tucker complaint

8/2/2019 Tucker Complaint

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UNITED STATES DISTRICT COURTFO R TH E MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

BIG VOICES MEDIA, LLC, a Florida LimitedLiability Company,

Plaintiffs,

v.

))))))))))

TED WENDLER, LOU COBERLY, PATRICIA )

DEFAZIO, STEVE DEFAZIO, JAMES H. )POST, and JACQUELIN POST, )

Defendants.)))

______________________________ )

CASE NO. - - - - - - - -

COMPLAINT FO R DECLARATORY JUDGMENT AND DEMAND FOR JURY TRIAL

Big Voices Media, LLC ("BIG" or "Company") petitions this Court for a Declaratory

Relief under 28 U.S.C. 2201, against Ted Wendler, Lou Coberly, Patricia DeFazio, Steve

DeFazio, James H. Post, and Jacquelin Post ("Defendants").

INTRODUCTION

1. BIG filed this action to seek declaratory relief against the Defendants because

they have demanded, without any basis in fact or law and under threat of litigation, that BIG

reimburse them the capital contributions they made to BIG several months ago. These

Defendants are sophisticated individuals who contributed to and became managing members of

BIG because they believed in BIG's goals and mission. They offered monetary and professional

assistance to launch the Company. They subsequently changed their minds, however, reneged

on their duties to the Company, and abandoned the Company when BIG needed them most.

Case 3:12-cv-00242-UAMH-JBT Document 1 Filed 03/07/12 Page 1 of 26 PageID 1


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Their sudden withdrawal has caused the Company harm and will likely harm further launch

efforts.

2. BIG has not violated any federal or Florida securities laws.

3. Defendants are not legally entitled to return of their contributions.

4. These contributions, if returned, would render BIG insolvent and, thus, viola te

Florida law. Therefore, Defendants have essentially demanded that BI G either violate th e law or

face a lawsuit.

5. In addition, Defendants, by threatening to accuse BIG of fraud or

misrepresentation and threatening injury to its reputation, with intent the reby to extract $105,000

from BIG and compel it to pay that sum of money against its will, have attempted to ex tort BIG.

6. Accordingly, BI G seeks a declaration that it has not violated the federal an d

Florida securities laws, that Defendants have breached their duties of loyalty, care, and good

faith and fair dealing to BIG, that Mr. Wendler committed professional negligence, and that

Defendants are not entitled to return of their full capital contributions.

PARTIES

7. Plaintiff Big Voices Media, LLC is Florida limited liability company with a

principal place ofbusiness at 8493 Baymeadows Way, Jacksonville, Florida 32256.

8. Upon inforn1ation and belief, Defendant Ted Wendler ("Mr. Wendler") is an

individual currently residing in Jacksonville, Florida. Mr. Wendler is a managing member of

BIG.

9. Upon information and belief, Defendant Lou Coberly ("Ms. Coberly") is an

individual currently residing in Jacksonville, Florida. Ms. Coberly is a managing member of

BIG.

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10. Upon information and belief, Defendant Patricia DeFazio ("Mrs. DeFazio") is an

individual currently residing in St. Johns County, Florida. Ms. DeFazio is a managing member

o f BIG.

11. Upon information and belief, Defendant Steven DeFazio ("Mr. DeFazio") is an

individual currently residing in St. Johns County, Florida. Mr. DeFazio is a managing member

o f BIG.

12. Upon information and belief, Defendant James H. Post ("Mr. Post") is an

individual currently residing in St. Johns County, Florida. Mr. Post is a managing member o f

BIG.

13. Upon information and belief, Defendant Jacquelin Post ("Mrs. Post") is an

individual currently residing in St. Johns County, Florida. Mrs. Post is a managing member o f

BIG.

JURISIDICTION AND VENUE

14. This Court has jurisdiction under 28 U.S.C. 1337 because this action arises

under federal law.

15. This Court has personal jurisdict ion over Defendants because Defendants reside

in Florida.

16. Venue is proper in the Middle District o f Florida pursuant to 28 U.S.C.

1391(a)(1) because some o f the Defendants reside in Jacksonville, Florida, and the remaining

Defendants reside in St. Jolms County, Florida.

17. This action is properly filed in the Jacksonville Division o f the Middle District of

Florida pursuant to Local Rule 1.02 because the only parties residing in the Middle Distric t o f

Florida reside in that division.

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FACTS

18. BIG is a new, for-profit, conservative media broadcast network (for television,

internet, and mobile devices) that provides a fresh new media platform for disseminating fully

accurate, unbiased infonnation for the purpose of educating viewers about the issues, policies,

and affairs of the federal, state, and local governments, and all matters related to how these

issues and policies directly affect their lives. BIG's mission and tagline is "handing the

microphone back to the people." Its vision is to reclaim the conversation and ensure its viewers

are well-informed about issues and politics.

19. Billie Tucker ("Ms. Tucker") founded and registered BIG as a limited liability

company under Florida law on June 17, 2011. At the time, she was the sole owner and managing

member of BIG.

20. On July 14, 2011, Hank Madden made a capital contribution of$25,000 to BIG.

By doing so, Mr. Madden became a "Founding Member" of BIG.

