Good Gaming Inc (GMER)

[Werbe]

I am reading some disturbing things on David Dorwarts history... Seems like the guy opens up wireless companies, colludes with competition to keep out small companies and bullies them with court cases. When the company racks up too many lawsuits, he opens up another shop.

Look up court cases for dPi Teleconnect. Look up court cases for Assist wireless LLC. Really nasty stuff, settled out of court. This guy is a scambag freak of nature.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
BLUE JAY WIRELESS, LLC, §
§
PLAINTIFF, §
§
V. § CIVIL ACTION NO.
§
ASSIST WIRELESS, LLC, PANTHEON §
WIRELESS, LLC, DK DISTRIBUTORS, LLC §
D/B/A PAYGO DISTRIBUTORS, NEW TALK, §
INC., NEW TALK WIRELESS, LLC, TELECOM §
VENTURES, LLC, EXPRESS CASH AND §
PHONE, INC., US CONNECT, LLC, SXCS §
INVESTMENTS, LLC, BBBY LTD., §
FLAGSHIP EQUITY PARTNERS, BYRON §
YOUNG, BRIAN YOUNG, BRANDON §
YOUNG, DAVID DORWART, AND §
SULEMAN BHIMANI, §
§
DEFENDANTS. § JURY TRIAL DEMANDED
BLUE JAY WIRELESS, LLC’S ORIGINAL COMPLAINT
Blue Jay Wireless, LLC (“Blue Jay”) files its Original Complaint against Assist Wireless,
LLC (“Assist”), Pantheon Wireless, LLC (“Pantheon”), DK Distributors LLC d/b/a PayGO
Distributors (“PayGO”), New Talk, Inc. (“New Talk”), New Talk Wireless, LLC (“New Talk
Wireless”), Telecom Ventures, LLC (“Telecom”), Express Cash and Phone, Inc. (“Express”), US
Connect, LLC (“US Connect”), SXCS Investments, LLC (“SXCS”), BBBY Ltd. (“BBBY”),
Flagship Equity Partners, LLC (“Flagship”), Byron Young, Brian Young, Brandon Young,
David Dorwart, and Suleman Bhimani (collectively, “Defendants”), and alleges as follows:
I. PARTIES
1. Plaintiff Blue Jay is a Texas limited liability company with its principal place of
business in Addison, Texas.
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ORIGINAL COMPLAINT 2
2. Defendant Assist is a Texas limited liability company with its principal place of
business in Fort Worth, Texas. Assist can be served through its registered agent for service of
process in Texas: Corporate Creations Network, Inc., 4625 San Felipe #1100, Houston, Texas
77027.
3. Defendant Pantheon is a Texas limited liability company with its principal place
of business in Dallas, Texas. Pantheon can be served through its registered agent for service of
process in Texas: David Dorwart, 2500 N. Houston Street, # 705, Dallas, Texas 75219.
4. Defendant PayGO is a Delaware limited liability company doing business in
Texas, with its principal place of business in Sugar Land, Texas. PayGO can be served through
its registered agent for service of process in Texas: Kevin Lapierre, 2500 N. Houston Street
#705, Dallas, Texas 75219.
5. Defendant New Talk is a Texas corporation with its principal place of business in
Fort Worth, Texas. New Talk can be served through its registered agent for service of process in
Texas: CT Corporation System, 350 N. St. Paul Street, Suite 2900, Dallas, Texas 75201.
6. Defendant New Talk Wireless is a Texas corporation with its principal place of
business in Fort Worth, Texas. New Talk Wireless can be served through its registered agent for
service of process in Texas: CT Corporation System, 350 N. St. Paul Street, Suite 2900, Dallas,
Texas 75201.
7. Defendant Telecom is a Texas limited liability company with its principal place of
business in Fort Worth, Texas. Telecom can be served through its registered agent for service of
process in Texas: Byron Young, 2330 Gravel Drive, Fort Worth, Texas 76118.
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ORIGINAL COMPLAINT 3
8. Defendant Express is a Texas corporation with its principal place of business in
Fort Worth, Texas. Express can be served through its registered agent for service of process in
Texas: CT Corporation System, 350 N. St. Paul Street, Suite 2900, Dallas, Texas 75201.
