AI
Thursday, December 13, 2018 9:41:25 PM
WOW!!
Dan Dan the CONMAN & CONMAN LAUB get it in the dangly bits.
CVBT at long last go nuclear. RICO Act here we come. Conman Dan isn't likely to get out of jail before his demise. FANTASTIC!!
Anyone willing to look after 2 teenage boys whilst their con person parents languish in a Federal penitentiary??
Claimant CARDIOVASCULAR BIOTHERAPEUTICS, INC. (“Cardio”), for its Complaint for Theft of Trade
Secrets, Civil Conspiracy, Breach of Fiduciary Duty, Champerty, Civil RICO Violations and
Injunctive Relief against Defendants Zhittya Regenerative Medicines, Inc. (“ZRM”), Zhittya Genesis
Medicines, Inc. (“ZGM, ” and together with ZRM, “Zhittya”), John Laub (“Laub”), and Viktoriya
Tamlenova-Montano (“Viktoriya,” and together with Zhittya and Laub, the
“Defendants”), states as follows:
PARTIES
1. Plaintiff CardioVascular BioTherapeutics, Inc. is a corporation organized and existing
under the laws of the State of Delaware, with its principal place of business in Dallas, Texas.
CARDIOVASCULAR BIOTHERAPEUTICS, INC.,
Plaintiff,
vs.
ZHITTYA REGENERATIVE MEDICINE, a
Delaware Corporation; ZHITTYA GENESIS MEDICINE INC., a Nevada Corporation; JOHN LAUB, an
individual; and VIKTORIYA TAMLENOVA-MONTANO, an individual.
Defendants.
Case No.:
EXEMPT FROM ARBITRATION. INJUNCTIVE RELIEF SOUGHT
Dept. No:
COMPLAINT FOR THEFT OF TRADE SECRETS; CIVIL CONSPIRACY; BREACH OF FIDUCIARY DUTY; CHAMPERTY; CIVIL
RICO VIOLATIONS;
AND INJUNCTIVE RELIEF
Case Number: A-18-785986-C
Electronically Filed 12/12/2018 4:57 PM
Steven D. Grierson CLERK OF THE COURT
A-18-785986-C
epartment 15
1 2. Defendant Zhittya Regenerative Medicine, Inc. (“ZRM”) is a
forfeited corporation
2 originally organized and which existed under the laws of the State of Delaware with its
principal office
3 in the State of Nevada. ZRM may be served in this lawsuit, among other methods, by serving
its
4 registered agent in Nevada, the DeMint Law, PLLC, 3753 Howard Hughes Parkway, Suite 200-314,
5 Las Vegas, Nevada 89169.
6 3. Defendant Zhittya Genesis Medicine Inc. (“ZGM”) is a
corporation organized and
7 existing under the laws of the State of Nevada with its principal office in the State of
Nevada. ZGM
8 may be served in this lawsuit, among other methods, by serving its registered
agent in Nevada,
9 Viktoriya Tamlenova-Montano, 3017 Carbondale St., Las Vegas, Nevada 89135.
10 4. Defendant Viktoriya Tamlenova-Montano is an individual
residing in Las Vegas,
11 Nevada who may be served in this lawsuit, among other methods, at 3017 Carbondale St., Las
Vegas,
12 Nevada 89135.
13 5. Defendant John Laub is an individual residing in Las Vegas,
Nevada who may be
14 served in this lawsuit, among other methods, at 9501 Royal Windsor Ave., Las Vegas, Nevada
89149.
15 JURISDICTION AND VENUE
16 6. This Court has subject matter jurisdiction over this
action under the Nevada
17 Constitution, Article 6, §6.
18 7. Venue is proper in this Court pursuant to NRS 13.040 inasmuch as
each of the individual
19 defendants reside in the County in which this law suit has been brought.
20 INTRODUCTION
21 8. Cardio requests this Court’s intervention to prevent each of the
named Defendants from
22 continuing to conspire with Daniel C. Montano (“Montano”) and John W. Jacobs (“Jacobs”) in
the
23 execution of a plan calculated to cause severe irreparable damage to Cardio
through the theft and
24 dissemination of highly confidential trade secrets and intellectual property rights
owned and/or
25 exclusively licensed to Cardio (“Cardio Proprietary Information”) in violation of
Montano’s and 26
2
1 Jacob’s fiduciary duties to Cardio and in breach of express contractual provisions in
Montano’s and
2 Jacobs’ Employment Agreements (as hereinafter defined).
3 9. This is an action for theft of trade secrets, civil conspiracy,
breach of fiduciary duties,
4 champerty, and civil RICO violations. Additionally, Cardio seeks temporary,
preliminary, and
5 permanent injunctive relief in addition to monetary damages.
6 FACTUAL ALLEGATIONS
7 10. Cardio is a biopharmaceutical company developing protein drug
candidates to address
8 diseases that result from lack of blood flow to a tissue or organ such as in the growth of
blood vessels
9 in the treatment, inter alia, of heart disease, lumbar ischemia, diabetic ulcers, bed sores,
stroke , spinal
10 cord injury neuropathy, Parkinson’s Disease, ALS, multiple sclerosis, kidney
ischemia, intestinal
11 ischemia, pancreatitis, bone repair, cartilage repair, hair growth
induction, severe coronary
12 microvascular disease, erectile disfunction, and peripheral artery
diseases (“Cardio’s
13 Biopharmaceutical Business”). The active pharmaceutical ingredient in Cardio’s drug
candidates is
14 FGF-1, a human protein that stimulates the growth of new blood vessels, thereby increasing
the blood
15 supply to ischemic organs and tissues.
16 11. Montano was Chairman of the Board of Directors, President and Chief
Executive Officer
17 of Cardio until September 16, 2014 when Cardio terminated Montano’s role with Cardio as
Chairman
18 of the Board of Directors, President, and Chief Executive Officer. Prior to his termination
on September
19 16, 2014, Montano had entered into an Employment Agreement with Cardio dated January 1, 2007
(the
20 “Montano Employment Agreement”), a true and correct copy of which is attached hereto as
Exhibit
21 “A”. Montano's Employment Agreement imposed obligations upon Montano to maintain
the
22 confidentiality of all Cardio Proprietary Information and to refrain from utilizing any
Cardio Proprietary
23 Information to directly or indirectly compete with Cardio during or following his employment
with
24 Cardio. Additionally, Montano agreed under the provisions of Section 6.2(b) of
his Employment
25 Agreement, that if Montano used any Cardio Proprietary Information other than in connection
with his
26 employment with Cardio, any gain or profit derived by Montano as a result of Montano's use
of such
3
1 Cardio Proprietary Information would be held in trust for the benefit of Cardio and would be
remitted
2 by Montano to Cardio upon demand. Further, during Montano's employment with Cardio, Montano
3 was subject to an Employee Confidential Information and Non-Solicitation Agreement dated
March 11,
4 1998 (the “Montano Confidential Information Agreement”), a true and correct copy
of which is
5 attached hereto as Exhibit “B”. Montano was additionally subject to a Code of Business
Conduct (the
6 “Code of Conduct”), a true and correct copy of which is attached hereto as Exhibit “C”. The
Montano
7 Confidential Information Agreement and the Code of Conduct imposed additional obligations
upon
8 Montano to maintain the confidentiality of all Cardio Proprietary Information and
to refrain from
9 utilizing any Cardio Proprietary Information to directly or indirectly compete with Cardio
during or
10 following Montano's employment with Cardio. The Montano Employment Agreement, the Montano
11 Confidential Information Agreement, and the Code of Conduct, are collectively referred to
herein as the
12 “Montano Employment Agreements.”
