Escolar Documentos
Profissional Documentos
Cultura Documentos
NOW COME Casco Bay Vending, LLC (“Casco Bay Vending”), Theodore Morton and
Nicole Morton (collectively “Plaintiffs”) and complain against Bacon Whitney, LLC (“Bacon
Whitney”), Craig R. Jalbert as trustee-assignee for the Benefit of Creditors of Bacon Whitney,
LLC, (the “Trustee”), IntelliVend, LLC (“IntelliVend”) and Christopher Rollins (“Rollins”)
(the defendants other than the Trustee may be referred to herein collectively as the
“Defendants”).
The Parties
1. Plaintiff Casco Bay Vending is a Maine limited liability company with a principal
Hampshire.
Hampshire.
Newton, Massachusetts who serves as the trustee-assignee for the benefit of creditors of Bacon
Whitney.
Massachusetts.
York.
from the fact that Plaintiffs and Defendants are residents of different states.
9. This action also falls within the Court’s diversity jurisdiction pursuant to 28
U.S.C. §1332, because the amount in controversy exceeds the sum or value of $75,000, exclusive
because a substantial part of the events giving rise to this action occurred in this District and the
franchise territories and vending equipment that are the subject of this action are located in this
District.
Facts
2
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 3 of 28
11. Plaintiff Theodore Morton is the sole Member of Casco Bay Vending.
13. Casco Bay Vending is a limited liability corporation engaged in the business of
supplying vending machine and related services for the provision of snacks and beverages.
14. Defendant Bacon Whitney is a limited liability company which was engaged in
the business of franchising vending machine services and leasing vending and related machines
15. Upon information and belief, Elders and Bacon Whitney are owned by the same
members and/or have common ownership, including, but not limited to John Halpern and George
Denny.
purpose to facilitate the sale of franchises, Elders was at all relevant times the alter ego of Bacon
Whitney.
17. Beginning in the summer of 2008, and through the recommendation of Raj
Mehra, Executive Vice President for Bacon Whitney, Plaintiffs Theodore Morton and Casco Bay
Vending retained Rollins to perform the services of a consultant and advisor to assist Theodore
Morton and Casco Bay in the acquisition of business opportunities in the form of a lease and
18. Rollins had worked closely with Bacon Whitney and Bacon Whitney’s president,
Mark Bruno, in the past and, upon information and belief, he was intimately aware of the fact
that Bacon Whitney was experiencing financial and operational difficulties at the time he became
19. As part of his consulting services, Rollins agreed to provide a business plan to
Casco Bay Vending and to validate the financial representations made by Bacon Whitney to
3
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 4 of 28
Casco Bay Vending and Theodore Morton in connection with the sale of franchise territories
20. Acting on the advice of Defendant Rollins, Theodore Morton and Casco Bay
Vending negotiated with Bacon Whitney to purchase a vending franchise from Bacon Whitney.
21. Acting on the advice of Rollins, Theodore Morton and Casco Bay Vending also
entered into negotiations with Elders Financing to procure loans to purchase the Bacon Whitney
franchise.
22. Upon information and belief, Rollins was aware at all relevant times, due to his
past involvement with Bacon Whitney, that Bacon Whitney was experiencing severe financial
difficulties during the time period leading up to the closing on the sale of the franchise and
Leases with Casco Bay Vending, but Rollins failed to disclose such facts to Plaintiffs.
23. During the negotiations with Bacon Whitney and Elders, Bacon Whitney
represented that it had contractual rights to the customers in the franchise areas being sold to
Casco Bay Vending, including very large customers such as UNUM and LL Bean, when that
24. During the negotiations, Defendant Bacon Whitney grossly overstated and
misrepresented to Ted Morton and Casco Bay Vending the cash flow from the customers in the
25. Bacon Whitney and, upon information and belief, Rollins were aware that Bacon
Whitney had become insolvent, and was in an unstable and declining financial condition during
the weeks before the Closing and as of the Closing, but the Defendants failed to disclose such
26. Although Rollins failed to produce the promised business plan to Theodore
Morton and Casco Bay Vending, Rollins assured, and represented to, Theodore Morton and
4
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 5 of 28
Casco Bay Vending that Bacon Whitney was solvent, that Bacon Whitney had the ability to
perform its contractual obligations, and that, if Bacon Whitney ever did go out of business,
Casco Bay Vending could protect itself by buying the vending machines for current value and
27. Theodore Morton and Casco Bay Vending placed their trust in Rollins, and relied
on his assurances and representations, in determining to proceed with the Bacon Whitney
28. On September 11, 2008, Defendant Elders Finance and Casco Bay Vending
entered into loan agreements for loans totaling $308,000 (hereinafter the “Loans”) to finance the
29. On September 11, 2008, Plaintiffs Theodore Morton and Nicole Morton executed
30. On September 12, 2008, Plaintiff Casco Bay Vending entered into two (2)
Whitney, whereby Bacon Whitney agreed to grant franchises to Casco Bay to operate vending
equipment and other related equipment as a Bacon Whitney franchise in two territories in
Maine.
