Preview
FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
HEATH GLOBAL, INC.
Index No. 650502/2018
Plaintiff,
-against-
FARRELL FRANZONE, L.P. n/k/a FF FUND I,L.P.,
FARRELL FRANZONE INVESTMENT
MANAGEMENT, LLC, n/k/a FF FUND
MANAGEMENT, LLC and ANDREW FRANZONE,
Defendants.
DEFENDANTS'
REPLY MEMORANDUM OF LAW
IN SUPPORT OF MOTION TO DISMISS
MURRAY & DI BELLA LLP
15th
5 Penn Plaza, FlOOr
New YOrk, New YOrk 10001
Tel. 212-725-2044
mjm@murraydibella.com
Attorneys for Defendants FF Fund I,L.P.,
FF Fund Management, LLC and Andrew Franzone
1 of 14
FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018
TABLEOF CONTENTS
PRELIMINARY STATEMENT...................................................................................................................1
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
ARGUMENT................................................................................................................................................3
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
PARTIES'
I. THE TERMS OF THE ALLEGED ORAL AGREEMENT
ARE TOO VAGUE AND INDEFINITE TO CREATE A LEGALLY
ENFORCEABLE CONTRACT ............................................................................................................3
3
II. PLAINTIFF ALLEGES AN ORAL AGREEMENT NOT TO BE
COMPLETED WITHIN ONE YEAR THAT IS BARRED BY
THE STATUTE OF FRAUDS ..............................................................................................................6
III. PLAINTIFF ALLEGES AN AGREEMENT FOR COMPENSATION
FOR SERVICES RENDERED IN NEGOTIATING A BUSINESS
OPPORTUNITY WHICH IS VOID PURSUANT TO THE STATUTE
OF FRAUDS........................................................................................................................................10
........................................................................................................................................
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
CONCLUSION ..........................................................................................................................................11
11
.
-1-
2 of 14
FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018
TABLE OF AUTHORITIES
Cases
A. Aversa Brokerage, Inc. v. .Honig
Honig Ins. Agency, Inc.,
249 A.D.2d 345, 671 N.Y.S.2d 135 (2d Dep't 1998)................................................................................8
................................................................................
Campbell v. Campbell,
213 A.D.2d 1027, 624 N.Y.S.2d 493 (4th Dep't .............................................................................
1995).............................................................................6
Dickenson v.Dickenson Agency, Inc.,
127 A.D.2d 983, 512 N.Y.S.2d 952 (4th Dep't 1987)...............................................................................9
...............................................................................
Nakamura v.Fujii,
253 A.D.2d 387, 677 N.Y.S.2d 113 (1st Dep't 1998)................................................................................8
Pearsall v.Alexander,
572 A.2d
~ 113 (D.C.
~ 6
~ 1990)......................................................................................................................5,
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Pritsker v. Soyferman,
275 A.D.2d 738, 713 N.Y.S.2d 213 (2d Dep't 2000)................................................................................8
................................................................................
Rosenbaum v.Premier Sydell, Ltd.,
240 A.D.2d 556, 659 N.Y.S.2d 52 (2d Dep't ..............................................................................
6
1997)..............................................................................5,
Rules
CPLR 3211 1
...................................................................................................................................................1
..
-11-
3 of 14
FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018
Defendants Farrell Franzone, L.P. n/lda FF Fund I, L.P., Farrell Franzone Investment
Management, LLC, n/lda FF Fund Management, LLC and Andrew Franzone (together
"Defendants"
"Defendants") respectfully submit this reply memorandum of law in support of their motion to
("Complaint" ("
dismiss the complaint ("Complaint") filed by plaintiff Heath Global, Inc. ("Plaintiff") pursuant to
CPLR 3211(a)(5) and CPLR 3211(a)(7), for both failure to state a cognizable cause of action and
frauds.1
as barred by the statute of
PRELIMINARY STATEMENT
Plaintiff's singular claim for breach of contract rests on the vague allegation that
Invest"
Defendants agreed to "become involved in and "gain access to potential deals and
Invest" "leading"
contracts arising from in exchange for a $5 million capital raise and, if
necessary, providing the funding to complete the domain name acquisition of Invest.com. Rather
Defendants'
than respond to Motion to Dismiss by attempting to clarify the vague and indefinite
"terms" parties'
of the alleged agreement (which are really more in the nature of concepts),
Plaintiff attempts to avoid dismissal by focusing almost exclusively on those portions of the
parties'
alleged agreement that itdeems clear, attempting to amplify itspleadings by adding new
allegations that are similarly vague and indefinite (if not contradictory), and relying on attorney
parties'
argumentation in place of factual allegations. Because itis impossible to divine what the
Invest,"
understood the vague and indefinite terms "become involved in "access to potential
deals," "lead" rates"
a capital raise, and "prevailing market to mean (regardless of what Plaintiff
parties'
may have been thinking at the time), the alleged agreement is not capable of being
enforced and this action should be dismissed.
1 Defendants'
Capitalizedterms not otherwise defined herein have the meaning setforth in memorandum of
("
law in support of theirMotion toDismiss the Complaint ("Opening Br.") orPlaintiff'smemorandum of law in
Defendants'
support of itsOpposition to Motion toDismiss ("Opp'n Br.").
