for direct sellers

116. The RICO Defendants violated 18 U.S.C. 1961(1) by conduct in engaging in "racketeering activity" including:
a. Mail fraud.
b. Wire fraud.
c. Racketeering activity.
d. Money Laundering.
e. Financial institution fraud.
 

117. In violation of 18 U.S.C. § 1962(c) the RICO Defendants conducted and/or participated in the conduct of the XanGo Enterprises affairs, directly or indirectly, through a pattern of racketeering activity. The RICO Defendants participated in the operation or management of the XanGo Enterprise, by, among other things, providing its agents, including but not limited to, XanGo employees, with fraudulent documents and contracts.

118. The pattern of racketeering activity consisted of the RICO Defendants aiding and abetting the commission of countless acts of mail fraud, wire fraud, racketeering activity, money laundering, engaging in monetary transactions in property derived from specified unlawful activity, financial institution fraud, and retaliating against a witness, victim, or an informant in violation of 18 U.S.C §§ 1341, 1343, 1344, 1952, 1956, 1957.

119. Specifically, the RICO Defendants engaged in a scheme or artifice to defraud Mr. Davis or to obtain money or property from Mr. Davis by means of false or fraudulent pretenses, representations, or promise, including but not limited to:

f. On a monthly basis beginning in at least as early as the year 2005, the Manager Defendants submitted to XanGos accounting department credit card statements and expense reports that routinely claimed that personal expenses were legitimate business expenses. Mr. Davis expects that discovery will reveal the date, author and recipients of each fraudulent expense report. Each of the Manager Defendants failed to disclose to Mr. Davis that they were engaged in fraud, waste and mismanagement of the XanGos assets. The Manager Defendants concealed their fraudulent activities by failing to disclose their expense reports or misconduct to Mr.
Davis during the monthly expense report review process, in regular management meetings or at XanGo board meetings.
g. Misrepresenting to Mr. Davis that the allegations in the Angel lawsuit were untrue.
h. Misrepresenting to Mr. Davis that XanGos assets were not being used to create a new retail drink line. In fact, XanGos assets, personal, intellectual property and vendors were all being used to create a competitive product.
i. Mr. Garrity misrepresented to Mr. Davis that he was not involved in an intimate relationship with his assistant Andrea Waterfall.
j. Mr. Hollister failed to disclose to Mr. Davis that Mr. Garrity had approached him and had admitted to misconduct, and tendered his resignation from XanGo.
k. Mr. Garrity, Mr. Brown and Mr. Wood failed to disclose to Mr. Davis that they were involved in bribing Russian customs officials.
l. Mr. Brown gave Mr. Davis equity and financial statements that falsely misrepresented XanGos finances.
m. On a monthly basis beginning in at least as early as the year 2005, the Manager Defendants caused XanGo to produce and send to Mr. Davis monthly sales reports that falsely claimed that XanGo distributors who
were family members or friends of the Manager Defendants had sold more XanGo products than they had actually sold or paid for.
 

120. In furtherance of this scheme or artifice, the RICO Defendants transmitted or caused to be transmitted by means of wire communication in interstate commerce, the following writings, and also caused numerous documents, including but not limited to, the following matters and things to be placed in any post office or authorized depository, or deposited or caused to be deposited the following matters or things to be sent or delivered by a private or commercial interstate carrier:

a. On or about, October 14, 2011 at the direction of one or all of the RICO Defendants, King & McCleary LLC caused XanGo to prepare and file fraudulent K-1s and tax returns though interstate wire transmission or
U.S. Mail.
b. On or about, October 15, 2010 at the direction of one or all of the RICO Defendants, King & McCleary LLC caused XanGo to prepare and file fraudulent K-1s and tax returns though interstate wire transmission or
U.S. Mail.
c. On or about, October 15, 2009 at the direction of one or all of the RICO Defendants, King & McCleary LLC caused XanGo to prepare and file fraudulent K-1s and tax returns though interstate wire transmission or
U.S. Mail.
d. On or about, October 15, 2008 at the direction of one or all of the RICO Defendants, King & McCleary LLC caused XanGo to prepare and file fraudulent K-1s and tax returns though interstate wire transmission or
U.S. Mail.
e. On numerous occasions, the specific dates of which will be obtained through discovery, one or all of the RICO Defendants caused XanGo to send to Mr. Davis though interstate wire transmission a fraudulent XanGo
sales report.
f. On a monthly basis beginning in at least as early as the year 2006, the Manager Defendants submitted to XanGos accounting department corporate credit card statements claiming personal expenses as business
expenses. On information and belief, the credit card statements reflecting the Manager Defendants fraudulent activities were transmitted to XanGo via U.S. Mail and/or interstate wire transmission. Mr. Davis expects that
discovery will reveal the date and mode of transmission of each of the credit card statements.
g. On a monthly basis beginning in at least as early as the year 2006, the Manager Defendants submitted to XanGos accounting department expense reports claiming personal expenses as business expenses. On
information and belief, the expense reports and reimbursement checks and/or wire payments submitted by and paid to the Manager Defendants were transmitted via U.S. Mail and/or interstate wire transmission. Mr.
Davis expects that discovery will reveal the date and mode of transmission of each expense report or reimbursement payment.
h. At the end 2009, Mr. Garrity caused Justin Barrett to submit a false wireless account application via interstate wire communication in the fictitious name John Gable at a Spanish Fork, Utah Sprint Wireless Store.
On information and belief, Mr. Garrity used this bogus wireless account to send numerous false and misleading statements via interstate wire transmission.

121. In violation of 18 U.S.C §1344, the RICO Defendants knowingly executed a scheme or artifice to defraud a Chase Bank by representing that XanGo intended to cease distributions to its members as a condition for loans and the XanGo line of credit. In fact, the RICO Defendants never intended keep this promise. Instead, the Managing Defendants provided themselves secret distributions through a tax overpayment scheme.

122. As part of the scheme, the RICO Defendants cause XanGo to significantly overpay its yearly federal taxes. When XanGo received a large tax return, the RICO Defendants caused XanGo to distribute this money to the Manager Defendants as a secret distribution.

123. In violation of 18 U.S.C §1344, the Manager Defendants obtained moneys, funds, credits, assets, or other property owned under the control of Chase Bank, by means of these same false or fraudulent pretenses, representations, or promises.

124. The RICO Defendants also used XanGos misappropriated assets to perpetuate this fraud on other banking institutions to wrongfully obtain loans, moneys, funds, credits, assets, or other property owned or under the control of the bank.

125. For example, Mr. Garrity used his misappropriation of XanGos assets to obtain, use and benefit from an American Express Black Card.

126. In violation of 18 U.S.C. § 1952(a), the RICO Defendants engaged in interstate commerce, with intent to promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity including money laundering.

127. 18 U.S.C. § 1956(a)(1) makes it unlawful to conduct a financial transaction knowing "that the financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity—
(A)(i) with the intent to promote the carrying on of specified unlawful activity; or
(ii) with intent to engage in conduct constituting a violation of section 7201 or 7206 of the Internal Revenue Code of 1986; or
(B) knowing that the transaction is designed in whole or in part—
(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or
(ii) to avoid a transaction reporting requirement under State or Federal law,
 

128. The term "financial transaction"  means
(A) a transaction which in any way or degree affects interstate or foreign commerce
(i) involving the movement of funds by wire or other means or
(ii) involving one or more monetary instruments, or
(iii) involving the transfer of title to any real property, vehicle, vessel, or aircraft,
(B) a transaction involving the use of a financial institution which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree.
 

129. That portion of the "Money Laundering Control Act of 1986" found in 18 U.S.C. § 1956(c), states: As used in this section— (7) the term "specified unlawful activity" means— (A) any act or activity constituting an offense listed in section 1961(1) of this title except an act which is indictable under subchapter II of chapter
53 of title 31 . . . (B) (iv) bribery of a public official, or the misappropriation, theft, or embezzlement of public funds by or for the benefit of a public official[.]

130. 18 U.S.C. § 1957(a), states: Whoever[…] knowingly engages or attempts to engage in a monetary transaction in criminally derived property of a value greater than $10,000 and is derived from a specified unlawful activity, shall be punished as provided in subsection (b).