31. On September 12, 2008, and simultaneous with the execution of the Franchise
Agreements, Plaintiff Casco Bay Vending entered into two (2) Lease Agreements (hereinafter
“Leases”) with Defendant Bacon Whitney, whereby Bacon Whitney agreed to lease equipment
to Casco Bay, which included vending machines, beverage dispensing equipment, and other
5
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 6 of 28
32. On September 12, 2008, Plaintiffs Theodore Morton and Nicole Morton executed
an agreement to act as Guarantor of the obligations of Plaintiff Casco Bay Vending under the
33. The closing on the sale of the franchise areas by Bacon Whitney occurred on or
34. At the Closing, Casco Bay Vending paid Bacon Whitney $508,000 as
consideration for the franchise and lease rights, with $308,000 of the purchase price being
35. Prior to the Closing, Bacon Whitney represented to Theodore Morton and Casco
Bay Vending that the franchise territories being acquired by Casco Bay Vending had customer
revenues in excess of $1,400,000 per year, when, in fact, the revenues for the territories were
substantially lower than the amount represented by Bacon Whitney and these facts were known
to Bacon Whitney as its internal documents reflected the actual, lower receipts from customers
36. Even though Nicole Morton had no involvement and/or ownership in Casco Bay
Vending and Nicole Morton’s guarantee was not required to meet underwriting standards of the
Elders’ loans and/or the Franchises and Leases, Elders and Bacon Whitney required her
guarantee of the Elders loans and the Bacon Whitney Franchises and Leases as a condition of the
Closing on the sole basis that she was the spouse of Theodore Morton.
37. Casco Bay’s primary Bacon Whitney contact, Raj Mehra, was terminated as an
employee of Bacon Whitney within days of the Closing and Bacon Whitney terminated other key
personnel within the two months following the Closing which prevented Bacon Whitney from
meeting its contractual obligations to Casco Bay, including providing support, training and the
6
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 7 of 28
38. Subsequent to the Closing, Bacon Whitney was unable to hand over the LL Beans
account and other accounts to Casco Bay Vending, which caused substantial damage to Casco
Bay Vending.
39. Bacon Whitney also breached its Lease and Franchise Agreements by failing to
equip the vending machines with monitoring technology, failing to comply with warranties, and
agreements.
40. As a result of the problems with the hand over of the LL Bean account and other
accounts, Bacon Whitney agreed that Casco Bay Vending would be relieved of the obligation to
pay royalties in an amount sufficient to reimburse Casco Bay Vending for lost revenues and
Casco Bay Vending would be given an additional franchise area at no charge but the
documentation on this agreement could not be completed because Bacon Whitney terminated its
41. Rollins continued to provide consulting services to Casco Bay Vending and
Theodore Morton after the Closing and Rollins advised Casco Bay Vending and Theodore
Morton to work with Bacon Whitney and to refrain from exercising their legal rights, even as
Bacon Whitney defaulted under the Franchise Agreements and Leases, and, upon information
and belief, even as Rollins pursued acquiring the assets of Bacon Whitney.
42. During the fall of 2008, as a result of its insolvency, Bacon Whitney made an
assignment for the benefit of creditors to Craig R. Jalbert, as Trustee-Assignee for the benefit of
Assignment for the Benefit of Creditors under Massachusetts law, MASS. GEN. LAWS GL. Ch.
7
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 8 of 28
203, § 40, et seq. , entered into a Management Agreement with IntelliVend covering all of the
44. Upon information and belief, Rollins is the manager and sole member of
IntelliVend.
