Preview
l DILLINGHAM & MURPHY, LLP
WILLIAM F. MURPHY, ESQ. (SBN 82482)
2 CYNTHIA C. CHEUNG, ESQ. (SBN 320767)
60 l Montgomery Street, Suite 1900
3 San Francisco, California 94111
Telephone: (415) 397-2700
4 Facsimile: (415) 397-3300
Email: wfm@djJlinghammurphy.com
5 ccc@dillin~hammurphy.com
6 FROST BOWN TODD
ALI RAZZAGHI, ESQ. (Pro Hae Vice Pending)
7 301 East Fourth Street, Suite 3300 6/19/2020
Cincinnati, OH 45202
8 Telephone: (513) 651-6800
Facsimile: (513) 651-6981
9 Email: arazzaghi@fbtlaw.com
10 Attorneys for Defendants-Cross-Complainants
Leamship Corporation and Leamship Networks GmbH
11
12 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
6/22/2020
13 COUNTY OF SAN MATEO
14
SKYLINE VENTURE PARTNERS LLC, a ) No: 19-CIV-07663
15 Delaware limited liability corporation, )
)
16 Plaintiff, )
) CROSS-COMPLAINT OF
17 v. ) DEFENDANTS LEARNSHIP
) CORPORATION AND LEARNSHIP
18 LEARNSHIP CORPORATION, a Delaware ) NETWORKS GMBH
corporation; LEARNSHIP NETWORKS )
19 GmbH, a foreign corporation; and DOES 1 )
through 50, inclusive, )
20 )
Defendants. )
21
---------------)
)
22 LEARNSHIP CORPORATION, a Delaware )
corporation; LEARNSHIP GmbH, a foreign )
23 corporation, )
)
24 Cross-Complainants, )
)
25 v. )
)
26 SKYLINE VENTURE PARTNERS LLC, a )
Delaware limited liability corporation and )
27 ROES 1 through 25, inclusive, )
)
28 Cross-Defendants. )
Page I- Case. No. 19-CIV-07663
Defendants-Cross-Complainants Leamship Corporation and Leamship Networks GmbH's Cross-Complaint
Defendants and Cross-Complainants Learnship Corporation ("Learnship Corp.") and
2 Learnship Networks GmbH ("Leamship Networks," collectively with Learnship Corp., "Cross-
3 Complainants") hereby state their Cross-Complaint against Plaintiff and Cross-Defendant Skyline
4 Venture Partners, LLC ("Cross-Defendant" or "Skyline") as follows:
5 PARTIES
6 1. Leamship Corp. is a corporation formed under the laws of the State of Delaware with
7 its principal place of business in Chicago, Illinois. Leamship Corp. is registered to do business in
8 California.
9 2. Learnship Networks is an entity formed under the laws of Germany with its principal
lO place of business in Cologne, Germany.
11 3. Upon information and belief, Skyline is a Delaware limited liability corporation with
12 its principal place of business in Redwood City, San Mateo County, California. Cross-Complainants
13 lack knowledge of the true residence of Skyline's principals.
14 4. Upon information and belief, Skyline was formed in approximately 2016 by and was
15 at all relevant times controlled by Karine Allouche-Salanon and Julien Salanon, its majority
16 shareholders.
17 5. Cross-Complainants do not currently know the true names of ROES l through 25,
18 inclusive, and therefore sues them by those fictitious names. Cross-Complainants are informed and
19 believe that each of the ROE defendants was responsible in some manner for the occurrences and
20 harm alleged in this Cross-Complaint.
21 GENERAL ALLEGATIONS
22 6. Cross-complainants incorporate by reference all of their preceding allegations as
23 though fully rewritten herein.
24 7. Upon information and belief, Skyline acquired all the shares of the company
25 GlobalEnglish Corporation ("GlobalEnglish") on or around November 10, 2016. Thereafter, Skyline
26 sold some of its ownership interest in GlobalEnglish to various minority shareholders.
27
28
Page 2 - Case. No. 19-CIV-07663
Defendants- Cross-Complainants Learnship Corporation and Learnship Networks GmbH's Cross-Complaint
8. GlobalEnglish is a technology and software services company that offers online
2 English learning solutions to companies and individuals around the world to improve their use of the
3 English language in business and facilitate effective communication.
4 9. In or about 2018, Leamship Networks and Leamship Corp. approached GlobalEnglish
5 and Skyline with an interest in acquiring GlobalEnglish.
6 After a series of negotiations, Leamship Corp. offered a cash consideration of $1
7 million (to be paid in two installments) and an equity consideration to purchase GlobalEnglish from
8 Skyline and its minority shareholders.
9 11. Skyline and the minority shareholders accepted the offer and the parties reduced the
10 terms of their agreement to writing in a Stock Purchase Agreement ("SPA").
11 12. The parties executed the SPA on or about March 28, 2019 and the transaction
12 officially closed on or about April 8, 2019.
13 13. Leamship Corp. now owns all the shares of GlobalEnglish.
14 14. Leamship Networks served as a guarantor of Learnship Corp. 's obligations under the
15 SPA.
16 15. In the process of negotiating the transaction and entering into the SPA, Skyline
17 provided financial information concerning GlobalEnglish to Learnship Corp. and its representatives.
18 16. The SPA defines the term "Buyer" as Leamship Corp. and the term "Sellers" as
19 including Skyline and various other minority shareholders of GlobalEnglish. The SPA also defines
20 GlobalEnglish and its subsidiaries as the "Target Group" and each company in that Target Group as
21 a "Target Group Company."
22 17. Among other provisions, Section 1.04 of the SPA, titled "Set-Off," states: "Buyer shall
23 have the right to withhold and set off against the Purchase Price (a) the amount of any Losses (as
24 defined in Section 7.03) to which any Buyer Indemnitee (including, under Section 9.01, Learnship
25 Corp., its affiliates, GlobalEnglish, and their representatives] may be entitled under ARTICLE IX of
26 this Agreement or any other agreements, instruments, and documents required to be delivered in
27 connection with this Agreement or at the Closing ...."
28
Page 3 - Case. No. 19-CIV-07663
Defendants- Cross-Complainants Leamship Corporation and Leamship Networks GmbH 's Cross-Complaint
18. Section 7 .03 of the SPA defines "Losses" as "any loss, damage, liability, deficiency,
2 Action, judgment, interest, award, penalty, fine, cost or expense of whatever kind ... including
3 reasonable attorneys' fees and the cost of enforcing any right to indemnification under this Agreement
4 "
5 19. In Section 4.05 of the SPA, Skyline made various representations and warranties to
6 Leamship Corp., including that complete copies of the financial statements of each Target Group
7 Company for the fiscal years ending December 31, 2017 and December 31, 2018 had been delivered
8 to Learnship Corp.; that all these financial statements had "been prepared in accordance with GAAP
9 applied on a consistent basis throughout the period involved"; that the financial statements had "been
l0 prepared in accordance with local accounting principles applied on a consistent basis" during the
11 relevant periods (i.e., 2017 and 2018); and that all these financial statements were "based on the books
12 and records of [Global English and its subsidiaries], and fairly present each Target Group Company's
13 financial condition as of the respective dates they were prepared and the results of the operations of
14 the Target Group Company for the periods indicated."
