JS 44C/SDNY

REV. 4/2014

CIVIL COVER SHEET

The JS-44 civilcover sheet and the informationcontained herein neither replace nor supplement the filing and service of
pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the
JudicialConference of the United States in September 1974, is required for use of the Clerk of Court for the purpose of
initiating the civil docket sheet.

PLAINTIFFS

DEFENDANTS

JULAat IUBRES

LARKIN ARNOLD

SONY MUSIC ENTERTAINMENT

Tf|J

ATTORNifS^flkNOWl

ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER

RICHARD S. BUSCH, KiNG &BALLOW, 315 Union Street, Nashville,

Tennessee 37201, (615) 259-3456

CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOUARE FILING ANDWRITE A BRIEF STATEMENT OFCAUSE;
(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)
This is an action for Breach of Contract

Has this action, case, or proceeding, or one essentially the same been previously filed in SDNY atany time? NaZVesL-lludge Previously Assigned
If yes,wasthiscase Vol. rj Invol. Q Dismissed. No rj Yes Q
IS THIS AN INTERNATIONAL ARBITRATION CASE?

No 0

(PLACE AN M IN ONEBOXONLY)

If yes, give date

Yes
NATURE OF SUIT

JCUA)i4

TORTS

CONTRACT

&Case No.

ACTIONS UNDER STi

PERSONAL INJURY

PERSONAL INJURY

FORFEITURE/PENALTY

BANKRUPTCY

OTHER STATUTES

[ 1 422 APPEAL

f] 400 STATE

[ I 367 HEALTHCARE
[1110
[]120
[]130
[]140

INSURANCE
MARINE
MILLER ACT

[ ]310 AIRPLANE
[ 1315 AIRPLANE PRODUCT

NEGOTIABLE

[ ] 320 ASSAULT, LIBEL &

[]150

INSTRUMENT
RECOVERY OF
OVERPAYMENT &

[ ] 330 FEDERAL

[]151
[ ]152

ENFORCEMENT
OF JUDGMENT
MEDICARE ACT
RECOVERY OF
DEFAULTED
STUDENT LOANS

LIABILITY

SLANDER
EMPLOYERS'
LIABILITY

[ ] 340 MARINE
[ ] 345 MARINE PRODUCT
LIABILITY

[ ] 350 MOTOR VEHICLE

[ 1355 MOTOR VEHICLE

(EXCL VETERANS)
[]153

11160

PHARMACEUTICAL PERSONAL , , 625 DRUG RELATED

INJURY/PRODUCT LIABILITY

[ ] 365 PERSONAL INJURY

PRODUCT LIABILITY

[ ] 368 ASBESTOS PERSONAL

11195

[ 1220
[ 1230
[ 1240
[ 1245
[ ]290

28 USC 157

[ ] 690 OTHER

LIABILITY

PROPERTY RIGHTS

REAPPORTIONMENT

[
[
[
[
[

] 410 ANTITRUST
] 430 BANKS & BANKING
] 450 COMMERCE
1460 DEPORTATION
] 470 RACKETEER INFLU
ENCED & CORRUPT

[ 1820 COPYRIGHTS
[ J 830 PATENT
[ J 840 TRADEMARK

PERSONAL PROPERTY

[ ] 370 OTHER FRAUD

[ ] 371 TRUTH IN LENDING

PRODUCT LIABILITY
INJURY

[ 1362 PERSONAL INJURY MED MALPRACTICE

SOCIAL SECURITY

ORGANIZATION ACT

(RICO)
[ ] 480 CONSUMER CREDIT
[ 1490 CABLE/SATELLITE TV
[ ] 850 SECURITIES/
COMMODITIES/

[ 1 380 OTHER PERSONAL

LABOR

PROPERTY DAMAGE

[ 1385 PROPERTY DAMAGE

[ 1710 FAIR LABOR

PRODUCT LIABILITY