-1-
4 of 14
FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018
Plaintiff's claim is also barred by the Statute of Frauds since pursuant to Plaintiff's very
own allegations, the final installment obligation under the domain name agreement was not due
parties'
until February 1, 2013 and therefore, under no set of circumstances could the alleged
agreement be performed within one year. Although Plaintiff's lawyer, in his Opp'n Br., posits a
myriad of ways the alleged contract could allegedly have been performed within one year, and
argues that the domain name agreement allowed such early payment, itis both significant and
telling that there are zero alleged facts presented to this Court supporting that claim. Nowhere in
Defendants'
either the Complaint or the Perzow Aff. (submitted in response to Defendants motion to dismiss,
precisely for the purpose of bolstering the sufficiency of Plaintiff's Complaint) does Plaintiff
actually allege that acceleration or early payment was allowed under the domain name purchase
agreement. In addition, Plaintiff cannot avoid the effect of the Statute of Frauds by dividing
Defendants'
performance obligations because consideration for the alleged separate promises is
not capable of apportionment without doing violence to the terms of the contract.
parties'
Finally, since itappears that the parties alleged oral agreement was, at least in part, to
compensate Defendants for Plaintiff in itspurchase of Invest.com -- a
assisting consummating
component of and interest in the new Invest business -- the alleged agreement is
key opportunity
also void since itis not in writing. While an agreement to provide on-demand funding may not
trigger the Statute of Frauds, an agreement by which Defendants would "become involved in
Invest" contacts" - -
and receive "access to potential deals and whatever that means as
raise"
compensation for "leading a $5 million capital and thereby assisting Plaintiff to
consummate their purchase of Invest.com, does trigger the statute and therefor provides an
independent basis for dismissal.
-2-
5 of 14
FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018
ARGUMENT
PARTIES'
I. THE TERMS OF THE ALLEGED ORAL AGREEMENT
ARE TOO VAGUE AND INDEFINITE TO CREATE A LEGALLY
ENFORCEABLE CONTRACT
Plaintiff does not dispute that "before the power of the law can be invoked to enforce a
promise, itmust be sufficiently certain and specific so that what was promised can be
ascertained."
(Opening Br. at 4 and cases cited therein.) Nor does itdispute that "if an agreement
contract."
is not reasonably certain in its material terms, there can be no legally enforceable (Id.
at 5.) Rather than dispute these basic tenets of contract law, Plaintiff attempts to avoid them,
parties'
ignoring those aspects of the alleged agreement that were left undefined, and instead
"confirmatory"
referring to alleged emails sent to third parties that were neither solicited nor
responded to by Defendants, and arguing that this is a simple, oral, on-demand funding
agreement, which Plaintiff likens to an agreement to split the proceeds of a winning lottery
ticket. As Plaintiff's own allegations make clear, Plaintiff has alleged no ordinary or simple loan
agreement, nor are the facts alleged at all similar to the lottery cases on which Plaintiff relies.
parties'
The sum total of the alleged oral agreement is set forth in paragraph 9 of the
Complaint, as supplemented by paragraph 7 of the Perzow Aff. While Plaintiff repeatedly refers
claim,2
to alleged confirmatory emails to bolster itsclaim, itdoes not dispute that silence upon receipt
Defendants'
of an email does not equal acceptance and has failed to present any evidence of
acceptance. Because this is an action to enforce an alleged oral agreement, the self-serving
emails are in no way relevant to the question of whether the parties entered into an enforceable
2 Which confirm
isalmost comical, since assumed true,the emails actually that no agreement was reached
and thatthe parties merely discussed that they would have a discussion about thepurported transaction.Complaint
(" doesn'
at ¶11 ("As discussed,I'd like to discuss thealternativeof you helping us outfor the feb 1st payment ifJim doesn't
end up playing ball.")(emphasis added).
-3-
6 of 14
FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018
oral agreement. Just as Defendants ignored these emails when they were forwarded to them, so
too should they be ignored now.
Disregarding the emails and assuming the allegations set forth in paragraph 9 of the
Complaint and paragraph 7 of the Perzow Aff. as true, Plaintiff alleges that Defendants orally
promised "to become involved in Invest, which would give Defendants access to potential deals
Invest"
and contacts arising from in exchange for agreeing to "lead a $5 million capital raise for
and - if and as - to provide the needed to complete the domain name
Invest, necessary funding
acquisition."
Plaintiff further alleges that the parties also agreed that if "Defendants provided
rates."
such funding as agreed, itwould be repaid in accordance with prevailing market While
the amount of funding that Plaintiff sought to receive from the alleged agreement may be clear,
the consideration due to Defendants was not. Indeed, Plaintiff only feebly attempts to define
Invest"
what the parties meant by the vague terms "involved in and "access to potential deals and
Invest" -
contacts arising from saying only that access meant "early and exclusive access to
contacts"
potential deals and and claiming that the terms are themselves sufficiently definite.
Defendants'
(Opp'n Br. at 6.) They are not. As noted in Opening Br., these terms raise more
questions then answer - questions which Plaintiff cannot and does not even attempt to
they
"clarification"
answer. In fact, the of the terms presented by Plaintiff appears more to vary the
deals"
Complaint's allegations than support them. For example, how does "access to potential
access"
alleged in the Complaint equate to the "exclusive referenced in Plaintiff's Opp'n Brief.
(Compare Complaint at ¶ 9 with Opp'n Br. at 6.)Exclusivity is a radically different entitlement
than mere access, and yet Plaintiff alleges both, which is inconsistent. Further, what does the
"lead"
vague term a capital raise mean? Would Defendants be required to contribute their own
capital, or just secure third parties to invest? Would Defendants be tasked with responsibilities
-4-
7 of 14
FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018
typically associated with investment banks under proposed offerings? Who would Defendants be
— "leader,"
leading? --banks?
banks? private equity funds? individuals? Would Defendants, as the get
preferred returns, or points or a commission on the amounts raised? It isdifficult to imagine
allegations more vague and indefinite than those presented by Plaintiff in the Complaint.