131. 18 U.S.C. § 1957(f) states that the term "specified unlawful activity" has the meaning given that term in section 1956 of this title.

132. In violation of 18 U.S.C. 1952, 1956, and 1957, as noted above, the RICO Defendants were involved in numerous acts money laundering and bribery of foreign officials with the intent to promote the carrying on of specified unlawful activities of mail fraud, wire fraud, tax evasion and tax fraud, with knowledge that the transactions were designed to conceal or disguise the nature, location, source, ownership or control of proceeds of the specified unlawful activity.

133. The acts of racketeering activity referred to in the previous paragraphs constitute a "pattern of racketeering activity" within the meaning of 18 U.S.C. § 1961(5). The acts alleged were related to each other by virtue of common participants, common victims, a common method of commission, and the common purpose and common result of fraudulently inducing Mr. Davis and other XanGo members, among others, to participate in a scheme to defraud Mr. Davis, XanGos members and XanGos distributors through similar promises and agreements.

134. The Manager Defendants committed and caused to be committed a series of overt acts in furtherance of the conspiracy and to affect the objects thereof, including but not limited to the acts set forth above.

135. As a result of the RICO Defendants violations of 18 U.S.C. § 1962(c), Mr. Davis has been damaged by unknowingly participating in the scheme to defraud; by losing the value of his interest in XanGo; by being undercompensated for the time and resources he spent building XanGo; by being denied his contractual rights; by being frozen out of the company he co-founded; and by suffering damage to his business reputation.

136. As a direct and proximate result of the RICO Defendants violation of 18 U.S.C. § 1962(d) and by reason of the RICO Defendants conspiracy to violate 18 U.S.C. § 1962(c), Mr. Davis has been injured in an amount to be proven at trial, but not less than $3,000,000.00.

137. As a result of the Manager Defendants violation of 18 U.S.C. §1962(c) and (d) and 1964(c) Davis is entitled to three-fold his damages and the costs of suit, including a reasonable attorneys fee.
 

EIGHTH CAUSE OF ACTION (TORTUOUS INTERFERENCE WITH CURRENT AND PROSPECTIVE ECONOMIC ADVANTAGE)

138. Plaintiff incorporates by this reference the other allegations set forth in this Complaint.

139. As noted above, Mr. Davis entered into an employment agreement and XanGos Operating Agreement.

140. The Manager Defendants knew of the existence of these contracts and as part of their attempts to oppress Mr. Davis as a minority shareholder caused XanGo to breach its agreements with Mr. Davis.

141. The Manager Defendants conduct prevented the performance of XanGos obligations to Mr. Davis.

142. In addition, the Manager Defendants actively sought to damage Mr. Davis business reputation in the network marketing community.

143. The Manager Defendants are aware that Mr. Davis has beneficial business relationships in the network marketing community.

144. As part of their attempts to oppress Mr. Davis as a minority shareholder, the Manager Defendants made numerous false statements to XanGo employees and distributors with the intent to damage Mr. Davis business reputation.

145. The Manager Defendants conduct has directly and proximately harmed Mr. Davis business relationships.

146. As a direct and proximate result of the Manager Defendants conduct, Mr. Davis has been damaged and continues to sustain damages in an amount to be determined at trial, but in no event less than $100,000.00.
 

NINTH CAUSE OF ACTION(BREACH OF FIDUCIARY DUTY)
 

147. Plaintiff incorporates by this reference the other allegations set forth in this Complaint.

148. The Manager Defendants owed the highest fiduciary duties to Mr. Davis as a co-founder and managing member of XanGo.

149. The Manager Defendants breached their fiduciary duties to Mr. Davis when they retaliated against him for challenging their self-interested transactions and misconduct.