15 20. In Section 4.07 of the SPA, Skyline made additional representations and warranties to
16 Learnship Corp., including that: "No Target Group Company has liabilities, obligations or
17 commitments of any nature whatsoever, whether asserted, known, absolute, accrued, matured or
18 otherwise ("Liabilities"), except (a) those set forth in Section 4.07 of the Disclosure Schedules; (b)
19 those which are adequately reflected or reserved against in the Balance Sheet [of GlobalEnglish] as
20 of the Balance Sheet Date [defined in the SPA as December 31, 2018]; and (c) those which have been
21 incurred in the ordinary course of business consistent with past practice since the Balance Sheet Date
22 and which are not, individually or in the aggregate, material in amount."
23 21. Section 4.07 of the Disclosure Schedules lists GlobalEnglish's "Undisclosed
24 Liabilities" as ''None." Thus, in Section 4.07 of the SPA, Skyline represented that GlobalEnglish and
25 its subsidiaries had no liabilities other than ( 1) the liabilities shown or reserved against in
26 GlobalEnglish's balance sheet as of December 3 I, 2018 and (2) liabilities incurred in the ordinary
27 course of business after December 31 , 2018 and immaterial in amount, either individually or in the
28 aggregate.
Page 4 - Case. No. 19-CIV-07663
Defendants- Cross-Complainants Leamship Corporation and Leamship Networks GrnbH's Cross-Complaint
22. In Section 7.03 of the SPA, Skyline promised to: "indemnify [GlobalEnglish,
2 Leamship Corp.] and each Buyer Indemnitee and hold them harmless from and against:
3 (a) "any .. . Losses ... attributable to any breach of or inaccuracy m any
4 representation or warranty made in Section 4.17," which included that "(a]ll
5 Taxes [and related interest, penalties, etc.] due and owing by {GlobalEnglish and
6 its subsidiaries] (whether or not shown on any Tax Return) have been timely
7 paid";
8 (b) "any Loss attributable to any breach or violation of, or failure to fully perform,
9 any covenant, agreement, undertaking, or obligation in ARTICLE VII" relating
10 to tax matters;
11 (c) "all unaccrued Taxes of any Target Group Company [i.e., Global English and its
12 subsidiaries] or relating to the business of' GlobalEnglish and its subsidiaries
13 prior to and as of the closing date; and
14 (d) "any and all unaccrued Taxes of any Person imposed on [GlobalEnglish or its
15 subsidiaries] arising under the principles of transferee or successor liability or by
16 contract, relating to an event or transaction occurring before the Closing Date."
17 Further, Skyline covenanted to reimburse Learnship Corp. for these taxes,
18 penalties, or obligations, "together with any out-of-pocket fees and expenses
19 (including attorneys' and accountants' fees) incurred in connection therewith. . .
20 within ten ( l 0) business days after payment of such unaccrued Taxes by Buyer
21 or (GlobalEnglish]."
22 23. Finally, Section 9.01 of the SPA, titled "Indemnification by Sellers," states: "each of
23 the Sellers, severally and not jointly, shall indemnify and defend each of Buyer and its Affiliates
24 (including [GlobalEnglish]) and their respective Representatives (collectively the ' 'Buyer
25 lndemnitees") against, and shall hold each of them harmless from and against, and shall pay and
26 reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, Buyer
27 lndemnitees based upon, arising out of, with respect to, or by reason of: ( a) any breach of any of the
28 representations or warranties of Sellers or the Company contained in this Agreement or the other
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Defendants-Cross-Complainants Leamship Corporation and Leamship Networks GmbH's Cross-Complaint
Transaction Documents; or (b) any breach or non-fulfillment of any covenant, agreement, or
2 obligation to be performed by Sellers or the Company pursuant to this Agreement or the other
3 Transaction Documents."
4 24. After the execution and closing of the SPA, and after Leamship Corp. took over the
5 business operations ofGlobalEnglish, Leamship Corp. and Leamship Networks discovered numerous
6 liabilities, obligations, and commitments of, and claims against, GlobalEnglish that Skyline had not
7 disclosed in GlobalEnglish 's or its subsidiaries' balance sheets or other financial statements and/or in
8 accordance with Skyline's obligations under the SP A.
9 25. Among other undisclosed liabilities, obligations, and commitments of, and claims
10 against, GlobalEnglish, Leamship Corp. discovered that various pension and vacation amounts for
11 employees of GlobalEnglish's foreign subsidiaries in Korea and Italy that accrued by law under
12 Korean and Italian laws were not reflected in GlobalEnglish's financial statements or any other
13 financial records. In fact, Leamship Corp. learned that, prior to the SPA, when Skyline's principals
14 had been informed of the requirement under Korean law to record these pension and vacation accrual
15 amounts on GlobalEnglish's financial statements, Skyline's principals refused to do so. These
16 substantial liabilities, obligations, and commitments of, and claims against, GlobalEnglish were not
17 reflected or reserved against in the Balance Sheet of Global English as of December 31, 2018. By
18 nature, these pension liabilities and vacation payments continued to accrue in the ordinary course of
19 business after December 31, 2018 consistent with past practices and were material in amount
20 individually and collectively.
21 26. Among other additional undisclosed liabilities, obligations, and commitments of, and
22 claims against, GlobalEnglish, Leamship Corp. discovered outstanding invoices and other fees due
23 for goods and services purchased but not paid for by GlobalEnglish prior to the closing of the SPA.
24 Among other such liabilities,GlobalEnglish purchased or incurred, but did not pay for, goods and
25 services from an Italian hotel (the Magna Pars), a Mexican business consulting firm (Cortina, Tagle,
26 Isoard Y Cia, SC), a law firm in California (the Law Offices of Claire Degerin), an accounting firm
27 in China (Grant Thornton), and was obligated to pay an early termination fee to a telecommunications
28 company (Comcast). These liabilities, obligations, and commitments of, and claims against,
Page 6 - Case. No. 19-CIV-07663
Defendants- Cross-Complainants Leamship Corporation and Leamship Networks GmbH's Cross-Complaint
GlobalEnglish were not reflected or reserved against in the Balance Sheet of GlobalEnglish as of
2 December 3 l, 2018, and, with respect to the liabilities incurred after December 31, 20 l 8, either were
3 not incurred in the ordinary course of business or were material in amount individually and in the
4 aggregate.
5 27. Leamship Corp. and Leamship Networks also discovered various outstanding taxes
6 and penalties assessed, incurred, but not paid for by GlobalEnglish prior to the closing of the SPA.
7 Among other such tax liabilities, GlobalEnglish had been assessed but not paid: penalties imposed by
8 the State of New York Workers' Compensation Board for noncompliance with New York workers'
9 compensation law; corporate taxes imposed by the State of New York; corporate taxes imposed by
10 New York City; and corporate taxes imposed by the State of North Carolina. These taxes, penalties,
11 and related charges and liabilities of GlobalEnglish are Losses attributable to Skyline's breach of
12 Section 4.17 of the SPA representing that all taxes and related penalties had been timely paid; are
13 Losses attributable to Skyline's breach or violation of, or failure to fully perform a covenant or
14 obligation in Article VII of the SPA; constitute unaccrued Taxes of GlobalEnglish or its subsidiaries
15 prior to or as of closing; and/or are unaccrued Taxes imposed on GlobalEnglish or its subsidiaries
16 under the principles of transferee or successor liability or by contract for an event or transaction before
17 the closing of the SPA.