Also vague is Plaintiff's new allegation that Defendants were to receive interest "at
rates."
prevailing market (Perzow Aff. ¶ 7.) Prevailing for what? Venture capital deals? Secured
lending? And what was the prevailing rate for any type of deal? Was ittied to Prime? LIBOR?
Was there any premium attached to those rates? Even giving Plaintiff the benefit of the doubt
rates"
and accepting as true that there was an agreement to pay Defendants "prevailing market
(which agreement, tellingly, was never mentioned in the Complaint), as opposed to additional
terms that Plaintiff simply inserted after the fact in order to avoid dismissal, the fact of the matter
is that while Plaintiff may have its own idea of what prevailing rates meant, Defendants do not
and the term is surely not sufficiently definite to allow "a proper remedy to be fashioned upon
breach"
or to ensure the Court that the parties were "truly in agreement with respect to all
terms"
material as required under well settled law. (Opening Br. at 4 and cases cited therein.)
Invest."
The same thing holds true for phrases such as being "involved with As such, the alleged
oral agreement is not enforceable and this action should be dismissed. Rosenbaum v. Premier
Sydell, Ltd., 240 A.D.2d 556, 659 N.Y.S.2d 52 (2d Dep't 1997).
parties'
Disregarding the numerous vague terms contained in the alleged oral agreement,
Plaintiff attempts to analogize this action to those where courts have upheld oral agreements to
split the proceeds of lottery tickets, finding them sufficiently definite to be enforceable. The facts
of the lottery cases relied upon by Plaintiff are in no way analogous. In Pearsall v. Alexander,
572 A.2d 113 (D.C. 1990), the District of Columbia case relied on heavily by Plaintiff (and
-5-
8 of 14
FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018
relied upon by the court in Campbell v. Campbell, 213 A.D.2d 1027, 624 N.Y.S.2d 493 (4th
Dep't 1995) (the other lottery case cited by Plaintiff)), the court noted that the record therein
supported the court's finding that an agreement existed between the parties to share equally in
the proceeds of the winning ticket. Pearsall, 572 A.2d at 117. Significantly, in neither Pearsall
parties'
nor Campbell did a party even raise the argument that one or more of the terms of the
alleged oral agreement was leftindefinite or undefined. That is not the case here, where multiple
parties'
terms in the alleged agreement are vague and undefined. As such, neither Pearsall nor
Campbell have any bearing on this action.
Finally, although Plaintiff takes pains to attempt to distinguish Rosenbaum v. Premier
Sydell, Ltd., its holding compels dismissal. Here and in Rosenbaum, essential terms of the
parties'
alleged agreement were left undefined. 240 A.D.2d at 557. Just as there was no
methodology in Rosenbaum for determining the amount of the alleged ownership interest that
Rosenbaum claimed he was entitled, here there is no methodology for determining exactly the
Defendants' "involvement"
level of supposed in Invest, what "access to potential deals and
contacts" parties' rates."
entailed, or what the meant by the term "prevailing market While the
parties may have known how much funding was required to complete the domain name
acquisition, because these other essential terms were left vague and undefined, there can be no
legally enforceable agreement. As in Rosenbaum, Plaintiff's claim should be dismissed.
II. PLAINTIFF ALLEGES AN ORAL AGREEMENT NOT TO BE COMPLETED
WITHIN ONE YEAR THAT IS BARRED BY THE STATUTE OF FRAUDS
Plaintiff does not and cannot dispute that a contract which by its terms is not to be
performed within one year is void unless itis in writing. (Opening Br. at 7-8 and citations
Defendants'
therein.) Nor does itdispute the multiple cases cited in Opp'n Br. which hold that an
alleged agreement to pay money in installments is an "agreement that is not to be performed
-6-
9 of 14
FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018
year,"
within one subject to the Statute of Frauds, when the installment payment obligation
exceeds one year. (Id. at 8 and cases cited therein). Rather than dispute this well-settled
precedent, Plaintiff's counsel posits a number of hypothetical ways Defendants allegedly could
have been performed within one year, none of which appear to comport with the terms of the
domain name agreement alleged, relies on case law that is distinguishable, and argues that itis
proper to avoid the Statute of Frauds by viewing its alleged agreement with Defendants as two
independent obligations, despite the fact that doing so would do violence to the terms of the
alleged agreement. Each of Plaintiff's arguments is unavailing.
First, while Plaintiff's counsel suggests a number of ways the alleged agreement could
have been performed within one year, nowhere does Plaintiff allege that any of the various
scenarios suggested by counsel were allowed under the terms of the domain name agreement
with the seller of the invest.com domain name. Significantly, the only factual allegation made by
Plaintiff regarding the terms of the domain name agreement appears in the Complaint, wherein
Plaintiff alleges that the final installment payment was due on February 1, 2013, more than one
year from the date of the alleged oral agreement. Although Plaintiff's counsel (and not Plaintiff)
argues that the payment obligation could have been accelerated and payment made prior to
February 1, 2013 (Plaintiff's Scenario 2), that itcould have assigned itspayment obligation prior
to February 1, 2013 (Plaintiff's Scenario 3) and that agreement allowed for early payment
(Plaintiff's Scenario 4) significantly and despite having the opportunity to replead, nowhere in
the pleadings or in the supplemental Perzow Aff. does Plaintiff actually allege that any of these
hypothetical scenarios was proper under the terms of the domain name agreement. Instead, the
only factual allegation made by Plaintiff regarding the domain name is that the final installment
parties'
payment was due on February 1, 2013, more than one year from the date of the alleged
-7-
10 of 14
FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018
oral agreement. Because Plaintiff alleges an oral agreement to pay money in installments, the last
of which payment obligation exceeded one year, and there is no allegation, letalone evidence
before this Court, that early payment or acceleration was allowed under the explicit terms of the
domain name agreement, Plaintiff's claim is barred by the Statute of Frauds. Pritsker v.