9. Defendant U.S. Connect is a Georgia limited liability company doing business in
Texas, with its principal place of business in Southlake, Texas. U.S. Connect can be served
through its registered agent for service of process in Texas: Incorp Services, Inc., 815 Brazos,
Suite 500, Austin, Texas 78701.
10. Defendant SXCS is a Texas limited liability company with its principal place of
business in Sugar Land, Texas. SCXS can be served through its registered agent for service of
process in Texas: Kevin Lapierre, 1611 Wood Song, Sugar Land, Texas 77479.
11. Defendant BBBY is a Texas limited partnership with its principal place of
business in Dallas, Texas. BBBY can be served through its registered agent for service of
process in Texas: CT Corporation System, 350 N. St. Paul Street, Suite 2900, Dallas, Texas
75201.
12. Defendant Flagship is a Texas limited liability company with its principal place of
business in Tyler, Texas. Flagship can be served through its registered agent for service of
process in Texas: Karima S. Khawaja, 615 Elmridge Drive, Tyler, Texas 75703.
13. Defendant Byron Young is a citizen of the State of Texas. He can be served with
process at: (1) his usual place of abode, 500 Throckmorton #2105, Fort Worth, Texas 76102; or
(2) wherever he may be found.
14. Defendant Brian Young is a citizen of the State of Texas. He can be served with
process at: (1) his usual place of abode, 4808 Belladonna Drive, Fort Worth, Texas 76123; or (2)
wherever he may be found.
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ORIGINAL COMPLAINT 4
15. Defendant Brandon Young is a citizen of the State of Texas. He can be served
with process at: (1) his usual place of abode, 3100 West 7th Street #2740, Fort Worth, Texas
76107; or (2) wherever he may be found.
16. Defendant David Dorwart is a citizen of the State of Pennsylvania. He can be
served with process at: (1) his usual place of abode, 315 Upland Road, Kennett Square,
Pennsylvania 19348; or (2) wherever he may be found.
17. Defendant Suleman Bhimani is a citizen of the State of Texas. He can be served
with process at: (1) his usual place of abode, 1400 Brookside Drive, Carrollton, Texas 75007; or
(2) wherever he may be found.
II. JURISDICTION AND VENUE
18. The Court has jurisdiction over the claims pursuant to 15 U.S.C. §§ 15 and 22 (§§
4 and 12 of the Clayton Act), and 28 U.S.C. §§ 1331, 1337, and 1367.
19. The Court has jurisdiction over Defendants as a result of their purposeful
availment of the forum state for business.
20. Venue is proper in this judicial district under 28 U.S.C. § 1391 and 15 U.S.C. §§
15 and 22.
21. Defendants’ acts have had and will continue to have a direct, substantial, and
reasonably foreseeable effect on interstate commerce.
III. BACKGROUND FACTS
A. Introduction
22. Blue Jay is a start-up company that currently provides pre-paid wireless
telephones and service. It was founded in part by David Wareikis and Brian Steeg. Blue Jay has
approximately 400 pre-paid wireless telephone customers. Additionally, Blue Jay has made
substantial investments to become eligible to provide wireless telephones and service pursuant to
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ORIGINAL COMPLAINT 5
the federal Lifeline program. The Lifeline program provides subsidized wireless phones and
service to low-income individuals who qualify for other federal benefits, such as food stamps or
Medicaid.
23. The first step in becoming a Lifeline provider is to obtain Compliance Plan
approval from the Federal Communications Commission (“FCC”). The purpose of Compliance
Plan approval is to ensure that all Lifeline providers have taken specific measures to prevent
waste and fraud. Blue Jay retained one of the top FCC compliance attorneys in the country to
assist with drafting its application, at considerable expense. Blue Jay submitted its Compliance
Plan to the FCC on May 11, 2012.
24. After submitting its Compliance Plan, Blue Jay began filing eligible
telecommunication carrier (“ETC”) license applications with various states. Currently, Blue Jay
has ETC license applications pending in twenty-four states. An ETC license is necessary before
a Lifeline provider can begin providing services in a given state. A state cannot grant a new
ETC license until the FCC has approved the Lifeline provider’s Compliance Plan.
25. Beyond the expense associated with formulating its Compliance Plan and ETC
applications, Blue Jay has incurred significant start-up expenses. Blue Jay had to purchase
inventory. It also hired staff, trained staff, and rented office space.