21. In exchange for a $25,000 contribution, a Founding Member received 100 Series

A Preferred Units of Ownership and 100 Class A Common Units of Ownership. Founding

Members also received a seat on BIG's Advisory Board as well as voting rights.

22. Ms. Tucker originally envisioned only having six available slots for Founding

Members, and that she would remain a 55% owner and managing member of BIG

23. All Founding Members received a business plan from BIG that stated (a) "there is

no guarantee whatsoever that you will ever see any financial benefit from your involvement as a

Founding Member . . . in this enterprise, but you believe in the mission, the management team[,]

and the Board of Advisors and that is your primary reason to become involved"; (b) "financial

benefits, if any, will be shared with all Unit Holders in [BIG] at the rate of their involvement

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once an audited financial statement has been produced after 12 months of service"; (c) "[ a II

opinions contained in this business plan constitute judgment at the publish date hereon and are

subject to change without notice;" (d) "[t]his business plan is published for the assistance of

recipients, but is not to be relied upon as authoritative and is not to be substituted for the exercise

of one's own judgment;" and (e) "[f]inancial involvement with [BIG] represents a significant

risk of loss and decisions related to such involvement should be made independently of this

business plan and of course with the benefit of competent legal counsel."

24. In addition, this business plan stated "This is not an offer to sell securities -Nor a

solicitation of an offer to buy securities."

25. On August 29, 2011, Andy Sanfilippo made a capital contribution of$25,000 to

BIG and became a "Founding Member."

26. On September 21, 2011, Connie Turner made a capital contribution of$25,000 to

BIG and became a "Founding Member."

27. On September 30, 2011, BIG hired Clyde Fabretti ("Mr. Fabretti") as a consultant

to the Company on a limited basis solely to advise BIG regarding its negotiations with a group of

individuals interested in contributing to BIG and to review a vendor contract. The

aforementioned individuals ultimately did not contribute or become members of the Company.

28. On October 16, 2011, BIG held an event for a select group of friends and like-

minded conservatives in Jacksonville, Florida, during which it unveiled its business and mission.

29. On October 19,2011, Mr. and Mrs. DeFazio jointly made a capital contribution of

$25,000 to BIG, and they became "Founding Members."

30. On October 21, 2011, Ms. Coberly made a capital contribution of$10,000 to BIG

and became a "Patriot Member" of BIG. In exchange, she received 40 Series A Preferred Units

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of Ownership.

31. On October 23, 2011, BIG held its first meeting of its Founding Members at the

horne of Mr. and Mrs. DeFazio.

32. On October 24, 2011, BIG again hired Mr. Fabretti as a consultant to the

Company on a limited basis solely to advise BIG regarding its business plan.

33. On October 27, 2011, Judy Sanfilippo made an additional capital contribution of

$25,000 to BIG.

34. On November 2, 2011, Ms. Tucker inquired with Mr. Wendler, a Certified Public

Accountant ("CPA") and Ms. Coberly's common law husband, about potentially serving as the

accountant for BIG.

35. Thereafter, on November 11, 2011, Mr. Wendler provided accounting advice to

Ms. Tucker, as BIG's managing member, and BIG regarding BIG's expenses.

36. Also, on November 11,2011, Mr. and Mrs. DeFazio introduced Ms. Tucker to

Mrs. Post. Ms. Tucker verbally shared BIG's business plan with Mrs. Post. Upon information

and belief, Mrs. Post shared this information with her husband, an attorney, Mr. Post.

37. On November 12, 2011, Ms. Tucker introduced Mr. Wendler to the other

Founding Members as BIG's CPA. Mr. Wendler stated he would review and organized BIG's

bookkeeping and prepare a financial statement for the Company.

38. On November 13,2011, Mr. Wendler provided accounting advice to Ms. Tucker,

as BIG's managing member, and BIG regarding BIG's revenue, expenses, and taxes.

39. Also, on November 13, 2011, Ms. Tucker e-mailed the Founding Members and

explained the following proposed revenue structure for BIG: (a) viewers may pay $16.95 per

month to watch conservative videos and programming all in one place on their televisions;

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(b) conservative groups searching for added value for their members and funding for events

would receive a free channel for such purposes as posting their videos and live-streaming their

events and text message alerts, and, in exchange, these groups would receive $1 back from each

of their members who signs up for BIG's $16.95/month plan; (c) $2 of each $16.95/month

payment would be donated to each subscriber's selected conservative group or organization.

40. On November 14, 2011, Mr. Wendler provided advice to Ms. Tucker as BIG's

Managing Member and BIG regarding BIG's taxes.

41. On November 18, 2011, Mr. and Mrs. DeFazio jointly made an additional capital

contribution of $25,000 to BIG.

42. On November 19, 2011, Ms. Tucker e-mailed the Founding Members and

explained that she decided to increase the number of slots for Founding Members from six to

nine in order to further capitalize the Company.

43. On November 19, 2011, Mr. Wendler e-mailed Ms. Tucker and requested an

operating agreement for BIG in order to begin preparing the Company's financial information

and documentation. Ms. Tucker provided Mr. Wendler with a draft operating agreement for BIG

and sought his advice regarding the document.

