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655147/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/17/2018

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF New York
NFL Enterprises, LLC Index No.

Plaintiff(s),

~UttttttllUZ:
-against-
xos, LLC d/b/a XDS LIVE, LLC

Date Index No. Purchased:

Defendant(s).

To the above named Defendant(s)

XDS, LLC d/b/a XDS LIVE, LLC
394 Waverly Avenue
Brooklyn, New York, 11238

You are hereby summoned to answer the complaint in this action and to serve
a copy of your answer, or, if the complaint is not served with this summons, to serve
a notice of appearance, on the Plaintiff's attorney within 20 days after the service of
this summons, exclusive of the day of service (or within 30 days after the service is
complete if this summons is not personally delivered to you within the State of New
York); and in case of your failure to appear or answer, judgment will be taken against
you by default for the relief demanded in the complaint.

The basis of venue is the residence of Plaintiff NFL Enterprises, LLC

which is 345 Park Avenue, New York, New York 10154.

Dated: Oct. 16, 2010

NFL Enterprises, LLC

Haynes and Boone, LLP

30 Rockefeller Center, 26th Floor
New York, New York 10112
Tel. 212-918-8961
Fax 212-884-9561

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

NFL ENTERPRISES LLC,

Plaintiff, Index No. - - - - - - - - -

-against-

XDS, LLC d/b/a XDS LIVE LLC,

Defendant.

COMPLAINT

Plaintiff NFL Enterprises LLC, ("NFLE"), by and through its attorneys, Haynes and

Boone, LLP, for its Complaint against Defendant XDS, LLC ("XDS" or "Defendant"),

respectfully alleges as follows on knowledge as to its own acts and on information and belief as

to all other matters except as indicated:

NATURE OF THE ACTION

1. This is an action for breach of contract, unjust enrichment, conversion and/or

specific performance arising from XDS' s numerous breaches of an Independent Contractor

Agreement (as amended, the "Agreement") that it entered into with NFLE pursuant to which

XDS agreed to, inter alia, design, manufacture and deliver to NFLE a mobile unit consisting of:

(1) a new 2018 Ford Tow Vehicle (the "Truck"); and (2) an Airstream 32-foot Trailer (the

"Trailer" and collectively with the Truck, the "MediaCruiser") for use as a portable set in

connection with the production of television segments for the NFL Network.

2. The Agreement expressly provided, among other things, that NFLE would hold

all right, title and interest in and to the MediaCruiser and required XDS to execute and/or

provide NFLE with any documentation relating to the MediaCruiser that NFLE desired, at any

time, upon NFLE's request. The documentation that XDS was required to provide to NFLE

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specifically included documents evidencing the conveyance of the MediaCruiser to NFLE.

3. As set forth herein, the MediaCruiser's life on the road for NFLE was short-lived.

On or about October 7, 2017 -- less than one month after being delivered to NFLE -- the

MediaCruiser's Trailer burst into flames (the "Fire") while being driven by an agent of XDS on

Highway 17 in Leland, North Carolina.

4. Although NFLE paid XDS in full for the MediaCruiser prior to the Fire, and XDS

has repeatedly confirmed NFLE's ownership of the MediaCruiser in writing, NFLE's efforts to

recover under its insurance policy for the damage to the MediaCruiser caused by the Fire have

been thwarted due to XDS's steadfast and wholly unjustified refusal to provide NFLE with

original documentation demonstrating NFLE's ownership of the MediaCruiser, despite NFLE's

numerous requests that it do so.

5. Without such documentation NFLE is prevented from proceeding with its claims

for insurance coverage. Thus, despite paying XDS in full for the MediaCruiser, NFLE presently

neither has use of the MediaCruiser, nor the ability to proceed with a claim for coverage for the

damage caused by the Fire.

6. Defendant's baseless refusal to provide NFLE with documentation sufficient to

demonstrate NFLE's ownership of the MediaCruiser constitutes a clear breach of XDS's

obligations under the Agreement.

7. As a direct result of this breach, and various other breaches of the Agreement by

XDS, NFLE has been damaged in an amount to be determined at trial but believed to be no less

than $4,110,642.79.

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THE PARTIES

S. Plaintiff NFLE is a Delaware limited liability company whose principal place of

business is located at 345 Park Avenue, New York, New York 10154.

9. Upon information and belief, Defendant XDS (d/b/a, XDS LIVE, LLC and f/k/a

EVNTXD LLC) is a New York limited liability company whose principal place of business is

located at 394 Waverly Avenue, Brooklyn, New York 11238.