26. Additionally, Blue Jay had to obtain storefronts. Blue Jay’s business model is
different from most other Lifeline providers because it plans to enroll customers at actual brick
and mortar storefronts. Blue Jay has partnered with multiple auto insurance agencies which
provide state minimum required car insurance to predominantly low-income consumers.
Accordingly, Blue Jay has access to 1,000 storefronts nationwide that can be co-branded to sell
Blue Jay wireless Lifeline and non-Lifeline services. By using permanent storefront locations,
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ORIGINAL COMPLAINT 6
Blue Jay customers will always know where they can go to ask questions, get replacement
equipment, or purchase additional services and upgrades. By contrast, many Lifeline providers
distribute phones and sign up customers from tents set up in parking lots.
27. Blue Jay’s hard work and expense paid off—on December 26, 2012, its
Compliance Plan was approved by the FCC. The approval of Blue Jay’s Compliance Plan is
significant because only twenty companies have had their Compliance Plans approved thus far.
28. Having obtained Compliance Plan approval, Blue Jay was now eligible to have its
ETC license applications granted. Accordingly, Blue Jay was well on its way to beginning
operations in the twenty-four states where its ETC applications were pending. Blue Jay also
planned to file additional ETC applications, with the goal of eventually becoming a national
Lifeline provider. The fact that Blue Jay was one of only a few start-ups to have its Compliance
Plan approved by the FCC indicates that the FCC found Blue Jay’s business model compelling.
29. Much like Blue Jay, Assist is a company that provides phones and service for the
Lifeline program. Wareikis and Steeg are former consultants for Assist who Defendants
characterized as de facto Chief Financial Officers, although they were never formally designated
as such. Assist currently has ETC licenses in Arkansas, Maryland, Missouri, and Oklahoma.
However, the overwhelming majority of its Lifeline customers reside in Oklahoma. Apparently
looking to expand its market, Assist has ETC applications pending in Illinois, Louisiana,
Mississippi, and Pennsylvania. Assist has only a few store fronts, and distributes phones
primarily via tents set up in parking lots. Assist submitted its Compliance Plan to the FCC on
June 29, 2012, well after Blue Jay submitted its Compliance Plan. However, Assist’s
Compliance Plan has not been approved.
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ORIGINAL COMPLAINT 7
30. For months, Assist and the other Defendants were aware of Blue Jay’s existence
and never challenged its right to exist. However, that all changed on December 26, 2012, when
Blue Jay’s Compliance Plan was approved. Now the newly formed start-up was poised to
become a significant player in the Lifeline wireless services industry. Defendants, acting in
collusion, decided to use the legal process as an anti-competitive tool to keep Blue Jay out of the
market.
B. Defendants Want to Remove Blue Jay from Competition
31. Defendants are a tangled web of individuals and entities that are involved in the
provision of Lifeline services. David Dorwart is the Chairman of the Board of Assist. He also
owns SXCS, which is a Member and Manager of Assist. SXCS, in turn, owns interests in
Defendants Pantheon and Paygo, which directly compete with Assist.
32. Suleman Bhimani, Manager of Assist, owns Defendant Flagship Investment
Partners. Bhimani also own U.S. Connect, which directly competes with Assist. U.S. Connect
filed a Compliance Plan on April 26, 2012, but it has yet to be approved. U.S. Connect currently
provides Lifelines services in Arkansas, Maryland, and West Virginia.
33. BBBY is a Member and Manager of Assist. BBBY is owned by Byron Young,
Brian Young, and Brandon Young. Byron Young is the CEO of Assist. Byron Young owns an
interest in and/or operates Pantheon, which directly competes with Assist. Furthermore, Byron
Young, Brian Young, and Brandon Young own an interest in and/or operate the following
companies that compete with Assist: PayGO, New Talk, Inc., New Talk Wireless, LLC,
Telecom Ventures, and Express Cash and Phone, Inc.
34. Byron Young is the owner and President of Defendant New Talk and New Talk
Wireless, LLC. New Talk submitted its Compliance Plan to the FCC on July 2, 2012, but that
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ORIGINAL COMPLAINT 8
plan has still not been approved. Although New Talk does not currently provide wireless
Lifeline services, it intends to apply for an ETC license in Texas. Byron Young is also President
of Telecom Ventures, LLC, which is a competitive local exchange carrier in New York and
Oklahoma.