45. Plaintiffs Theodore Morton, Nicole Morton, and Casco Bay Vending, were
induced to enter into the above-described Agreements and Guarantees by false and misleading
statements and omissions of all of the Defendants, Bacon Whitney, and Rollins, including the
following:
territories, such as LL Bean. Theodore Morton met with John Hotchins, CEO of
Bacon Whitney, on August 26, 2008 at Hotchins’ office and Hotchins represented
that Bacon Whitney had a 12 year contract with Aramark and LL Bean so that
Morton did not need to worry about losing revenues on the basis of any problems
with LL Bean.
b. that Bacon Whitney had cash flow in excess of $1.4 million from the
franchise territories being sold to Casco Bay Vending. Raj Mehra, of Bacon
8/28/08 for the Route 103 route and the Route 104 route and he represented that
the statements were based on actual numbers. In the weeks before the closing,
Rollins confirmed to Theodore Morton and Casco Bay Vending that the franchise
John Hotchins CEO of Bacon Whitney told Theodor Morton that Bacon Whitney
8
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 9 of 28
was on solid ground, that Bacon Whitney was financially strong, and Bacon
Whitney was able to proceed with its business plan. These representations were
made by Hotchins to Morton on the phone on several dates including the first
week of August 2008, the second week of August, 2008 and in person at a
spoke on numerous occasions with Steve Kowalik, who was the Area Vice
President, Northeast for Bacon Whitney in the month prior to the Closing and
Bacon Whitney and Rollins represented repeatedly, between August6, 2008 and
the closing on September 12, 2008 that Bacon Whitney was in good financial
condition, Bacon Whitney had 18 months working capital on hand, and the
d. that Bacon Whitney had the present ability to perform the franchise
services that it promised to provide to Casco Bay Vending pursuant to the Lease
and Morton, Hotchins represented that Casco Bay Vending would have the
necessary help from Bacon Whitney (including the services of Mary Boyle and
Smitty Bell) for as long as it took for Morton to get comfortable with running the
franchise territories.
machines. This information was contained in lists provided by Raj Mehra Bacon
9
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 10 of 28
f. That Casco Bay could acquire the vending machines and continue in
and “the worst that can happen is that Bacon Whitney goes away and you end up
representations were made by Rollins to Theodore Morton in the weeks before the
closing and were repeated in an email from Rollins on September 10, 2008.
Bacon Whitney assured Theodore Morton in early September 2008 that Bacon
Whitney would send up all their techs to the Maine territories and all the
46. At the time Bacon Whitney, and/or Rollins made the representations listed above
to Ted Morton and Casco Bay Vending, each of the representations was not true, and each of the
47. After Rollins and IntelliVend took control of the Bacon Whitney assets, they
made demands upon Theodore Morton and Casco Bay Vending to make payments of royalties
that IntelliVend claimed were due Bacon Whitney, even though Bacon Whitney had previously
agreed to abate royalties due to Bacon Whitney’s breach of the Franchise Agreements and
Leases.
48. Upon information and belief, at the time that IntelliVend took over the Bacon
Whitney assets and thereafter, IntelliVend was undercapitalized and did not have the necessary
10
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 11 of 28
resources and personnel to operate the franchise territories and to fulfill the obligations of the
49. Bacon Whitney and IntelliVend have failed to meet the obligations of the
franchisor and lessor under the Franchise Agreements and Leases by failing to provide training,
commissions to customers, and the good will that had been promised to Ted Morton and Casco
50. Casco Bay Vending has lost numerous customers in the franchise territories due
to the failure of Bacon Whitney and IntelliVend to pay commissions due to the customers and
51. Bacon Whitney has gone out of business and the good will associated with the
52. Pursuant to both the Franchise Agreements and the Leases, Bacon Whitney
breached such agreements when it became insolvent and made an assignment for the benefit of
creditors.
53. Casco Bay Vending has provided notice to Bacon Whitney and IntelliVend that
Bacon Whitney is in breach of the Franchise Agreements and the Leases due to its insolvency,
assignment for the benefit of creditors, its misrepresentations, and its failure to perform its
contractual obligations and Bacon Whitney and IntelliVend have failed to cure defaults as
54. When Bacon Whitney assigned its assets to the Trustee and the Trustee assigned
the assets to IntelliVend, IntelliVend took the assets that were covered by Casco Bay Vending’s
lease, subject to the terms and conditions of the Leases, pursuant to Article 6 2 A of the Uniform
Commercial Code.