Soyferman, 275 A.D.2d 738, 738-39, 713 N.Y.S.2d 213, 213 (2d Dep't 2000) (where alleged
"loan"
oral argument required defendant to repay the at a rate of $2,000 per month and by its
terms could not be performed within one year, action to recover unpaid balance of alleged loan
was barred by Statute of Frauds); A. Aversa Brokerage, Inc. v. Honig Ins. Agency, Inc.,,249.
249
A.D.2d 345, 346, 671 N.Y.S.2d 135, 136 (2d Dep't 1998) (alleged oral agreement that required
balance of purchase price to be paid in 30 monthly installments could not be performed within
writing).3
one year and was void since itwas not in writing).
Nakamura v. Fujii, 253 A.D.2d 387, 677 N.Y.S.2d 113 (1st Dep't 1998), relied upon by
Plaintiff, does not compel any contrary conclusion. Indeed, although Plaintiff alleges that the
facts here are similar, Nakamura is distinguishable. Nakamura involved an action to enforce an
oral agreement to fund college tuition. On review, the First Department held that because nothing
tuition"
in the oral agreement "sets the duration of the plaintiff's obligation to pay the and
because there was an absence of any terms mandating payment at a specific time, the court could
not say that the agreement could not be performed within one year. Nakamura, 253 A.D.2d at
389. In contrast, here, pursuant to Plaintiff's own allegations, the terms of the domain name
agreement explicitly mandated payment of the final installment on February 1, 2013, more than
3 Counsel's 1"
hypothetical "Scenario suggests thatPlaintiffcould release Defendants of their
obligation
forpayment ofthe February 1, 2013 finalinstallment priorto the one-year mark. This scenariodoes not suggest that
the contractwas capable of being performed by Defendants within one year as required to avoid the Statuteof
Defendants'
Frauds, but ratherthat Plaintiff,
acting could
unilaterally, extinguish Defendants allegedpayment obligation.This is
circularreasoning, claiming that an alleged obligation to fundisenforceable as being outside the Statuteof Frauds
precisely because Plaintiffcould electnot to enforce it.
-8-
11 of 14
FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018
parties'
one year from the date of the alleged agreement. Therefore, assuming the facts alleged
by Plaintiff as true, the alleged agreement could not be performed within one year and the
alleged oral agreement is barred by the Statute of Frauds.
Finally, Plaintiff cannot, as it suggests, avoid the Statute of Frauds by severing the
alleged February 1, 2013 payment obligation from the remainder of the alleged oral agreement.
Although in some cases a party can sever impermissible portions of an oral agreement from
those that are permissible to avoid the Statute of Frauds, in order for a contract to be divisible,
consideration for the separate promises must be "capable of apportionment without doing
contract."
violence to the terms of the Dickenson v. Dickenson Agency, Inc., 127
,127 A.D.2d 983,
984, 512 N.Y.S.2d 952, 953 (4th Dep't 1987). That is not the case here. Here, Plaintiff alleges
Invest"
Defendants agreed to "become involved in and "gain access to potential deals and
Invest"
contracts arising from in exchange for leading a $5 million capital raise and, if necessary,
providing the funding to complete the domain name acquisition of Invest.com. Plaintiff further
alleges that the parties agreed that interest for the funding would be paid "in accordance with
rates." parties'
prevailing market Given the terms of the alleged agreement, itis not at all clear
that there was consideration for separate promises or even what the sum total of that
consideration was. Presumably, Defendants would not be given the same "access to potential
deals"
in exchange for a $300,000 investment that they would had they led a $5 million
investment. Given the indefiniteness of the alleged consideration, itwould be improper to
attempt to sever any impermissible portion of the alleged agreement in an attempt to avoid the
Statute of Frauds.
