Music Licensing Inc (SONG)

[Diogenes of Sinope]

2016 LAWSUIT---READ CLOSELY;

Case 8:16-cv-00598-RAL-MAP Document 1 Filed 03/14/16 Page 1 of 18 PageID 1
JURISDICTION AND VENUE
2. This Court has subject matter jurisdiction over this action under 28 U.S.C. §§
1331 & 1367.
3. Defendants’ unlawful conduct was committed within the jurisdiction of the
Tampa Division of the United States District Court for the Middle District of Florida.
4. Defendants conduct business in the Middle District of Florida.
PARTIES
5. Plaintiff was a resident and citizen of the Pinellas County, Florida, at all times
material to this action.
6. At all times material to this action, Defendant SAED TALARI (“Talari”) was
a majority stockholder, director and/or officer in two publicly traded corporations--
Defendants INFRAX SYSTEMS, INC (“ISI”); and FUTUREWORLD CORPORATION, a
Delaware corporation (“FC”).
7. At all times material to this action, Defendant Talari owned and controlled
LOCKWOOD TECHNOLOGY CORPORATION, a Nevada corporation (“LTC”).
8. At all times material, Defendant Talari owned and controlled TALARI
INDUSTRIES LLC (“TI”).
FACTUAL BACKGROUND
9. FC currently has its principal place of business at 10901 Roosevelt Blvd.,
Suite 1000, Saint Petersburg, FLORIDA 33716; Phone: [phone].
10. FC has a website found at http://www.futureworldcorp.com/.
11. FC is a publicly-traded company and its securities are required to be
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registered with the Securities and Exchange Commission.
12. FC common stock is quoted on the OTC Pink marketplace and is publicly
traded under the symbol FWDG. FC common stock is a “penny stock” as defined by the
Exchange Act. At all times relevant to this action, the stock’s shares traded at less than one
dollar per share. During the same time period, FC stock did not meet any of the exceptions
to penny stock classification pursuant to Exchange Act Section 3(a)(51), 15 U.S.C. §
78(c)(a)(51), and Rule 3a51-1, 17 C.F.R. § 240.3a51-1. FC stock: (a) did not trade on a
national securities exchange; (b) was not an “NMS stock,” as defined in 17 C.F.R. §
242.600(b)(47); (c) did not have tangible assets (i.e., total assets less intangible assets and
liabilities) in excess of $5,000,000; and (d) did not have average revenue of approximately
$6,000,000 for the last three years. See Exchange Act, Rule 3a51-1(g).
13. The Employer Tax Identification Number for FC is 81-0562883.
14. Between April 9, 2009 and June 11, 2014, FC went by FutureWorld Energy,
Inc. Between May 6, 2008 and April 9, 2009, FC was known as Isys Medical, Inc. Prior to
May 6, 2008, FC was known as Hathaway Corporation since being incorporated in
Delaware on June 23, 2002.
15. On July 29, 2005, a company owned by Defendant Talari -- FutureTech
Capital LLC – acquired eighty percent (80%) of FC’s common stock.
16. Defendant ISI was formed as a Nevada corporation on October 22, 2004.
17. Defendant ISI has or had its principal office at 3637 4th Street North, Suite
330, St. Petersburg, FL 33704. Defendant ISI’s telephone number is 727-498-8514.
Defendant ISI’s website is http://www.infraxinc.com/.
18. Prior to January 10, 2010, Defendant ISI was known as OptiCon Systems,
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Inc.
19. Defendant ISI changed it name to Infrax Systems, Inc. in 2010 to reflect a
change in direction.
20. Defendant ISI common stock trades under the symbol IFXY.
21. On July 29, 2005, the stockholders of ISI (then OptiCon, Inc.) exchanged
100% of the outstanding common stock for common and preferred stock of FC in a
transaction that resulted in Defendant ISI becoming a wholly owned subsidiary of FC (then
known as FutureWorld Energy, Inc.).
22. On August 31, 2007, FC spun off Defendant ISI by the payment of a stock
dividend to its common shareholders. At this time, FC paid a stock dividend to its
stockholders at the rate of one share of ISI stock for every two shares they owned of
FutureWorld.