STOCKHOLDERS

STANDARDS ACT

[ ] 720 LABOR/MGMT

OTHER

PRISONER PETITIONS

CONTRACT
CONTRACT
PRODUCT
LIABILITY

[ ]463 ALIEN DETAINEE

[ 1510 MOTIONS TO
ACTIONS UNDER STATUTES

VACATE SENTENCE
28 USC 2255

CIVIL RIGHTS

REAL PROPERTY

[1210

[ I 423 WITHDRAWAL

[ 1 360 OTHER PERSONAL

RECOVERY OF
OVERPAYMENT
OF VETERAN'S
BENEFITS

[ 1196 FRANCHISE

21 USC 881

INJURY PRODUCT

SUITS

M190

375 FALSE CLAIMS

28 USC 158

SEIZURE OF PROPERTY

LAND

CONDEMNATION
FORECLOSURE
RENT LEASE &
EJECTMENT
TORTS TO LAND
TORT PRODUCT
LIABILITY
ALL OTHER
REAL PROPERTY

[ ] 440 OTHER CIVIL RIGHTS

(Non-Prisoner)
[ ] 441 VOTING
[ 1442 EMPLOYMENT
[ ] 443 HOUSING/
ACCOMMODATIONS

[ I 445 AMERICANS WITH

DISABILITIES EMPLOYMENT

[ ] 530 HABEAS CORPUS

[ I 535 DEATH PENALTY
[ ] 540 MANDAMUS & OTHER

]861HIA(1395ff)
] 862 BLACK LUNG (923)
1863 DIWC/DIWW (405(g))
] 864 SSID TITLE XVI
] 865 RSI (405(g))

EXCHANGE

[ ] 890 OTHER STATUTORY

RELATIONS

ACTIONS

[ I 740 RAILWAY LABOR ACT

[ I 751 FAMILY MEDICAL
LEAVE ACT (FMLA)
[ ] 790 OTHER LABOR
LITIGATION

[ ] 791 EMPL RET INC

SECURITY ACT
IMMIGRATION

PRISONER CIVIL RIGHTS

[ ] 462 NATURALIZATION
[ 1 550 CIVIL RIGHTS
[ ) 555 PRISON CONDITION
[ ] 560 CIVIL DETAINEE

[
[
[
[
[

APPLICATION

[ ) 465 OTHER IMMIGRATION

[ J 891 AGRICULTURAL ACTS

FEDERAL TAX SUITS

( ] 870 TAXES (U.S. Plaintiff or

Defendant)
[ 1871 IRS-THIRD PARTY

[ ] 893 ENVIRONMENTAL
MATTERS

[ 1895 FREEDOM OF
INFORMATION ACT

26 USC 7609

[ 1 896 ARBITRATION
[ ] 899 ADMINISTRATIVE
PROCEDURE ACT/REVIEW OR
APPEAL OF AGENCY DECISION

[ 1950 CONSTITUTIONALITY OF
STATE STATUTES

ACTIONS

CONDITIONS OF CONFINEMENT

[ 1446 AMERICANS WITH

DISABILITIES-OTHER

[ 1448 EDUCATION

Checkif demanded in complaint:

CHECK IF THIS IS A CLASS ACTION

UNDER F.R.C.P. 23

DEMAND $

OTHER

DO YOy CLAjM THIS CASE IS RELATED TOACIVIL CASE NOW PENDING IN S.D.N.Y.?
JUDGE

DOCKET NUMBER

Check YES onlyifdemandedincomplaint

JURY DEMAND: S YES UNO

NOTE: You must also submit at the time of filing the Statement of Relatedness form (Form IH-32).

(PLACEAN x INONEBOXONLY)

H 1 Original

ORIGIN

2 Removed from

Proceeding

L-l 3 Remanded LJ ^ Reinstated or

State Court

from

I-] 3. allp.rtlr.pr.s.ntl

LJ 5 Transferred from 6 Multidistrict

Reopened

(Specify District)

[~l 7 Appeal toDistrict

Litigation

Judge from
Magistrate Judge
Judgment

Appellate

1'

Court

| | b. Atleast one
party Is pro se.

(PLACE AN x INONEBOXONLY)

1 U.S. PLAINTIFF

BASIS OF JURISDICTION

2 U.S. DEFENDANT 3 FEDERAL QUESTION

IF DIVERSITY, INDICATE

[x]4 DIVERSITY

CITIZENSHIP BELOW.