-9-
12 of 14
FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018
III. PLAINTIFF ALLEGES AN AGREEMENT FOR COMPENSATION
FOR SERVICES RENDERED IN NEGOTIATING A BUSINESS
OPPORTUNITY WHICH IS VOID PURSUANT TO THE STATUTE OF FRAUDS
Finally, even if the alleged agreement was capable of being performed within one year, it
appears from Plaintiff's vague and indefinite allegations that the alleged oral agreement is
nevertheless barred by the Statute of Frauds as an agreement to provide compensation for
services rendered in negotiating a business opportunity. As noted above and in paragraph 12 of
the Complaint, Plaintiff alleges that Defendants promised not just to provide "on-demand
funding"
in exchange for some rate of interest as Plaintiff suggests, but also to "lead a $5 million
Invest"
capital raise for (whatever that entailed) and that in exchange, Plaintiff invited
Invest"
Defendants to "become involved in and thereby gain "access to potential deals and
Invest"
contacts arising from (again, whatever that meant). (Complaint at ¶ 9.) Although the
alleged agreement to lead a capital raise is vague and indefinite and itis impossible to divine
exactly what services Plaintiff expected or anticipated Defendants would provide in connection
with the capital raise, itappears that Plaintiff alleges that Defendant agreed to provide some sort
of services to assist itin consummating itspurchase of the invest.com domain name and its
funding"
planned start up, Invest. Plaintiff's continued focus on the "on-demand aspect of the
parties' parties'
alleged agreement and itsassertion that the alleged agreement no way involved
rendered,"
"a contract to pay compensation for services completely ignores this aspect of the
parties' on-
alleged agreement. B
Preview
FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK HEATH GLOBAL, INC. Index No. 650502/2018 Plaintiff, -against- FARRELL FRANZONE, L.P. n/k/a FF FUND I,L.P., FARRELL FRANZONE INVESTMENT MANAGEMENT, LLC, n/k/a FF FUND MANAGEMENT, LLC and ANDREW FRANZONE, Defendants. DEFENDANTS' REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS MURRAY & DI BELLA LLP 15th 5 Penn Plaza, FlOOr New YOrk, New YOrk 10001 Tel. 212-725-2044 mjm@murraydibella.com Attorneys for Defendants FF Fund I,L.P., FF Fund Management, LLC and Andrew Franzone 1 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018 TABLEOF CONTENTS PRELIMINARY STATEMENT...................................................................................................................1 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ ARGUMENT................................................................................................................................................3 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ PARTIES' I. THE TERMS OF THE ALLEGED ORAL AGREEMENT ARE TOO VAGUE AND INDEFINITE TO CREATE A LEGALLY ENFORCEABLE CONTRACT ............................................................................................................3 3 II. PLAINTIFF ALLEGES AN ORAL AGREEMENT NOT TO BE COMPLETED WITHIN ONE YEAR THAT IS BARRED BY THE STATUTE OF FRAUDS ..............................................................................................................6 III. PLAINTIFF ALLEGES AN AGREEMENT FOR COMPENSATION FOR SERVICES RENDERED IN NEGOTIATING A BUSINESS OPPORTUNITY WHICH IS VOID PURSUANT TO THE STATUTE OF FRAUDS........................................................................................................................................10 ........................................................................................................................................ ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ CONCLUSION ..........................................................................................................................................11 11 . -1- 2 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018 TABLE OF AUTHORITIES Cases A. Aversa Brokerage, Inc. v. .Honig Honig Ins. Agency, Inc., 249 A.D.2d 345, 671 N.Y.S.2d 135 (2d Dep't 1998)................................................................................8 ................................................................................ Campbell v. Campbell, 213 A.D.2d 1027, 624 N.Y.S.2d 493 (4th Dep't ............................................................................. 1995).............................................................................6 Dickenson v.Dickenson Agency, Inc., 127 A.D.2d 983, 512 N.Y.S.2d 952 (4th Dep't 1987)...............................................................................9 ............................................................................... Nakamura v.Fujii, 253 A.D.2d 387, 677 N.Y.S.2d 113 (1st Dep't 1998)................................................................................8 Pearsall v.Alexander, 572 A.2d ~ 113 (D.C. ~ 6 ~ 1990)......................................................................................................................5, ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Pritsker v. Soyferman, 275 A.D.2d 738, 713 N.Y.S.2d 213 (2d Dep't 2000)................................................................................8 ................................................................................ Rosenbaum v.Premier Sydell, Ltd., 240 A.D.2d 556, 659 N.Y.S.2d 52 (2d Dep't .............................................................................. 6 1997)..............................................................................5, Rules CPLR 3211 1 ...................................................................................................................................................1 .. -11- 3 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018 Defendants Farrell Franzone, L.P. n/lda FF Fund I, L.P., Farrell Franzone Investment Management, LLC, n/lda FF Fund Management, LLC and Andrew Franzone (together "Defendants" "Defendants") respectfully submit this reply memorandum of law in support of their motion to ("Complaint" (" dismiss the complaint ("Complaint") filed by plaintiff Heath Global, Inc. ("Plaintiff") pursuant to CPLR 3211(a)(5) and CPLR 3211(a)(7), for both failure to state a cognizable cause of action and frauds.1 as barred by the statute of PRELIMINARY STATEMENT Plaintiff's singular claim for breach of contract rests on the vague allegation that Invest" Defendants agreed to "become involved in and "gain access to potential deals and Invest" "leading" contracts arising from in exchange for a $5 million capital raise and, if necessary, providing the funding to complete the domain name acquisition of Invest.com. Rather Defendants' than respond to Motion to Dismiss by attempting to clarify the vague and indefinite "terms" parties' of the alleged agreement (which are really more in the nature of concepts), Plaintiff attempts to avoid dismissal by focusing almost exclusively on those portions of the parties' alleged agreement that itdeems clear, attempting to amplify itspleadings by adding new allegations that are similarly vague and indefinite (if not contradictory), and relying on attorney parties' argumentation in place of factual allegations. Because itis impossible to divine what the Invest," understood the vague and indefinite terms "become involved in "access to potential deals," "lead" rates" a capital raise, and "prevailing market to mean (regardless of what Plaintiff parties' may have been thinking at the time), the alleged agreement is not capable of being enforced and this action should be dismissed. 