23. As of August 31, 2007, Defendant ISI ceased being a subsidiary of FC.
24. Effective August 1, 2009, Defendant ISI entered into a three-year
employment agreement with Defendant Talari, which was automatically renewed for an
additional one-year period ending July 31, 2013 that compensated Defendant Talari with
a base salary of $15,000 per month.
25. Defendant ISI accrued and reported unpaid salaries to Talari as a liability on
its balance sheets.
26. On March 14, 2003, Defendant FC entered into a three-year employment
agreement with Defendant Talari that is automatically extended for additional one-year
periods without further action, unless notice of termination is given by either party within
90 days before the date of renewal. Defendant Talari was initially compensated with a base
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salary of $8,500 per month that increased 5% per year.
27. Defendant FC accrued and reported unpaid salaries to Talari as a liability on
its balance sheets.
28. Effective February 28, 2011, Plaintiff formed and registered Certainty
Financial LLC with the Florida Secretary of State to purchase, invest in or convert various
debt instruments or securities it held.
29. Plaintiff was the managing member of Certainty Financial LLC.
30. Plaintiff met Defendant Talari well before February 2011.
TRANSACTIONS FORMING BASIS OF LIABILITY
31. On April 1, 2008, FC issued to Defendant Talari a $500,000 Master
Convertible Promissory Note that had the potential to increase to $1,000,000 based on the
amount of interim advances made by Defendant Talari.
32. On April 1, 2009, FC issued to Defendant Talari an unsecured convertible
promissory note in the amount of $500,000.
33. Plaintiff entered into an Employment Agreement with LTC on or about
December 1, 2011, setting forth a term of three (3) years. This Agreement automatically
extended to a fourth year because LTC did not give timely notice to Plaintiff of LTC’ intent,
if any, to terminate the agreement. Paintiff was contractually entitled to $60,000 per year
in salary for his services. No less than $4,000 was supposed to be paid to Plaintiff
monthly.
34. Plaintiff’s duties under his Employment Agreement with LTC required that he
(1) engage in commerce, and (2) engage in the production of goods for commerce,
including the development and maintenance of software and the sale of such software.
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35. On January 10, 2012, Defendant Talari and Certainty Financial LLC entered
into an Asset Purchase Agreement under which Talari sold to Certainty Financial LLC
$500,000 of the April 1, 2009 note in exchange for a $250,000 promissory note from
Certainty Financial LLC. Certainty Financial LLC issued a $250,000 promissory note to
Talari Industries LLC.
36. On January 10, 2012, FC issued an 8% CONVERTIBLE DEBENTURE to
Certainty Financial LLC in the amount of $500,000 payable on or before August 6, 2012,
unless the Debenture was first converted to shares of common stock.
37. On November 29, 2012, the parties entered into an Amended Employment
Agreement with LTC that provided a four (4) year term.
38. In order to convert the $500,000 Debenture to FC common shares, Certainty
Financial LLC, the holder, was first required to pay $250,000 to Defendant TI. In addition,
Certaintly Financial LLC would have been required to “season” the debt for 12 months from
the last payment made by Certainty Financial LLC.
39. Plaintiff issued checks to TI in 2014 in a total sum of $252,000 from an
account maintained by Certainty Financial LLC with Grow Financial.
40. The following checks were paid to TI by Certainty Financial in 2014:
Date Amount Check No.
2/19/2014 $15,000 50364873
2/25/2014 $10,000 52223620
2/26/2014 $19,000 50364955
2/27/2014 $17,000 50364964
3/12/2014 $18,000 50365111
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3/19/2014 $13,000 50365177
3/24/2014 $35,000 50365219
3/31/2014 $22,000 50365290
5/9/2014 $12,600 50365968
6/25/2014 $42,000 50365968
7/1/2014 $13,300 50366029
8/1/2014 $35,000 50366283
41. Certainty Financial LLC would have been entitled to convert the debenture
into common shares of FC beginning on August 1, 2015.
42. DefendantTalarireceived this $252,000 in payments from Certainty Financial
LLC as a fiduciary based on a relationship in which Plaintiff reposed trust and confidence
in Defendant Talari, promising Plaintiff that the monies would be used to enhance
shareholder value for FC and to induce Certainty Financial LLC to refrain from collecting
8% interest and the $500,000 debenture owed to it.
