Counter Claim

Case 3:12-cv-00242-UAMH-JBT Document 17
Filed 04/03/12 Page 1 of 28 PageID 117
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION BIG VOICES MEDIA, LLC, a Florida limited liability company, Plaintiffs, v. ) CASE NO. 3:12-cv-242-J-99MMH-JBT ) )
) TED WENDLER, LOU COBERLY, PATRICIA DeFAZIO, STEVE DeFAZIO, ) JAMES H. POST, and JACQUELIN A. POST, ) Defendants. ) ) COUNTERCLAIM AGAINST BIG VOICES MEDIA, LLC AND BILLIE TUCKER
Counter-plaintiffs Ted Wendler, Lucille Coberly, Steven DeFazio, Patricia DeFazio, Carla DiRito, James H. Post and Jacquelin A. Post sue counter-defendants Big Voices Media, LLC and Billie Tucker, and allege:
General Allegations
1. 2. Florida. 3. Florida; 4. Florida.
Counter-plaintiff Ted Wendler is a resident of Duval County, Florida. Counter-plaintiff Lucille Coberly is a resident of Duval County,
Counter-plaintiff Steven DeFazio is a resident of St. Johns County,
Counter-plaintiff Patricia DeFazio is a resident of St. Johns County,
5. Florida. 6. Florida. 7.
Counter-plaintiff James H. Post is a resident of St. Johns County,
Counter-plaintiff Jacquelin A. Post is a resident of St. Johns County,
Counter-defendant Big Voices Media, LLC is a Florida limited liability
company with its principal place of business in Duval County, Florida. 8. Counter-defendant Billie Tucker is a resident of Duval County, Florida. Background Facts 9. Counter-defendant Big Voices Media, LLC (Big Voices) is a limited
liability company organized and existing under the laws of the State of Florida. The Articles of Organization was filed in the Office of the Secretary of State of Florida on June 17, 2011, a copy of which is attached as Exhibit 1. The principal place of business of Big Voices is in Jacksonville, Florida. 10. Counter-defendant Billie Tucker is identified in the Articles of
Organization as the sole manager and member of Big Voices. Sometime prior to September, 2011, Big Voices and Billie Tucker retained the services of consultant Clyde Fabretti. At all times material to this Counterclaim, all management and business decisions for Big Voices have been made by Tucker individually or in combination with her consultant, Clyde Fabretti. 11. As of the date of this counterclaim, Big Voices has never had an
operative written or oral operating agreement.
Billie Tucker and Big Voices Media sold unregistered securities without exemption under Federal and Florida law 13. Sometime prior to October 16, 2011, Billie Tucker decided to sell
securities by selling units or shares of profit participation in Big Voices. 14. On October 16, 2011, Billie Tucker organized and held a Big Voices
Media Special Event to solicit investments from 75 to 100 invitees at the Zamar Center in Jacksonville, Florida (the October 16 Investor Solicitation). 15. At the October 16 Investor Solicitation: a. Billie Tucker presented Big Voices Media as a for profit entity with a mission to allow grassroots and politically conservative groups to communicate among themselves and the public at large through a triple play internet technology (triple play means that all stations on Big Voices Media can be accessed by subscribers on television, the internet and mobile devices). b. Billie Tucker advised the prospective investors that the triple play technology was developed by Big Voices technology partner, Vital Vision Information Technology (VVIT). This technology was demonstrated for the invitees at the October 16 Investor Solicitation. c. Billie Tucker represented to the invitees that Big Voices Media would be launched and live streaming by November 6, 2011 at the Rally to Right.
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16.
Billie Tucker used her position as the former chairman of the First
Coast Tea Party to cause many of the people she solicited for investments, including each of the counter-plaintiffs, to trust that she would act at all times in good faith, honestly and with integrity. As alleged below, this trust was misplaced. 17. During the October 16 Investor Solicitation, Billie Tucker solicited
investments in Big Voices Media from dozens of persons, including counter-plaintiffs Ted Wendler and Lucille Coberly. In doing so, Billie Tucker used the following sign up forms:
18.
On October 19, 2011, Ted Wendler and Lucille Coberly became
Investors in Big Voices Media and they delivered a check for $10,000 to Billie Tucker made payable to Big Voices Media. At that time, Ted Wendler and Lucille Coberly were told by Billie Tucker that, by becoming a Patriot Investor, they would
receive 40 preferred shares of Big Voices Media and, at the same time, help their country. 19. Counter-plaintiffs Steven and Patricia DeFazio approached Billie
Tucker at the conclusion of the October 16 Investor Solicitation and inquired about a higher investment opportunity. Billie Tucker told Mr. and Mrs. DeFazio that there was a $25,000 Founding Patriots investment level, but that the number of seats at this level was limited to 6 and only 2 are left. 20. On October 18, 2011, Steven and Patricia DeFazio agreed to invest at
the Founding Patriots level based upon Billie Tuckers representations made at the October 16 Investor Solicitation and the additional promise that Billie Tucker would furnish them with a written business plan and investment contract by the end of the week. The DeFazios delivered a $25,000 check to Billie Tucker made payable to Big Voices Media. 21. On October 18, 2011, Carla DiRito, the mother of Patricia DeFazio,