44. On November 21, 2011, Mr. Wendler and Ms. Coberly jointly made an additional

capital contribution of $15,000 to bring their total contribution to $25,000 and become Founding

Members.

45. Upon information and belief, Mr. Wendler reviewed the draft operating

agreement for BIG at various times from November 19 through 22,2011.

46. On November 22,2011, BIG and Mr. Fabretti's consulting firm, Bell Consulting

Group, LLC, executed an agreement for consulting services.

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47. On November 22,2011, Mr. Wendler e-mailed Ms. Tucker and provided

accounting advice to BIG and a list of questions regarding the draft operating agreement.

48. On November 23, 2011, Ms. Tucker increased the number of slots for Founding

Members from nine to 14 and reduced the number of Series A Preferred Units of Ownership for

Patriot Members from 30 to 21.

49. On November 25,2011, a meeting was held at BIG's studio about ideas,

strategies, and a potential radio show. The following individuals were present at the meeting:

Mr. Madden andJobie Madden, Mr. Sanfilippo, Mr. and Mrs. Post Post, Mr. and Mrs. DeFazio,

representatives from BIG's technology partner (VVIT), Lynne Holicky, and Ms. Tucker.

50. On November 26,2011, Mr. Wendler provided Ms. Tucker, as BIG's Managing

Member, and BIG with extensive advice regarding BIG's financial structure and taxation.

51. On November 28, 2011, Mr. and Mrs. Post jointly made a capital contribution of

$25,000 and became Founding Members.

52. In early December 2011, Mr. Wendler continued to review and interpret the draft

operating agreement and provided advice to and sought information from Ms. Tucker and BIG

regarding that document.

53. On December 7, 2011, Mr. Wendler met with Ms. Tucker regarding review and

finalization of the draft operating agreement. He also provided additional advice by e-mail

regarding BIG's organizational structure.

54. On December 21, Thomas P. Trevisani, Sr., M.D. made a capital contribution of

$25,000 to BIG and became a Founding Member.

55. On December 25, 2011, Mr. Wendler e-mailed Ms. Tucker with various questions

regarding the Company's launch and expenses. Ms. Tucker responded and explained she would

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answer his questions the day after Christmas. Ms. Tucker, in turn, e-mailed Mr. and Mrs.

DeFazio regarding Mr. Wendler's questions and explained she would answer his questions and

copy all Founding Members on the e-mail. Mr. DeFazio responded and explained certain

concerns he had regarding the finalization of the operating agreement and the Company's launch.

56. During this time, Ms. Tucker's mother' s health began to deteriorate. She had

been diagnosed with terminal stomach cancer on December 22, 2012.

57. On December 27, 2011, Ms. Tucker e-mailed all Founding Members with an

update on the Company. She covered a number of topics in her e-mail.

58. First, she directed them to BIG's website and asked them for their input and

suggestions. She also explained that the website was in "soft launch mode" because the private

end of the website had not yet been finalized. (The private website is comprised of the members'

area. When a member registers, he or she receives access to another back-end website for

members only.) The private website was not finalized yet because content partners for BIG had

not finalized their roles, agreements, and arrangements with BIG at that time.

59. Second, Ms. Tucker explained the status of BIG's marketing efforts and identified

the strategy moving forward. She also explained that, notwithstanding her mother's health

situation, she was pressing forward with marketing with the assistance of other individuals.

60. Third, Ms. Tucker explained the idea of hosting a call-in radio show with Mr.

Madden.

61. Fourth, Ms. Tucker explained BIG's involvement as a vendor and/or speaker in

the press corps for various upcoming events.

62. Fifth, Ms. Tucker updated them on the design and completion of BIG's studio, the

production of BIG's daily news show, and the production of other content.

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63. Sixth, Ms. Tucker explained the status ofBIG's contracts with various vendors.

64. Finally, Ms. Tucker stated the Founding Members would receive a copy o f the

draft operating agreement later that week, and she explained financial documentation, such as a

quarterly financial statement, would be prepared.

65. On December 28, 2011, Mr. DeFazio e-mailed Ms. Tucker with several concerns

and questions about the draft operating agreement and requested that Ms. Tucker provide

additional information regarding how the ownership structure of BIG had changed. Ms. Tucker

responded and stated she would provide answers to his questions and additional information as

soon as she returned from a BIG business trip to Iowa, a trip Ms. Tucker made with Mr.

Wendler, Ms. Coberly, Mrs. DeFazio, and BIG's technology partner (VVIT).

66. From late December through early January, Mr. Wendler, Ms. Coberly, Mrs.

DeFazio, and BIG's technology partner (VVIT) accompanied Ms. Tucker to Iowa for the first

BIG live streaming event. During this trip to Iowa, Mr. Wendler, Ms. Coberly, and Mrs.

DeFazio participated as citizen journalists and supported the efforts of BIG's first venture.

67. On January 10, 2012, Ms. Tucker e-mailed all Founding Members and updated

them on her trips to Iowa and upcoming trips to South Carolina, Missouri, and Texas. She also

proposed a Founding Members meeting on February 18, 2012.

