Preview
FILED: NEW YORK COUNTY CLERK 10/13/2017 11:39 AM INDEX NO. 154220/2017
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 10/13/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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FREELINC TECHNOLOGIES, INC.
Plaintiff, Index No. 601411/2015
-against-
RAISOL ADVISORY LLC, RAISOL LLC, RAISOL
CAPITAL LLC, RAISOL FREEDOM LLC, RAISOL
FREEDOM MANAGER LLC, CHINTAN PANCHAL,
ESQ., RASTEGAR PANCHAL, MITESH P. LAKHANI,
individually and d/b/a Raisol Advisory or Raisol Advisory
LLC, JAMES CHRISTOPHER SANBORN, individually
and d/b/a Raisol Advisory or Raisol Advisory LLC,
KRISTIN A. EMY, individually and d/b/a Raisol Advisory
or Raisol Advisory LLC, and RAISOL ADVISORY,
Defendants.
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SUPPLEMENTAL AFFIRMATION OF EVAN W. BOLLA IN SUPPORT OF
DEFENDANT RAISOL ADVISORY LLC’S ORDER TO SHOW CAUSE
REQUESTING ADVANCEMENT OF REASONABLE ATTORNEY FEES AND
EXPENSES
I, EVAN W. BOLLA, an attorney duly admitted to practice in the Courts of the
State of New York, affirm under penalty of perjury that:
1. I am a Partner with the law firm of Harris, St. Laurent & Chaudhry, LLP,
(“HSC”), counsel for Raisol Advisory LLC, Raisol LLC, Raisol Capital, LLC, Raisol
Freedom LLC, Raisol Freedom Manager LLC, Mitesh P. Lakhani, James Christopher
Sanborn, and Kristin A. Emy (collectively the “Raisol Defendants”) in this action. I am a
member in good standing of the New York State Bar, and am fully familiar with the facts
and circumstances set forth below.
2. I respectfully submit this Affirmation to supplement the papers previously
submitted in support of the application for advancement by Raisol Advisory LLC in order
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NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 10/13/2017
to address a limited issue that came to our attention after those papers were submitted.
3. In brief, we have learned that Raisol Advisory, the entity identified in the
Amended & Restated Consulting Agreement, dated March 16, 2016 (the “Consulting
Agreement”), which is attached to my previously submitted affirmation as Exhibit 1, is not
an incorporated entity. While this matter does not alter the substantive issues related to that
pending motion, as officers of the Court we believe it is proper to clarify the record
regarding Raisol Advisory’s corporate status.
4. On October 3, 2017, the Plaintiff, Freelinc Technologies, Inc. (“Freelinc”)
filed its complaint in this action (the “Complaint”), Exhibit 1 hereto, after the parties had
agreed by stipulation that Freelinc could amend its pleading to bring claims against new
parties. As set forth in the Complaint, Freelinc brought a breach of contract claim against
Raisol Advisory related to purported breaches of the Consulting Agreement. It brought an
identical claim for breach of the Consulting Agreement against Raisol Capital and three
individual defendants, none of which is a signatory to the Agreement. In explaining these
duplicative causes of action, Freelinc stated that “Freelinc was unaware that Raisol
Advisory was different from Raisol Capital.” (Complaint ¶ 21.)
5. Subsequently, we investigated this situation and determined that Raisol
Advisory was not an incorporated entity. The Raisol Defendants believe this is due to a
mutual mistake, as the entity that should have been listed as the party to the Consulting
Agreement is Raisol Capital, not Raisol Advisory. This is supported by the course of
conduct between the parties at issue, as they have during the course of the relationship
acted as if Raisol Capital was the signatory to the Consulting Agreement. For example,
Raisol Capital issued invoices under its name to Freelinc for services rendered pursuant to
the Consulting Agreement, and Freelinc trumpeted the consulting services of Raisol
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Capital in communications with potential investors and shareholders. Attached hereto as
Exhibits 2-4 are true and correct copies of: an invoice for consulting services from “Raisol
Capital” (Ex. 2), excerpts from a Freelinc investor memorandum showing “Freelinc
engaged Raisol Capital” and discussing Raisol Capital’s roll (Ex. 3), and a Freelinc
shareholder letter in which Freelinc’s CEO states “I would to take this opportunity to thank
the team at Raisol Capital for the extraordinary work done helping us get to this point.