11
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 12 of 28
55. Casco Bay Vending has demanded that Bacon Whitney and/or IntelliVend sell
Casco Bay Vending the vending machines at the current market value as required by the Leases,
56. Ted Morton, Nicole Morton and Casco Bay Vending have been damaged by the
actions of the Defendants because they paid for franchises and leases in a fully functioning,
financially stable, national franchise system, but now find that they are operating their vending
business without the promised services, benefits, and/or revenues, with customer relationships
which are damaged due to Bacon Whitney’s and IntelliVend’s failure to meet their obligations,
with an assignee of the franchisor which has inadequate resources to fulfill Bacon Whitney’s
obligations, and with no party willing to assume responsibility for the obligations that were
57. Casco Bay Vending presently utilizes no trademarks and/or services provided by
Bacon Whitney and/or IntelliVend, other than the vending machines which Casco Bay Vending
COUNT I
Defendants
Fraud/Deceit
59. Prior to the Closing, Defendants Bacon Whitney and Rollins intentionally made
the misrepresentations of material fact to the Plaintiffs as described in Paragraph 46 above and
60. Defendants Bacon Whitney and, upon information and belief, Rollins, had
knowledge of the following material facts, but failed to disclose these material facts to the
Plaintiffs:
12
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 13 of 28
a. that Bacon Whitney did not have contractual rights to certain customers,
such as LL Bean;
b. that Bacon Whitney had substantially lower levels of cash flow from its
clients in the territories acquired by Casco Bay Vending than Bacon Whitney
c. that Bacon Whitney was financially unstable or insolvent, and was on the
verge of laying off employees and closing some or all of its operations; and
61. Defendants Bacon Whitney and Rollins intentionally and deliberately made the
statements and omissions of material fact described in the preceding paragraphs in order to
induce the Plaintiffs into executing the various Agreements and Guarantees that are the subject
of this Complaint.
62. Plaintiffs Theodore Morton, Nicole Morton, and Casco Bay Vending, were
justifiably induced to enter into the Agreements and Guarantees that are the subject of this
Complaint, by statements and omissions of all the Defendants, Bacon Whitney and Rollins.
63. Defendants have damaged Plaintiffs and the Defendants are liable to the Plaintiffs
for fraud.
COUNT II
Breach of Contract
Franchise Agreements
65. Bacon Whitney is insolvent and has made an assignment for the benefit of
creditors.
13
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 14 of 28
66. Pursuant to the terms of the Franchise Agreements, Bacon Whitney, is in default
when:
of creditors;
67. Bacon Whitney breached the Franchise Agreements by becoming insolvent and
by making misrepresentations.
68. Bacon Whitney also breached the Franchise Agreements by failing to provide
services, by misrepresenting the revenues in the territories, and by failing to provide technology
entitled to any and all contractual remedies under law flowing from that breach, including, but
not limited to, monetary damages, rescission, reformation and/or specific performance.
COUNT III
Breach of Contract
Leases
72. Pursuant to the terms of the Leases, Defendant Bacon Whitney, as Lessor, is in
default when:
creditors;
14
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 15 of 28
73. Defendant Bacon Whitney breached the Leases by becoming insolvent, ceasing to
operate its businesses, making material misrepresentations, and otherwise breaching the Lease
(including failing to equip the vending machines with monitoring technology, failing to repair or
replace malfunctioning machines, and by refusing to sell Casco Bay Vending the vending
entitled to any and all contractual remedies under law flowing from that breach, including, but
not limited to, monetary damages, rescission, reformation and/or specific performance and
COUNT III
Breach of Implied Duty of Good Faith and Fair Dealing
76. The actions of Bacon Whitney and Rollins, including, but not limited to, the acts
complaint, represent a violation of the implied contractual duty of good faith and fair dealing
77. The actions of the said Defendants have damaged the interests of Casco Bay
COUNT IV
Negligent Misrepresentation
79. Prior to September 12, 2008, Defendants Bacon Whitney and Rollins negligently
made misrepresentations of material fact to the Plaintiffs, without ascertaining the accuracy of
15
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 16 of 28
80. Defendants Bacon Whitney and Rollins negligently failed to disclose these
a. that Bacon Whitney did not have contractual rights to certain customers,
such as LL Bean;
b. that Bacon Whitney had substantially lower levels of cash flow from its
become insolvent.