(U.S. NOT A PARTY)

CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)

(Place an [X] in one box for Plaintiff and one box for Defendant)
PTF

DEF

CITIZEN OF THIS STATE

[H

[]1

CITIZEN OR SUBJECT OF A
FOREIGN COUNTRY

[]3[]3

CITIZEN OF ANOTHER STATE

M 2

[ ]2

INCORPORATED or PRINCIPAL PLACE

OF BUSINESS IN THIS STATE

[]4(i4

PTF DEF

INCORPORATED and PRINCIPAL PLACE

PTF

DEF

[ ]5

[ ]5

[]6

[]6

OF BUSINESS IN ANOTHER STATE

FOREIGN NATION

PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)

LARKIN ARNOLD

280 South Beverly Drive

Suite 206

Beverly Hills, CA 90212

DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)

SONY MUSIC ENTERTAINMENT

550 MADISON AVENUE

NEW YORK, NEW YORK 10022

DEFENDANTS) ADDRESS UNKNOWN

REPRESENTATION IS HEREBY MADE THAT, AT THIS TIME, I HAVE BEEN UNABLE, WITH REASONABLE DILIGENCE, TO ASCERTAIN
RE9IBENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:

Checkone:

THIS ACTION SHOULD BE ASSIGNED TO:

WHITE PLAINS

\x\ MANHATTAN

(DO NOT check either box if this a PRISONER PETITION/PRISONER CIVIL RIGHTS
COMPLAINT.)

DATE^2/12/2014 SIGNATURE OF ATTORNEY OF RECORD

C

ADMITTED TO PRACTICE IN THIS DISTRICT

[] NO

W YES (DATE ADMITTED Mo. 10

RECEIPT #

Attorney Bar Code #

KEG5703

Magistrate Judge is to be designated by the Clerk ofNRfi20Ui\iLAi!' *

Magistrate Judge
Ruby J. Krajick, Clerk of Court by

is so Designated.
. Deputy Clerk, DATED

UNITED STATES DISTRICT COURT (NEW YORK SOUTHERN)

Yr. 1976

Richard S. Busch (SB 5613)

KING & BALLOW

315 Union Street, Suite 1100

Nashville, Tennessee 37201
Telephone: (615)259-3456
Facsimile: (615)726-541

Kenneth E. Gordon (KG 5703)

GORDON, GORDON & SCHNAPP, P.C.

437 Madison Avenue, 39th Floor

14

New York, New York 10022

Telephone: (212) 355-3200
Facsimile: (212)355-3292

.'A

Attorneys for Plaintiff

JUDGE TORRES
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

LARKIN ARNOLD,
Case No.

Plaintiff,

OI't;
O

COMPLAINT FOR BREACH OF j;

CONTRACT

SONY MUSIC ENTERTAINMENT,

DEMAND FOR JURY TRIAL
Defendant.

Plaintiff Larkin Arnold ("Plaintiff), by and through his attorneys, for his Complaint
against the Defendant named above alleges as follows:
PARTIES
1.

Plaintiff is a California resident.

?
:';?

2.

Defendant Sony Music Entertainment ("Sony") is a Delaware General

Partnership, whose partners are citizens of Delaware and New York. Sony's principal
place ofbusiness is located at 550 Madison Avenue, New York, New York 10022.
JURISDICTION AND VENUE

3.

The jurisdiction of this Court is based upon 28 U.S.C. 1332 as there is complete

diversity of citizenship between the parties, and the amount in controversy exceeds

$75,000.00 exclusive of interest and costs. This action for declaratory judgment is
brought pursuant to 28 U.S.C. 2201 which is within the exclusive jurisdiction of federal
courts pursuant to 28 U.S.C. 1331.

4.

Personal jurisdiction over Sony is proper in this Court on the grounds that (a)

Sony transacts business in the State of New York; (b) Sony's wrongful conduct, alleged
herein, occurred in the State of New York and in this District; and, (c) the Agreement, as

defined below, was entered into in this District and the parties agreed the validity,
interpretation and legal effect of the Agreement would be governed by the laws of the
State of New York.

5.

Venue is proper in this District pursuant to 28 U.S.C. 1391(b)(1) and (c)(2).

FACTUAL ALLEGATIONS

6.

Larkin Arnold is one of the most well-known and successful executives in the

music industry. In 1970, Arnold became one of the first African-Americans to be hired

as an attorney by a major record label when he joined Capital Records. In 1973, Arnold
created the Black Music Division for Capitol Records where he discovered Natalie Cole,
Peabo Bryson along with signing numerous other artists including Bill Cosby.

