived Materials being offered for sale had not
yet been digitized and/or if the photographs had been digitized then the digitized images were never provided to the Salt Lake Tribune. The digital images for the Salt Lake Tribune Archived Materials being offered for sale on eBay.com by RPA, John M. Rogers, Angelica Rogers, PAP, Hogan, Doug
Allen, Amy Allen, and/or Legendary Photos, LLC and John Does were never provided to the Salt Lake Tribune as of the filing of this action. Even more concerning, if the photographs sold on eBay.com did not have negative film from which the photos were printed, thereby making the photos one-of-a-kind
42
items, the Salt Lake Tribune photographic archive has been irreparably harmed. If the photographs being offered for sale on eBay.com had been digitized, the Salt Lake Tribune was not ever notified or given an opportunity to inspect the digitized image to ensure the quality of the Services, as set forth in
Exhibit B to the Salt Lake Tribune Agreement, including but not limited to:
l) digital scans of the
photos and negatives saved at maximum quality and minimum size; 2) physical cleaning of all photographic prints prior to scanning including removal of editors' marks and writing or notations on the prints; and 3) the inclusion of all photo data, or metadata, with the digital scans.
201.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, PAP, Hogan, Doug
Allen, Amy Allen, and/or Legendary Photos, LLC and John Does, are selling images copyrighted by the Salt Lake Tribune and belonging to the Salt Lake Tribune Archived Materials on online websites, including but not limited to, RetrolmagesArchive.com. RPA failed and refused, and continues to fail and refuse, to pay the Salt Lake Tribune
fifty percent (50%) of all profits of net sales from the sales of
products related to the images copyrighted by the Salt Lake Tribune and belonging to the Salt Lake Tribune Archived Materials.
G.
The Denver Post
202.
In or about October 2013, The Denver Post and Defendant RPA executed the Photo
Archive Acquisition and Digital Library Services Agreement ("The Denver Post Agreement"). A copy
of The Denver Post Agreement, including the Exhibits, is attached as Exhibit 8. Under The Denver Post Agreement, RPA was responsible for the digitization
of certain photographs and negatives
identified in Exhibit A of The Denver Post Agreement ("The Denver Post Archived Materials").
203.
The purpose of The Denver Post Agreement was the creation of a digitized library
of
The Denver Post Archived Materials for The Denver Post's reference and use (the "The Denver Post
Digital Library"). RPA was responsible for the digitization of The Denver Post Archived Materials
43
and the creation of The Denver Post
DigitalLibrary in North Little Rock, Arkansas at RPA's place of
business, consistent with the Specifications set forth in Exhibit B of The Denver Post Agreement.
204.
A material term of The Denver Post Agreement was that The Denver Post would have
continued use of its The Denver Post Archived Materials that were needed for editorial purposes, pursuant to Section 2.4. More specifically, The Denver Post Agreement states that, "prior to delivery
of the entire Digital Library, or during the storage, creation or conversion of the Archived Materials," The Denver Post retained the right to request from RPA a digital image of any item contained in The Denver Post Archived Materials, and RPA was obligated to provide the item requested no later than 24 hours after receiving the request.
205.
According to Section 3.1 of The Denver Post Agreement, upon completion "of the
Services provided by RPA to The Denver Post, subject to the terms and conditions set forth in this The
Denver Post Agreement, The Denver Post shall" convey title to The Denver Post Archived Material to RPA. The "Services" have not been completed. Therefore, title to The Denver Post Archived Materials
remains in The Denver Post. The term "Services" is specifically defined under Section 1.6 of The Denver Post Agreement as follows:
"Services" means, collectively, the retrieval and delivery of the
Archived Materials and the creation and delivery
of
the Deliverables, and all other materials required to be delivered under this Agreement, in accordance with the terms of this Agreement, and any additional services mutually agreed upon by the Parties associated therewith.
206.
The Denver Post Archived Materials as defined under Exhibit A of The Denver Post
Agreement, included:
a.
207.
The Denver Post negative archive.
The Project Schedule, as defined under Exhibit C of The Denver Post Agreement,
required RPA to deliver the digital library of The Denver Post Digital Library as follows:
44
a.
The first one-third (l/3) of the digital library was to be delivered to The Denver
Post no later than twelve (12) months following the date The Denver Post Archived Materials arrived
at RPA's offices in North Little Rock, Arkansas;
b.
The second one-third (1/3) of the digital library was to be delivered to The Denver
Post no later than eighteen (18) months following the date The Denver Post Archived Materials arrived
at RPA's ofhces in North Little Rock, Arkansas; and
c.
The final one-third (1/3) of the digital library was to be delivered to The Denver
Post no later than twelve (12) months following the date The Denver Post Archived Materials arrived
at RPA's offices in North Little Rock, Arkansas.
208.
Pursuant to Section 4 of The Denver Post Agreement, The Denver Post granted RPA a
right and license to reproduce images copyrighted by The Denver Post and belonging to The Denver Post Archived Materials. RPA was required to pay The Denver Post
fifty percent (50%) of all profits
of net sales from any project in which the copyrighted items covered by The Denver Post Agreement are used.
209.
Further, The Denver Post Agreement obligated RPA
to
"develop, market, and
maintain" a website for The Denver Post for hosting, editorial licensing, and selling commercial products for The Denver Post Archived Materials.
210.
According to Section 7.2 of The Denver Post Agreement, RPA represented, warranted
and covenanted to The Denver Post that its personnel had the proper skill, training and background necessary to accomplish their assigned tasks, and
Agreement would be performed
all Services to be rendered under The Denver Post
in a competent, professional and workmanlike manner by fully
qualif,red personnel.
2ll.
Section 9.4 of The Denver Post Agreement gave either party the right to terminate The
Denver Post Agreement under the following circumstances, among others:
45
for
Insolvency. Either ParA may immediately terminate this Agreement upon written notice to the other Party in the event that the other Party (a) admits in writing its inability to pay its debts as they become due, fails to satisfy any judgment against it, or otherwise ceases operations of its business in the Termination
ordinary course, (b) is adjudicated bankrupt or becomes insolvent, (c) winds up or liquidates its business voluntarily or otherwise, (d) applies for, consents to or suffers the appointment of, or the taking of possession of by, u receiver, custodian, assignee, trustee, liquidator or similar fiduciary of itself or of all or any substantial portion of -its assets . . . .
212.
Section 9.5 of The Denver Post Agreement required RPA to return The Denver Post
Archived Materials to The Denver Post within ten (10) days after termination of The Denver Post Agreement.
213.
On or about January 25,2013, RPA took possession of The Denver Post Archived
Materials.
214.
On or about January 28,2013, RPA delivered The Denver Post Archived Materials to
RPA's places of business, which were locatedat240l N. Poplar Street, North Little Rock, Arkansas, 2501 N. Poplar Street, North Little Rock, Arkansas, and I 15 E. 24rh Sfteet, North Little Rock, Arkansas.
215.
Following delivery of The Denver Post Archived Materials, RPA has failed and refused,
and continues to fail and refuse, to create a digitized library of The Denver Post Archived Materials as
it
was required to do under The Denver Post Agreement in the form required by The Denver Post Agreement. Upon information and belief, the only photographs and/or negatives from The Denver Post
Archived Materials that RPA has digitized, or "scanned," are the digital images needed for editorial purposes and requested by The Denver Post pursuant to Section 2.4 of The Denver Post Agteement.
216.
RPA failed and refused, and continues to fail and refuse, to deliver to The Denver Post
the digitized images in the form required by RPA under The Denver Post Agreement.
46
217 a website
.
RPA failed and refused, and continues to fail and refuse, to develop, market, and maintain
for The Denver Post for hosting, editorial licensing, and selling commercial products for The
Denver Post Archived Materials.
218.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things
that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together with the exhibits affached thereto, revealed among other things, RPA's true houbled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time, among
other things.
219.
On November 17,2014, FABT f,rled the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
220.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
221.
By letter dated May 15, 2015, The Denver Post terminated the Agreement
Section 9.4 and demanded that RPA return The Denver Post Archived Materials.
under
A copy of the May
15, 2015 Letter of Termination is attached as Exhibit 2. Under the terms of The Denver Post Agreement, RPA was required to deliver The Denver Post Archived Materials to The Denver Post on or before
.llday
222.
26,2015. At the time of The Denver Post's termination of The Denver Post Agreement, RPA did
not "own" or otherwise hold title to The Denver Post Archived Materials since the
Services
contemplated by The Denver Post Agreement were not completed or ever performed.
223.
Upon information and belief, The Denver Post Archived Materials are in the possession
of McAfee, the Receiver appointed in the FABT Action, at240l N. Poplar Street and I l5 E.24th Street,
47
North Little Rock, Arkansas. The Denver Post Archived Materials are not subject to the receivership in that action. McAfee unlawfully detains The Denver Post Archived Materials.
224.
By letter dated May 15, 2015, The Denver Post demanded that McAfee return The
Denver Post Archived Materials to The Denver Post. A copy of the May 15, 2015 letter is attached as
Exhibit 2.
225.
Upon information and belief, RPA, John M. Rogers, and/or Angelica Rogers
wrongfully transferred and delivered some or all of The Denver Post Archived Materials to third parties who will be named as Defendants herein once they are fully identified. Those persons are referred to as John Does.
226.
Upon information and belief, RPA, John M. Rogers and/or Angelica Rogers, and the
John Doe Defendants, sold some of The Denver Post Archived Materials on the online auction website,
eBay.com. Upon information and belief, many of The Denver Post Archived Materials being offered
for sale had not yet been digitized and/or if the photographs had been digitized then the digitized images were never provided to The Denver Post. Upon information and belief, digital images for The Denver Post Archived Materials being offered for sale on eBay.com by RPA, John M. Rogers and/or Angelica
Rogers, and John Does were never provided to The Denver Post as of the
more concerning,
if
filing of this action. Even
the photographs sold on eBay.com did not have negative film from which the
photos were printed, thereby making the photos one-oÊa-kind items, The Denver Post Archive has been irreparably harmed.
If
the photographs being offered for sale on eBay.com had been digitized,
The Denver Post was not ever notified or given an opportunity to inspect the digitized image to ensure the quality of the Services, as set forth in Exhibit B to the Agreement, including but not limited to: 1)
digital scans of the photos and negatives saved at maximum quality and minimum size; 2) physical cleaning of all photographic prints prior to scanning including removal of editors' marks and writing or notations on the prints; and 3) the inclusion of all photo data, or metadata, with the digital scans.
48
227
.
The Denver Post has leamed that RPA, John M. Rogers and/or Angelica Rogers and John
Does, are selling images copyrighted by The Denver Post and belonging to The Denver Post Archive
on online websites, including but not limited to, RetrolmagesArchive.com. RPA failed and refused, and continues to fail and refuse, to pay The Denver Post
fifty percent (50%) of all
prof,rts of net sales
from the sales of products related to the images copyrighted by The Denver Post and belonging to The Denver Post Archived Materials.
THIRTEEN PLAINTIFF NEWSPAPERS THAT DID NOT ENTER INTO AGREEMENTS WITH RPA
H.
