When determining whether common questions predominate, courts focus on the issue of liability; and if the issue of liability is common to the class and can be determined on a class-wide basis, as in the instant matter, common questions will be held to predominate over individual questions. 89.
Common questions include, but are not limited to, the following: (a)
Whether the Coeval and Monkey Coins offered for sale in advance of the MONKEY CAPITAL ICO constitute securities under federal and state securities laws; (b)
Whether MONKEY CAPITAL violated federal and state securities laws in conducting its Initial Coin Offering and in failing to register its Coeval and Monkey Coins as securities; (c)
Whether statements made by Defendants before the scheduled MONKEY CAPITAL ICO misrepresented material facts about the Monkey Capital Market and the value of Coeval and Monkey Coins; (d)
Whether MONKEY CAPITAL has converted the funds belonging to Plaintiffs and the Class Members; (e)
Whether MONKEY CAPITAL owed duties to Plaintiffs and the Class Members, what the scope of those duties were, and whether MONKEY CAPITAL breached those duties; (f)
Whether MONKEY CAPITAL
’s
conduct was unfair or unlawful; (g)
Whether the terms of MONKEY CAPITAL
’s
ICO Terms for Investors are unconscionable, void, or voidable; (h)
Whether Defendants has been unjustly enriched; and (i)
Whether Plaintiffs and the Class Members have sustained damages as a result of
Defendants’
conduct. 90.
These common questions of law or fact predominate over any questions affecting only individual members of the Class.
Case 9:17-cv-81370-DMM Document 1 Entered on FLSD Docket 12/19/2017 Page 18 of 34
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S
ILVER
M
ILLER
11780 West Sample Road
•
Coral Springs, Florida 33065
•
Telephone (954) 516-6000 www.SilverMillerLaw.com
Typicality
Plaintiffs
’
claims are typical of those of the other Class Members because,
inter alia
, all members of the Class were injured through the common misconduct described above and were subject to Defendants
’ unfair and unlawful conduct.
Plaintiffs are advancing the same claims and legal theories on behalf of themselves and all members of the Class.
Adequacy of Representation
Plaintiffs will fairly and adequately represent and protect the interests of the Class Members in that they have no disabling conflicts of interest that would be antagonistic to those of the other members of the Class. 94.
Plaintiffs are committed to the vigorous prosecution of this action and have retained competent counsel, experienced in complex consumer class action litigation of this nature, to represent them. 95.
Plaintiffs seek no relief that is antagonistic or adverse to the members of the Class. 96.
The infringement of the rights and the damages Plaintiffs have suffered are typical of other Class members. 97.
To prosecute this case, Plaintiffs have chosen the law firm of Silver Miller. Silver Miller is experienced in class action litigation and has the financial and legal resources to meet the substantial costs and legal issues associated with this type of litigation.
Superiority
Class action litigation is an appropriate method for fair and efficient adjudication of the claims involved herein. 99.
Class action treatment is superior to all other available methods for the fair and efficient adjudication of the controversy alleged herein; as it will permit a large number of Class
Case 9:17-cv-81370-DMM Document 1 Entered on FLSD Docket 12/19/2017 Page 19 of 34
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S
ILVER
M
ILLER
11780 West Sample Road
•
Coral Springs, Florida 33065
•
Telephone (954) 516-6000 www.SilverMillerLaw.com
Members to prosecute their common claims in a single forum simultaneously, efficiently, and without the unnecessary duplication of evidence, effort, and expense that hundreds of individual actions would require. 100.
Class action treatment will permit the adjudication of relatively modest claims by certain Class Members, who could not individually afford to litigate a complex claim against a well-funded corporate defendant like MONKEY CAPITAL. 101.
Further, even for those Class Members who could afford to litigate such a claim, it would still be economically impractical. 102.
The nature of this action and the nature of laws available to Plaintiffs make the use of the class action device a particularly efficient and appropriate procedure to afford relief to Plaintiffs and the Class Members for the wrongs alleged because: (a)
Defendants would necessarily gain an unconscionable advantage if they were allowed to exploit and overwhelm the limited resources of each individual Class member with superior financial and legal resources; (b)
The costs of individual suits could unreasonably consume the amounts that would be recovered; (c)
Proof of a common course of conduct to which Plaintiffs were exposed is representative of that experienced by the Class and will establish the right of each member of the Class to recover on the cause of action alleged; (d)
Individual actions would create a risk of inconsistent results and would be unnecessary and duplicative of this litigation; (e)
The Class Members are geographically dispersed all over the world, thus rendering it inconvenient and an extreme hardship to effectuate joinder of their individual claims into one lawsuit; (f)
There are no known Class Members who are interested in individually controlling the prosecution of separate actions; and (g)
The interests of justice will be well served by resolving the common disputes of potential Class Members in one forum.