7.

Eventually, Arnold joined Sony's predecessor in interest where among other

accomplishments: he was the executive in charge of Michael Jackson's Thriller album.

Arnold was also responsible for signing Marvin Gaye and Eddie Murphy to Columbia
and Teena Marie to Epic. While working for Sony's predecessor, Arnold discovered
Luther Vandros and New Kids on the Block, among others.
8.

On or about October 7, 1980 and January 1, 1987, Arnold entered into

employment Agreements, as modified on August 15, 1983 and April 11, 1991 and other
dates (the "Agreements") with Sony's predecessor in interest CBS Records. (Sony and its
predecessor are collectively referred to as "Sony" hereinafter).
9.

Pursuant to and during the terms of the Agreement, Arnold signed numerous gold

and platinum selling acts to recording agreements with Sony and was responsible for the
recording careers of many of Sony's most important acts including Marvin Gaye, Luther
Vandross, New Kids on the Block, Michael Jackson, Gladys Knight, and Earth Wind &
Fire.

10.

In consideration of Arnold's performance under his employment Agreement,

Sony agreed to pay Arnold under a certain enumerated royalty structure and to account to
Arnold under that royalty structure.

11.

During the period beginning on January 1, 2007 and continuing through the

present, Sony has failed to properly account to and pay Plaintiff under the royalty
structure set forth in the Agreement.
12.

As set forth in the Agreements, Arnold engaged a royalty examiner in order to

examine Sony's books and records and determine the amount of royalties due Arnold for
the period January 1, 2007 until December 31, 2010. On or about November 8, 2011, the

royalty examiner provided a detailed audit report to Sony regarding its findings (the
"Audit") and putting Sony on notice of a number of breaches of the Agreements. The

Audit determined Sony underpaid Arnold for the period in question by hundreds of
thousands of dollars.

13.

While waiting for Sony to respond to the Audit, Arnold and Sony entered a

tolling/standstill agreement, which was subsequently extended on multiple occasions.

Arnold complied with the terms of the standstill agreement and is now able to file his suit
consistent with those terms.

14.

During this period, Arnold put Sony on notice its failure to correctly account to

and pay him were ongoing. Arnold objected to the statements issued after the Audit and

set forth his basis for those objections in multiple communications with Sony. In sum,
Sony has underpaid Arnold by approximately $1,300,000 inclusive of interest.

15.

The Audit determined, among other items, that Arnold was underpaid for the

distribution of permanent downloads, mastertones, and ringtones.

16.

Under the terms of the October 27, 1980 Agreement, royalties are payable to

Arnold based on the his pro-rata share of 50% of Sony's net receipts. Paragraph 4.3 of
the 1980 Agreement states:

"Master Recordings. The profit participation with respect to any Master Recording
embodying performances by Participating Act recorded during the Employment Period
and leased or licensed by CBS to others for their distribution of Records in the United

States shall be your allocable share of 50% of CBS' net receipts from its Licensee during
the Employment Period, computed after deduction of all Copyright, AFM and other
applicable third party payments; your allocable share of such net receipts shall be the
ratio that your otherwise applicable profit participation rate bears to the aggregate basic
royalty percentage rates of you and any artist, producer and other persons or entities
entitled to royalties in respect of such records."

17.

Pursuant to Paragraph 17 of the Modification dated August 15, 1983, which

amended Paragraph 11.1 of the 1980 Agreement, "CBS shall pay you profit participation
in perpetuity pursuant to the provisions of Section 4 with respect to Records recorded by
Participating Acts during the Employment Period. Under the terms of the Agreement,

music downloads, mastertones, and ringtones are "Phonograph Records."

18.

Sony has consistently failed to properly account to and pay Plaintiff for Master

Recordings licensed or leased to third-party Music Download and Mastertone Providers,

such as iTunes (Apple), eMusic, amazon.com, Verizon Wireless and others.

Music

Download and Mastertone Providers are third-parties that leased or licensed Master
Recordings from Sony and then distributed music downloads, mastertones, and ringtones
to end users on computers, cell phones, or other devices.

19.