35. Brandon Young is the President of Defendant Express Cash and Phone. Express
filed its Compliance Plan with the FCC on July 2, 2012. Although Express does not currently
provide wireless Lifeline services, it has filed an ETC license application in Texas.
(1) The Relevant Market
36. Defendants have colluded and conspired to monopolize and attempt to
monopolize the provision of wireless Lifeline services in Texas, West Virginia, Arkansas,
Maryland, Missouri, Oklahoma, Illinois, Louisiana, Mississippi, and Pennsylvania. These are
the states where Defendants are either already providing wireless Lifeline services, or else have
submitted ETC license applications to become wireless Lifeline providers. Defendants’ anticompetitive behavior is designed to prevent Blue Jay from providing wireless Lifeline services in
each of these markets and to eliminate the advantage Blue Jay has gained by obtaining FCC
approval of its Compliance Plan.
(2) Defendants Filed Sham Litigation Designed to Keep Blue Jay out of
the Relevant Market
37. Because Assist, New Talk, Express, and U.S. Connect have not yet had their
Compliance Plans approved, their hold on the market is threatened by companies like Blue Jay.
Fearing the competitive threat posed by Blue Jay, Defendants conspired to use the legal process
itself as an anti-competitive weapon to keep Blue Jay out of the market.
38. On January 9, 2013, Assist, acting in concert with the other Defendants, filed suit
in Tarrant County District Court against Blue Jay and its officers alleging theft of trade secrets
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ORIGINAL COMPLAINT 9
and breach of fiduciary duty. Concurrently, Assist obtained an ex parte temporary restraining
order that effectively put Blue Jay out of business. The temporary restraining order forbids Blue
Jay from advertising or providing telecommunication services, signing up customers for wireless
telecommunication services, and offering products or services related to Lifeline. The
restraining order also forbids Wareikis and Steeg from serving as employees, consultants, or
agents of Blue Jay. Accordingly, even when Blue Jay’s pending ETC applications are approved,
Blue Jay will still be unable to move forward with providing Lifeline services. Blue Jay has thus
been functionally removed from the market pending a hearing on Assist’s application for
preliminary injunction.
39. In support of its sham litigation, Assist made a series of misrepresentations to the
state court. First, Assist contended that Blue Jay had improperly copied its Compliance Plan.
This contention is ludicrous considering that Assist filed its Compliance Plan on June 29, 2012—
six weeks after Blue Jay had submitted its Compliance Plan. Blue Jay’s Compliance Plan
became a matter of public record immediately upon being filed. Accordingly, any similarity
between the two Compliance Plans could be attributable only to Assist’s copying of Blue Jay’s
plan.
40. Furthermore, Assist contends that Steeg and Wareikis breached their fiduciary
duties to Assist by forming a competing entity. Assist’s contention is meritless considering that
the Company Agreement specifically permitted officers of Assist to form or own interests in
competing entities. Assist’s true complaint is not that Steeg and Wareikis formed a competing
entity, but that they formed a competing entity that was poised to become more successful than
Assist and its affiliates.
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ORIGINAL COMPLAINT 10
41. Lastly, Assist misrepresented to the court that Steeg and Wareikis stole Assist’s
trade secrets. The “secrets” they allegedly stole were customer lists. What Assist failed to tell
the court is that Assist routinely distributes its customer lists to third parties, that the lists provide
no benefit to Blue Jay, and that Blue Jay has not used the lists to solicit Assist’s customers. As
standard practice at Assist, customer and activation lists are shared with the agents who signed
up the customers by scheduled automatic tasks within Assist’s systems. Every agent receives
this information, generally early in the morning or late at night, so that they can keep track of
their customer activations, inventory and calculate commissions owed to them and their
salespersons. Wareikis as well as other people at Assist were often instructed by Byron Young,
Assist and PayGo (Assist’s master agent, owned by Assist Member/Manager David Dorwart) to
set up agent report tasks to send customer lists to agents at email addresses outside of Assist or
those in its employment. Other people at Assist also routinely set up automated tasks for
customer lists to be sent to agents. The entire customer database was sometimes sent to agents
due to Assist’s systems limitations. Over a dozen third party agents outside of Assist
employment received the agent reports daily. Accordingly, Assist’s customer lists were not
“trade secrets,” and accusing Wareikis and Steeg of “stealing” them was just Assist’s way of
obtaining a temporary restraining order to put Blue Jay out of business.