Thank you” at page 3 (Ex. 4).
6. While we proposed to Freelinc’s counsel that the parties agree that Raisol
Advisory was simply the wrong name on the Consulting Agreement, and that the parties
stipulate to that fact in order to streamline this matter, that proposal was rejected by
Freelinc.
7. Accordingly, it appears that Freelinc intends to proceed against Raisol
Advisory either under a theory of corporation by estoppel or that Raisol Advisory is three
individuals doing business as Raisol Advisory, while at the same time arguing that Raisol
Capital is the true signatory to the Consulting Agreement. We will continue to represent
Raisol Advisory under Freelinc’s alternative and competing theories of the case until such
time as this Court makes a determination. We will also represent Raisol Capital, whose
interests are fully aligned with those of Raisol Advisory as the allegations against them are
identical.
8. This situation does impact the current application for advancement.
Irrespective of which entity is the appropriate Raisol signatory to the Consulting
Agreement, the parties to that Agreement specifically agreed that the entity was entitled to
advancement of its legal fees related to services it provided under the Consulting
Agreement. If the Court grants the pending motion, the fees advanced by Freelinc will be
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used exclusively to defend Raisol Advisory/Raisol Capital against Freelinc’s breach of
contract claims. Likewise, Freelinc has certain contractual rights under the Consulting
Agreement related to advancement, indemnification, and fee-shifting that it may attempt to
assert against Raisol Advisory/Raisol Capital at the conclusion of this matter.
Dated: October 13, 2017
New York, NY
Respectfully submitted,
_________________________________________
HARRIS, ST. LAURENT & CHAUDHRY, LLP
Evan W. Bolla, Esq.
40 Wall Street, 53rd Floor
New York, NY 10006
Attorneys for the Raisol Defendants
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Preview
FILED: NEW YORK COUNTY CLERK 10/13/2017 11:39 AM INDEX NO. 154220/2017 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 10/13/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------------X FREELINC TECHNOLOGIES, INC. Plaintiff, Index No. 601411/2015 -against- RAISOL ADVISORY LLC, RAISOL LLC, RAISOL CAPITAL LLC, RAISOL FREEDOM LLC, RAISOL FREEDOM MANAGER LLC, CHINTAN PANCHAL, ESQ., RASTEGAR PANCHAL, MITESH P. LAKHANI, individually and d/b/a Raisol Advisory or Raisol Advisory LLC, JAMES CHRISTOPHER SANBORN, individually and d/b/a Raisol Advisory or Raisol Advisory LLC, KRISTIN A. EMY, individually and d/b/a Raisol Advisory or Raisol Advisory LLC, and RAISOL ADVISORY, Defendants. --------------------------------------------------------------------------X SUPPLEMENTAL AFFIRMATION OF EVAN W. BOLLA IN SUPPORT OF DEFENDANT RAISOL ADVISORY LLC’S ORDER TO SHOW CAUSE REQUESTING ADVANCEMENT OF REASONABLE ATTORNEY FEES AND EXPENSES I, EVAN W. BOLLA, an attorney duly admitted to practice in the Courts of the State of New York, affirm under penalty of perjury that: 1. I am a Partner with the law firm of Harris, St. Laurent & Chaudhry, LLP, (“HSC”), counsel for Raisol Advisory LLC, Raisol LLC, Raisol Capital, LLC, Raisol Freedom LLC, Raisol Freedom Manager LLC, Mitesh P. Lakhani, James Christopher Sanborn, and Kristin A. Emy (collectively the “Raisol Defendants”) in this action. I am a member in good standing of the New York State Bar, and am fully familiar with the facts and circumstances set forth below. 2. I respectfully submit this Affirmation to supplement the papers previously submitted in support of the application for advancement by Raisol Advisory LLC in order 1 1 of 4 FILED: NEW YORK COUNTY CLERK 10/13/2017 11:39 AM INDEX NO. 154220/2017 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 10/13/2017 to address a limited issue that came to our attention after those papers were submitted. 3. In brief, we have learned that Raisol Advisory, the entity identified in the Amended & Restated Consulting Agreement, dated March 16, 2016 (the “Consulting Agreement”), which is attached to my previously submitted affirmation as Exhibit 1, is not an incorporated entity. While this matter does not alter the substantive issues related to that pending motion, as officers of the Court we believe it is proper to clarify the record regarding Raisol Advisory’s corporate status. 