St. Paul Pioneer Press
228.
In or about December 2013, the St. Paul Pioneer Press engaged in discussions with
RPA for the digitization of certain photographs and negatives (the "St. Paul Pioneer Press Archive")
for the purpose of creating a digitized library of the St. Paul Pioneer Press Archive for the St. Paul Pioneer Press' reference and use.
229.
The St. Paul Pioneer Press and RPA never executed an agreement for the creation of a
digital library from the St. Paul Pioneer Press Archive.
230.
On or about December 12,2013, RPA took possession of the St. Paul Pioneer Press
Archive.
231.
On or about December 15, 2013, RPA accepted delivery of the St. Paul Pioneer Press
Archive at RPA's places of business, which were locatedat240I N. Poplar Street, North Little Rock,
Arkansas,250l N. Poplar Street, North Little Rock, Arkansas, and 115 E.24th Street, North Little Rock, Arkansas.
232.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things,
that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
49
with the exhibits attached thereto, revealed among other things, RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
233.
On November 17,2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
234.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borro'wer
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
235.
By letter dated May 15,2015, the St. Paul Pioneer Press demanded that RPA return the
St. Paul Pioneer Press Archive.
236.
A copy of the May 15, 2015 demand letter is attached
as
Exhibit 2.
RPA has no rights in the St. Paul Pioneer Press Archive. RPA does not now "own,"
nor has it ever "owned" nor otherwise held title to the St. Paul Pioneer Press Archive.
237. possession
Upon information and belief, portions of the St. Paul Pioneer Press Archive are in the
of McAfee, the Receiver appointed in the FABT Action, at 2401N. Poplar Street, North
Little Rock, Arkansas and 115 E.24th Street, North Little Rock, Arkansas. The St. Paul Pioneer
Press
Archive is not subject to the receivership in the FABT Action. McAfee unlawfully detains the St. Paul Pioneer Press Archive. Additionally, some portions of the St. Paul Pioneer Press Archive is in the possession
of Bauby in Dixon, Illinois. Any portion of the St. Paul Pioneer Press Archive in the
possession of Bauby is not subject to the receivership in the FABT Action. Bauby unlawfully detains
the St. Paul Pioneer Press Archive.
238.
Upon information and beliet Bauby acquired possession of the St. Paul Pioneer Press
Archive without the knowledge, permission or authorizationof the St. Paul Pioneer Press.
239.
Upon information and belief, RPA, John M. Rogers, and/or Angelica Rogers
wrongfully transferred and delivered some or all of the St. Paul Pioneer Press Archive to third parlies who will be named as Defendants herein once they are fully identified. Those persons are referred to as John Does.
50
240.
The St. Paul Pioneer Press has learned that RPA, John M. Rogers and/or Angelica
Rogers, and the John Does, sold some of the St. Paul Pioneer Press Archive on the online auction website, eBay.com. Even more concerning, if the photographs sold on eBay.com did not have negative
film from which
the photos were printed, thereby making the photos one-of-a-kind items, the St. Paul
Pioneer Press Archive has been irreparably harmed.
L
New Haven Register
241.
In or about October 2013 the New Haven Register engaged in discussions with RPA
for the digitization of certain photographs and negatives (the "New Haven Register Archive") for the purpose
of creating a digitized library of the New Haven Register Archive for the New Haven
Register's reference and use.
242.
The New Haven Register and RPA never executed an agreement for the creation of a
digital library from the New Haven Register Archive.
243.
On or about June 30,2014, RPA took possession of the New Haven Register Archive.
244.
The Plaintiffs do not know where RPA transported or delivered the New Haven
Register Archive.
245.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things,
that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
with the exhibits attached thereto, revealed among other things, RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
246.
On November 17,2014, FABT hled a Motion for the Immediate Appointment of a
Receiver ("FABT Motion") over the collateral of RPA and the other related borrowers; FABT sought the appointment of McAfee as Receiver in the FABT Action.
5l
247
.
On January 5, 2015 , McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defrned by the FABT Complaint in the FABT Action.
248.
By letter dated May 15,2015, the New Haven Register demanded that RPA retum the
New Haven Register Archive. A copy of the May 15, 2015 demand letter is attached as Exhibit 2.
249. has
RPA has no rights in the New Haven Register Archive. RPA does not now "own," nor
it ever "o\ryned" nor otherwise held title to the New Haven Register Archive.
250.
Upon information and beliet the New Haven Register Archive is in the possession of
Doug Allen, Amy Allen, and/or Legendary Photos, LLC, at
17
542 Chicago Avenue, Lansing, Illinois
and/or 23120 S. Hidden Lake Trail, Crete, Illinois. The New Haven Register Archive is not subject to
the receivership in the FABT Action. Doug Allen, Amy Allen, and/or Legendary Photos, LLC unlawfully detain New Haven Register Archive. By letter dated May l5,20l5,the New Haven Register demanded that they return the New Haven Register Archived Materials. A copy of the May 15, 2015
letter is attached as Exhibit 2.
251.
Upon information and belief, Doug Allen, Amy Allen, and/or Legendary Photos, LLC,
acquired possession
of the New Haven Register Archive without the knowledge, permission or
authorization of the New Haven Register.
252.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen, and/or Legendary Auctions, LLC, wrongfully transferred and delivered some or all of the New Haven Register Archive to third parties who will be named as Defendants herein once they are
fully identifred. Those persons are referred to as the John Does.
253.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen, and/or Legendary Photos, LLC, and John Does, sold some of the New Haven Register Archive on the online auction website, eBay.com. Even more conceming, if the photographs sold on
52
eBay.com did not have negative
film from which the photos were printed, thereby making the photos
one-of-a-kind items, the New Haven Register Archive has been irreparably harmed.
J.
Los Angeles Daily News
254.
In or about July 2013, the Los Angeles Daily News engaged in discussions with RPA
for the digitization of certain photographs and negatives (the "Los Angeles Daily News Archive") for the purpose of creating a digitized library of the Los Angeles Daily News Archive for the Los Angeles
Daily News' reference and use.
255.
The Los Angeles Daily News and RPA never executed an agreement for the creation
of a digital library from the Los Angeles Daily News Archive.
256.
In or about August or September 2013, RPA took possession of the Los Angeles Daily
News Archive.
257.
The Plaintiffs do not know where RPA transported or delivered the Los Angeles Daily
News Archive.
258.
Upon information and beliel RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things,
that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
with the exhibits attached thereto, revealed among other things RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
259.
On November 17, 2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
260.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
53
261.
By letter dated May 15,2015, the Los Angeles Daily News demanded that RPA return
the Los Angeles Daily News Archive. A copy of the May 15, 2015 demand letter is attached as
Exhibit
2.
262.
RPA has no rights in the Los Angeles DailyNews Archive. RPA does not now "own,"
nor has it ever "owned" nor otherwise held title to the Los Angeles Daily News Archive.
263.
Upon information and belief, the Los Angeles Daily News Archive is in the possession
of Doug Allen, Amy Allen, and/or Legendary Photos, LLC, at 17542 Chicago Avenue, Lansing, Illinois or 23120 S. Hidden Lake Trail, Crete, Illinois. The Los Angeles Daily News Archive is not subject to the receivership in the FABT Action. Doug Allen, Amy Allen, and/or Legendary Photos,
LLC unlawfully detain the Los Angeles Daily News Archive. By letter dated May 15,2015, the Los Angeles Daily News demanded that they return the Lost Angeles Daily News Archived Materials. A copy of the May 15, 2015 letter is attached as
264.
Exhibit 2.
Upon information and belief, Doug Allen, Amy Allen, and/or Legendary Photos, LLC,
acquired possession of the Los Angeles Daily News Archive without the knowledge, permission or
authorization of the Los Angeles Daily News.
265.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen, and/or Legendary Auctions, LLC, wrongfully transferred and delivered some or all of the Los Angeles Daily News Archive to third parties who will be named as Defendants herein once they are
fully identif,red. Those persons are referred to as John Does.
266.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen, and/or Legendary Photos, LLC, and John Does, sold some of the Los Angeles Daily News Archive on the online auction website, eBay.com. Even more concerning, if the photographs sold on eBay.com did not have negative
film ftom which the photos were printed, thereby making the photos
one-of-a-kind items, the Los Angeles Daily News Archive has been irreparably harmed.
54
K.
Torrance Daily Breeze
267.
In or about July 2013, the Torrance Daily Breeze engaged in discussions with RPA for
the digitization of certain photographs and negatives (the "Torrance Daily Breeze Archive") for the purpose of creating a digitized library of the Torrance Daily Breeze Archive for the Torrance Daily Breeze's reference and use.
268. a
The Torrance Daily Breeze and RPA never executed an agreement for the creation
of
digital library from the Torrance Daily Breeze Archive.
269.
In or about August or September 2013, RPA took possession of the Torrance Daily
Breeze Archive.
270.
The Plaintiffs do not know where RPA transported or delivered the Torrance Daily
Breeze Archive.
271.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things,
that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
with the exhibits attached thereto, revealed among other things RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
272.
On November 17,2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
273.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borrorryer
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
274.
By letter dated May 15, 2015, the Torrance Daily Breeze demanded that RPA return
the Torrance Daily Breeze Archive. A copy of the May 15, 2015 demand letter is attached as Exhibit ,,
55
275.
RPA has no rights in the Torrance Daily Breeze Archive. RPA does not now "own,"
nor has it ever "owned" nor otherwise held title to Torrance Daily Breeze Archive.
276.
Upon information and belief, the Torrance Daily Breeze Archive is in the possession
of Doug Allen, Amy Allen, andlor Legendary Photos, LLC, at 17542 Chicago Avenue,
Lansing,
Illinois and./or 23120 S. Hidden Lake Trail, Crete, Illinois. The Torrance Daily Breeze Archive is not subject to the receivership in the FABT Action. Doug Allen, Amy Allen, and/or Legendary Photos,
LLC unlawfully detain the Torrance Daily Breeze Archive. By letter dated May 15,2015, the Torrance Daily Breeze demanded that they return the Torrance Daily Breeze Archived Materials. A copy of the
May
15, 2015 letter is attached as
277.
Exhibit 2.
Upon information and belief, Doug Allen, Amy Allen, and/or Legendary Photos, LLC,
acquired possession of the Torrance Daily Breeze Archive without the knowledge, permission or authorization of the Torrance Daily Breeze.
278.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen, and/or Legendary Auctions, LLC, wrongfully transferred and delivered some or all of the Torrance Daily Breeze Archive to third parties who
will
be named as Defendants herein once they are
fully identified. Those persons are referred to as John Does.
279.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen, and/or Legendary Photos, LLC, and John Does, sold some of the Torrance Daily Breeze Archive on the online auction website, eBay.com. Even more concerning, if the photographs sold on eBay.com did not have negative
film from which the photos were printed, thereby making the photos
one-oÊa-kind items, the Torrance Daily Breeze Archive has been ineparably harmed.
L.
San Gabriel Valley Times (Formerly Known as the San Gabriel Valley Tribune)
280.