68. On January 11, 2012, Mrs. Post e-mailed Ms. Tucker and requested a meeting

sooner than February 18, 2012. She also e-mailed Ms. Tucker and requested a copy of the draft

operating agreement. Ms. Tucker responded that day and promised to send her a copy of the

draft operating agreement and offered to meet with Mr. and Mrs. Post that week after her trip to

South Carolina.

69. Ms. Tucker e-mailed all the Founding Members on January 11, 2012 and

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explained she could not schedule a meeting with them until February 18 because she was either

out of town promoting BIG or with her mother during her mother's scheduled surgery in mid

January, and Mr. DeFazio was only available on weekends. She then re-scheduled the meeting

to February 19, 2012 to accommodate Mr. and Mrs. Post's travel plans (because they would be

out of town for the two weeks before February 19.

70. Ms. Tucker also e-mailed Mr. and Mrs. DeFazio on January 11, 2012 to explain

she could not re-schedule the Founding Members meeting, and that she would like to schedule an

individual meeting with them to review the draft operating agreement.

71. On January 12, 2012, Ms. Tucker e-mailed Mr. and Mrs. Post the draft operating

agreement.

72. On January 13, 2012, Mr. Madden made an additional capital contribution of

$15,000 to BIG.

73. On January 13, 2012, Mr. DeFazio e-mailed Ms. Tucker and expressed his

concerns regarding the direction of BIG. He accused BIG of not being transparent, warned Ms.

Tucker about the consultants with whom she surrounded herself, insinuated she was not focused

on the Company and critiqued her relationships with certain vendors, and referred vaguely to

certain "noise," or communication taking place among other Founding Members regarding Ms.

Tucker and BIG.

74. Ms. Tucker responded to Mr. DeFazio with the following points: she wanted

every Member's input and suggestions during these early stages of BIG; she thought the

communication among other Founding Members was unproductive and could potentially

undermine BIG; she requested that other Founding Members with questions and concerns

communicate with her directly; she explained in detail BIG's transparency with respect to its

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bookkeeping, accounting, and other financial documentation; she requested Mr. DeFazio

specifically identify any potential issues between BIG and its vendors; she reminded Mr.

DeFazio that, when all Founding Members made contributions, she informed them the draft

operating agreement was not yet completed and that they could potentially lose their entire

contributions i f BIG did not succeed; she emphasized the importance of the work and revisions

put into the draft operating agreement since that document was such an important part of the

Company's business going forward, and, therefore, her desire was to discuss the agreement with

each Founding Member individually so she may solicit their advice and feedback in an orderly

fashion; she stated BIG would have quarterly meetings with Founding Members during which

the Company's financial information and marketing and sales strategy would be reviewed, with

the first such meeting taking place on February 19, 2012; and she explained, in between these

quarterly meetings, she would reach out to all Founding Members regarding any issues and

concerns that may arise.

75. Mr. DeFazio responded on January 14, 2012, and stated he and Mrs. DeFazio are

involved with BIG because of the "Patriotic and Christian principles upon which" Ms. Tucker

founded it. He re-affirmed their faith in Ms. Tucker to make BIG successful. He, nevertheless,

repeated his concerns regarding BIG, including the outstanding draft operating agreement, BIG's

relationship with VVIT, her hectic work and travel schedule, and requested they speak in person

regarding her other relationships with consultants. In addition, he stated he and Mrs. DeFazio

wanted to be heavily and actively involved with BIG.

76. On January 17, 2012, Ms. Tucker met with Mr. and Mrs. DeFazio regarding the

draft operating agreement and the consultants who were advising her. In particular, Mr. and

Mrs. DeFazio revealed they had investigated Dr. Trevisani and Mr. Fabretti's backgrounds.

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They also stated they met with Mr. Post about their concerns regarding the backgrounds of Dr.

Trevisani and Mr. Fabretti, and they requested Ms. Tucker inform the other Founding Members

regarding the backgrounds of Dr. Trevisani and Mr. Fabretti. Nevertheless, Mr. and Mrs.

DeFazio explained their concerns would be alleviated once Ms. Tucker met with all the

Founding Members. Mrs. DeFazio also explained she would "f ix" any issues with Mr. Post and

Mr. Wendler. Mr. and Mrs. DeFazio both agreed they should have approached Ms. Tucker about

these various issues first before meeting with Mr. Post and Mr. Wendler without not ifying her.

Mr. DeFazio also promised to provide Ms. Tucker with feedback on the draft operating

agreement. Further discussions during dinner included how to improve BI G for everyone who

visited the website. Mr. DeFazio and Ms. Tucker had a conversation about the potential to make

BIG "free" or "almost free." Mr. DeFazio also shared his experiences about list-gathering, and

the conversation ended well with all parties stating they felt good about BIG's potential.

77. On January 18,2012, Ms. Tucker spoke with Mr. and Mrs. Post about their

concerns with BIG. Mr. Post explained whatever concerns he may have had regarding Mr.

Fabretti and Dr. Trevisani did not change their commitment to BIG. They also stated they

trusted Ms. Tucker to make the right decisions for BIG. In addition, Mr. Post stated he had some

questions regarding the draft operating agreement and promised to provide Ms. Tucker with

those questions in writing.