18 28. In recent weeks, GlobalEnglish demonstrated to Skyline that it had paid the taxes,
19 penalties, and related liabilities listed above, but Skyline has not paid or reimbursed GlobalEnglish
20 for those taxes, penalties, and related liabilities.
21 29. Among other undisclosed liabilities, obligations, and commitments of, and claims
22 against GlobalEnglish, Leamship Corp. also discovered that Skyline incurred or caused
23 GlobalEnglish to incur obligations for which Skyline-and not GlobalEnglish, Leamship Corp.,
24 and/or Leamship Networks- was primarily liable. These include fees for legal services rendered to
25 Skyline by Sideman Bancroft LLP and Greenberg Traurig LLP. Principles of indemnity and equity
26 require Skyline to reimburse Leamship Corp. and Leamship Networks for these liabilities and
27 obligations.
28
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Defendants-Cross-Complainants Leamship Corporation and Leamship Networks GmbH's Cross-Complaint
30. In addition to the liabilities, obligations, and commitments of, and claims against,
2 GlobalEnglish identified herein that Leamship Corp. has discovered to date, Leamship Corp. and
3 Leamship Networks continue to discover undisclosed liabilities, obligations, and commitments of,
4 and claims against, GlobalEnglish that Skyline had not disclosed in accordance with Skyline's
5 obligations under the SPA, and/or under principles of equity and fairness.
6 31. Many of the liabilities, obligations, and commitments of, and claims against,
7 GlobalEnglish identified above are increasing on a periodic basis as long as they remain unpaid by
8 Skyline due to, for example, interest, penalties, and finance charges.
9 32. The liabilities, obligations, and commitments of, and claims against, GlobalEnglish
10 identified above and those that Leamship Corp. and Leamship Networks may continue to discover
11 constitute a breach of Skyline's representations, warranties, and covenants in the SPA.
12 33. The liabilities, obligations, and commitments of, and claims against, GlobalEnglish .
13 identified above and those that Leamship Corp. and Leamship Networks continue to discover
14 constitute "Losses" under the SPA.
15 34. Pursuant to Sections 7.03 and 9.01 of the SPA and common law, Leamship Corp. and
16 Leamship Networks are entitled to be indemnified for the Losses incurred or imposed on them.
17 35. Pursuant to Section 1.04 of the SPA, Leamship Corp. and Leamship Networks are
18 entitled to set off the value of the Losses caused by Skyline for which they are entitled to be
19 indemnified under Section 9.01 of the SPA against the purchase price of the SPA.
20 36. Pursuant to common law, Leamship Corp. and Leamship Networks are entitled to be
21 indemnified for the damages incurred as a result of Skyline's actions identified above, including but
22 not limited to the damages related to Skyline's obligations and liabilities to Sideman Bancroft LLP
23 and Greenberg Traurig LLP.
24 FIRST CAUSE OF ACTION
25 (Breach of Written Contract)
26 37. Cross-complainants incorporate by reference all of their preceding allegations as
27 though fully rewritten herein.
28
Page 8 - Case. No. 19-CIV-07663
Defendants- Cross-Complainants Leamship Corporation and Leamship Networks GmbH's Cross-Complaint
38. The SPA is a valid and binding contract among Skyline, Learnship Corp., and
2 Learnship Networks, among other parties, and is supported by consideration.
3 39. By failing to disclose pension and vacation amounts for employees ofGlobalEnglish's
4 foreign subsidiaries in Korea and Italy accrued under Korean and Italian law, and by failing to reflect
5 or reserve against those accruals in GlobalEnglish' s financial records, Skyline breached the SPA.
6 40. By failing to disclose outstanding invoices and other fees due for goods and services
7 purchased but not paid for by GlobalEnglish from, among others, an Italian hotel (the Magna Pars),
8 a Mexican business consulting firm (Cortina, Tagle, Isoard Y Cia, SC), a law firm in California (the
9 Law Offices of Claire Degerin), an accounting firm in China (Grant Thornton), and for the termination
10 fee imposed by a telecommunications company (Comcast), and by failing to reflect or reserve against
11 those amounts owed in GlobalEnglish's financial records, Skyline breached the SPA.
12 41. By failing to pay and remit outstanding taxes and penalties assessed and incurred by
13 GlobalEnglish, including penalties imposed by the State of New York Workers' Compensation Board
14 for noncompliance with New York workers' compensation law, corporate taxes imposed by the State
15 of New York, corporate taxes imposed by New York City, and corporate taxes imposed by the State
16 of North Carolina, Skyline breached the SPA.
17 42. More specifically, Skyline's failure to disclose to Learnship Corp. and Learnship
18 Networks and/or pay these Liabilities (as defined in Section 4.07 of the SPA) of GlobalEnglish is a
19 breach of Sections 4.05, 4.07, 4.17, 7.03, and other provisions of the SPA. Skyline's failure to
20 disclose and/or pay these Liabilities and Taxes has resulted in Losses (as defined in the SPA) to
21 Learnship Corp. and Learnship Networks.
22 43. Learnship Corp. and Leamship Networks have performed or attempted to perform
23 their obligations under the SP A, and/or performance of their obligations under the SPA has been
24 excused by Skyline's breach.
25 44. Skyline's breaches of the SPA have damaged Leamship Corp. and Leamship
26 Networks in an amount to be proven at trial.
27 45. Pursuant to Sections 7.03 and 9.01 of the SPA, Leamship Corp. and Leamship
28 Networks are entitled to be indemnified for the Losses and Taxes identified above.
Page 9 - Case. No. 19-CIV-07663
Defendants- Cross-Complainants Leamship Corporation and Leamship Networks GmbH's Cross-Complaint
46. Pursuant to Section 1.04 of the SPA, Learnship Corp. and Learnship Networks are
2 entitled to set off the value of the Losses, Taxes, and damages caused by Skyline for which they are
3 entitled to be indemnified under Sections 7.03 and 9.01 of the SPA against the purchase price of the
4 SPA.
5 SECOND CAUSE OF ACTION
6 (Indemnification)
7 47. Cross-complainants incorporate by reference all of their preceding allegations as
8 though fully rewritten herein.
9 48. Skyline incurred or caused GlobalEnglish to incur pension and vacation amounts for
10 employees of GlobalEnglish's foreign subsidiaries in Korea and Italy under Korean and Italian law.
11 49. Skyline incurred or caused GlobalEnglish to incur invoices and other fees due for
12 goods and services from, among others, an Italian hotel (the Magna Pars), a Mexican business
13 consulting firm (Cortina, Tagle, Isoard Y Cia, SC), a law firm in California (the Law Offices of Claire
14 Degerin), an accounting firm in China (Grant Thornton), and a telecommunications company
15 (Comcast). Skyline failed to pay or failed to cause GlobalEnglish to pay these invoices and other fees
16 due.
17 50. Skyline incurred or caused GlobalEnglish to incur taxes and penalties under the laws
18 of the State of New York, New York City, and the State of North Carolina. Skyline failed to pay or
19 failed to cause GlobalEnglish to pay these taxes and penalties.
