Against All Individual Defendants for Breach of Fiduciary Duty
86. Plaintiff incorporates by reference and realleges each and every allegation contained above, as though fully set forth herein.
87. The Individual Defendants owed and owe JBI fiduciary obligations. By reason of their fiduciary relationships, these defendants owed and owe JBI the highest obligation of good faith, fair dealing, loyalty and due care.
88. The Individual Defendants, and each of them, violated and breached their fiduciary duties of care, loyalty, reasonable inquiry, oversight, good faith and supervision.
89. Each of the Individual Defendants had actual knowledge of JBI’s improper accounting of the Media Credits, as well as defendant Bordynuik’s repeated falsehoods about the ability of JBI to deliver the ability to move forward with the P2O process. The Individual Defendants’ failure to heed the concerns raised the Company’s treatment of the Media Credits, the use of Gately, LLC, and the falsehoods put forth by defendant Bordynuik could not have been a good faith exercise of prudent business judgment to protect and promote the Company’s corporate interests.
90. As a direct and proximate result of the Individual Defendants’ failure to perform their fiduciary obligations, JBI has sustained significant damages, including, but not limited to being sued by the SEC. As a result of the misconduct alleged herein, the Individual Defendants are liable to the Company.
91. Plaintiff, on behalf of JBI, has no adequate remedy at law.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff demands judgment as follows:
A. Against all of the Individual Defendants and in favor of the Company for the amount of damages sustained by the Company as a result of the Individual Defendants’ breaches of fiduciary duties;
B. Awarding to JBI restitution from the Individual Defendants, and each of them, and ordering disgorgement of all profits, benefits and other compensation obtained by the Individual Defendants;
C. Awarding to Plaintiff the costs and disbursements of the action, includingreasonable attorneys’ fees, accountants’ and experts’ fees, costs, and expenses; and
D. Granting such other and further relief as the Court deems just and proper.
JURY TRIAL DEMANDED Plaintiff hereby demands a trial by jury.
Dated: March 16, 2012
PASTOR LAW OFFICE LLP /s/ David Pastor_____________ David Pastor (BBO) # 391000) 63 Atlantic Avenue, 3rd Floor Boston, MA 02110 Telephone: (617) 742-9700 Facsimile: (617) 742-9701
FARUQI & FARUQI, LLP Beth A. Keller Nicholas W. Moyne 369 Lexington Avenue, 10th Floor New York, NY 10017 Telephone: (212) 983-9330
b) Plaintiff did not make any demand on the JBI Board to institute this action because such a demand would have been a futile, wasteful and useless act, since a majority of the Board – comprised of defendants Bordynuik, Smith, and Wesson – signed off on and published the incorrect valuation figures for the Media Credits contained in the 10-K even though they knew or should have known that the valuation of the Media Credits did not conform to GAAP. Accordingly, there is a substantial likelihood that defendants Bordynuik, Smith, and Wesson will be held liable in connection with the complained of activities.
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