After January 1, 2007, Sony leased or licensed the relevant Master Recordings to

third-party Music Download and Mastertone Providers, so that those third-party Music
Download and Mastertone Providers could distribute music downloads, mastertones, and

ringtones to the public. Sony received monies for this leasing and continuously and
persistently failed to account to and pay Plaintiff the 50% of net receipts due to Plaintiff
pursuant to the terms of the Agreement.

20.

Instead, between January 1, 2007 and present, Sony systematically accounted to

and paid Plaintiff for the Master Recordings licensed or leased to third parties, including
third party Music Download and Mastertone Providers at lower royalty rates, under

provisions of the Agreements, which are applicable only to Phonograph Records sold by
Sony, and are not applicable to the leasing or licensing of Master Recordings.

21.

The Ninth Circuit in F.B. T. Prods., LLC v. Aftermath Records, 621 F.3d 958 (9th

Cir. 2010), held that income from Music Download and Mastertone Providers was

licensing (or leasing in Sony's parlance) income. This decision means Plaintiff is entitled
to be paid on Sony's income from Music Download and Mastertone Providers under the
Masters leased provision of the Agreements.

22.

Sony's failure to correctly pay Plaintiff for music downloads, mastertones, and

ringtones derived from the relevant Master Recordings leased or licensed to Music
Download and Mastertone Providers has resulted in Sony underpaying Plaintiff in an

amount which can only be determined after Sony has provided an accurate accounting,
but believed to be in excess of $200,000.

23.

In addition, the Audit revealed Sony has failed to account for all exploitations of

the Master Recordings causing additional underpayments to Arnold. For instance, in

responding to the Audit, Sony admits it failed to correctly account to and pay Arnold for
certain Luther Vandross Master Recordings. However, Sony has not yet corrected this
error.

24.

The Audit also revealed Sony took incorrect container deductions in determining

the amounts due to Arnold. Sony admits its taking of a container deduction resulted in

Arnold being underpaid by $6,348 for domestic products and $2,632 for products sold in
foreign territories. However, Sony has not yet corrected this error resulting in Arnold

being deprived of approximately $10,000 that is rightfully his.

25.

Additionally, the Audit determined Sony underpaid Arnold by $7,598

domestically and $614 for foreign territory sales by taking incorrect net sales reductions.

Sony has agreed with the royalty examiners that Arnold was underpaid by $8,000, but has
failed to correct this error.

26.

Sony also reduced the amount payable to Arnold based on configuration

reductions.

However, the Agreements do not provide for a configuration reduction.

Sony agrees that it has underpaid Arnold by $12,424 domestically based on its
unwarranted taking of a configuration reduction, but again Sony has failed to correct its
error. Additionally, Sony's incorrect configuration deductions resulted in an additional
$4,522 underpayment for foreign sales.

27.

The Audit determined Sony has underpaid Arnold for the sale of non-catalog

products. For instance, SME took a ten percent wholesale deduction from these sales

even though the Agreements do not allow for such a deduction. Additionally, Sony took
a 50 percent royalty reduction on certain non-catalog records. However, under the terms

of the Agreements such a royalty reduction does not apply when records are sold to the
public. Sony has admitted it underpaid Arnold in an amount in excess of $950 for non-

catalog records, but it has not corrected this error or paid Arnold the money due him.
This same calculation problem for non-catalog records resulted in an additional $273
underpayment to Arnold based on sales from foreign territories.

28.

The Audit found certain products were sold, but not reported to Arnold. Sony

admits certain exploitations were not reported to Arnold.

However, Sony has not

quantified its admission. The Audit determined this failure to pay resulted in Arnold
being underpaid by at least $35,000.

29.

Sony also underpaid Arnold by $860 by taking an unwarranted "budget"

reduction for the albums King of Pop, Michael Jackson's This Is It, and Thriller 25th

Anniversary Edition, even though those albums were not "Budget Records" as defined by
paragraph 12.7 of the 1980 Agreement. Sony has admitted to this underpayment, but has,
to date, failed to correct it.

30.

The Audit determined Arnold was underpaid by in excess of $23,000 based on

Sony's failure to pay Arnold using the proper Royalty Base Price as defined by paragraph
12.35(b) of the Agreements. Sony admits in determining the Royalty Base Price, it used

a constructed retail price, instead of the actual suggested retail price (as required by the
Agreements). However, Sony denies it has any liability for this failure, arguing such a
constructed retail price is the industry custom and practice method of determining the
Royalty Base Price. This ignores the plain language of the Agreements and has resulted
in a significant underpayment to Arnold.