20 51. Skyline caused GlobalEnglish to incur obligations for which Skyline- and not
21 GlobalEnglish, Leamship Corp., and/or Leamship Networks- was solely responsible and liable,
22 including fees for legal services rendered to Skyline and/or GlobalEnglish by Sideman Bancroft LLP
23 and Greenberg Traurig LLP.
24 52. Skyline's failure to pay or reimburse GlobalEnglish for Skyline's liabilities, and
25 Skyline's failure to cause GlobalEnglish to pay these liabilities, obligations, and commitments of, and
26 claims against, GlobalEnglish, has damaged Learnship Corp. and Leamship Networks in an amount
27 to be proven at trial.
28
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Defendants- Cross-Complainants Leamship Corporation and Leamship Networks GmbH's Cross-Complaint
53. Skyline was the cause of and is otherwise obligated for these damages to Leamship
2 Corp. and Leamship Networks.
3 54. Learnship Corp. and Leamship Networks are entitled to indemnification by Skyline
4 for these damages.
5 THIRD CAUSE OF ACTION
6 (Declaratory Judgment)
7 55. Cross-complainants incorporate by reference all of their preceding allegations as
8 though fully rewritten herein.
9 56. The SPA is a valid and binding contract among Skyline, Leamship Corp., and
10 Leamship Networks, among other parties, and is supported by consideration.
11 57. An actual controversy exists among Skyline, Leamship Corp., and Leamship
12 Networks concerning the rights and obligations of the parties to the SPA. Among other disputes,
13 Leamship Corp. and Leamship Networks dispute any attempt by Skyline to compel them to issue
14 payments under the SPA without set off against Skyline's breaches of the SPA. Skyline disputes the
15 Losses (as defined in the SPA) presented by Leamship Corp. and Leamship Networks and their right
16 to be indemnified by Skyline for their Losses (as defined in the SPA) and other damages resulting
17 from Skyline's breaches of its representations and warranties in the SPA, Skyline's failure to pay
18 taxes and penalties owed by GlobalEnglish or its subsidiaries, and other obligations for which
19 Skyline-and not GlobalEnglish, Leamship Corp., and/or Leamship Networks- was primarily liable,
20 including fees for legal services rendered to Skyline. Skyline also disputes that Leamship Corp. and
21 Leamship Networks may set off their Losses (as defined in the SPA) and other damages resulting
22 from Skyline's breaches of its representations and warranties in the SPA and Skyline's failure to pay
23 taxes and penalties owed by GlobalEnglish or its subsidiaries against the purchase price of the SPA.
24 58. The interests of Skyline, Leamship Corp., and Leamship Networks are real and
25 adverse, creating a controversy that is ripe for judicial determination.
26 59. This Court has the power to declare the rights and obligations of Skyline, Leamship
27 Corp., and Leamship Networks under the SPA.
28
Page 11 - Case. No. 19-CIV-07663
Defendants- Cross-Complainants Leamship Co rporation and Leamship Networks GmbH's Cross-Complaint
1 60. Learnship Corp. and Learnship Networks are entitled to a declaration from the Court
2 that they must be indemnified by Skyline for their Losses (as defined in the SPA) and other damages
3 resulting from (a) Skyline's breaches of its representations and warranties and other obligations in the
4 SPA and (b) Skyline's failure to pay taxes and penalties owed by GlobalEnglish or its subsidiaries;
5 that Learnship Corp. and Leamship Networks may set off their Losses (as defined in the SPA) and
6 other damages resulting from Skyline's breaches of its representations and warranties and other
7 obligations under the SPA and Skyline's failure to pay taxes and penalties owed by GlobalEnglish or
8 its subsidiaries against the purchase price of the SPA; and that Skyline must indemnify Learnship
9 Corp. and Learnship Networks for their damages resulting from Skyline's causing GlobalEnglish to
10 incur obligations for which Skyline-and not GlobalEnglish, Learnship Corp., and/or Learnship
11 Networks- was primarily liable.
12 PRAYER FOR RELIEF
13 WHEREFORE, Learnship Corp. and Learnship Networks pray for judgment in their favor
14 and against Skyline as follows:
15 1. For a money judgment in the amount of damages to be proven at trial;
16 2. For recovery of interest, costs, and attorney's fees, as authorized by the SPA and by
17 law;
18 3. For a declaration that Learnship Corp. and Learnship Networks may withhold from
19 and set off against the purchase price of the SPA the amounts by which they have been damaged by
20 Skyline's breaches of the SPA; and
21 4. For such other and further legal and/or equitable relief as the Court deems just.
22 II
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Page 12 - Case. No. I 9-CIV-07663
Defendants-Cross-Complainants Leamship Corporation and Learnship Networks GmbH's Cross-Complaint
Dated: June 19, 2020 DILLINGHAM & MURPHY, LLP
1 WILLIAM F. MURPHY
CYNTHIA C. CHEUNG
2
FROST BROWN TODD
3 ALI RAZZAGHI
4
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By:
6
Attorneys for Defendants-Cr s-Complainants
7 Learnship Corporation and Leamship Networks GmbH
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Page I 3 - Case. No. I 9-CIV-07663
Defendants-Cross-Complainants Learnship Corporation and Leamship Networks GmbH's Cross-Complaint
1 PROOF OF SERVICE
[C.C.P. Section 1013, 2015.SJ
2
In Re: Skyline Venture Partners v. Learnship Corporation, et al.
3 San Mateo County Superior Court (Redwood City) Case No.: 19-CIV-07663
4
I am a citizen of the United States, a resident of the State of California, and am
5 employed in the County of San Francisco, State of California. I am over eighteen (18) years of
age and not a party to the above-entitled action. My business address is DILLINGHAM
6 MURPHY, LLP, 601 Montgomery Street, Suite 1900, San Francisco, CA 94111. On the date
7 below, I served the following document(s) in the manner indicated below on the person(s) listed
on the attached Service List:
8
• CROSS-COMPLAINT OF DEFENDANTS LEARNSHIP CORPORATION AND
9 LEARNSHIP NETWORKS GMBH
10 [g1 U.S. Mail: by placing the document(s) listed above in a sealed envelope, with First
Class postage thereon fully prepaid, and deposited same in the United States mail at San
11 Francisco, California, addressed as set forth below. I am readily familiar with this firm's
practice of collection and processing of correspondence for mailing. Under that
12 practice, it would be deposited with the U.S. Postal Service on that same day, with
postage thereon fully prepaid, in the ordinary course of business.
13
14 Perry J. Woodward, Esq.
Allonn E. Levy, Esq.
15 HOPKINS & CARLEY
The Letitia Building
16 70 S. First Street
San Jose, CA 95113-2406
17
Mailing Address:
18 P.O. Box 1469
San Jose, CA 95109-1469
19
T: (408) 286-9800
20 F: (408) 998-4790
Email: alevy@hopkinscarley.com
21
22 Attorneys for Plaintiff
Skyline Venture Partners LLC
23
24
[gl (State) I declare under penalty of perjury under the laws of the State of California that
25 the above is true and correct. Executed on the date below at San Francisco, California.
