keith sweat v. kedar complaint.pdf
TRANSCRIPT
FILED: NEW YORK COUNTY CLERK 10/30/2015 02:12 PM INDEX NO. 653610/2015
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/30/2015
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------)( KEITH DOUGLAS SWEAT, individually and
d/b/a SWEATSHOP ENTERTAINMENTand
WIRLIE MORRIS,
Plaintiffs, V.
KEDAR MASSENBURG, individually and d/b/a KEDAR ENTERTAINMENT, MASSENBURG MANAGEMENT, LLC, and MASSENBURG MEDIA, LLC,
Defendants. ------------------------------------------------------)(
To the above named Defendants:
Index No.
SUMMONS
YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the plaintiffs attorney(s) within 20 days after the service of this summons, exclusive of the day of service, or if service of this summons is made by any means other than personal delivery to you within the state, within 30 days after the service is complete. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint, together with the costs and disbursements of this action.
Plaintiff designates New York County as the place of trial. The basis of the venue designated is Plaintiff's principal place of business in New York County.
Dated: October 30, 2014
Plaintiffs' Addresses:
Keith Sweat Wirlie Morris 2240 Lake Shore Landing Alpharetta, Georgia 30005-6992
9464 Fairdale A venue Jonesboro, Georgia 30236
Defendants' Addresses:
Kedar Massenburg 100 Riverside Blvd. New York, NY 10069
Massenburg Management, LLC Massenburg Media, LLC 200 Biscayne Blvd. Way 200 Biscayne Blvd. Way Miami, FL 33131 Miami, FL 33131
50 Broadway, Suite 800 New York, New York 10004 Atto·rJ.eys for Plaintiff New York, NY 10004 Tel.: (212) 791-7360 Fax: (212) 791-7468
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------)( KEITH DOUGLAS SWEAT, individually and
d/b/a SWEATSHOP ENTERTAINMENT and
WIRLIE MORRIS,
Plaintiffs, v.
KEDAR MASSENBURG, individually and d/b/a KEDAR ENTERTAINMENT, KEDAR ENTERTAINMENT, LLC and MASSENBURG MEDIA, LLC,
Defendants. ------------------------------------------------------)(
Index No.
VERIFIED COMPLAINT
Plaintiff, KEITH DOUGLAS SWEAT, individually and d/b/a SWEATSHOP
ENTERTAINMENT and Plaintiff, WIRLIE MORRIS, by their attorneys Motta & Krents, as and
for their Verified Complaint against the defendants, KEDAR MASSENBURG, individually and
d/b/a KEDAR ENTERTAINMENT, KEDAR ENTERTAINMENT, LLC, and MASSENBURG
MEDIA, LLC (collectively referred to hereafter as ".Liefendants"), allege the following:
THE PARTIES
1. Plaintiff, Keith Douglas Sweat, individually and d/b/a Sweatshop Entertainment"
("Sweat"), is a resident ofthe City of Alpharetta, State of Georgia.
2. Plaintiff, Wirlie Morris ("Morris") is a resident of the City of Atlanta, State of
Georgia.
3. Upon information and belief, the defendant, Kedar Massenburg ("Massenburg"),
resides and maintains a place of business in the State, City and County of New York.
4. Upon information and belief, Massenburg uses "Kedar Entertainment" as an
assumed name although an Assumed Name Certificate has not been filed with the New York
1
County Clerk.
5. Upon information and belief, at all times relevant, the defendant, Kedar
Entertainment LLC ("Kedar"), was neither a limited liability company formed pursuant to the
laws of the State of New York, nor a foreign limited liability company authorized to do business
in New York, despite the fact that it did business in the State, City and County of New York.
6. Upon information and belief, defendant, Massenburg Media, LLC ("Massenburg
Media"), is a limited liability company incorporated in the State of Florida on May 15, 2012,
with its registered principal office in Miami, Florida, and business offices in the State, City, and
County ofNew York.
BACKGROUND
7. Sweat is an R&B and soul receding artist, songwriter, producer, and nationally
syndicated radio personality who has enjoyed substantial success and recognition in the music
industry for over three decades. He has received multiple American Music Awards nominations
for "Favorite Male R&B Soul Artist" and won in 1997. In 2013, Sweat received the Soul Train
Lifetime Achievement Award. His debut album, Make It Last Forever, went triple Platinum
selling more than three million copies. The biggest "single" from this album, "I Want Her"
charted #2 on the Billboard R&B Chart and #5 on the Billboard Pop Chart, and the eponymous
track from this album went all the way to #2 on the :J11lboard R&B Chart. Sweat hit the charts
again upon the release of his sophomore album, I'll Give All My Love To You that reached #6 on
the Billboard Top 200 Chart. These are just some of examples of Sweat' sales and chart
successes.