78. On January 19, 2012, Ms. Tucker e-mailed Mrs. DeFazio and asked for their

suggestions regarding the draft operating agreement. She explained she was gathering

information regarding the draft agreement from all Founding Members, and, then, once she had

suggestions from all Founding Members, she would incorporate all those suggestions and

finalize the agreement. Mrs. DeFazio responded and promised to provide their thoughts

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regarding the draft operating agreement early the following week.

79. Also, on January 19, 2012, Ms. Tucker e-mailed Mr. Wendler and referenced a

list of his thoughts, questions, and suggestions regarding the draft operating agreement that he

hade-mailed to BIG's then-legal counsel. Ms. Tucker promised to review the questions Mr.

Wendler sent and provide answers. She also proposed a one-on-one meeting with Mr. Wendler

to discuss any issues and questions he had regarding the draft agreement.

80. On January 19,2012, Ms. Tucker e-mailed Mr. and Mrs. DeFazio and updated

them regarding the status of her seeking suggestions and questions from other Founding

Members regarding the draft operating agreement and their concerns about Dr. Trevisani and Mr.

Fabretti.

81. On January 20,2012, Ms. Tucker e-mailed Mr. Wendler asking for a meeting

with him and Ms. Coberly regarding the draft operating agreement and concerns that were noted

by Mr. and Mrs. DeFazio.

82. Mr. Wendler responded and asked for a meeting the following Sunday (January

22, 2012) with the other Founding Members and asked about the questions he e-mailed to BIG's

then-legal counsel regarding the draft operating agreement.

83. Ms. Tucker responded to Mr. Wendler and stated the Founding Members'

schedules conflicted, and so everyone was not able to attend a meeting on January 22. Ms.

Tucker asked i f this was an emergency and what the emergency might be. She once again asked

for a one-on-one meeting with Mr. Wendler and Ms. Coberly since she still had not received

feedback from them regarding the draft operating agreement.

84. On January 22, 2012, Mr. Post e-mailed Ms. Tucker with his thoughts and

suggestions regarding the draft operating agreement. Ms. Tucker forwarded Mr. Post' s e-mail to

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BIG's then-legal counsel for consideration of changes to the draft operating agreement.

85. Also, on January 22, 2012, Mr. Wendler sent information to Ms. Tucker regarding

the filing ofthe Company's tax return and the Founding Members tax return information. Ms.

Tucker asked i f Mr. Wendler would be sending that to the Founding Members. Mr. Wendler

responded that he sent this information to her as an "FYI" and to do as she wished with it.

86. On January 23, 2012, Mr. DeFazio e-mailed Ms. Tucker with his suggested

changes to the draft operating agreement. Ms. Tucker responded that she received his e-mail and

would consult with BIG's then-legal counsel regarding the various suggested changes she

received from the Founding Members.

87. On January 24, 2012, Ms. Tucker e-mailed all Founding Members and updated

them on several issues, including her travel schedule and upcoming interviews. She also

recounted a meeting she had with VVIT on January 23, 2012, regarding BIG's revenue model.

She announced discussions with VVIT regarding changing the revenue model from a paid

subscription ($16.95/month) to an advertising sales revenue model that would not charge a

monthly subscription fee, much like what had previously been discussed with Mr. DeFazio. She

acknowledged it became apparent that, to reach the masses, BIG needed to offer its channels and

content for free. She explained to the Founding Members that revenue would be based on

advertising sales. She explained there were many details about this change that had yet to be

reviewed or implemented, and she promised to explain the suggested model at their upcoming

February 19 meeting.

88. On January 24, 2012, Ms. Tucker e-mailed Ms. Post to confirm their meeting for

the following day. Ms. Post responded and explained she would have to cancel their meeting the

following day because an unavoidable conflict had arisen. She promised to contact her about re-

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scheduling the meeting.

89. On January 27, 2012, surprisingly, Mr. Post e-mailed Ms. Tucker a letter in which

he claimed his law firm represented Mr. Wendler, Ms. Coberly, Ms. and Mrs. DeFazio, and

himself and Mrs. Post (the Defendants in this action) and Ms. Carla DiRito (attached as Exhibit

A). He accused Ms. Tucker, "on behalf of [herself] and [BIG]," of"solicit[ing] monies from

[them] in regard to a purported business plan based upon representations which were, "a t best,

misleading." He demanded that BIG return them their capital contributions ($25,000 for Mr.

Wendler and Ms. Coberly; $50,000 for Mr. and Mrs. DeFazio; $5,000 for Ms. Carla DiRito; and

$25,000 for Mr. and Mrs. Post). Mr. Post further stated that, i f BIG did not return these capital

contributions, they would "file a complaint seeking all available remedies against [Ms. Tucker],

[BIG][,] and other responsible persons on Tuesday, January 31, 2012."

90. If BI G returned to the Defendants and Ms. DiRito their contributions totaling

$105,000, it would render BIG insolvent.

91. In other words, the Defendants, under an explicit threat oflitigat ion, expressly

demanded that BIG violate Florida law by making a payment of money ($105,000) that, if paid

out, would render BIG insolvent, or else face litigation.