In or about July 2013, the San Gabriel Valley Times engaged in discussions with RPA
for the digitization of certain photographs and negatives (the "San Gabriel Valley Times Archive") for
56
the purpose of creating a digitized library of the San Gabriel Valley Times Archive for the San Gabriel
Valley Times' reference and use.
281.
The San Gabriel Valley Times and RPA never executed an agreement for the creation
of a digital library from the San Gabriel Valley Times Archive.
282.
In or about August or Septemb er 2013, RPA took possession of the San Gabriel Valley
Times Archive.
283.
The Plaintifß do not know where RPA transported or delivered the San Gabriel Valley
Times Archive.
284.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014,FABT, in the FABT Action, alleged among other things, that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
with the exhibits attached thereto, revealed among other things RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
285.
On November 17, 2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
286.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defrned by the FABT Complaint in the FABT Action. 287
.
By letter dated May 15,2015, the San Gabriel Valley Times demanded that RPA return
the San Gabriel Valley Times Archive. A copy of the May 15, 2015 demand letter is attached
Exhibit
as
2.
288.
RPA has no rights in the San Gabriel Valley Times Archive. RPA does not now "own,"
nor has it ever "o\ryned" nor otherwise held title to San Gabriel Valley Times Archive.
289.
Upon information and beliet the San Gabriel Valley Times Archive is in the possession
of Doug Allen, Amy Allen, andlor Legendary Photos, LLC, at 17542 Chicago Avenue, Lansing,
57
Illinois and/or 23120 S. Hidden Lake Trail, Crete, Illinois. The San Gabriel Valley Times Archive is not subject to the receivership in the FABT Action. Doug Allen, Amy Allen, and/or Legendary Photos,
LLC unlawfully detain the San Gabriel Valley Times Archive. By letter dated May 15,2015, the San Gabriel Valley Times demanded that they return the San Gabriel Valley Times Archived Materials. A copy of the May 15,2015 letter is attached as Exhibit 2.
290.
Upon information and belief, Doug Allen, Amy Allen, and/or Legendary Photos, LLC,
acquired possession of the San Gabriel Valley Times Archive without the knowledge, permission or
authorization of the San Gabriel Valley Times.
291.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen, anüor Legendary Auctions, LLC, wrongfully transferred and delivered some or all of the San Gabriel Valley Times Archive to third parties who are
will
be named as Defendants herein once they
fully identified.
292.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
AmyAllen,and/or LegendaryPhotos, LLC,andJohn Does, sold some ofthe
San Gabriel
ValleyTimes
Archive on the online auction website, eBay.com. Even more concerning, if the photographs sold on eBay.com did not have negative hlm from which the photos were printed, thereby making the photos
one-oÊa-kind items, the San Gabriel Valley Times Archive has been irreparably harmed.
M.
Whittier Daily News
293.
In or about July 2013, the Whittier Daily News engaged in discussions with RPA for
the digitization of certain photographs and negatives (the "Whittier Daily News Archive") for the purpose of creating a digitized library of the Whittier Daily News Archive for the Whittier Daily News'
reference and use.
294.
The Whittier Daily News and RPA never executed an agreement for the creation of a
digital library from the Whittier Daily News Archive.
58
295.
In or about August or September 2013, RPA took possession of the Whittier Daily
News Archive.
296.
The Plaintiffs do not know where RPA transported or delivered the Whittier Daily
News Archive.
297.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things,
that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
with the exhibits attached thereto, revealed RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
298.
On November 17,2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
299.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
300.
By letter dated May 15,2015, the Whittier Daily News demanded that RPA return the
Whittier Daily News Archive. A copy of the May 15, 2015 demand letter is attached as Bxhibit 2.
301.
RPA has no rights in the Whittier Daily News Archive. RPA does not now "own," nor
has it ever "owned" nor otherwise held title to the Whittier Daily News Archive.
302.
Upon information and belief, the Whittier Daily News Archive is in the possession of
Doug Allen, Amy Allen, and/or Legendary Photos, LLC, at 17542 Chicago Avenue, Lansing, Illinois and/or 23120 S. Hidden Lake Trail, Crete, Illinois. The Whittier Daily News Archive is not subject to
the receivership in the FABT Action. Doug Allen, Amy Allen, and/or Legendary Photos, LLC unlawfully detain the Whittier Daily News Archive. By letter dated May 15,2015, the Whittier Daily News demanded that they return the Whittier Daily News Archived Materials. A copy of the May 15, 2015 letter is attached as
Exhibit 2.
59
303.
Upon information and belief, Doug Allen, Amy Allen, and/or Legendary Photos, LLC,
acquired possession of the Whittier Daily News Archive without the knowledge, permission or authorization of the Whittier Daily News.
304.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen and/or Legendary Auctions, LLC, wrongfully transferred and delivered some or all of the Whittier Daily News Archive to third parties who will be named as Defendants herein once they are
fully identified. Those persons are referred to
305.
as John Does.
Upon information and belief,, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen, and/or Legendary Photos, LLC, and John Does, sold some of the Whittier Daily News Archive on the online auction website, eBay.com. Even more concerning, if the photographs sold on eBay.com did not have negative
film from which the photos were printed, thereby making the photos
one-of-a-kind items, the Whittier Daily News Archive has been irreparably harmed.
N.
Inland Valley Daily Bulletin
306.
In or about July 2013, the Inland Valley Daily Bulletin engaged in discussions with
RPA for the digitization of certain photographs and negatives (the "Inland Valley Daily Bulletin Archive") for the purpose of creating a digitized library of the Inland Valley Daily Bulletin Archive for the Inland Valley Daily Bulletin's reference and use.
307.
The Inland Valley Daily Bulletin and RPA never executed an agreement for the
creation of a digital library from the Inland Valley Daily Bulletin Archive.
308.
In or about August or Septemb er 2013, RPA took possession of the Inland Valley Daily
Bulletin.
309.
The Plaintiffs do not know where RPA transported or delivered the Inland Valley Daily
Bulletin.
60
310.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things,
that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
with the exhibits attached thereto, revealed RPA's true troubled frnancial condition and insolvency and also that RPA had not been operating in the ordinary course for some time. 31
1.
On November
17
, 2014, F ABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
3I2.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borro.¡/er
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
313.
By letter dated May 15, 2015, the Inland Valley Daily Bulletin demanded that RPA
return the Inland Valley Daily Bulletin Archive. A copy of the May 15, 2015 demand letter is attached as
Exhibit 2.
3I4.
RPA has no rights in the Inland Valley Daily Bulletin Archive. RPA does not now
"own," nor has it ever "owned" nor otherwise held title to the Inland Valley Daily Bulletin Archive.
315. possession
Upon information and belief, the Inland Valley Daily Bulletin Archive is in the
of Doug Allen, Amy Allen, and/or Legendary Photos, LLC, at 17542 Chicago Avenue,
Lansing, Illinois and/or 23120 S. Hidden Lake Trail, Crete, Illinois. The Inland Valley Daily Bulletin
is not subject to the receivership in the FABT Action. Doug Allen, Amy Allen, and/or Legendary Photos, LLC unlawfully detain the Inland Valley Daily Bulletin. By letter dated May 15, 2015, the
Inland Valley Daily Bulletin demanded that they return the Inland Valley Daily Bulletin Archived Materials. A copy of the May 15, 2015 letter is attached as Exhibit 2.
316.
Upon information and beliet Doug Allen, Amy Allen, and/or Legendary Photos, LLC,
acquired possession of the Inland Valley Daily Bulletin Archive without the knowledge, permission or
authorization of the Inland Valley Daily Bulletin.
6l
317.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen and/or Legendary Auctions, LLC, wrongfully transferred and delivered some or all of the Inland Valley Daily Bulletin Archive to third parties who will be named as Defendants herein once they are fully identified. Those persons are referred to as John Does.
318.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen and/or Legendary Photos, LLC, and John Does, sold some of the Inland Valley Daily Bulletin Archive on the online auction website, eBay.com. Even more concerning, if the photographs sold on eBay.com did not have negative film from which the photos were printed, thereby making the photos one-of-a-kind items, the Inland Valley Daily Bulletin Archive has been irreparably harmed.
O.
Redlands Daily Facts
319.
In or about July 2013, the Redlands Daily Facts engaged in discussions with RPA for
the digitization of certain photographs and negatives (the "Redlands Daily Facts Archive") for the purpose of creating a digitized library of the Redlands Daily Facts Archive for the Redlands Daily
Facts' reference and use.
320.
The Redlands Daily Facts and RPA never executed an agreement for the creation of a
digital library from the Inland Redlands Daily Facts Archive.
321.
In or about August or September 2013, RPA took possession of the Redlands Daily
Facts Archive.
322.
The Plaintiffs do not know where RPA transported or delivered the Redlands Daily
Facts Archive.
323.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things,
that RPA had defaulted on several loans extended by FABT to RPA, among other things. The FABT Complaint, together with the exhibits attached thereto, revealed among other things RPA's true troubled
62
financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
324.
On November 17, 2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
325.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
326.
By letter dated May 15,2015, the Redlands Daily Facts demanded that RPA return the
Redlands Daily Facts Archive. A copy of the May 15, 2015 demand letter is attached as Exhibit 2.
327. has
RPA has no rights in the Redlands Daily Facts Archive. RPA does not now "own," nor
it ever "owned" nor otherwise held title to the Redlands Daily Facts Archive.
328.
Upon information and belief, the Redlands Daily Facts Archive is in the possession of
Doug Allen, Amy Allen, and/or Legendary Photos, LLC, at 17542 Chicago Avenue, Lansing, Illinois and/or 23120 S. Hidden Lake Trail, Crete, Illinois. The Redlands Daily Facts is not subject to the receivership in the FABT Action. Doug Allen, Amy Allen, and/or Legendary Photos, LLC unlawfully detain the Redlands Daily Facts. By letter dated May 15,2015, the Redlands Daily Facts demanded
that they return the Redlands Daily Facts Archived Materials. A copy of the May 15, 2015 letter is attached as Exhibit 2.
329.
Upon information and belief, Doug Allen, Amy Allen, and/or Legendary Photos, LLC,
acquired possession of the Redlands Daily Facts Archive without the knowledge, permission or authorization of the Redlands Daily Facts News.
330.
Upon information and belief, RPA, John M. Rogers, Angelica Rogers, Doug Allen,
Amy Allen , and/or Legendary Auctions, LLC, wrongfully transferred and delivered some or all of the Redlands Daily Facts Archive to third parties who
fully identified. Those persons are referred to
will
be named as Defendants herein once they are
as John Does.
63
331.
The Redlands Daily Facts has learned that RPA, John M. Rogers, Angelica Rogers,
Doug Allen, Amy Allen, and/or Legendary Photos, LLC, and John Does, sold some of the Redlands
Daily Facts Archive on the online auction website, eBay.com. Even more concerning,
if
the
photographs sold on eBay.com did not have negative film from which the photos were printed, thereby
making the photos one-oÊa-kind items, the Redlands Daily Facts Archive has been irreparably harmed.
P.
Hayward Daily Review
332.