13 12. Jacobs was a Chief Scientific Officer and Chief Operating
Officer of Cardio until
14 September 18, 2014 when Cardio terminated Jacobs’ role with Cardio as Chief Scientific
Officer and
15 Chief Operating Officer. Prior to his termination on September 16, 2014, Jacobs had entered
into an
16 Employment Agreement with Cardio dated January 1, 2007 (the “Jacobs’ Employment Agreement”),
17 a true and correct copy of which is attached hereto as Exhibit “D”. Jacobs' Employment
Agreement
18 imposed obligations upon Jacobs to maintain the confidentiality of all Cardio Proprietary
Information
19 and to refrain from utilizing any Cardio Proprietary Information to directly or indirectly
compete with
20 Cardio during or following his employment with Cardio. Additionally, Jacobs
agreed under the
21 provisions of Section 6.2(b) of the Jacobs Employment Agreement that if Jacobs
use any Cardio
22 Proprietary Information other than in connection with his employment with Cardio, any gain
or profit
23 derived by Jacobs as a result of Jacobs’ use of such Cardio Proprietary Information would be
held in
24 trust for the benefit of Cardio and would be remitted by Jacobs to Cardio upon demand.
Although
25 Jacobs’ Employment Agreement was replaced by a Consulting Agreement between Jacobs and
Cardio
26 dated March 1, 2010 (the “Consulting Agreement”), a true and correct copy of which is
attached hereto
4
1 as Exhibit “E”, Jacobs continued to remain subject to the confidentiality and non-compete
obligations
2 under his Employment Agreement. Jacobs was further subject to a September 22, 2004
Employee
3 Confidential Information and Non-Solicitation Agreement (the “Jacobs' Confidential
Information
4 Agreement”) which prohibited Jacobs from using any Cardio Proprietary Information to compete
in any
5 way with Cardio during or following his employment with Cardio, a true and correct copy of
which is
6 attached hereto as Exhibit F. Further, during Jacobs’ employment with Cardio, Jacobs was
subject to
7 the same Code of Business Conduct which was applicable to Montano, a copy of which is
attached
8 hereto as Exhibit “C”. The Jacobs’ Employment Agreement, the Consulting
Agreement, Jacobs'
9 Confidential Information Agreement, and the Code of Conduct, are collectively referred to
herein as the
10 “Jacobs’ Employment Agreements.”
11 13. Under the terms of Montano’s and Jacobs’ Employment Agreements
with Cardio,
12 Montano and Jacobs were (i) prohibited throughout perpetuity from disclosing
Cardio Proprietary
13 Information, (ii) required throughout perpetuity to refrain from directly or indirectly
exploiting any
14 Cardio Proprietary Information for any purpose other than in connection with their
employment and
15 obligations to Cardio and (iii) were required to hold in trust for the benefit of Cardio
any gain or profit
16 of any nature obtained by Montano and Jacobs as a result of the disclosure or
use of any Cardio
17 Proprietary Information in violation of their Employment Agreements.1 This lawsuit has
been brought
18 because Defendants have entered into a civil conspiracy with Montano and Jacobs with the
objective of
19 stealing Cardio Proprietary Information for the purpose of harming Cardio and illegally
using Cardio
20 Proprietary Information to compete with Cardio for their own personal enrichment.
21 14. During the time that Montano and Jacobs were employed by Cardio as
officers and
22 directors of Cardio, Cardio’s proprietary product development included actual and scheduled
trials for
23 the use of the FGF-1 protein for use in the growth of blood vessels in the treatment, inter
alia, of heart 24
25 1 Pursuant to the provisions of the Montano and Jacob Employment Agreements (as
defined below), any disputes arising out of Montano’s and Jacob’s employment with Cardio are
required to be
26 submitted to binding arbitration. As a result, Montano and Jacobs are not named as
Defendants in this lawsuit. Instead, Cardio’s claims against Montano and Jacobs are independently
being pursued
in a separate arbitration proceeding.
5
1 disease, lumbar ischemia, diabetic ulcers, bed sores, stroke , spinal cord injury neuropathy,
Parkinson’s
2 Disease, ALS, multiple sclerosis, kidney ischemia, intestinal ischemia, pancreatitis,
bone repair,
3 cartilage repair, hair growth induction, severe coronary microvascular disease, and
peripheral artery
4 diseases. Additionally, Cardio had acquired an exclusive license from Merck Sharp & Dohme
Corp.
5 (“Merck”) to utilize copies of Merck’s confidential clinical trial records developed in
connection with
6 Merck’s investigational new drug applications relating to Merck’s Phase I, IIa and IIb
Clinical Trials
7 for Merck’s topical applications of FGF-1 for dermal wound healing and Merck’s injectable
solution of
8 FGF-1 for vascular repair of wounds (“Merck’s Confidential Clinical Trial Data”).
9 15. In their respective positions as officers and/or directors of Cardio,
Montano, Jacobs, and
10 Viktoriya were provided access to all Cardio Proprietary Information, including access to
information
11 relating to patent applications, drug development processes, clinical trials conducted by
Cardio, Merck’s
12 Confidential Clinical Trial Data exclusively licensed by Merck to Cardio, marketing
strategies, and
13 potential marketing and financial partners. This highly sensitive and proprietary
information was made
14 available to Montano, Jacobs, and Viktoriya as a result of the investment in excess of $100
Million
15 dollars by Cardio shareholders and investors who mistakenly placed their trust in Montano,
Jacobs, and
16 Viktoriya to honor their contractual and fiduciary obligations to Cardio’s shareholders to
protect and
17 develop Cardio's invaluable intellectual property rights for the exclusive
benefit of Cardio's
18 shareholders.
19 16. During Montano’s, Jacobs’ and Viktoriya’s tenure as officers and
directors of Cardio,
20 they had access to and/or acquired copies of all of Cardio’s Proprietary Information and,
following
21 their termination of employment as officers and directors of Cardio, Montano, Jacobs, and
Viktoriya,
22 in breach of their Employment Agreements and fiduciary duties to the shareholders of Cardio
have
23 retained, and still possess, copies of all, or substantially all, of such Cardio Proprietary
Information,
24 including, upon information and belief, a copy of the Merck Confidential Clinical Trial
Data.
25 17. In anticipation of Montano’s and Jacobs’ inevitable termination as
officers and directors
26 of Cardio and Viktoriya’s termination as a director of Cardio, Montano, Jacobs, and
Viktoriya formed
6
1 ZRM as a Delaware corporation in June, 2014. ZRM was formed by Montano, Jacobs and Viktoriya
2 for the express purpose of stealing and utilizing all of Cardio Proprietary Information,
including Merck’s
3 Confidential Clinical Trial Data, to illegally compete with Cardio following Montano’s,
Jacobs’ and
4 Viktoriya’s termination as officers and directors of Cardio. Subsequently, after ZRM’s
authority to
5 conduct business in Nevada and Delaware was revoked in 2015 as a result of Defendants failure
to
6 properly maintain proper corporate filings with Delaware’s and Nevada’s Secretary of State,
Montano,
7 Jacobs, and Viktoriya formed Zhittya Genesis Medicine Inc. (“ZGM,” and together
with ZRM,
8 “Zhittya”) in Nevada in 2018, also for the express purpose of taking the place of ZRM to
compete with
9 Cardio using the very same stolen Cardio Proprietary Information that had been previously
used by
10 ZRM to illegally compete with Cardio.
11 18. Following Montano’s, Jacobs’, and Viktoriya’s termination as officers
and directors of
12 Cardio, it became clear based upon website postings by Zhittya and others, as well as emails
by Montano
13 and others, including the dissemination of “white papers” under Zhittya’s name plagiarizing
Cardio
14 Proprietary Information, and presentations being made on behalf of Zhittya, that Zhittya is
now falsely
15 claiming, as its own (i.e., trying to steal), ownership of years of Cardio research and
development and
16 clinical trials of drug candidates conducted by Cardio and/or exclusively licensed to Cardio
as a means
17 of attempting to illegally bilk unsuspecting investors and patients out of potentially
millions of dollars
18 based upon patently false claims and false advertising.