31.

In addition, Plaintiff has a reasonable belief that Sony has, through acts known

and unknown, failed to accurately account to and pay Plaintiff for Sony's exploitation of
the Master Recordings covered by the Agreements.
32.

Sony's failure to correctly account to and pay royalties to Plaintiff has resulted in

Plaintiff being significantly underpaid under the terms of the Agreements. Sony's
underpayment of royalties to Plaintiff is the direct and proximate cause of financial harm
to Plaintiff.

33.

Sony also withheld money due to Arnold in order to cover certain foreign income

taxes Sony was obligated to pay.

However, the Agreements do not allow for the

deduction of Sony's foreign tax obligations from royalties due to Arnold. This failure
resulted in Arnold being underpaid by at least $3,917.

34.

The Audit also determined Sony failed to account to Arnold for master use and

compilation income derived from the relevant Master Recordings. This failure to account
to Arnold has resulted in Sony underpaying Arnold for more than $10,000 due him.
35.

Upon information and belief, Sony has continued to incorrectly account to and

pay Plaintiff in the period after the specific written notice was sent to Sony.

Such

continuing failure to account to and pay Plaintiff has resulted in additional substantial
financial damage to Plaintiff.
36.

The royalty examiner engaged to conduct the Audit rolled forward the

underpayments to Arnold by reviewing statements issued by Sony following the

conclusion of the period audit. The statements begin with the period starting January 1,
2011 and continuing through December 31, 2014.

37.

This examination of the post-Audit statement issued by Sony showed that Sony's

failure to correctly account to and pay Arnold continued through at least December 31,
2014 and resulted in an additional underpayment to Arnold in excess of $350,000.

38.

For instance, Sony's failure to correctly account to and pay Arnold 50% of its net

receipts as set forth above resulted in an underpayment in excess of $161,000.

39.

Additionally, in the post-Audit period Sony failed to account to and pay Arnold

for more than $118,000 for unreported digital sales and more than $1,600 for ancillary
income.

40.

The examination of the post-Audit statements shows that Sony failed to account

to and pay Arnold for approximately $12,000 in royalties due for the distribution of
physical products in the United States.

41.

Finally, a review of the post-Audit statements shows underpayments of in excess

of $15,000 for foreign distributions.

CLAIM I

Breach of Contract

42.

Plaintiff re-alleges each and every allegation in paragraphs 1 through 24 as if fully

set forth herein.

43.

The Agreements are valid and enforceable contracts between Plaintiff and Sony.

44.

Plaintiff has performed all his obligations under the Agreements.

45.

Sony has failed to comply with the terms of the Agreements and failed to fulfill

its obligations under the Agreements by failing to properly account to and pay Plaintiff
royalties to Plaintiff.

46.

By reason of the foregoing and other acts not presently known by Plaintiff, Sony

has knowingly and materially breached its contractual obligations to Plaintiff under the
Agreements.

47.

Sony's material breach of the Agreements is the legal cause of substantial damage

to Plaintiff for which Plaintiff seeks monetary damages in an amount to be determined at

the time of trial, which, upon information and belief, is in excess of $400,000.
PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment against Sony as follows:

1.

Compensatory damages, the exact amount of which to be determined at the time

of trial, but in an amount not less than $1,000,000;

2.

An award of actual and reasonable attorneys' fees and costs for services rendered

to Plaintiff in this action;

3.

An award of pre- and post-judgment interest;

10

4.

Atrialbyjuryonall triable issues; and

5.

Such other and further relief as the Court deems just and proper.

Dated: December 12, 2014

New York, New York

By:

/s/ Richard Busch

Richard S. Busch (SB 5613)
KING & BALLOW

315 Union Street, Suite 1100

Nashville, Tennessee 37201

Telephone: (615)259-3456
Facsimile: (615)726-541

/ ^ -.

..- /

By:

'
7^
Kenneth E. Gordon (KG 5703)
GORDON, GORDON & SCHNAPP, P.C.

437 Madison Avenue, 39th Floor

New York, New York 10022

Telephone: (212) 355-3200

Facsimile: (212) 355-3292

11