92. Ms. Tucker briefly responded on January 27, 2012, acknowledged she received

Mr. Pos t's letter, and advised she would be hiring counsel.

93. On February 6, 2012, Mr. Post e-mailed another letter to Ms. Tucker and Attorney

Robert M. Fojo, newly-hired counsel for BIG, and, for the first time, referred to certain

"securities" BIG was "selling" and, again, "accused BIG and Ms. Tucker of "misleading

representations." (See correspondence, dated February 6, 2012, from Mr. Post to Ms. Tucker,

attached as Exhibit B.) Mr. Post then explained he was "notifying [Ms. Tucker] that the . . .

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[Defendants] are exercising their right to rescind their respective purchases of the Securities

under applicable law, including Section 517.061, Florida Statutes, because [BIG] did not provide

notice to the . . . [Defendants] of their privilege to rescind their respective purchases." Mr. Post

also claimed "the sale of Securities by [BIG] was a violation of Florida and federal securities

laws because the sales were not exempt under applicable law." He then "demand[ ed] the

immediate refund of the full amounts [the Defendants] paid to [BIG]."

94. BIG's counsel responded by letter on February 13, 2012 and disputed Defendants'

claims on various bases (attached as Exhibit C).

95. Nevertheless, BIG 's counsel proposed scheduling and holding an infonnal

mediation or settlement conference at the earliest possible date because, given the surprising tum

of events, BIG believed much of the misinformation and misunderstandings involved in this

dispute would likely be cleared in such a setting in which the parties could speak and resolve

whatever differences had apparently arisen. Moreover, by making that effort, BIG believed the

parties might find a path towards resolving these claims favorably for both sides.

96. Sometime in between February 13, 2012, and February 21, 2012, the Defendants

retained new counsel, George Ridge.

97. On February 21, 2012, Defendants' new counsel telephoned and sent a letter to

BIG's counsel (attached as Exhibit D) in response to BIG's letter of February 13. Defendants'

counsel proposed "pre-suit mediation" and issued eight formal requests for business records

(including a financial statement and a current list of members of BIG) and other infom1ation

under section 608.4101, Florida Statutes, which entitles members of a limited liability company

to access certain business records. Defendants' counsel, nevertheless, expressed an

understanding that, because BIG was a "start-up" company, it may not have some or all of these

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records available.

98. Of these eight requests, however, one requested information to which the

Defendants were not specifically entitled under section 608.4101, and another was merely an

interrogatory that was inappropriate at the pre-suit stage.

99. On February 24, 2012, BIG's counsel responded by letter (attached as Exhibit E),

and he and Defendants' counsel also spoke by telephone. BIG's counsel explained that BIG

preferred an informal settlement conference because a formal mediation was premature (given its

costs and BIG's lack of information regarding the Defendants' claims and accusations), and it

would not provide the parties with a sufficient opportunity to meet and freely discuss whatever

misunderstanding took place. In addition, other than the two objectionable requests for

information in the February 21 letter, BIG provided the requested information (i f available),

promised to provide other information when complete, and directed the Defendants to other

necessary information. BIG's counsel explained that Ms. Tucker had been frequently

unavailable because her mother's health had deteriorated, and Ms. Tucker had spent a

considerable amount of time in the hospital with her.

100. In response to the February 24 Letter, Defendants, on March 1, 2012, falsely

accused BIG of an "unwillingness to provide the requested documentation and financial

information or to use a third party neutral in the attempted settlement of this matter," demanded a

check in the amount of$105,000 on or before March 9, 2012, and stated this "settlement offer"

would expire just two business days later, on March 5, 2012. (See correspondence, dated March

1, 2012, from Mr. Ridge to Mr. Fojo, attached as Exhibit F.)

101. BIG's counsel responded the following day, on March 2, 2012, denied

Defendants' unfounded accusations, and requested a two-week extension to consider this

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"settlement offer" due to Ms. Tucker's unavailability because of her mother's hospitalization and

deteriorating health. (See E-mail correspondence, dated March 2, 2012, from Mr. Fojo to Mr.

Ridge, attached as Exhibit G.)

102. In response, the Defendants reiterated their accusations and extended the deadline

to accept their "settlement offer" just one day to Tuesday, March 6, 2012. (See correspondence,

dated March 2, 2012, from Mr. Ridge to Mr. Fojo, attached as Exhibit H.)

COUNT I

Declaratory Judgment28 u.s.c. 2201

103. BIG re-alleges and reaffirms each and every allegation set forth in Paragraphs 1

through 102, inclusive, as i f fully set forth herein.

104. There is a real and actual controversy between BIG and the Defendants regarding

whether BIG violated the federal securities and Florida securities laws, whether Defendants

breached their duties of loyalty, care, and good faith and fair dealing towards BIG, and whether

Defendants are entitled to return oftheir capital contributions totaling $105,000.

105. Defendants have demanded and will continue to demand-or file suit to enforce

their demand- that BIG return their capital contributions.

106. Defendants' actions in demanding return of their capital contributions place BIG's

rights in doubt.