19 19. Additionally, based upon emails by Montano and documents discovered
by Cardio, it
20 has become clear that Laub has knowingly conspired to join with Montano, Jacobs,
Zhittya, and
21 Viktoriya to unlawfully misappropriate, use, and profit from Cardio Proprietary Information
stolen by
22 Montano, Jacobs, and Viktoriya by Laub acting as the “Master Territorial Franchisee” for
Zhittya in its
23 sale of drugs which will be manufactured based upon stolen Cardio Proprietary Information.
24 20. Upon information and belief, Defendants are acting in concert
with others who are
25 knowingly aiding and abetting Defendants in their conspiracy with Montano and Jacobs to (i)
steal
26 trade secrets from Cardio, (ii) falsely claim ownership of Cardio Proprietary
Information and
7
1 (iii) illegally compete with Cardio utilizing stolen Cardio trade secrets in connection with
attempting
2 to compete with Cardio’s Biopharmaceutical Business.
3 22. At the time of their termination as officers and directors of Cardio,
Montano, Jacobs
4 and Viktoriya were in possession of Cardio Proprietary Information which they were required
to return
5 to Cardio as part of their fiduciary duties to Cardio and under Montano’s and Jacobs’
Employment
6 Agreements with Cardio. Despite lawful demands from Cardio for the return by Montano and
Jacobs
7 of the Cardio Proprietary Information in their possessions. Montano and Jacobs
have failed and
8 refused to return such Confidential Proprietary Information and the Merck Confidential
Clinical Data
9 to Cardio. Instead, Zhittya, Viktoriya, and Laub have entered into a civil conspiracy with
Montano
10 and Jacobs to steal Cardio’s Proprietary Information for the purpose of unlawfully competing
with
11 Cardio for their unjust enrichment to the detriment of Cardio.
12 23. Cardio’s Proprietary Information: (i) is not generally available to
the public, (ii) is of
13 great value to Cardio and (iii) would give any of its competitors who acquired such
information,
14 including Montano, Jacobs, the Defendants, and others acting in concert with him,
an unfair
15 competitive advantage.
16 24. Cardio had and has processes and procedures in place to
rigorously maintain the
17 confidentiality of the Cardio Proprietary Information because such information
provides Cardio a
18 competitive advantage in the marketplace from which Cardio derives substantial economic
value.
19 24. Defendants’ misappropriation and theft of trade secrets and
improper use of Cardio
20 Proprietary Information in competition with Cardio is irreparably harming Cardio
and poses an
21 immediate and ongoing threat to Cardio’s Biopharmaceutical Business, its intellectual
property rights
22 and trade secrets that must be enjoined because Cardio has no adequate remedy at law.
23 25. Cardio’s trade secrets and confidential and proprietary information
are of great value to
24 Cardio and would give any competitor of Cardio—including Defendants and those acting in
concert
25 with them—an unfair competitive advantage. Specifically, Cardio’s trade secrets and other
proprietary
26 information are of great value to Cardio and such information would give any
competitor, who
8
1 improperly acquired such information, an unfair competitive advantage by: not expending the
time and
2 resources to develop the trade secrets and confidential and proprietary information as Cardio
has done;
3 quickly developing products and technologies to unfairly compete with Cardio in order to
diminish
4 Cardio’s head start; alerting a competitor as to initiatives that should and should not be
pursued; and
5 other improper advantages.
6 27. All told, Defendants and those acting in concert with them are
causing, threatening,
7 and/or will continue to cause or threaten significant irreparable harm to Cardio, including
the loss of
8 value of confidential and/or proprietary information, the loss of long-standing
prospective investor
9 relationships, loss of goodwill, as well as damage to Cardio’s reputation as an industry
leader and its
10 ability to successfully market its drug applications. Money alone cannot make Cardio whole.
11 28. This lawsuit is being brought by Cardio (i) to recover damages from
the Defendants for
12 their unlawful conspiracy to steal Cardio trade secrets, (ii) for disgorgement of any
profits unlawfully
13 obtained by Defendants as a result of their theft of Cardio’s trade secrets, (iii) to
recover damages from
14 Viktoriya for her breaches of fiduciary duties to Cardio, (iii) to recover damages from
Viktoriya for her
15 unlawful champerty in funding a baseless lawsuit against Cardio in which she has no
interest, and (iv)
16 to recover damages from Defendants for their civil RICO violations.
17 29. This lawsuit has additionally been instituted by Cardio for the
purpose of, inter alia,
18 seeking a preliminary and permanent injunction against Defendants requiring Defendants and
all others
19 acting in concert with them (i) to immediately cease using and publishing Cardio
Proprietary
20 Information for any purpose, (ii) to immediately return to Cardio all Cardio Proprietary
Information and
21 Cardio property in Defendants' possession, custody or control, and (iii) for a
permanent injunction
22 requiring Defendants and all others acting in concert with them to permanently cease using
Cardio
23 Proprietary Information for any purpose, including, but not limited to, the use of Cardio
Proprietary
24 Information in the manufacture, use, or sale of any FGF-1 protein for the development of
drugs relating
25 to any of Cardio’s Biopharmaceutical Business.
26
9
1 30. Absent such injunctive relief, Cardio faces irreparable injury,
including the loss of (i)
2 funding for the development of its Biopharmaceutical Business, (ii) markets
for Cardio’s
3 Biopharmaceutical Business, (iii) Cardio’s exclusive competitive advantage, and (iv)
Cardio’s trade
4 secrets and goodwill, with the amount of such losses being impossible to
determine requiring that
5 Defendants and all others acting in concert with them be enjoined and restrained by order of
this Court
6 at once.
7 COUNT I
8 THEFT OF TRADE SECRETS
9 31. Cardio hereby repeats, realleges, and incorporates by reference the
allegations which
10 are contained in Paragraphs 1 through 30.
11 32. Defendants have actively conspired with Montano and
Jacobs to improperly
12 misappropriate trade secrets from Cardio, and have improperly misappropriated trade
secrets from
13 Cardio by means of theft and willful inducement of breach of the duty of
Montano and Jacobs to
14 maintain secrecy entitling Cardio to recover damages from Defendants in excess of $15,000
and a
15 recovery of any unjust enrichment realized by Defendants as a result of their theft and
misappropriation
16 of trade secrets from Cardio.
17 33. Defendants theft and misappropriation of Cardio’s trade
secrets have been willful,
18 wanton, and reckless, entitling Cardio to recover exemplary damages as permitted
under NRS 19 600A.050(2).
20 34. Defendants theft and misappropriation of Cardio’s trade secrets have
been made in bad
21 faith entitling Cardio to recover its reasonable attorneys’ fees under NRS 600A.060.
22 COUNT II
23 CIVIL CONSPIRACY
24 35. Cardio hereby repeats, realleges, and incorporates by reference the
allegations which
25 are contained in paragraphs 1 through 34.