also agreed to become an investor of Big Voices at the Liberty Level and delivered a check in the amount of $5,000 made payable to Big Voices Media. In addition to Carla DiRito, Billie Tucker has solicited dozens of other unsuspecting members of the public to purchase the unregistered securities of Big Voices. The Big Voices Business Plan dated November 1, 2011 22. On November 4, 2011, Billie Tucker delivered a Business Plan to
Steven and Patricia DeFazio entitled Financial participation in Big Voices Media, LLC. Contrary to Billie Tuckers prior representations to Steven and Patricia
DeFazio, the Business Plan reflected 9 Available Founding Member memberships instead of the 6 previously represented:
Business Plan of Big Voices Media, LLC dated November 1, 2011, pp. 18-19. (A copy of the Business Plan is attached as Exhibit 2) 23. On November 6, 2011, the Rally to Right event was held in
Jacksonville, Florida. Contrary to Billie Tuckers prior representations, however, there was no official launch or live stream by Big Voices Media in conjunction with the event. 24. On November 7, 2011, Billie Tucker sent a letter to Steven and Patricia
DeFazio and other investors, as well as VVIT personnel, representing that Big Voices would go live no later than December 1, 2011. 25. On November 11, 2011, Steven and Patricia DeFazio suggested to
Billie Tucker that she consider James and Jacquelin Post as candidates for the one
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remaining Founding Member investment level membership. At a meeting on that date with Jacquelin Post, Billie Tucker provided Mrs. Post with a copy of the November 1 Business Plan which, among other things, represented that: (i) each of the 9 Founding Members would receive 100 Class A Common Units and 100 Series A Preferred Units (and that the total number of authorized units was 4,100, of which 2,000 Units were designated as Class A Common Units and 2,100 Units were designated as Series A Preferred Units); (ii) each Founding Member would have voting rights and a seat on the Big Voices Media Advisory Board; and (iii) the Board of Advisors would meet every month to discuss operational issues. 26. On November 17, 2011, Billie Tucker and Steven DeFazio discussed
Ms. Tuckers decision to extend the Founding Member level of investment from 6 to 9. To help keep the Founding Members limited to like-minded individuals, it was suggested that the additional Founding Member investments be first offered to existing members. Steven and Patricia DeFazio agreed to purchase a second
Founding Member investment and delivered another $25,000 check to Billie Tucker on November 18, 2011. 27. On November 21, 2011, Mr. Wendler and Ms. Coberly delivered to
Billie Tucker another check in the amount of $15,000 made payable to Big Voices Media, LLC so that they could be upgraded to Founder Investors because, among
other reasons, Billie Tucker stated that there was only one Founder Investor membership left. 28. On November 22, 2011, James and Jacquelin Post also became
Founding Member investors by delivering a $25,000 check to Billie Tucker made payable to Big Voices Media. The Posts became investors based upon, among other things: (i) the representations made by Billie Tucker in the November 1, 2011 Business Plan; (ii) the representations made by Billie Tucker to Jacquelin Post during the November 11, 2011 conference; (iii) the representation made by Billie Tucker that Big Voices would go live and be operational by December 1, 2011; (iv) the representation made by Billie Tucker regarding the existence of a binding contractual agreement between Big Voices and VVIT which, among other things, would provide Big Voices with exclusive access to state of the art technology for delivering content to be provided by politically conservative organizations and groups; and (v) the representations made by Billie Tucker that she had the political contacts and expertise to manage the business operations of Big Voices and make it a profitable and successful venture. 29. At no time prior to November 22, 2011, did Billie Tucker inform the
Posts that Billie Tucker had retained Clyde Fabretti or any other advisors for Big Voices to operate or help make decisions for or on behalf of Big Voices. To the
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contrary, the Posts were told by Billie Tucker that she would be using the Founding Members as her Advisory Board. 30. As of November 22, 2011, each of the purportedly available 9
Founding Patriot Memberships were purchased and held by the following investors: Andy Sanfilippo Steven and Patricia DeFazio Henry Madden Gayla and Mike Reed Connie Turner James and Jacquelin Post Ted Wendler and Lucile Coberly $50,000 $50,000 $25,000 $25,000 $25,000 $25,000 $25,000 1 and 2 3 and 4 5 6 7 8 9
In addition, Billie Tucker had by this date caused a multitude of other unsuspecting members of the general public to purchase the unregistered securities of Big Voices at $250, $5,000, and $10,000 membership levels. 31. On December 1, 2011, Billie Tucker caused Big Voices to issue a letter