42. After obtaining an ex parte temporary restraining order attributable solely to
Assist’s misrepresentations to the court, Assist set out to further damage Blue Jay’s ability to
compete. Assist contacted Blue Jay’s compliance counsel, John Heitmann at Kelly Drye, and
informed him that the temporary restraining order forbade Heitmann from continuing to
represent Blue Jay. Heitmann, who is one of the top FCC compliance experts in the country,
represents Blue Jay, Assist, and many other Lifeline service providers. Astoundingly, Assist
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ORIGINAL COMPLAINT 11
contended that Heitmann’s identity was a trade secret that Wareikis and Steeg stole, and thus the
temporary restraining order prevented Heitmann from continuing to represent Blue Jay. Assist
was apparently not bothered by the fact that Heitmann facilitated filing of Blue Jay’s compliance
plan before Assist filed theirs.
43. Assist knew that interfering with Blue Jay’s relationship with its compliance
counsel would hinder Blue Jay’s ability to compete. Blue Jay’s compliance counsel was
overseeing the approval process for Blue Jay’s ETC applications, including attending hearings,
meeting filing deadlines, etc. Assist’s actions were explicitly designed to interfere with the
approval of Blue Jay’s ETC applications so that Blue Jay could not compete.
C. Defendants’ History of Fraudulent and Anti-Competitive Behavior
44. The deceptive and fraudulent tactics currently being employed against Blue Jay
are nothing new for Defendants. Since its formation in October 2010, Assist and its
Members/Owners have engaged in a litany of unethical and illegal conduct to enter and compete
in the wireless Lifeline program. For example, beginning in mid-2011, Wareikis alerted Assist’s
Managers and Members that Assist owed delinquent sales taxes. David Dorwart and Byron
Young decided not to pay the accrued sales taxes.
45. Additionally, Assist and its Members and Managers have committed fraud against
the federal government. In December 2011, Assist was notified that the Universal Service
Administrative Company (“USAC”) would be performing an audit for the state of Arkansas
relating to customers signed up in the month of November 2011. Kelly King, Assist’s Director
of Operations and Compliance, informed Assist’s Managers and Members that, based on her
inspection alone, over 1,500 suspicious looking customer certification forms had been filed by
ASAP Distributors, a sub-distributor for Assist. Ms. King noted suspicious customer names and
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ORIGINAL COMPLAINT 12
also noted that the names on many forms appeared to have been copied straight out of phone
book in alphabetical order.
46. On or around December 6, 2011, David Dorwart engaged Susan Abbey, a
forensic handwriting expert, to examine the 1,500 suspicious ASAP customer affidavit
forms. Ms. Abbey was instructed by Ms. King to randomly select around 500, or 33%, of the
suspicious forms to evaluate the signatures box for unique customer signatures. Ms. Abbey was
instructed to “flag” forms which, in her opinion, showed evidence of fraud. On December 28,
2011, Ms. Abbey delivered a written expert opinion report on the ASAP customers. Out of 456
ASAP customer affidavits examined, it was Ms. Abbey’s professional opinion that 180 of them
(39%) showed evidence of fraud with a high degree of probability.
47. Of the five other sub-distributors whose customer affidavits she examined, she
determined that three had filed fraudulent customer forms on behalf of Assist. By the time of
Ms. Abbey’s report, ASAP had enrolled over 9,000 customers for Assist in the state of
Arkansas. Assuming the same 39% fraud rate uncovered by the random sample, Assist knew
that it had nearly 3,600 “fake” customers signed up by ASAP. None of the other customers
enrolled by ASAP were investigated by Assist and no audit or report was done on the remaining
1,044 forms not reviewed by the handwriting expert.
48. Despite Ms. Abbey’s report indicating a high level of fraud committed by Assist’s
sub-distributors, Byron Young represented to USAC that he had no indication of fraud. In early
2012, Byron Young formally submitted responses to the USAC audit questions regarding
Lifeline customers signed up in the state of Arkansas. Audit question number 39 asked: “Do you
have any suspicions or knowledge of fraudulent activity?” To which Byron Young responded,
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ORIGINAL COMPLAINT 13
“No.” Accordingly, not only did Assist conceal the fraudulent conduct of its sub-distributor, it
also illegally retained the federal subsidies attributable to those fraudulent customer accounts.