26
10
1 36. Defendants have combined among each other and with Montano
and Jacobs to
2 accomplish an unlawful objective, to wit, to misappropriate and steal trade
secrets from Cardio in
3 violation of NRS 600A.035 for the purpose of harming Cardio and unjustly
enriching themselves
4 causing Cardio extensive damages.
5 37. As a result of Defendants’ willful, wanton, and malicious conduct,
Cardio is entitled to
6 recover not only compensatory damages in excess of $15,000.00 and attorneys’ fees for
Defendants’
7 civil conspiracy to misappropriate and steal Cardio’s trade secrets, but also its
attorneys’ fees and
8 exemplary damages from Defendants.
9 COUNT III
10 BREACH OF FIDUCIARY DUTY
11 38. Cardio hereby repeats, realleges, and incorporates by reference the
allegations which
12 are contained in paragraphs 1 through 37.
13 39. Viktoriya, as a director of Cardio, owed to Cardio a fiduciary duty
of honesty, loyalty,
14 good faith and fairness. Specifically, Viktoriya owed her undivided and unselfish
loyalty to the
15 corporation that demanded that there be no conflict between her fiduciary duties
and self-interest.
16 Singer v. Magnavox Company, 380A.2d 969 (1977). Viktoriya’s actions during and following
her
17 termination as a director of Cardio in participating in a conspiracy to misappropriate and
steal Cardio
18 trade secrets for her own personal enrichment violated her fiduciary duties to Cardio
entitling Cardio
19 to recovery of compensatory damages in excess of $15,000.00, and damages for any
personal
20 enrichment received by Viktoriya for her breach of fiduciary duties and attorneys’ fees.
21 COUNT IV
22 CHAMPERTY
23 40. Cardio hereby repeats, realleges, and incorporates by reference the
allegations which
24 are contained in paragraphs 1 through 39.
25 41. On November 15, 2018, Viktoriya financed the filing of an
Involuntary Bankruptcy
26 Proceeding in the United States Bankruptcy Court in Nevada against Cardio, in which
she had no
11
1 legitimate interest inasmuch as she was not a creditor of Cardio and had no standing to
participate in
2 the filing of such Involuntary Bankruptcy Proceeding.
3 42. Upon information and belief, the only reason why Viktoriya financed
the filing of the
4 Involuntary Bankruptcy Proceeding was to damage Cardio and to personally enrich herself as a
result
5 of the potential elimination of Cardio as a competitor of Zhittya if the Involuntary filing
was successful
6 in driving Cardio out of business.
7 43. Viktoriya’s financing of the Involuntary Bankruptcy Proceeding in
which she had no
8 interest constitutes the tort of Champerty in Nevada for which Cardio is entitled
to recover from
9 Victoria monetary damages in excess of $15,000.00 incurred by Cardio as a result of such
tortious
10 conduct.
11 COUNT V
12 VIOLATION OF CIVIL RICO STATUTES
13 44. Cardio hereby repeats, realleges, and incorporates by reference the
allegations which
14 are contained in paragraphs 1 through 43.
15 45. Pursuant to NRS 207.470 et seq., Cardio brings a claim for violation
of Nevada’s Civil
16 RICO Statute against Defendants and others acting in concert with them who have engaged in a
pattern
17 of thefts of trade secrets and the publishing fraudulent and false statements in connection
with the sale
18 of securities (i.e., investments in Zhittya) with the intent to defraud investors and
deprive Cardio of its
19 ability to generate business profits from Cardio's products which are in the process of
being brought to
20 market. Cardio has suffered and continues to suffer monetary damages in excess of
$15,000.00 as a
21 result of Defendants’ racketeering activity. As a result of Defendants’ violation of
Nevada’s RICO
22 Statutes, Cardio is entitled to recover treble damages caused by Defendants to Cardio's
business plus
23 costs of suit and attorneys' fees. 24
25
26
12
1 COUNT V
2 INJUNCTIVE RELIEF
3 46. Cardio hereby realleges and incorporates by reference the
allegations which are
4 contained in paragraphs 1 through 45.
5 47. Pursuant to the provisions of NRS 600A.040 and common law, Cardio is
entitled to
6 injunctive relief to prevent the immediate, severe, and irreparable injury resulting from
Defendants’
7 current and certain future misappropriation and theft of Cardio’s trade secrets and unlawful
competition
8 with Cardio for which no adequate remedy is available at law unless a mandatory injunction is
issued
9 enjoining and restraining Defendants and their respective agents, servants,
principals, assignees,
10 transferees and/or beneficiaries, and all those acting in concert with them (i) to
immediately cease using
11 and publishing Cardio Proprietary Information for any purpose, (ii) to immediately return to
Cardio all
12 Cardio Proprietary Information and property in Defendants' possession, custody or control to
Cardio,
13 and (iii) requiring Defendants and all others acting in concert with them to permanently
cease using
14 Cardio Proprietary Information for any purpose, including, but not limited to,
the use of Cardio
15 Proprietary Information in the manufacture, use or sale of any FGF-1 protein for the
development of
16 drugs relating to any of Cardio’s Biopharmaceutical Business.
17 48. Cardio is entitled to an award of attorneys’ fees for being required
to bring this action.
18 PRAYER FOR RELIEF
19 WHEREFORE, Cardio seeks judgment in its favor against the Defendants
that grants the
20 following relief:
21 A. Awards Cardio actual, incidental, compensatory, treble, and
consequential damages in
22 an amount in excess of $15,000 to be proven at trial;
23 B. Awards Cardio exemplary or punitive damages in an amount in excess of
$15,000 to
24 be proven at trial due to Defendants’ willful and malicious activities;
25 C. Awards Cardio its costs and expenses incurred herein, including
reasonable attorneys’
26 fees and interest, pursuant to NRS 600A.060;
13
1 D. Awards Cardio damages in the amount of any and all unjust enrichment
realized
2 by Defendants as a result of their unlawful use of Cardio’s Confidential Proprietary
Information;
3 E. Temporarily, preliminarily, and permanently enjoining Defendants and
all parties in
4 active concert or participation with them, from using or disclosing any of
Cardio’s Confidential,
5 Proprietary Information;
6 F. Temporarily, preliminarily, and permanently enjoining Defendants and
all parties in
7 active concert or participation with them, from directly or indirectly engaging in
any business in
8 competition with Cardio which utilizes Cardio Proprietary Information in the manufacture, use
or sale
9 of any FGF-1 protein for the development of drugs relating to any of Cardio’s
Biopharmaceutical
10 Business;
11 G. Orders Defendants and all parties in active concert or participation
with him to return
12 to Cardio all originals and copies of all files, devices, and/or documents that
contain or relate to
13 Cardio’s Confidential Proprietary Information, including without limitation, all computers,
electronic
14 media, and electronic storage devices; and
15 H. Awards Cardio such further relief as the Court deems necessary and
just.
16 DATED: December 12, 2018
17 Respectfully
submitted.
18 JOHNSON & GUBLER,
P.C.
19 By: /s/ Matthew L. Johnson
Matthew L. Johnson, Esq.
20 8831 West Sahara
Avenue
Las Vegas, Nevada 89117
21 Telephone: (702)
471-0065
Facsimile: (702) 471-0075
22 Attorneys for
Plaintiff
CardioVascular BioTherapeutics, Inc.
23 Of Counsel:
Barry F. Cannaday (Application to be applied for)
24 DENTONS US LLP
2000 McKinney Ave, Suite 1900
25 Dallas, Texas 75201 Telephone: (214) 259-1855
26 Facsimile: (214) 259-0910
14
Dan Dan the CONMAN & CONMAN LAUB get it in the dangly bits.