to all participants at the 11/16-17 training and marketing event that its soft launch had been postponed for unspecified good reasons and issues with the website . . . [and] content providers posting their content. 32. On December 25, 2011, Billie Tucker sent an e-mail to Patricia
DeFazio which, among other matters, revealed that Billie Tucker had unilaterally decided to increase the number of Founding Patriot Memberships from 9 to 12. On that same day, Steven DeFazio responded with his concerns regarding Billie Tuckers change of ownership and requested a Founding Members meeting before January 1,
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2012. Billie Tuckers response was that Mr. DeFazio should discuss such matters with her advisor Clyde Fabretti. 33. On December 27, 2011, Steven DeFazio had a telephone call with
Clyde Fabretti regarding Billie Tuckers unilateral decision to dilute the equity position of the Founding Patriot Members. Although Clyde Fabretti acknowledged and seemed sympathetic to the concerns of Steven DeFazio, Mr. Fabretti said that all such decisions would be ultimately made by the managing partner Billie Tucker. 34. On December 27, 2011, Billie Tucker disclosed, for the first time, that
she had sold a 10th Founding Membership in Big Voices to Dr. Thomas Travisani, a dear friend of Clyde Fabretti. 35. On January 11, 2012, counter-plaintiffs James and Jacquelin Post,
concerned that the Big Voice Media launch had been unduly delayed, that no written investment agreement had been provided as promised and concerned by other actions taken by Billie Tucker contrary to her prior representations, sent an e-mail to Billie Tucker requesting an immediate meeting of the Founding Members because a meeting of the minds is necessary. The Posts also became concerned when they learned that a person they did not know and had not met, Clyde Fabretti, was making, or helping Billie Tucker to make all of the material business and operational decisions for Big Voices. Upon later investigation, the Posts discovered that Clyde Fabretti was a criminal felon who had been convicted of bank fraud and income tax evasion. Attached as Exhibit 3 are certified copies of Clyde Fabrettis Criminal Indictment, Plea Agreement, Sentencing Memorandum and Criminal Judgment. In
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addition, the Posts learned that Clyde Fabretti had and still has significant unpaid tax liabilities to the IRS. The Illusory LLC Operating Agreement 36. On November 20, 2011, Billie Tucker sent an e-mail to all the
Founding Members, including Steven and Patricia DeFazio, representing that prior to the launch of technology [on December 1, 2011] Big Voices would finalize and distribute the Operating Agreement. 37. On December 13, 2011, Billie Tucker again represented to Steven and
Patricia DeFazio that the operating agreement would be finalized and distributed soon. 38. On December 25, 2011, in response to Steven DeFazios e-mail
regarding his increased concerns, Billie Tucker responded that the Operating Agreement would be finalized this week. The next day, however, Billie Tucker sent another e-mail to Steven DeFazio stating that she would hold off distributing any Operating Agreement until she discussed it with Clyde Fabretti. 39. On January 14, 2012, Billie Tucker distributed to all of the Founding
Member investors what was purported to be the final version of the Big Voices Media, LLC Operating Agreement. The terms and conditions of the proposed
Operating Agreement contained material terms which were contrary to the prior representations made by Billie Tucker and contained material provisions which Billie Tucker should have disclosed prior to January 14, 2012, including, without limitation, the following:
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a.
the Operating Agreement included 12 (instead of 9) Founding Member Investment Levels, thereby diluting what each of the counter-plaintiffs believed would be their undiluted Class A common share ownership;
b.
the Operating Agreement identified as an existing Founding Member Dr. Thomas Travisani, who Billie Tucker selected without any notice of opportunity for any of the counterplaintiffs to approve by vote or otherwise determine whether he was someone they wanted to be part of the Big Voices Member Advisory Board. This action was contrary to another one of Billie Tuckers representations to the counter-plaintiffs that they would have some opportunity for notice and vote as to who would be allowed to participate on the Big Voices Media Advisory Board;
c.
the Operating Agreement provided that Billie Tucker would always have a majority (no less than 53.3%) of all Class A Common Units -- even in the event of additional capital contributions. Conversely, the ownership interest of the
Founding Members, however, was to be diluted in the event of additional capital contributions unless they contributed more monies in an amount sufficient to maintain their pro rata existing capital amount;
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d.
the Operating Agreement further gave Billie Tucker absolute control over every decision regarding the company because all such decisions were, according to the Operating Agreement, to be decided by only a mere majority vote (which, of course, made Billie Tuckers vote the only vote that mattered for all such decisions); and