JURISDICTION AND VENUE

10. Jurisdiction is proper pursuant to CPLR §§ 301 and 302 as, among other things:

(1) XDS is based in New York and regularly does or solicits business in New York; and (2)

XDS's actions and inactions have caused injury to NFLE in New York.

11. Venue is proper in this Court pursuant to CPLR § 503(a) because NFLE resides in

New York County.

FACTUAL BACKGROUND

A. The MediaCruiser.

12. In or about early 2017, NFLE embarked upon plans to increase fan interaction and

interest in NFL games through the production of television programming broadcast live from

locations outside of NFL stadiums on game days. The focal point of these plans was the creation

of a mo bile television set production vehicle, inspired by the DuMont Telecruisers of the 1940s

and 50s, to be known as the NFL MediaCruiser.

13. NFLE envisioned that the MediaCruiser would travel to various remote locations

around the country on a weekly basis in order to enable the NFL Network to provide on-location

television coverage of various NFL events such as the NFL Draft and NFL games including, but

not limited to, Thursday Night Football and· the Super Bowl.

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B. The Agreement And The Relevant Terms.

14. In furtherance of these plans, on or about March 1, 2017, NFLE executed the

Agreement with XDS pursuant to which XDS agreed to, inter alia, design, build, deliver,

maintain, store and operate the MediaCruiser comprised of: (1) the Truck; and (2) the Trailer.

15. The parties' understandings and obligations with respect to the subject matter of

this action are set forth in the Agreement, its exhibits, and the following five amendments: (1)

the First Amendment, effective as of July 11, 2017 (the "First Amendment"); (2) the Second

Amendment, effective as of July 18, 2017 (the "Second Amendment"); (3) the Third

Amendment, effective as of July 31, 2017 (the "Third Amendment"); (4) the Fourth Amendment,

effective as of August 17, 2017 (the "Fourth Amendment"); and (5) the Fifth Amendment,

effective as of August 28, 2017 (the "Fifth Amendment" and, collectively with the First

Amendment, Second Amendment, Third Amendment and Fourth Amendment, the

"Amendments" and, unless otherwise noted, collectively with the Agreement, the

"Agreement"). 1

16. Pursuant to the Agreement, XDS was obligated to provide the goods and services

called for by the Agreement -- including, but not limited to, the MediaCruiser -- in a timely and

professional manner and to maintain the MediaCruiser in excellent condition. 2

17. The Agreement repeatedly makes clear -- both in the Agreement and the Standard

Terms (the "Standard Terms") attached to the Agreement as Exhibit D -- that NFLE would hold

all right, title and interest in and to the proceeds of XDS's work and services including, without

The Agreement imposes certain confidentiality obligations on the parties that prevent them from divulging
specific provisions of the Agreement. In order to continue to comply with these obligations, NFLE will not
disclose the actual language of the provisions at issue and will make only general reference to the Agreement's
terms to the extent necessary to put XDS on notice of the basis for NFLE's claims.
The Agreement addresses numerous obligations and responsibilities of the parties. For the sake of brevity,
NFLE will address only those directly related to the claims at issue.

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limitation, the MediaCruiser.

18. Indeed, the Agreement's Standard Terms require XDS to execute and/or provide

NFLE with any documentation relating to the MediaCruiser that NFLE desires, at any time, upon

NFLE's request, including, but not limited to, documents evidencing the conveyance of the

MediaCruiser to NFLE.

19. Additionally, the Agreement authorized and irrevocably appointed NFLE as

XDS 's attorney-in-fact to prepare and execute any documents on XDS 's behalf which might be

required for NFLE to obtain and/or protect its rights to, among other things, the MediaCruiser.

20. Finally, as part of the Agreement, XDS represented that it would not take any

action to interfere with NFLE's rights under the Agreement including, but not limited to, NFLE's

ownership rights with respect to the MediaCruiser.

21. The Agreement was effective for an initial one-year term which could be

extended at NFLE's sole option.

22. NFLE also retained the right to terminate the Agreement at any time, with or

without cause, upon written notice to XDS.

23. Moreover, the Agreement makes clear that NFLE's failure to insist upon strict

performance of any obligation(s) under the Agreement shall not be construed as a waiver of any

rights to enforce such obligation(s) absent a written waiver signed by both parties. No such

waiver exists.

24. The Agreement is governed by New York Law and, pursuant to the Amendments,

the parties agreed to submit any disputes arising from the Agreement to the state or federal courts

located in the City of New York, New York.

25. XDS agreed to indemnify, defend and hold NFLE harmless against, inter alia,

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any and all losses or damages arising out of XDS's breach of any of its obligations under the

Agreement including, but not limited to, reasonable attorneys' fees and expenses.