26
Dated: June 19, 2020
27
28
-l-
CROSS-COMPLAINT OF DEFENDANTS LEARNSHIP CORPORATlON ANO LEARNSHIP NETWORKS GMBH
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l DILLINGHAM & MURPHY, LLP WILLIAM F. MURPHY, ESQ. (SBN 82482) 2 CYNTHIA C. CHEUNG, ESQ. (SBN 320767) 60 l Montgomery Street, Suite 1900 3 San Francisco, California 94111 Telephone: (415) 397-2700 4 Facsimile: (415) 397-3300 Email: wfm@djJlinghammurphy.com 5 ccc@dillin~hammurphy.com 6 FROST BOWN TODD ALI RAZZAGHI, ESQ. (Pro Hae Vice Pending) 7 301 East Fourth Street, Suite 3300 6/19/2020 Cincinnati, OH 45202 8 Telephone: (513) 651-6800 Facsimile: (513) 651-6981 9 Email: arazzaghi@fbtlaw.com 10 Attorneys for Defendants-Cross-Complainants Leamship Corporation and Leamship Networks GmbH 11 12 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 6/22/2020 13 COUNTY OF SAN MATEO 14 SKYLINE VENTURE PARTNERS LLC, a ) No: 19-CIV-07663 15 Delaware limited liability corporation, ) ) 16 Plaintiff, ) ) CROSS-COMPLAINT OF 17 v. ) DEFENDANTS LEARNSHIP ) CORPORATION AND LEARNSHIP 18 LEARNSHIP CORPORATION, a Delaware ) NETWORKS GMBH corporation; LEARNSHIP NETWORKS ) 19 GmbH, a foreign corporation; and DOES 1 ) through 50, inclusive, ) 20 ) Defendants. ) 21 ---------------) ) 22 LEARNSHIP CORPORATION, a Delaware ) corporation; LEARNSHIP GmbH, a foreign ) 23 corporation, ) ) 24 Cross-Complainants, ) ) 25 v. ) ) 26 SKYLINE VENTURE PARTNERS LLC, a ) Delaware limited liability corporation and ) 27 ROES 1 through 25, inclusive, ) ) 28 Cross-Defendants. ) Page I- Case. No. 19-CIV-07663 Defendants-Cross-Complainants Leamship Corporation and Leamship Networks GmbH's Cross-Complaint Defendants and Cross-Complainants Learnship Corporation ("Learnship Corp.") and 2 Learnship Networks GmbH ("Leamship Networks," collectively with Learnship Corp., "Cross- 3 Complainants") hereby state their Cross-Complaint against Plaintiff and Cross-Defendant Skyline 4 Venture Partners, LLC ("Cross-Defendant" or "Skyline") as follows: 5 PARTIES 6 1. Leamship Corp. is a corporation formed under the laws of the State of Delaware with 7 its principal place of business in Chicago, Illinois. Leamship Corp. is registered to do business in 8 California. 9 2. Learnship Networks is an entity formed under the laws of Germany with its principal lO place of business in Cologne, Germany. 11 3. Upon information and belief, Skyline is a Delaware limited liability corporation with 12 its principal place of business in Redwood City, San Mateo County, California. Cross-Complainants 13 lack knowledge of the true residence of Skyline's principals. 14 4. Upon information and belief, Skyline was formed in approximately 2016 by and was 15 at all relevant times controlled by Karine Allouche-Salanon and Julien Salanon, its majority 16 shareholders. 17 5. Cross-Complainants do not currently know the true names of ROES l through 25, 18 inclusive, and therefore sues them by those fictitious names. Cross-Complainants are informed and 19 believe that each of the ROE defendants was responsible in some manner for the occurrences and 20 harm alleged in this Cross-Complaint. 21 GENERAL ALLEGATIONS 22 6. Cross-complainants incorporate by reference all of their preceding allegations as 23 though fully rewritten herein. 24 7. Upon information and belief, Skyline acquired all the shares of the company 25 GlobalEnglish Corporation ("GlobalEnglish") on or around November 10, 2016. Thereafter, Skyline 26 sold some of its ownership interest in GlobalEnglish to various minority shareholders. 27 28 Page 2 - Case. No. 19-CIV-07663 Defendants- Cross-Complainants Learnship Corporation and Learnship Networks GmbH's Cross-Complaint 8. GlobalEnglish is a technology and software services company that offers online 2 English learning solutions to companies and individuals around the world to improve their use of the 3 English language in business and facilitate effective communication. 4 9. In or about 2018, Leamship Networks and Leamship Corp. approached GlobalEnglish 5 and Skyline with an interest in acquiring GlobalEnglish. 6 After a series of negotiations, Leamship Corp. offered a cash consideration of $1 7 million (to be paid in two installments) and an equity consideration to purchase GlobalEnglish from 8 Skyline and its minority shareholders. 9 11. Skyline and the minority shareholders accepted the offer and the parties reduced the 10 terms of their agreement to writing in a Stock Purchase Agreement ("SPA"). 11 12. The parties executed the SPA on or about March 28, 2019 and the transaction 12 officially closed on or about April 8, 2019. 13 13. Leamship Corp. now owns all the shares of GlobalEnglish. 14 14. Leamship Networks served as a guarantor of Learnship Corp. 's obligations under the 15 SPA. 16 15. In the process of negotiating the transaction and entering into the SPA, Skyline 17 provided financial information concerning GlobalEnglish to Learnship Corp. and its representatives. 18 16. The SPA defines the term "Buyer" as Leamship Corp. and the term "Sellers" as 19 including Skyline and various other minority shareholders of GlobalEnglish. The SPA also defines 20 GlobalEnglish and its subsidiaries as the "Target Group" and each company in that Target Group as 21 a "Target Group Company." 22 17. Among other provisions, Section 1.04 of the SPA, titled "Set-Off," states: "Buyer shall 23 have the right to withhold and set off against the Purchase Price (a) the amount of any Losses (as 24 defined in Section 7.03) to which any Buyer Indemnitee (including, under Section 9.01, Learnship 25 Corp., its affiliates, GlobalEnglish, and their representatives] may be entitled under ARTICLE IX of 26 this Agreement or any other agreements, instruments, and documents required to be delivered in 27 connection with this Agreement or at the Closing ...." 28 Page 3 - Case. No. 19-CIV-07663 Defendants- Cross-Complainants Leamship Corporation and Leamship Networks GmbH 's Cross-Complaint 18. Section 7 .03 of the SPA defines "Losses" as "any loss, damage, liability, deficiency, 2 Action, judgment, interest, award, penalty, fine, cost or expense of whatever kind ... including 3 reasonable attorneys' fees and the cost of enforcing any right to indemnification under this Agreement 4 " 5 19. In Section 4.05 of the SPA, Skyline made various representations and warranties to 6 Leamship Corp., including that complete copies of the financial statements of each Target Group 7 Company for the fiscal years ending December 31, 2017 and December 31, 2018 had been delivered 8 to Learnship Corp.; that all these financial statements had "been prepared in accordance with GAAP 9 applied on a consistent basis throughout the period involved"; that the financial statements had "been l0 prepared in accordance with local accounting principles applied on a consistent basis" during the 11 relevant periods (i.e., 2017 and 2018); and that all these financial statements were "based on the books 12 and records of [Global English and its subsidiaries], and fairly present each Target Group Company's 13 financial condition as of the respective dates they were prepared and the results of the operations of 14 the Target Group Company for the periods indicated." 