e.
the Operating Agreement also appeared to create potential, or perhaps unavoidable, problems under Federal and Florida Securities laws.
The foregoing concerns, among others, were brought to the attention of Billie Tucker by the counter-plaintiffs in e-mails and telephone calls between January 14 and January 25, 2012. The Counter-plaintiffs exercised their right to rescind their purchase of the Big Voices securities 40. On January 26, 2012, due to the accumulation of problems, concerns,
unanswered questions, misinformation and omissions of material facts by Billie Tucker, individually and on behalf of Big Voices, the counter-plaintiffs served a letter on Billie Tucker and Big Voices rescinding their investments and demanding the return of their monies. A copy of this letter is attached as Exhibit 4. 41. On January 27, 2012, the counter-plaintiffs received a response letter
from Billie Tucker which stated that she was referring the matter to counsel but, in the meantime, demanded that the counter-plaintiffs not contact any of the other investors or Big Voices employees or representatives and that they immediately return all
14
materials or other information relating to Big Voices. A copy of the letter is attached as Exhibit 5. 42. At no time prior to February 6, 2012 did Billie Tucker or Big Voices
provide notice to the counter-plaintiffs of their right to rescind their purchases under applicable law, including Section 517.016, Florida Statutes. 43. On February 6, 2012, the counter-plaintiffs served a supplemental
demand letter on Billie Tucker and Big Voices which, based on the same facts, gave notice of the counter-plaintiffs right to rescind their investment purchases under Section 517.016, Florida Statutes. A copy of the February 6 letter is attached as Exhibit 6.
Count One 44. This is an action for rescission and damages against all defendants
based on Sections 517.07 and 517.301, Florida Statutes. 45. Counter-plaintiffs re-allege and incorporate by reference the
allegations set forth in paragraphs 1 through 43 of this complaint. 46. As set forth above, the Big Voices limited liability company interests
sold by Billie Tucker to the counter-plaintiffs as Founding Members holding Class A Common Shares were securities under Florida law in that: a. The solicitation materials and communications received from Billie Tucker and Big Voices refer to the counter-plaintiffs purchases as investments. In addition, the Class A Common
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Units and the Series A Preferred Units each have the characteristics of stock. b. Under the existing business structure, Billie Tucker is the sole manager-member of Big Voices. Accordingly, there is no
extant Operating Agreement pursuant to which the counterplaintiffs are presently members and, therefore, the sole and exclusive power to control Big Voices LLC presently resides in Billie Tucker. As a result, the counter-plaintiffs have no present right or ability to exercise any management control of Big Voices LLC. c. Moreover, and in any event, even if the proposed Operating Agreement of January 13, 2012 (or some oral version of it), was somehow binding upon the counter-plaintiffs, the ability of the counter-plaintiffs to exercise any management control is effectually non-existent because, by its terms, Billie Tucker holds a perpetual majority vote under an Operating Agreement that requires only a majority vote for all LLC decisions. d. In addition, the purported LLC interests held by the counterplaintiffs are, as a matter of law, securities because none of the counter-plaintiffs have any experience in the particular business in which Big Voices and Billie Tucker are engaged. e. Lastly, as the promoter of the Big Voices business venture, Billie Tucker cannot be replaced because (as she often boasts)
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she has the unique personal relationships and political contacts which are indispensable to making the Big Voices business plan viable and successful. 47. Accordingly, the counter-defendants sale of securities to the counterThe counter-
plaintiffs was in violation of Section 517.07, Florida Statutes.
defendants were not exempt from registration requirements under Florida law. 48. As a direct and proximate result of the counter-defendants sale of
unregistered securities, counter-plaintiffs suffered losses and damages in excess of $105,000.00. WHEREFORE, counter-plaintiffs demand judgment against the counterdefendants, jointly and severally, for: (a) granting rescission of the transactions by which the counterplaintiffs agreed to purchase equity positions in Big Voices; (b) directing the counter-defendants to return to counter-plaintiffs the $100,000.00 paid by counter-plaintiffs to counter-
defendants; (c) in the alternative, entering a judgment against the counterdefendants, jointly and severally, if in the event the defendants are unwilling to return the monies to counter-plaintiffs; (d) (e) interest; attorneys fees in accordance with Chapter 517.211 et seq. Florida Statutes; (f) costs; and
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(g)
for such other and further relief as is just and equitable.