d. that Bacon Whitney intended to lay off employees shortly after the
81. Defendants Bacon Whitney and Rollins made the statements and omissions of
material fact outlined in the preceding paragraphs in a manner in which Defendants should have
known that Plaintiffs would act in their peril by executing the various Agreements and
Guarantees that are the subject of this Complaint and Defendants failed to exercise reasonable
82. Plaintiffs Theodore Morton, Nicole Morton, and Casco Bay Vending, were
justifiably induced to enter into the above-described Agreements and Guarantees by statements
and omissions of all of the Defendants, Bacon Whitney, Elders, and Rollins.
COUNT V
Breach of Fiduciary Duty
85. Plaintiffs Theodore Morton and Casco Bay Vending contracted with Rollins to
86. As a consultant and trusted advisor to Theodore Morton and Casco Bay Vending,
87. Ted Morton and Casco Bay Vending placed a high degree of care and confidence
in Rollins and proceeded with the justifiable understanding that Rollins would protect their
interests as they negotiated with Bacon Whitney and Elders regarding the Franchise Agreements
88. Defendant Rollins breached his fiduciary duty to the Plaintiffs by concealing and
failing to disclose that Bacon Whitney was financially unstable and insolvent, or about to
become insolvent, prior to, and at the time that the Plaintiffs executed the Franchise Agreements
and the Leases, failing to disclose that Bacon Whitney was misrepresenting the financial
performance of the franchise territories, and providing Plaintiffs with false assurances that
Rollins had investigated the financial condition of Bacon Whitney and the franchise territories
and that Plaintiffs could safely proceed to enter into the franchise arrangements with Bacon
Whitney.
89. After the Closing, Rollins continued to act as the consultant and advisor to the
Mortons and Casco Bay Vending and Rollins advised that Plaintiffs not exercise their legal rights
against Bacon Whitney during time periods in which Rollins was, without Plaintiffs’ knowledge,
pursuing the purchase of the Bacon Whitney assets and Rollins failed to disclose that his
interests were in conflict with the Mortons and Casco Bay Vending as Rollins was pursuing the
90. Defendant Rollins breached his fiduciary duty to the Plaintiffs by concealing and
failing to disclose the state of affairs with the insolvent Bacon Whitney franchise system and by
failing to reveal his own conflicting interests as a potential future purchaser of the assets of
17
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 18 of 28
91. Defendant Rollins is liable to Plaintiffs Theodore Morton and Casco Bay Vending
COUNT VI
Unfair Trade Practices
93. Prior to September 12, 2008, Defendant Bacon Whitney and Rollins intentionally
made deceptive representations to the Plaintiffs and failed to disclose material facts to Plaintiffs,
as described above.
94. Defendants Bacon Whitney and Rollins intentionally or recklessly made the
statements and omissions in order to induce the Plaintiffs into executing the various Agreements
95. Plaintiffs Theodore Morton, Nicole Morton, and Casco Bay Vending, were
justifiably induced to enter into the above-described Agreements and Guarantees by false
statements and omissions of all of the Defendants, Bacon Whitney and Rollins, as described
hereinabove.
96. Defendants’ conduct constitutes unfair or deceptive acts in the conduct of trade or
97. Plaintiffs are entitled to treble damages pursuant to MASS. GEN. LAWS GL. Ch.
93A, § 11.
COUNT VII
Violation of Maine Business Protection Act
99. The sale of the franchise territory and the lease of the vending machines by Bacon
4691(3).
18
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 19 of 28
100. The Defendants failed to provide Casco Bay Vending with the required disclosure
profits of the franchise areas and by making false or deceptive representations regarding Bacon
COUNT VIII
Request for Declaratory Relief Pursuant to ALM Gl ch. 231A, Section 2 and 28 USC
Section 2201
104. IntelliVend, as the assignee of Bacon Whitney, LLC, has taken the franchise
contracts and the leases subject to any claims or defenses of Casco Bay Vending, Theodore
105. As a result of the breaches by Bacon Whitney of the franchise agreements and the
leases (including, without limitation, Bacon Whitney’s insolvency and transfer of its assets to the
Trustee for the benefit of creditors) and the failure and/or inability of Bacon Whitney or
IntelliVend to cure such breaches, Casco Bay Vending has demanded that IntelliVend cooperate
in the termination of the franchises and leases by agreeing to transfer the vending machines to
Casco Bay Vending for the current market value of such machines as required by paragraph 14
of the leases.