15 20. In Section 4.07 of the SPA, Skyline made additional representations and warranties to 16 Learnship Corp., including that: "No Target Group Company has liabilities, obligations or 17 commitments of any nature whatsoever, whether asserted, known, absolute, accrued, matured or 18 otherwise ("Liabilities"), except (a) those set forth in Section 4.07 of the Disclosure Schedules; (b) 19 those which are adequately reflected or reserved against in the Balance Sheet [of GlobalEnglish] as 20 of the Balance Sheet Date [defined in the SPA as December 31, 2018]; and (c) those which have been 21 incurred in the ordinary course of business consistent with past practice since the Balance Sheet Date 22 and which are not, individually or in the aggregate, material in amount." 23 21. Section 4.07 of the Disclosure Schedules lists GlobalEnglish's "Undisclosed 24 Liabilities" as ''None." Thus, in Section 4.07 of the SPA, Skyline represented that GlobalEnglish and 25 its subsidiaries had no liabilities other than ( 1) the liabilities shown or reserved against in 26 GlobalEnglish's balance sheet as of December 3 I, 2018 and (2) liabilities incurred in the ordinary 27 course of business after December 31 , 2018 and immaterial in amount, either individually or in the 28 aggregate. Page 4 - Case. No. 19-CIV-07663 Defendants- Cross-Complainants Leamship Corporation and Leamship Networks GrnbH's Cross-Complaint 22. In Section 7.03 of the SPA, Skyline promised to: "indemnify [GlobalEnglish, 2 Leamship Corp.] and each Buyer Indemnitee and hold them harmless from and against: 3 (a) "any .. . Losses ... attributable to any breach of or inaccuracy m any 4 representation or warranty made in Section 4.17," which included that "(a]ll 5 Taxes [and related interest, penalties, etc.] due and owing by {GlobalEnglish and 6 its subsidiaries] (whether or not shown on any Tax Return) have been timely 7 paid"; 8 (b) "any Loss attributable to any breach or violation of, or failure to fully perform, 9 any covenant, agreement, undertaking, or obligation in ARTICLE VII" relating 10 to tax matters; 11 (c) "all unaccrued Taxes of any Target Group Company [i.e., Global English and its 12 subsidiaries] or relating to the business of' GlobalEnglish and its subsidiaries 13 prior to and as of the closing date; and 14 (d) "any and all unaccrued Taxes of any Person imposed on [GlobalEnglish or its 15 subsidiaries] arising under the principles of transferee or successor liability or by 16 contract, relating to an event or transaction occurring before the Closing Date." 17 Further, Skyline covenanted to reimburse Learnship Corp. for these taxes, 18 penalties, or obligations, "together with any out-of-pocket fees and expenses 19 (including attorneys' and accountants' fees) incurred in connection therewith. . . 20 within ten ( l 0) business days after payment of such unaccrued Taxes by Buyer 21 or (GlobalEnglish]." 22 23. Finally, Section 9.01 of the SPA, titled "Indemnification by Sellers," states: "each of 23 the Sellers, severally and not jointly, shall indemnify and defend each of Buyer and its Affiliates 24 (including [GlobalEnglish]) and their respective Representatives (collectively the ' 'Buyer 25 lndemnitees") against, and shall hold each of them harmless from and against, and shall pay and 26 reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, Buyer 27 lndemnitees based upon, arising out of, with respect to, or by reason of: ( a) any breach of any of the 28 representations or warranties of Sellers or the Company contained in this Agreement or the other Page 5 - Case. No. 19-CIV-07663 Defendants-Cross-Complainants Leamship Corporation and Leamship Networks GmbH's Cross-Complaint Transaction Documents; or (b) any breach or non-fulfillment of any covenant, agreement, or 2 obligation to be performed by Sellers or the Company pursuant to this Agreement or the other 3 Transaction Documents." 4 24. After the execution and closing of the SPA, and after Leamship Corp. took over the 5 business operations ofGlobalEnglish, Leamship Corp. and Leamship Networks discovered numerous 6 liabilities, obligations, and commitments of, and claims against, GlobalEnglish that Skyline had not 7 disclosed in GlobalEnglish 's or its subsidiaries' balance sheets or other financial statements and/or in 8 accordance with Skyline's obligations under the SP A. 9 25. Among other undisclosed liabilities, obligations, and commitments of, and claims 10 against, GlobalEnglish, Leamship Corp. discovered that various pension and vacation amounts for 11 employees of GlobalEnglish's foreign subsidiaries in Korea and Italy that accrued by law under 12 Korean and Italian laws were not reflected in GlobalEnglish's financial statements or any other 13 financial records. In fact, Leamship Corp. learned that, prior to the SPA, when Skyline's principals 14 had been informed of the requirement under Korean law to record these pension and vacation accrual 15 amounts on GlobalEnglish's financial statements, Skyline's principals refused to do so. These 16 substantial liabilities, obligations, and commitments of, and claims against, GlobalEnglish were not 17 reflected or reserved against in the Balance Sheet of Global English as of December 31, 2018. By 18 nature, these pension liabilities and vacation payments continued to accrue in the ordinary course of 19 business after December 31, 2018 consistent with past practices and were material in amount 20 individually and collectively. 21 26. Among other additional undisclosed liabilities, obligations, and commitments of, and 22 claims against, GlobalEnglish, Leamship Corp. discovered outstanding invoices and other fees due 23 for goods and services purchased but not paid for by GlobalEnglish prior to the closing of the SPA. 24 Among other such liabilities,GlobalEnglish purchased or incurred, but did not pay for, goods and 25 services from an Italian hotel (the Magna Pars), a Mexican business consulting firm (Cortina, Tagle, 26 Isoard Y Cia, SC), a law firm in California (the Law Offices of Claire Degerin), an accounting firm 27 in China (Grant Thornton), and was obligated to pay an early termination fee to a telecommunications 28 company (Comcast). These liabilities, obligations, and commitments of, and claims against, Page 6 - Case. No. 19-CIV-07663 Defendants- Cross-Complainants Leamship Corporation and Leamship Networks GmbH's Cross-Complaint GlobalEnglish were not reflected or reserved against in the Balance Sheet of GlobalEnglish as of 2 December 3 l, 2018, and, with respect to the liabilities incurred after December 31, 20 l 8, either were 3 not incurred in the ordinary course of business or were material in amount individually and in the 4 aggregate. 5 27. Leamship Corp. and Leamship Networks also discovered various outstanding taxes 6 and penalties assessed, incurred, but not paid for by GlobalEnglish prior to the closing of the SPA. 7 Among other such tax liabilities, GlobalEnglish had been assessed but not paid: penalties imposed by 8 the State of New York Workers' Compensation Board for noncompliance with New York workers' 9 compensation law; corporate taxes imposed by the State of New York; corporate taxes imposed by 10 New York City; and corporate taxes imposed by the State of North Carolina. These taxes, penalties, 11 and related charges and liabilities of GlobalEnglish are Losses attributable to Skyline's breach of 12 Section 4.17 of the SPA representing that all taxes and related penalties had been timely paid; are 13 Losses attributable to Skyline's breach or violation of, or failure to fully perform a covenant or 14 obligation in Article VII of the SPA; constitute unaccrued Taxes of GlobalEnglish or its subsidiaries 15 prior to or as of closing; and/or are unaccrued Taxes imposed on GlobalEnglish or its subsidiaries 16 under the principles of transferee or successor liability or by contract for an event or transaction before 17 the closing of the SPA. 18 28. In recent weeks, GlobalEnglish demonstrated to Skyline that it had paid the taxes, 19 penalties, and related liabilities listed above, but Skyline has not paid or reimbursed GlobalEnglish 20 for those taxes, penalties, and related liabilities. 