1 Defendants' Capitalizedterms not otherwise defined herein have the meaning setforth in memorandum of (" law in support of theirMotion toDismiss the Complaint ("Opening Br.") orPlaintiff'smemorandum of law in Defendants' support of itsOpposition to Motion toDismiss ("Opp'n Br."). -1- 4 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018 Plaintiff's claim is also barred by the Statute of Frauds since pursuant to Plaintiff's very own allegations, the final installment obligation under the domain name agreement was not due parties' until February 1, 2013 and therefore, under no set of circumstances could the alleged agreement be performed within one year. Although Plaintiff's lawyer, in his Opp'n Br., posits a myriad of ways the alleged contract could allegedly have been performed within one year, and argues that the domain name agreement allowed such early payment, itis both significant and telling that there are zero alleged facts presented to this Court supporting that claim. Nowhere in Defendants' either the Complaint or the Perzow Aff. (submitted in response to Defendants motion to dismiss, precisely for the purpose of bolstering the sufficiency of Plaintiff's Complaint) does Plaintiff actually allege that acceleration or early payment was allowed under the domain name purchase agreement. In addition, Plaintiff cannot avoid the effect of the Statute of Frauds by dividing Defendants' performance obligations because consideration for the alleged separate promises is not capable of apportionment without doing violence to the terms of the contract. parties' Finally, since itappears that the parties alleged oral agreement was, at least in part, to compensate Defendants for Plaintiff in itspurchase of Invest.com -- a assisting consummating component of and interest in the new Invest business -- the alleged agreement is key opportunity also void since itis not in writing. While an agreement to provide on-demand funding may not trigger the Statute of Frauds, an agreement by which Defendants would "become involved in Invest" contacts" - - and receive "access to potential deals and whatever that means as raise" compensation for "leading a $5 million capital and thereby assisting Plaintiff to consummate their purchase of Invest.com, does trigger the statute and therefor provides an independent basis for dismissal. -2- 5 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018 ARGUMENT PARTIES' I. THE TERMS OF THE ALLEGED ORAL AGREEMENT ARE TOO VAGUE AND INDEFINITE TO CREATE A LEGALLY ENFORCEABLE CONTRACT Plaintiff does not dispute that "before the power of the law can be invoked to enforce a promise, itmust be sufficiently certain and specific so that what was promised can be ascertained." (Opening Br. at 4 and cases cited therein.) Nor does itdispute that "if an agreement contract." is not reasonably certain in its material terms, there can be no legally enforceable (Id. at 5.) Rather than dispute these basic tenets of contract law, Plaintiff attempts to avoid them, parties' ignoring those aspects of the alleged agreement that were left undefined, and instead "confirmatory" referring to alleged emails sent to third parties that were neither solicited nor responded to by Defendants, and arguing that this is a simple, oral, on-demand funding agreement, which Plaintiff likens to an agreement to split the proceeds of a winning lottery ticket. As Plaintiff's own allegations make clear, Plaintiff has alleged no ordinary or simple loan agreement, nor are the facts alleged at all similar to the lottery cases on which Plaintiff relies. parties' The sum total of the alleged oral agreement is set forth in paragraph 9 of the Complaint, as supplemented by paragraph 7 of the Perzow Aff. While Plaintiff repeatedly refers claim,2 to alleged confirmatory emails to bolster itsclaim, itdoes not dispute that silence upon receipt Defendants' of an email does not equal acceptance and has failed to present any evidence of acceptance. Because this is an action to enforce an alleged oral agreement, the self-serving emails are in no way relevant to the question of whether the parties entered into an enforceable 2 Which confirm isalmost comical, since assumed true,the emails actually that no agreement was reached and thatthe parties merely discussed that they would have a discussion about thepurported transaction.Complaint (" doesn' at ¶11 ("As discussed,I'd like to discuss thealternativeof you helping us outfor the feb 1st payment ifJim doesn't end up playing ball.")(emphasis added). -3- 6 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018 oral agreement. Just as Defendants ignored these emails when they were forwarded to them, so too should they be ignored now. Disregarding the emails and assuming the allegations set forth in paragraph 9 of the Complaint and paragraph 7 of the Perzow Aff. as true, Plaintiff alleges that Defendants orally promised "to become involved in Invest, which would give Defendants access to potential deals Invest" and contacts arising from in exchange for agreeing to "lead a $5 million capital raise for and - if and as - to provide the needed to complete the domain name Invest, necessary funding acquisition." Plaintiff further alleges that the parties also agreed that if "Defendants provided rates." such funding as agreed, itwould be repaid in accordance with prevailing market While the amount of funding that Plaintiff sought to receive from the alleged agreement may be clear, the consideration due to Defendants was not. Indeed, Plaintiff only feebly attempts to define Invest" what the parties meant by the vague terms "involved in and "access to potential deals and Invest" - contacts arising from saying only that access meant "early and exclusive access to contacts" potential deals and and claiming that the terms are themselves sufficiently definite. Defendants' (Opp'n Br. at 6.) They are not. As noted in Opening Br., these terms raise more questions