C. XDS's Delivery Of The Media Cruiser And Confirmation Of NFLE's Ownership.

26. Although XDS originally committed to deliver the MediaCruiser to NFLE by July

1, 201 7, that deadline was subsequently extended.

27. Instead, the parties executed the Amendments pursuant to which the delivery date

of the MediaCruiser was adjusted to: (1) July 25, 2017 (First and Second Amendment); (2)

August 21, 2017 (Third Amendment); and (3) September 8, 2017 (Fourth Amendment).

28. NFLE performed all of its obligations under the Agreement, including but not

limited to, paying all sums due to XDS under the Agreement for the MediaCruiser as of

September 8, 2017.

29. XDS delivered the MediaCruiser to NFLE on or about September 8, 2017.

30. However, upon delivering the MediaCruiser to NFLE, XDS did not provide

NFLE with all original documents required to evidence its transfer of title and ownership to the

Truck and the Trailer to NFLE as is required under the Agreement.

31. Instead, in an email dated September 8, 2017 (the "September 8 Email"), sent

from XDS's Rohit Kapoor ("Kapoor") to NFLE's David Shaw, XDS confirmed that full

ownership and title to the MediaCruiser had, in fact, been transferred to NFLE and attached

pictures of the plates and insurance cards for the MediaCruiser.

32. As part of the September 8 Email, Kapoor further advised that the Department of

Motor Vehicles (the "DMV") would be sending an original of the new title directly to NFLE

within 4 to 6 weeks. A true and correct copy of Kapoor' s September 8 Email is attached hereto

as Exhibit A.

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D. The Fire.

33. On October 7, 2017, while being driven by an agent of XDS, the MediaCruiser

caught fire while traveling on Highway 17 in Leland, North Carolina.

34. The Leland Fire Department was dispatched to respond to reports of a vehicle fire

at 10448 Ocean Highway East in Leland, North Carolina. By the time the Fire Department

arrived at the scene of the Fire, the MediaCruiser was engulfed in flames.

35. The Truck component of the MediaCruiser is apparently being kept on the

property of the XDS agent who was operating the MediaCruiser at the time of the Fire.

36. Following the Fire, the Trailer component of the MediaCruiser was towed to

SAFE Lab in Sanford, North Carolina where, upon information and belief, it remains today.

37. The NFL has not had use of the Trailer or the Truck since the date of the Fire.

E. XDS's Refusal To Provide NFLE With Documentation Evidencing NFLE's

Ownership Of The Media Cruiser As Is Required Under The Agreement.

38. Following the Fire, on October 9, 2017 NFLE tendered a claim for insurance

coverage to its insurance carrier for the damage to the MediaCruiser caused by the Fire.

39. Although XDS advised NFLE as of September 8, 2017, and several times

thereafter, that it would be receiving original documentation directly from the Departments of

Motor Vehicles in New York (for the Truck) and Wisconsin (for the Trailer), NFLE never

received the original documentation from XDS evidencing NFLE's ownership of the Trailer

despite its contractual entitlement to it.

40. Absent proof of its ownership of the MediaCruiser, NFLE is prevented from

proceeding with its claims for insurance coverage.

41. As a result, on or about October 18, 2017, NFLE once again asked XDS to

provide it with all original documentation evidencing NFLE's ownership of the MediaCruiser.

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42. In response to NFLE's requests, XDS's Kapoor wrote to NFLE's Jamil Gittens on

October 18, 2017 (the "October 18 Email") to once again confirm that, "NFLE OWNS the truck

and trailer by contract and title." A true and correct copy of the October 18 Email, along with its

attachments, is attached hereto as Exhibit B.

43. K.apoor's October 18 Email attached, among other things: (1) a Portable

Document Format ("PDF") copy of the Wisconsin Certificate of Title to the Trailer, dated July

14, 2017 (the "Certificate of Title"), which identifies "XDS LIVE LLC" as the titled owner; and

(2) a PDF copy of what appears to be the back of the Wisconsin Certificate of Title to the Trailer

containing an Assignment of Certificate of Title, dated September 7, 201 7, executed by Kapoor

on behalf ofXDS and purportedly reflecting the assignment of title to the Trailer to NFLE.

44. The October 18 email further indicated that NFLE would be receiving the original

title documentation for the Truck directly from the New York Department of Motor Vehicles

(the "DMV") within 4-6 weeks ofXDS's September 8 email.

45. Two days later, on October 20, 2017 (the "October 20 Email"), Kapoor sent

another email to NFLE's insurance adjuster, Robert Pope ("Pope"), confirming that, "NFLE

owns the truck and trailer, and therefore holds title to both."