Count Two
49.
This is an action for rescission and damages against all counter-
defendants based on Section 517.07, Florida Statutes. 50. Counter-plaintiffs re-allege and incorporate by reference the
allegations set forth in paragraphs 1 through 43 and 46 of this counterclaim. 51. As set forth below, the counter-defendants sale of securities to the
counter-plaintiffs was in violation of Section 517.07, Florida Statutes. The counterdefendants were not exempt from registration requirements under Florida law. 52. Even if the counter-defendants intended their sales of securities to be
exempt from registration requirements under Florida law, the sales were not exempt because, among other reasons, counter-defendants failed to provide the requisite three-day notice to the counter-plaintiffs that they had a right to rescind their respective purchases. WHEREFORE, counter-plaintiffs demand judgment against each of the counter-defendants, jointly and severally, for: (a) (b) compensatory damages in excess of $100,000.00; or, in the alternative, a rescission of securities still owned by the counter-plaintiffs, as available pursuant to 517.301, Florida Statutes; (c) interest;
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(d)
attorneys fees in accordance with Chapter 517.211 et seq. Florida Statutes;
(e) (f)
costs; and for such other and further relief as is just and equitable.
Count Three
53.
This is an action against all counter-defendants for damages based
upon Sections 517.301 and 517.211 of the Florida Statutes, Floridas Blue Sky laws. 54. Counter-plaintiffs re-allege and incorporate by reference the
allegations set forth in paragraphs 1 through 43 and 46 of this counterclaim. 55. As discussed herein, counter-defendants engaged in a common plan,
scheme, and unlawful course of conduct, pursuant to which they knowingly or recklessly engaged in acts, practices, and courses of business which operated as a fraud and deceit upon counter-plaintiffs and made deceptive and untrue statements of material facts and omitted to state material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading to counter-plaintiffs. 56. The purpose and effect of such scheme, plan, and unlawful course of
conduct was, among other things, to conceal defendants wrongdoing and masking of the business failures and disarray regarding the operations and business objectives of Billie Tucker and Big Voices. 57. Counter-defendants, pursuant to such scheme, plan, and unlawful course
of conduct, knowingly and recklessly issued, caused to be issued, or participated in
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the preparation, issuance and distribution of deceptive and materially false and misleading statements to counter-plaintiffs. 58. The omitted or misrepresented facts, statements, presentations and
communications set forth in this complaint were material in that there is a substantial likelihood that a reasonable investor would consider these facts, statements or documents important in making investment decisions. 59. Counter-plaintiffs, in ignorance of the false and misleading statements
set forth herein and the deceptive and manipulative devices and contrivances employed by counter-defendants, relied to their detriment on such misleading statements and omissions. 60. Counter-plaintiffs have been damaged in an amount exceeding
$100,000.00, exclusive of interests, fees, and other costs. 61. As alleged above, counter-defendants violated Section 517.301 of the
Florida Statutes in that, in connection with the rendering of investment advice or in connection with the offer, sale, or purchase of any investment or security they: (a) employed devices, schemes, or artifices to defraud; (b) made untrue statements of material facts or omitted to state material facts necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or (c) engaged in practices or courses of business which operated or would operate as a fraud or deceit upon any person, in connection with the sale of securities to counter-plaintiffs including, without limitation, the false representations and omissions as alleged in paragraphs 15(c), 23, 24, 28, 29, 33, 36, 44 and 46 of this counterclaim.
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62.
Pursuant to Section 517.211 of the Florida Statutes, every member,
officer, partner, or agent of Big Voices which has personally participated or aided in making the sale or purchase of securities is jointly and severally liable to the counter-plaintiffs in an action for rescission or for damages. 63. Accordingly, counter-defendants are jointly and severally liable to
counter-plaintiffs for their participation or aiding in the purchase or sale of securities in violation of Section 517.301 of the Florida Statutes as discussed herein. WHEREFORE, counter-plaintiffs demand judgment against each of the defendants, jointly and severally, together with interest, costs and attorneys fees.
Count Four 64. This is an action against all counter-defendants for damages pursuant to
Section 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. 78t(a). 65. Counter-plaintiffs re-allege and incorporate by reference the
allegations set forth in paragraphs 1 through 43 and 46 of this counterclaim. 66. Billie Tucker acted as a control person of Big Voices within the
meaning of Section 20(a) of the Securities Exchange Act of 1934, by virtue of her position as manager-member. 67. Billie Tucker influenced, directed and controlled the actions,
misrepresentations, and omissions set forth herein. 68. By virtue of her position of authority, responsibility and control, Billie