then answer - questions which Plaintiff cannot and does not even attempt to they "clarification" answer. In fact, the of the terms presented by Plaintiff appears more to vary the deals" Complaint's allegations than support them. For example, how does "access to potential access" alleged in the Complaint equate to the "exclusive referenced in Plaintiff's Opp'n Brief. (Compare Complaint at ¶ 9 with Opp'n Br. at 6.)Exclusivity is a radically different entitlement than mere access, and yet Plaintiff alleges both, which is inconsistent. Further, what does the "lead" vague term a capital raise mean? Would Defendants be required to contribute their own capital, or just secure third parties to invest? Would Defendants be tasked with responsibilities -4- 7 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018 typically associated with investment banks under proposed offerings? Who would Defendants be — "leader," leading? --banks? banks? private equity funds? individuals? Would Defendants, as the get preferred returns, or points or a commission on the amounts raised? It isdifficult to imagine allegations more vague and indefinite than those presented by Plaintiff in the Complaint. Also vague is Plaintiff's new allegation that Defendants were to receive interest "at rates." prevailing market (Perzow Aff. ¶ 7.) Prevailing for what? Venture capital deals? Secured lending? And what was the prevailing rate for any type of deal? Was ittied to Prime? LIBOR? Was there any premium attached to those rates? Even giving Plaintiff the benefit of the doubt rates" and accepting as true that there was an agreement to pay Defendants "prevailing market (which agreement, tellingly, was never mentioned in the Complaint), as opposed to additional terms that Plaintiff simply inserted after the fact in order to avoid dismissal, the fact of the matter is that while Plaintiff may have its own idea of what prevailing rates meant, Defendants do not and the term is surely not sufficiently definite to allow "a proper remedy to be fashioned upon breach" or to ensure the Court that the parties were "truly in agreement with respect to all terms" material as required under well settled law. (Opening Br. at 4 and cases cited therein.) Invest." The same thing holds true for phrases such as being "involved with As such, the alleged oral agreement is not enforceable and this action should be dismissed. Rosenbaum v. Premier Sydell, Ltd., 240 A.D.2d 556, 659 N.Y.S.2d 52 (2d Dep't 1997). parties' Disregarding the numerous vague terms contained in the alleged oral agreement, Plaintiff attempts to analogize this action to those where courts have upheld oral agreements to split the proceeds of lottery tickets, finding them sufficiently definite to be enforceable. The facts of the lottery cases relied upon by Plaintiff are in no way analogous. In Pearsall v. Alexander, 572 A.2d 113 (D.C. 1990), the District of Columbia case relied on heavily by Plaintiff (and -5- 8 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018 relied upon by the court in Campbell v. Campbell, 213 A.D.2d 1027, 624 N.Y.S.2d 493 (4th Dep't 1995) (the other lottery case cited by Plaintiff)), the court noted that the record therein supported the court's finding that an agreement existed between the parties to share equally in the proceeds of the winning ticket. Pearsall, 572 A.2d at 117. Significantly, in neither Pearsall parties' nor Campbell did a party even raise the argument that one or more of the terms of the alleged oral agreement was leftindefinite or undefined. That is not the case here, where multiple parties' terms in the alleged agreement are vague and undefined. As such, neither Pearsall nor Campbell have any bearing on this action. Finally, although Plaintiff takes pains to attempt to distinguish Rosenbaum v. Premier Sydell, Ltd., its holding compels dismissal. Here and in Rosenbaum, essential terms of the parties' alleged agreement were left undefined. 240 A.D.2d at 557. Just as there was no methodology in Rosenbaum for determining the amount of the alleged ownership interest that Rosenbaum claimed he was entitled, here there is no methodology for determining exactly the Defendants' "involvement" level of supposed in Invest, what "access to potential deals and contacts" parties' rates." entailed, or what the meant by the term "prevailing market While the parties may have known how much funding was required to complete the domain name acquisition, because these other essential terms were left vague and undefined, there can be no legally enforceable agreement. As in Rosenbaum, Plaintiff's claim should be dismissed. II. PLAINTIFF ALLEGES AN ORAL AGREEMENT NOT TO BE COMPLETED WITHIN ONE YEAR THAT IS BARRED BY THE STATUTE OF FRAUDS Plaintiff does not and cannot dispute that a contract which by its terms is not to be performed within one year is void unless itis in writing. (Opening Br. at 7-8 and citations Defendants' therein.) Nor does itdispute the multiple cases cited in Opp'n Br. which hold that an alleged agreement to pay money in installments is an "agreement that is not to be performed -6- 9 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018 year," within one subject to the Statute of Frauds, when the installment payment obligation exceeds one year. (Id. at 8 and cases cited therein). Rather than dispute this well-settled precedent, Plaintiff's counsel posits a number of hypothetical ways Defendants allegedly could have been performed within one year, none of which appear to comport with the terms of the domain name agreement alleged, relies on case law that is distinguishable, and argues that itis proper to avoid the Statute of Frauds by viewing its alleged agreement with Defendants as two independent obligations, despite the fact that doing so would do violence to the terms of the alleged agreement. Each of Plaintiff's arguments is unavailing. First, while Plaintiff's counsel suggests a number of ways the alleged agreement could have been performed within one year, nowhere does Plaintiff allege that any of the various scenarios suggested by counsel were allowed under the terms of the domain name agreement with the seller of the invest.com domain name. Significantly, the only factual allegation made by Plaintiff regarding the terms of the domain name agreement appears in the Complaint, wherein Plaintiff alleges that the final installment payment was due on February 1, 2013, more than one year from the date of the alleged oral agreement. Although Plaintiff's counsel (and not Plaintiff) argues that the payment obligation could have been accelerated and payment made prior to February 1, 2013 (Plaintiff's Scenario 2), that itcould have assigned itspayment obligation prior to February 1, 2013 (Plaintiff's Scenario 3) and that