How Each of the RICO Defendants Operated and Managed Enterprise Activity
139. Each criminal enterprise was operated for the common purpose of diverting
monies, property and clients away from XA, and concealing what was occurring, so clients
which would have, in the ordinary course, continued to use XA, for a reasonable period of time
going forward, would, instead, become a source of revenue for the RICO Defendants.
140. Each of the RICO Defendants satisfies the operation and management test, each
controlling a substantial part of the activity of the Enterprises, as follows.
141. Each RICO defendant operated or managed a portion of criminal enterprise
activity.
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142. Andereck managed and operated the Enterprises in at least the following ways, as
alleged above and as set forth in further detail in Schedule A:
(a) causing XA to purchase goods and materials for the benefit of private
competing companies he secretly controlled with Wilson and Wagner, including, but not limited
to, Studio AG and Hudson Gray and, as well, XA Scenes;
(b) using XA employees to market and promote his own secretly owned and
controlled competing companies, XA Scenes, Studio AG and Hudson Gray, through direct
customer relations work, electronic communications and print marketing;
(c) directing XA employees to steal XA’s corporate property including
property necessary for the operation of its business;
(d) soliciting XA employees and clients to work with Hudson Gray, while
they were affiliated with and/or employed by XA;
(e) creating fraudulent American Express credit card statements on Excel
spreadsheets (with the American Express logo fraudulently superimposed on top) to disguise
actual purchases and fraudulently give the appearance that expenses on these spreadsheets were
billings from a single account, when, in fact, they reflected purchases from a number of different
American Express accounts, each and all of which were controlled by Andereck;
(g) directing defendants Lomma and Day to participate in the fraudulent
American Express scheme by creating their own fraudulent American Express statements;
(h) engaging in fraud through the purchase of lighting, furniture, drapery,
flooring, cabinets, rugs and other expensive decor items for use and sale to Studio AG
decorating clients which had no affiliation with XA, subsidizing their own competing enterprise;
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(i) allowing employees Lomma and Day to purchase furnishings, electronic
equipment and clothing from high end retailers for Studio AG decorating clients (and their own
personal use) from merchants including, but not limited to, Brooks Brothers, Nordstrom, Best
Buy, The Container Store, The Brickell Collection, The Tie Bar, East Elm, All Modern, Zara,
Crate and Barrel, Restoration Hardware and other retailers selling goods and services, unrelated
to the operation of XA;
(j) directing XA COO Wilson to pay for legal services associated with
defendant Gudin’s fraudulent immigration application and was actively stealing property and
files from XA during the summer of 2014;
(k) Directing XA employees to stay away from XA’s own offices when
representatives of CMG, including XA’s new Chairman, Ron Burkhardt, came to XA’s office to
try to conceal the planned theft of XA’s property and business; such efforts at concealment
where organized and carried out by email and text message;
(l) Fraudulently re-purposing dormant XA subsidiary, XA Scenes, as a
marketing vehicle for defrauding XA via the Gallery 1028/Studio AG partnership, as alleged
above;
(m) fraudulently “closing” XA subsidiary Fiori XA to divert Fiori’s business
to Studio AG, a secret entity owned and operated by Wilson, Wagner and Andereck to directly
compete with and steal XA’s business;
(n) Using Studio AG to vend fictitious goods and services to XA that Studio
AG could never provide, were never delivered, and/or were double billed to mimic XA’s own
purchase orders as a method by which he and co- conspirators Wilson and Wagner could siphon
XA’s profits into their own enterprise;
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(o) directing XA employees and executives to forge AG bills in an effort to
make it appear Studio AG bills were XA bills, so XA could subsidize Studio AG’s financial
burdens, draining XA’s financial resources.
143. Wagner managed and operated the Enterprises by inter alia:
(a) purchasing and/or causing others to purchase goods and materials for the
benefit of private competing enterprises he secretly controlled with Wilson and Andereck,
including but not limited to, XA Scenes, Studio AG and Hudson Gray, all using XA monies;
(b) using XA employees to market and promote his own secretly owned and
controlled competing companies, XA Scenes, Studio AG and Hudson Gray, through direct
customer relations work, electronic communications and print marketing;
(c) coordinating the Diversions including, on information and belief, engaging
in and/or directing others to engage in at least the following acts during the relevant time period,
(i) secretly creating Hudson Gray in March, 2014, six weeks before resigning as XA’s CEO and
signing a settlement agreement with XA, to facilitate the theft of approximately $1.5 million
dollars of XA contract work from NBCUniversal and other longtime XA clients and (ii)
fraudulently representing to CMG board members that he was unable to draw a full salary for his
services as CEO of XA for many years because of XA’s lack of profitability -- but secreting the
fact that the purported “lack of profitability” was orchestrated by himself and Andereck and
Wilson caused by their transfer of monies among their secretly owned companies;
(d) receiving $425,568.00 from CMG by virtue of a settlement agreement at
the time of his resignation on 4/30/ 2014 predicated on fraudulent representations and omitted
material information;
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(e) erasing all his XA computer files and stealing hard copy files from XA’s
Chicago office, without CMG’s or XA’s consent, and directing XA employees leaving for
Hudson to do the same, many of which erased computer files have not been fully recovered;
(f) stealing or directing the theft of hard copy files including, e.g., files
containing those American Express bills expensed to XA in 2014 and all contracts and bills
related to XA’s past and ongoing business.
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