4. On October 3, 2017, the Plaintiff, Freelinc Technologies, Inc. (“Freelinc”) filed its complaint in this action (the “Complaint”), Exhibit 1 hereto, after the parties had agreed by stipulation that Freelinc could amend its pleading to bring claims against new parties. As set forth in the Complaint, Freelinc brought a breach of contract claim against Raisol Advisory related to purported breaches of the Consulting Agreement. It brought an identical claim for breach of the Consulting Agreement against Raisol Capital and three individual defendants, none of which is a signatory to the Agreement. In explaining these duplicative causes of action, Freelinc stated that “Freelinc was unaware that Raisol Advisory was different from Raisol Capital.” (Complaint ¶ 21.) 5. Subsequently, we investigated this situation and determined that Raisol Advisory was not an incorporated entity. The Raisol Defendants believe this is due to a mutual mistake, as the entity that should have been listed as the party to the Consulting Agreement is Raisol Capital, not Raisol Advisory. This is supported by the course of conduct between the parties at issue, as they have during the course of the relationship acted as if Raisol Capital was the signatory to the Consulting Agreement. For example, Raisol Capital issued invoices under its name to Freelinc for services rendered pursuant to the Consulting Agreement, and Freelinc trumpeted the consulting services of Raisol 2 2 of 4 FILED: NEW YORK COUNTY CLERK 10/13/2017 11:39 AM INDEX NO. 154220/2017 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 10/13/2017 Capital in communications with potential investors and shareholders. Attached hereto as Exhibits 2-4 are true and correct copies of: an invoice for consulting services from “Raisol Capital” (Ex. 2), excerpts from a Freelinc investor memorandum showing “Freelinc engaged Raisol Capital” and discussing Raisol Capital’s roll (Ex. 3), and a Freelinc shareholder letter in which Freelinc’s CEO states “I would to take this opportunity to thank the team at Raisol Capital for the extraordinary work done helping us get to this point. Thank you” at page 3 (Ex. 4). 6. While we proposed to Freelinc’s counsel that the parties agree that Raisol Advisory was simply the wrong name on the Consulting Agreement, and that the parties stipulate to that fact in order to streamline this matter, that proposal was rejected by Freelinc. 7. Accordingly, it appears that Freelinc intends to proceed against Raisol Advisory either under a theory of corporation by estoppel or that Raisol Advisory is three individuals doing business as Raisol Advisory, while at the same time arguing that Raisol Capital is the true signatory to the Consulting Agreement. We will continue to represent Raisol Advisory under Freelinc’s alternative and competing theories of the case until such time as this Court makes a determination. We will also represent Raisol Capital, whose interests are fully aligned with those of Raisol Advisory as the allegations against them are identical. 8. This situation does impact the current application for advancement. Irrespective of which entity is the appropriate Raisol signatory to the Consulting Agreement, the parties to that Agreement specifically agreed that the entity was entitled to advancement of its legal fees related to services it provided under the Consulting Agreement. If the Court grants the pending motion, the fees advanced by Freelinc will be 3 3 of 4 FILED: NEW YORK COUNTY CLERK 10/13/2017 11:39 AM INDEX NO. 154220/2017 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 10/13/2017 used exclusively to defend Raisol Advisory/Raisol Capital against Freelinc’s breach of contract claims. Likewise, Freelinc has certain contractual rights under the Consulting Agreement related to advancement, indemnification, and fee-shifting that it may attempt to assert against Raisol Advisory/Raisol Capital at the conclusion of this matter. Dated: October 13, 2017 New York, NY Respectfully submitted, _________________________________________ HARRIS, ST. LAURENT & CHAUDHRY, LLP Evan W. Bolla, Esq. 40 Wall Street, 53rd Floor New York, NY 10006 Attorneys for the Raisol Defendants 4 4 of 4