8. Sweatshop Entertainment is used by Sweat as the "d/b/a vehicle" for his
professional musical activities.
2
9. Morris is a well-established music producer and songwriter with music production
companies Take Note Entertainment and WIRLwid~. :entertainment, as well as performing as a
musician with the SOS Band, The Gap Band and The Ohio Players, among many other artists.
10. Upon information and belief, Massenburg is a record producer and record label
executive, who was president of Motown Records from 1997 through 2004, and since 2005,
individually and using the name "Kedar Entertainment," has acted as personal manager,
promoted musical artists, served as an executive producer for their albums and released albums
of such musical artists.
11. Upon information and belief, since its incorporation in 2012, Massenburg has
used Massenburg Media as the corporate vehicle for his record label.
12. Upon information and belief, as to Massenburg Media, Massenberg has abused
the privilege of doing business in the corporate form i:y failing to adhere to corporate formalities,
because of the inadequate capitalization of each of the companies, the commingling of
companies' assets with his personal assets, and the use of companies ' funds to pay Massenburg's
personal expenses.
FIRST CAUSE OF ACTION AGAINST MASSENBURG, KEDAR ENTERTAINMENT LLC AND MASSENBURG MEDIA FOR DAMAGES
FOR BREACH OF CONTRACT
13. Plaintiffs repeat the allegations in Paragraphs 1 to 12.
14. In or about April 7 , 2009, Sweat and Massenburg/Kedar Entertainment
and Massenburg Media entered into a so-called "short-form memorandum" creating a
joint venture agreement to produce , release , market and distribute sound recordings,
including, at least , one (1) record album embodying l.he sound recordings, featuring
Sweat as a featured musical recording artist (the "Agreement"). Such record album was
3
entitled Ridin' Solo, which was released in or about June 21, 1010 (the "Album).
15. Pursuant to the Agreement, Sweat was to oversee and produce sound
recordings featuring Sweats' performances as a recording artist since Sweat alone was
financially responsible for the "ali-in" recording budget of two hundred thousand dollars
($200,000.00) for the Album. Sweat was to, and in fact did, write, co-write and/or select
the musical compositions to be embodied upon the SC!Jnd recordings for inclusion upon
and comprising the Album, select, oversee and arrange the musicians involved, and
oversee the musical performances and the recording, mixing and mastering of the sound
recordings for ultimate delivery to Massenburg/Kedar and Massenburg Media as a
completed album. The Album was the only album released under the Agreement.
16. Massenburg/Kedar Entertainment and Massenburg Media was to promote,
market and arrange for the distribution and sale of the Album initially through "Fontana
Distribution/Universal Music Distribution" ("Fontana") and then through Red
Distribution, LLC, a division of Sony Music Entertainment ("RED") as well as for the
individual sound recordings embodied on the Album. :md deal with the business relating
to the collecting of all moneys derived from the sale, distribution and exploitation of the
Album, and to pay any costs associated with physical production and publicity/radio
promotion.
17. As Sweat is a co--writer and co--publisher of all of the musical
compositions embodied upon the Album, which are herein identified as: "Famous", "Full
Time Lover", "Test Drive", "Ridin Solo", "Genius Girl", "Do Wrong Tonight", "Hood
Sex", "Its All About You", "I'm The One You Want", "Live In Person, "It's A Shame"
and "Tropical" (the "Sweat Compositions") Sweat is an owner of the right, title and
4
interest in and to the Sweat Compositions , holding a fifty (50%) percent interest in the
copyright of each of the Sweat Compositions . Massenburg/Kedar Entertainmnt and
Massenburg Media, as the record label making and causing the distribution of the Album,
is required to account to and pay to Sweat, as a songwriter and co-publisher of the Sweat
Compositions, mechanical royalties as an "off the top expense" derived from the sale and
distribution of the Sweat Compositions at one hundred percent ( 100%) of the current
minimum statutory royalty rate under the United States Copyright Act (.091¢ based upon
one hundred percent (100%) of the Sweat Compositions).