Tucker had the ability to direct the issuance of securities by Big Voices and to prevent the actions, misrepresentations and omissions set forth in this counterclaim.
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69.
Moreover, Billie Tucker profited directly or indirectly from the
unwarranted and deceptive methods by which counter-defendants sold securities to and raised funding from counter-plaintiffs. 70. As a direct and proximate result of Billie Tuckers wrongful conduct,
including violations of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. 78j(b), and Rule 10b-5 therunder, 17 C.F.R. 240.10b-5, counterplaintiffs suffered economic losses and damages in connection with the investment of their funds in an amount exceeding $105,000.00, exclusive of interest, attorneys fees, and other costs. WHEREFORE, counter-plaintiffs demand judgment against each of the counter-defendants, jointly and severally, in an amount exceeding $100,000.00, together with interest, costs and attorneys fees. Count Five 71. This is an action for damages against all counter-defendants for fraud
in the inducement. 72. Counter-plaintiffs re-allege and incorporate by reference the allegations
set forth in paragraphs 1 through 43 and 46 of this counterclaim. 73. As alleged above, the counter-defendants engaged in a common plan,
scheme, and unlawful course of conduct, pursuant to which they knowingly or recklessly engaged in acts, practices, and courses of business which operated as a fraud and deceit upon counter-plaintiffs and made deceptive and untrue statements of material facts and omitted to state material facts necessary in order to make the
22
statements made, in light of the circumstances under which they were made, not misleading to counter-plaintiffs including, without limitation, the false representations and omissions as alleged in paragraphs 15(c), 23, 24, 28, 29, 33, 36, 44 and 46 of this counterclaim. 74. The purpose and effect of this scheme, plan, and unlawful course of
conduct was, among other things, to conceal counter-defendants wrongdoing and masking of the business failure and disarray regarding the operations and the business objectives of Billie Tucker and Big Voices in order to induce counterplaintiffs to each enter into a respective agreement with Big Voices. 75. Counter-defendants, pursuant to this scheme, plan, and unlawful course
of conduct, knowingly and recklessly issued, caused to be issued, or participated in the preparation, issuance and distribution of deceptive and materially false and misleading written and oral statements to counter-plaintiffs. 76. The omitted or misrepresented facts, statements, presentations and
communications discussed in this complaint were material in that there is a substantial likelihood that a reasonable investor would consider these facts, statements and/or documents important in making investment decisions. 77. Counter-plaintiffs, in ignorance of the false and misleading statements
set forth herein and the deceptive and manipulative devices and contrivances employed by counter-defendants, relied to their detriment on such misleading statements and omissions.
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78.
Counter-plaintiffs have been damaged as a result of the wrongful
actions of counter-defendants in an amount exceeding $105,000.00, exclusive of interest, fees and other costs. WHEREFORE, counter-plaintiffs demand judgment against each of the counter-defendants as follows: (a) granting rescission of the transactions by which the counterplaintiffs agreed to purchase equity positions in Big Voices; (b) directing the counter-defendants to return to counter-plaintiffs the $100,000.00 paid by counter-plaintiffs to counter-
defendants; (c) in the alternative, entering a judgment against the counterdefendants, jointly and severally, in the event the counterdefendants are unable to return the monies to counter-plaintiffs; (d) (e) interest; attorneys fees in accordance with Chapter 517.211 et seq. Florida Statutes; (f) (g) costs; and for such other and further relief as is just and equitable.
Count Six 79. This is an action for damages against all counter-defendants for
negligent misrepresentation.
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80.
Counter-plaintiffs re-allege and incorporate by reference the allegations
set forth in paragraphs 1 through 43 and 46 of this counterclaim. 81. Counter-defendants made false and material misrepresentations and
omissions or caused false and material misrepresentations and to be made to counterplaintiffs. 82. Counter-defendants knew or had reason to know that the
representations were false at the time they were made, or failed to make reasonable inquiry into the truth or accuracy of the representations made to counter-plaintiffs. 83. The misrepresentations were material and were made for the purpose of
inducing counter-plaintiffs to purchase Big Voices securities. 84. The misrepresentations induced counter-plaintiffs to purchase Big
Voices securities and counter-plaintiffs reasonably relied on the misrepresentations and omissions to their detriment and would not have purchased Big Voices securities but for these misrepresentations and omissions. 85. As a result of counter-defendants actions, counter-plaintiffs have
been damaged. WHEREFORE, counter-plaintiffs demand judgment against the counterdefendants, jointly and severally, in an amount exceeding $100,000.00, together with interest, costs and attorneys fees.
Count Seven 86. conversion.