CVBT at long last go nuclear. RICO Act here we come. Conman Dan isn't likely to get out of jail before his demise. FANTASTIC!!
Anyone willing to look after 2 teenage boys whilst their con person parents languish in a Federal penitentiary??
Claimant CARDIOVASCULAR BIOTHERAPEUTICS, INC. (“Cardio”), for its Complaint for Theft of Trade
Secrets, Civil Conspiracy, Breach of Fiduciary Duty, Champerty, Civil RICO Violations and
Injunctive Relief against Defendants Zhittya Regenerative Medicines, Inc. (“ZRM”), Zhittya Genesis
Medicines, Inc. (“ZGM, ” and together with ZRM, “Zhittya”), John Laub (“Laub”), and Viktoriya
Tamlenova-Montano (“Viktoriya,” and together with Zhittya and Laub, the
“Defendants”), states as follows:
PARTIES
1. Plaintiff CardioVascular BioTherapeutics, Inc. is a corporation organized and existing
under the laws of the State of Delaware, with its principal place of business in Dallas, Texas.
CARDIOVASCULAR BIOTHERAPEUTICS, INC.,
Plaintiff,
vs.
ZHITTYA REGENERATIVE MEDICINE, a
Delaware Corporation; ZHITTYA GENESIS MEDICINE INC., a Nevada Corporation; JOHN LAUB, an
individual; and VIKTORIYA TAMLENOVA-MONTANO, an individual.
Defendants.
Case No.:
EXEMPT FROM ARBITRATION. INJUNCTIVE RELIEF SOUGHT
Dept. No:
COMPLAINT FOR THEFT OF TRADE SECRETS; CIVIL CONSPIRACY; BREACH OF FIDUCIARY DUTY; CHAMPERTY; CIVIL
RICO VIOLATIONS;
AND INJUNCTIVE RELIEF
Case Number: A-18-785986-C
Electronically Filed 12/12/2018 4:57 PM
Steven D. Grierson CLERK OF THE COURT
A-18-785986-C
epartment 15
1 2. Defendant Zhittya Regenerative Medicine, Inc. (“ZRM”) is a
forfeited corporation
2 originally organized and which existed under the laws of the State of Delaware with its
principal office
3 in the State of Nevada. ZRM may be served in this lawsuit, among other methods, by serving
its
4 registered agent in Nevada, the DeMint Law, PLLC, 3753 Howard Hughes Parkway, Suite 200-314,
5 Las Vegas, Nevada 89169.
6 3. Defendant Zhittya Genesis Medicine Inc. (“ZGM”) is a
corporation organized and
7 existing under the laws of the State of Nevada with its principal office in the State of
Nevada. ZGM
8 may be served in this lawsuit, among other methods, by serving its registered
agent in Nevada,
9 Viktoriya Tamlenova-Montano, 3017 Carbondale St., Las Vegas, Nevada 89135.
10 4. Defendant Viktoriya Tamlenova-Montano is an individual
residing in Las Vegas,
11 Nevada who may be served in this lawsuit, among other methods, at 3017 Carbondale St., Las
Vegas,
12 Nevada 89135.
13 5. Defendant John Laub is an individual residing in Las Vegas,
Nevada who may be
14 served in this lawsuit, among other methods, at 9501 Royal Windsor Ave., Las Vegas, Nevada
89149.
15 JURISDICTION AND VENUE
16 6. This Court has subject matter jurisdiction over this
action under the Nevada
17 Constitution, Article 6, §6.
18 7. Venue is proper in this Court pursuant to NRS 13.040 inasmuch as
each of the individual
19 defendants reside in the County in which this law suit has been brought.
20 INTRODUCTION
21 8. Cardio requests this Court’s intervention to prevent each of the
named Defendants from
22 continuing to conspire with Daniel C. Montano (“Montano”) and John W. Jacobs (“Jacobs”) in
the
23 execution of a plan calculated to cause severe irreparable damage to Cardio
through the theft and
24 dissemination of highly confidential trade secrets and intellectual property rights
owned and/or
25 exclusively licensed to Cardio (“Cardio Proprietary Information”) in violation of
Montano’s and 26
2
1 Jacob’s fiduciary duties to Cardio and in breach of express contractual provisions in
Montano’s and
2 Jacobs’ Employment Agreements (as hereinafter defined).
3 9. This is an action for theft of trade secrets, civil conspiracy,
breach of fiduciary duties,
4 champerty, and civil RICO violations. Additionally, Cardio seeks temporary,
preliminary, and
5 permanent injunctive relief in addition to monetary damages.
6 FACTUAL ALLEGATIONS
7 10. Cardio is a biopharmaceutical company developing protein drug
candidates to address
8 diseases that result from lack of blood flow to a tissue or organ such as in the growth of
blood vessels
9 in the treatment, inter alia, of heart disease, lumbar ischemia, diabetic ulcers, bed sores,
stroke , spinal
10 cord injury neuropathy, Parkinson’s Disease, ALS, multiple sclerosis, kidney
ischemia, intestinal
11 ischemia, pancreatitis, bone repair, cartilage repair, hair growth
induction, severe coronary
12 microvascular disease, erectile disfunction, and peripheral artery
diseases (“Cardio’s
13 Biopharmaceutical Business”). The active pharmaceutical ingredient in Cardio’s drug
candidates is
14 FGF-1, a human protein that stimulates the growth of new blood vessels, thereby increasing
the blood
15 supply to ischemic organs and tissues.
16 11. Montano was Chairman of the Board of Directors, President and Chief
Executive Officer
17 of Cardio until September 16, 2014 when Cardio terminated Montano’s role with Cardio as
Chairman
18 of the Board of Directors, President, and Chief Executive Officer. Prior to his termination
on September
19 16, 2014, Montano had entered into an Employment Agreement with Cardio dated January 1, 2007
(the
20 “Montano Employment Agreement”), a true and correct copy of which is attached hereto as
Exhibit
21 “A”. Montano's Employment Agreement imposed obligations upon Montano to maintain
the
22 confidentiality of all Cardio Proprietary Information and to refrain from utilizing any
Cardio Proprietary
23 Information to directly or indirectly compete with Cardio during or following his employment
with
24 Cardio. Additionally, Montano agreed under the provisions of Section 6.2(b) of
his Employment
25 Agreement, that if Montano used any Cardio Proprietary Information other than in connection
with his
26 employment with Cardio, any gain or profit derived by Montano as a result of Montano's use
of such
3
1 Cardio Proprietary Information would be held in trust for the benefit of Cardio and would be
remitted
2 by Montano to Cardio upon demand. Further, during Montano's employment with Cardio, Montano
3 was subject to an Employee Confidential Information and Non-Solicitation Agreement dated
March 11,
4 1998 (the “Montano Confidential Information Agreement”), a true and correct copy
of which is
5 attached hereto as Exhibit “B”. Montano was additionally subject to a Code of Business
Conduct (the
6 “Code of Conduct”), a true and correct copy of which is attached hereto as Exhibit “C”. The
Montano
7 Confidential Information Agreement and the Code of Conduct imposed additional obligations
upon
8 Montano to maintain the confidentiality of all Cardio Proprietary Information and
to refrain from
9 utilizing any Cardio Proprietary Information to directly or indirectly compete with Cardio
during or
10 following Montano's employment with Cardio. The Montano Employment Agreement, the Montano
11 Confidential Information Agreement, and the Code of Conduct, are collectively referred to
herein as the
12 “Montano Employment Agreements.”