150. For example, the Manager Defendants individually or collectively committed numerous retaliatory acts which constitute a breach of their fiduciary duties, including but not limited to:
a. causing XanGo to wrongfully breach its agreements with Mr. Davis;
b. failing to make full distributions;
c. funneling XanGo assets to companies separately owned or controlled by the Manager Defendants;
d. making loans from XanGo assets to companies separately owned or controlled by the Manager Defendants;
e. engaging in conduct with the intent of squeezing Mr. Davis out of XanGo;
f. engaging in conduct designed to hide XanGo corporate profits;
g. engaging in conduct designed to conceal tax fraud;
h. denying Mr. Davis full access to the books and records of the company;
i. excluding Davis from the day-to-day operations of the company;
j. giving Mr. Davis fraudulent documents claiming that they were legitimate corporate records;
k. making material misstatements of fact regarding XanGo, its shareholders, the nature of self-interested transactions, and Mr. Daviss role in thecompany.
l. Removing him from the company schedule for distributor meeting so he would have no contact or limited European Interest.
m. Purporting to dilute Mr. Davis membership in XanGo from Class A membership interests to Class C membership interests.
 

151. As a result of the Manager Defendants breaches of their fiduciary duties, Mr. Davis has been damaged.

152. Mr. Davis is entitled to damages as a result of the Managing Defendants breaches of their fiduciary duties in an amount to be proven at trial, but not less than $3,000,000.00.

TENTH CAUSE OF ACTION (MINORITY SHAREHOLDER OPPRESSION)

153. Plaintiff incorporates by this reference the other allegations set forth in this Complaint.

154. The Manager Defendants owed the highest fiduciary duties to Mr. Davis as a co-founder and minority member.

155. Mr. Davis, as a co-founder and managing member of XanGo, had reasonable expectations regarding his role and ownership interest in XanGo.

156. The Manager Defendants committed numerous acts that amount to burdensome, harsh and/or wrongful conduct that violated Mr. Daviss reasonable expectations as a minority member, including but not limited to:
a. causing XanGo to wrongfully breach its agreements with Mr. Davis;
b. failing to make full distributions;
c. funneling XanGo assets to companies separately owned or controlled by the Manager Defendants;
d. making loans from XanGo assets to companies separately owned or controlled by the Manager Defendants;
e. engaging in conduct with the intent of squeezing Mr. Davis out of XanGo;
f. engaging in conduct designed to hide XanGo corporate profits;
g. engaging in conduct designed to conceal tax fraud;
h. denying Mr. Davis full access to the books and records of the company;
i. excluding Davis from the day-to-day operations of the company;
j. giving Mr. Davis fraudulent documents claiming that they were legitimate corporate records;
k. making material misstatements of fact regarding XanGo, its shareholders, the nature of self-interested transactions, and Mr. Davis role in the company;
l. Removing him from the company schedule for distributor meeting so he would have no contact or limited European Interest.
m. Purporting to dilute Mr. Davis membership in XanGo from Class A membership interests to Class C membership interests.

157. As a result of the Manager Defendants acts of oppression, Mr. Davis has been damaged.

158. Mr. Davis is entitled to damages as a result of the Manager Defendants acts of oppression in an amount to be proven at trial, but not less than $3,000,000.00.

ELEVENTH CAUSE OF ACTION (CONSTRUCTIVE TRUST)

159. Plaintiff incorporates by this reference the other allegations set forth in this Complaint.

160. By virtue of settlement agreements that relied on the Manager Defendants good faith accounting of personal expenses, the Manager Defendants were placed in a position of trust and fiduciary duty vis-à-vis Mr. Davis.

161. The Manager Defendants fraudulently reported their personal expenses by providing false and misleading information and have not provided Mr. Davis the opportunity to do a full audit of untainted XanGo financial documents.

162. As a result, the Manager Defendants have an equitable duty to fully account for their personal expenses and any illegal bribes or payments.

163. The Court should place a constructive trust over profits wrongfully diverted and illegal payments made by the Manager Defendants.

WHEREFORE, Plaintiff Davis demands judgment as follows:
 

A. Damages and treble damages in an amount to be proven at trial but not less than
$3,000,000.00;
B. That Manager Defendants be stripped of any managerial role in XanGo;
C. Appropriate punitive damages;
D. An award of attorneys fees and costs;
E. Pre- and post-judgment interest at the highest rate allowed by law; and
F. Any other relief the Court deems to be just and equitable.
 

Source: http://dockets.justia.com/docket/utah/utdce/2%3A2013cv00349/88909