In or about November 2013, the Hayward Daily Review engaged in discussions with
RPA for the digitization of certain photographs and negatives (the "Hayward Daily Review Archive") for the purpose of creating a digitized library of the Hayward Daily Review Archive for the Hayward
Daily Review's reference and use.
333. a
The Hayward Daily Review and RPA never executed an agreement for the creation
of
digital library from the Hayward Daily Review Archive.
334.
On or about December 12, 2013, RPA took possession of the Hayward Daily Review
Archive.
335.
On or about December 15, 2013, RPA accepted delivery of the Hayward Daily Review
Archive at RPA's places of business, which were locate d at 2401 N. Poplar Street, North Little Rock,
Arkansas,250l N. Poplar Street, North Little Rock, Arkansas, and 115 E.24rh Sfeet, North Little Rock, Arkansas.
336.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things,
that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together with the exhibits attached thereto, revealed among other things RPA's true troubled hnancial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
64
337.
On November 17,2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
338.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
339.
By letter dated May 15,2015, the Hayward Daily Review demanded that RPA return
the Hayward Daily Review Archive. A copy of the May 15, 2015 demand letter is attached as
Exhibit
,,
340.
RPA has no rights in the Hayward Daily Review Archive. RPA does not now "own,"
nor has it ever "o\ryned" nor otherwise held title to the Hayward Daily Review Archive.
341.
Upon information and belief, the Hayward Daily Review Archive is in the possession
of McAfee, the Receiver appointed in the FABT Action, at240l N. Poplar Street, North Little Rock, Arkansas and I
l5 E.24th Street, North Little Rock, Arkansas. The Hayward Daily Review Archive
is
not subject to the receivership in the FABT Action. McAfee unlawfully detains The Hayward Daily Review Archive.
342.
Upon information and belief, Doug Allen, Amy Allen, and/or Legendary Photos, LLC,
acquired possession of the Hayward Daily Review Archive without the knowledge, permission or authorization of the Haylvard Daily Review.
343.
Upon information and beliet RPA, John
M.
Rogers andlor Angelica Rogers
wrongfully transferred and delivered some or all of the Hayward Daily Review Archive to third parties who will be named as Defendants herein once they are fully identified. Those persons are referred to as John Does.
344.
Upon information and belief, RPA, John M. Rogers and/or Angelica Rogers and John
Does, sold some of the Hayward Daily Review Archive on the online auction website, eBay.com. Even
more concerning,
if the photographs sold on eBay.com did not have negative film from which
65
the
photos were printed, thereby making the photos one-of-a-kind items, the Hayward Daily Review
Archive
has been irreparably harmed.
a.
Tri-Valley Herald
345.
In or about November 2013, the Tri-Valley Herald engaged in discussions with RPA
for the digitization of certain photographs and negatives (the "Tri-Valley Herald Archive") for the purpose of creating a digitized library of the Tri-Valley Herald Archive for the Tri-Valley Herald's reference and use.
346.
The Tri-Valley Herald and RPA never executed an agreement for the creation of a
digital library from the Tri-Valley Herald Archive.
347.
On or about December 12,2013, RPA took possession of the Tri-Valley Herald
Archive.
348.
On or about December 15, 2013, RPA accepted delivery of the Tri-Valley Herald
Archive, in North Little Rock, Arkansas at RPA's places of business, which were located at 2401 N. Poplar Street, North Little Rock, Arkansas, 2501 N. Poplar Street, North Little Rock, Arkansas, and 115 E. 24th Street, North
349.
Little Rock, Arkansas.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things,
that RPA had defaulted on several loans extended by FABT to RPA, among other things. The FABT Complaint, together with the exhibits attached thereto, revealed among other things, RPA's true troubled
financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
350.
On November 17,2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
66
35
1.
On January 5, 2015, McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
352.
By letter dated May 15,2015, the Tri-Valley Herald demanded that RPA return the
Tri-Valley Herald Archive. A copy of the May 15, 2015 demand letter is attached as Exhibit 2.
353.
RPA has no rights in the Tri-Valley Herald Archive. RPA does not now "own," nor
has it ever "owned" nor otherwise held title to the Tri-Valley Herald Archive.
354.
Upon information and belief, the Tri-Valley Herald Archive is in the possession of
McAfee, the Receiver appointed in the FABT Action, at 240I N. Poplar Street, North Little Rock, Arkansas and 115 E.24th Street, North Little Rock, Arkansas. The Tri-Valley Herald Archive is not
subject to the receivership in the FABT Action. McAfee unlawfully detains the Tri-Valley Herald Archive.
355.
Upon information and belief, RPA, John
M. Rogers
and/or Angelica Rogers
wrongfully transferred and delivered some or all of the Tri-Valley Herald Archive to third parties who
will be named
as Defendants herein once they are
fully identified. Those persons are referred to
as
John Does.
356.
Upon information and belief, RPA, John M. Rogers and/or Angelica Rogers, and the
John Doe Defendants, sold some of the Tri-Valley Herald Archive on the online auction website, eBay.com. Even more concerning,
if the photographs sold on eBay.com did not have negative film
from which the photos were printed, thereby making the photos one-of-a-kind items, the Tri-Valley Herald Archive has been irreparably harmed.
R.
East County Times
357.
In or about November 20l3,the East County Times engaged in discussions with RPA
for the digitization of certain photographs and negatives (the "East County Times Archive") for the purpose of creating a digitized library of the East County Times Archive for the East County Times' reference and use. 67
358.
The East County Times and RPA never executed an agreement for the creation of a
digital library from the East County Times Archive.
359.
On or about December 12, 2013, RPA took possession of the East County Times
Archive.
360.
On or about December 15,2013, RPA accepted delivery of the East County Times
Archive at RPA's places of business, which were locate d at 2401 N. Poplar Street, North Little Rock, Arkansas,2501 N. Poplar Street, North Little Rock, Arkansas, and l15 E.24th Street, North Little Rock, Arkansas.
361.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things, that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
with the exhibits attached thereto, revealed among other things RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
362.
On November 17,2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action. 363
.
On January 5, 2015 , McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
364.
By letter dated May 15,2015, the East County Times demanded that RPA return the
East County Times Archive.
365. has
A copy of the May 15, 2015 demand letter is attached
as
Exhibit
2.
RPA has no rights in the East County Times Archive. RPA does not now "own," nor
it ever "owned" nor otherwise held title to the East County Times Archive.
366.
Upon information and belief, the East County Times Archive is in the possession of
McAfee, the Receiver appointed in the FABT Action, at 2401 N. Poplar Street, North Little Rock, Arkansas and 115 E.24th Street, North Little Rock, Arkansas. The East County Times Archive is not
68
subject to the receivership in the FABT Action. McAfee unlawfully detains the East County Times
Archive.
367.
Upon information and belief, RPA, John
M.
Rogers andJor Angelica Rogers
wrongfully transferred and delivered some or all of the East County Times Archive to third parties who
will be named
as Defendants herein once they are
fully identif,red. Those persons are referred to
as
John Does.
368.
Upon information and belief, RPA, John M. Rogers and/or Angelica Rogers, and John
Does, sold some of the East County Times Archive on the online auction website, eBay.com. Even
more conceming,
if
the photographs sold on eBay.com did not have negative film from which the
photos were printed, thereby making the photos one-of-a-kind items, the East County Times Archive has been irreparably harmed.
S.
Alameda Times Star
369.
In or about November 2013, the Alameda Times Star engaged in discussions with RPA
for the digitization of certain photographs and negatives (the "Alameda Times Star Archive") for the purpose of creating a digitized library of the Alameda Times Star Archive for the East County Times' reference and use.
370.
The Alameda Times Star and RPA never executed an agreement for the creation of a
digital library from the Alameda Times Star Archive.
371.
On or about December 12,2013, RPA took possession of the Alameda Times Star
Archive.
372.
On or about December 15, 2013, RPA accepted delivery of the Alameda Times Star
Archive, in North Little Rock, Arkansas at RPA's places of business, which were located at 2401 N. Poplar Street, North Little Rock, Arkansas, 2501 N. Poplar Street, North Little Rock, Arkansas, and I
l5 E. 24th Street, North Little Rock,
Arkansas.
69
373.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things,
that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
with the exhibits attached thereto, revealed among other things RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
374.
On November 17, 2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action.
375.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
376.
By letter dated May 15,2075, the Alameda Times Star demanded that RPA return the
Alameda Times Star Archive. A copy of the May 15, 2015 demand letter is affached as Exhibit 2.
377.
RPA has no rights in the Alameda Times Star Archive. RPA does not now "own," rìor
has it ever "owned" nor otherwise held title to the Alameda Times Star Archive.
378.
Upon information and belief, the Alameda Times Star Archive is in the possession of
McAfee, the Receiver appointed in the FABT Action, at 2401 N. Poplar Street, North Little Rock, Arkansas and I l5 E.24th Sffeet, North Little Rock, Arkansas. The Alameda Times Star Archive is not subject to the receivership in the FABT Action. McAfee unlawfully detains the Alameda Times Star
Archive.
379.
Upon information and belief, RPA, John
M. Rogers,
andlor Angelica Rogers
wrongfully transferred and delivered some or all of the Alameda Times Star Archive to third parties who will be named as Defendants herein once they are fully identified. Those persons are referred to as John Does.
380.
Upon information and belief, RPA, John M. Rogers, and/or Angelica Rogers, and John
Does, sold some of the Alameda Times Star Archive on the online auction website, eBay.com. Even
70
more concerning,
if
the photographs sold on eBay.com did not have negative film from which the
photos were printed, thereby making the photos one-of-a-kind items, the Alameda Times Star has been
irreparably harmed.
T.
The Argus
381.
On or about November 2013, The Argus engaged in discussions with RPA for the
digitization of certain photographs and negatives (the "The Argus Archive") for the purpose of creating a digitized
library of The Argus Archive for The Argus' reference and use.
382.
The Argus and RPA never executed an agreement for the creation of a digital library
from The Argus Archive.
383.
On or about December 12, 2013, RPA took possession of The Argus Archive.
384.
On or about December 15,2013, RPA accepted delivery of The Argus Archive, in
North Little Rock, Arkansas at RPA's places of business, which were locatedat240l N. Poplar Street,
North Little Rock, Arkansas,250l N. Poplar Street, North Little Rock, Arkansas, and 115 E.24th Street, North
Little Rock, Arkansas.
385.
Upon information and belief, RPA is insolvent and no longer operating its business in
the ordinary course. On November 14,2014, FABT, in the FABT Action, alleged among other things, that RPA had defaulted on several loans extended by FABT to RPA. The FABT Complaint, together
with the exhibits attached thereto, revealed among other things RPA's true troubled financial condition and insolvency and also that RPA had not been operating in the ordinary course for some time.
386.
On November 17,2014, FABT filed the FABT Motion seeking the appointment of
McAfee as Receiver in the FABT Action. 387
.
On January 5,2015, McAfee was appointed Receiver by the Court for the "Borrower
Collateral" and the "PAP Collateral" as defined by the FABT Complaint in the FABT Action.
7l
388. By letter dated May 15, 2015, The Argus demanded
that RPA return The Argus
Archive. A copy of the May 15, 2015 demand letter is attached as Exhibit 2.