107. Defendants claim BIG violated the federal and Florida securities laws.

108. The Florida and federal securities laws, however, do not apply. The units of

ownership BIG sold to the Defendants are not "securities" under applicable law for the following

reasons: First, BIG offered the units of ownership to the Defendants within the state of Florida.

As an intrastate offering, they are, therefore, exempt under the federal securities law. Second,

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the Defendants were active, not passive, investors in BIG. Therefore, the units are not securities

under Florida law. Third, as explained above, BIG's business plan, which was provided to all

Defendants, contained a disclaimer stating "This is not an offer to sell securities- Nor a


109. Even if the units of ownership were securities under Florida law, the Defendants'

purchases were exempt transactions.

110. In addition, if BIG paid Defendants the amount they seek, it would violate Florida

law because such a payment would render BIG insolvent.

111. Rather, Defendants have no right to demand return of their capital contributions

because they are not allowed to withdraw as Managing Members from BIG, and, even if they are

allowed to withdraw, they are not entitled to return of their capital contributions in full and,

instead, are only entitled to the fair market value of their proportional interest in BIG.

112. Defendants, nevertheless, have created a present controversy by demanding that

BIG pay them certain money to which Defendants are not entitled and that would force BIG to

violate Florida law. In addition, Defendants have created a present controversy because they

have, through a pattern of attempted extortion-i.e., threatening to accuse BIG of fraud or

misrepresentation and threatening injury to BIG's reputation, with intent thereby to extort

$105,000 from and compel BIG to pay $105,000 against its will-attempted and conspired to

acquire or maintain, directly or indirectly, an interest in or control of BIG.

113. BIG believes the grounds upon which Defendants have based their demand are

erroneous and deprive BIG of its right to operate freely.

114. Furthermore, Defendants, as Managing Members ofBIG, have breached their

duties of loyalty, care, and good faith and fair dealing to the Company.

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115. Defendants' duty of loyalty included a duty to refrain from dealing with BIG in

the conduct of BIG's business as a party having an interest adverse to BIG.

116. Defendants' duty of care included a duty to refrain from engaging in grossly

negligent or reckless conduct, intentional misconduct, or a knowing violation of law.

117. Defendants also had a duty to discharge their duties to BIG and exercise any of

their rights consistent with the obligation of good faith and fair dealing.

118. Defendants breached these duties by (a) demanding BIG pay them $105,000 to

which they are not legally entitled; (b) demanding, under threat of litigation, that BIG pay them

$105,000, which, i fpaid, would render BIG insolvent and, thus, violate section 608.426, Florida

Statutes, and subject BIG and Ms. Tucker to liability; and (c) attempting, through a pattem of

attempted extortion-i.e., threatening to accuse BIG of fraud or misrepresentation and

threatening injury to BIG's reputation, with intent thereby to extort $105,000 from and compel

BIG to pay $105,000 against its will- to conspire to acquire or maintain, directly or indirectly,

an interest in or control ofBIG.

119. In addition, Mr. Wendler, as BIG's CPA, had duty of care to BIG that included

(a) a duty to comply with state law and the profession's technical and ethical standards, maintain

competence and strive to improve the quality of services, and discharge professional

responsibility to the best of his ability; and (b) act in a way that will serve the public interest,

honor the public trust, and demonstrate commitment to professionalism.

120. Mr. Wender breached this duty by (a) abdicating his responsibilities as BIG's

CPA; (b) demanding BIG pay him and Ms. Coberly $25,000 to which they are not legally

entitled; (c) demanding, under threat of litigation, that BIG pay him and Ms. Coberly $25,000,

which, if paid, would, in part, render BIG insolvent and, thus, violate section 608.426, Florida

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Statutes, and subject BIG and Ms. Tucker to liability; and (d) attempting, through a pattern of



BIG to pay $25,000 against its will - to conspire to acquire or maintain, directly or indirectly, an

interest in or control of BIG.

121. BIG seeks a declaration that it has not violated the federal and Florida securities

laws, that Defendants have breached their duties ofloyalty, care, and good faith and fair dealing

to BIG, that Mr. Wendler committed professional negligence, and that Defendants are not

entitled to return of their full capital contributions.

COUNT II

Declaratory Judgment 86.021, Fla. Stat.

122. BIG re-alleges and reaffirms each and every allegation set forth in Paragraphs 1

through 109, inclusive, as if fully set forth herein.

123. Defendants have created a present controversy regarding whether BIG violated

the federal securities and Florida securities laws, whether Defendants breached their duties of

loyalty, care, and good faith and fair dealing towards BIG, and whether Defendants are entitled

to return of their capital contributions.

124. Defendants have demanded and will continue to demand-or file suit to enforce

their demand-that BIG return their capital contributions.

125. Defendants' actions in demanding return of their capital contributions place BIG's

rights in doubt.

126. Defendants claim BIG violated the federal and Florida securities laws.

127. The Florida and federal securities laws, however, do not apply. The units of

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ownership BIG sold to the Defendants are not "securities" under applicable law for the following

reasons: First, BIG offered the units of ownership to the Defendants within the state of Florida.