46. Just as he had done in the past, as part of the October 20 Email, Kapoor included

PDF copies of the title and registration for the Trailer (signed over to NFLE) as well as the title

and registration for the Truck. A true and correct copy of the October 20 Email, along with its

attachments, is attached hereto as Exhibit C.

F. XDS's Breaches Of The Agreement.

47. Although NFLE ultimately received an original title document for the Truck from

the New York State DMV, it has never received an original title document for the Trailer from

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either XDS or the Wisconsin DMV.

48. To date, XDS has not provided NFLE with an original title document for the

Trailer.

49. Instead, incredibly, the Wisconsin DMV advised NFLE that it was asked by XDS

to process a new title document for the Trailer on January 18, 2018 -- in XDS's name.

50. XDS secured a replacement title to the Trailer in XDS's name after delivering the

MediaCruiser to NFLE pursuant to the Agreement and after XDS had sent multiple

communications to NFLE (and others) admitting that NFLE is the owner of the Trailer, including

communications that contained a PDF copy of XDS's purported assignment of title to the Trailer

to NFLE.

51. NFLE later learned that the purported Wisconsin title assignment that was e-

mailed to NFLE as part of the October 18 Email (among others) had not, in fact, been submitted

to the Wisconsin DMV, and was therefore ineffective.

52. Not only did XDS's securing of title to the Trailer conflict with XDS's previous

communications, it violated numerous provisions of the parties' Agreement which require that

NFLE hold all right, title and interest in and to the MediaCruiser.

53. Although NFLE made several attempts to secure the original title documentation

reflecting its ownership of the Trailer, XDS has consistently refused to provide such

documentation.

54. Instead, by email dated May 16, 2018, XDS's Kapoor advised NFLE's Jamil

Gittens that, "[a]ll issues with title and such, as they are unfortunately entrenched in contractual

and insurance maters at the moment need to go through our Adjuster, Ronald Anton." A true

and correct copy ofKapoor's May 16, 2018 email is attached hereto as Exhibit D.

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55. By letter dated July 2, 2018, sent from NFLE's in-house counsel, Michael

Buchwald, to XDS's Kapoor, NFLE reiterated its demands for the title documentation.

56. Although Mr. Buchwald also engaged in discussions with XDS's msurance

adjuster, Joseph Anton, XDS still has failed to provide NFLE with the title documentation to

which it is entitled under the Agreement.

57. Even more troublingly, in a dramatic shift from prior communications where XDS

admitted and agreed that NFLE is the owner ofthe Trailer, as of September 12, 2018, XDS's

insurance adjuster advised NFLE, on behalf of XDS, that XDS now believes that it is the owner

of the Trailer.

58. XDS's refusal to provide the title documentation requested by NFLE, as well as

its securing of a new title document for the Trailer that incorrectly identifies XDS as the Trailer's

owner from the Wisconsin DMV, constitutes a material breach of numerous terms of the

Agreement including, but not limited to, the Agreement's requirements that:

a. NFLE own all right, title and interest in the MediaCruiser;

b. XDS provide NFLE with all documentation demonstrating its ownership

of the MediaCruiser;

c. XDS provide and/or execute all documents necessary to effectuate XDS's

conveyance of ownership rights in the MediaCruiser to NFLE; and

d. XDS not to take any action inconsistent with NFLE's rights.

59. In addition, XDS has breached numerous other terms of the Agreement.

60. NFLE has fully perfonnedunder the Agreement.

61. As. a result of XDS's various breaches of the Agreement, NFLE has been

damaged in an amount to be determined at trial, but believed to be no less than $4,110,642.79.

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FIRST CAUSE OF ACTION

(Breach of Contract)

62. NFLE repeats and realleges the allegations contained in paragraphs 1 through 61

of this Complaint as if fully set forth herein.

63. As described above, the Agreement constitutes a valid and legally binding

contract between NFLE and XDS.

64. NFLE fully performed its obligations under the Agreement.

65. Despite NFLE's performance, XDS failed to comply with its obligations under

the Agreement by, among other things:

a. Failing and/or refusing to execute or provide documentation necessary the

demonstrate NFLE's ownership of, and title to, the MediaCruiser;

b. Failing and/or refusing to transfer title to the MediaCruiser to NFLE; and

c. Executing documents to the derogation ofNFLE's right to title in the

MediaCruiser.

66. As a result of XDS's various breaches of the Agreement, NFLE has been

damaged in an amount to be determined at trial, but believed to be no less than $4,110,642.79,

plus interest from the date of breach, attorneys' fees and expenses.