49. Beginning in late 2011, Assist drop-shipped thousands of Lifeline phones directly
to customers enrolled in Maryland which were returned via undeliverable mail back to Assist.
Despite phones being returned to Assist as undeliverable, on information and belief Assist
continued to collect Lifeline subsidies for thousands of these customers.
50. Affiliates of Assist such as New Talk and Paygo often failed to pay vendors
amounts due. For example, AT&T has asserted New Talk owes more than $9 million of unpaid
carrier charges.
51. On November 5, 2012, a Fox News investigative report highlighted fraud
committed by Assist in Oklahoma. An investigative journalist conducting an undercover
operation discovered that Assist was distributing Lifeline phones to customers who did not have
photo I.D.s or proof of government assistance—in clear violation of FCC guidelines. One
customer interviewed by Fox News stated that she obtained a phone from Assist without
providing identification, and stated that everyone in line that day also received a free phone.
D. Defendants’ Actions Have Caused Blue Jay Damages in Excess of $17,000,000
52. Defendants’ anti-competitive behavior has caused significant financial hardship to
Blue Jay, and will continue to damage Blue Jay for as long as the behavior persists. Assuming
that Defendants’ sham injunction is maintained for the next eighteen months, Blue Jay will suffer
damages in excess of $17 million. According to Blue Jay’s business model, it reasonably plans
to add 250,000 customers in the next eighteen months. This number is realistic and achievable
given that Blue Jay will have over 1,000 storefronts available for use. Even if Blue Jay activated
only 250 of these store fronts, they would only need to sign up approximately two customers per
day at each store to achieve 250,000 customers in eighteen months. Blue Jay will lose, on
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ORIGINAL COMPLAINT 14
average, approximately $50 of profit per customer that it cannot sign up, for a total of $12.5
million in damages.
53. Additionally, Blue Jay is being deprived of the value of its FCC-approved
Compliance Plan. Blue Jay’s FCC-approved Compliance Plan is worth, at minimum,
$5,000,000. Blue Jay spent $700,000 to obtain the approval and fund start-up expenses.
Furthermore, Blue Jay is one of only twenty companies to date to be awarded this approval.
Accordingly, Blue Jay stands to lose significant first-to-market advantage if the injunction is
maintained. As noted, Assist, New Talk, Express, and U.S. Connect have not obtained
Compliance Plan approval.
FIRST CAUSE OF ACTION
(Sherman Act Section 2-Attempt to Monopolize)
54. Blue Jay repeats and incorporates by reference the allegations above as if fully
restated herein.
55. Defendants, with the specific intent to eliminate competition, have engaged in
predatory, exclusionary, and anticompetitive conduct directed to that purpose. There is a
dangerous probability that Defendants will achieve monopoly power and their ultimate goal of
monopolizing the relevant markets. They have thereby violated Section 2 of the Sherman Act.
SECOND CAUSE OF ACTION
(Sherman Act Section 2-Conspiracy to Monopolize)
56. Blue Jay repeats and incorporates by reference the allegations above as if fully set
forth herein.
57. Defendants, with the specific intent to eliminate competition, have conspired to
monopolize the provision of wireless Lifeline services in the relevant market. Defendants have
committed an act in furtherance of this conspiracy by filing sham litigation designed to prevent
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ORIGINAL COMPLAINT 15
Blue Jay from competing in the relevant market. Defendants’ actions have caused an antitrust
injury by preventing Blue Jay’s entrance into the relevant market. Defendants have thus violated
Section 2 of the Sherman Act.
THIRD CAUSE OF ACTION
(Sherman Act Section 1-Conspiracy in Restraint of Trade)
58. Blue Jay repeats and incorporates by reference the allegations above as if fully
restated herein.
59. Defendants have conspired to remove Blue Jay from the competitive market by
instituting sham litigation designed to prevent Blue Jay from operating its business. Defendants’
goal is to restrict competition in the marketplace. Because Defendants have market power and
because they have instituted sham litigation with the specific intent to restrain trade, they have
violated Section 1 of the Sherman Act.
FOURTH CAUSE OF ACTION
(79 O.S. 2001 § 79-203(A)-Unlawful Restraint of Trade)
60. Blue Jay repeats and incorporates by reference the allegations above as if fully
restated herein.