389.
RPA has no rights in The Argus Archive. RPA does not now "own," nor has it ever
"owned" nor otherwise held title to The Argus Archive.
390.
Upon information and belief, The Argus Archive is in the possession of McAfee, the
Receiver appointed in the FABT Action, at 2401 N. Poplar Street, North Little Rock, Arkansas and 115 E.24th Street, North
Little Rock, Arkansas. The Argus Archive is not subject to the receivership
in the FABT Action. McAfee unlawfully detains The Argus Archive.
39I.
Upon information and belief, RPA, John M. Rogers, and,/or Angelica
Rogers
wrongfully transferred and delivered some or all of The Argus Archive to third parties who will be named as Defendants herein once they are fully identified. Those persons are referred to as John Does.
392.
Upon information and beliet RPA, John M. Rogers, and/or Angelica Rogers, and John
Does, sold some
of The Argus Archive on the online auction website, eBay.com. Even
more
concerning, if the photographs sold on eBay.com did not have negative film from which the photos were printed, thereby making the photos one-of-a-kind items, The Argus has been irreparably harmed.
DEFENDANTS WHO MAY CLAIM AN INTEREST IN THE MEDIANEWS ARCHIVE
393.
The Plaintiffs incorporate Paragraphs
394.
Defendant FABT may claim an interest the MediaNews Archive as a result of a UCC
l-392,
supra, into this Paragraph.
Financing Statement filed December 20,201l, as UCC Filing ID: 40000041965180, in the office of
the Arkansas Secretary of State. Any interest of FABT in the MediaNews Archive is inferior and subordinate to the Plaintiffs' interests.
395.
Defendant Hogan may claim an interest in the MediaNews Archive, including Oakland
Tribune negatives acquired from Zuma Press, as a result of a UCC Financing Statement filed June 19,
2013, as UCC Filing
ID:
40000071266894, amending
72
Initial Financing Statement File
No.
40000035436914, in the office of the Arkansas Secretary
of
State.
Any interest of Hogan in the
MediaNews Archive is inferior and subordinate to the Plaintiffs' interests.
396.
Defendant FCB may claim an interest in the MediaNews Archive, as a result of a UCC
Financing Statement filed June 26,2013, as UCC Filing ID: 40000071641083, in the office of the Arkansas Secretary of State. Any interest of FCB in the MediaNews Archive is inferior and subordinate
to the Plaintiffs' interests.
397.
Defendant BoLR may claim an interest in the MediaNews Archive, including the
Digital First Media Collection comprised of photos and negatives from the Oakland Tribune, Contra Costa Times, San Jose Mercury News, El Paso Times, St. Paul Pioneer Express, Salt Lake Tribune,
New Haven Register, Berkshire Eagle and negatives from The Denver Post, as a result of a UCC FinancingStatementfiledApril 14,2014, asUCC FilingID: 14-0011695633, intheofficeofthe Texas Secretary of State and a UCC Financing Statement filed April 15, 2014, as UCC Filing ID: 40000087239891, in the ofhce of the Arkansas Secretary
of State. Any interest of BoLR in
the
MediaNews Archive is inferior and subordinate to the Plaintiffs' interests.
398.
Defendant Providence may claim an interest in the MediaNews Archive, including the
copyright and ownership of the Salt Lake Tribune archive, as a result of a UCC Financing Statement
filed April 21,2014, as UCC Filing ID: 19199940, in the office of the Illinois Secretary of State. Any interest of Providence in the MediaNews Archive is inferior and subordinate to the Plaintiffs' interests.
399.
Defendant Failing may claim an interest in the MediaNews Archive, including the San
Gabriel Valley Times archive of photographs and graphic images, negatives and digital reproductions of the archive, as a result of a UCC Assignment and Security Agreement executed by John M. Rogers
October 17,2014, and filed as UCC Filing ID: 40000097671347, in the office of the Arkansas Secretary of State. Any interest of Failing in the MediaNews Archive is inferior and subordinate to the
Plaintiffs' interests.
73
400.
Defendant Failing may claim an interest in the MediaNews Archive, including the San
Gabriel Valley Tribune archive of photographs and graphic images, including negatives and digital reproductions of the archive and an assignment of all rights and interests arising in connection with a Photo Archive Acquisition Library and Digital Library Services Agreement between Sgt73, LLC, JMFR, LLC, and Los Angeles Daily News, as a result of a UCC Assignment and Security Agreement executed by John M. Rogers on December 23,2074, and filed as UCC Filing ID: 4000010091353, in
the offrce of the Arkansas Secretary of State. Any interest of Failing in the MediaNews Archive is inferior and subordinate to the Plaintiffs' interests.
401.
Defendant Demos may claim an interest in the MediaNews Archive, including Oakland
Tribune negatives dated from 1969-1976
(,See
Answer of Separate Defendant George Demos, filed in
the FABT Action on December 31,2014). Any interest of Demos in the MediaNews Archive is inferior
and subordinate to the Plaintiffs' interests.
402.
Defendant Conner may claim an interest in the MediaNews Archive, including the
Digital First Photographic Archive, as a result of a UCC Financing Statement filed January 23,2015, as
UCC Filing ID: 40000102172572 in the office of the Arkansas Secretary of State. Any interest of
Conner in the MediaNews Archive is inferior and subordinate to the Plaintifß' interests.
403. Defendant Hogan may claim an interest in the MediaNews
Archive, as a result of a
consent judgment in his favor against John M. Rogers and Sports Cards Plus, Inc. d/b/a Rogers Photo
Archive, filed January 21,2015. Any interest of Hogan in the MediaNews Archive is inferior and subordinate to the Plaintiffs' interests.
404.
Defendant FABT may claim an interest in the MediaNews Archive, as a result of a
judgment in its favor against Sports Cards Plus, Inc. d/b/a Rogers Photo Archive, Planet Giant, LLC and Digital Stock Planet,LLC, filed
April 15,2015. Any interest of FABT in the MediaNews Archive
is inferior and subordinate to the Plaintiffs' interests.
74
COUNT
405.
I.
CONVERSION
The Plaintiffs incorporate Paragraphs
406. Upon information
and
I-404,
supra, into this Paragraph.
beliel the MediaNews Archive
and the Zuma Press Negatives
are in the possession or under the control of Defendants RPA, PAP, Legendary Photos, John
M. Rogers,
Angelica Rogers, Newport, Conner, Doug Allen, Amy Allen, the John Doe Defendants or McAfee. Despite demand they have failed and refused and continue to fail and refuse, to return the MediaNews
Archive and the Zuma Press Negatives to the Plaintiffs.
407. Upon information
and belief, RPA, PAP, Legendary Photos, John
M. Rogers, Angelica
Rogers, Newport, Conner, Doug Allen, Amy Allen, John Does, McAfee and/or the other Defendants have sold and continue to attempt to sell or otherwise dispose of the MediaNews Archive and the Zuma Press Negatives.
408.
The Plaintiffs own and are entitled to immediate possession of the MediaNews Archive
and the Zttma Press Negatives.
409. By withholding the MediaNews Archive
from the Plaintiffs and by offering
the
MediaNews Archive and the Zuma Press Negatives for sale, RPA intentionally committed specific acts
of dominion over the MediaNews Archive and the Ztma Press Negatives.
410.
The Plaintiffs state that these acts of dominion are inconsistent with the Plaintiffs'
rights as the owners of the MediaNews Archive and the Zuma Press Negatives.
4ll.
The Defendants RPA, PAP, Legendary Photos, John M. Rogers, Angelica Rogers,
Newport, Conner, Doug Allen, Amy Allen, John Does and/or McAfee have no right or title to the MediaNews Archive or the Zuma Press Negatives because any claimed interest on their part was procured by fraud.
412.
The Plaintiffs suffered damage as a result of the conversion of the MediaNews
Archive and the Zuma Press Negatives by the Defendants RPA, PAP, Legendary Photos, John M. Rogers, Angelica Rogers, Newport, Conner, Doug Allen, Amy Allen, John Does and/or McAfee. 75
Because the MediaNews Archive and the Zuma Press Negatives constitute valuable and important assets of the Plaintiffs necessary for the operation of the
Plaintifß' newspapers, the Plaintiffs have
been damaged by the loss of the MediaNews Archive and the
Ztma
Press Negatives, by the loss
of
the value of the MediaNews Archive and the Zurma Press Negatives since the Plaintiffs no longer have physical possession of the archives, and by an overall diminution of each Plaintiffs' valuation.
COUNT
II - REOUEST FOR ORDER OF DELIVERY - ARK. CODE ANN. 8 18-60-808
4I3.
The Plaintiffs incorporate Paragraphs
414.
Upon information and belief, the MediaNews Archive and the Zuma Press Negatives
l-412,
supra, into this Paragraph.
are in the possession of RPA and/or the other Defendants.
415.
Where there are agreements between the Plaintiff newspapers and RPA, as a result
of
the terminations of the agreements, the Plaintiffs are entitled to immediate possession of the MediaNews Archive. Under the terms
of those
agreements, RPA was required
to deliver
the
MediaNews Archive to the Plaintiffs on or before ll4ay 26, 2015. That date has passed and the Defendants retain possession of the MediaNews Archive. The Plaintifß are entitled to immediate possession of the MediaNews Archive.
416.
The Plaintiffs' rights to possession of the MediaNews Archive and the Zuma Press
Negatives are superior to any right asserted, or that could be asserted,by any Defendant hereto.
417. RPA and/or the other Defendants have possession and unlawfully
detain the
MediaNews Archive and the Ztma Press Negatives under a false claim of ownership or right to possession.
418.
Upon information and belief, RPA and/or the other Defendants are engaged in efforts
to sell or otherwise dispose of the MediaNews Archive and the Ztma Press Negatives.
419.
The Plaintiffs seek, pursuant to Ark. Code Ann. $ 18-60-801 et seq., an immediate
Order of Delivery of the MediaNews Archive and the Zuma Press Negatives and finding that the
Plaintiffs are entitled to immediate possession thereof and ordering RPA and/or the other Defendants 76
holding possession of the MediaNews Archive and the Zuma Press Negatives
to deliver
the
MediaNews Archive and the Zuma Press Negatives to the Plaintiffs.
420. The Plaintiffs are entitled to damages
for the wrongful detention of the MediaNews
Archive and the Zuma Press Negatives, including their costs and attorneys' fees. 421
.
The Plaintiffs pray for an immediate hearing in order to present p rima facie evidence
that the Plaintifß have the right to immediate possession of the MediaNews Archive and the Zuma Press Negatives.
COUNT III
422.
- FRAUD
The Plaintiffs incorporate Paragraphs
423. Upon information
l-421,
supra, into this Paragraph.
and belief, at all times relevant to this action, John M. Rogers was
an authorized representative of RPA, acting as its shareholder, President, and Chairman.
424.
Upon information and belief, at all times relevant to this action, John M. Rogers was
acting on his individual behalf, as well as on behalf of RPA as an authorized representative of RPA.
425.
Upon information and belief, at all times relevant to this action, Angelica Rogers was
an authorized representative of RPA, acting as an agent.
426.