18. From inception of the commercial rekase of the Album to date,
Massenburg/Kedar and Massenburg Media have failed to account to Sweat by providing
mechanical royalty statements, and have failed to pay to Sweat the mechanical royalties
due , based upon fifty percent (50%) of the mechanical royalty income due in connection
with the sale and distribution of the Sweat Compositions. As a result of Massenburg's!
Kedar's and Massenburg Media's foregoing actions , Sweat has not received the
mechanical royalties due in connection with the sales and exploitations of the Album, and
has been damaged in an amount believed to be not less than eighty thousand dollars.
19. Under the terms of the Agreement, "Net Proceeds" earned by
Massenburg/Kedar and Massenburg Media from "nrt" sales of the Album through
normal retail channels, inclusive of all digital sales, in the United States and Canada
(sixty percent (60%) for the rest of the world) were to be divided equally between
Massenburg/Kedar and Massenburg Media on the one hand and Sweat on the other hand,
after deducting only the following costs from gross billing: distributor's distribution fee
charged to Massenburg/Kedar and Masenburg Media, any credits due to the distributor's
5
customers for actual returns made during each billing period, a reasonable reserve against
anticipated customer returns and credits of units of the Album on a pass through basis
from Massenburg's/Kedar's and Masenburg Media's .. distributor during each billing
period, any advances paid to Sweat (to be born 50/50 with Massenburg/Kedar),
manufacturing charges and costs not paid by Sweat, mechanical royalties, taxes imposed
on distributor, co-op/advertising costs, third-party costs incurred by Massenburg/Kedar
and Masenburg Media, or distributor for the marketing, promotion and advertising of the
Album, any other amounts owed by Massenburg/Kedar Masenburg Media, and
Sweat to distributor.
20. In conformity with the Agreement, Sweat produced, created and delivered
to Massenburg/Kedar and Masenburg Media the sound recordings as embodied upon the
Album whose initial commercial release was in or about June 22,2010.
21. Massenburg/Kedar and Massenburg Media has collected "Net Proceeds"
from both Fontana, RED and other third parties, derived from the sales and other
exploitations of the Album, and failed to account anrl pay Sweat fifty percent (50%) of
these moneys, as required by the Agreement.
22. Massenburg/Kedar and Massenburg Media have refused to abide by their.
obligations under the Agreement by, in part, failing to pay Sweat his fifty percent (50%)
share of the "Net Proceeds" derived from the sale of physical units and DPDs of the
Album.
23. To the extent Massenburg Media assumed the obligations of Massenburg/Kedar
and received monies due Sweat under the Agreemen.:, or contracted directly with Fontana and
RED, the court should pierce the corporate veil of Massenburg Media to hold Massenburg
6
personally liable for breach of the Agreement.
24. Sweat has been damaged by Massenburg/Kedar and
Massenburg Media in an amount to be determined at trial, not less than $750,000.00.
25. Morris produced (6) out of twelve (12) master recordings (the" Morris Masters")
included on the Album. Morris also co-wrote fifty percent (50%) of the musical compositions
embodied upon the Morris Masters which are herein identified as: "Famous", "Full Time Lover",
"Genius Girl", "It's All About You", "Live In Person.,, and "Tropical" (the "Morris
Compositions").
26. As Morris is a co--writer and co--publisher of the Morris Compositions, in
addition to being the producer of the Morris Masters upon which the Morris
Compositions are embodied; Morris is an owner of the right, title and interest in and to
the Morris Compositions, holding a fifty (50%) percent interest in the copyright of each
of the Morris Compositions. Massenburg/Kedar and Massenburg as the record label
making and causing the distribution of the Album, is required to account to and pay to
Morris, as songwriter and publisher of the Morris Compositions, mechanical royalties
derived from the sale and distribution of the Morris Compositions at one hundred percent
(100%) of the current minimum statutory royalty rate under the United States Copyright
Act (.091¢ based upon one hundred percent (100%) of the Morris Compositions).
27. From inception of the commercial release of the Album to date,
Massenburg/Kedar and Massenburg Media have failed to account to Morris by providing
to Morris mechanical royalty statements, and have failed to pay to Morris the mechanical
royalties due, based upon fifty percent (50%) of the Morris Compositions. As a result of
Massenburg's/Kedar's and Maseenburg's foregoing actions, Morris has not received the
7
mechanical royalties due in connection with the sales 1nd exploitations of the Morris
Compositions in connection with the Album, and has been damaged in an amount
believed to be not less than thirty thousand ($30,000.00) dollars.