43. Defendant Talari meanwhile was selling shares of FC owed byhim personally
to sustain his standard of living – further depressing the share price.
44. Between May and July 2014, FC issued Convertible Notes to various third
parties in an amount approximating $550,000 including Adar Bays, Auctus, JSJ, LG
Capital, Tangier’s Capital, Typenex, Union Capital LLC.
45. At no time did FC pay 8% or no interest on the $500,000 debenture to
Certainty Financial LLC.
46. At no time has FC repaid to Certainty Financial LLC the $500,000 owing on
the debenture or any portion thereof.
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47. Defendant FC has not properly reported or properly accounted for the fact
that Certainty Financial LLC has been the holder of a $500,000 convertible debenture
payable by FC since January 10, 2012.
48. On February 12, 2014, FC made the following statement regarding the
quarter ending December 31, 2013 in its 10Q filed with the SEC which was signed by
Defendant Talari, acknowledging the debenture:
On April 1, 2008, the Company agreed to allow Mr. Talari to
convert the remaining amounts due to him by the Company of
$247,201, into a $500,000 Master Convertible Promissory
Note, with interest at the rate of 5% per annum, based on
amounts advanced from time to time, payable annually. The
Mr. Talari agreed to continue making advances to the
Company on an interim basis under a Master Convertible
Promissory Note to a maximum of $1,000,000. On January
2012 Mr. Talari assigned a portion of his master note to
Certainty Financial, an unrelated individual.

On August 12, 2008, the Company allowed Mr. Talari to
converted $1,080 of the principal amount of the Master
Promissory Note into 10,800,000 shares of the Company’s
common stock. On March 11, 2009, the Company allowed
Talari to converted $240,000 of the principal amount of the
Master Promissory Note into 60,000,000 shares of the
Company’s common stock. On January 23, 2010, the
Company allowed Mr. Talari to convert $19,599 in principal
amount and $5401 in accrued interest on the convertible note
due to FutureTech Capital in exchange for 50,000,000 shares
of the Company’s common stock. The shares were issued to
Mr. Talari as principal of FutureTech Capital.
Mr. Talari has the option to convert any part of the principal
and/or interest outstanding under its respective Master
Convertible PromissoryNote, as amended, into the Company’s
common stock at the lower of $.001 or a 30% discount of the
last five (5) days average bid price.
Mr. Talari has the option to convert his entire owed salary into
a convertible debenture into the Company’s common stock at
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the lower of $.001 or a 30% discount of the last five (5) days
average bid price.
At September 30, 2013 and 2012, the remaining amount due
to Mr. Talari on the Master Promissory Note and his note on
his salary is $1,014,399 and $316,151 respectively, and the
accrued interest thereon at September 30, 2013 is $11,221.
49. On February 12, 2014, FC made the following additional statement regarding
the quarter ending December 31, 2013 in its 10Q filed with the SEC which was signed by
Defendant Talari:
Since January 20, 2006, FutureTech Capital, LLC, a company
partially owned by Mr. Talari has made unsecured loans to the
Company, not evidenced by promissory notes, in the
aggregate amount of $59,553. On April 1, 2008, the Company
agreed to allow FutureTech to convert the amounts due to
them by the Company into a $100,000 Master Convertible
Promissory Note, with interest at the rate of 5% per annum,
based on amounts advanced from time to time, payable
annually. FutureTech agreed to continue making advances to
the Company on an interim basis under a Master Convertible
Promissory Note to a maximum of $100,000. The remaining
amount due to FutureTech on the Master Promissory Note at
September 30, 2013 and 2012 is $100,000 and $59,553
respectively.
FutureTech Capital, LLC has the option to convert any part of
the principal and/or interest outstanding under its respective
Master Convertible Promissory Note, as amended, into the
Company’s common stock at the lower of $.001 per shares or
at a 30% discount of the last five (5) days average bid price.
On January 2012 FutureTech Capital, LLC assigned a
portion of the master note to Certainty Financial, an
unrelated individual.