106. IntelliVend has refused to comply with the requirement of conveying the vending
107. IntelliVend has also taken the position that, upon termination of the franchise
agreements and leases with Casco Bay Vending, IntelliVend can prevent Casco Bay Vending
from doing business within its current franchise areas in the State of Maine.
19
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 20 of 28
108. Casco Bay Vending presently wishes to terminate the franchise agreements and
leases, with the court and/or arbitrator determining: (i) the amount, if any, due from Casco Bay
Vending, Theodore Morton and Nicole Morton to IntelliVend after the value of the machines is
determined and the damages due from Bacon Whitney to Casco Bay Vending, Theodore Morton
and Nicole Morton are applied as an offset and after all defenses of Casco Bay Vending,
Theodore Morton and Nicole Morton to the claims of IntellliVend are adjudicated; and (ii) that
the title to the vending machines shall be immediately transferred to Casco Bay Vending by the
current title holder, and (iii) that there is no restriction on Casco Bay Vending continuing to
109. Given the dispute between Casco Bay Vending, Theodore Morton, Nicole Morton
and IntelliVend regarding the parties’ rights and obligations under the franchise agreements and
leases, the Plaintiffs request that the court and/or arbitrator issue declaratory relief pursuant to
ALM Gl ch. 231A, Section 2 and/or 28 USCS Section 2201 et seq. and determine (i) that Bacon
Whitney has defaulted pursuant to the franchise agreements and leases by, among other things,
becoming insolvent and transferring its assets to a trustee for the benefit of creditors; (ii) that
IntelliVend has taken the assignment of the franchise agreements and leases with Casco Bay
Vending subject to all claims and defenses of Casco Bay Vending; (iii) that Casco Bay Vending
can now terminate the franchise agreements and lease agreements that were assigned by Bacon
Whitney to IntelliVend and that IntelliVend has an obligation to transfer immediately all
vending machines in the possession of Casco Bay Vending to Casco Bay Vending for the current
market value of such machines, less the amount of the offsetting amounts due to Casco Bay
Vending by Bacon Whitney and IntelliVend; (iv) that Casco Bay Vending is not prohibited by
the franchise agreements and/or leases from continuing to conduct its business in the State of
Maine or elsewhere; (v) that IntelliVend’s claims against the Plaintiffs are void ab initio due to
20
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 21 of 28
the fraudulent conduct of Bacon Whitney and the claims are unenforceable due to Bacon
Whitney’s and IntelliVend’s breach of the franchise agreements and leases; and (vi) that Nicole
Morton and Theodore Morton’s obligations to Bacon Whitney and IntelliVend pursuant to the
guarantees are extinguished because they were fraudulently induced to enter into the guarantees
and as a result of the other defenses asserted by Nicole Morton and Theodore Morton to such
claims.
COUNT X
Recovery Against Trustee
111. During the fall of 2008, as a result of its insolvency, Bacon Whitney made an
assignment for the benefit of creditors to Craig R. Jalbert, as Trustee-Assignee for the benefit of
Assignment for the Benefit of Creditors under Massachusetts law, MASS. GEN. LAWS GL. Ch.
203, § 40, et seq., entered into a Management Agreement with IntelliVend covering all of the
Bacon Whitney.
114. Reserving all rights against to recover against Bacon Whitney, Elders, Rollins and
IntelliVend, Plaintiffs seek payment of the judgment in this action, and all other debts of Bacon
COUNT XI
Negligence
21
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 22 of 28
116. Rollins as the consultant to the Mortons and Casco Bay Vending, had a duty to
represent their interests with reasonable care, and not the interests of Bacon Whitney, with
117. Rollins had a duty to disclose information in his possession relating to the
financial instability and the financial prospects of Bacon Whitney (including accurate
information relating to Bacon Whitney’s contracts with its customers and the performance of its
territories) in his dealings with the Mortons and Casco Bay Vending.