SECOND CAUSE OF ACTION

(In the Alternative, Unjust Enrichment)

67. NFLE repeats and realleges the allegations contained in paragraphs 1 through 66

of this Complaint as if fully set forth herein.

68. Although NFLE asserts that the Agreement was a valid and legally binding

contract, to the extent XDS disputes this fact or the Court determines otherwise, XDS has been

unjustly enriched at NFLE's expense.

69. Specifically, NFLE paid XDS for, inter alia, the design and manufacture of the

MediaCruiser.

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70. XDS accepted NFLE's payments but failed to provide NFLE with documentation

evidencing NFLE's ownership of the MediaCruiser, to which NFLE was entitled and for which

NFLE has already paid XDS.

71. Accordingly, XDS has been unjustly enriched at the expense of NFLE, and equity

and good conscience demand that NFLE be awarded damages in an amount to be determined at

trial, but believed to be no less than $4,110,642.79.

THIRD CAUSE OF ACTION

(Conversion)

72. NFLE repeats the allegations contained m paragraphs 1 through 71 of this

Complaint as if fully set forth herein.

73. NFLE has a contractually-established right to ownership of, and title to, the

MediaCruiser, and has performed all actions required to establish such rights under the

Agreement.

74. XDS has wrongfully interfered with NFLE's contractually-established rights and

exercised dominion over title to the MediaCruiser in derogation of NFLE's ownership rights by

failing to provide NFLE with title to the MediaCruiser and, instead, obtaining a title that states

that XDS, rather than NFLE, is the rightful owner of the MediaCruiser.

75. NFLE has repeatedly demanded that XDS provide it with the original title to the

MediaCruiser and such other and further documentation as is necessary to demonstrate NFLE's

ownership of the MediaCruiser, but XDS has refused to provide such documentation.

76. As a result of XDS's failure to provide the ownership documentation requested by

NFLE and to which NFLE is entitled ·under the Agreement, NFLE is unable to exercise its

ownership rights over the MediaCrniser including, but not limited to, proceeding with its claim

for insurance coverage as a result of the Fire.

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77. As a result of XDS's wrongfol actions, NFLE has been damaged in an amount to

be determined at trial, but believed to be no less than $4,110,642.79, plus interest from the date

of breach.

FOURTH CAUSE OF ACTION

(In the .Alternative, Specific Performance)

78. NFLE repeats the allegations contained in paragraphs 1 through 77 of this

Complaint as if fully set forth herein.

79. The parties made an Agreement by which XDS promised, among other things, to

transfer title of the MediaCruiser to NFLE.

80. NFLE performed all its obligations under the Agreement.

81. Although XDS has previously admitted, on multiple occasions, that it is obligated

to provide NFLE with title to the MediaCmiser -- and has repeatedly claimed that XDS has, in

fact, done so -- the title to the MediaCruiser remains in XDS' s name and possession.

82. Absent title to the MediaCruiser, NFLE has been advised that it is prevented from

proceeding with its claim for insurance coverage for the damage to the MediaCruiser caused by

the Fire.

83. Although NFLE has made a claim for damages in this action, should the Court

find that a more appropriate remedy exists in equity, NFLE has no adequate remedy at law.

84. As a result, NFLE is entitled to a judgment directing XDS to immediately provide

NFLE with all original documentation necessary to demonstrate NFLE's ownership of the

MediaCruiser including, but not limited to, original title to the Truck and the Trailer assigned to

NFLE or in NFLE's name.

WHEREFORE, NFLE demands that judgment be entered in its favor against Defendant

XDS as follows:

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(i) awarding NFLE actual damages in an amount to be proven at trial but believed to

be no less than $4,110,642.79, plus an award of interest as a result of XDS's

various breaches of the Agreement; and

(ii) awarding NFLE punitive damages in an amount to be proven at trial as a result of

XDS's conversion ofNFLE's property; or,

(iii) in the alternative, awarding NFLE specific performance with an. Order directing

XDS to immediately provide NFLE with all original documentation necessary to

demonstrate NFLE's ownership of the MediaCruiser including, but not limited

to, an original title to the Truck and the Trailer assigned to NFLE or in NFLE's

name; and

(iv) awarding NFLE the costs, fees and expenses incuned in this action, including

without limitation, its reasonable.attorneys' fees; and

(iv) awarding NFLE such other and further relief as the Court may deem just and

proper.

Dated: October 16, 2018

HA YNES AND BOONE, LLP

Jonatha D. Pressment
aloma adi
3 0 Rockefeller Plaza
26th Floor
New York, NY 10112
Telephone: (212) 918-8961
Facsimile: (212) 884-9561
Email: j onathan.pressment@haynesboone.com
Email: paloma.ahmadi@haynesboone.com

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