50. In a Due Diligence Questionnaire completed by Defendant Talari for a
prospective lender of a convertible debt instrument payable by FC in or after January 1,
2014, Talari stated, “We do not have any obligations expect (sic) for CEO's old salary and
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his loans. Please see our 10K.” This was highly misleading if not downright dishonest.
51. Defendant Talari did not disclose to actual or prospective lenders FC’s
$500,000 debenture owed to Certainty Financial LLC.
52. The FC Balance Sheet as of March 31, 2015 reflects $457,000 in Notes
Payable. Plaintiff’s debenture and accrued interest far exceed this amount.
53. As of June 30, 2014, Defendants LTC and ISI owed Plaintiff $124,000 in
unpaid salary.
54. As of June 15, 2015, Defendants LTC and ISI owed Plaintiff an additional
sum of roughly $60,000 in accrued salary.
55. With some exceptions, Plaintiff was not paid on an hourly or salary basis
throughout his employment with Defendant LTC, Talari or FC.
56. Beginning in 2014 and continuing into June 2015, Plaintiff performed work
as a full-time employee of Defendant LTC, Talari and FC. In part, Plaintiff was responsible
for making required SEC disclosures; handling software issues for LTC customers; and
running a division of FC: NutraCann.
57. Plaintiff’s work for LTC, Talari and FC involved “commerce” and preparation
of “good” for commerce. Plaintiff repeatedly used instruments of commerce to perform his
work including the Internet, email and telephones.
58. Plaintiff was not paid minimum wage or overtime or salary for his services.
59. As part of his duties beginning in 2014, Plaintiff prepared and disseminated
public disclosures required by Defendant Talari’s publicly traded corporations.
60. The preparation and distribution of such public disclosures and reports on the
Internet constitute “commerce” under the FLSA.
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61. The maintenance and shipping of software to LTC customers constituted
“commerce” under the FLSA.
62. Plaintiff never received payment of compensation from FC except when it
paid compensation due Plaintiff from LTC.
63. Plaintiff refused to perform further work for Defendants in or around June
2015 because Defendant Talari refused to compensate Plaintiff as required by his
Agreement and the FLSA.
64. Plaintiff made demand for payment of the convertible debenture through
counsel and Defendants refused to honor the obligation.
COUNT I: MINIMUM WAGE VIOLATIONS UNDER FLSA
AGAINST LTC, TALARI AND FC
65. Plaintiff restates the allegations contained in paragraphs 1 through 64.
66. Defendants LTC, Talari and FC repeatedly and willfully violated the FLSA by
failing without excuse to pay Plaintiff minimum wage for all hours worked.
67. Talari is an employer under the FLSA and had control over what bills and
legal obligations to pay.
68. Talari was Plaintiff’s direct supervisor at LTC and FC.
69. Plaintiff was employed by all three defendants.
70. Plaintiff has been damaged by the foregoing willful conduct of Defendants.
WHEREFORE, Plaintiff requests this Honorable Court to:
A. Order Defendants pay an award of back pay and liquidated damages
to Plaintiff;
B. Order Defendants to pay prejudgment interest on all sums due
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Plaintiff;
C. Order Defendants to pay an award of attorney's fees and costs; and
such further relief as the Court deems just, necessary, and proper.
COUNT II: OVERTIME VIOLATIONS UNDER FLSA
AGAINST LTC, TALARI AND FC
71. Plaintiff restates the allegations contained in paragraphs 1 through 64.
72. Defendants LTC, Talari and FC repeatedly and willfully violated the FLSA by
failing without excuse to pay Plaintiff compensation for overtime hours worked.
73. Talari is an employer under the FLSA and had control over what bills and
legal obligations to pay.
74. Talari was Plaintiff’s direct supervisor at LTC and FC.
75. Plaintiff was employed by all three defendants.
76. Plaintiff has been damaged by the foregoing willful conduct of Defendants.
WHEREFORE, Plaintiff requests this Honorable Court to:
A. Order Defendants pay an award of back pay and liquidated damages
to Plaintiff;
B. Order Defendants to pay prejudgment interest on all sums due
Plaintiff;
C. Order Defendants to pay an award of attorney's fees and costs; and
such further relief as the Court deems just, necessary, and proper.