118. At the time that Rollins was acting as consultant to the Mortons and to Casco Bay
Vending, Rollins was being paid $13,500 per month by Bacon Whitney and was acting upon the
interests of Bacon Whitney in attempting to ensure that the sale of the franchise territory was
closed with the Mortons and Casco Bay Vending even though the franchise territories had severe
119. Rollins failed to disclose to the Mortons and Casco Bay Vending that he was
being paid $13,500 as an employee or consultant to Bacon Whitney at the same time that he was
holding himself out as a trusted advisor to the Mortons and to Casco Bay Vending.
120. Rollins failed to disclose material adverse facts regarding Bacon Whitney and
Rollins confirmed the revenues from the territories when such revenue projects were grossly
121. Rollins also failed to disclose that he had a very close relationship with the
122. Rollins also failed to disclose that he was pursuing the purchase of the assets of
123. Rollins acted in a negligent manner in his dealings with the Mortons and Casco
Bay Vending and is liable to the Mortons and Casco Bay Vending for all resulting damages.
22
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 23 of 28
COUNT XII
Fraudulent Transfer
125. During the fall of 2008, Rollins arranged for IntelliVend to acquire the assets of
Bacon Whitney from Craig R. Jalbert as Trustee/Assignee for the Benefitof Creditors of Bacon
Whitney, LLC.
126. The Trustee and IntelliVend signed an Agreement dated December 18, 2008
which calls for a purchase price for the assets of Bacon Whitney involving the following sums:
commissions payable to vending customers, assumption of sales and use tax not to exceed
$330,000, and assumption of vacation pay due to former employees hired by IntelliVend.
127. As part of the transfer, IntelliVend obtained all of the equipment owned by Bacon
128. As of December 31, 2007, Bacon Whitney had valued its fixed assets including
and fixtures and fleet at a value of $10,204,264 pursuant to its balance sheet.
129. The transfer of the Bacon Whitney assets to IntelliVend was made by the
Defendants with actual intent to hinder, delay or defraud creditors including Casco Bay Vending.
130. Bacon Whitney and/or the Trustee did not receive a reasonably equivalent value
131. The transfer was made to an entity owned and controlled by an insider,
Christopher Rollins, who was previously a highly paid consultant and an employee of Bacon
Whitney and a close business associate of the officers and principal shareholders of Bacon
Whitney.
132. The purchase price for the transfer has been concealed.
23
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 24 of 28
133. At the time of the transfer, Bacon Whitney had been threatened with lawsuits or
136. The transfer of the assets was pursuant to a scheme whereby the assets were
transferred to the Trustee and then to the shell corporation of IntelliVend established by
137. The transfer of the Bacon Whitney assets constitutes a fraudulent transfer and is
in violation of the Uniform Fraudulent Transfer Act, as adopted in Maine and elsewhere,
138. Plaintiffs are entitled to avoidance of the transfer to the extent necessary to satisfy
their claims and damages in the amount equal to double the value of the assets as conveyed,
WHEREFORE, Plaintiffs request that this Honorable Court enter judgment in Plaintiffs’
favor:
24
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 25 of 28
the Franchise Agreements and Leases with Plaintiff Casco Bay Vending;
their obligations under their Guarantees and that Casco Bay Vending is
g. Finding that Casco Bay Vending has the right to terminate the franchise
h. Finding that IntelliVend, as the assignee of Bacon Whitney, has taken the
Casco Bay Vending, Theodore Morton and Nicole Morton against Bacon
Whitney.
i. Declaring that IntelliVend has no legal basis to enforce the Leases and
entitled to acquire the vending machines at current market value less the
amount of the offsets and/or recoupment amounts and to continue with its
25
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 26 of 28
Morton and Nicole Morton may apply against the claims of IntelliVend
due to the actions of Bacon Whitney, determine the offset for all damages
amount, if any, due by Casco Bay Vending, Theodore Morton and Nicole
k. Finding that Rollins and Bacon Whitney violated their duty of good faith
p. Order that IntelliVend convey good and clear title to the vending machines
that are in the possession of Casco Bay Vending to Casco Bay Vending
posthaste;
26
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 27 of 28
Respectfully submitted,
27
Case 2:09-cv-00126-DBH Document 52 Filed 09/11/09 Page 28 of 28
CERTIFICATE OF SERVICE
I, David J. Perkins, attorney for Plaintiffs, hereby certify that service of Third Amended
Complaint was duly made upon the individuals indicated as receiving service via the “ECF
Filing” system.
Respectfully submitted,
28