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This is an action for damages against all counter-defendants for
87.
As the manager-member of Big Voices, Billie Tucker had control and
possession of the funds delivered by counter-plaintiffs for the purchase of investments which Billie Tucker and Big Voices have no right to retain under applicable law. 88. On January 26, 2012, the counter-plaintiffs demanded that Billie
Tucker and Big Voices return their monies, but counter-defendants refused to do so. 89. The actions of Billie Tucker and Big Voices constitute willful
conversion of the counter-plaintiffs property and have caused damage to the counter-plaintiffs. 90. The actions of Big Voices and Billie Tucker as alleged were
intentional, malicious and committed with reckless disregard for the rights of the counter-plaintiffs. WHEREFORE, counter-plaintiffs demand judgment against the counterdefendants, jointly and severally, in an amount exceeding $100,000.00, together with interest and costs.
Count Eight 91. defendant. 92. Counter-plaintiffs re-allege and incorporate by reference the allegations This is an action for money had and received against each counter-
set forth in paragraphs 1 through 43 and 46 of this counterclaim. 93. Although counter-plaintiffs collectively paid $100,000.00 to the
defendants to obtain equity positions in Big Voices, the counter-plaintiffs did not
26
receive anything from the counter-defendants.
Moreover, as alleged above, the
counter-defendants made false and material misrepresentations and omissions to the counter-plaintiffs. 94. The counter-defendants, however, accepted and retained the
$100,000.00 for their own account and benefit. 95. Permitting the counter-defendants to retain the benefit of the counter-
plaintiffs $100,000.00 would unjustly enrich the counter-defendants and improperly deprive the counter-plaintiffs of their right to such funds. 96. By reason of the foregoing, the counter-plaintiffs are entitled as a
matter of right and justice to restitution in the amount of $100,000.00. WHEREFORE, the counter-plaintiffs demand judgment against the counterdefendants, jointly and severally, in the amount of $100,000.00, together with interest, costs and attorneys fees.
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Demand for Jury Trial Counter-plaintiffs demand trial by jury on all issues so triable.
SMITH HULSEY & BUSEY James H. Post Florida Bar Number 175460 225 Water Street, Suite 1800 Jacksonville, Florida 32202 (904) 359-7700 (904) 359-7708 (facsimile) and COOPER, RIDGE & SAFI, P.A.
By
/s/George E. Ridge George E. Ridge
Florida Bar Number 226701 136 E. Bay Street, Suite 301 Jacksonville, Florida 32202 (904) 353-6555 (904) 353-7550 (facsimile) Counsel for the Counter-plaintiffs
Certificate of Service
I certify that on April 3, 2012, I electronically filed a copy of the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of the electronic filing to Jeffrey W. Gibson, Esq., MacFarlane Ferguson & McMullen, P.O. Box 1531, Tampa, Florida 33601.
/s/ George E. Ridge Attorney