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COUNT III - VIOLATION OF 26 U.S.C. § 7434
AGAINST TALARI AND FC
77. Plaintiff restates the allegations contained in paragraphs 1 through 64.
78. For tax year 2014, FC issued Plaintiff a Form 1099 for the sum of $12,000.
79. A form 1099 is an information return.
80. Defendant FC and Talari knowingly filed a false form 1099 on Plaintiff for tax
year 2014.
81. Plaintiff suffered damages from the false 1099 form.
82. Section 7434 provides: “In any action brought under subsection (a), upon a
finding of liability on the part of the defendant, the defendant shall be liable to the plaintiff
in an amount equal to the greater of $5,000 or the sum of—(1) any actual damages
sustained by the plaintiff as a proximate result of the filing of the fraudulent information
return (including any costs attributable to resolving deficiencies asserted as a result of such
filing), (2) the costs of the action, and (3) in the court’s discretion, reasonable attorneys’
fees.”
83. Section 7434 does not contain a definition of “person.” Therefore, the
Dictionary Act must be consulted. 1 U.S.C. § 1. The Dictionary Act states that the words
‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships,
societies, and joint stock companies, as well as individuals unless the context indicates
otherwise. 1 U.S.C. § 1.
84. The Internal Revenue Code also defines a “person” to include an officer or
employee of a corporation, or a member or employee of a partnership, who as such officer
employee, or member is under a duty to perform the act in respect of which the violation
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occurs. 26 U.S.C. § 6671(b).
85. The term “responsible person” as defined in the Tax Code is broad and may
include many individuals connected with a corporation, and more than one individual may
be the responsible person for an employer. Under IRC § 6672, responsible persons have
the “final word as to what bills should or should not be paid and when.”
86. The Internal Revenue Code assures compliance by the employer with its
obligation to pay trust fund taxes by imposing personal liability on officers or agents of the
employer responsible for “the employer's decisions regarding withholding and payment”
of the taxes.
87. Responsible person status is a factual determination which examines
whether the person (1) served as an officer or director of the company; (2) controlled the
company's payroll; (3) determined which creditors to pay and when to pay them; (4)
participated in the corporation's day-to-day management; (5) had the ability to hire and fire
employees; and (6) possessed the power to write checks.
88. Defendant Talari was a responsible person as defined in the Tax Code.
89. Plaintiff has retained the undersigned law firm and has agreed to pay
reasonable fees.
WHEREFORE, Plaintiff requests this Honorable Court to:
A. Grant a judgment requiring Defendants FC and Talari to each pay to
Plaintiff the greater of $5,000 or the damages proximately caused by
Defendants’ conduct.
B. Grant Plaintiff costs and an award of reasonable attorney’s fees under
Section 7434.
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COUNT IV - BREACH OF CONTRACT
AGAINST FC
90. Plaintiff realleges paragraphs 1 through 64 as if fully set forth herein.
91. Certainty Financial LLC validly assigned its rights to the $500,000 debenture
issued by FC on January 10, 2012 to Plaintiff prior to filing this action.
92. Defendant FC breached the debenture by failing to pay interest and the
principal when due despite Plaintiff’s demand for the same.
93. Plaintiff has suffered damages as a direct and proximate result of Defendant
FC’s breach of contract.
WHEREFORE, Plaintiff requests this Honorable Court to:
A. Grant a judgment requiring Defendants to pay damages in an amount
to be proved at trial, and 8% Interest since January 10, 2012; and
B. Award Plaintiff attorney’s fees and costs under the terms of the
Debenture.
C. Grant such further relief as the Court deems just and equitable.
COUNT V - FAILURE TO PAY WAGES AND
BREACH OF CONTRACT AGAINST LTC
94. Plaintiff realleges paragraphs 1 through 64 as if fully set forth herein.
95. LTC failed to pay wages when due to Plaintiff on a frequent basis.
96. LTC owes Plaintiff approximately $175,000 under the terms of the
Employment Agreement.
97. Plaintiff has suffered damages as a direct and proximate result of Defendant
LTC’s failure to pay wages.