21 29. Among other undisclosed liabilities, obligations, and commitments of, and claims 22 against GlobalEnglish, Leamship Corp. also discovered that Skyline incurred or caused 23 GlobalEnglish to incur obligations for which Skyline-and not GlobalEnglish, Leamship Corp., 24 and/or Leamship Networks- was primarily liable. These include fees for legal services rendered to 25 Skyline by Sideman Bancroft LLP and Greenberg Traurig LLP. Principles of indemnity and equity 26 require Skyline to reimburse Leamship Corp. and Leamship Networks for these liabilities and 27 obligations. 28 Page 7 - Case. No. 19-CIV-07663 Defendants-Cross-Complainants Leamship Corporation and Leamship Networks GmbH's Cross-Complaint 30. In addition to the liabilities, obligations, and commitments of, and claims against, 2 GlobalEnglish identified herein that Leamship Corp. has discovered to date, Leamship Corp. and 3 Leamship Networks continue to discover undisclosed liabilities, obligations, and commitments of, 4 and claims against, GlobalEnglish that Skyline had not disclosed in accordance with Skyline's 5 obligations under the SPA, and/or under principles of equity and fairness. 6 31. Many of the liabilities, obligations, and commitments of, and claims against, 7 GlobalEnglish identified above are increasing on a periodic basis as long as they remain unpaid by 8 Skyline due to, for example, interest, penalties, and finance charges. 9 32. The liabilities, obligations, and commitments of, and claims against, GlobalEnglish 10 identified above and those that Leamship Corp. and Leamship Networks may continue to discover 11 constitute a breach of Skyline's representations, warranties, and covenants in the SPA. 12 33. The liabilities, obligations, and commitments of, and claims against, GlobalEnglish . 13 identified above and those that Leamship Corp. and Leamship Networks continue to discover 14 constitute "Losses" under the SPA. 15 34. Pursuant to Sections 7.03 and 9.01 of the SPA and common law, Leamship Corp. and 16 Leamship Networks are entitled to be indemnified for the Losses incurred or imposed on them. 17 35. Pursuant to Section 1.04 of the SPA, Leamship Corp. and Leamship Networks are 18 entitled to set off the value of the Losses caused by Skyline for which they are entitled to be 19 indemnified under Section 9.01 of the SPA against the purchase price of the SPA. 20 36. Pursuant to common law, Leamship Corp. and Leamship Networks are entitled to be 21 indemnified for the damages incurred as a result of Skyline's actions identified above, including but 22 not limited to the damages related to Skyline's obligations and liabilities to Sideman Bancroft LLP 23 and Greenberg Traurig LLP. 24 FIRST CAUSE OF ACTION 25 (Breach of Written Contract) 26 37. Cross-complainants incorporate by reference all of their preceding allegations as 27 though fully rewritten herein. 28 Page 8 - Case. No. 19-CIV-07663 Defendants- Cross-Complainants Leamship Corporation and Leamship Networks GmbH's Cross-Complaint 38. The SPA is a valid and binding contract among Skyline, Learnship Corp., and 2 Learnship Networks, among other parties, and is supported by consideration. 3 39. By failing to disclose pension and vacation amounts for employees ofGlobalEnglish's 4 foreign subsidiaries in Korea and Italy accrued under Korean and Italian law, and by failing to reflect 5 or reserve against those accruals in GlobalEnglish' s financial records, Skyline breached the SPA. 6 40. By failing to disclose outstanding invoices and other fees due for goods and services 7 purchased but not paid for by GlobalEnglish from, among others, an Italian hotel (the Magna Pars), 8 a Mexican business consulting firm (Cortina, Tagle, Isoard Y Cia, SC), a law firm in California (the 9 Law Offices of Claire Degerin), an accounting firm in China (Grant Thornton), and for the termination 10 fee imposed by a telecommunications company (Comcast), and by failing to reflect or reserve against 11 those amounts owed in GlobalEnglish's financial records, Skyline breached the SPA. 12 41. By failing to pay and remit outstanding taxes and penalties assessed and incurred by 13 GlobalEnglish, including penalties imposed by the State of New York Workers' Compensation Board 14 for noncompliance with New York workers' compensation law, corporate taxes imposed by the State 15 of New York, corporate taxes imposed by New York City, and corporate taxes imposed by the State 16 of North Carolina, Skyline breached the SPA. 17 42. More specifically, Skyline's failure to disclose to Learnship Corp. and Learnship 18 Networks and/or pay these Liabilities (as defined in Section 4.07 of the SPA) of GlobalEnglish is a 19 breach of Sections 4.05, 4.07, 4.17, 7.03, and other provisions of the SPA. Skyline's failure to 20 disclose and/or pay these Liabilities and Taxes has resulted in Losses (as defined in the SPA) to 21 Learnship Corp. and Learnship Networks. 22 43. Learnship Corp. and Leamship Networks have performed or attempted to perform 23 their obligations under the SP A, and/or performance of their obligations under the SPA has been 24 excused by Skyline's breach. 25 44. Skyline's breaches of the SPA have damaged Leamship Corp. and Leamship 26 Networks in an amount to be proven at trial. 27 45. Pursuant to Sections 7.03 and 9.01 of the SPA, Leamship Corp. and Leamship 28 Networks are entitled to be indemnified for the Losses and Taxes identified above. Page 9 - Case. No. 19-CIV-07663 Defendants- Cross-Complainants Leamship Corporation and Leamship Networks GmbH's Cross-Complaint 46. Pursuant to Section 1.04 of the SPA, Learnship Corp. and Learnship Networks are 2 entitled to set off the value of the Losses, Taxes, and damages caused by Skyline for which they are 3 entitled to be indemnified under Sections 7.03 and 9.01 of the SPA against the purchase price of the 4 SPA. 5 SECOND CAUSE OF ACTION 6 (Indemnification) 7 47. Cross-complainants incorporate by reference all of their preceding allegations as 8 though fully rewritten herein. 9 48. Skyline incurred or caused GlobalEnglish to incur pension and vacation amounts for 10 employees of GlobalEnglish's foreign subsidiaries in Korea and Italy under Korean and Italian law. 11 49. Skyline incurred or caused GlobalEnglish to incur invoices and other fees due for 12 goods and services from, among others, an Italian hotel (the Magna Pars), a Mexican business 13 consulting firm (Cortina, Tagle, Isoard Y Cia, SC), a law firm in California (the Law Offices of Claire 14 Degerin), an accounting firm in China (Grant Thornton), and a telecommunications company 15 (Comcast). Skyline failed to pay or failed to cause GlobalEnglish to pay these invoices and other fees 16 due. 17 50. Skyline incurred or caused GlobalEnglish to incur taxes and penalties under the laws 18 of the State of New York, New York City, and the State of North Carolina. Skyline failed to pay or 19 failed to cause GlobalEnglish to pay these taxes and penalties. 