Upon information and belief, at all times relevant to this action, Angelica Rogers was
acting on her own individual behalf, as well as on behalf of RPA as an authorized representative of RPA.
427.
Upon information and belief, John M. Rogers assigned and conveyed his interest in
RPA to Angelica Rogers pursuant to a Divorce Decree entered on October 21,2014 in the Circuit Court of Pulaski County Case No. 60DR-14-3603.
428.
John M. Rogers made false representations of material facts when he represented to
the Plaintiffs that he was highly skilled, knowledgeable and experienced at digitizing, or "scanning" photographs and negatives for the creation of a digital library for newspapers. In particular, John M.
77
Rogers was not highly skilled, knowledgeable or experienced at successfully digitizing or "scanning" photographs using the business model he described to the Plaintiffs with respect to their photographs and negatives. John M. Rogers knew that the business model he described to the Plaintiffs for the
creation of their digital libraries was not economically viable or sustainable and he knew when he made the representations, and afterwards, that he and Angelica Rogers would disregard and deviate
from the representations he made to the Plaintiffs in order to perpetuate, or attempt to perpetuate,
RPA's operations and generation of revenue, from which John M. Rogers would personally plunder and deplete RPA's assets to his benefit, and to the detriment of the Plaintiffs.
429.
John M. Rogers and Angelica Rogers made false representations of material facts
when they represented to the Plaintiffs that they had the necessary staff, facilities and equipment to create a digital library for the Plaintifß, including the cleaning, or removal of marks and notations on
the prints prior to scanning them, and the addition of metadata to the scanned images, including
photo captions, bylines, photographer, etc., so that the images would be high quality and easily indexed and searched. In particular, RPA, John M. Rogers and Angelica Rogers did not have the necessary staff, facilities and equipment to create a digital library for the Plaintiffs using the business
model John M. Rogers described to the Plaintiffs with respect to their photographs and negatives. John M. Rogers and Angelica Rogers knew that the business model John M. Rogers described to the
Plaintiffs for the creation of their digital library was not economically viable or sustainable and John M. Rogers and Angelica Rogers knew when they made the representations, and afterwards, that they would disregard and deviate from the representations he made to the Plaintiffs in order to perpetuate, or attempt to perpetuate, RPA's operations and generation of revenue, from which John M. Rogers and Angelica Rogers would personally plunder and deplete RPA's assets to their benefit, and to the
detriment of the Plaintiffs.
430.
John M. Rogers and Angelica Rogers made a false representation of a material fact
when they represented to the Plaintiffs that RPA was a financially sound, viable company. In 78
particular, John M. Rogers and Angelica Rogers knew when they made the representation to the
Plaintiffs that RPA was not a financially sound, viable company. John M. Rogers and Angelica Rogers knew when they made the false representations that they had no experience at sustaining RPA as a
financially sound and viable company using the business model Rogers described to the
Plaintiffs with respect to their photographs and negatives. John M. Rogers and Angelica Rogers knew that when they made the false representation that they had no experience at sustaining RPA as a
financially sound and viable company using the business model Rogers described to the Plaintiffs
with respect to their photographs and negatives. John M. Rogers knew that the business model he described to the Plaintiffs for the creation of their digital library was not economically viable or sustainable, and John M. Rogers knew when he made the representations, and afterwards, that he and
Angelica Rogers would disregard and deviate from the representations he made to the Plaintifß in order to perpetuate, or attempt to perpetuate RPA's operations and generation of revenue, from
which John M. Rogers and Angelica Rogers would personally plunder and deplete RPAs assets to their benefit, and to the detriment of the Plaintiffs.
431.
John M. Rogers and Angelica Rogers made a false representation of a material fact
when they represented that RPA would clean, scan and add metadata to the MediaNews Archive and
allow the Plaintiffs to inspect and approve the digital archives before John M. Rogers and/or Angelica Rogers or RPA would sell any images from the archives. In particular, RPA, John M. Rogers and Angelica Rogers did not have the necessary staff, facilities and equipment to clean, scan and add metadata to the MediaNews Archive and allow the Plaintiffs to inspect and approve the
digital archives, before John M. Rogers, Angelica Rogers or RPA would sell any images from the archives, using the business model John M. Rogers described to the Plaintiffs with respect to their photographs and negatives. John M. Rogers knew that the business model he described to the
Plaintiffs for cleaning, scanning and adding metadata to the MediaNews Archive was not economically viable or sustainable and John M. Rogers knew when he made the representations, and 79
afterwards, that he and Angelica Rogers would disregard and deviate from the representations he made to the Plaintiffs in order to perpetuate, or attempt to perpetuate, RPA's operations and
generation of revenue, from which John M. Rogers and Angelica Rogers would personally plunder and deplete RPA's assets to their benefit, and to the detriment of the Plaintiffs.
432.
John M. Rogers and Angelica Rogers made a false representation of a material fact
when they represented that RPA would contract with persons or entities in India to add metadata to the MediaNews Archive. In particular, RPA, John M. Rogers and Angelica Rogers did not have or obtain the necessary contracts with persons or entities in India to add metadata to the MediaNews
Archive. John M. Rogers and Angelica Rogers knew that the business model John M. Rogers described to the Plaintiffs for adding metadata to the MediaNews Archive'üas not economically
viable or sustainable and John M. Rogers and Angelica Rogers knew when John M. Rogers made the representations, and afterwards, that they would disregard and deviate from the representations they made to the Plaintiffs in order to perpetuate, or attempt to perpetuate, RPA's operations and
generation of revenue, from which John M. Rogers and Angelica Rogers would personally plunder and deplete RPA's assets to their benefit, and to the detriment of the Plaintiffs.
433.
John M. Rogers and Angelica Rogers made false representations of material facts
when they represented that RPA would develop, market, and maintain a website for each Plaintiff for hosting, editorial licensing, and selling commercial products for the MediaNews Archive. In
particular, John M. Rogers and Angelica Rogers did not have the necessary staff, facilities and equipment to develop, market, and maintain a website for each Plaintiff for hosting, editorial
licensing, and selling commercial products for the MediaNews Archive using the business model John M. Rogers described to the Plaintiffs with respect to their photographs and negatives. John M. Rogers knew that the business model described to the Plaintiffs for developing, marketing, and
maintaining a website for each Plaintiff for hosting, editorial licensing, and selling commercial products for the MediaNews Archive was not economically viable or sustainable and John M. Rogers 80
knew when he made the representations, and afterwards, that he and Angelica Rogers would disregard and deviate from the representations made to the Plaintiffs in order to perpetuate, or attempt to perpetuate, RPA's operations and generation of revenue, from which John M. Rogers and
Angelica Rogers would personally plunder and deplete RPA's assets to their benefit, and to the detriment of the Plaintiffs.
434.
John M. Rogers and Angelica Rogers made a false representation of a material fact
when they represented that they would pay to the Plaintifß a percentage of all profits of new sales
from the sales of products related to the images from the MediaNews Archive and copyrighted by the
Plaintiff newspapers. In particular, John M. Rogers and Angelica Rogers did not have the necessary
staff facilities and equipment to allow and enable RPA to pay to the Plaintiffs a percentage of all prohts of new sales from the sales of products related to the images from the MediaNews Archive and copyrighted by the Plaintiff newspapers using the business model John M. Rogers described to
the Plaintiffs with respect to their photographs and negatives. John M. Rogers knew that the business
model described to the Plaintiffs for paying to the Plaintiffs a percentage of all profits of new sales from the sales of products related to the images from the MediaNews Archive was not economically viable or sustainable and John M. Rogers knew when he made the representations, and afterwards, that he and Angelica Rogers would disregard and deviate from the representations he made to the
Plaintiffs in order to perpetuate, or attempt to perpetuate, RPA's operations and generation of revenue, from which John M. Rogers and Angelica Rogers would personally plunder and deplete
RPA's assets to their benefit, and to the detriment of the Plaintiffs.
435.
The false representations set forth in paragraphs 428 through 434 were false
representations of material facts because those facts were material to the Plaintiffs in their decisions
to choose John M. Rogers, Angelica Rogers, and RPA to digitize the MediaNews Archive.
8l
436. John M. Rogers, Angelica Rogers and RPA knew when the representations were made to the Plaintifß that the representations were false. Similarly, John M. Rogers, Angelica
Rogers and RPA knew that later representations were equally or more false.
437.
John M. Rogers and Angelica Rogers knew when they made the false representations
to the Plaintiffs that RPA was not financially viable or sustainable, because before and after they made the false representations, John M. Rogers was causing fraudulent financial statements to be issued, or actively participating in the issuance of fraudulent financial statements, that were
materially misleading or so inaccurate as to make them worthless. John M. Rogers and Angelica Rogers knew that because RPA's business was not financially viable or sustainable, RPA and John
M. Rogers and Angelica Rogers, individually, would need immediate access to, or infusion of, large amounts of money to perpetuate prior and continuing fraudulent schemes and that RPA, John M. Rogers and Angelica Rogers would pilfer, purloin and otherwise steal from the MediaNews Archive as soon as RPA, John
M. Rogers and Angelica Rogers got possession of the archive by immediately
selling anything of value for RPA's, and consequently John M. Rogers' and Angelica Rogers', direct benefit, without creating a digital library or providing any accounting for revenue and sales from the MediaNews Archive.
438.
John M. Rogers and Angelica Rogers knew that RPA did not have adequate staff or
facilities to perform the commitments made to the Plaintiffs. [n particular, John M. Rogers and Angelica Rogers knew that RPA did not have adequate staff or facilities to perform the commitments made to the Plaintiffs before, during, and after the date that RPA, John M. Rogers and Angelica Rogers made the commitments and before, during, and after the date that RPA, John M. Rogers and
Angelica Rogers obtained the MediaNews Archive from the Plaintiffs.
439.
John M. Rogers and Angelica Rogers knew at the time the false representations were
made to the Plaintifß that neither RPA, John M. Rogers or Angelica Rogers intended to digitize the
MediaNews Archive, but they wanted possession of the MediaNews Archive to sell valuable images 82
and products related to the images for their direct benefit and to use the MediaNews Archive to
perpetuate the RPA, John M. Rogers and Angelica Rogers schemes to defraud other investors and creditors, as evidenced by McAfee's First Quarterly Report of Receiver filed April 30, 2015, other
filed lawsuits against RPA, John M. Rogers and Angelica Rogers and claimants asserting an ownership interest in the MediaNews Archive.
440.
John M. Rogers and Angelica Rogers knew at the time the representations were made
that they did not intend to develop, market, and maintain a website for each Plaintiff for hosting,
editorial licensing, and selling commercial products for the MediaNews Archive.
441.
RPA and John M. Rogers intended to induce the Plaintiffs to allow RPA to acquire
the MediaNews Archive, and in fact, the Plaintiffs relied upon John M. Rogers' false representations and allowed John M. Rogers and RPA to take possession of the MediaNews Archive.
442.