00789430
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Case 3:12-cv-00242-UAMH-JBT Document 17-1

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Case 3:12-cv-00242-UAMH-JBT Document 17

Filed 04/03/12 Page 1 of 28 PageID 117

1. 2. Florida. 3. Florida; 4. Florida.

Counter-plaintiff Steven DeFazio is a resident of St. Johns County,

Counter-plaintiff Patricia DeFazio is a resident of St. Johns County,

Case 3:12-cv-00242-UAMH-JBT Document 17

Filed 04/03/12 Page 2 of 28 PageID 118

Counter-plaintiff James H. Post is a resident of St. Johns County,

Counter-plaintiff Jacquelin A. Post is a resident of St. Johns County,

Counter-defendant Big Voices Media, LLC is a Florida limited liability

operative written or oral operating agreement.

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On October 19, 2011, Ted Wendler and Lucille Coberly became

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plaintiffs was in violation of Section 517.07, Florida Statutes.

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for such other and further relief as is just and equitable.

This is an action for rescission and damages against all counter-

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attorneys fees in accordance with Chapter 517.211 et seq. Florida Statutes;

This is an action against all counter-defendants for damages based

of conduct, knowingly and recklessly issued, caused to be issued, or participated in

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Pursuant to Section 517.211 of the Florida Statutes, every member,

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Moreover, Billie Tucker profited directly or indirectly from the

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