61. Defendants have unlawfully restrained trade in violation of Oklahoma law by
committing an act which is designed to prevent to Blue Jay from engaging in trade and
commerce in Oklahoma. Assist’s lawsuit against Blue Jay and its officers is a sham litigation
designed solely to prevent Blue Jay from obtaining its Oklahoma ETC license, therefore ensuring
that Blue Jay cannot provide wireless telecommunications services in Oklahoma. Because
Defendants have designed and implemented its sham litigation with the specific intent to restrain
trade in Oklahoma, it has violated 79 O.S.2001 § 79-203(A).
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ORIGINAL COMPLAINT 16
FIFTH CAUSE OF ACTION
(79 O.S. 2001 § 79-203(B)-Monopolization)
62. Blue Jay repeats and incorporates by reference the allegations above as if fully
restated herein.
63. Defendants have improperly attempted to gain monopoly power over the
provision of wireless Lifeline services in Oklahoma through the exclusionary acts set forth
above. Defendants have attempted to monopolize the Oklahoma market by instituting sham
litigation against Blue Jay that is designed to prevent Blue Jay from entering the Oklahoma
market. Accordingly, Defendants have attempted to monopolize a trade and commerce in
violation of 79 O.S. 2001 § 79-203(B).
SIXTH CAUSE OF ACTION
(Tortious Interference with Existing Contractual Relationship)
64. Blue Jay repeats and incorporates by reference the allegations above as if fully
restated herein.
65. Blue Jay has a valid contract with John Heitmann at the Kelly Drye law firm.
Defendants have willfully and intentionally interfered with this contract by wrongfully informing
Heitmann that the temporary restraining order obtained by Assist prevented him from working
for Blue Jay. This interference has proximately caused Blue Jay actual damages in an amount to
be determined by the trier of fact.
SEVENTH CAUSE OF ACTION
(Conspiracy)
66. Blue Jay repeats and incorporates by reference the allegations above as if fully
restated herein.
67. All Defendants have conspired together to create a web of interrelated wireless
companies, with the intention of monopolizing the relevant market. Defendants had a meeting of
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ORIGINAL COMPLAINT 17
the minds with respect to their desire to monopolize the provision of Lifeline services, and to
exclude Blue Jay from that market. Defendants furthered their objective by filing sham litigation
against Blue Jay and tortiously interfering with Blue Jay’s relationship with its counsel. Blue Jay
has suffered injury as a proximate result of Defendants’ conspiracy.
JURY DEMAND
68. Blue Jay demands a trial by jury on all issues and all claims.
DAMAGES
69. Pursuant to 15 U.S.C § 15(a), Blue Jay seeks an award of treble damages for
Defendants’ violations of Section 1 and Section 2 of the Sherman Act.
REQUEST FOR RELIEF
70. Blue Jay respectfully requests that, upon final hearing, the Court:
(a) Award actual and treble damages in an amount to be determined by the
trier of fact incurred by Blue Jay as a result of Defendants’ antitrust violations;
(b) Award actual and punitive damages in an amount to be determined by the
trier of fact incurred by Blue Jay as a result of Defendants’ tortious conduct;
(c) Award Blue Jay its reasonable and necessary attorneys’ fees, pre-judgment
and post-judgment interest at the highest rate allowed by the applicable law, and
costs of court; and
(d) Award all other relief both at law and equity to which Blue Jay is entitled.
Case 3:13-cv-00348-D Document 1 Filed 01/25/13 Page 17 of 18 PageID 17
ORIGINAL COMPLAINT 18
Respectfully submitted,
GARDERE WYNNE SEWELL LLP
/s/ Mark W. Bayer
Mark W. Bayer
State Bar No. 01939925
Colin G. Martin
State Bar No. 24013105
Melissa R. Holman
State Bar No. 24064501
1601 Elm Street, Suite 3000
Dallas, Texas 75201-4761
[phone]
[phone] (facsimile)
[e-mail]
[e-mail]
[e-mail]
ATTORNEYS FOR PLAINTIFF BLUE
JAY WIRELESS, LLC
Case 3:13-cv-00348-D Document 1 Filed 01/25/13 Page 18 of 18 PageID 18
Case 3:13-cv-00348-D Document 1-1 Filed 01/25/13 Page 1 of 1 PageID 19