13 12. Jacobs was a Chief Scientific Officer and Chief Operating
Officer of Cardio until
14 September 18, 2014 when Cardio terminated Jacobs’ role with Cardio as Chief Scientific
Officer and
15 Chief Operating Officer. Prior to his termination on September 16, 2014, Jacobs had entered
into an
16 Employment Agreement with Cardio dated January 1, 2007 (the “Jacobs’ Employment Agreement”),
17 a true and correct copy of which is attached hereto as Exhibit “D”. Jacobs' Employment
Agreement
18 imposed obligations upon Jacobs to maintain the confidentiality of all Cardio Proprietary
Information
19 and to refrain from utilizing any Cardio Proprietary Information to directly or indirectly
compete with
20 Cardio during or following his employment with Cardio. Additionally, Jacobs
agreed under the
21 provisions of Section 6.2(b) of the Jacobs Employment Agreement that if Jacobs
use any Cardio
22 Proprietary Information other than in connection with his employment with Cardio, any gain
or profit
23 derived by Jacobs as a result of Jacobs’ use of such Cardio Proprietary Information would be
held in
24 trust for the benefit of Cardio and would be remitted by Jacobs to Cardio upon demand.
Although
25 Jacobs’ Employment Agreement was replaced by a Consulting Agreement between Jacobs and
Cardio
26 dated March 1, 2010 (the “Consulting Agreement”), a true and correct copy of which is
attached hereto
4
1 as Exhibit “E”, Jacobs continued to remain subject to the confidentiality and non-compete
obligations
2 under his Employment Agreement. Jacobs was further subject to a September 22, 2004
Employee
3 Confidential Information and Non-Solicitation Agreement (the “Jacobs' Confidential
Information
4 Agreement”) which prohibited Jacobs from using any Cardio Proprietary Information to compete
in any
5 way with Cardio during or following his employment with Cardio, a true and correct copy of
which is
6 attached hereto as Exhibit F. Further, during Jacobs’ employment with Cardio, Jacobs was
subject to
7 the same Code of Business Conduct which was applicable to Montano, a copy of which is
attached
8 hereto as Exhibit “C”. The Jacobs’ Employment Agreement, the Consulting
Agreement, Jacobs'
9 Confidential Information Agreement, and the Code of Conduct, are collectively referred to
herein as the
10 “Jacobs’ Employment Agreements.”
11 13. Under the terms of Montano’s and Jacobs’ Employment Agreements
with Cardio,
12 Montano and Jacobs were (i) prohibited throughout perpetuity from disclosing
Cardio Proprietary
13 Information, (ii) required throughout perpetuity to refrain from directly or indirectly
exploiting any
14 Cardio Proprietary Information for any purpose other than in connection with their
employment and
15 obligations to Cardio and (iii) were required to hold in trust for the benefit of Cardio
any gain or profit
16 of any nature obtained by Montano and Jacobs as a result of the disclosure or
use of any Cardio
17 Proprietary Information in violation of their Employment Agreements.1 This lawsuit has
been brought
18 because Defendants have entered into a civil conspiracy with Montano and Jacobs with the
objective of
19 stealing Cardio Proprietary Information for the purpose of harming Cardio and illegally
using Cardio
20 Proprietary Information to compete with Cardio for their own personal enrichment.
21 14. During the time that Montano and Jacobs were employed by Cardio as
officers and
22 directors of Cardio, Cardio’s proprietary product development included actual and scheduled
trials for
23 the use of the FGF-1 protein for use in the growth of blood vessels in the treatment, inter
alia, of heart 24
25 1 Pursuant to the provisions of the Montano and Jacob Employment Agreements (as
defined below), any disputes arising out of Montano’s and Jacob’s employment with Cardio are
required to be
26 submitted to binding arbitration. As a result, Montano and Jacobs are not named as
Defendants in this lawsuit. Instead, Cardio’s claims against Montano and Jacobs are independently
being pursued
in a separate arbitration proceeding.
5
1 disease, lumbar ischemia, diabetic ulcers, bed sores, stroke , spinal cord injury neuropathy,
Parkinson’s
2 Disease, ALS, multiple sclerosis, kidney ischemia, intestinal ischemia, pancreatitis,
bone repair,
3 cartilage repair, hair growth induction, severe coronary microvascular disease, and
peripheral artery
4 diseases. Additionally, Cardio had acquired an exclusive license from Merck Sharp & Dohme
Corp.
5 (“Merck”) to utilize copies of Merck’s confidential clinical trial records developed in
connection with
6 Merck’s investigational new drug applications relating to Merck’s Phase I, IIa and IIb
Clinical Trials
7 for Merck’s topical applications of FGF-1 for dermal wound healing and Merck’s injectable
solution of
8 FGF-1 for vascular repair of wounds (“Merck’s Confidential Clinical Trial Data”).
9 15. In their respective positions as officers and/or directors of Cardio,
Montano, Jacobs, and
10 Viktoriya were provided access to all Cardio Proprietary Information, including access to
information
11 relating to patent applications, drug development processes, clinical trials conducted by
Cardio, Merck’s
12 Confidential Clinical Trial Data exclusively licensed by Merck to Cardio, marketing
strategies, and
13 potential marketing and financial partners. This highly sensitive and proprietary
information was made
14 available to Montano, Jacobs, and Viktoriya as a result of the investment in excess of $100
Million
15 dollars by Cardio shareholders and investors who mistakenly placed their trust in Montano,
Jacobs, and
16 Viktoriya to honor their contractual and fiduciary obligations to Cardio’s shareholders to
protect and
17 develop Cardio's invaluable intellectual property rights for the exclusive
benefit of Cardio's
18 shareholders.
19 16. During Montano’s, Jacobs’ and Viktoriya’s tenure as officers and
directors of Cardio,
20 they had access to and/or acquired copies of all of Cardio’s Proprietary Information and,
following
21 their termination of employment as officers and directors of Cardio, Montano, Jacobs, and
Viktoriya,
22 in breach of their Employment Agreements and fiduciary duties to the shareholders of Cardio
have
23 retained, and still possess, copies of all, or substantially all, of such Cardio Proprietary
Information,
24 including, upon information and belief, a copy of the Merck Confidential Clinical Trial
Data.
25 17. In anticipation of Montano’s and Jacobs’ inevitable termination as
officers and directors
26 of Cardio and Viktoriya’s termination as a director of Cardio, Montano, Jacobs, and
Viktoriya formed
6
1 ZRM as a Delaware corporation in June, 2014. ZRM was formed by Montano, Jacobs and Viktoriya
2 for the express purpose of stealing and utilizing all of Cardio Proprietary Information,
including Merck’s
3 Confidential Clinical Trial Data, to illegally compete with Cardio following Montano’s,
Jacobs’ and
4 Viktoriya’s termination as officers and directors of Cardio. Subsequently, after ZRM’s
authority to
5 conduct business in Nevada and Delaware was revoked in 2015 as a result of Defendants failure
to
6 properly maintain proper corporate filings with Delaware’s and Nevada’s Secretary of State,
Montano,
7 Jacobs, and Viktoriya formed Zhittya Genesis Medicine Inc. (“ZGM,” and together
with ZRM,
8 “Zhittya”) in Nevada in 2018, also for the express purpose of taking the place of ZRM to
compete with
9 Cardio using the very same stolen Cardio Proprietary Information that had been previously
used by
10 ZRM to illegally compete with Cardio.
11 18. Following Montano’s, Jacobs’, and Viktoriya’s termination as officers
and directors of
12 Cardio, it became clear based upon website postings by Zhittya and others, as well as emails
by Montano
13 and others, including the dissemination of “white papers” under Zhittya’s name plagiarizing
Cardio
14 Proprietary Information, and presentations being made on behalf of Zhittya, that Zhittya is
now falsely
15 claiming, as its own (i.e., trying to steal), ownership of years of Cardio research and
development and
16 clinical trials of drug candidates conducted by Cardio and/or exclusively licensed to Cardio
as a means
17 of attempting to illegally bilk unsuspecting investors and patients out of potentially
millions of dollars
18 based upon patently false claims and false advertising.