As part of RPA's and John M. Rogers' scheme to induce the Plaintiffs to allow RPA
to acquire the MediaNews Archive, John M. Rogers or other representatives of RPA submitted archive questions to the Plaintifß, ostensibly to develop a business relationship with the Plaintiffs,
but in reality the answers to the archive questions were for RPA, John M. Rogers and Angelica Rogers to deceitfully and surreptitiously acquire knowledge of the value of the MediaNews Archive,
which RPA, John M. Rogers and Angelica Rogers later used to their advantage and to the detriment of the Plaintiffs. Subsequently, John M. Rogers, Angelica Rogers or other representatives of RPA visited various newspapers and examined the archives, again ostensibly to develop a business relationship with the Plaintifß, but in reality for RPA, John M. Rogers and Angelica Rogers to deceitfully and surreptitiously acquire knowledge of the value of the MediaNews Archive, again, which RPA, John M. Rogers and Angelica Rogers later used to their advantage and to the detriment of the Plaintifß. Further, RPA and John M. Rogers asserted that the value of the individual archives would be used, in part, as the basis for RPA to obtain and maintain insurance on the archives. Based
83
upon these actions and inducements, the Plaintiffs relied upon John M. Rogers' and Angelica
Rogers' deceit and allowed John M. Rogers and RPA to take possession of the MediaNews Archive.
443.
John M. Rogers and RPA falsely represented to the Plaintiffs that RPA would obtain
and maintain insurance on the MediaNews Archive and provide certificates of insurance to the
Plaintiffs. In fact, John M. Rogers and RPA never obtained or maintained insurance on the MediaNews Archive and never provided certificates of insurance to the Plaintiffs.
444.
The Plaintiffs justifiably relied on John M. Rogers' representations in making their
decision to allow John M. Rogers and RPA to take possession of the MediaNews Archive, because John M. Rogers referred to large scale digital libraries created for Fairfax Media Management PTY
Limited ("Fairfax") and The New York Post. In fact, John M. Rogers had not successfully created a large scale digital library for any other newspaper using the business model John M. Rogers described to the Plaintifß with respect to their photographs and negatives. As evidence that John M.
Rogers' representations to the Plaintiffs were false and that RPA did not create a large scale digital
library for Fairfax, subsequently Fairfax sued RPA and John M. Rogers and is an Intervenor in the FABT Action.
445.
John M. Rogers', Angelica Rogers' and RPA's actions constitute fraud and they are
liable to Plaintiffs for all resulting damages. The contracts entered into by the El Paso Times, the Berkshire Eagle, the Contra Costa Times, the Oakland Tribune, San Jose Mercury, the Salt Lake Tribune, The Denver Post, and RPA were induced by fraud; thus, the contracts are void ab initio.
446.
The Plaintiffs suffered damage as a result of John M. Rogers' and Angelica Rogers'
false representations because the MediaNews Archive constitutes a valuable and important asset
of
the Plaintiffs and necessary for the operation of the Plaintiffs' ne,wspapers. The MediaNews Archive has been fraudulently taken from the Plaintiffs and therefore, the Plaintiffs have been damaged by the loss of the MediaNews Archive, by the loss of the value of the MediaNews Archive since the
84
Plaintiffs no longer have physical possession of the archives, and by an overall diminution of each
Plaintifß' valuation.
447.
As a direct and proximate result of the fraud committed by John M. Rogers, Angelica
Rogers and RPA, the Plaintiffs have incurred significant and substantial damages.
448. The amount of the damages established attrial of this case will exceed the amount necessary for federal diversity of citizenship jurisdiction.
449. As a direct and proximate result of the fraud, Plaintiffs are entitled to recover from John M. Rogers, Angelica Rogers and RPA,
jointly
and severally, actual damages in an appropriate
amount as established at trial, plus pre-judgment and post-judgment interest and costs, including
attorneys' fees, all as provided by applicable law.
450.
Further, in order to punish John M. Rogers, Angelica Rogers and RPA for their
willful, intentional, malicious
and wrongful fraud, and to deter others similarly situated from
engaging in similar conduct in the future, Plaintiffs should be awarded punitive damages, in an amount to be determined at trial, to deter such future conduct.
COUNT IV
-
FRAUD IN THE INDUCEMENT
451.
The Plaintiffs incorporate Paragraphs
452.
Upon information and belief, at all times relevant to this action, John M. Rogers was
l-450,
supra, into this Paragraph.
an authorized representative of RPA, acting as its shareholder, President, and Chairman.
453.
Upon information and belief, at all times relevant to this action, John M. Rogers was
acting on his individual behalf, as well as on behalf of RPA as an authorized representative of RPA.
454.
Upon information and belief, at all times relevant to this action, Angelica Rogers was
an authorized representative of RPA, acting as an agent.
85
455. Upon information
and belief, at all times relevant to this action, Angelica Rogers was
acting on her own individual behalf, as well as on behalf of RPA as an authorized representative of RPA.
456.
Upon information and belief, John M. Rogers assigned and conveyed his interest in
RPA to Angelica Rogers pursuant to a Divorce Decree entered on October 21,2014 in the Circuit Court of Pulaski County Case No. 60DR-14-3603.
457.
John M. Rogers falsely represented information to the Plaintiffs that he was highly
skilled, knowledgeable and experienced at digitizing, or "scanning" photographs and negatives for the creation of a digital library for newspapers. In particular, John M. Rogers was not highly skilled, knowledgeable or experienced at successfully digitizing or "scanning" photographs using the business model he described to the Plaintiffs with respect to their photographs and negatives. John
M. Rogers knew that the business model he described to the Plaintiffs for the creation of their digital libraries was not economically viable or sustainable and he knew when he made the representations, and afterwards, that he and Angelica Rogers would disregard and deviate from the representations he made to the Plaintiffs in order to perpetuate, or attempt to perpetuate, RPA's operations and
generation of revenue, from which John M. Rogers would personally plunder and deplete RPA's assets to his benefit, to the detriment of the Plaintiffs.
458.
John M. Rogers and Angelica Rogers falsely represented information to the Plaintiffs
regarding RPA's staff, facilities, and equipment to create a digital library for the Plaintiffs, including the cleaning or removal of marks and notations on the prints prior to scanning them, and the addition
of metadata to the scanned images and concealed and misrepresented material information to the Plaintiffs. In particular, RPA, John M. Rogers and Angelica Rogers did not have the necessary staff, facilities and equipment to create a digital library for the Plaintiffs using the business model John M. Rogers described to the Plaintiffs with respect to their photographs and negatives. John M. Rogers 86
and Angelica Rogers knew that the business model Rogers described to the Plaintiffs for the creation
of their digital library was not economically viable or sustainable and John M. Rogers and Angelica Rogers knew when he made the representations, and afterwards, that they would disregard and deviate from the representations he made to the Plaintiffs in order to perpetuate, or attempt to perpetuate RPA's operations and generation of revenue, from which John M. Rogers and Angelica Rogers would personally plunder and deplete RPA's assets to their benefit and to the detriment of the
Plaintiffs.
459.
John M. Rogers and Angelica Rogers falsely represented information to the Plaintiffs
that RPA would clean, scan and add metadata to the Media News Archives and allow the Plaintiffs to inspect and approve the digital archives before John M. Rogers, Angelica Rogers or RPA would sell any images from the MediaNews Archive.
In particular, RPA, John M. Rogers and Angelica Rogers did not have the necessary staff,
facilities and equipment to clean, scan and add metadata to the MediaNews Archive and allow the Plaintiffs to inspect and approve the digital archives, before John M. Rogers, Angelica Rogers or RPA would sell any images from the archives, using the business model John M. Rogers described to the Plaintiffs with respect to their photographs and negatives. John M. Rogers knew that the business model he described to the Plaintiffs for cleaning, scanning and adding metadata to the MediaNews
Archive was not economically viable or sustainable and John M. Rogers knew when he made the representations, and afterwards, that he and Angelica Rogers would disregard and deviate from the representations he made to the Plaintifß in order to perpetuate, or attempt to perpetuate, RPA's operations and generation of revenue, from which John M. Rogers and Angelica Rogers would personally plunder and deplete RPA's assets to their beneht and to the detriment of the Plaintiffs.
460.
John M. Rogers and Angelica Rogers falsely represented information to the Plaintiffs
that RPA would develop, market, and maintain a website for each Plaintiff for hosting, editorial
licensing, and selling commercial products for the MediaNews Archive. In particular, John M. 87
Rogers and Angelica Rogers did not have the necessary staff, facilities and equipment to develop, market, and maintain a website for each Plaintiff for hosting, editorial licensing, and selling
commercial products for the MediaNews Archive using the business model John M. Rogers described to the Plaintiffs with respect to their photographs and negatives. John M. Rogers knew that the business model described to the Plaintiffs for developing,
marketing, and maintaining a website for each Plaintiff for hosting, editorial licensing, and selling commercial products for the MediaNews Archive was not economically viable or sustainable and John M. Rogers knew when he made the representations, and afterwards, that he and Angelica Rogers would disregard and deviate from the representations made to the Plaintiffs in order to perpetuate, or attempt to perpetuate, RPA's operations and generation of revenue, from which John
M. Rogers and Angelica Rogers would personally plunder and deplete RPA's assets to his benefit, and to the detriment of the Plaintiffs.
461. John M. Rogers and Angelica
Rogers falsely represented material information to the
Plaintiffs regarding RPA's financial stability and viability. In particular, John M. Rogers and Angelica Rogers knew when they made the representation to the Plaintiffs that RPA was not a
financially sound, viable company. John M. Rogers and Angelica Rogers knew when they made the false representations that they had no experience at sustaining RPA as a financially sound and viable company using the business model Rogers described to the Plaintiffs with respect to their photographs and negatives. John M. Rogers and Angelica Rogers knew that when they made the false representation that they had no experience at sustaining RPA as a financially sound and viable company using the business model Rogers described to the Plaintifß with respect to their photographs and negatives. John M. Rogers knew that the business model he described to the
Plaintiffs for the creation of their digital library was not economically viable or sustainable, and John M. Rogers knew when he made the representations, and afterwards, that he and Angelica Rogers would disregard and deviate from the representations he made to the Plaintiffs in order to perpetuate, 88
or attempt to perpetuate RPA's operations and generation of revenue, from which John M. Rogers and Angelica Rogers would personally plunder and deplete RPAs assets to their benefrt and to the
detriment of the Plaintiffs.
462.
John M. Rogers and Angelica Rogers made these false representations or material
withholdings to the Plaintiffs with the knowledge that their representations were false or that there was insufficient evidence or information upon which to make those representations.
463.
John M. Rogers and Angelica Rogers made the false representations or material
withholdings to the Plaintiffs with the intent to induce action in reliance upon the representationsnamely for the Plaintiffs to enter into contractual relationships with RPA, and subsequently, for RPA to retain the MediaNews Archive and market and sell images related to the photographic and negative MediaNews Archive for its direct benefit (thereby, John M. Rogers' and Angelica Rogers' direct benefit) without the creation of any digital libraries for the Plaintifß.
464.
The contracts entered into by the El Paso Times, the Berkshire Eagle, the Contra
Costa Times, the Oakland Tribune, San Jose Mercury, the Salt Lake Tribune, The Denver Post and
RPA were induced by fraud; thus, the contracts are void ab initio.