agreement allowed for early payment (Plaintiff's Scenario 4) significantly and despite having the opportunity to replead, nowhere in the pleadings or in the supplemental Perzow Aff. does Plaintiff actually allege that any of these hypothetical scenarios was proper under the terms of the domain name agreement. Instead, the only factual allegation made by Plaintiff regarding the domain name is that the final installment parties' payment was due on February 1, 2013, more than one year from the date of the alleged -7- 10 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018 oral agreement. Because Plaintiff alleges an oral agreement to pay money in installments, the last of which payment obligation exceeded one year, and there is no allegation, letalone evidence before this Court, that early payment or acceleration was allowed under the explicit terms of the domain name agreement, Plaintiff's claim is barred by the Statute of Frauds. Pritsker v. Soyferman, 275 A.D.2d 738, 738-39, 713 N.Y.S.2d 213, 213 (2d Dep't 2000) (where alleged "loan" oral argument required defendant to repay the at a rate of $2,000 per month and by its terms could not be performed within one year, action to recover unpaid balance of alleged loan was barred by Statute of Frauds); A. Aversa Brokerage, Inc. v. Honig Ins. Agency, Inc.,,249. 249 A.D.2d 345, 346, 671 N.Y.S.2d 135, 136 (2d Dep't 1998) (alleged oral agreement that required balance of purchase price to be paid in 30 monthly installments could not be performed within writing).3 one year and was void since itwas not in writing). Nakamura v. Fujii, 253 A.D.2d 387, 677 N.Y.S.2d 113 (1st Dep't 1998), relied upon by Plaintiff, does not compel any contrary conclusion. Indeed, although Plaintiff alleges that the facts here are similar, Nakamura is distinguishable. Nakamura involved an action to enforce an oral agreement to fund college tuition. On review, the First Department held that because nothing tuition" in the oral agreement "sets the duration of the plaintiff's obligation to pay the and because there was an absence of any terms mandating payment at a specific time, the court could not say that the agreement could not be performed within one year. Nakamura, 253 A.D.2d at 389. In contrast, here, pursuant to Plaintiff's own allegations, the terms of the domain name agreement explicitly mandated payment of the final installment on February 1, 2013, more than 3 Counsel's 1" hypothetical "Scenario suggests thatPlaintiffcould release Defendants of their obligation forpayment ofthe February 1, 2013 finalinstallment priorto the one-year mark. This scenariodoes not suggest that the contractwas capable of being performed by Defendants within one year as required to avoid the Statuteof Defendants' Frauds, but ratherthat Plaintiff, acting could unilaterally, extinguish Defendants allegedpayment obligation.This is circularreasoning, claiming that an alleged obligation to fundisenforceable as being outside the Statuteof Frauds precisely because Plaintiffcould electnot to enforce it. -8- 11 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018 parties' one year from the date of the alleged agreement. Therefore, assuming the facts alleged by Plaintiff as true, the alleged agreement could not be performed within one year and the alleged oral agreement is barred by the Statute of Frauds. Finally, Plaintiff cannot, as it suggests, avoid the Statute of Frauds by severing the alleged February 1, 2013 payment obligation from the remainder of the alleged oral agreement. Although in some cases a party can sever impermissible portions of an oral agreement from those that are permissible to avoid the Statute of Frauds, in order for a contract to be divisible, consideration for the separate promises must be "capable of apportionment without doing contract." violence to the terms of the Dickenson v. Dickenson Agency, Inc., 127 ,127 A.D.2d 983, 984, 512 N.Y.S.2d 952, 953 (4th Dep't 1987). That is not the case here. Here, Plaintiff alleges Invest" Defendants agreed to "become involved in and "gain access to potential deals and Invest" contracts arising from in exchange for leading a $5 million capital raise and, if necessary, providing the funding to complete the domain name acquisition of Invest.com. Plaintiff further alleges that the parties agreed that interest for the funding would be paid "in accordance with rates." parties' prevailing market Given the terms of the alleged agreement, itis not at all clear that there was consideration for separate promises or even what the sum total of that consideration was. Presumably, Defendants would not be given the same "access to potential deals" in exchange for a $300,000 investment that they would had they led a $5 million investment. Given the indefiniteness of the alleged consideration, itwould be improper to attempt to sever any impermissible portion of the alleged agreement in an attempt to avoid the Statute of Frauds. -9- 12 of 14 FILED: NEW YORK COUNTY CLERK 04/25/2018 11:58 AM INDEX NO. 650502/2018 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/25/2018 III. PLAINTIFF ALLEGES AN AGREEMENT FOR COMPENSATION FOR SERVICES RENDERED IN NEGOTIATING A BUSINESS OPPORTUNITY WHICH IS VOID PURSUANT TO THE STATUTE OF FRAUDS Finally, even if the alleged agreement was capable of being performed within one year, it appears from Plaintiff's vague and indefinite allegations that the alleged oral agreement is nevertheless barred by the Statute of Frauds as an agreement to provide compensation for services rendered in negotiating a business opportunity. As noted above and in paragraph 12 of the Complaint, Plaintiff alleges that Defendants promised not just to provide "on-demand funding" in exchange for some rate of interest as Plaintiff suggests, but also to "lead a $5 million Invest" capital raise for (whatever that entailed) and that in exchange, Plaintiff invited Invest" Defendants to "become involved in and thereby gain "access to potential deals and Invest" contacts arising from (again, whatever that meant). (Complaint at ¶ 9.) Although the alleged agreement to lead a capital raise is vague and indefinite and itis impossible to divine exactly what services Plaintiff expected or anticipated Defendants would provide in connection with the capital raise, itappears that Plaintiff alleges that Defendant agreed to provide some sort of services to assist itin consummating itspurchase of the invest.com domain name and its funding" planned start up, Invest. Plaintiff's continued focus on the "on-demand aspect of the parties' parties' alleged agreement and itsassertion that the alleged agreement no way involved rendered," "a contract to pay compensation for services completely ignores this aspect of the parties' on- alleged agreement. B