As an intrastate offering, they are, therefore, exempt under the federal securities law. Second,

the Defendants were active, not passive, investors in BIG. Therefore, the units are not securities

under Florida law. Third, as explained above, BIG's business plan, which was provided to all

Defendants, contained a disclaimer stating "This is not an offer to sell securities -Nor a


128. Even if the units of ownership were securities under Florida law, the Defendants'

purchases were exempt transactions.

129. In addition, i f BIG paid Defendants the amount they seek, it would violate Florida

law because such a payment would render BIG insolvent.

130. Rather, Defendants have no right to demand return of their capital contributions

because they are not allowed to withdraw as Managing Members from BIG, and, even i f they are

allowed to withdraw, they are not entitled to return of their capital contributions in full and,

instead, are only entitled to the fair market value of their proportional interest in BIG.

131. Defendants, nevertheless, have created a present controversy by demanding that

BIG pay them certain money to which Defendants are not entitled and that would force BIG to

violate Florida law. In addition, Defendants have created a present controversy because they

have, through a pattern of attempted extortion-i.e., threatening to accuse BIG of fraud or

misrepresentation and threatening injury to BIG's reputation, with intent thereby to extort

$105,000 from and compel BIG to pay $105,000 against its will-attempted and conspired to

acquire or maintain, directly or indirectly, an interest in or control of BIG.

132. BIG believes the grounds upon which Defendants have based their demand are

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erroneous and deprive BIG of its right to operate freely.

133. Furthermore, Defendants, as Managing Members of BIG, have breached their

duties of loyalty, care, and good faith and fair dealing to the Company.

134. Defendants' duty ofloyalty included a duty to refrain from dealing with BI G in

the conduct of BIG's business as a party having an interest adverse to BIG.

135. Defendants' duty of care included a duty to refrain from engaging in grossly

negligent or reckless conduct, intentional misconduct, or a knowing violation of law.

136. Defendants also had a duty to discharge their duties to BIG and exercise any of

their rights consistent with the obligation of good faith and fair dealing.

137. Defendants breached these duties by (a) demanding BIG pa y them $105,000 to

which they are not legally entitled; (b) demanding, under threat of litigation, that BIG pa y them

$105,000, which, i f paid, would render BIG insolvent and, thus, violate section 608.426, Florida

Statutes, and subject BIG and Ms. Tucker to liability; and (c) attempting, through a pattern of



BIG to pay $105,000 against its wil l - to conspire to acquire or maintain, directly or indirectly,

an interest in or control of BIG.

138. In addition, Mr. Wendler, as BIG's CPA, had duty of care to BIG that included

(a) a duty to comply with state law and the profession's technical and ethical standards, maintain

competence and strive to improve the quality of services, and discharge professional

responsibility to the best of his ability; and (b) act in a way that will serve the public interest,

honor the public trust, and demonstrate commitment to professionalism.

139. Mr. Wender breached this duty by (a) abdicating his responsibilities as BIG's

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CPA; (b) demanding BIG pay him and Ms. Coberly $25,000 to which they are not legally

entitled; (c) demanding, under threat of litigation, that BIG pay him and Ms. Coberly $25,000,

which, if paid, would, in part, render BIG insolvent and, thus, violate section 608.426, Florida

Statutes, and subject BIG and Ms. Tucker to liability; and (d) attempting, through a pattern of



BIG to pay $25,000 against its wil l - to conspire to acquire or maintain, directly or indirectly, an

interest in or control of BIG.

140. BIG seeks a declaration that it has not violated the federal and Florida securities

laws, that Defendants have breached their duties of loyalty, care, and good faith and fair dealing

to BIG, that Mr. Wendler committed professional negligence, and that Defendants are not

entitled to return of their full capital contributions.

RELIEF REQUESTED

WHEREFORE, BIG respectfully requests relief from this Honorable Court as follows:

A. A Declaration that this Court has jurisdiction of a real and active justiciable

controversy between these parties;

B. A Declaration that BIG has not violated the federal securities laws;

C. A Declaration that BIG has not violated the Florida securities laws;

D. A Declaration that the Defendants breached their duty of loyalty to BIG;

E. A Declaration that the Defendants breached their duty of care to BIG;

F. A Declaration that the Defendants breached their duty of good faith and fair

dealing to BIG;

G. A Declaration that Mr. Wendler committed professional negligence;

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H. A Declaration that the Defendants are not entitled to return of their full capital

contributions at all, or, in the alternative, are merely entitled to a distribution equal to the fair

market value of their current interests in BIG;

I. Costs, including, but not limited to, attorneys' fees; and

J. Grant such other and further rel ief as may be just and appropriate.

DEMAND FOR JURY TRIAL

The Plaintiff demands a jury trial against the Defendants on all counts triable pursuant to

Rule 38 ofthe Federal Rules of Civil Procedure.

Dated: March 7, 2012 By:

Respectfully submitted,

BIG VOICES MEDIA, LLC

By its attorneys,

M A C F / ~ y 7FE , S O N & McMULLEN/ / /

L- 0/:1Jeffrey . G'FL Ba/No. 5 074MAQF ARLANE FERGUSON & McMULLENP.cf.Box 1531Tampa, FL 33601Telephone: (813) 273-4200Facsimile: (813) 273-4396E-Mail: [email protected]

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tucker complaint

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