Case 9:17-cv-81370-DMM Document 1 Entered on FLSD Docket 12/19/2017 Page 20 of 34
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S
ILVER
M
ILLER
11780 West Sample Road
•
Coral Springs, Florida 33065
•
Telephone (954) 516-6000 www.SilverMillerLaw.com
Plaintiffs reserve the right to modify or amend the definition of the proposed class and to modify, amend, or create proposed subclasses before the Court determines whether certification is appropriate and as the parties engage in discovery. 104.
The class action is superior to all other available methods for the fair and efficient adjudication of this controversy. 105.
Because of the number and nature of common questions of fact and law, multiple separate lawsuits would not serve the interest of judicial economy. 106.
As a result of the foregoing, Plaintiffs and the Class Members have been damaged in an amount that will be proven at trial. 107.
Plaintiffs have duly performed all of their duties and obligations, and any conditions precedent to Plaintiffs bringing this action have occurred, have been performed, or else have been excused or waived. 108.
To enforce their rights, Plaintiffs have retained undersigned counsel and are obligated to pay counsel a reasonable fee for its services, for which Defendants are liable as a result of their bad faith and otherwise.
COUNT I
–
UNREGISTERED OFFER AND SALE OF SECURITIES IN VIOLATION OF SECTIONS 5(a) AND 5(c) OF THE SECURITIES ACT
Plaintiffs re-allege, and adopt by reference herein, Paragraphs 1 - 108 above, and further allege: 109.
Defendants, by engaging in the conduct described above, directly or indirectly made use of means or instruments of transportation or communication in interstate commerce or of the mails to offer to sell or to actually sell securities, or to carry or cause such securities to be carried through the mails or in interstate commerce for the purpose of sale or for delivery after sale. 110.
Defendants are “sellers” within the meaning of 15 U.S.C. § 77e because they or their
agents solicited Plaintiffs
’
and the Class Members’ investments in the
MONKEY CAPITAL ICO.
Case 9:17-cv-81370-DMM Document 1 Entered on FLSD Docket 12/19/2017 Page 21 of 34
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S
ILVER
M
ILLER
11780 West Sample Road
•
Coral Springs, Florida 33065
•
Telephone (954) 516-6000 www.SilverMillerLaw.com
The terms of the MONKEY CAPITAL ICO called for an investment of cryptocurrency or fiat currency by Plaintiffs and the Class Members. 112.
The funds paid by Plaintiffs and the Class Members pursuant to the MONKEY CAPITAL ICO were pooled by Defendants in an effort by Defendants to secure a profit for themselves and the investors. As a result, the investors, including Plaintiffs and the Class Members, shared in the risks and benefits of the investment. 113.
Plaintiffs and the Class Members relied on, and are dependent upon, the expertise and efforts of Defendants for their investment returns. 114.
Plaintiffs and the Class Members expected that they would receive profits from their investments in Defend
ants’ efforts.
Coeval and Monkey Coins constitute investment contracts and are therefore subject to federal securities laws, including the registration requirements promulgated thereunder. 116.
No registration statements have been filed with the SEC or have been in effect with respect to any of the offerings alleged herein. 117.
By reason of the foregoing, Defendants have violated Sections 5(a) and 5(c) of the Securities Act, 15 U.S.C. §§ 77e(a) and 77e(c). 118.
As a direct and proximate result of Defendants’ unregistered
sale of securities, Plaintiffs and the Class Members have suffered damages in connection with their respective purchases of Coeval and Monkey Coin securities in the MONKEY CAPITAL ICO. 119.
Defendant DANIEL HARRISON is subject to liability by virtue of his top-level executive position with MONKEY CAPITAL and his undeniable influence over the enterprise, which provided him the power to control or influence
MONKEY CAPITAL’s
actions. For example, DANIEL HARRISON is an executive of MONKEY CAPITAL, is one of its only shareholders, and
is responsible for much of the company’s day
-to-day operations, including its operations vis-à-vis
Case 9:17-cv-81370-DMM Document 1 Entered on FLSD Docket 12/19/2017 Page 22 of 34