20 51. Skyline caused GlobalEnglish to incur obligations for which Skyline- and not 21 GlobalEnglish, Leamship Corp., and/or Leamship Networks- was solely responsible and liable, 22 including fees for legal services rendered to Skyline and/or GlobalEnglish by Sideman Bancroft LLP 23 and Greenberg Traurig LLP. 24 52. Skyline's failure to pay or reimburse GlobalEnglish for Skyline's liabilities, and 25 Skyline's failure to cause GlobalEnglish to pay these liabilities, obligations, and commitments of, and 26 claims against, GlobalEnglish, has damaged Learnship Corp. and Leamship Networks in an amount 27 to be proven at trial. 28 Page IO - Case. No. 19-CIV-07663 Defendants- Cross-Complainants Leamship Corporation and Leamship Networks GmbH's Cross-Complaint 53. Skyline was the cause of and is otherwise obligated for these damages to Leamship 2 Corp. and Leamship Networks. 3 54. Learnship Corp. and Leamship Networks are entitled to indemnification by Skyline 4 for these damages. 5 THIRD CAUSE OF ACTION 6 (Declaratory Judgment) 7 55. Cross-complainants incorporate by reference all of their preceding allegations as 8 though fully rewritten herein. 9 56. The SPA is a valid and binding contract among Skyline, Leamship Corp., and 10 Leamship Networks, among other parties, and is supported by consideration. 11 57. An actual controversy exists among Skyline, Leamship Corp., and Leamship 12 Networks concerning the rights and obligations of the parties to the SPA. Among other disputes, 13 Leamship Corp. and Leamship Networks dispute any attempt by Skyline to compel them to issue 14 payments under the SPA without set off against Skyline's breaches of the SPA. Skyline disputes the 15 Losses (as defined in the SPA) presented by Leamship Corp. and Leamship Networks and their right 16 to be indemnified by Skyline for their Losses (as defined in the SPA) and other damages resulting 17 from Skyline's breaches of its representations and warranties in the SPA, Skyline's failure to pay 18 taxes and penalties owed by GlobalEnglish or its subsidiaries, and other obligations for which 19 Skyline-and not GlobalEnglish, Leamship Corp., and/or Leamship Networks- was primarily liable, 20 including fees for legal services rendered to Skyline. Skyline also disputes that Leamship Corp. and 21 Leamship Networks may set off their Losses (as defined in the SPA) and other damages resulting 22 from Skyline's breaches of its representations and warranties in the SPA and Skyline's failure to pay 23 taxes and penalties owed by GlobalEnglish or its subsidiaries against the purchase price of the SPA. 24 58. The interests of Skyline, Leamship Corp., and Leamship Networks are real and 25 adverse, creating a controversy that is ripe for judicial determination. 26 59. This Court has the power to declare the rights and obligations of Skyline, Leamship 27 Corp., and Leamship Networks under the SPA. 28 Page 11 - Case. No. 19-CIV-07663 Defendants- Cross-Complainants Leamship Co rporation and Leamship Networks GmbH's Cross-Complaint 1 60. Learnship Corp. and Learnship Networks are entitled to a declaration from the Court 2 that they must be indemnified by Skyline for their Losses (as defined in the SPA) and other damages 3 resulting from (a) Skyline's breaches of its representations and warranties and other obligations in the 4 SPA and (b) Skyline's failure to pay taxes and penalties owed by GlobalEnglish or its subsidiaries; 5 that Learnship Corp. and Leamship Networks may set off their Losses (as defined in the SPA) and 6 other damages resulting from Skyline's breaches of its representations and warranties and other 7 obligations under the SPA and Skyline's failure to pay taxes and penalties owed by GlobalEnglish or 8 its subsidiaries against the purchase price of the SPA; and that Skyline must indemnify Learnship 9 Corp. and Learnship Networks for their damages resulting from Skyline's causing GlobalEnglish to 10 incur obligations for which Skyline-and not GlobalEnglish, Learnship Corp., and/or Learnship 11 Networks- was primarily liable. 12 PRAYER FOR RELIEF 13 WHEREFORE, Learnship Corp. and Learnship Networks pray for judgment in their favor 14 and against Skyline as follows: 15 1. For a money judgment in the amount of damages to be proven at trial; 16 2. For recovery of interest, costs, and attorney's fees, as authorized by the SPA and by 17 law; 18 3. For a declaration that Learnship Corp. and Learnship Networks may withhold from 19 and set off against the purchase price of the SPA the amounts by which they have been damaged by 20 Skyline's breaches of the SPA; and 21 4. For such other and further legal and/or equitable relief as the Court deems just. 22 II 23 II 24 II 25 II 26 II 27 28 Page 12 - Case. No. I 9-CIV-07663 Defendants-Cross-Complainants Leamship Corporation and Learnship Networks GmbH's Cross-Complaint Dated: June 19, 2020 DILLINGHAM & MURPHY, LLP 1 WILLIAM F. MURPHY CYNTHIA C. CHEUNG 2 FROST BROWN TODD 3 ALI RAZZAGHI 4 5 By: 6 Attorneys for Defendants-Cr s-Complainants 7 Learnship Corporation and Leamship Networks GmbH 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page I 3 - Case. No. I 9-CIV-07663 Defendants-Cross-Complainants Learnship Corporation and Leamship Networks GmbH's Cross-Complaint 1 PROOF OF SERVICE [C.C.P. Section 1013, 2015.SJ 2 In Re: Skyline Venture Partners v. Learnship Corporation, et al. 3 San Mateo County Superior Court (Redwood City) Case No.: 19-CIV-07663 4 I am a citizen of the United States, a resident of the State of California, and am 5 employed in the County of San Francisco, State of California. I am over eighteen (18) years of age and not a party to the above-entitled action. My business address is DILLINGHAM 6 MURPHY, LLP, 601 Montgomery Street, Suite 1900, San Francisco, CA 94111. On the date 7 below, I served the following document(s) in the manner indicated below on the person(s) listed on the attached Service List: 8 • CROSS-COMPLAINT OF DEFENDANTS LEARNSHIP CORPORATION AND 9 LEARNSHIP NETWORKS GMBH 10 [g1 U.S. Mail: by placing the document(s) listed above in a sealed envelope, with First Class postage thereon fully prepaid, and deposited same in the United States mail at San 11 Francisco, California, addressed as set forth below. I am readily familiar with this firm's practice of collection and processing of correspondence for mailing. Under that 12 practice, it would be deposited with the U.S. Postal Service on that same day, with postage thereon fully prepaid, in the ordinary course of business. 13 14 Perry J. Woodward, Esq. Allonn E. Levy, Esq. 15 HOPKINS & CARLEY The Letitia Building 16 70 S. First Street San Jose, CA 95113-2406 17 Mailing Address: 18 P.O. Box 1469 San Jose, CA 95109-1469 19 T: (408) 286-9800 20 F: (408) 998-4790 Email: alevy@hopkinscarley.com 21 22 Attorneys for Plaintiff Skyline Venture Partners LLC 23 24 [gl (State) I declare under penalty of perjury under the laws of the State of California that 25 the above is true and correct. Executed on the date below at San Francisco, California. 26 Dated: June 19, 2020 27 28 -l- CROSS-COMPLAINT OF DEFENDANTS LEARNSHIP CORPORATlON ANO LEARNSHIP NETWORKS GMBH