WHEREFORE, Plaintiff requests this Honorable Court to:
A. Grant a judgment requiring Defendants to pay damages in an amount
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to be proved at trial, and pre-judgment interest; and
B. Award Plaintiff attorney’s fees and costs under the terms of the
Employment Agreement and section 448.08, Florida Statutes.
C. Grant such further relief as the Court deems just and equitable.
COUNT VI - FAILURE TO PAY WAGES AND
BREACH OF CONTRACT AGAINST INFRAX SYSTEMS, INC.
AND DEFENDANT TALARI
98. Plaintiff realleges paragraphs 1 through 64 as if fully set forth herein.
99. LTC is a subsidiary of Defendant ISI.
100. Defendant ISI was controlled and dominated by Defendant Talari.
101. Defendant Talari and Defendant ISI are liable to Plaintiff for the unpaid
wages of Defendant LTC based on the following factors:
(a) Talari and ISI dominated and controlled LTC to such
an extent that LTC’s independent existence was in fact
non-existent and Talari and ISI were in fact alter egos of the
corporation;
(b) the corporate form must have been used fraudulently
or for an improper purpose; and
(c) the fraudulent or improper use of the corporate form
caused injury to the claimant.
102. Defendant Talari never capitalized LTC properly.
103. Defendant Talari and Defendant ISI made representations to the general
public that LTC would be spun off to Infrax shareholders.
104. Such statements would have increased trading volume so that he could sell
some of his personal holdings.
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105. LTC owes Plaintiff approximately $175,000 under the terms of the
Employment Agreement.
106. Defendant Talari and ISI are liable for the unpaid wages owed to Plaintiff by
LTC.
107. Plaintiff has suffered damages as a direct and proximate result of Defendant
LTC’s failure to pay wages.
WHEREFORE, Plaintiff requests this Honorable Court to:
A. Grant a judgment requiring Defendants to pay damages in an amount
to be proved at trial, and pre-judgment interest; and
B. Award Plaintiff attorney’s fees and costs under the terms of the
Employment Agreement and section 448.08, Florida Statutes.
C. Grant such further relief as the Court deems just and equitable.
COUNT VII - RESCISSION AGAINST DEFENDANT TALARI
AND DEFENDANT TALARI INDUSTRIES LLC
108. Plaintiff realleges paragraphs 1 through 64 as if fully set forth herein.
109. Certainty Financial LLC validly assigned its contract rights to Plaintiff prior to
filing this action.
110. Plaintiff made payments totaling $252,000 to Talari Industries in 2014 as
directed by Defendant Talari towards payment of the promissory note issued by Certainty
Financial LLC on January 10, 2012.
111. Such payments would have permitted Certainty Financial LLC to convert the
$500,000 debenture into FC common stock.
112. Defendant Talari dilluted Plaintiff’s ownership rights in FC common stock by
causing FC to issue convertible notes to various investors in 2014.
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113. Defendant Talari had assured Plaintiff that FC would not be taking on
additional debt before Plaintiff made $252,000 in payments.
114. The issuance of additional notes by FC was contrary to Talari’s assurances
and Plaintiff is entitled to recover all payments made to Defendants Talari and Talari
Industries LLC in 2014.
115. Plaintiff’s assignor, Certaintly Financial, made additional payments to these
defendants in 2013 and 2014 towards conversion of additional Notes assigned to him by
Defendant Talari in prior and subsequent transactions relative to 2014.
116. Plaintiff is able to restore the status quo if rescission is granted.
WHEREFORE, Plaintiff requests this Honorable Court to:
A. Grant a judgment requiring Defendants Talari and Talari Industries to
pay to Plaintiff an approximate sum of $320,000;
B. Grant such further relief as the Court deems just and equitable.
DEMAND FOR TRIAL BY JURY
Plaintiff demands trial by jury as to all issues so triable.
Respectfully submitted,
/s/ Craig L. Berman
Craig L. Berman, Esquire
Fla. Bar No. 068977
Plaza Tower
111 Second Avenue N.E.
Suite 706
St. Petersburg, FL 33701
[phone]
[phone]
[e-mail]
TRIAL COUNSEL FOR PLAINTIFF