SECOND CAUSE OF ACTION AGAINST MASSENBURG, KEDAR ENTERTAINMENT, MASSENBURG MEDIA, AND MASSENBURG
MANAGEMENT SEEKING AN ACCOUNTING
28. Plaintiffs repeat the allegations in Paragraphs 1 to 27.
29. Under the law of equity, Massenburg, Kedar and Massenburg Media owe an
accounting to Sweat for all the profits and advances earned by the sale and licensing of
the Album, and the sound recordings embodied upon the Album as well to Sweat and
Morris for the total amount of publishing royalties due from inception of the exploitation
of the Album to date, payable "off the top" from gross sales.
30. Under the law of equity, Massenburg, Kedar and Massenburg Media owe an
accounting to Morris for the total amount of publishing royalties due from inception of
the exploitation of the Album to date.
THIRD CAUSE OF ACTION AGAINST MASSENBURG, KEDAR ENTERTAINMENT,
AND MASSENBURG MEDIA
SEEKING THE IMPOSITION OF A CONSTRUCTIVE TRUST
31. Plaintiffs repeat the allegations in Paragraphs 1 to 30.
32. Sweat and Morris are entitled to the imposition of a constructive trust against
Massenburg, Kedar and Massenburg Media, upon all monies improperly withheld, and all assets
obtained using such monies in whole or in part, by Massenburg, Kedar, and Massenburg Media.
FOURTH CAUSE OF ACTION AGAINST MASSENBURG, KEDAR AND MASSENBURG MEDIA
8
SEEKING RECOVERY IN QUANTUM MERUIT
33. Plaintiffs repeat the allegations in Paragraphs 1 to 32.
34. Sweat and Morris are entitled to recover in quantum meruit to prevent the unjust
enrichment of Massenburg, Kedar and Massenburg ~. 1edia, in an amount to be determined at trial
not less than $850,000.00.
WHEREFORE, Plaintiffs demand judgment as follows:
a) On Plaintiff Sweat' s First Cause of Action against Massenburg, Kedar,
and Massenburg Media for damages relating to breach of contract and
failure to account and pay publishing royalties due, in an amount to be
determined at trial, not less than $800,000.00.
b) On Plaintiff Morris ' First Cause of Action against Massenburg, Kedar and
Massenburg Media for damages relating to failure to account and pay
publishing royalties due, in an amoUPt to be determined at trial, not less
than $50,000.00.
c) On Plaintiffs' Second Cause of Action for an accounting by Massenburg,
Kedar, and Massenburg Media.
d) On Plaintiffs' Third Cause of Action against Massenburg, Kedar, and
Massenburg Media, for the imposition of a constructive trust.
e) On Plaintiffs' Fourth Cause of Action against Massenburg, Kedar
Entertainment, Massenburg Media, and Massenburg Management for
damages in an amount to be determined at trial, not less than $850,000.00.
f) On all Plaintiffs' causes of action interest from June 22, 2010 and costs
and disbursements.
9
Dated: New York, New York October 30, 2015
10
Attorneys for Plaintiff 50 Broadway, Suite 800 New York, N.Y. 10004-1874 Tel: (212) 791-7360 Fax: (212) 791-7468
VERIFICATION
INDIVIDUAL VERIFICATION
STATE OF GEORGIA, COUNTY OF FULTON ss.:
I, Keith Dougl~ ~:d~worn, dep::s.! and say: I am a Plaintiff in the within action; I have read the foregoing Verified CoiJ'I;,laint and know the contents thereof; the same is true to my own knowledge, except as to those rna er · n stated to be alleged on information and belief, and as to those matters, · e e it to.. true.
Sworn to before me on July~2015
INDIVIDUAL VERIFICATION
,.
VERIFICATION
STATE OF GEORGIA, COUNTY OF FULTON ~s:
I, Wirlie Morris being duly sworn, depose and say: I am a Plaintiff in the within action; I have read the foregoing Verified Complaint and know the contents thereof; the same is true to my own knowledge, except as to those matters t ein stated to be alleged on information and belief, and as to those matters, I believe ·no..ge.~s.,
Sworn to before me on JulyJ1_2015
11
Wirlie Morris