19 19. Additionally, based upon emails by Montano and documents discovered
by Cardio, it
20 has become clear that Laub has knowingly conspired to join with Montano, Jacobs,
Zhittya, and
21 Viktoriya to unlawfully misappropriate, use, and profit from Cardio Proprietary Information
stolen by
22 Montano, Jacobs, and Viktoriya by Laub acting as the “Master Territorial Franchisee” for
Zhittya in its
23 sale of drugs which will be manufactured based upon stolen Cardio Proprietary Information.
24 20. Upon information and belief, Defendants are acting in concert
with others who are
25 knowingly aiding and abetting Defendants in their conspiracy with Montano and Jacobs to (i)
steal
26 trade secrets from Cardio, (ii) falsely claim ownership of Cardio Proprietary
Information and
7
1 (iii) illegally compete with Cardio utilizing stolen Cardio trade secrets in connection with
attempting
2 to compete with Cardio’s Biopharmaceutical Business.
3 22. At the time of their termination as officers and directors of Cardio,
Montano, Jacobs
4 and Viktoriya were in possession of Cardio Proprietary Information which they were required
to return
5 to Cardio as part of their fiduciary duties to Cardio and under Montano’s and Jacobs’
Employment
6 Agreements with Cardio. Despite lawful demands from Cardio for the return by Montano and
Jacobs
7 of the Cardio Proprietary Information in their possessions. Montano and Jacobs
have failed and
8 refused to return such Confidential Proprietary Information and the Merck Confidential
Clinical Data
9 to Cardio. Instead, Zhittya, Viktoriya, and Laub have entered into a civil conspiracy with
Montano
10 and Jacobs to steal Cardio’s Proprietary Information for the purpose of unlawfully competing
with
11 Cardio for their unjust enrichment to the detriment of Cardio.
12 23. Cardio’s Proprietary Information: (i) is not generally available to
the public, (ii) is of
13 great value to Cardio and (iii) would give any of its competitors who acquired such
information,
14 including Montano, Jacobs, the Defendants, and others acting in concert with him,
an unfair
15 competitive advantage.
16 24. Cardio had and has processes and procedures in place to
rigorously maintain the
17 confidentiality of the Cardio Proprietary Information because such information
provides Cardio a
18 competitive advantage in the marketplace from which Cardio derives substantial economic
value.
19 24. Defendants’ misappropriation and theft of trade secrets and
improper use of Cardio
20 Proprietary Information in competition with Cardio is irreparably harming Cardio
and poses an
21 immediate and ongoing threat to Cardio’s Biopharmaceutical Business, its intellectual
property rights
22 and trade secrets that must be enjoined because Cardio has no adequate remedy at law.
23 25. Cardio’s trade secrets and confidential and proprietary information
are of great value to
24 Cardio and would give any competitor of Cardio—including Defendants and those acting in
concert
25 with them—an unfair competitive advantage. Specifically, Cardio’s trade secrets and other
proprietary
26 information are of great value to Cardio and such information would give any
competitor, who
8
1 improperly acquired such information, an unfair competitive advantage by: not expending the
time and
2 resources to develop the trade secrets and confidential and proprietary information as Cardio
has done;
3 quickly developing products and technologies to unfairly compete with Cardio in order to
diminish
4 Cardio’s head start; alerting a competitor as to initiatives that should and should not be
pursued; and
5 other improper advantages.
6 27. All told, Defendants and those acting in concert with them are
causing, threatening,
7 and/or will continue to cause or threaten significant irreparable harm to Cardio, including
the loss of
8 value of confidential and/or proprietary information, the loss of long-standing
prospective investor
9 relationships, loss of goodwill, as well as damage to Cardio’s reputation as an industry
leader and its
10 ability to successfully market its drug applications. Money alone cannot make Cardio whole.
11 28. This lawsuit is being brought by Cardio (i) to recover damages from
the Defendants for
12 their unlawful conspiracy to steal Cardio trade secrets, (ii) for disgorgement of any
profits unlawfully
13 obtained by Defendants as a result of their theft of Cardio’s trade secrets, (iii) to
recover damages from
14 Viktoriya for her breaches of fiduciary duties to Cardio, (iii) to recover damages from
Viktoriya for her
15 unlawful champerty in funding a baseless lawsuit against Cardio in which she has no
interest, and (iv)
16 to recover damages from Defendants for their civil RICO violations.
17 29. This lawsuit has additionally been instituted by Cardio for the
purpose of, inter alia,
18 seeking a preliminary and permanent injunction against Defendants requiring Defendants and
all others
19 acting in concert with them (i) to immediately cease using and publishing Cardio
Proprietary
20 Information for any purpose, (ii) to immediately return to Cardio all Cardio Proprietary
Information and
21 Cardio property in Defendants' possession, custody or control, and (iii) for a
permanent injunction
22 requiring Defendants and all others acting in concert with them to permanently cease using
Cardio
23 Proprietary Information for any purpose, including, but not limited to, the use of Cardio
Proprietary
24 Information in the manufacture, use, or sale of any FGF-1 protein for the development of
drugs relating
25 to any of Cardio’s Biopharmaceutical Business.
26
9
1 30. Absent such injunctive relief, Cardio faces irreparable injury,
including the loss of (i)
2 funding for the development of its Biopharmaceutical Business, (ii) markets
for Cardio’s
3 Biopharmaceutical Business, (iii) Cardio’s exclusive competitive advantage, and (iv)
Cardio’s trade
4 secrets and goodwill, with the amount of such losses being impossible to
determine requiring that
5 Defendants and all others acting in concert with them be enjoined and restrained by order of
this Court
6 at once.
7 COUNT I
8 THEFT OF TRADE SECRETS
9 31. Cardio hereby repeats, realleges, and incorporates by reference the
allegations which
10 are contained in Paragraphs 1 through 30.
11 32. Defendants have actively conspired with Montano and
Jacobs to improperly
12 misappropriate trade secrets from Cardio, and have improperly misappropriated trade
secrets from
13 Cardio by means of theft and willful inducement of breach of the duty of
Montano and Jacobs to
14 maintain secrecy entitling Cardio to recover damages from Defendants in excess of $15,000
and a
15 recovery of any unjust enrichment realized by Defendants as a result of their theft and
misappropriation
16 of trade secrets from Cardio.
17 33. Defendants theft and misappropriation of Cardio’s trade
secrets have been willful,
18 wanton, and reckless, entitling Cardio to recover exemplary damages as permitted
under NRS 19 600A.050(2).
20 34. Defendants theft and misappropriation of Cardio’s trade secrets have
been made in bad
21 faith entitling Cardio to recover its reasonable attorneys’ fees under NRS 600A.060.
22 COUNT II
23 CIVIL CONSPIRACY
24 35. Cardio hereby repeats, realleges, and incorporates by reference the
allegations which
25 are contained in paragraphs 1 through 34.