465.
The Plaintifß have been damaged by RPA, John M. Rogers' and Angelica Rogers'
actions, for which they are entitled to compensatory damages for the loss the MediaNews Archive,
for the loss of the value of the MediaNews Archive since the Plaintiffs no longer have physical possession of the archives, and by an overall diminution of each Plaintiffs' valuation.
COUNT V- CONSTRUCTIVE FRAUD
466.
The Plaintiffs incorporate Paragraphs
467.
Upon information and belief, at all times relevant to this action, John M. Rogers was
l-452,
suprq, into this Paragraph.
an authorized representative of RPA, acting as its shareholder, President, and Chairman.
89
468.
Upon information and belief, at all times relevant to this action, John M. Rogers was
acting on his individual behalf,, as well as on behalf of RPA as an authorized representative of RPA.
469. Upon information
and belief, at all times relevant to this action, Angelica Rogers was
anauthorized representative of RPA, acting as an agent.
470.
Upon information and belief, at all times relevant to this action, Angelica Rogers was
acting on her own individual behalt as well as on behalf of RPA as an authorized representative
of
RPA.
471.
Upon information and belief, John M. Rogers assigned and conveyed his interest in
RPA to Angelica Rogers pursuant to a Divorce Decree entered on October 21,2014 in the Circuit Court of Pulaski County Case No. 60DR-14-3603.
472.
John M. Rogers and Angelica Rogers falsely represented information to the Plaintiffs
regarding RPA's staff, facilities, and equipment to create a digital library for the Plaintifß, including the cleaning or removal of marks and notations on the prints prior to scanning them, and the addition
of metadata to the scanned images; that RPA would clean, scan and add metadata to the Media News
Archive and allow the Plaintiffs to inspect and approve the digital archives before John M. Rogers, Angelica Rogers or RPA would sell any images from the MediaNews Archive; and that RPA would develop, market, and maintain a website for each Plaintiff for hosting, editorial licensing, and selling
commercial products for the MediaNews Archive.
473.
John M. Rogers and Angelica Rogers concealed and misrepresented material
information to the Plaintifß.
474.
John M. Rogers and Angelica Rogers made these false representations or material
withholdings to the Plaintiffs with the knowledge that their representations were false or that there was insufficient evidence or information upon which to make those representations. 47
5.
John M. Rogers and Angelica Rogers made the false representations or material
withholdings to the Plaintiffs with the intent to induce action in reliance upon the representations90
namely for the Plaintiffs to enter into contractual relationships with RPA, and subsequently, for RPA to retain the MediaNews Archive and market and sell images related to the photographic and negative MediaNews Archive for its direct benefit (and thereby, John M. Rogers' and Angelica Rogers') direct benefit without the creation of any digital libraries for the Plaintiffs. The Plaintiffs justifiably relied on the misrepresentations made by John M. Rogers.
476.
The contracts entered into by the El Paso Times, the Berkshire Eagle, the Contra
Costa Times, the Oakland Tribune, San Jose Mercury, the Salt Lake Tribune, The Denver Post and
RPA were induced by fraud; thus, the contracts are void ab initio.
477.
The Plaintiffs have been damaged by John M. Rogers' and Angelica Rogers' actions,
for which they are entitled to compensatory and punitive damages.
COUNT VI
- UNJUST ENRICHMENT
478.
The Plaintifß incorporate Paragraphs
479.
Upon information and belief, John M. Rogers was at all times relevant to this action
l-477,
supra, into this Paragraph.
an authorized representative of RPA, acting as its shareholder, President, and Chairman.
480.
Upon information and belief, at all times relevant to this action, John M. Rogers was
acting on his individual behalf, as well as on behalf of RPA as an authorized representative of RPA.
481.
Upon information and belief, at all times relevant to this action, Angelica Rogers was
an authorized representative of RPA, acting as an agent.
482.
Upon information and belief, at all times relevant to this action, Angelica Rogers was
acting on her own individual behalf, as well as on behalf of RPA as an authorized representative of RPA.
483.
Upon information and belief, John M. Rogers assigned and conveyed his interest in
RPA to Angelica Rogers pursuant to a Divorce Decree entered on October 21,2014 in the Circuit Court of Pulaski County Case No. 60DR-14-3603.
9l
484.
During the course of the business relationship with RPA, the Plaintifß conferred
substantial benefits upon John M. Rogers, Angelica Rogers and RPA, specifically, through allowing
RPA to take possession of the MediaNews Archive conditioned upon assurances that RPA could and would create digital libraries for the Plaintifß from the MediaNews Archive.
485.
John M. Rogers, Angelica Rogers and RPA accepted the benefits conferred upon them by
the Plaintiffs, by retaining the MediaNews Archive and marketing and selling images related to the photographic and negative MediaNews Archive for its (thereby, John M. Rogers' and Angelica Rogers' direct benefit) direct benef,rt.
486.
RPA's (thereby, John M. Rogers' and Angelica Rogers') acceptance and retention of the
benefits conferred upon them by the Plaintiffs, particularly in light of RPA's failure and refusal to create
digital libraries from the MediaNews Archive for the Plaintiffs, is inequitable under the circumstances and constitutes unjust enrichment. The Plaintiffs are entitled to restitution of the value of the MediaNews
Archive.
487.
The Plaintiffs have been damaged by RPA's, John M. Rogers' and Angelica Rogers'
actions.
COUNT VII _ DECEPTIVE TRADE PRACTICES UNDER ARK. CODE ANN. 8 4-88-101. ET SEO.
488.
The Plaintiffs incorporate Paragraphs
489.
The conduct of Separate Defendants RPA, John M. Rogers, and Angelica Rogers
l-487,
supra, into this Paragraph.
constitutes a violation or violations of the Arkansas Deceptive Trade Practices Act, codified at Ark. Code
Ann. $ 4-88-101, et seq.
490.
The Plaintifß have been damaged by the actions of Separate Defendants RPA, John M.
Rogers, and Angelica Rogers, and as a consequence, the Plaintiffs are entitled to relief under the Arkansas
Deceptive Trade Practices Act.
92
491. Under Ark. Code Ann. $ 4-88-113, the Plaintiffs are entitled to their damages, costs and attomeys'fees.
COUNT VIII - CryIL ACTION BY CRIME VICTIM UNDER ARK. CODE ANN. S 16-118-108
492.
The Plaintifß incorporate Paragraphs
l-491,
supra, into this Paragraph.
493. The conduct of Separate Defendants RPA, John M. Rogers, and Angelica Rogers constitutes a felony or felonies under Ark. Code Ann. $ 5-1-106, Ark. Code Ann. $ 5-36-101, and Ark. Code Ann. $ 5-36-103. As a consequence, the Plaintifß are entitled to relief under Ark. Code Ann. $ 16I 18-107.
494.
The Plaintiffs have been injured by the felonious conduct of Separate Defendants RPA,
John M. Rogers, and Angelica Rogers.
495.
The Plaintifiß have been damaged by the actions of Separate Defendants RPA, John M.
Rogers, and Angelica Rogers, for which the Plaintiffs are entitled to their damages, attorneys' fees and costs under
Ark. Code Ann. $ 16-118-107(aX3).
COUNT IX - ACCOUNTING
496. 497
.
Plaintiffs incorporate Paragraphs
l-495,
supra, into this Paragraph.
The Defendants, specifically RPA, John M. Rogers and Angelica Rogers have sold and
continue to sell the MediaNews Archive through various outlets, including but not limited to:
l) online
websites such as eBay.com and RetrolmagesArchive.com, and 2) sellers such as Newport Photo Archives, HY Ventures, SFX Auctions, Bauby and Angelica Rogers.
498.
RPA, John M. Rogers and Angelica Rogers failed and refused, and continue to fail and
refuse, to pay the Plaintiffs
fifty percent (50%) of all profits of net
sales from the sales
of
the
MediaNews Archive and products related to the images copyrighted by the Plaintiffs and belonging to the MediaNews Archive, pursuant to the seven agreements entered into with RPA for the digitization of those newspapers' archives.
93
499.
The Plaintiffs are entitled to an Accounting evidencing all of RPA's, John M. Rogers'
and Angelica Rogers' transaction details, receipts and profrts relating to the sales of the MediaNews
Archive and products related to the images copyrighted by the Plaintiffs and belonging to the MediaNews Archive, pursuant to the seven agreements entered into with RPA for the digiiization of those newspapers' archives.
500.
Defendants that are not parties to an agreement with the Plaintiffs have sold and
continue to sell the MediaNews Archive and products related to the images copyrighted by the
Plaintiffs and belonging to the MediaNews Archive through various outlets, including but not limited to: l) online websites such
as eBay.com and
RetrolmagesArchive.com, and2) sellers such as Newport
Photo Archives, HY Ventures, SFX Auctions, Bauby and Angelica Rogers. The Plaintiffs are entitled
to an Accounting from these Defendants evidencing transaction details, receipts and profits relating to the sales of the MediaNews Archive and products related to the images copyrighted by the Plaintiffs and belonging to the MediaNews Archive.
501.
McAfee has information relating to the sales of the MediaNews Archive and products
related to the images copyrighted by the Plaintiffs and belonging to the MediaNews Archive. The
Plaintiffs are entitled to an Accounting from McAfee evidencing transaction details, receipts and profits relating to the sales of the MediaNews Archive and products related to the images copyrighted by the Plaintiffs and belonging to the MediaNews Archive.
DEMAND FOR JURY TRIAL The Plaintiffs demand a trial by jury on all claims to which they are entitled to a trial by jury.
PRAYER FOR RELIEF WHEREFORE, the Plaintiffs respectfully pray to the Court that the Defendants be cited to appear and
file answers herein, and on final hearing hereof, that the Plaintiffs do have and recover of
and from the Defendants as follows:
94
a)
An immediate Order for Delivery
as
to the MediaNews Archive and the Zuma
Press Negatives;
b) An immediate
hearing on the question of the Plaintiffs' rights to possession of the
MediaNews Archive;
c)
An immediate Order for Accounting;
d)
Compensatory damages, statutory damages, punitive damages, attorneys' fees and costs, as requested in the Complaint; and
e) Any other and further relief to which the Plaintiffs may show themselves justly entitled or that the Court deems proper.
DATED: June 5,2015 Respectfully submitted, By:
/s/ Allen C. Do Allen C. Dobson Arkansas Bar No. 85040 Baxter, Jewell & Dobson, P.A. One Information Way, Suite 210
Little Rock, Arkansas 72202 (501) 664-9555 phone (501) 664-9559 fax [email protected]
/s/ John M. Jewell John M. Jewell Arkansas Bar No. 84082 Baxter, Jewell & Dobson, P.A. One Information Way, Suite 210 Little Rock, Arkansas 72202 (501) 664-9555 phone (501) 664-9559 fax
[email protected]
/s/ Shelley Fleisch-Djurica Shelley Fleisch-Djurica Arkansas Bar No. 2001267 Baxter, Jewell & Dobson, P.A. One Information Way, Suite 210 Little Rock, Arkansas 72202 (501) 664-9555 phone (501) 664-9559 fax [email protected]
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to
be