26
10
1 36. Defendants have combined among each other and with Montano
and Jacobs to
2 accomplish an unlawful objective, to wit, to misappropriate and steal trade
secrets from Cardio in
3 violation of NRS 600A.035 for the purpose of harming Cardio and unjustly
enriching themselves
4 causing Cardio extensive damages.
5 37. As a result of Defendants’ willful, wanton, and malicious conduct,
Cardio is entitled to
6 recover not only compensatory damages in excess of $15,000.00 and attorneys’ fees for
Defendants’
7 civil conspiracy to misappropriate and steal Cardio’s trade secrets, but also its
attorneys’ fees and
8 exemplary damages from Defendants.
9 COUNT III
10 BREACH OF FIDUCIARY DUTY
11 38. Cardio hereby repeats, realleges, and incorporates by reference the
allegations which
12 are contained in paragraphs 1 through 37.
13 39. Viktoriya, as a director of Cardio, owed to Cardio a fiduciary duty
of honesty, loyalty,
14 good faith and fairness. Specifically, Viktoriya owed her undivided and unselfish
loyalty to the
15 corporation that demanded that there be no conflict between her fiduciary duties
and self-interest.
16 Singer v. Magnavox Company, 380A.2d 969 (1977). Viktoriya’s actions during and following
her
17 termination as a director of Cardio in participating in a conspiracy to misappropriate and
steal Cardio
18 trade secrets for her own personal enrichment violated her fiduciary duties to Cardio
entitling Cardio
19 to recovery of compensatory damages in excess of $15,000.00, and damages for any
personal
20 enrichment received by Viktoriya for her breach of fiduciary duties and attorneys’ fees.
21 COUNT IV
22 CHAMPERTY
23 40. Cardio hereby repeats, realleges, and incorporates by reference the
allegations which
24 are contained in paragraphs 1 through 39.
25 41. On November 15, 2018, Viktoriya financed the filing of an
Involuntary Bankruptcy
26 Proceeding in the United States Bankruptcy Court in Nevada against Cardio, in which
she had no
11
1 legitimate interest inasmuch as she was not a creditor of Cardio and had no standing to
participate in
2 the filing of such Involuntary Bankruptcy Proceeding.
3 42. Upon information and belief, the only reason why Viktoriya financed
the filing of the
4 Involuntary Bankruptcy Proceeding was to damage Cardio and to personally enrich herself as a
result
5 of the potential elimination of Cardio as a competitor of Zhittya if the Involuntary filing
was successful
6 in driving Cardio out of business.
7 43. Viktoriya’s financing of the Involuntary Bankruptcy Proceeding in
which she had no
8 interest constitutes the tort of Champerty in Nevada for which Cardio is entitled
to recover from
9 Victoria monetary damages in excess of $15,000.00 incurred by Cardio as a result of such
tortious
10 conduct.
11 COUNT V
12 VIOLATION OF CIVIL RICO STATUTES
13 44. Cardio hereby repeats, realleges, and incorporates by reference the
allegations which
14 are contained in paragraphs 1 through 43.
15 45. Pursuant to NRS 207.470 et seq., Cardio brings a claim for violation
of Nevada’s Civil
16 RICO Statute against Defendants and others acting in concert with them who have engaged in a
pattern
17 of thefts of trade secrets and the publishing fraudulent and false statements in connection
with the sale
18 of securities (i.e., investments in Zhittya) with the intent to defraud investors and
deprive Cardio of its
19 ability to generate business profits from Cardio's products which are in the process of
being brought to
20 market. Cardio has suffered and continues to suffer monetary damages in excess of
$15,000.00 as a
21 result of Defendants’ racketeering activity. As a result of Defendants’ violation of
Nevada’s RICO
22 Statutes, Cardio is entitled to recover treble damages caused by Defendants to Cardio's
business plus
23 costs of suit and attorneys' fees. 24
25
26
12
1 COUNT V
2 INJUNCTIVE RELIEF
3 46. Cardio hereby realleges and incorporates by reference the
allegations which are
4 contained in paragraphs 1 through 45.
5 47. Pursuant to the provisions of NRS 600A.040 and common law, Cardio is
entitled to
6 injunctive relief to prevent the immediate, severe, and irreparable injury resulting from
Defendants’
7 current and certain future misappropriation and theft of Cardio’s trade secrets and unlawful
competition
8 with Cardio for which no adequate remedy is available at law unless a mandatory injunction is
issued
9 enjoining and restraining Defendants and their respective agents, servants,
principals, assignees,
10 transferees and/or beneficiaries, and all those acting in concert with them (i) to
immediately cease using
11 and publishing Cardio Proprietary Information for any purpose, (ii) to immediately return to
Cardio all
12 Cardio Proprietary Information and property in Defendants' possession, custody or control to
Cardio,
13 and (iii) requiring Defendants and all others acting in concert with them to permanently
cease using
14 Cardio Proprietary Information for any purpose, including, but not limited to,
the use of Cardio
15 Proprietary Information in the manufacture, use or sale of any FGF-1 protein for the
development of
16 drugs relating to any of Cardio’s Biopharmaceutical Business.
17 48. Cardio is entitled to an award of attorneys’ fees for being required
to bring this action.
18 PRAYER FOR RELIEF
19 WHEREFORE, Cardio seeks judgment in its favor against the Defendants
that grants the
20 following relief:
21 A. Awards Cardio actual, incidental, compensatory, treble, and
consequential damages in
22 an amount in excess of $15,000 to be proven at trial;
23 B. Awards Cardio exemplary or punitive damages in an amount in excess of
$15,000 to
24 be proven at trial due to Defendants’ willful and malicious activities;
25 C. Awards Cardio its costs and expenses incurred herein, including
reasonable attorneys’
26 fees and interest, pursuant to NRS 600A.060;
13
1 D. Awards Cardio damages in the amount of any and all unjust enrichment
realized
2 by Defendants as a result of their unlawful use of Cardio’s Confidential Proprietary
Information;
3 E. Temporarily, preliminarily, and permanently enjoining Defendants and
all parties in
4 active concert or participation with them, from using or disclosing any of
Cardio’s Confidential,
5 Proprietary Information;
6 F. Temporarily, preliminarily, and permanently enjoining Defendants and
all parties in
7 active concert or participation with them, from directly or indirectly engaging in
any business in
8 competition with Cardio which utilizes Cardio Proprietary Information in the manufacture, use
or sale
9 of any FGF-1 protein for the development of drugs relating to any of Cardio’s
Biopharmaceutical
10 Business;
11 G. Orders Defendants and all parties in active concert or participation
with him to return
12 to Cardio all originals and copies of all files, devices, and/or documents that
contain or relate to
13 Cardio’s Confidential Proprietary Information, including without limitation, all computers,
electronic
14 media, and electronic storage devices; and
15 H. Awards Cardio such further relief as the Court deems necessary and
just.
16 DATED: December 12, 2018
17 Respectfully
submitted.
18 JOHNSON & GUBLER,
P.C.
19 By: /s/ Matthew L. Johnson
Matthew L. Johnson, Esq.
20 8831 West Sahara
Avenue
Las Vegas, Nevada 89117
21 Telephone: (702)
471-0065
Facsimile: (702) 471-0075
22 Attorneys for
Plaintiff
CardioVascular BioTherapeutics, Inc.
23 Of Counsel:
Barry F. Cannaday (Application to be applied for)
24 DENTONS US LLP
2000 McKinney Ave, Suite 1900
25 Dallas, Texas 75201 Telephone: (214) 259-1855
26 Facsimile: (214) 259-0910
14
Discover What Traders Are Watching
Explore small cap ideas before they hit the headlines.
